HON’BLE SRI JUSTICE R. SUBHASH REDDY Writ Petition No.17613 of 2010 Date: February 2, 2011 Between: J. Bhaskar, S/o.J. Bujjaiah, aged: 28 years, student of MBBS final year, R/o.Nellore Town, Nellore District … Petitioner And The Executive Council, represented by Vice-Chancellor, Dr.NTR Univeristy of Health Sciences, Vijayawada and others … Respondents Order: Petitioner, a student of MBBS final year in third respondent-college seeks the following relief, in terms of amended prayer: “It is prayed that his Hon’ble Court may be pleased to issue an appropriate Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the action of the respondnets 1 and 2 in proceedings No.321/MBBS/MP/E1A(A)/2009, dt.26-4-2010 as illegal, arbitrary and contrary to law and principles of natural justice and violative of Art.14 & 21 of the Constitution of India and consequently direct the respondents 1 to 3 to permit the petitioner to appear for the MBBS Final Year Examination Part-II, to be commenced on 3-8-2010 and pass such other order or orders as this Hon’ble Court may deem fit and proper in the interest of justice.” Petitioner appeared for MBBS final year part-II examinations in September, 2009. While writing Surgery Paper-I examination on 12-09-2009, on the ground that he was possessing forbidden material and had copied from such material, a case of malpractice was booked against him. Immediately, the Chief Superintendent of Examinations seized the material. Pursuant to registration of case of malpractice, petitioner was issued show-cause notice dated 16-10-2009 calling for his explanation, why his appearance from examinations should not be canceled and why he should not be debarred from appearing in all the examinations conducted by the University. In reply thereto, petitioner has submitted his explanation on 14- 11-2009. In the explanation, he admitted possession of some slips, but he had categorically pleaded that he did not copy from the material which was seized from him and whatever he had written in the answer script was on his own. Based on the report prepared by the Malpractice Committee constituted to examine such cases, order dated 03-12-2009 was passed vide proceedings No.321/E1/A/MP/MBBS/2009 disqualifying the petitioner for a period of two years including the examinations of September, 2009. Aggrieved thereof, petitioner preferred an appeal to the Executive Council of the University. Pursuant thereto, order dated 26-04-2010 was passed vide Lr.No.321/MBBS/MP/E1(A)/2009, indicating the decision of the Executive Council that it has been resolved to confirm the punishment awarded by the Vice-Chancellor vide order dated 03-12-2009. In view of the dismissal of the appeal, this writ petition is filed seeking directions to the respondents- University to allow the petitioner to appear for MBBS final year part-II Examinations. It is contended by Sri S. Srinivas Reddy, learned counsel for the petitioner that the respondents-University framed Standing Orders with regard to imposition of punishment in cases of malpractice. He has referred to the ‘Handbook for Students’ issued by Dr.N.T.R. University of Health Sciences, which contains Standing Orders on punishment for indulging in malpractice. Standing Order No.1, which is relevant for the purpose of disposal of this writ petition, reads as under: “During the University examination if a candidate is found in malafide possession of papers, books or notes or written notes on his clothes, body or table or chair, which is relevant to the examination(s) he will be disqualified from appearing in any university exam for one year and if found having copied will be disqualified for two years.” Taking assistance of the aforesaid Standing Order, it is the specific case of the petitioner that although some material was seized from him, he has not copied from the same and in spite of the said specific stand of his; the same was not examined either by the Malpractice Committee or by the Executive Council-appellate authority and no finding is recorded thereon. On the other hand, it is submitted by Sri D.V. Nagarjuna Babu, learned standing counsel appearing on behalf of respondents-University that the Malpractice Committee has examined the issue and having found that the petitioner copied from the material seized from him, debarred him for a period of two years and the same is confirmed by the Executive Council-appellate authority and there is no illegality in the action of the University, debarring the petitioner for a period of two years, for indulging in malpractice. When it is the specific case of the petitioner that he has not copied from the material seized from him and the appellate authority has not examined such issue, this Court directed the learned standing counsel to produce the answer script of the petitioner which was seized on the date of examination and also the material seized from him. When the matter is taken up, learned standing counsel has produced the relevant answer script of the petitioner and also the material which was seized from him. Some slips (material which is seized from the petitioner) which are stated to have been used by the petitioner for copying have been tagged on to the answer script. As no specific finding has been recorded by the appellate authority on the plea of the petitioner that though he carried some slips along with him, he did not copy from the same, this court has examined the material seized from the petitioner, which is made available along with his answer script, so as to ascertain whether he has copied from the material seized from him. From a microscopic examination of the material seized from the petitioner, it cannot be said that he copied from the material seized from him. It may be that, some words found in the material seized from the petitioner match with his answers in the answer script, but when both are compared, it cannot be said that he has copied from such material. Further, it is also to be noticed that the answers of the petitioner in the answer script do not match either in seriatum or in the context with the material seized from him, thereby making it clear that he did not copy from such material. It is also to be noticed that under N.T.R. University of Health Sciences Act, 1986 (for short, ‘the Act’), a right of appeal is provided under Section 55 to the Executive Council against the decision of any officer or authority of the University. The petitioner has not only taken the stand that though he possessed forbidden material he did not copy from the same in the explanation offered by him to the show-cause notice, but he had also filed an appeal with the said specific stand. But, the appellate authority, without recording any finding on the said specific stand of the petitioner, merely communicated its decision by way of a memo stating that the Executive Council has passed resolution confirming the punishment imposed on the petitioner. As much as no finding is recorded on the aforesaid specific stand of the petitioner and as this Court, after reading the answer script of the petitioner conjointly with the slips possessed by the petitioner during the examination, is of the view that there is no indication that the petitioner has copied. In that view of the matter, the action of the respondents in debarring the petitioner for a period of two years is untenable. As the petitioner himself admitted that he possessed forbidden material during the examination; taking the same into consideration, disqualification should have been confined only for a period of one year. As malpractice case was booked in September, 2009 and as already one year’s period is over, this court is of the considered opinion that the punishment imposed against the petitioner deserves modification. For the foregoing reasons, Order dated 03-12-2009, as confirmed by the appellate authority by order dated 26- 04-2010 vide proceedings No.321/MBBS/MP/E1(A)/2009, stands modified to the effect that disqualification ordered against the petitioner shall be confined to a period of one year. In view of expiry of the said period, there shall be a direction to respondents to allow the petitioner to sit for leftover examinations of M.B.B.S. final year scheduled from 04-02-2011 or any future date, by accepting necessary fee. Writ petition is allowed to the extent indicated above. No order as to costs. ___________________ (R. SUBHASH REDDY, J) February 2, 2011 MRR