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Aarzoo Aggarwal vs University Of Delhi
2020 Latest Caselaw 1869 Del

Citation : 2020 Latest Caselaw 1869 Del
Judgement Date : 26 May, 2020

Delhi High Court
Aarzoo Aggarwal vs University Of Delhi on 26 May, 2020
                                                           SINDHU KRISHNAKUMAR

                                                           26.05.2020 19:30


$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                Reserved on: 11th May, 2020
                                             Date of decision: 26th May, 2020
+      W.P.(C) 2980/2020 and CM APPLs. 10337/2020, 10338/2020,
       10350/2020

       AARZOO AGGARWAL                                          ..... Petitioner
                   Through:             Petitioner in person. (M:7042486969)
                          versus

       UNIVERSITY OF DELHI                                    ..... Respondent
                     Through:           Mr. Mahender        Rupal, Advocate.
                                        (M:9811151216)
       CORAM:
       JUSTICE PRATHIBA M. SINGH
                          JUDGMENT

Prathiba M. Singh, J.

1. The hearing was held through video conferencing.

2. Copying and cheating in examinations is like the 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.

3. The present writ petition was filed by Ms. Aarzoo Aggarwal, who is a final year student of B.A. (H) Economics at Daulat Ram College, University of Delhi. The petitioner challenges the impugned order of the Respondent - University of Delhi dated 12th March, 2020 by which the examination of the Petitioner for the entire Semester has been cancelled. She prays that the said order be quashed and the University of Delhi be directed to declare her result. Petitioner's Submissions

4. The Petitioner is currently in her 6th semester. The examination for four papers of the 5th semester was held in December, 2019. The Petitioner appeared in all the examinations. The paper in `International Trade' was held on 3rd December, 2019. The centre for examination was Daulat Ram College itself. The Petitioner's case is that on the date of the examination she was late for examination due to traffic. The Petitioner carried her stationery pouch from her bag and straightway reached her seat. She claims that she had prepared notes for the examination, which were in the form of placards, and the said placards mistakenly stayed in her pouch. In a hurry, when the examination was about to start, she simply took out her pouch and started writing the examination, without realising that the notes continued to remain in her pouch. Half an hour into the commencement of the examination, the Petitioner pleads that she realised that the placards were in her pouch, and she herself voluntarily called the invigilator and gave the same to the invigilator. It is her case that despite her having voluntarily done so, the invigilator accused her of cheating. She submits that there were three invigilators in the examination hall and none of the students could have copied even for 30 seconds. The Petitioner was then asked to leave the college and was not even allowed to meet the Principal.

5. Thereafter, the University on 12th March, 2020 has declared the result of all the candidates except the Petitioner. The Petitioner claims that she does not endorse any unethical practice, and that she has been representing her class for the last three years. The Petitioner further states that she was 'bullied' into signing blank sheets and thereafter, the invigilator asked her to write the examination, if she wished to. The Petitioner expected that the University would hear her matter and give her justice before passing of the order dated 12th March, 2020. She received a show cause notice on 13th January, 2020, and claims to have sought a personal hearing, which was not afforded to her. Thereafter, on 28th January, 2020, she received an email asking her to visit the examination building to give a good conduct undertaking, and for counselling. The Petitioner states that the said email simply puts baseless allegations on her while seeking the good conduct undertaking. She accordingly submits that the result of the remaining papers ought to be declared.

6. The matter was first listed on 22nd April, 2020 on which date, considering the submissions of the Petitioner and the counsel for Delhi University who appeared on advance copy, the following order was passed:

"6. This Court has heard the submissions of the Petitioner, who appears in person and that of ld. counsel for the University of Delhi. The Petitioner has submitted, upon a query from the Court, that she is a meritorious student and had scored 96.25% in her 12th standard examinations. Her aggregate in the previous semesters is above 60%. She thus appears to be a meritorious student. Admittedly she has not been given a hearing in the proceedings pursuant to the show-cause notice.

