Board Of Technical Education vs Shri Sahibjeet Singh
2014 Latest Caselaw 3466 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           Date of decision: 1st August, 2014.

+                    LPA 1/2014 & CM No.107/2014 (for stay)

         BOARD OF TECHNICAL EDUCATION               ..... Appellant
                     Through: Mrs. Avnish Ahlawat, Adv.

                                     Versus

    SHRI SAHIBJEET SINGH                                      ..... Respondent
                  Through: None.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra court appeal impugns the judgment dated 27 th November,

2013 of the learned Single Judge of this Court allowing W.P.(C)

No.7076/2013 preferred by the respondent, by directing the appellant Board

to declare the result of the respondent/writ petitioner in respect of the 5 th

Semester papers taken by the respondent/writ petitioner. The appeal was

admitted for hearing and notice ordered to be issued to the respondent/writ

petitioner. None appeared for the respondent/writ petitioner inspite of

service. Ex-parte arguments of the counsel for the appellant Board were

heard.

2. The respondent/writ petitioner filed the writ petition from which this

appeal arises, contending:

(i) that the respondent/writ petitioner was pursuing a three year

diploma course in Automobile Engineering comprising of six

semesters, from GTB Polytechnic, Vasant Vihar, New Delhi affiliated

to the appellant Board;

(ii) that the appellant Board conducted examinations in December

2012 / January 2013 and the respondent/writ petitioner participated in

the said examinations, for all the papers of the 5th Semester as well as

for two back papers of 3rd Semester i.e. in PTE (Principles of Thermal

Engineering) and ESH (Elements of Strength of Hydraulics and

Material) under Roll No.30475;

(iii) that on 14th December, 2012, when the respondent/writ

petitioner was attempting the question paper of PTE, the Flying Squad

of the appellant Board as a daily routine conducted an inspection of

the students participating in the examination, including the

respondent/writ petitioner, and found one paper from the clothes of the

respondent/writ petitioner; hence, the answer sheet of the

respondent/writ petitioner with the paper found was seized;

(iv) that upon explanation being sought from the respondent/writ

petitioner, the respondent/writ petitioner truthfully said that the said

paper inadvertently remained in his clothes but he had no intention to

cheat and had not cheated;

(v) that the appellant Board vide its decision dated 4th March, 2013

cancelled the entire Board Examination taken by the respondent/writ

petitioner in terms of Rule 11-B, while permitting the respondent/writ

petitioner to take examination commencing with effect from

May/June, 2013, if otherwise eligible therefor.

3. Aggrieved by the said decision of the appellant Board, the writ

petition was filed. It was the contention of the respondent/writ petitioner that

he had not used any unfair means and thus the order/decision of the appellant

Board imposing punishment was bad. Alternatively, it was contended that

the case of using unfair means against him was in respect of one of the two

back papers taken by him of the 3rd Semester and the examination in all

papers of the 5th Semester could not have been cancelled. It appears that the

result of the examinations taken by the respondent/writ petitioner was

declared on 2nd April, 2013 but the same, in accordance with the decision

dated 4th March, 2013, was treated as cancelled.

4. The learned Single Judge has in the impugned judgment dated 27 th

November, 2013 not dealt with the challenge made in the writ petition to the

finding of the appellant Board of the respondent/writ petitioner having used

unfair means. Perhaps, the said ground was not pressed by the

respondent/writ petitioner. The respondent/writ petitioner has not preferred

any appeal against the impugned order and is thus satisfied with the finding

of use of unfair means by him and which can thus be said to have now

attained finality.

5. From a reading of the impugned judgment, it appears that the only

contention raised before the learned Single Judge was, that in accordance

with the Rules of the appellant Board, the punishment, only of cancellation

of the examination of the 3rd Semester i.e. in two back papers of the 3rd

Semester, could have been imposed and not the punishment of cancellation

of the examination of the 5th Semester also. The learned Single Judge, on an

interpretation of Rule 11-B of the Examination Rules of Board of Technical

Education, Delhi-1973 and as updated till 2007, providing for the

punishment of "cancellation of the entire examination" for such an offence

has held that cancellation of the examination of the 5th Semester also would

amount to "cancellation of two examinations, not of one examination" and

that the rule envisages cancellation only of the examination in which the

candidate is found using unfair means and not of the other examination

which the candidate may be taking in the same year or in the same semester.

Accordingly, the appellant Board was held entitled to cancel the examination

taken by the respondent/writ petitioner only of two back papers of the 3rd

Semester in which the respondent/writ petitioner was reappearing along with

the 5th Semester papers. The appellant Board was accordingly directed to

declare the result of the respondent/writ petitioner in respect of 5 th Semester

papers.

6. The counsel for the appellant Board has argued that the

respondent/writ petitioner, at the relevant time was appearing in the

examination as an ex-student and has invited our attention to the

Examination Form filled up by the respondent/writ petitioner and on

approval whereof the respondent/writ petitioner was allotted Roll No.30475

supra and has argued that the said Form is with respect to the two papers of

the 3rd Semester as well as all subjects of the 5th Semester and thus the

examination in all of them has to be taken as one and not two separate

examinations.

7. The counsel for the appellant Board on being directed, has placed on

record the "Constitution of the Board of Technical Education, Delhi" along

with the Examination Rules of the Board of Technical Education, Delhi

aforesaid and we have perused the same. Rule 10 of the Examination Rules

contains "Rules regarding use of unfair means by candidates". Rule 11 deals

with "Punishment for use of unfair means", with Parts A to F thereof

providing for different punishments for different instances of use of unfair

means. The successively severe punishments are as under:

"Part A Cancellation of the Examination in the paper of the day of incident only and declaring the result on the basis of the performance of the candidate in the remaining papers/subjects the candidate shall be deemed to have secured zero mark in the paper so cancelled.

