Pankaj Dahiya vs University Of Delhi & Anr
2016 Latest Caselaw 189 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 11th January, 2016

+                               W.P.(C) No.2778/2008
       PANKAJ DAHIYA                                         ..... Petitioner
                   Through:           Mr. R.K. Saini, Adv.
                                Versus

    UNIVERSITY OF DELHI & ANR                 ..... Respondents

Through: Mr. Mohinder J.S. Rupal and Ms. Simran Jeet, Advs.

CORAM:-

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. The petition impugns the action of the respondent University of Delhi

of cancelling the result of the petitioner of B.E. (Mechanical)

course/programme and expelling the petitioner from the University.

Axiomatically, the Memorandum dated 9th August, 2007 of the respondent

University cancelling the result of all the B.E. examinations taken by the

petitioner and the report of the Disciplinary Committee of the respondent

University on the basis of which the Memorandum aforesaid has been issued

are also impugned.

2. The petition was entertained, though interim stay sought of the

aforesaid Memorandum not granted. Counter affidavit has been filed by the

respondent University and though no rejoinder thereto filed by the petitioner

inspite of opportunity but an additional affidavit dated 9th July, 2012 was

filed by the petitioner. The counsels have been heard.

3. The petitioner, on 24th July, 2000 was admitted to the Delhi College of

Engineering (DCE) then under the respondent University, to the Bachelor of

Engineering (Mechanical) course/programme consisting of eight semesters

and by January, 2004 appeared and cleared seven semesters. The petitioner

appeared for the 8th semester examination in May, 2004 but was declared fail

in the theory paper in the subject of Industrial Engineering (bearing no.ME

411) and in the practical paper in the subject of Automobile

Engineering/Engine Emissions (bearing no.ME 428/432). The petitioner on

11th March, 2005 registered himself only for appearing in the practical

examination of Automobile Engineering/Engine Emissions as on qualifying

the same he would have become entitled to be awarded the degree of B.E.

and appeared in the said examination held on 29th April, 2005. However in

the result declared in July, 2005, the petitioner was declared absent in the

theory paper of Combusion Engines (bearing no.ME 416) for which he had

not even registered and his result of the practical paper in the subject of

Automobile Engineering/Engine Emissions was not declared at all.

4. The petitioner earlier filed W.P.(C) no.6897/2006 averring that though

he had represented in this regard but no action was being taken thereon

perhaps because of his alleged involvement in Delhi College of Engineering

Entrance Paper Leaks Scam of the year 2005 and seeking a mandamus to

the respondent University to declare the result of the petitioner of the

practical paper taken by him in the subject of Automobile

Engineering/Engine Emissions and if he had passed therein, to issue him the

degree of B.E. (Mechanical). The said writ petition was accompanied with

an application for interim relief and aggrieved from the non-grant of interim

relief LPA No.996/2006 was preferred and vide order dated 14th June, 2006

wherein, the respondent University was directed to produce the result of the

petitioner in the practical paper in the subject of Automobile

Engineering/Engine Emissions.

5. The respondent University issued a notice dated 1st June, 2006 to the

petitioner asking him to show cause why disciplinary action should not be

taken against him on the ground that Central Bureau of Investigation (CBI)

had filed a charge sheet against him in relation to the Entrance Paper Leaks

Scam of the year 2005 and in pursuance whereto vide order dated 5th June,

2006 cancelled the result of the petitioner and expelled the petitioner from

the University.

6. The petitioner then filed W.P.(C) No.104236/2006 impugning the said

order of the respondent University and vide order dated 11th May, 2007

therein the said decision of the respondent University was set aside and the

respondent University directed to give another opportunity to the petitioner

to file a reply to the show cause notice and thereafter pass a fresh order.

7. In the light of the above, W.P.(C) no.6897/2006 filed by the petitioner

and LPA No.996/2006 arising therefrom became infructuous.

8. In pursuance to the fresh show cause notice issued to the petitioner

and the proceedings thereafter, the respondent University vide Memorandum

dated 9th August, 2007 has found the petitioner to have committed gross

indiscipline under Section 3(f) and 3(i) of Ordinance XV-B of the University

of Delhi Ordinances and in exercise of power under clause 4(f) thereof has

cancelled the result of all the examinations taken by the petitioner for the

B.E. course/programme to which he was admitted and in exercise of powers

under clause 4(a) of the said ordinance has also expelled the petitioner from

the University.

