Syed Arshad Hussain vs Jamia Millia Islamia And Anr.
2012 Latest Caselaw 37 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) 2587/2011 and CMs 5507/2011, 20068/2011

                                                Decided on : 03.01.2012

IN THE MATTER OF

SYED ARSHAD HUSSAIN                             ..... Petitioner
                   Through: Mr. R.K. Saini, Advocate with Mr. Vikas
                   Saini and Mr. Sheikh Imran Alam, Advocates

                   versus

JAMIA MILLIA ISLAMIA AND ANR.                    ..... Respondents
                     Through: Ms. Jaya Goyal, Advocate with
                     Mr. Rohit Gandhi, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present writ petition is filed by the petitioner impugning

the order dated 03.03.2011 passed by respondent No.2/Controller of

Examinations, Jamia Millia Islamia University, whereby the Examination

Committee constituted by respondent No.1/University decided to penalize

the petitioner for indulging in use of unfair means while writing the

Examination - MBA (Evening), Part-II, Paper - MBA-201 held on

18.01.2011, by cancelling all the papers of the semester/year in which

the petitioner had appeared and thus declining to promote him to the

next academic year.

2. The facts of the case lie in a narrow compass. It is the case

of the petitioner that he had completed B.Tech. (Electrical) from

respondent No.1/University and being in employment, he took admission

in MBA (Evening) three year course in the year 2009. Between January-

February 2011, the petitioner was to appear for the second year MBA

(Evening) examination. On 18.01.2011, the petitioner appeared for the

paper - MBA-201 (Part-II) examination in respect of the subject, Financial

Management, which was the first paper of the said semester/year. As per

the petitioner, during the course of the examination, the flying squad paid

a surprise visit to room No.320, where the petitioner was answering his

examination and on discovering some documents in his pocket, the same

were confiscated. The stand of the petitioner is that the documents in

question pertained to the office where he was employed, i.e., M/s ETA

Engineering Pvt. Ltd. and that the said documents were in no manner

related to the examination in which he was appearing on the relevant

date. It is averred in the petition that the checking staff and the

invigilator on duty examined the contents of the documents found in

possession of the petitioner and thereafter left the issue with the

invigilator on duty. However, the invigilator on duty took away the

answer sheet of the petitioner, subject to the decision of the competent

authority.

3. Although the aforesaid examination in question, in which the

petitioner had appeared, took place on 18.01.2011, respondent

No.1/University did not initiate any action on the same date. Instead,

necessary proceedings were initiated against the petitioner on the next

day i.e., on 19.01.2011, when a notice was issued to the petitioner

charging him of indulging in use of unfair means by bringing written

material in the examination hall and calling upon him to appear before the

Examination Committee on 18.02.2011 to show cause as to why further

action be not taken against him in accordance with the Ordinance of

respondent No.1/University. Upon receiving the aforesaid notice dated

19.01.2011, the petitioner appeared before the Examination Committee

on 18.02.2011 and furnished his explanation to the effect that the

documents found in his possession were work related official documents

left inadvertently in his pocket and they were not relevant for taking the

examination in question. Thereafter, the petitioner received the

impugned order dated 03.03.2011 passed by respondent No.2/Controller

of Examinations stating inter alia that his case had been considered in the

light of the material on record, the statement as tendered by the

petitioner before the Examination Committee, and after due deliberations,

it was deemed appropriate to cancel all the papers of the semester/year

in which the petitioner had appeared and to refuse him promotion to the

next academic year. Aggrieved by the aforesaid order dated 03.03.2011,

the petitioner has preferred the present petition.

4. Vide order dated 04.05.2011, while taking notice of the stand

of the petitioner that he had inadvertently carried in his pocket some

official documents belonging to his office, which were discovered during

checking by the concerned Invigilator while the petitioner was appearing

in the examination in question and further, in view of the submission

made by the counsel for the petitioner that the petitioner had in his

possession, photocopies of the documents, which he had been allegedly

carrying with him on 18.01.2011, while issuing notice to the respondents

and calling upon them to file counter affidavits, the Court deemed it

expedient to direct the DCP (Vigilance), Delhi Police to probe the matter

and to find out as to how the incriminating material allegedly confiscated

by the Flying Squad from the petitioner was no longer available with the

office of respondent No.1/University and instead was being produced by

the petitioner in Court.