7. The incident, which took place on 3rd December, 2019, and the proceedings in the show-cause would

need to be gone into after perusing the records of the Respondent - University of Delhi. Accordingly, at this stage, the Respondent is permitted to file a counter affidavit along with the relevant documents within a period of two weeks. On the next date, the University of Delhi shall also place in a sealed cover before this Court the result of the other three examinations where the Petitioner had appeared in her fifth semester. It is the Petitioner's contention that her results for the said three papers ought to be declared as she wishes to apply for further studies, since this is her final year in the B.A. course. This prayer would be considered on the next date."

The Petitioner expressed urgency as she claimed that she wished to apply for studies abroad and accordingly a short date was given. University's Submissions

7. Since the lockdown period was on, ld. counsel for the University submits that he could not file an affidavit but has produced before this Court various documents and has made his submissions. Advance copies of the documents were supplied to the Petitioner. Ld. Counsel submits that the Petitioner is guilty of completely misleading the Court. He relies upon the invigilator's report as also the various undertakings, which have been signed by the Petitioner. Ld. Counsel submits that the Petitioner has, in fact, signed an undertaking of good conduct and has also been counselled by the experts. Ld. Counsel alleges that the Petitioner has not disclosed the fact that she has admitted to have carried the notes for examination. He also relies upon the expert's report dated 29th January, 2020 submitted by an independent expert from Sri Aurobindo College, who has compared the answer sheets along with the notes which were seized and has come to the conclusion that the material was used by the candidate in answering the paper. Ld. Counsel further

submits that the Petitioner had agreed for further action to be taken against her in terms of the "Instructions For the Candidates Appearing in University Examinations" (hereinafter, 'Instructions'). The Counselling Committee, after interacting and counselling the Petitioner, had arrived at a conclusion that she was liable to be proceeded with as per 'Part C' of the 'Instructions', whereas since she apologized, the Committee recommended that she be proceeded under 'Part B'. It was as per the recommendation of the Counselling Committee that the impugned order was passed.

Analysis of documents and findings

8. After perusing all the documents filed by the Petitioner and the documents submitted by the University, it is clear that a meritorious student like the Petitioner has not been candid and had held back the relevant documents and important facts before this Court. The Petitioner did not disclose any of the letters written by her, including an email and several other relevant facts and documents. The Petitioner, who appeared in person, has admitted to signing the letter dated 3rd December, 2019. She also admits to having sent the email dated 16th January, 2020, signed the undertaking for good conduct dated 4th February, 2020, as also the UFM (unfair means) Counselling Proforma. In all these documents she has repeatedly admitted that she had taken notes into the examination hall.

9. The Petitioner tried to take a technical objection by relying upon email dated 28th January 2020, which called her to appear before the Counselling committee. The said email appears to have inadvertently mentioned that the good conduct undertaking and counselling, was in respect of the examination which was conducted in May - June, 2019, which was incorrect as it clearly

related to the December 2019 examination. The copy of the email dated 28th January, 2020 was also transmitted by her to the Court Master, and the same has been taken on record. When asked by the Court as to why she did not disclose all these documents in her writ petition, the Petitioner claimed that she was not legally trained. In the writ petition it has been categorically pleaded that half an hour into the examination, she voluntarily surrendered the notes to the invigilator. The said averment in the writ reads:

"3. That, the answer scripts were already distributed. That day, just like all other exams, petitioner had prepared notes. Those notes were like placards that petitioner used for revision. Those placards mistakenly stayed in her pouch. Her pouch has 2 pockets, she took out the pen from one of the pockets, but in a hurry and panic due to shortage of time, the petitioner forgot to check the other pocket and kept the pouch under the table. After around half an hour of commencement of the exam, the petitioner realized that she had brought the notes by mistake with her in a hurry, inside the hall. She called the invigilator and gave it to her."

10. The true facts are however to the contrary. The exam was conducted on 3rd December 2019. On the said day, after the invigilator found notes in her possession, the Petitioner wrote a letter on-spot, in her own handwriting which reads as under:

"Sir/Ma'am, I, Aarzoo Aggarwal, daughter of Mahesh Aggarwal, studying B.A.(H) IIIrd year, Examination Roll No.17014510001. My answer sheet was taken by the invigilator as a case of cheating. I by mistake brought notes with me inside the exam hall. These notes have full fledged chapters just for learning,

these notes can not be used for cheating as it will consume lot of time. I have been preparing them for all my subjects. I was already late for the exam and it was quite late to submit it. I panicked and just kept it with me. However, my track record is clean, no past cheating or indisciplinary case. I did not use these notes in the exam."

