1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Lokesh Khandelwal vs. Maharishi Dayanand University, Ajmer & Ors. (S.B.CIVIL WRIT PETITION NO.4558/07 ) Dated:- 20.12.2007. HON'BLE MR.JUSTICE SANGEET LODHA Mr. Narpat Singh Charan , for the petitioner. Mr. S.G.Ojha ) for the respondents. Mr. Sandeep Shah) BY THE COURT:- This writ petition is directed against the order dated 24.8.06, passed by the respondent University , whereby the petitioner's examination of B.C.A-part I, 2006, has been cancelled and he has been further debarred from appearing in any examination for the year 2007. The petitioner has also sought declaration that he may be declared eligible to appear in the examination of B.C.A.-Part I , 2007 and further directions against the respondents to declare his result of B.C.A-Part I, 2007 with all consequential benefits and to allow him to take admission in the next class or in any other course if he succeeds in B.C.A.-Part I examination, 2007. The petitioner took admission in B.C.A.-Part I in S.P.U. (P.G.), College, Falna in the academic session 2005-2006. On 12.4.07, while appearing in the 6th paper of B.C.A.-Part I 2 examination, a case of using unfairmeans was registered against the petitioner. Consequently, he was not allowed to appear in the examinations for the session 2005-2006. It is stated that while debarring the petitioner from appearance in the examination for the academic session 2005-2006, a case was also registered against him under the Rajasthan Public Examination(Prevention of Unfair Means) Act, 1992. It is stated that no final decision was communicated to the petitioner by the respondent University. It is further stated that on enquiry being made in the office of S.P.U.(P.G.) College, Falna, the petitioner was apprised that he can take admission afresh in the B.C.A.- Part I in the academic session, 2006-2007. Accordingly, the petitioner deposited the requisite admission and examination fee. It is submitted that the petitioner undertook the study of B.C.A.- Part I during the academic session 2006-2007 and was allowed to appear in the Annual Examination B.C.A.-Part I, 2007, which were held in the month of April, 2007. The result of B.C.A.-Part I Examination, 2007 was declared by the respondent University on 7.7.07, however, the petitioner's result was withheld for want of enrollment number. A certificate regarding enrollment number was issued by the Principal, S.P.U.(P.G.) College, Falna. Thereafter, the petitioner approached the respondent University and submitted enrollment certificate and requested for declaration of his result of B.C.A.-Part I Examination, 2007. 3 However, the respondent University refused to declare the result and issue the mark sheet on the ground that the petitioner stands debarred from taking B.C.A.-Part I Examination , 2007, on account of the charge of using unfair means having been found proved against him, during the academic session 2005- 2006. It is stated that only at this stage, the petitioner came to know that on account of the user of unfair means, not only , his B.C.A.-Part I Examination, 2006 has been cancelled but, he has been further debarred from appearing in the academic session 2006-2007. It is contended on behalf of the petitioner that having accorded admission to the petitioner in the B.C.A.-Part I during the academic session 2006-2007 and having permitted him to appear in the examination, 2007 after examining his eligibility and candidature , the respondents cannot be permitted to withheld the petitioner's result and spoil his one more precious year without there being any fault on his part. In these circumstances, this writ petition has been preferred by the petitioner seeking relief referred supra. A reply to the writ petition was filed on behalf of the respondents wherein inter alia, it is stated that the petitioner was found guilty for using unfair means during the B.C.A.-Part I Examination, 2006, by the Unfairmeans Committee of the respondent University ,and consequently, his examination for the year 2006 has been cancelled and he has been further debarred 4 from appearing in the Examination, 2007. It is stated that the copy of the decision was sent to the petitioner as well as the Principal, S.P.U.(P.G.) College, Falna,therefore, it is wrong to contend on behalf of the petitioner that he was not communicated the decision of the Unfairmeans Committee. A copy of the said decision dated 24.8.06 has been placed on record as Annexure R/1. It is stated that while filling the form for B.C.A.-Part I Examination, 2007 , the petitioner has shown himself to be an ex-student and concealed the relevant facts required to be mentioned in the column pertaining to passing of the examination. It is stated that in the said column , the petitioner has mentioned that he has passed the Senior Secondary Examination in the year 2005 but, did not disclose that he appeared in B.C.A.-Part I Examination, 2006 . It is stated that since there was no mention of the decision of the Unfairmeans Committee of the respondent University in the examination form, therefore, inadvertently, admission card was issued to the petitioner. It is submitted that since the petitioner does not fulfil the eligibility , therefore, his result has rightly withheld/cancelled. After filing of the reply as aforesaid, the petitioner preferred an application seeking amendment in the writ petition . The amendment sought for was allowed by this Court vide order dated 22.11.07. Accordingly, the amended writ petition has been 5 filed by the petitioner wherein in addition to the challenge already made, the petitioner has also assailed the validity of decision of Unfairmeans Committee dated 24.8.06 (Annexure R/1). It is submitted on behalf of the petitioner that the said decision dated 24.8.06(Annexure R/1) has never been communicated to the petitioner . Had the respondent communicated the said decision, the petitioner would not have prosecuted his study of B.C.A.