- (1.) THIS appeal is directed against the judgment and order dated 16. 10. 2008 of the learned Single Judge whereby the learned Single Judge allowed the writ petition filed by respondent No. 1 herein (hereinafter referred to as "the respondent" or "the student") by quashing the decision of the appellant - University by which the University had held the respondent guilty of misconduct at the examination for Second Semester of First LL. B held in April 2008 and giving further directions.
(2.) THE appellant - University conducted examinations for the Second Semester of First LL. B. from 21. 4. 2008 to 25. 4. 2008. The respondent appeared at the said examination in all the five papers. On 25. 4. 2008, the examination was for "banking and Negotiable Instruments Act". The examination was from 10. 30 AM to 1. 30 PM. The appellant - University issued notice dated 9. 5. 2008 calling upon the respondent to give his explanation on 11. 5. 2008 (Sunday) at 12. 00 noon regarding the incident which took place on 25. 4. 2008. The notice was issued on the basis of statements of four persons i. e. University observer - Smt. Rajeshree Mengar, College Principal, Senior Supervisor and Junior Supervisor. It was mentioned that when the examination in Banking Law was going on, on 25. 4. 2008, as per the statements of the above four persons writing was found on the foot-ruler recovered from the petitioner and that the respondent had accordingly committed breach of the instructions issued to the candidates and had thus adopted unfair means at the examination.
(3.) THE notice was received by the respondent late in the evening on Friday, 9th May 2008. Aggrieved by the above notice, the respondent challenged the same by filing a writ petition before this Court being Special Civil Application No. 7292 of 2008. The petition was affirmed on 10. 5. 2008 and presented before the Registrar (Judicial) early in the morning of 11. 5. 2008. The respondent (original petitioner) also addressed a letter dated 10. 5. 2008 to the University objecting to the short notice period and calling for various information, documents and material including the foot-ruler, which was relevant to the inquiry. The petitioner's stand in the said petition particularly in paragraph 14 of memo of the petition was as under :- "14. The petitioner submits that on 25th April 2008, though the petitioner had not involved himself in any misconduct, illegality or irregularity, an absolutely unsustainable and untenable allegation was sought to be levelled by the supervisor against the petitioner to the effect that the petitioner had in his possession a plastic foot ruler (scale) of about 6 inches, which allegedly had some scribbling on it. The petitioner respectfully submits that the same is an absolutely false allegation and as a matter of fact, the petitioner would like to narrate the sequence of events, which transpired in the class room on 25th April 2008. (i) On the said date the petitioner had presented himself at 10:30 a. m. for examination at Siddharth Law College, Gandhinagar. (ii) At around 11:15 a. m. a lady invigilator had accosted another examinee girl and was admonishing her in a very loud language which was disturbing. (iii) The petitioner had requested the lady invigilator to speak softly which, as is reasonably presumed and bonafide believed by the petitioner, angered the lady invigilator. (iv) The lady supervisor came to the petitioner at his desk after a few minutes and started checking the petitioner's belongings. The lady supervisor opened the pencil box and took out a six inches scale from the box. The scale incidentally belonged to the 6 year old son of the petitioner, which was brought by the petitioner thinking that it might be useful in the examination. The foot ruler had been brought for the purpose of drawing lines to answer probable questions, if any, in the question paper by a nature which required to be given in a tabular form for distinguishing features of any particular question or subject. (v) The lady supervisor having found that there was nothing objectionable against the conduct of the petitioner, took hold of the foot ruler and started accusing the petitioner. Said accusations were incorrect and false accusations. The petitioner therefore objected to her conduct, which was apparently to victimize the petitioner for petitioner having gathered the courage as a student to intervene when the said lady invigilator was admonishing another examinee girl in a loud language. (vi) The petitioner submits that the lady invigilator without doing anything further or without putting any questions, straightaway walked outside the class room with the scale and also asked the petitioner to come out of the room. The petitioner refused to do since there was nothing objectionable and the petitioner did not want to waste any time in the completion of the answer sheet to the question paper. On the petitioner's refusal to do so, the lady invigilator came back, snatched away the answer paper and walked off. The petitioner was shocked and surprised by such insolent and high-handed behaviour. After about 10 minutes, the petitioner was called outside the class room where the petitioner was met by the said lady invigilator and principal of the college. Without any rhyme or reason, the petitioner was told that the petitioner would get back the answer papers only after about half an hour so as to enable the petitioner to continue with the examination. In view of this, the petitioner strongly protested against the high-handed and arbitrary action, however, the answer paper was not given back to the petitioner till 12. 00 noon. After the petitioner was given the answer paper back, the petitioner was permitted to take up the examination and petitioner completed the answer paper in the balance time that was left. (vii) The petitioner submits that no statement worth the name either of the petitioner or of any other person namely, either the supervisor or the lady invigilator or the principal was recorded either in the presence of the petitioner or at the spot. (viii) That on conclusion of the examination time, the petitioner had deposited back the answer paper and left the examination centre assuming that the entire episode was treated as closed. (ix) The petitioner submits that before leaving the examination centre, the petitioner had requested the lady invigilator to return back the scale, which was taken away by her, on the ground that the same was belonging to the son of the petitioner aged six years. However, the lady invigilator refused to do so. ";