11. The invigilator submitted a report to the authorities on the same day which is signed by the invigilator, co-signed by another invigilator, and also bears the signatures of the Superintendent of Daulat Ram College. A perusal of the invigilator's report on the date of examination shows that the invigilator found the bundle of papers i.e., her notes, with the Petitioner, at about 12:15 p.m. The examination commenced at 9:30 a.m. and was to end at 12.30pm. Thus, it was just 15 minutes prior to the end of the examination that the invigilator detected the notes which the Petitioner had in her possession. It is clear from a perusal of the invigilator's report that she had kept the notes below her answer scripts. Thus, the case made out in the writ petition that the Petitioner had voluntarily surrendered her notes was factually wrong.

12. Thereafter, the University referred a matter to an expert in order to compare the notes which were seized with the answer sheet of the Petitioner. The expert report has also been submitted by Swagat Rout from Sri Aurobindo College. The said report clearly opines that the material has been perused and that the notes which were seized were relevant and were used by the examinee in answering question 3(A). The expert gives a categorical affirmation that the material has been used by the candidate.

13. A show-cause notice was, thereafter, served by the University upon the Petitioner on 13th January, 2020. In response to the said show cause notice, the Petitioner replied by email dated 16th January, 2020 as under:

"Case No.148 Roll No.17014510001 Date : 16 January 2020-05-11 Respected sir/maam I, Aarzoo Aggarwal, student of Daulat Ram College studying B.A.(H) Economics have been given a notice concerning use of inappropriate means during examination.

I would like to sincerely apologize for the same. The chits found on my desk were my notes which I make for not only for the paper concerned, but also other exams. I didn't use the chits in the paper. I brought them by mistake with me, without any intention to use them. By the time I found them with me, it was already late to submit them. In fear of being charged with cheating I could not submit them to the investigator.

Moreover, being a third year student I can confidently claim that my past record has been clean. I have never adhered to any means of cheating, neither in internals nor in external examinations. The university may check the same with my teachers and college. I have never been involved in any malpractices.

Therefore I request the university to please consider my case as a mistake that I couldn't admit due to fear and forgive me for this mistake. I will be highly obliged."

14. A perusal of the letter written on-spot dated 3rd December, 2019 by the Petitioner, as also the email dated 16th January, 2020 clearly shows that the averments made by her in the writ petition are conscious and deliberate false statements. However, in both the letter and in the email extracted above, it is claimed that she did not use the notes and that it was already too late to submit them to the invigilator by the time she realised she was carrying them. In fact, in these documents, the Petitioner admits that due to the fear of being charged

for cheating, she did not even submit them to the invigilator.

15. The email dated 28th January, 2020, by which she was asked to appear for counselling and for furnishing a good conduct undertaking is merely mentioned in paragraph 10 of the writ petition, however, a copy of the email was not attached with the writ petition. The Petitioner also failed to mention in the writ petition that she had been counselled and that she had signed the 'Undertaking For Good Conduct' and 'UFM counselling proforma'. During the course of hearing, upon a specific question put by the Court, she admitted her signatures on both these documents, which are dated 4th February, 2020.

16. Both these documents are relevant and are extracted below. The 'Undertaking For Good Conduct' reads as under:

The undertaking extracted above bears the notation of the counsellor - Professor Shri K. S. Rao, who is a member of the Examination Disciplinary Committee ('EDC'). The above undertaking clearly shows that the EDC was of the opinion that the Petitioner deserved to be proceeded as per "Part C" of the 'Instructions'. However, in view of the Petitioner's apology, the Committee recommended that she be proceeded under "Part B" which was a lower punishment.

