Bombay High Court
Atharva Anil Kshirsagar vs The State Of Maharashtra Through Its ... on 30 January, 2024
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
2024:BHC-AUG:2481-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 702 OF 2024
ATHARVA ANIL KSHIRSAGAR
VERSUS
THE STATE OF MAHARASHTRA THROUGH ITS SECRETARY AND
OTHERS
...
Mr. Vilas P. Savant, Advocate for the Petitioner.
Mr. P. S. Patil, Addl. GP for Respondent No.1.
Mr. K. P. Rodge h/f Mr. P. G. Rodge, Advocate for Respondent Nos.2 to 4.
...
CORAM : SMT. VIBHA KANKANWADI AND
S. G. CHAPALGAONKAR, JJ.
DATED : 30th JANUARY 2024.
JUDGMENT (Per: S. G. Chapalgaonkar, J.):
-
1. Rule. Rule made returnable forthwith. With the consent of
the parties, matter is taken up for final hearing at the stage of
admission.
2. The petitioner approaches this Court under Article 226 of
the Constitution of India with following prayers:-
"B. Issue writ of certiorari or any other writ, order or direction
thereby quash and set aside the impugned office order dated
11.12.2023 passed by respondent no.3 Associate Dean, College of
Veterinary and Animal Sciences, MAFSU, Parbhani and for that
purpose issue necessary orders.
C. Be please held and declare that, the provisions of MAFSU
academic regulations 2016, Rule No. 19(19) examination and
evaluation, Rule No.22(4) Promotion and Rule No.26(6)(2) of
Unfair means are unconstitutional and causing injustice with
students and therefore required to be quash and direct the
respondent university to modify those provisions and for that
purpose issue necessary orders.
D. Issue writ of mandamus or any other writ, order or
direction in the nature of writ of mandamus, thereby direct the
respondent No.2 to consider and decide the application/ appeal
submitted by petitioner dated 28.12.2023 and recall the
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impugned order dated 11.12.2023 passed by respondent no.3 and
for that purpose issue necessary orders.
E. Issue writ of mandamus or any other writ, order or
direction in the nature of writ of mandamus, thereby direct the
respondent no.2 & 3 to declare the result of second year and
further allow the petitioner to appear for compartment
examination of ensuring session and for that purpose issue
necessary orders."
3. The petitioner contends that he is a student and admitted to
the College of Veterinary and Animal Science, MAFSU, Parbhani in the
academic year 2021-2022 through merit position in NEET examination.
The petitioner passed 1st year of Bachelor of Veterinary Science and
Animal Husbandry (B.V. Sci. and A.H.) course. The petitioner appeared
for second year examination of academic year 2022-2023 in the month of
December 2023. On 09.12.2023, he attended the written examination in
the subject of Animal Genetics and Breeding - IAGB. While he was in
the process of writing his paper, his answer sheet was seized by the
Invigilator with allegation of malpractice. The petitioner received the
impugned communication dated 11.12.2023 containing the order passed
by the Associate Dean of the College declaring him to be failed in the
subject of Animal Genetics further debarring him from appearing in the
compartmental examination of ensuing session. The petitioner made
representation in the form of appeal to the University, however, the
same remained undecided. According to the petitioner, he has been
subjected to double punishment. Firstly, he is declared as failed in the
subject of Animal Genetics, secondly, he is deprived from appearing in
the compartmental examination, which is contrary to Article 14 and 21
of the Constitution of India. The petitioner contends that the relevant
Rules enabling double punishment are unconstitutional. The Action
taken against the petitioner relying upon such Rules is invalid and
liable to be quashed and set aside.
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4. The respondent-University filed affidavit-in-reply and
justified the action taken against the petitioner on the ground that the
petitioner malpracticed during the conduct of the written examination.
The enquiry was conducted. The petitioner was given due opportunity
to put up his stand and on the basis of the findings of the enquiry, the
petitioner has been dealt with in accordance with the relevant Academic
Regulations framed by the University in consonance with the
Veterinary Council of India - Minimum Standards of Veterinary
Education - Degree Course (B.V.Sc. & A.H.) Regulations, 2016.