Part B Cancellation of the Entire Examination. Part C Cancellation of the Entire Examination taken by the Candidate during the year and further debarring him from appearing at any Examination of the Board within a span of one year (12 months).

Part D Cancellation of the Entire Examination taken by the candidate and further debarring him at any Examination of the Board during the span of two years (24 months).

Part E Cancellation of the entire Examination taken by the candidate and further debarring him at any Examination of the Board during the span of three years (36 months).

Part F Cancellation of the Entire Examination taken by the candidate and further debarring him at any Examination of the Board during the span of five years (60 months)."

8. It is not in dispute that for the offence committed by the

respondent/writ petitioner, his punishment is as in Part B supra i.e. of

"Cancellation of the Entire Examination". The question for adjudication is,

whether the words "Entire Examination" refer to a particular session of

examination, be it with respect to subjects/papers of one semester only or

also with respect to subjects/papers of more than one semester which the

rules permit the students to take, or, refer to „entire examination of one

semester‟ which only a student normally is to take in a particular session of

examination.

9. We drew the attention of the counsel for the appellant Board to Part C

supra which, while providing for the next successive severe punishment to

the punishment under Part B, provides for cancellation, besides of the entire

examination taken by the candidate also of the other examinations taken

during the year and enquired, whether not the same is indicative of Part B

being concerned with entire examination only of the semester in which the

candidate/student has used unfair means and not of the other semesters

which also may have been taken in the same session.

10. No answer was forthcoming.

11. Neither the Constitution nor the Rules supra define the word

„examination‟. However, reference to the word „examination‟ in clauses

2.25, 2.26, 12.4, 12.5, 12.6 and 27.6 of the Constitution of the appellant

Board and in Rules 3.1, 4, 6, 10.3, note (1) under Rule 11, 16.3, 16.4, 19 and

20 of the Examination Rules of the appellant Board shows the same to be

used as a „session of examination‟ and not relatable to a semester and not

carving out any distinction, whether it be in papers/subjects of one or more

semesters. The Examination Form prescribed and which was filled up by

the respondent/writ petitioner is however found to be making a provision for

the students to list the subjects in which the student wants to take the

examination in a particular session, including subjects of more than one

semester. The roll number allotted is also for the entire examination, may be

of papers/subjects of different semesters. Therefrom it appears that in the

scheme of the appellant Board, the words "Entire Examination" mean one

session of examination be it in howsoever many subjects/papers, whether of

the same or different semesters. The learned Single Judge has not given any

reason for dissecting one session of examination into separate examinations

for different semesters.

12. Our legal research has not yielded much; though the Division Bench

of the Allahabad High Court in Rajeev Rathi Vs. Controller of

Examinations and Admissions Aligarh Muslim University

MANU/UP/0682/1988 and the Punjab and Haryana High Court in Munish

Bansal Vs. Guru Jambheshwar University AIR 1998 Punjab & Haryana

105 (DB) and in Deepinder Singh Mann Vs. The Punjab Technical

University MANU/PH/0844/2010 were concerned with similar issues but in

the context of their own respective rules. All that can be observed is that the

Division Bench in Rajeev Rathi supra, interpreted the word "year" defined

as "academic year" as the „year of taking the examination‟ and not „the year

of the three year course‟ and accordingly held the examination of both, first

and second year to be liable to be cancelled if taken in the same academic

year, upon being caught using unfair means in examination of first year only.

To the said extent the said judgment also supports the view of "entire

examination" referring to a session of examination and not to the semester to

which the examination pertains.

13. We are also of the view that had the intention been to cancel the

examination in all papers of the semester, instead of using the word

„examination‟, the word „semester‟ would have been used. We thus agree

with the interpretation of the rule by the appellant Board that the words

"Entire Examination" refer to a particular session of examination, be it in

papers/subjects of one or more semester.

14. There is another aspect of the matter. Clause 12.2 of the Constitution

aforesaid makes the decision of the appellant Board to cancel the result of

examination of a candidate to be final. Similarly, Sub-rule 12.2 of Rule 12

titled "procedure for decision unfair-means cases reported by superintendent

of centre/anti-copying squad" makes the decision of the Examination

Committee of the appellant Board in all cases of malpractice to be final.

Though it cannot be denied that such finality will be subject to judicial

review but the fact remains that the appellant Board, in the matter of

cancelling the examination of the respondent/writ petitioner of

subjects/papers of different semesters taken by him together, has interpreted

its own rule. The question which arises is that should this Court impose its

own interpretation of the rules over the interpretation placed by the appellant

Board itself. The Supreme Court in Director (Studies) Vs. Vaibhav Singh

Chauhan (2009) 1 SCC 59 has reiterated that the Courts should not

ordinarily interfere with the functioning and orders of educational

authorities, unless there is clear violation of some statutory rule or legal

principle. It was further held that there must be strict purity in examinations

of educational institutions and no sympathy or leniency should be shown to

candidates who resort to unfair means in the examinations. Applying the

said principle also, we are unable to sustain the order in appeal.

15. Resultantly, the appeal is allowed and the judgment of the learned

Single Judge is set aside; axiomatically, the writ petition filed by the

respondent/writ petitioner is dismissed. However, no costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE AUGUST 01, 2014.

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