17. The UFM counselling proforma confirms that she has received counselling on the demerits of adopting unfair means, and that she would not adopt any unfair means in examination in future. The same is extracted below:

18. After the issuance of show cause notice and conduct of the Counselling for the Petitioner, the University issued the impugned order dated 12th March 2020 cancelling the entire examination of the Petitioner for the 5 th Semester, as per 'Part B' of the 'Instructions'. The said decision reads:

" MEMORANDUM It has already been communicated through correspondence on the subject that as per report received from the Superintendent of the Examination Centre where Aarzoo Aggarwal has appeared at the B.A (H) Economics Examination- 2019, the said candidate has resorted to the use of unfairmeans/disorderly conduct during the aforesaid examination.

The said candidate had been issued a detailed show-cause notice on the basis of the report of the Superintendent the report of the expert who had gone through the material recovered from his/her possession as also the statement, if given, at the time of the incident.

After having considered all documents on record including the personal hearing (if asked and granted by the Examination Disciplinary Committee) the Executive Council of the University of Delhi having been satisfied to the findings of the Examination Disciplinary Committee has decided that for the use of unfairmeans/disorderly conduct, the said candidate be awarded punishment under Clause B of the guidelines circulated to them/ her along with the admission ticket. The said clause reads as follows:-

CLAUSE 'B': CANCELLATION Of ENTIRE EXAMINATION In consequence of the above decision of the Executive Council, the entire Semester Examination Nov/Dec-2019 (in all paper and subject) taken by the said candidate under Roll No. 17014510001

issued to him/her for the examination has been CANCELLED. Further, if the candidate was also appearing in any paper(s) of re-appear in that case the paper(s) of reappear shall be cancelled. He/She would be eligible to be admitted to this examination afresh as and when held subsequently only if otherwise eligible.

The said candidate is advised to contact the principal of the College last attended by him/her or the Head of the Institution to which he/she was enrolled."

19. A perusal of the 'Instructions' makes it clear that in case candidates resort to unfair means or disorderly conduct, there are various consequences which are prescribed. Three of the relevant consequences `A', `B' and `C' read as under:

      Part                 Offence                           Punishment
      A    (i) Talking to another candidate or any     Cancellation of the
           person inside or outside the                examination in the
           Examination       Hall    during    the     paper of the day of
           examination hours, without the              incident only and
           permission of a member of the               declaring the result on
           supervisory staff,                          the basis of the
           (ii) Committing breach of any other         performance of the
           direction given to candidates.              candidate     in    the
                                                       remaining
                                                       papers/subjects. The
                                                       candidate shall be
                                                       deemed      to    have
                                                       secured zero mark in
                                                       the paper so cancelled.
      B      (i) Keeping in possession papers, books Cancellation of the

or notes or is found having written notes entire examination on the question paper or on any part of the clothes worn by him/her or on a part of his body or table or desk or is found in possession of ruler and/or

instruments like: Set-squares protractors, slide rules, etc. with notes written on them and which notes, papers or the material written on ruler or instrument, or on the question paper or on clothes worn by him/her or any part of his/her body, table or desk could be helpful or of assistance to him/her in answering the paper etc. he/she is taking or could be helpful or of assistance to other candidate in that examination hall, but that candidate has not attempted to take any assistance himself/herself or give any assistance any other candidate from such material.

(ii) Intentionally tearing off the answer book or a part thereof or a continuation sheet.

(iii) Deliberately disclosing his/her identity or making any distinctive mark in the answer book for that purpose in contravention of any general rules in this behalf.

(iv) Using abusive or obscene language in the answer book.

(v) Misbehaving in connection with the Superintendent, the Invigilator on duty and the other Staff working at the Examination Centre or with any other candidate in or around the Examination Centre before, during or after the examination.

(vi) Leaving the examination room before expiry of half an hour without the written permission of the Superintendent of the Examination and/or without handing over the answer book to the Invigilator/Incharge and/or without signing the attendance sheet.

