CWP NO. 21596 OF 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP NO. 21596 OF 2010 DECIDED ON- 07.02.2011 Anamika Rawat and others ……PETITIONERS Versus Guru Nanak Dev University and another ……RESPONDENTS Coram HON'BLE MR.JUSTICE MAHESH GROVER Present: Mr. Deepak Thapar, Advocate for the petitioners. Mr. Amrit Paul, Advocate for respondent no.1. Mr.Inderjit Sharma, Advocate with Mr. Bipin Dwivedi, Advocate for respondent no.2. MAHESH GROVER, J(Oral) The petitioners have filed the instant petition with a prayer for issuance of a writ in the nature of certiorari to quash the action of the respondent-University debarring the petitioners from appearing in any examination for a period of two years on the ground that they had indulged in unfair means while appearing in the examination of various courses of first and second year. They further prayed that the petitioners be permitted to continue with their respective courses which they are pursuing. All the petitioners are students of New Delhi Institute of Management, New Delhi which is affiliated to Guru Nanak Dev University, respondent no.1 and is imparting training and courses for Bachelor of Business Administration. The petitioners took the examination for BBA Ist and 2nd year but their results were not declared and upon inquiry, they realized that their results have been withheld for no ostensible reason. CWP NO. 21596 OF 2010 2 They received the information on 7th and 8th of August that vide letter dated 6.8.2010 issued by the University, the results of the petitioners had been declared as RL(UMC)( Result Unfair Means Case). The petitioners disputed the fact that there were any unfair means adopted by them and persisted with the University Authorities to declare the result but instead of accepting the prayer of the petitioners, the University awarded the punishment of disqualification for two years to fourteen out of twenty two students of BBA second years and five out of nine students of BBA Ist year. The petitioners pleaded that the action of the respondent-University is totally arbitrary. Upon notice having been issued, the respondents have filed the reply. The stand of the University is that upon evaluation of the answer sheets, answer to some questions were found to have been answered in a strikingly similar fashion. A standing committee was constituted to look into this aspect of the students having indulged in unfair means. The committee was constituted as per the provisions of rule 3.1 of the Ordinance which is on record as Annexure P9. The committee thereafter, after following the procedure having contemplated under rule 3.2 to 3.4 examined the matter in detail and concluded as follows:- “ At the outset the committed was of the view that the University deserved to be complimented for taking cognizance of an anonymous complaint so as to ascertain the truth. The committee examined the report of the special examiner and therein it noticed that question 1 section A for both BBA-I and BBA-II related to the fill in blanks. The committee felt that in a paper of English the fill in blanks done by the candidates (if correctly) would be the same. Hence, it cannot form the complete CWP NO. 21596 OF 2010 3 basis for arriving at a correct conclusion. The committee then examined the scripts of BBA I minutely. Question number 10 was of translating the English paragraph to Hindi. Translating a paragraph from English to Hindi is an exercise wherein the answers of the candidates cannot be done identically. On close examination, the committee felt that out of all the nine candidates the answers of 5 candidates having roll numbers 38295, 38297, 38298, 38308 and 38309 are verbatim the same. However, answers of candidates with roll numbers 38293, 38350, 38351, 38352 to question number 10 were not identical. The first set of 5 candidates were called to the committee room, given the question papers and asked to attempt question number 10 relating to translation of paragraph. The answers written by these five candidates now were nowhere near to almost 100% carried answers given in their earlier scripts. All these candidates were given an individual hearing and none of these could give any satisfactory explanation for their identical answers given in the examination. Regarding 22 candidates with the following roll numbers 40162, 40163, 40165, 40166, 40186, 40187, 40189, 40190, 40205, 40206, 40223, 40224, 40232, 40233, 40246, 40247, 40252, 40253, 40264, 40265, 400267, 40268 of BBA-II English Compulsory the report of the special examiner as in the case of BBA Part I was that all these candidates have copied the answers of question number 1 section A which the question relating to fill in blanks as it was in case of BBA Part I. Additionally the special examiner had pointed out that candidates with roll numbers 40205 and 40206 have copied question number 9 in second B and roll numbers 40223 and 40224 have additionally copied the answer to second question in section C. Regarding these candidates also the committee