-Part I Examination, 2007 . It is contended that the said order has been passed by the respondents without giving an opportunity of hearing to the petitioner. Thus, the said decision is illegal and arbitrary so as to violative of Article 14 of the Constitution of India. Reply to the amended writ petition has been filed on behalf of the respondents. It is contended by the learned counsel appearing on behalf of the respondent University that the fact that the material for copying was found in possession of the petitioner stands fortified from the form filled in at the time of checking which bears the signature of the petitioner . It is stated that the report of subject expert was also obtained before taking the decision which also confirms that the petitioner has used the material found in his possession while answering the question nos. 3 and 6 set out in the question paper. It is submitted by the learned counsel that the procedure laid down has been followed 6 and there is no provision incorporated in the Ordinance of the respondent University providing for giving an opportunity of hearing to the candidate, therefore, the decision taken cannot faulted with. I have heard the learned counsel for the parties, considered the rival submissions and also perused the record of the proceedings leading to passing of the order dated 24.8.06 (Annexure R/1), produced by the respondents for the perusal of this Court in pursuance of directions issued vide order dated 5.12.07. It is not in dispute that unauthorised material having relevance to the syllabus of the examination concerned was found in possession of the petitioner. However, a perusal of the report regarding unfairmeans adopted, prepared at the examination centre, reveals that the petitioner has denied that the material recovered was used by him. It is also not in dispute that before passing the order impugned Annexure R/1, cancelling the petitioner's examination for the year 2006 and debarring him from appearing in any examination for the year 2007, no opportunity of hearing was afforded to him. The respondents have taken the stand that there is no provision in the Ordinance of the University providing for giving an opportunity of hearing to the candidate against whom disciplinary action is proposed. A perusal of the office note at Sr. no. 705/01 at page 66, on the 7 record produced by the respondents reveals that the Disciplinary Committee while proposing the punishment against the candidates found using unfairmeans, kept the seven matters pending for giving personal opportunity of hearing to the candidates. Thus, the stand taken by the respondent University that in no case, opportunity of hearing is afforded to the candidates, does not appear to be correct. There is nothing on record to show that why those seven candidates were chosen for different treatment being given. It is urged by the learned counsel that before taking a decision imposing punishment of cancellation of the current examination and debarring the petitioner from appearing in any examination for the year 2007, a report of the subject expert was obtained , who opined that the incriminating material was used for solving the question nos. 3 and 6 set out in the question paper. It is not the case of the respondents that the copy of the said report was disclosed/supplied to the petitioner during the course of the proceedings and any explanation was sought from him in this regard. The petitioner having denied the factum of copying, at least , it was expected from the respondent to apprise him about the said report and seek his explanation, if any. Neither the Standing Committee for Unfairmeans making recommendation for imposition of the punishment, nor the Disciplinary Authority taking a decision to impose the 8 punishment has recorded any reasons while passing the order impugned. It is true that the adequacy or sufficiency of the reasons recorded by the adjudicating authority may not be gone into by this Court but, at least, the precise reasons for holding the candidate guilty and imposing the punishment must be recorded by the authority concerned. Thus, in my considered opinion, the order impugned has been passed in violation of basic principle of natural justice. There is yet another aspect of the matter. The petitioner has denied the receipt of the order impugned . It is not in dispute that the petitioner was accorded admission in the B.C.A.- Part 1 afresh in the S.P.U. College, Falna and in pursuance thereof, he has studied during the entire academic session and has also appeared in the examination. The respondent University has taken the stand that the copy of the order was sent to the petitioner so also to the college concerned. No material has been placed on record to show that the order impugned was sent to the petitioner by the respondent University.Thus, there is no reason to disbelieve the petitioner that he has not received the order impugned said to have dispatched by the respondent University. It is to be noticed that even order impugned (Annexure R/1) dated 24.8.06 does not contain any reasons for finding of guilt recorded against the petitioner or for imposition of the 9 punishment as aforesaid. According to the respondents, since the petitioner has been found guilty for the possession of unauthorised material and have copied from the material recovered, therefore, the punishment of cancellation of current examination and further debarring from appearing in any examination for the year 2007, has rightly been passed in terms of clause 4(c) of Rules dealing with cases of unfairmeans and disorderly conduct at the university examination. As noticed above, the factum of material having relevance to the syllabus of the examination concerned being found in possession of the petitioner has not been disputed. Therefore, as per clause 4(b) of the Rules for dealing with the cases of unfairmeans and disorderly conduct at the university examination, the petitioner's current examination is liable to be cancelled. Therefore, I do not find any reason to interfere with the order impugned passed by the respondents to this extent. However, in view of the discussion above, the order debarring the petitioner from appearing in any examination for the year 2007, cannot be sustained. Accordingly, the writ petition is partly allowed. The order impugned Annexure R/1 to the extent of debarring the petitioner from appearing in any examination in the year 2007 is set aside. The respondents are directed to declare the result of the petitioner of B.C.A.Part 1, 2007 forthwith. The petitioner shall be 10 permitted to fill up the form and to appear in the B.C.A. Part II examination, if he is declared passed in the B.C.A. Part 1 examination. No order as to costs. (SANGEET LODHA),J.