C Keeping in possession papers, books or Cancellation of the notes or is found having written notes entire examination on the question paper or on any part of taken by the candidate the clothes worn by him/her or on any during the year and part of his/her body or table or is found further debarring in possession of foot rule and/or him/her from instruments like set-squares, appearing at any protractors, slide rules with notes examination of the written on them and which notes, University within a papers, books or the material written span period of one year on foot rule or instruments, or on the (12 months) question paper or on clothes worn by him/her or any part of his/her body, table or desk etc., could be helpful or of assistance to him/her in answering the paper he/she is taking or could be helpful or of assistance to other candidates in the examination hall and if the candidate has made actual use of material himself/herself or given assistance thereof to any other candidate during the examination.

(ii) Assisting or attempting to assist in any manner whatsoever any other candidate in answering the question paper during the examination hours.

(iii) Where the candidate takes assistance or attempts to take any assistance from to other candidate or any other person or from any book, paper, notes or other material in answering the question paper during the examination.

(iv) Where the answer book of the candidate shows or otherwise established that he/she has received or attempts to receive any help from any other candidate or any source in a malafide manner or has given help or attempted to give help to another

candidate in a manner during the examination hours.

(v) Gross mis-behaviour i.e. threatening with physical force in connection with the examination with the Superintendent , the Invigilator on duty or any other staff working at the Examination Centre or with any other candidate in or around the Examination Centre before, during or after the Examination.

(vi) Where the candidate disturbs the examination or attempts to do so.

(vii) Where the candidate on being challenged or searched during the course of examination by the Superintendent or any member of the examination staff on duty, swallows a note or paper or runs with it or is guilty of causing disappearance or destroying any such material with the intention of obliterating the evidence of his/her having possessed material.

20. As per the above extracted `Instructions', punishment is prescribed for students resorting to unfair means.

• As per 'Part A', if a candidate is found talking during examination hours or committing breach of any direction given to the candidates, the same would result in cancellation of that specific examination. The candidate would be deemed to have scored `zero' marks in the cancelled examination and his/her results would be declared on the basis of his/her performance in the remaining papers/subjects. • The punishment increases if under 'Part B' a candidate is found with written notes on his/her person or in his/her possession which could be

of assistance in the examination to the candidate or any other candidate but the candidate has not attempted to take or give any assistance, or if the candidate is found indulging in any misconduct mentioned in 'Part B'. In such a situation, the entire examination would be cancelled - meaning thereby that the candidate would have to re-appear in all the examinations of the said semester once again. • 'Part-C' contemplates a greater degree of misconduct and prescribes a harsher punishment for the same. Under this part, if written notes, which could be helpful in the examination to the candidate or any other candidate, are found in the candidate's possession or on his/her person and the candidate has made actual use of the notes for himself/herself or another candidate, or if the candidate indulges in any misconduct described under 'Part C', the entire examination for the year would be cancelled for the candidate. The candidate would also be debarred from appearing in any examination of the University for a period of one year.

21. By these `Instructions' all candidates were made aware of the consequences of resorting to unfair means. In any event, resorting to unfair means in examinations is downright impermissible and ought not to be encouraged at any cost. The Petitioner was no exception. After appearing before the Counselling committee and after receiving their counselling, she apologised, leading to imposition of a lesser punishment by the University - i.e., instead of punishment under 'Part C', she was proceeded under 'Part B'. The Petitioner has not merely indulged in unfair means, as is evident from the documents itself, but has also tried to mislead this Court in the writ petition.

22. Initially, while passing the order dated 22nd April, 2020, this Court had taken note of the past performance of the Petitioner in her Board examination, as also in the previous semesters, and after believing her version that she had voluntarily surrendered the placards to the invigilator, was sympathetic to her while calling for her result in the other three examinations in a sealed cover.

23. The plea of natural justice i.e., that the Petitioner was not heard in response to the show-cause notice, has also turned out to be a specious plea. The Petitioner had written a reply to the show cause notice, but she concealed the said reply. The Petitioner has also appeared before the EDC and signed the 'Undertaking For Good Conduct'. She has apologized after receiving counselling and the Committee has also considered her case sympathetically. The University could do no more. None of these facts were disclosed in the writ petition or during oral submissions. The case of the Petitioner, as pleaded in the writ petition, is false to her knowledge and conceals more than it reveals.