felt that question number 1 in section A relating to fill in blanks is not the one wherein the conclusion about copying can be safely drawn. Accordingly, the candidates were seated in the committee room , given a photocopy of the question paper and asked to attempt CWP NO. 21596 OF 2010 4 answers to question number 1 (fill in the blanks) and question number 10 (translate English paragraph in Hindi). On a close scrutiny of the answers of all the candidates in their answer books and their answers on the question papers done in the committee room showed that the roll numbers i.e 40162, 40163, 40166, 40186, 40187, 40189, 40190, 40223, 40224, 40232, 40252, 40253, 40267 and 40268 have identical answers indulged in use of unfair means. All these candidates were given individual hearing and all of them failed to give any acceptable explanation for the verbatim answers earlier and a significant variation of their present answers. In view of the above the committee holds the following candidates guilty for violation of ordinance 10(j) read with Ordinance 11.1(b) and disqualified them for a period of two years from appearing in any examination to be conducted by the University. BBA Part I 38295, 38297, 38298, 38308 and 38309 BBA Part II 40162, 40163, 40166, 40186, 40187, 40189, 40190, 40223, 40224, 40232, 40252, 40253, 40267, 40268 The other roll numbers i.e 40165, 40205, 40206, 40233, 40246, 40247, 40264, 40265 of BBA Part II and 38293, 38350, 38351 and 38352 of BBA Part I are given the benefit of doubt and exonerated from the charge levelled against them under Ordinance 10(j) read with ordinance 11.1(b). The results of these candidates may be declared accordingly.” Thereafter, after recording a conclusion that the petitioners were guilty of CWP NO. 21596 OF 2010 5 violation of clause 10(j) of the ordinance, it went on to disqualify the petitioners for a period of two years and debarred them from appearing in any examination to be conducted by the University. Learned counsel for the petitionesr contends that the action of the respondent is totally arbitrary as number of students who were facing similar allegations have been given the benefit of doubt and exonerated whereas the petitioners have been debarred from taking any examination for two years, which punishment is not only arbitrary but is also excessive. He has contended that on the parity of the same reasoning, two persons could not have been dealt with differently. That apart, he has contended that there is no material on the basis of which the conclusion of the standing committee can be sustained. He thus, contends that the action of the respondents is totally arbitrary and deserves to be set aside. He has placed reliance upon Rakesh Kumar and another v. Institute of Engineers (India) AIR 1998 Supreme Court 5 to contend that merely because two individuals write similarly cannot necessarily lead to a conclusion that they have indulged in some unfair means for the reason that it is possible that the source of the material from which they have prepared for the examination may be same and also for the reason that such persons may have crammed the answers which logically is going to lead to similarity of answers. He thus, prays that the writ petition be allowed and the action of the respondent-University be quashed. Learned counsel appearing for the University on the other hand contends that there cannot be any second opinion about the fact that the petitioners have indulged in unfair means as is evident from the report of the committee. He further contends that the committee has gone CWP NO. 21596 OF 2010 6 into the matter sufficiently and has acted without any bias or taint and thus, it cannot be said that the action of the respondents is not credit worthy. He further contends that the fairness of the committee can be assessed from the fact that number of students have been given the benefit of doubt and the plea of the petitioners that because these students have been given the benefit of doubt they should also be given a similar benefit is without any basis because their cases have been evaluated and there is overwhelming material to show the complicity of the petitioners in the indulging of unfair means. To satisfy itself, this Court had summoned the record of the case and the answer sheets of the affected students who are petitioners herein, were perused. The answer to question no.10 needs specific mention and all these petitioners have answered the question in a strikingly similar fashion without any deviation from the content. When the committee asked some of the students to answer the same question before them, those answers found a different expression then the ones attempted by them during the course of examination. These answers reflected natural variations attributable to the natural flow of memory. But if the answers given by them in the examination are to be seen then as observed earlier, there is not even the minutest variation. Each student has answered the questions verbatim, with