- (1.) THE petitioner appeared in B. Sc. Part I examination, 1996 conducted by the University of Allahabad. He was a regular student of C. M. P. Degree College - a College affiliated to the University of Allahabad. His roll number was 113476. On 31-8-1995 during the course of examination in Chemistry 3rd paper, the petitioner was caught by Flying Squad and certain material "three printed pages both sides" was recovered from him and his answer sheet was accordingly seized by the Flying squad and another answer sheet was supplied to him. He was given printed notice of using unfair means in the examination and his signature obtained on the second page of the notice forming part of the answer book. THE room- invigilator under his own signature made an endorsement "caught by the University Flying Squad" on the first page of the notice which was attested by the Chief Invigilator and the Examination Superintendent/principal, C. M. P. Degree College, Allahabad. On the answer book also an endorsement "caught by the University Flying Squad'' the printed pages both sides recovered from the student" was made under the signature of B. K. Srivastava on the first page of the answer book which is meant for noting down the marks obtained by the examinee. All these formalities were done in the Examination Hall itself.
(2.) THE petitioner was later on served with a notice dated 9-10-1995 (Annexure-3 to the writ petition) stating therein that while taking examination in Chemistry 3rd paper of B. Sc. Part I, he was found using "unfair means" "three pages of printed material" and called upon to show cause by 9-10-1995 as to why his examination be not cancelled and why should he not be debarred from appearing in the examinations of the University in the coming years. THE petitioner, it is stated, submitted his reply on 17-10-1995 stating therein that on 31-8-1995 during the course of examination in Chemistry 3rd paper, the Flying Squad came and conducted search of his person and a member of the Squad snatched his answer book without disclosing any reason and he was also made to sign on a printed form and later on he was told that three printed pages were found from behind his seat. THE petitioner denied recovery of any kind of unauthorised printed material from him. Upon consideration of the reply submitted by the petitioner the University found him guilty of possessing unauthorised material and accordingly cancelled his B. Sc. Part I examination, 1995 and communicated the decision to him vide letter dated 28-2-1996. It is the decision contained in the letter 28-2-1996 which is the subject matter of impugnment in the instant writ petition. Learned counsel for the petitioner urged that the petitioner's B. Sc. Part I examination, 1995 has been cancelled in utter disregard of the Ordinance No. 1. 3 of the Ordinances on the use of unfair means and causing disturbances in the examination. Counsel urged that no notice was given to the petitioner in the examination hall on 31-8- l 995 that any unauthorised material was recovered from him nor was the notice given to him within seven days period stipulated by the ordinance No. 1. 3. Elaborating his submission the counsel urged that failure to give a notice of the incident by registered post within seven days of the incident, vitiated the impugned decision taken by the University. Learned counsel for the petitioner has placed reliance upon a decision by a learned single Judge of this Court in Sundaram Srivastava v. Allahabad University, Allahabad (1992) 2 UPLBEC 941. Learned counsel appearing for the respondent university refuted the submissions made by the counsel for the petitioner and urged that an unauthorised material was recovered from the petitioner during the course of examination in the concerned subject. He also urged that requirement of giving notice of the incident by registered post "within seven days" is directory and not mandatory and further that the impugned decision would not be vitiated merely because notice of the incident was given to the petitioner by registered post beyond seven days of the incident.
(3.) IN order to appreciate the rival contentions it would be worthwhile to advert to the related provision contained in the Ordinances on the use of unfair means and causing disturbances in the examination. According to the Scheme of Ordinances, candidate found using or attempting, aiding, abetting or instigating to use unfair means at the examination of University shall be punished by a Committee of not less than five teachers appointed by the Examination Committee or by the Vice-Chancellor acting on behalf of the former. The Committee, it is provided, is to take into consideration (a) the report, if any, about the candidate having been found in possession of unauthorised material; (b) the reply, of the candidate, if any, to the notice; (c) the report of the examiner concerned, if any regarding the transcription or non-transcription of the unauthorised material of which the candidate was found in possession; (d) any other report of intimidation, threat, man handling or violence received in connection with the conduct of the examination by any person on duty of the University; (e) and any other material. Cancellation of the examination is, the punishment prescribed for (i) possession of unauthorised material, or (ii) leaving examination hall without surrendering the examination script to an invigilator, or (iii) communicating with other examinees or anyoneelse inside or outside the examination hall. Since the instant is a case of possession of unauthorised material, I consider it unnecessary to state about the punishment prescribed for other incidents mentioned in the Ordinance. Ordinance No. 1. 2 is the definition clause of the Ordinances. The relevant expressions are defined as under: " (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 whole of the unauthorised material or if he intimidates or threatens or manhandles or uses violence against any invigilator or person on duty in the examination or if he leaves the examination hall without surrendering his examination scrip to an invigilator or if he is found communicating with other examinees or anyone 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 table or at any place within reach in the examination hall and its environs or having such material on him in urinal toilet or the passage thereto or there from 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 eating on his behalf provided that such report is submitted to the Registrar, Allahabad University or an officer deputed for this purpose on his behalf within three hours of the end of the examination concerned after authorisation by the Head Invigilator concerned (along with unauthorised material found, if available as evidence ). (E) Material related to the subject of examination:- "material related to the subject of examination" shall, if the material is produced as evidence, mean any material certified as related to the subject of 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".;