B. L. Yadav, J. - (1.) SHARAD Kumar, a student of M.Sc. Previous (Chemistry), has filed the present petition under Article 226 of the Constitution of India against the order dated 28-3-85 (Annexure-5 to the petition), cancelling the result of the petitioner of 1984 M.Sc. Previous (Chemistry) Examination on the ground of use of unfair means. The petitioner has prayed for a writ of Certiorari quashing the impugned order and for a writ of Mandamus commanding the respondents to permit the petitioner to appear in M.Sc. Final Examination which was scheduled to be held from 1st July, 1985.
(2.) THE facts of the case are few and simple and they are these. THE petitioner appeared in M.Sc. Previous (Chemistry) Examination with Roll No. 550 from the Kanpur University. He solved the Chemistry I Paper (Inorganic Chemistry) and did not use any unfair means in the examination nor there was any report from the Centre Superintendent or from the Flying Squad to that effect. But his result was withheld. THE father of the petitioner sent a letter on 13-12-84 to the Vice-Chancellor and again on 25-3-85 the petitioner submitted a representation to the Vice-Chancellor through the Principal of V. S. D. College, Kanpur to the effect that he has been unofficially informed that his result of M.Sc. Previous (Chemistry) Examination of 1984 has been withheld, when he never used unfair means in the said examination. THE petitioner made several efforts to know the reason as to why his result has not been declared. But he received no response. He was not given any opportunity of being heard and if some decision was to be taken against him the petitioner must have been heard. On the representation of the petitioner (Annexure-3 to the petition), the Principal of the College submitted a report on 27-3-85 (vide page 8 of the paper book), that according to the record of the Principal the petitioner was not caught using unfair means. But ultimately by the impugned order dated 28-3-85 the result of the petitioner of M.Sc. (Previous) Examination of 1984 was cancelled. On 22-5-85 this Court directed the learned counsel for the University to file a counter affidavit till 10-7-85 and thereafter rejoinder affidavit was to be filed within ten days. In the meantime the petitioner was permitted to appear in M.Sc. (Final) Examination commencing from 1-7-85, but his result was not to be declared till further orders of this Court. The petition was admitted and notices were issued on 23-7-85. The Affidavits have been exchanged. The learned counsel for the parties agreed that the petition may be decided on merits. We, now, propose to decide the same. Sri H. N. Tripathi, learned counsel for the petitioner urged that there was no report of the Centre Superintendent nor the Flying Squad had made any report against the petitioner nor he was caught using unfair means during the examination. No opportunity of hearing, whatsoever, was given to the petitioner before cancelling his result by the impugned order. It is only after filing the counter affidavit that in para 3 thereof, (in reply to paras 1 to 9 of the writ petition), it has been disclosed that the Examiner, while examining the answer books pertaining to M.Sc. (Previous) I paper, submitted a report to the Examination Committee that the petitioner has written answers of M.Sc. Previous (Chemistry I paper) at ease and convenience and that the language used in the answer book appears to be similar to some standard book. It is better to quote the actual words as under : (In Roman : Uttar Pustika suvidha se baith kar Iikhi gayee hai. Bhasha ka Prachalit pustak ki bhasha se samya hai). The petitioner could not get any opportunity to show his innocence and bona fides in answering the questions in that Paper. The impugned order was passed in violation of the principles of natural justice. It was accordingly prayed that the impugned order may be quashed and the result of M.Sc. (Previous & Final) Examinations may be declared.
(3.) SRI Radhey Shyam, the learned counsel appearing for the University, was candid enough to accept that it was a fact that the petitioner was not given any opportunity of being heard, nor even the reports of the Examiner as contained in para 3 of the counter affidavit as indicated above, were given to the petitioner nor he was given any opportunity of hearing before passing the impugned order. But with all emphasis and tenasity he urged that the result has been correctly cancelled and in these circumstances no opportunity of hearing was required to be given when the report of the Examiner was received later on. The impugned order requires no interference as the same was based on conclusions of the Examination Committee and it was outside the jurisdiction of the High Court to interfere with those conclusions. He relied heavily on a Full Bench decision of this Court in Ghazanfar Rashid v. Secretary, Board of H. S. & Intermediate Education, U. P. Alld., 1979 AWC 380. Having heard the learned counsel for the parties at considerable length, We are of the opinion that the. submissions urged on behalf of the petitioner cannot be said to be without substance. The point for determination is as to whether the petitioner was given any opportunity of hearing before passing the impugned order cancelling the result of the petitioner of M.Sc. Previous (Chemistry) Examination of 1984. The petitioner appears to be conscious enough rather serious to make representations to the Vice-Chancellor of the University with a view that he was at a loss as to why his result was not being declared nor he could know as to why his result has been withheld. We have perused the counter affidavit but there is no reply to the representation made by the petitioner. It appears that inspite of representations having been made by the petitioner no reply was given to him. In counter affidavit also in para 5 while replying paras 10 to 26 of the writ petition it was admitted that no show cause notice was issued to the petitioner before cancelling his result. It is better to quote para 5 of the counter affidavit which is as under : " 5. That in reply to averments made in paras 10 to 26 of the petition, it is stated that it is admitted that no show cause notice was issued to the petitioner, before cancelling the result but the report submitted by the Examiner could not have been explained by the petitioner and a perusal of the answer book will be sufficient proof of the report submitted by the Examiner. The answer book shall be produced at the time of the hearing of the petition. " ;