Ashu Gupta vs University Of Delhi
2012 Latest Caselaw 65 Del

*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+      W.P.(C) No.33/2012 and CM No.70/2012

                                                    Decided on : 04.01.2012


IN THE MATTER OF
ASHU GUPTA                                            ..... Petitioner
                          Through : Mr. Subhiksh Vasudev and
                          Mr. Rajbir Singh Bathla, Advs.


                     Versus

UNIVERSITY OF DELHI                                       ..... Respondent
                          Through : Mr. Mohinder J.S. Rupal, Adv.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (ORAL)

1. The present petition is filed by the petitioner praying inter alia

for quashing of the impugned Memorandums dated 27.9.2011 and

24.10.2011 respectively issued by the Deputy Controller of Examinations

of the respondent/University, whereunder the entire examination taken

by the petitioner for the LL.B.-VI Term Examination-2011 under Roll

No.67674 was cancelled on the ground that she had resorted to use of

unfair means/disorderly conduct during the aforesaid examination.

2. In a nutshell, the facts of the case are that the petitioner

appeared in her LL.B.-VI Term Annual Examination-2011 held on

10.5.2011 for paper LB-603. During the course of the said paper, the

Superintendent of the Examination Centre recovered the examination

date sheet from the possession of the petitioner whereon it was observed

that there existed unauthorized handwritten material on the backside of

the date sheet, which material was relevant to answering question No.8,

which was set in the question paper. On 29.7.2011, a show cause notice

was issued to the petitioner for use of unfair means/disorderly conduct.

Vide representation dated 11.8.2011, the petitioner submitted her reply

to the aforesaid notice to show cause. The relevant extract of her reply is

reproduced herein below :

"2. The referred minor act exam was an open book exam (bare acts were provided) so I did not carry any book for revision but I wrote few points on date sheet with pencil to revise them in my course of transit in metro from my home to the exam centre. Sir owing to my negligence I forgot to throw/erase it before entering into the examination hall and accidently it remained in my pencil box.

3. I never intended to use the written material and I had not used the same in answering any of the question(s) & the same can be verified.

It's been written the expert report that the material has been used by me in answering Q.NO.7 but that material has no relevance to Q.NO.7 but Q.NO.8 which I did not attempt.

4. I admit my fault being negligent enough not to erase or throw it and I have committed a mistake but that was not deliberate and was unintentional."

3. After examining the aforesaid reply, the impugned

Memorandum dated 27.9.2011 was issued by the Deputy Controller of

Exams of the respondent/University stating inter alia that after

considering all the documents on record including the personal hearing,

the Executive Council of the respondent/University was satisfied with the

findings of the Examination Disciplinary Committee (EDC) to the effect

that the petitioner had resorted to use of unfair means/disorderly conduct

during the aforesaid examination and was liable to be awarded the

punishment under Clause B of the guidelines circulated to her along with

the admission ticket, which stipulate cancellation of the entire

examination. As per the aforesaid guidelines, the Executive Council of

the respondent/ University decided to cancel the entire examination in all

papers and subjects taken by the petitioner under Role No.67674, while

further observing that she would be eligible to be admitted to the

examination afresh as and when held subsequently.

4. It is the submission of the counsel for the petitioner that upon

receiving the aforesaid Memorandum, on 10.10.2011 the petitioner filed a

review application before the Vice Chancellor of the respondent/University

seeking an opportunity of personal hearing before the EDC. The aforesaid

request of the petitioner was acceded to and subsequently she appeared

before the EDC on 12.10.2011. This was followed by issuance of the

Memorandum dated 24.10.2011 by the Deputy Controller of

Examinations, whereunder it was observed that the punishment already

awarded to the petitioner as per rules and regulations framed in that

regard, would be retained. Aggrieved by the aforesaid decisions, the

petitioner has preferred the present petition.