9. The counsel for the petitioner has argued, (i) that the petitioner, after

the declaration of the result of 8th semester examination had 226 credits as

against 228 credits to be entitled to the degree in the B.E. (Mechanical)

programme/course; (ii) it is for this reason only that the petitioner did not

feel the need to again appear in the theory examination in the subject of

Industrial Engineering in which he had failed; (iii) the petitioner could attain

the deficient credits only by appearing in the practical examination in the

subject of Automobile Engineering/Engine Emissions; (iv) that the result of

the petitioner of the said examination would have been declared in July,

2005 had the respondent University not erred in treating the petitioner as

having absented in the theory paper in Combustion Engines (bearing ME

416) for appearing wherein the petitioner had not even applied and had the

respondent University declared the result of the practical examination in

Automobile Engineering/Engine Emissions whenever the petitioner had

taken, the petitioner would have obtained his B.E. degree in July, 2005 and

the respondent University would have been left with no control over him to

exercise the powers of cancellation of the result of all examinations taken by

him or of expelling him from the University; (v) that the respondent

University for its own mistakes cannot acquire jurisdiction to do what it

would not have had jurisdiction to do if had not erred; (vi) that the petitioner

after having completed his eight semesters of B.E. course/programme in the

year 2004, was in the year 2005 only appearing as an outside candidate and

was no longer a regular student of the respondent University; (vii) that the

powers exercised under Ordinance XV-B of cancellation of result of all the

examinations taken by the petitioner and of expelling the petitioner can be

exercised only over a student and the petitioner at the relevant time was not

a student within the meaning of the said Ordinance; (viii) that the charge

against the petitioner in the charge sheet filed by the CBI is of helping the

students appearing in the entrance examination held for the year 2005 in

giving correct answers with mobile phones; (ix) that the Disciplinary

Committee of the respondent University had no evidence before it in this

regard except the charge sheet filed by the CBI and the same, as the name

suggests, merely charges and does not contain a finding of fact; and, (x) that

the show cause notice issued to the petitioner in pursuance to the order dated

11th May, 2007 in W.P.(C) No.104236/2006 earlier filed by the petitioner is

not in accordance therewith and the respondent University has added the

charges and which it was not entitled to.

10. On enquiry, it is informed that the trial pursuant to the said charge

sheet has not even commenced as yet. The counsel for the petitioner states

that there are 71 persons accused thereunder including 52 students who were

appearing for the examination and three erstwhile students of DCE including

the petitioner and 16 public persons and the charge sheet cites as many as

150 witnesses.

11. Per contra, the counsel for the respondent University contended that

the scope in such matters is limited to a judicial review of the decision

making process and not of the decision. It is informed that the petitioner, as

per the charge sheet, has signed the disclosure memo and the charge sheet is

on the basis of statements recorded under Section 164 of the Cr.PC. It is

contended that the petitioner was the kingpin of the examination paper leak

and thereby disrupted the admission process held at the commencement of

the academic session. Reliance is placed on B.C. Chaturvedi Vs. Union of

India AIR 1996 SC 484, Vikram Kumar Vs. Delhi Transport Corporation

2015 VIII AD (Delhi) 274 and Ex. Cont. Pawan Kumar Vs. Govt. of NCT

of Delhi MANU/DE/0992/2009.

12. The counsel for the petitioner in rejoinder contends that the petitioner

was not even given an opportunity by the Disciplinary Committee to cross

examine. It is further argued that the respondent University cannot treat a

student as criminal and that even in criminal justice system there is concept

of first offender and probation and leniency in sentence; to cancel the result

of all the four years and depriving the student of his degree is the most

severe extreme penalty, like a death sentence, for a student. It is contended

that a first offender has to be given a light punishment so that all his future

prospects and life is not spoiled. It is pleaded that the petitioner has already

suffered for almost eight years during which period he could have passed the

B.Tech progamme twice over. Reliance is placed on (i) judgment dated 24th

February, 2009 of this Court in W.P.(C) No.3720/2007 titled Dr. Buddh

Priya Rahul Vs. University of Delhi where finding that there was non-

compliance with principles of natural justice fair procedure and

reasonableness, the action of the University was set aside; (ii) definition of

the words 'corruption', 'bribery', 'disrupt', and 'student' used in Ordinance

XV-B supra in the Oxford English Reference Dictionary, Black's Law

Dictionary and Oxford Advanced Learner's Dictionary. A copy of the

charge sheet was also handed over.

13. The counsel for the respondent University responded that no such

right of cross examination was sought. Reliance was also placed on (i)

judgment dated 26th February, 2007 of this Court in W.P.(C) No.6254/2006

titled Prashant Vats Vs. University of Delhi; (ii) judgment dated 4th July,

2008 of the Division Bench of this Court in LPA No.39/2007 titled Manish

Dabas Vs. University of Delhi and in other connected petitions; and, (iii)

judgment dated 19th December, 2006 titled Pranjal Vashisht Vs. University

of Delhi. A copy of the Disclosure Memo dated 3rd August, 2005 bearing the

signatures of the petitioner was also handed over.

14. I have considered the rival contentions.

15. No merit is found in the contentions of the petitioner, of not being a

student at the relevant time and, of being entitled to the relief on the ground

that if his result had been declared in time the University would have been

unable to take action. The petitioner cannot on the one hand claim a right to

take an examination and which he could do only as a student and by

remaining within the domain and control of the University and on the other

hand claim that he was not a student, for the University to take action against

him. Similarly, the petitioner cannot be entitled to the relief on ifs and buts.