5. Mr. Savant, learned Advocate appearing for the petitioner
vehemently submits that the petitioner has been wrongly punished. He
is innocent student and victim of the wrong committed by some other
students. He would submit that during the enquiry the petitioner
tendered his explanation. Similarly, the material alleged to have been
found in possession of the petitioner was unconcerned with the subject
for which he was undergoing the examination. The concerned Professor
has certified the said fact after comparing the question paper and the
material found in possession of the petitioner. Mr. Savant would invite
attention of this Court to the relevant Regulations to contend that
Regulations, 2016 enables the student to appear for compartment
examination, even if he fails in two subjects and on clearance of those
subjects, he is entitled to sit in next class. As such, the provision is
made to avoid the loss of Academic Year of the student, who failed to
clear the subject. He would further invite attention of this Court to the
Rule 22(4) that enables the student to continue his studies in the next
higher class and clear backlog through compartment examination. He
would, therefore, submit that the petitioner is subjected to dual
punishment under the impugned order i.e. declaration as failed in the
concerned subject and secondly, prohibition from appearing the
compartment examination, which would result in loss of Academic Year.
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He would submit that Rule 26(6) provides for such punishment in case
student is held guilty of charge of use of unfair means during
examination. As such, provision is arbitrary and irrational. No person
can be condemned twice for one and same wrong.
6. Mr. Rodge, learned Advocate appearing for the respondent-
University submits that since the petitioner was found adopting unfair
means during the course of examination, the report of malpractice was
made by the Invigilator. Consequently, petitioner was subjected to
inquiry in accordance with law. Mr. Rodge while repelling submissions
regarding unreasonableness of enabling provisions of regulation under
the caption of "unfair means", submits that the student failed in
examination cannot be equated with the student who has been
punished for unfair means. The student who failed in examination is
given one more opportunity to clear the subject through compartment
examination. However, the student who is punished for adopting unfair
means is prohibited from appearing in the compartment examination of
ensuing session. There is rational behind providing the punishment for
unfair means. To buttress his submissions he would rely upon the
observations of the Supreme Court of India in case of Yogesh Parihar
Vs. Delhi Technological University and Others 1 to contend that the
integrity of the educational system has to be infallible to achieve the
progress of the country. The student adopting unfair means in the
examination required to be dealt with iron arm.
7. We have considered the submissions advanced on behalf of
the respective parties. We have perused the relevant record tendered
into service. Apparently, the petitioner was appearing in 2nd year
annual examination of B.V. Sc. & A.H. course. On 09.01.2023 while he
was attending examination in the subject of Animal Genetics, the
Invigilator seized written material from the pocket of the petitioner.
1 2022 SCC OnLine Del 4614.
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Accordingly a report was made to Associate Dean. The enquiry was set
up. The petitioner was given opportunity to make his representation.
The statements of the Invigilators were recorded. On conclusion, report
of enquiry came to be submitted. The enquiry report is indicative of the
fact that the written material was seized from the pocket of the
petitioner. On the basis of the report of the enquiry, the petitioner was
declared as failed in the subject of Animal Genetics with further
direction making him ineligible for appearing in the compartment
examination of ensuing session vide MAFSU Academic Regulations for
B.V.Sc. & A.H. degree course.
8. As far as the factual matrix of the matter is concerned, we
are not inclined to delve into the arguments submitted on behalf of the
petitioner that the material found does not pertain to the subject for
which he was appearing in the examination. We have noted that both
the Invigilators have stated that the chit was seized from the student
and he was found attempting unfair means during the conduct of
examination. We do not find any reason to interfere in the conclusion
drawn after enquiry conducted by the University.
9. The main thrust of the contention on behalf of the petitioner
is that the petitioner has been subjected to dual punishment quoting
Rule 26(6) of the Regulation, 2016, which deals with the unfair means.
The relevant sub-clause (6) of Rule 26 states as under:-
"26(6). If the Associate Dean of the college holds that the
student is guilty of the charge of preparation, attempt, abetment or
actual use of unfair means, he/she shall award punishment to such
student as per details given below:
Sr. Examination Punishment
No.
