T.S.Misra, J. - (1.) The petitioner was student of Shia Degree College, Lucknow. He joined LL.B. First Year Class in that college m the session 1977-78. After successfully passing the examination of the First he was admitted to LL.B. Second Year Class and pursued the courts-thereof in the Session 1978-79. The examination for the Second Year LL.B. or the Session 1978-79 took-place in the months of Mar April, 1980. The Petitioner appeared at the said examination and was assigned roll No. 10294. On 1st April, 1980 the petitioner appeared at the examination of Legal theory Comparative Law in room No. 21 of Shia Degree College. In his petition it is alleged that his seat was near the window of the room and just near the a the invigilator. While he had already attempted two questions and was concluding the answer of the third question, he was interrupted by 4 or 5 persons Flying Squad of the Lucknow University who asked the petitioner to stand up and made the search of the body of the petitioner When nothing could be found on his person, one of the persons present their picked up a piece op ed paper lying near the window and then a statement of the petitioner was recorded by the Chief Invigilator. The learned counsel for the University has pieced before us all the relevant papers and documents pertaining to proceeding taken against the petitioner. From those papers so placed before us we find that the statement of he petitioner was recorded on 1st April , spot' and it was to the following effect : "This paper is found near my table. This paper is not deal with any question of the paper." It seems that the Chief Invigilator immediately served a show-cause notice dated 1st April, 1980 on the petitioner for using or attempting to use unfair means at the said examination. In that notice it was said that the petition found acting in a manner detailed in para 2 below while answering paper No. 1 legal Theory LL.B. II year Examination at Shia College, Lucknow The charge was in the following terms:- "Having in possession during the examination hours, material pertaining to syllabus of the question paper of the day, but not used. The petitioner submitted his reply to the said show-cause notice on 2nd April, 1980 copy of which is annexure 1 to the writ petition. Then the Unfair M Sub-Committee gave its findings which are as under Having gone through the report of the invigilator/checking squad and the reply to the show-cause notice the findings of the committee areas follows The material attached herewith irrelevant to the syllabus but has no been used by the Candidate." The unfair Means Sub-Committee took a decision as under:- "Examination of the paper in question cancelled. This decision of the Unfair Means Sub-Committee was communicated by the registrar of the Lucknow University to the petitioner vide annexure 4. The petitioner being aggrieved by the said decision has invoked jurisdiction of this Court under Art. 226 of the Constitution and has prayed that the said show-cause notice annexure 1 and the said order communicated by annexure 4 be quashed. He has also prayed for a writ, order of direction in the nature of mandamus commanding the opposite parties 1 to 4 to declare his result after getting his answer books examined. He has also prayed for any other appropriate writ, order or direction which this court may deem just and proper in the circumstances of the case. This petition was admitted on 11th December, 1980. This Court then ordered the diversity to file a counter-affidavit within three weeks. The petitioner was allowed a weeks time to file a rejoinder-affidavit thereafter. The opposite-parties were duly served with the notice of the petition inasmuch as the copies of the petition were received by Sri Umesh Chandra representing the opposite-parties 1 to 4. A perusal of the record shows that none of the opposite parties have cared to file any counter-affidavit in this case. Thus the averments made in the petition by the petitioner have remained un-controverted. The petition was, however, opposed by the opposite-parties in the sense that Sri Umesh Chandra Advocate appeared on their behalf today and made oral submissions. We have carefully gone through the petition and the relevant papers annexed it It the writ petition. We have also gone through the papers placed before us by Sri Umesh Chandra. We have also considered the oral submission made by the learned counsel for the opposite-parties as well as the submissions made on be half of the petitioner.
(2.) As would appear from the narration of facts hereinabove, the petitioner was answering the question of paper 1 of LL.B. Second Year examination of the year 1980 when he was suddenly confronted with certain persons said to constitute a Flying Squad of the Lucknow University. They searched the person of the petitioner and found in being which could be said to be incriminating so far as the examine was concerned. They, however, found one chit of paper lying on the ground near the table of the petitioner and it was then said, as would appear from the show-cause notice, that the paper was in possession of the petitioner and it pertained to the syllabus of the question paper of the day though the paper was not used for the purpose. The immediate reply given by the petitioner was that the paper was found near his table. In other words, it was not actually in his possession. This is also stated by the petitioner in his writ petition in specific words which fact remains un-controverted. Therefore, we have to accept the contention that the incriminating paper in question was found lying near the table of the petitioner and was not actually found in his possession when the Flying Squad discovered the said paper. The petitioner also stated that the piece of paper in question had no concern with any question set in the examination paper in question. Subsequently, on the next day, i.e. on 2nd April, 1980 the petitioner gave a detailed reply and in that too he stated that when the Flying Squad came to his room on 1st April, 1980 the examinees from behind his seat threw chits towards the window so that they may go out of the room. One of chits fell near the table of the petitioner and later on it was picked up by the Flying Squad. The petitioner further stated in his explanation dated 2nd April, 1980 that he tried his level best to bring to the knowledge of the Flying Squad true facts but they did not listen to him. He says that as it was lying near his table, the Flying Squad people presumed that it belonged to him. Thus the consistent case of the petitioner had been that the paper in question was not on his table, that it was not found in his possession, and that somebody from behind attempted to throw it out of the window but incidentally it fell within the room near his table and, therefore, the Flying Squad presumed that it belonged to the petitioner though in fact, according to him, it did not belong to him, The Unfair Means Sub-Committee, however, recorded the finding quoted hereinabove to the effect that the material was relevant to the syllabus and had not been used. Incidentally this Unfair Means Sub-Committee also did not record any specific finding as to whether this paper was actually found in the possession of the petitioner. Such a finding was necessary because of the nature of the charge levelled against the petitioner. The learned counsel for the University tried to support the decision of the Unfair Mean Sub-Committee on the ground that the petitioner was given reasonable opportunity of being heard and that the Unfair Means Sub-Committee has found as a fact that the petitioner was guilty of using unfair means. He also placed reliance on Section 29, U.P. State Universities Act, 1973, in this behalf. On the other hand, the learned counsel for the petitioner submitted that the procedure laid down in the Regulations governing the conduct of examinations copy of which is annexure 3 to the writ petition had not been followed, hence the order imposing the penalty was. bad in law. Sri Umesh Chandra submitted that the said Regulations were not applicable to the case of the petitioner. This submission is also disputed by the learned counsel for the petitioner.
(3.) Section 29, U.P. State Universities Act, hereinafter called the Act provides that there shall be an Examinations Committee in the University the constitution of which shall be as may be provided for in the Ordinances. Subsection (3) of Section 29 says that the Examination Committee may appoint such number of sub-committee as it thinks fit, and in particular, may delegate to any one or more persons or sub-committees the power to deal with and decide cases relating to the use of unfair means by the examines. The submission on behalf of the University was that by reason of the provisions contained in Section 29 of the Act an Examinations Committee has been constituted and the Examinations Committee has also to appoint and has to delegate its powers to the sub-committee to deal with and decide cases relating to the use of unfair means. It was urged that the Unfair means Sub-committee has the requisite power and authority to decide the case of the petitioner relating to the use of the unfair means in examination in question.;