- (1.)This order shall dispose of two appeals filed against the common judgment rendered by the learned single Judge of this Court. Both the appeals have been preferred by the University against the common judgment holding that the writ petitioners could not have been punished by cancelling the examination of all the papers because they were found to have indulged malpractice of transferring marks from answer sheets of one paper only. According to the learned single Judge Statute 4(1) Chapter XXXIX of the Statutes relating to use of unfair-means to the examination was applicable and the penalty for the same was prescribed in clause (d) of Statute 5 which provides for cancellation of the paper concerned in which unfairmeans were adopted and the misconduct was committed. The view of the learned single Judge is discernible from the following paras of the judgment, which reads thus :
"The alleged act of the petitioner falls within clause (t) as it is alleged that he has indulged in an act which in the opinion of the authorities amounts to use of unfair means. Penalty for the act is prescribed in clause (d) of Statute 5 which provides cancellation of the paper in which unfair-means/ misconduct was committed.

Thus the penalty prescribed for an act which falls under clause (t) is cancellation of the paper in which unfair-means/misconduct was committed. Penalty of cancellation of all the papers is prescribed for acts which fall under clauses (1), (m) (p) and (r). The alleged act does not fall under any of these clauses.

It was submitted by Mr. Thakur that the alleged act of the petitioner being grave, the University authorities have in their wisdom thought it fit to ask the petitioner to appear in all the papers. I appreciate the concern of the learned counsel for the respondents and of the University authorities in the matter as they have a solemn duty cast on them to en-force strict discipline and ensure fairness so far the academic activities are concerned particularly fairness and transparency in the conduct of examination and evaluation of answer sheets. This apart, once the statute provides a particular penalty for a particular misconduct. I feel the authorities have to go by it and they cannot impose a penalty be-yond what is provided by the statute. This would amount to acting beyond the statute which cannot in any circumstance be allowed by the Courts.

The matter needs afresh examination in light to clause (d) of statute (5) by the concerned authorities.

In the circumstances I find due merit in the pleas raised in the petition. Accordingly, the order impugned is set aside. The respondents may act in the matter in accordance with statute (5) afresh and pass proper orders within one month. While doing so, they may give due opportunity of hearing to the petitioner.

Disposed of."

(2.)The appellant-University also filed a review petition bringing to the notice of the learned single Judge that adequate provisions existed in the shape of Statute 4(u) read with Statute 5(d) empowering the University to punish a student for using unfair-means/misconduct contemplated by Statute 4(u) by cancelling all his/her papers and disqualifying him/her from appearing or passing in that examination for two to five years. However, the review petition failed.
(3.)Mr. D. S: Thakur, learned senior counsel appearing for the appellant University has submitted that the view taken by the learned single Judge is not sustainable especially when the findings have been recorded that the writ petitioners-respondents have used unfair-means in the examination. Once the factum of adopting malpractice in the examination is accepted, then the only question survives is whether the University could disqualify them in respect of the paper in which malpractice was committed or for whole of the examination. Accordingly to the learned counsel for learned single Judge has ignored the University Statute 4(u) read with clause (d) of Statute 5 in fact the learned counsel has fairly stated that the aforesaid Statute could not be properly pleaded before the learned single Judge which led to grave error in delivering the judgment. Mr. Thakur has pointed out that mistake was highlighted by filing review but it does not succeed.