Lavanya Tyagi vs State Of U.P. And 2 Others
2021 Latest Caselaw 4051 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 40
 

 
Case :- WRIT - C No. - 282 of 2020
 
Petitioner :- Lavanya Tyagi
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Nipun Singh
 
Counsel for Respondent :- C.S.C.,Avneesh Tripathi
 
with
 
Case :- WRIT - C No. - 37864 of 2019
 
Petitioner :- Karan Panwar And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Nipun Singh
 
Counsel for Respondent :- C.S.C.,Avneesh Tripathi
 
with
 
Case :- WRIT - C No. - 39559 of 2019
 
Petitioner :- Himanshu And Another
 
Respondent :- State Of U P And 2 Others
 
Counsel for Petitioner :- Nipun Singh
 
Counsel for Respondent :- C.S.C.,Avneesh Tripathi
 
with
 
Case :- WRIT - C No. - 290 of 2020
 
Petitioner :- Priyanshu Chauhan And Another
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Nipun Singh
 
Counsel for Respondent :- C.S.C.,Avneesh Tripathi
 
with
 
Case :- WRIT - C No. - 650 of 2020
 
Petitioner :- Mohit Singh And 2 Others
 
Respondent :- State Of U.P. And 2 Others
 
Counsel for Petitioner :- Onkar Singh
 
Counsel for Respondent :- C.S.C.,Avneesh Tripathi
 

 
Hon'ble Manoj Misra,J.

Hon'ble Rohit Ranjan Agarwal,J.

As these five petitions challenge a common order based on same set of facts and law, with the consent of learned counsel for the parties are being decided by a common judgment.

Heard Sri Ashok Khare, learned Senior Counsel, assisted by Sri Nipun Singh, for the petitioners; learned Standing Counsel for the respondent no. 1; Sri G.K. Singh, learned Senior Counsel, assisted by Sri Avneesh Tripathi, for respondent no. 2; and perused the record. We do not consider it necessary to issue notice to 3rd respondent as the impugned order has been passed by the 2nd respondent, which is already represented in these proceedings.

These petitions seek quashing of the order dated 26.07.2019 passed by the Examination Controller of Chaudhary Charan Singh University, Meerut (hereinafter referred as the 'University') by which on account of recovery of an electronic device by the flying squad from the possession of the petitioners at the time of giving MBBS examination, the examination of the petitioners has been cancelled and they have been debarred for a period of two years.

Learned counsel for the petitioners has not questioned the merits of the impugned order but has challenged the punishment imposed on the ground that according to the norms for punishment on use of unfair means in examinations conducted by the University from February 2019 onwards, notified by the Registrar/Examination Controller vide notification dated 03.06.2019, the case of the petitioners falls in category 3 for which the punishment prescribed is cancellation of the entire examination and not debarment. Thus, the impugned order to the extent it debars the petitioners for a period of two years is unjustified and unduly harsh even as per the own norms of the University.

In support of the aforesaid submissions attention of the Court has been invited to page 37 of the paper book which encloses the notification dated 03.06.2019 issued by the University laying down norms for punishment of unfair means cases in all examinations conducted by the University from February 2019 onwards. The norms are as follows:

"Norms for Punishment of UFM Cases in all Examinations

conducted by University from February 2019 onwards

Category

Nature

Punishment

One

Recovered material not related to the paper/ Subject or trick marking objective answers on his question paper

Warning be issued

Two

Relevant material written by the candidate on any part of body, wall, door of the room, table, desk and related matter found in the form of the book, manuscript, pages of books, clothes, scale, handkerchief, writing pad, geometry box, etc. Possession or/ and use of Mobile phone, mutual conversation by words of mouth or gestures. Writing Roll No./ Enrollment No./ Name/ Address/ College name/ Mobile No. inside the answer book, Making a special symbol or mark on the answer book for identification, recovered material is related to the course/ subject but not used.

Concerned paper be cancelled

Three

Relevant matter is related with course/ subject and used OR

Recovered material copied on Answer Book before distribution of Question Paper. OR

Possession of any electronic device (other than Mobile Phone) which can receive or transmit any message

Entire examination be cancelled

Four

Candidate caught using UFM showing intention of UFM more than one time and the recovered material is related with the paper/ subject, Tearing the pages of Answer book, chewed/ refused to sign without misbehavior.

Entire examination be cancelled and further debarred for one year /semester.

Five

Misbehavior or abusing with the staff, material used chewed, Destroyed the proof, refused to sign the U.F.M. Performa.

Entire examination be cancelled and further debarred for two years /semesters.

Six

Replacement of answer Book, exchange of answer Book, addition of extra pages in the Answer-Book, smuggling of Answer-Book/ Pages, manhandaling with staff, disturbing the examination.

OR

Ran away with Answer-book from Examination

Or

Impersonation

Entire examination be cancelled and further debarred for three years /semesters.

Note:- The decision of UFM committee shall be final."

Learned counsel for the petitioners has submitted that as an electronic device other than the mobile phone was found from the possession of the petitioners, their case would fall in category 3 for which the punishment described is cancellation of the entire examination. It has thus been urged that punishment of debarment is unwarranted and unduly harsh.

Sri G.K. Singh, learned Senior Counsel, representing the University, has submitted that the nature of the unfair means adopted by the petitioners does not specifically fall within any of the unfair means enlisted in the norms fixed by the University and, therefore, the punishment that has been awarded to the petitioners is as per the best judgment of the Examination Controller and since it is not in dispute that the petitioners were caught using unfair means with aid of electronic device, the order impugned is not liable to be interfered with.

Sri G.K. Singh further submitted that category 3 would relate to mere possession of an electronic device other than a mobile phone which can receive or transmit the message and it does not deal with a case where such electronic device has been used. He submits that the electronic device was being used by the petitioners and, therefore, their case would not be specifically covered by category 3 in the norms notified by the University.

We have given thoughtful consideration to the submissions made by learned counsel for the parties and we have carefully perused the record. From the record, it appears that as against the petitioners the charge was that an electronic device was recovered either from a wig or the undergarment that petitioners were wearing at the time of giving their examination. The record further reflects that the device had a SIM and, therefore, it could be used for communication. As to how the device was used and to what extent it was used and whether any encrypted material in that device was discovered which got incorporated in the answer script is not there on record and no finding has been returned in that regard in the order impugned.

Under the circumstances, we are of the view that the case of the petitioners would fall in the category three which is of having possession of an electronic device other than the mobile phone which can receive or transmit message. Since the University in its norms notified for punishment of unfair means cases in all examinations conducted by the University from February 2019 onwards had itself provided punishment of cancellation of the entire examination for cases falling in category 3, any further punishment, such as debarment for two years would therefore be not justified and is to be considered unduly harsh and excessive.

At this stage, we have been informed by the learned counsel for the petitioners that pursuant to the interim order dated 08.10.2020 the petitioners had appeared in the next examination but their result is withheld because its declaration had been stayed by this Court till decision on these petitions.

In view of the above, we deem it appropriate to partly allow the writ petitions by quashing the order dated 26.07.2019 to the extent it debars the petitioners from appearing in examinations for next two years. However, the impugned order to the extent it cancels the examination of the petitioners is upheld. As, pursuant to the interim order of this Court, the petitioners have been allowed to appear in the following examination and, according to them, they have appeared in examination, their result of the said examination would be declared.

Writ petitions are partly allowed to the extent indicated above.

Order Date :- 19.3.2021

Shekhar