5. The aforesaid order was passed in the light of the submission

made by the counsel for respondent No.1/University that the

incriminating material had gone missing from the custody of the

concerned officer, i.e., the Deputy Controller of Examinations. The

DCP(Vigilance), Delhi Police was also directed to ascertain as to whether

on the relevant date the alleged incriminating material was at all taken

into possession by the Invigilator or not. Further, as an interim measure,

the petitioner was permitted to attend his final year classes while making

it clear that the said interim protection granted to him would not create

any special equity in his favour and the same would be subject to the final

outcome of the present petition. It is stated that on the basis of the

aforesaid interim order dated 04.05.2011, the petitioner has been

attending his final year classes and the examinations are slated to begin

in the month of January 2012.

6. Pursuant to the aforesaid order, the Addl.CP/Vigilance, Delhi

Police submitted two status reports. The first one is dated 19.07.2011,

wherein a request was made to the Court to direct respondent

No.1/University to render necessary co-operation and appoint a Nodal

Officer to provide all assistance during the enquiry. The second and final

status report submitted by the Addl.CP/Vigilance is dated 25.08.2011,

which is reproduced hereinbelow for ready reference:-

"In continuation of the previous status report dated 19.07.11, it is further submitted that the respondent Jamia Milia Islamia University had also conducted an internal enquiry in to the matter, a copy of which was filed by them in the Hon‟ble Court on 19.07.11. A copy of the same was provided to this office on 08.08.11.

However, as directed the matter was still enquired in to by this office. During enquiry, it revealed that on 18.01.2011, Prof. M.N. Doja was the invigilator and Asst. Prof. Mohamad Amjad was co-invigilator in room number 320, where the petitioner Syed Arshad Hussain was taking his MBA,Part-II, Paper No.201 examination. Dr. Syed Akhtar Imam was on duty as Assistant Superintendent.

During the examination, Dr. Arshad Noor Siddiqui member of the flying squad visited room No.320 and confiscated an incriminating document from the petitioner‟s pocket. He handed over the confiscated document along with the answer booklet to the invigilator, Prof. M.N. Doja, who further reportedly handed it over to Dr. Sayed Akhtar Imam, Assistant Superintendent. But Prof. Doja could not produce any witnesses to corroborate his version that the document was handed over to Dr. Sayed Akhtar Imam. However, Dr. Sayed Akhtar Imam denied receiving any incriminating document along with the

answer booklet from Prof. M.N. Doja, and hence he could not initiate the requisite proceeding against the petitioner on the date of examination i.e. 18.01.11.

In view of the above contradictions, it is clear, that the incriminating document allegedly confiscated by the flying squad member Dr. Arshad Noor Siddiqui from the petitioner was not seized property due to the lapse on the part of invigilator Prof. M.N. Doja and Dr. Sayed Akhtar Imam (Assistant Superintendent)."

7. Counsel for the petitioner contends that in the light of the

aforesaid status report, wherein the Addl.CP/Vigilance submitted that the

incriminating document allegedly confiscated by the flying squad

members from the petitioner was not a seized property on account of a

lapse on the part of the concerned Invigilator and the Superintendent of

Examinations, there exists no basis for passing of the impugned order

dated 03.03.2011 by respondent No.1/University inasmuch as there was

no material available with the University, for it to have arrived at a

conclusion that the petitioner was found indulging in using unfair means

under the Ordinance 15(XV) Para 30, 31 "Instructions to Candidates for

Examinations" and use of "Unfair means/Misbehavior" printed on the

Admit Card issued to the examinees, due to which all his papers for the

relevant semester/year were cancelled.

