D. K. Seth, J. - (1.) A notice to show cause was issued by the respondent University to the petitioner on 9th October, 1995 (Annexure I to the writ petition) alleging that "hand-written small paper" was found in possession of the petitioner. The petitioner submitted a specific reply alongwith the report of the Superintendent of the Examination Centre categorically denying that unauthorised material was found in his possession. By order dated 7th February, 1996, the petitioner's result of B.Sc. Part I Examination for the year 1995 was cancelled on the ground that a hand-written chit was found in the Answer Book of the petitioner though the same was not used in answering any of the question. The said order dated 7th February, 1996 has been challenged by means of the present writ petition.
(2.) MR. Arun Tandon, learned counsel for the petitioner, refers to relevant provisions of the Allahabad University Ordinance in support of his contention and contended that the chit alleged to have been found in the answer script cannot be said to be a possession of unauthorised material nor the petitioner may be termed as a candidate found in possession for the purpose of adopting unfair means by the petitioner. Inasmuch as according to him, finding of chit in the answer book at a much later date outside the Examination Hall does not come within the ambit of the specific provision of Chapter XXVIII of the University Ordinances particularly in view of the definition contained in Clauses 1.2 (A), (B) and (D) and Clause 1.3. Therefore, the order impugned cannot be sustained. He also challenges the show cause notice on the ground that it has not disclosed any fact on account of which the petitioner was unable to give appropriate reply and defend his cause. Mr. P. S. Baghel, on the other hand, contends that finding of chit in the answer script means that the chit was in possession of the petitioner in the Examination Hall and was kept in the answer book though may not have been used. Therefore, the same comes within the definition of 'unfair means' and possession of unauthorised material. According to him, therefore, during the examination, the petitioner was in possession of unauthorised material though not detected in the Examination Hall for which Clause (D) could not be complied with. Even if, according to him, Clause (D) is not complied with, the same could not be attracted on account of non-detection, even then it cannot be said that the chit does not come within the description of possession of unauthorised material. According to him, if it comes within the meaning of possession of unauthorised material, then it would, by necessary implication, mean the petitioner a candidate in possession of unauthorised material found at the time of the examination of the answer script. Simply because the petitioner could not be detected, the responsibility cannot be avoided by the petitioner. After hearing lengthy arguments advanced by the respective counsel relying on various provisions of law as well as decisions, in order to appreciate the situation, it is necessary to refer to the relevant provisions of law governing the subject particularly Chapter XXVIII of the Allahabad University Ordinance. So far as the quantum of punishment is concerned, the same is not disputed. The dispute is with regard to the finding of guilt of the petitioner in the facts and circumstances of the case in view of the relevant provisions with regard to which counter arguments have been advanced by the learned counsel for the parties against each other.
(3.) CHAPTER XXVIII of the said Ordinances which deals with use of unfair means is quoted below so far as it is relevant for our present purpose : "Ordinances on the use of unfair means and causing disturbances in examination 1. Unfair means. 1.1. Candidates found using or attempting, aiding, abetting or instigate to use unfair means at the examinations of University of Allahabad shall be punished. 1.2. Definitions. (A) Unfair means.-A candidate shall be deemed to have used "unfair means" if the candidate is in possession of unauthorised material or if he has transcribed any part or the whole of the unauthorised material or if he intimidates or threatens or man-handles or uses violence against any invigilator or person on duty in the examination or if he leaves the examination hall without surrendering his examination script to an invigilator or if he is found communicating with other examinees or any one else inside or outside the examination hall. (B) Possession of unauthorised material.-"Possession of unauthorised material" by a candidate shall mean having any unauthorised material on his person or desk or chair or at any place within reach in the examination hall and its environs or having such material on him in the urinal ; toilet or the passage thereto or therefrom at any time from the commencement of the examination till its end. (C) Unauthorised material.-"Unauthorised material" shall mean any material whatsoever, related to the subject of the examination, printed, typed, written or otherwise, on paper, cloth, wood or other material, in any language or in the form of a chart, diagram, map or drawing. (D) A candidate found in possession.-"A candidate found in possession" shall mean a candidate reported in writing as having been found in possession of unauthorised material by the Invigilator or Head Invigilator or by a teacher or official authorised in this behalf even if the unauthorised material is not produced as evidence because of its being reported as swallowed or otherwise destroyed or snatched away or otherwise taken away by the candidate or by any other person acting on his behalf provided that such report is submitted to the Registrar, Allahabad University, or an officer deputed for the purpose on his behalf within three hours or the end of the examination concerned after authentication by the Head Invigilator concerned (alongwith the unauthorised material found, if available as evidence). (E) Material related to the subject of the examination.-"Material related to the subject of the examination" shall if the material is produced as evidence, mean any material certified as related to the subject of the examination by a teacher of the subject. If the material is not produced as evidence for any of the reasons referred to in (D) above, the presumption shall be that the material did relate to the subject of the examination. 1.3 A candidate found using unfair means in an examination shall be served with a notice therefor in the examination hall itself and, if he refused to accept or avoids or escapes personal receipt of such notice, such notice shall be sent to him by Registered Post within seven days of the incident. The candidate shall be required to submit his reply to the notice within 10 days of the issue of such notice. If no reply is received within this period, it would be presumed that the candidate has nothing to state in his defence." Possession of unauthorised material means having unauthorised material on his person or desk or chair or table or at any place within the reach in the Examination Hall at any time from the commencement of the examination till its end. It is not disputed that the chit is an unauthorised material within the meaning of the definition of unfair means quoted above. It is also not disputed that having the chit inside the answer script comes within the phrase "at any place within the reach in the Examination Hall" inasmuch as the answer script is within the reach of the candidate and naturally in the Examination Hall. At the same time, it also fulfills the condition "at any time from the commencement of the examination till its end" inasmuch as the answer script was in possession or custody of the petitioner during the period of examination and the chit was placed in the said answer script during the said period. The petitioner could not have placed the chit at any time from the said period because it was not alleged that the petitioner had not taken the answer books outside the Examination Hall from the said period. Since the chit is found, the necessary presumption is that the same was placed in the answer book by the petitioner. It is very difficult to presume that the chit was placed in the said answer book by any person other than the petitioner. The examiner Dr. Upadhya was an examiner from outside. It cannot be said that the examiner had any enmity with the petitioner.;