Allahabad High Court
Vishal Singh Rathore vs Vice Chancellor University Of ... on 9 October, 2023
Bench: Kshitij Shailendra
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2023:AHC:194363
Court No. - 10
Case :- WRIT - C No. - 28038 of 2023
Petitioner :- Vishal Singh Rathore
Respondent :- Vice Chancellor University Of Allahabad And 4 Others
Counsel for Petitioner :- Pradeep Kumar Upadhyay
Counsel for Respondent :- Kunal Ravi Singh,Siddharth Nandan
Hon'ble Kshitij Shailendra,J.
1. Heard Shri Pradeep Kumar Upadhyay, learned counsel for the petitioner, Shri Siddharth Nandan, learned counsel for respondent Nos. 1 to 4 and perused the record.
2. By means of the present writ petition, the order dated 28.07.2023 passed by the Controller of Examinations has been challenged. By the said order, the petitioner's result for B.Com IIIrd year Examination for the Academic Session 2022-23 has been cancelled on the ground that he had been found in possession of unauthorized material, which was related to the subject matter of the examination.
3. Counter and rejoinder affidavits have been exchanged between the parties and, therefore, the writ petition is being finally decided.
4. Learned counsel for the petitioner fairly admits that though unauthorized material was found in possession of the petitioner and the same was also related to the subject matter of the examination, however the same was not utilized by the petitioner and no answer was copied from the said material. He has also referred to the contents of paragraph Nos. 7 and 8 of the counter affidavit, which read as follows:
"7. That as per the guidelines approved in the meeting of the Examination Femmittee, which was held on 22.4.2019, an Expert Committee was formed for examining the 'unfair means cases' (UFM), who examined the reply dated 8.5.2023 and "Chits" which was admittedly found on the Petitioner and considered its relevance with the paper in question; and after comparing the same with the answers given in the answer sheet, gave their finding/decision in the form of a detailed report, which is quoted herein below:
"The examinee was caught by flying squad with handwritten material. The reply of the examinee dt. 08.05.23 was perused. The report of invigilator was considered. Considering the report of examiner stating that the recovered handwritten material was related to the subject paper in which the examinee was appearing. Therefore, the result of his examination B.Com-III year session 2022-23 is recommended for cancellation."
For kind perusal of this Hon'ble Court, the report of Invigilator/Examiner is quoted herein below:
"Cheating material is related with the contents of the subject, student could have used the material but was caught by the flying squad."
8. That thereafter, his results were cancelled as per the examination Rules, approved by the Examination Committee of University of Allahabad dated 22.4.2019. For kind perusal of this Hon'ble Court, Clause 2 of the Examination Rules is being quoted herein below:
"2. The Provisions of Punishment under UFM cases were discussed at length and it was resolved that the results of students be cancelled for the semester/annual examination in which the candidate has been caught using unfair means.
However, this decision shall not apply to candidates involved disorderly conduct or causing disturbance during examinations.
Such cases will be dealt strictly as per the provisions of Ordinance LX: Organization and conduct of the examinations.
Further, if a candidate is caught using unfairmeans second time during the course/programme, his/her case will be treated at par with a candidate involved in disorderly conduct or causing disturbance in the examination."
5. By placing reliance upon the aforesaid paragraphs, it has been argued that the University has admitted in the counter affidavit that the petitioner could have used the material, which was caught by the flying squad. Further submission is that the penalty incurs only when the candidate has been found/caught using unfair means and once there is nothing on record to indicate that the petitioner ever used the unfair means, but was only found in possession of the material, cancellation of his result is not according to law.
6. Shri Siddharth Nandan, learned counsel for the University has referred to the proceedings held by the Authorities in relation to the matter in issue. He has also placed reliance upon the judgment of Apex Court in the case of Nidhi Kaim and another vs State of Madhya Pradesh and others, reported in 2016 (7) SCC 615.
7. The Apex Court, dealing with a case of mass copying as well as individual cases of unfair means, laid down the following ratio in paragraph 111 of the judgement:
"111. After examining the facts and the law laid down in abovementioned seven cases, in my opinion, the ratio laid down in these cases can be summarized thus :
111.1. First, in a case where several candidates are found involved in "mass copying" or in other words, where vast majority of candidates were found to have resorted to use of unfair means in any examination then it is not necessary for the concerned Institute to give any show cause notice to any individual candidate before cancellation of his result;
111.2. Second, when it is difficult to prove by direct evidence that the "copying" was done by the candidates then the same can be proved by drawing inference based on probabilities and circumstantial evidence;
111.3. Third, there are several ways in which unfair means can be resorted to by the candidates for doing copying individually or in the large scale by vast majority of candidates;
111.4. Fourth, where few candidates are found involved in doing copying then it is necessary to give to individual candidate a show cause notice by following rules of natural justice before taking any action against him;
111.5. Fifth, there must be some material (whether direct or based on probabilities and circumstances) to prove that a candidate resorted to unfair means for doing copying in answering his question paper;
111.6. Sixth, if there is adequate material to prove that the copying was done by individual candidate or by the candidates on a large scale then even if no report was submitted by any invigilator of any such incident yet it would be of no significance;
111.7. Seventh, the Court should not act as an appellate Court over the decision of Expert Committee to examine the issue of "copying" or/and "mass copying", i.e., copying done on a large scale by vast majority of candidates and more so when the Expert Committee has found the candidate guilty of resorting to unfair means;
111.8. Eighth, the Court should be slow to interfere in the decision taken by the Expert Committee in such cases;
111.9. Ninth, if wrong answers of two candidates sitting in close proximity tallies with each other then it would be a strong circumstance of copying done by these two candidates;
111.10. Tenth, this Court has consistently maintained a distinction between a case of "copying" and "mass copying", i.e. copying done on a large scale by vast majority of candidates for applying the rules of natural justice to the case. In the case of former, rules of natural justice would be applicable and hence show cause notice to individual candidate who is accused of doing copying will have to be given to such candidate whereas in the case of later, the rules of natural justice are not applicable and hence it is not necessary to give any show cause notice to any candidate involved in mass copying;
111.11. and Eleventh, the use of unfair means by any candidate is a serious matter because it affects the credibility of the examination and, therefore, once such charge is held proved against any such candidate, the matter needs to be dealt with sternly in relation to erring candidates."
8. While referring to Clauses 111.2 and 111.6, it has been argued by Shri Siddharth Nandan that drawing inference based on probabilities and circumstances is also in accordance with law and such conclusion can be drawn even in absence of any report from the Invigilator concerned.
9. I have carefully perused the ratio laid down by the Apex Court and I find that the way the petitioner is trying to interpret the relevant clause of the Examination Rules, which use the words "using unfair means" cannot be interpreted in the manner that where a candidate is found in possession of unauthorized material related to the subject, but has not used the same, he cannot be penalized. Such kind of interpretation would defeat the very purity, credibility and sanctity of the examinations and would be contrary to the decision of the Apex Court in the case of Nidhi Kaim (supra) where the Supreme Court has used words "resorted to unfair means" in individual cases as well as cases of mass copying.
10. In the totality of the facts and circumstances of the case, I am not inclined to interfere in the order impugned.
11. The writ petition fails and is, accordingly, dismissed.
Order Date :- 9.10.2023
Sazia