5. It is contended by the learned counsel for the petitioner that

the aforesaid Memorandums are liable to be set aside on the ground that

the respondent/University violated the rule of audi alteram partem while

deciding the petitioner's case as it failed to afford an opportunity of

hearing to her. The aforesaid submission is however contrary to the

record inasmuch as it is the petitioner's own case that upon her filing a

review application before the Vice Chancellor of the respondent/

University seeking a personal hearing, she was afforded an opportunity of

personal hearing by the EDC on 12.10.2011, and only thereafter was the

Memorandum dated 24.10.2011 issued.

6. The second submission of the counsel for the petitioner is that

the petitioner was not furnished with the material which was placed

before the EDC during the hearing and was deliberated upon, thus

denying an adequate opportunity to the petitioner to meet the grounds

taken in the notice to show cause.

7. A perusal of the notice to show cause reveals that the

petitioner was informed in so many words that unauthorized handwritten

material on the backside of the date sheet had been recovered from her

possession on 10.5.2011. The said point was duly dealt with by the

petitioner in her reply to the notice to show cause, particularly, in paras 2

to 4 thereof as extracted in para 2 herein above. Thus, it cannot be stated

by the petitioner that she was kept in the dark as to the exact nature of

charges levelled against her, which she could not sufficiently meet while

replying to the notice to show cause issued to her by the respondent, or

later on, when she appeared before the EDC for a personal hearing.

8. It is next submitted by the counsel for the petitioner that the

unauthorized handwritten material on the backside of the date sheet

related to Question No.8 and not to Question No.7 and as the petitioner

never attempted Question No.8, she could not have been held guilty of

using unfair means to answer the question paper.

9. The aforesaid submission made by the counsel for the

petitioner is untenable and fallacious inasmuch as the admit card issued

to the petitioner categorically mentioned that candidates were not

permitted to take with them any "unauthorized material" into the

examination hall. Fact of the matter is that the notice to show cause

issued to the petitioner also mentions the same charge, i.e., taking

unauthorized handwritten material into the examination hall. Merely

because the aforesaid unauthorized handwritten material related to

Question No.8 and did not relate to Question No.7 which the petitioner

attempted, is not a ground to exonerate her from the charge of resorting

to unfair means for the reason that the requirement of the rules are not

that the unauthorized material found in possession of an examinee ought

to relate to a question that might have been attempted by him/her, rather

the rules prohibit the examinees from taking into the examination hall,

any unauthorized material. Even otherwise, the petitioner herself had

admitted in the reply to the notice to show cause that she was found to

be in possession of unauthorized material and the explanation sought to

be offered that it was on account of an inadvertent error, cannot be

accepted.

10. Reliance placed by the counsel for the petitioner on the

judgment of the Division Bench of this Court in the case of "University of

Delhi vs. Vandana Gupta" reported as ILR 1979 Delhi 716 to urge that

the practice of supplying a copy of the report of the EDC to the candidate

concerned was not followed, may not be of any assistance to the

petitioner herein inasmuch as the notice to show cause issued to the

petitioner itself stated that the petitioner was found to be in possession

of unauthorized handwritten material on the backside of the date sheet,

which allegation was duly replied to and sought to be explained by the

petitioner in her reply. The observations made in the aforesaid case are

not applicable to the petitioner in the fact and circumstances of the

present case where the petitioner had been duly confronted with the

nature of charges levelled against her, which had been dealt with by her

in her reply to the notice to show cause. This is not a case where the

petitioner did not know the reasons for which the respondent/University

proceeded to take action against her, due to which she could not

effectively represent her case before the EDC.

11. In view of the aforesaid facts and circumstances, the present

petition fails inasmuch as the petitioner has failed to point out any patent

irregularity, arbitrariness or mala fides in the decision making process of

the respondent/University as reflected in the impugned Memorandums

dated 27.9.2011 and 24.10.2011.

The petition is therefore dismissed in limine along with the

pending application.

                                                     (HIMA KOHLI)
JANUARY 4, 2012                                         JUDGE
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