If the petitioner was aggrieved from non-declaration of his result, he should

have taken appropriate remedies with respect thereto. As long as the result

was not declared and the petitioner had not been conferred the degree, the

petitioner remained in the domain of the University and no error can be

found in the University exercising its jurisdiction against the petitioner.

16. I have perused the report of the Disciplinary Committee and the same

discloses that the petitioner was given a hearing and the reply submitted by

him to show cause notice was considered.

17. The Disciplinary Committee has found (i) that the petitioner in the

year 2001 had indulged in an act of violence in the college campus, invited

unwarranted characters in the premises of the college and mercilessly beaten

up some students in the college campus and with respect to which incident

an FIR No.197/2001 of PS Bawana was pending filed against the petitioner

(the petitioner in his additional affidavit has stated that the said FIR was

quashed on 29th May, 2009 upon a compromise being reached between the

petitioner and the students whom the petitioner had assaulted); (ii) the

petitioner again assaulted a student in August, 2003 and in respect of which

incident the University imposed a fine of Rs.1,000/- on the petitioner and

which the petitioner had paid; (iii) that the petitioner was the main person

behind the brutal beating of another person and in which respect also FIR

was lodged against the petitioner (the petitioner in the additional affidavit

has disclosed that the said FIR was also quashed vide order dated 4th

February, 2009, again on compromise being reached by the petitioner with

those he had assaulted); (iv) the petitioner along with another student had

criminally assaulted the hostel attendant in April, 2004 and for which

misconduct he was debarred from appearing in the 7th Semester Examination

and his entry into the campus was also banned and he was suspended from

working as President of the Students Union; (v) in February, 2005 the

petitioner was involved in brutal beating of another student and qua which

incident also FIR was lodged (the petitioner in the additional affidavit has

disclosed having been acquitted in the said prosecution on 5 th February,

2009 on witnesses turning hostile); (vi) that the petitioner in the paper leak

case had remained incarcerated for approximately 1½ months during

September/October, 2005; (vii) the signatures of the petitioner on various

documents were different and the petitioner was unable to explain the same;

(viii) some students had deposed before the Metropolitan Magistrate (MM)

under Section 164 Cr.PC that the petitioner had called them to solve a

question bank as he had opened a new coaching institute and had conducted

an examination for recruitment of teachers for the institute; (ix) parents of

some of the students had also stated having paid Rs.4 lacs to the petitioner

for answer key to the questions on 29th May, 2005; (x) statement of parent of

another student revealed that the petitioner had asked for Rs.4 lacs to get

him admitted to the college; (xi) parent of another student had also stated

that the petitioner had agreed to send the answer key via SMS after 1½ hour

of commencement of the exam; (xii) the petitioner had merely denied all the

aforesaid without any satisfactory explanation therefor; (xiii) otherwise the

stand of the petitioner before the Disciplinary Committee was that he could

not be compelled to disclose his defence in the criminal case against him;

and, (xix) that the conduct of the petitioner was highly unbecoming of a

student.

18. The aforesaid facts speak for themselves. The question which arises

is, whether in such facts I should interfere in exercise of equitable

discretionary jurisdiction under Article 226 of the Constitution of India.

19. Supreme Court in Director (Studies) Vs. Vaibhav Singh Chauhan

(2009) 1 SCC 59 has reiterated that the High Court should not interfere with

the orders passed in educational matters by domestic tribunals set up by

educational institutions, thereby interfering with the functioning of the

educational institutions, unless there is a clear violation of some statutory

rule or legal principle. Additionally it was emphasised that there must be

strict purity in the examination of educational institutions and no sympathy

or leniency should be shown to candidates who resort to unfair means in the

examination.

20. The petitioner, in my view, from his conduct aforesaid of having as

many as three FIRs against him prior to the FIR in the paper leak scam, is

disentitled from invoking the sympathy of this Court for any relief qua him.

The fact that the FIRs have been quashed or the petitioner acquitted does not

come to the rescue of the petitioner as all that has happened after the FIR in

the paper scam case had been registered against the petitioner and when the

petitioner, perhaps as a strategy chose to compromise with those whom he

had assaulted or committed offence against.

21. The petitioner in the Disclosure Memo signed by him has disclosed

how he procured the question booklet, how he got it solved and how he

arranged to convey the answers to the candidates taking the examination.

22. Whatsoever may be the status of the Disclosure Memo and/or the

statements made by the petitioner and others before the Police/MM, as far as

the disciplinary proceedings against the petitioner subject matter of this

petition are concerned, the petitioner had no explanation with respect

thereto. The petitioner having chosen to not participate in the disciplinary

proceedings for the fear of disclosing his defence to the prosecution, cannot

now be heard to allege violation of the principles of natural justice.

23. No merit is found in the petition.

Dismissed.

I refrain from imposing costs against the petitioner.

RAJIV SAHAI ENDLAW, J

JANUARY 11, 2016 'pp'..

(Corrected and released on 22nd June, 2016)