24. In Director (Studies) v Vaibhav Singh Chauhan (2009) 1 SCC 59 the Supreme Court while dealing with malpractice in examinations, observes:

"9. In this connection learned counsel for the respondent submitted that there was no evidence to show that the respondent had actually used the said slip of paper found in his possession. In our opinion, this is wholly irrelevant. All that is relevant is whether the slip of paper found in the possession of the examinee pertained to the examination paper in question. If it does, then it is a malpractice. In this particular case, the said slip of paper was brought into the examination hall and was found to be in the possession of the examinee while the examination was going on. Whether the respondent actually used that slip or not is irrelevant. This view finds support

from the decision of this Court in C.B.S.E. v. Vineeta Mahajan and Anr. AIR1994 SC 733 . Moreover, this is also borne out by Sub-rule (1) of the Examination Rules, quoted above.

10. In the present case there is no doubt that the slip of paper contained material pertaining to the examination in question. Hence, we cannot accept the submission of Shri Lalit Bhasin that the respondent was not guilty of malpractice since he was not found to have used that piece of paper. ...

18. The learned Single Judge in the interim order has then emphasized on the fact that the respondent had apologized and had confessed to the possession of the chit. In our opinion this again is a misplaced sympathy. We are of the firm opinion that in academic matters there should be strict discipline and malpractices should be severely punished. If our country is to progress we must maintain high educational standards, and this is only possible if malpractices in examinations in educational institutions are curbed with an iron hand. ...

25. Moreover, the respondent/examinee has been given the minimum punishment under the rules and no lesser punishment could have been imposed, except in exceptional circumstances. It is true that when a person confesses his guilt it is often treated as a mitigating circumstance and calls for lesser punishment if that is permissible. However, this is not an absolute rule and will not apply in all kinds of cases. In particular, as stated above, in academic matters there should be no leniency at all if our country is to progress. Apart from that, the respondent had been given the minimum punishment under Rule 9.2 and we fail to

understand how a lesser punishment could have given to him, except by exercising discretion in a particular case. This is not that kind of exceptional case, and no sympathy was called for. ...

33. Before parting with this case, we would like to refer to the decisions of this Court which has repeatedly held that the High Court should not ordinarily interfere with the orders passed in educational matters by domestic tribunals set up by educational institutions vide Board of High School & Intermediate Education, U.P. Allahabad and Anr. v. Bagleshwar Prasad and Anr. [1963] 3 SCR 767 , Dr. J.P. Kulshrestha and Ors. v. Chancellor, Allahabad University and Ors. (1980)IILLJ175SC , Rajendra Prasad Mathur v. Karnataka University and Anr. [1986] 2 SCR 912 . We wish to reiterate the view taken in the above decisions, and further state that the High Courts should not ordinarily interfere with the functioning and order of the educational authorities unless there is clear violation of some statutory rule or legal principle. Also, there must be strict purity in the examinations of educational institutions and no sympathy or leniency should be shown to candidates who resort to unfair means in the examinations."

25. The documents produced by the University show that resorting to unfair means does not elude even meritorious students. This case is an example of why the merit or otherwise of a student in the past is completely irrelevant while considering malpractices such as these. This Court ideally could have proceeded with the Petitioner with stricter action, considering the false submissions made, wrong affidavit that has been filed, as also the incorrect submissions made during the oral hearing. However, considering the age of the Petitioner, and the fact that she is still a student, this Court, while

taking note of the unethical conduct of the Petitioner, has decided not to take any further action against the Petitioner.

26. The present case is definitely one which does not call for interference especially in exercise of extraordinary Constitutional remedies, in favour of the Petitioner, who has resorted to unethical practices and has not been truthful to this Court. Accordingly, while confirming the punishment meted out to the Petitioner, the present writ petition is dismissed. The result for the remaining three papers which has been submitted by the University to the Court Master, has been perused by the Court. However, this Court is of the opinion that no directions in respect of the same are called for. The University's decision to cancel the entire examination is upheld.

27. The writ petition is dismissed in the above terms. All pending applications are also disposed of.

PRATHIBA M. SINGH JUDGE MAY 26, 2020 dk/Rg

 
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