8. Learned counsel for respondent No.1/University submits that

a copy of the enquiry report dated 07.07.2011 submitted by the Enquiry

Officer appointed by the Vice Chancellor of respondent No.1/University

has been enclosed, alongwith the counter affidavit filed by respondent

no.1/University on 18.07.2011. A perusal of the aforesaid preliminary

enquiry report dated 07.07.2011 prepared by the Enquiry Officer,

Prof.Nisar-Ul-Haq, Head, Department of Political Science, respondent

no.1/University makes an interesting reading. The Enquiry Officer has

set out the sequence of events, which occurred on 18.01.2011 and taken

notice of the discrepancies between the versions of the parties directly

involved in the case, namely, the Invigilator, Prof. M.N. Doja and the

Assistant Superintendent, Dr. Akhtar Imam. After conducting detailed

discussions with all the parties involved in the case, i.e., the staff

members of the flying squad, the Invigilators, the Superintendent and the

Assistant Superintendent, the Enquiry Officer had the following

observations to make:-

"1. The Invigilator (Prof. M.N. Doja) and Assistant Superintendent (Dr. Akhtar Imam) are found to be the main persons involved. The statements of the two are contradictory and hence it is difficult to discern which one is responsible for not registering the case of unfair means against Syed Arshad Hussain on 18th January 2011, the day of the examination.

2. It was very clear to the Enquiry Officer, that the Superintendent of Examinations- Prof. Khalid Moin was completely unaware of the incident till the next day, when the Proctor, brought it to his notice. Also, the mandatory requirement of the presence of five Assistant Superintendents and the Superintendent of Examinations during the examination was clearly not adhered to. There was just one Assistant Superintendent (that too the junior most one) present on 18th January 2011 in the MBA (E) examination hall.

3. There was considerable delay in booking the case. Further the case was booked (the next day) without

any proof.

4. The responsibility of safeguarding the incriminating document rests with the Invigilator, Prof. M.N. Doja and/or Dr. Akhtar Imam, both of whom are giving contradictory explanations of the incident. They have evidently lapsed in discharging the duties assigned to them, and one or both of them are not giving an absolutely truthful account.

5. It seems that the relevant paper was taken away by the student Syed Arshad Hussain at some point from the custody of either the invigilator - Prof. M.N. Doja or the Assistant Superintendent - Dr. Akhtar Imam. Either or both of the latter come under the purview of suspicion.

6. The procedure for booking the case of unfair means was not followed right at the outset. First at the level of invigilator, second at the level of the Assistant Superintendent and finally while booking the case of unfair means on the next day and that too without any written document as proof.

7. The flying squad team needs to be commended for discharging their duty and ensuring the initiation of follow up action.

8. The student has taken the advantage of the support from the obvious lack of unanimity and inefficiency amongst those responsible for conducting the examinations."

9. After taking notice of all the aforesaid discrepancies and

observing that the petitioner had taken advantage of the lack of due

diligence shown by the invigilator and the superintending staff of

respondent No.1/University in following necessary procedures in case of

such a nature, the following suggestions were made by the Enquiry

Officer:-

"Suggestions for future:

A. Clear outlined responsibilities (including time of presence at the Examination Centre‟s) of the all the Personnel involved in the Examination Process - Superintendent of Examinations and all the Assistant Superintendents, Invigilators, Security guards etc.

B. Clear outlined guidelines for booking students under unfair means including presence of any incriminating documents on the person of the candidates/Examinees. This will avoid any discrepancy on the questionability of unfair means.

C. Log Book/Record maintained of all the „out of the ordinary‟ happenings in the Examination Hall."

10. It is candidly admitted by the counsel for respondent

No.1/University that it is on account of the errors/omissions committed by

the Invigilator and the Superintendent of the Examinations on the

relevant date that the incriminating documents were not seized from the

petitioner and they remained in his possession. It is further submitted by

her that those responsible for the aforesaid errors/omissions are being

brought to book by initiating appropriate departmental enquiry against

them.

11. In view of the above mentioned facts and circumstances that

have emerged in the present case, the Court has no option but to hold

that the benefit of doubt has been given to the petitioner by accepting the

status report dated 25.08.2011 submitted by the Addl.CP/Vigilance, Delhi

Police to the effect that incriminating document allegedly confiscated by

the members of the flying squad from the petitioner was not a seized

property due to a lapse on the part of the Invigilator and the Assistant

Superintendent and that proper procedure was not followed by

respondent No.1/University as required by it before passing the impugned

order dated 03.03.2011, cancelling all the papers of the semester/year in

which the petitioner appeared and refusing to grant promotion to him.

12. It is pertinent to note that vide order dated 21.12.2011,

respondent No.1/University was directed to produce in a sealed cover, the

result of Part-II of MBA (Evening) course undertaken by the petitioner.

