1 wp8776.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION KJ WRIT PETITION NO.8776 OF 2010 Gajanan Vishwambhar Mitke ) Age-29 yrs. Residing at Corolla Jewells, B/102) Bamandayapada, Andheri (East), ) Mumbai-400 072. )..Petitioner Vs. 1 The State of Maharashtra & Ors. ) 2 Controller of Examinations ) Maharashtra University of Health Sciences ) having his office at Nasik, Dindori Road, ) Mhaswad, Dist. Nasik. ) 3 Vice Chancellor, ) Maharashtra University of Health ) Sciences, having his office at Nasik ) Dindori Road, Mhaswad, Dist. Nasik. )..Respondents ---- Mr.M.S.Karnik i/by Leena Patil for the petitioner. Mr.V. S. Gokhale AGP for the Respondent No.1. ---- CORAM : P.B.MAJMUDAR & MRS.MRIDULA BHATKAR,JJ DATE : 2/12/2010. 2 wp8776.10.sxw ORAL JUDGMENT (PER P.B.MAJMUDAR, J.) :- 1 The petitioner who had appeared in the 3rd year MBBS examination in May-June 2010 was caught red-handed by the Supervisor in the sense that some slips were found in his pocket at the time of examination. An inquiry was held by the competent authority and it was found that the university exam of the petitioner is cancelled in full, in all subjects meaning thereby that the petitioner can appear in the next examination of the said course. Learned Advocate for the petitioner submits that by over sight, the petitioner has kept a chits in his pocket and by mistake and by oversight, he could not disclose the said fact to the Supervisor before starting of examination. When the Supervisor ultimately found the said chits from the pocket of the petitioner, the petitioner realized that he should have handed over the same before starting of examination. It is submitted that there is no mens-rea on the part of the petitioner, but by mistake the slips/chits remained in his pocket. It is submitted that unfortunately this was a last paper of MBBS examination and if things would not have happened, he could have completed the 3 wp8776.10.sxw paper. It is submitted that there is no mens-rea on the part of the petitioner and the punishment order is required to be set aside. 2 In order to substantiate the same, learned Advocate for the petitioner has relied upon Section 7 of the Maharashtra Prevention of Malpractices at University Board and Specified Examinations Act, 1982, which reads as under :- “7 Prohibition of copying and impersonating at examination- Whoever is found in or near the Examination Hall by the invigilator or any other person appointed to supervise the conduct of examination, copying answer, questions set at examination, from any book, notes, or answer paper of other candidate appearing at the examination or any other papers or using any other unfair means, shall, on conviction, be punished with imprisonment which may extend to six months or fine or both.” 3 It is submitted that the petitioner was not found copying 4 wp8776.10.sxw while writing answers to the question papers at the examination and it is not found that he was giving answers by taking benefit of the said paper slips at the time of examination. 4 We heard learned Advocate for the petitioner. Though served, none appears for the Controller of Examination as well as on behalf of the University. Learned AGP states that this is not a case in which High Court should exercise jurisdiction under Article 226 of the Constitution of India. 5 We have heard learned Advocate for the petitioner at length and we have also gone through the annexures attached to the petition. 6 It is required to be noted that the petitioner was a student of last year MBBS examination. He was appearing for the paper of subject concern with Pediatric. After inquiry it was found that the petitioner committed mis-conduct during the examination. It is required to be noted that the petitioner was appearing in an 5 wp8776.10.sxw examination of MBBS and after passing MBBS, he is required to treat patients. If the petitioner undergoing MBBS examination, is found to have indulged in malpractices in the examination, it is difficult to understand as to what type of treatment the petitioner after becoming doctor can give to his patients. It is required to be noted that as per the provisions of the Act, any type of unfair practice in examination is said to be malpractice at the examination. It is not necessary that unless the petitioner is actually found copying the paper by keeping the paper slips in his hand then only it can be said unfair practice. It is not in dispute that it is only when the examiner checked the pocket of the petitioner, he was found with the aforesaid chits. It is therefore, clear that the petitioner made an attempt to give answers in the examination by utilizing, adopting unfair means and by making copies from a slip of papers, which he had carried at the time of examination of said paper. In our view, entering in the examination hall carrying with chit of papers in the pocket, may amount to using unfair practice at the examination. It is not the case where the petitioner voluntarily surrendered the notes/chits to the 6 wp8776.10.sxw Supervisor. In our view, this is not a case in which this Court would like to interfere with the decision of the authority in its extra ordinary jurisdiction under Article 226 of the Constitution of India. It is required to be noted that this is not a case where the petitioner was appearing at the primary school examination. It is shocking that in such type of examination, an attempt was made by a student by entering into the examination hall with a slip of papers in his pocket for utilizing the same for the purpose of giving answers. The decision taken by the Board of Examiner is based on charge leveled against the petitioner and after considering the substantial evidence on record. Since it has been found by the fact finding competent authority that the petitioner has resorted to unfair means at the time of examination, in our view, a liberal view is taken only by canceling the result of the examination and the petitioner is permitted to appear for the next examination. Considering the said aspect of the matter, we are not in a position to agree with the submission of the petitioner that since paper slip has not been found to be actually used at the time of giving answer, it cannot be said to be an unfair practice. It is not in 7 wp8776.10.sxw dispute that said paper slip was found by the Supervisor at the time when examination started. Considering the aforesaid aspects of the matter, in our view, no relief can be granted to the petitioner in any manner especially when the authority itself has taken liberal view by allowing the petitioner to appear for the next examination. Considering the said aspects, petition is rejected. (MRS.MRIDULA BHATKAR,J) (P.B.MAJMUDAR,J)