1 Internal Assessment The student shall be given zero (0) mark in the
particular assessment. He/she shall be eligible to
appear in Annual Board examination of the
resepctive papers of subject.
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2 Annual Examination The student shall be declared to have failed in the
(theory or practical) concerned subject. He/she will not be eligible to
appear in the compartmental examination of
ensuing session.
3 Compartmental The student shall be declared to have failed in the
examination (theory concerned subject & reverted to the class from where
or practical) he/she was conditionally allowed promotion.
10. The aforesaid clause stipulates that the student found guilty of
charge of misconduct can be awarded punishment of declaration to have
failed and prohibition from appearing compartmental examination of
ensuing session. Mr. Savant by inviting attention of this Court to Rule
19(19) alongwith Rule 24(4) submits that the provision is made for
compartmental examination and candidate is allowed to provisionally
seat in the next class, even though he failed in two subjects and on
clearance of backlog, the candidate is entitled to continue his studies in
next professional year. However, the candidate held guilty under Rule
26 is made liable to dual punishment i.e. failure in relevant subjects, so
also prohibition from appearing in the compartmental examination,
which ultimately results into loss of Academic Year.
11. We have given anxious consideration to the aforesaid
submissions. What we find from the Regulations is that the student
who failed in examination is treated differently than the student, who
has been declared failed for adopting unfair means during the conduct
of examination. Apparently, the student who failed to secure requisite
passing marks cannot be treated at par with the student suffered
punishment on account of unfair means. There is rational behind
providing the stringent punishment to student found guilty of
malpractices during examination i.e. declaring him failed in the
concerned subject with prohibition to appear in the compartment
examination. The student from the first category is merely failed to
achieve requisite merit position due to deficit performance in the
examination, whereas the student who is dealt under Rule 26 for unfair
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means suffers punishment for scandalizing the process of examination.
We do not find any substance in the contention of the petitioner that he
has been subjected to double punishment. The University Regulations
are framed based on universal system regarding conduct of
examination. The punishment provided for unfair means has to be
deterrent. If the student declared as failed in the subject while
attempting unfair means in the examination and further debarred from
appearing in the ensuing session cannot be branded as double
punishment. In fact, it is a part of one and the same punishment that
student has to suffer for his misconduct. At this stage, it would be
apposite to refer to the observations of the Supreme Court of India in
case of Dr. Ambedkar Institute of Hotel Management, Nutrition
and Catering Technology Vs. Vaibhav Singh Chauhan 2, which
reads thus:-
"Copying and cheating in examinations is like Plague. It is a
pandemic which can ruin society and the educational system of
any country. If the same is left unchecked or if leniency is shown,
the same can have a deleterious effect. For any country's progress,
the integrity of the educational system has to be infallible.
Whether it is paper setters maintaining utmost confidentiality,
students not cheating, invigilators being vigilant, examiners
doing their job with utmost alacrity knowing that the future of
students is in their hands, Universities and colleges not
tampering with results - the conduct of all stakeholders has to
reflect commitment and also be unblemished"
12. The aforesaid observations clearly stress on the need to
maintain purity and strict discipline in the conduct of examination
deeming it necessary for overall progress of the Nation.
13. If we look into the aforesaid observations of the Supreme
Court of India, it is difficult to accede with the contentions of the
petitioner that the punishment as provided under Regulations is
arbitrary or exorbitant in any way. The relevant provisions appears to
be in tune with the objects sought to be achieved. The differentiation of
2 (2009) 1 SCC 59.
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the student, who failed in examination and the student whose
performance is cancelled on account of adopting unfair means cannot be
treated on equal platform. When it comes to unfair practice or
malpractice in the examination, the University or examination
authority are required to be give some latitude in regulating functions
so as to maintain purity of the education system. The provision
contained under the Regulations providing punishment for misconduct
are apparently reasonable and consonance with object sought to be
achieved. In that view of the matter, we do not find any force in the
contention of the petitioner. Resultantly, Writ Petition fails and stands
dismissed.
14. Rule is discharged.
(S. G. CHAPALGAONKAR) (SMT. VIBHA KANKANWADI)
JUDGE JUDGE
Devendra/January-2024