The said result was however not produced on the date fixed, i.e.,

23.12.2011. Today, counsel for respondent No.1/University hands over

the result of the petitioner, which reveals that except for the paper -

MB201 relating to the subject, Financial Management, which is subject

matter of the present petition, the petitioner has cleared the remaining

six papers in respect of the other subjects.

13. While allowing the present petition and setting aside and

quashing the impugned order dated 03.03.2011, respondent

No.1/University is directed to declare the results of the petitioner for the

Part-II of MBA (Evening) course and permit him to take his final year

examinations as also the supplementary examination for MB-201 paper

relating to the subject, Financial Management in this session itself.

14. Before parting with the present case, the Court expresses its

deep dismay and discontentment at the manner in which the officials of

respondent No.1/University have handled the incident of 18.1.2011 and

this has also displayed the lack of the application of mind on the part of

the Examination Committee in scrutinizing the documents related to the

petitioner. Had such measures been taken at that stage when the

documents were placed before the Committee, it would have found that

the very case of respondent No.1/University, that unauthorized material

was found in the possession of the petitioner while writing the

examination, had remained unsubstantiated due to non-availability of

such documents in the custody of the concerned officials of the

respondent/University. Instead, the Committee proceeded to act in a

casual and mechanical manner and imposed a penalty on the petitioner.

15. It is unfortunate that the malady of examinees resorting to

unfair means/indiscipline while attempting papers seems to be spreading

like wild fire. Every other day, there are reported cases of blatant

cheating by examinees themselves or with the assistance of accomplices,

thus polluting the entire education system. All out efforts must be made

by educational institutions and Universities to nip such illegal activities in

the bud and bring the guilty to book. But to attain the said object, the

authorities must be extremely vigilant and quick to act and then

meticulously follow the procedures prescribed for booking those who are

caught in the act. If due promptitude and efficiency is exercised by them,

it shall go a long way in stemming the tide of rampant cheating and use

of unfair means by examinees and send a clear message to all the

stakeholders that such activities shall not be tolerated and the guilty

would not be spared. Also, a greater degree of care for creation of

stringent rules and adherence thereto is expected out of respondent

No.1/University to discourage any act amounting to cheating/use of unfair

means by the examinees, more so, when electronic devices like mobile

phones etc. are being used to perpetrate such illegality. To achieve this

goal, it is deemed expedient to direct respondent No.1/University to

ensure that all the officers involved in the examination process, are made

well conversant with such like electronic devices and familiarized with all

the necessary steps required to be followed by them when confronted

with such situations, which require immediate intervention and

prevention.

16. The present case is a clear case of lack of due diligence

exercised on the part of the concerned officers of respondent

No.1/University present at the spot, which fact has clearly been brought

out in the status report filed by the Addl.CP/Vigilance, Delhi Police as also

in the Enquiry Report submitted by the Enquiry Officer appointed by the

Vice Chancellor of respondent No.1/University, wherein a number of

discrepancies in the version of the events that occurred on 18.1.2011

were pointed out and some suggestions have been made to ensure that in

future, all the personnel involved in the examination process discharge

their duties responsibly and that well defined guidelines are set out for

booking students caught using unfair means in examinations.

17. The respondent No.1/University is therefore directed to take

immediate steps to implement the suggestions made by the Enquiry

Officer in his report dated 07.07.2011 and streamline and define the steps

to be followed by the personnel of the University involved in the

Examination process. The Vice Chancellor of respondent No.1/University

shall ensure that requisite updated guidelines/manuals are prepared and

circulated to all the personnel who shall be involved in the examination

process, within a period of two months from today. Further, in view of the

submission made by the counsel for respondent No.1/University that

necessary steps shall be taken by the University to book the erring

personnel involved in the present case, respondent No.1/University is

directed to initiate appropriate departmental enquiry in that regard and

conclude the same as per law, as expeditiously as possible.

18. The petition is disposed of alongwith the pending applications.

A copy of this order be forwarded by the Registry forthwith to

the Vice Chancellor of respondent No.1/University for perusal and

compliance.

                                                         (HIMA KOHLI)
JANUARY    3, 2012                                          JUDGE
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