no deviation in content. The Court is not enamoured of the plea which has been raised by the learned counsel for the petitioners that if the source is the same and if few persons having access to that source cram such material the logical conclusion would be similarity of the attempt, for the simple reason CWP NO. 21596 OF 2010 7 that even if the source is the same and the persons resort to cramming yet while reproducing the material there is bound to be some variation which is obviously a reflection of the process of recall. This argument, therefore, has to be negated and the obvious inference upon such negation is that the petitioners have indulged in unfair means while answering the examination. The next question that is to be seen is as to whether the action taken by the respondent-University in debarring the students for a period of two years is to be held to be valid or not. The committee has concluded that there is a violation of clause 10(j) of the ordinance. Therefore, it is necessary to peruse clause 10 (j) of the Ordinance, which is extracted here-below:- “10(j) of the Ordinance Receiving help or attempting to receive help for answering the question paper from any source in any manner, inside or outside the examination hall.” The aforesaid provision of the ordinance which has been invoked to debar a student for a period of two years from taking any examination conducted by the University shows that to invite an action under Section 10(j), it has to be established that a person who has indulged in unfair means has received help or has attempted to receive help for answering the question paper from any source in any manner inside or outside the examination hall. The report is woefully short of establishing these ingredients. The Court cannot loose sight of the fact that the process of scrutiny was initiated on the basis of an anonymous complaint and in all fairness, the committee associated the students while conducting its CWP NO. 21596 OF 2010 8 exercise. But no such material has been shown to the Court on the basis of which the committee concluded that the petitioners had received help or had attempted to receive help for answering the question paper from any source in any manner inside or outside the examination hall. The only material available with the committee were the answer books which, as observed earlier, were replicated in the attempted question no.10. They also had the benefit of interacting with the students during the course of personal hearing. But no such finding has been recorded as to from where this material was supplied to them by way of help from inside or outside the examination hall. I am thus, of the opinion that invocation of this clause by the respondent-University was erroneous. This becomes all the more essential to evaluate because the punishment which have been provided are different for various offences. Having differed with the opinion of the committee and the University regarding the applicability of the clause 10(j), the Court then proceeds to evaluate as to what, ought to have been the rightful clause that could have been invoked and when clause 10 and 11.1 are perused together, then clause 10(z) seems to be more appropriate clause that should have been invoked in a situation such as the one in hand where the conclusion affirmatively points to the use of unfair means by the students but there is ambiguity in the manner in which it has been done. Clause 10(z) of the Ordinance, takes care of such situations where a student engaged in any other act or omission which amounts to use of unfair means or mis conduct. Clause 10(z) is extracted herebelow:- “10(z) of the Ordinance Engaging in any other act or omission which amounts to use of unfair means or misconduct or CWP NO. 21596 OF 2010 9 has the tendency to disrupt the orderly conduct of the examination.” Having said this, I am of the opinion that the corresponding punishment provided in clause 11.1(g) would have met the ends of justice. This provides for disqualification for a period that may extend to five years but not less then one year. With reference to the said, I am further of the opinion that considering the circumstances where even though the conclusion converges to the use of unfair means yet because the act or omission thereof is left to some ambiguity, without the source being established as required in clause 10(g), the ends of justice demand that disqualification of one year be deemed appropriate. The Court thus, orders accordingly. The writ petition is therefore, dismissed. However, the disqualification which has been inflicted upon the petitioners by invoking the clause 10(j) of the Ordinance, for a period of two years is toned down to say that the disqualification shall be construed as per clause10(z) read with 11.1(g) and the disqualification shall remain enforced only for a period of one year. The answer sheets which were summoned by the Court be returned to the learned counsel for the University. 07.02.2011 ( MAHESH GROVER) mamta JUDGE