S.N.Srivastava - (1.) -Impugned herein is the office memorandum/order dated 10.4.2006 issued by the Examination Controller, Banaras Hindu University, Varanasi by which it was intimated to the petitioner that his entire examination in which the petitioner has already appeared or which he is likely to appear in future during the current examination has been cancelled.
(2.) THE facts forming background to the case are that on 5.4.2006 while the petitioner was writing answer to the question paper (Geography of B.A. Part III), a geometry box was recovered from his possession by the flying squad alleging further that on its obverse side, the offending copying material was found written. It is averred in the writ petition that the petitioner was not afforded any opportunity either by way of hearing or by requiring him to explain his stand and further that the entire proceeding was carried out in a post-haste manner and ultimately, by means of impugned order, he was intimated that his entire examination which he has appeared and which he is likely to appear in future has been cancelled upon consideration of the decision taken by Unfair Means Committee of the University. It is in this backdrop that the present writ petition has been preferred by the petitioner. The petition was argued on 11.8.2006 on which date the learned counsel for the University was enjoined to file counter affidavit and also to produce the entire material relating to unfair means on the date fixed. The entire original record relating to proceeding of Unfair Means Committee has been annexed to the counter-affidavit filed on behalf of the University. The learned counsel for the petitioner began his submission arguing that the petitioner was not afforded any opportunity of hearing and the entire proceeding was carried out in a rushed hole and corner manner against the provisions of the statute. The learned counsel denied having employed any unfair means in answering the question paper and also repudiated the claim that the geometry box belonged to me. Per contra, learned counsel for the University contended that the invigilator had recovered the geometry box from the possession of the petitioner on which copying material was found written and further that the material found written on the box related to question No. 3 of the paper being answered by the petitioner. The learned counsel also drew attention of the court to the fact the answer script was immediately withdrawn from the petitioner and he was supplied 'B' answer-sheet and requisite form was also filled up by the invigilator forming part of the flying squad and also the invigilator on duty in the prescribed column. He further contended that the petitioner was afforded sufficient opportunity of submitting written explanation in accordance with the provisions of the statute and further that he admitted in his own hand-writing that he had written the material on the box by mistake which is not related to the subject. He also drew attention to the report of the examiner which vouchsafed the fact that material had bearing on the subject-matter of the question paper being answered by the petitioner on the date.
(3.) AN exhaustive counter-affidavit has been filed annexing therewith the entire papers relating to the proceeding in the matter of use of unfair means by the petitioner have been annexed. ANnexure-1 is the form for reporting case of unfair practice. From a close scrutiny, it would appear that the incident relating to unfair means occurred on 5.4.2006 at 9 a.m. In the column requiring mention of details of specific complaint, the expression dated 5.4.2006 is "The candidate has written on the geometry box and enclosed signed by me." From a further scrutiny of the form it would also appear that the same day it was forwarded for necessary action by the two Invigilators. In the self-same form, it is written in the hand-writing of the petitioner that "Me Galti Se Box Par Likha Tha Vo Vishai Se Sambandhit Nahin Hai." This statement of the petitioner is shown to have been written in the presence of the invigilator and it also bears the signature of the two invigilators. In part C of the Form, there is a note appended by the superintendent of Examinations to the effect "Forwarded for necessary action". This note also bears the date 5.4.2006. ANnexure-C.A. II is the Certificate of Scruinty bearing signature of the examiner and it would appear that the examiner has certified the same day, i.e., 5.4.2006 that the resource material is related to the concerned examination and that the examinee had actually made use of the resource material in his answer book in question No. 3. It would further appear from its perusal that the Unfair Means Committee held the meeting on the same day, i.e., 5.4.2006 in which decision was taken to cancel the entire examination. In the same annexure is contained the proceeding of Unfair Means Committee in which it is shown that eight members had participated. The proceeding of Unfair Means Committee is excerpted below : "The candidate was given due opportunity to explain his version through Schedule I Part B (Unfair means form), which was duly considered by the Committee. The committee also considered the reports/charges made against the examinees as detailed. Further committee also scrutinized the relevant papers on record and the concerned answer books. The recommendations made by the Committee are serialized in the ANnexure-1." Though in all eight members are shown to have participated in the meeting, the proceeding bears only three signatures. Before analytically examining the matter, it would be appropriate to acquaint myself with the relevant rules contained in the statute of the University which are quoted below : "1.13.2. No candidate shall bring with him into the examination room/hall any book, notes or, other materials capable of being used by him in connection with the examination, nor shall communicate to or receive from any other candidate any information in the examination room/hall. 1.13.3. No candidate shall assist or receive assistance from any other candidate at/in examination or adopt any unfair means to further his/her interest in connection with an examination. 1.13.4. No person shall adopt any unfair practice to further or adversely affect the interests of an examinee or indulge in acts which interfere with the proper conduct of examinations. 1.13.6. The superintendent of the examinations shall give him/her an opportunity to submit a written explanation on the prescribed form............ xxx xxx xxx 8.13.8. In the event of detection of use of unfair means by a large number of examinees or in the event of refusal by examinee to give statement, the invigilator/superintendent shall submit a confidential report to that effect to the controller of examinations and the University shall take suitable disciplinary action against the examinee on the basis of confidential report. In such cases the names of the Invigilator/superintendent making the report shall be kept confidential. 8.13.9. The written explanations submitted by an examinee alleged to have violated the provision of clauses 2, 3 and 4 a confidential report under the provisions of clause 8 shall be placed before the Vice Chancellor for suitable disciplinary action. 8.13.10. If the allegations against an examinee is found correct he/she will be liable to disciplinary action. ;