SHARMA, J. - (1.) THE matter was taken for final disposal with the consent of learned counsel for the parties.
(2.) THE Rajasthan Public Service Commission (for short `rpsc') vide order dated September 30, 2002 debarred the petitioner, an Advocate by profession, from participating in all further selections/examinations held by RPSC for a period of two years on the allegations that Answer Book of the petitioner for the Rajasthan Judicial Service Examination 2001 were found with torn pages at the time of evaluation. THE petitioner thereafter was not allowed to appear in the screening test for APP Examination 2002 which was to be held on October 6, 2002. THE petitioner by way of this writ petition sought directions to negate the aforesaid orders. The petitioner appeared in the RJS Examinations 2001 conducted by RPSC on September 16 and 17, 2001. The RPSC vide letter dated November 23, 2002 demanded explanation from the petitioner as to why at the time of evaluation of his Answer- books of Law Paper-I and II few pages were found missing? The petitioner vide letter dated November 26, 2001 informed RPSC that Answer-books submitted by him to the invigilators were absolutely intact. Pursuant to the letter dated December 12, 2001 the petitioner appeared before the RPSC on December 19, 2001 for personal bearing. But RPSC took time to decide the matter and it was only on September 13, 2002 that the impugned decision of debarring the petitioner was arrived at. The respondent RPSC in the reply raised objection as to the maintainability of writ petition. It was averred that opportunity of hearing was provided to the petitioner and it was found that petitioner alone was responsible for the mis-deeds. Therefore the petitioner was rightly debarred for two years. I have pondered over the rival submissions. Fact situation that emerges from the material on record may be summarised thus:- (i) At the time of evaluation of Answer-books of the petitioner pages No. 23 of the Answer-book of Law paper-I and page Nos. 11 to 14 of the Answer book of Law Paper-II were found missing. (ii) Show cause notice was served on the petitioner by RPSC. The petitioner in his reply stated that after writing the answers he had handed over answer-books to the Invigilators in absolute intact position. (iii) No complaint whatsoever was made by Invigilators against the petitioner. (iv) Persuant to the notice of personal hearing the petitioner appeared before RPSC on December 19, 2001. (v) On September 13, 2002 the order for debarring the petitioner from examinations for two years was issued by RPSC.
(3.) THE Courts of India have been acting as vigilant sentinels on the qui vive to see that the principles of natural justice, are not violated by a judicial or quasi judicial authority. One of the broad principles of natural justice is that a quasi judicial authority cannot make any decision against a party without giving him an effective opportunity of meeting the allegations made against him. THE judicial or quasi judicial functions must be performed in good faith after listening fairly to both sides. Earl of Selborne in Spackman vs. Plushtead Board of Works (1), used the phrases "the substantial requirements of justice" and at another place "the essence of justice" to mean natural justice, when he observed:- " No doubt, in the absence of special provisions as to how person who is to decide is to proceed, the law will imply no more than that the substantial requirements of justice shall not be violated. He is not a judge in the proper sense of the word; but he must give the parties an opportunity of being heard before him and stating their case and their view. He must give notice when he will proceed with the matter, and he must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. " In De Verteuil vs. Knaggs (2), Lord Parmoor reflected "the particular form of inquiry must depend on the conditions under which the discretion is exercised in any particular case, and no general rule applicable to all conditions can be formulated". The Division Bench of Calcutta High Court in West Bengal Council of Higher Secondary Education & Others vs. Roupshanara Momtaz & Another (3), indicated that where the malpractice was not detected in the examination hall, but some time later the student could not be punished. In para 15 of the judgment it was observed as under:- " It is the case where the examination of a student is sought to be cancelled on the ground that she had adopted malpractice in the examination hall. The word `malpractice' has a definite connotation. According to Black's Law Dictionary malpractice means `professional misconduct' or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers and accountants. Failure of one rendering professional service to exercise that degree of skill and bearing commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them. . . . . " So it is clear that in all cases of malpractice there should result in some form of injury, loss or damage and/or wrong gain by some persons at the costs of other. In the instant case, admittedly the student concerned wrote her name, roll number and the registration No. correctly and that it was alleged that there had been some interpolations in writing. In such a case, it is quite but natural that the interpolations had to be made on the existing style and pattern of writing and the similarity must be there. The fact alone does not and cannot go to show that it was done by handwriting of the girl student concerned and by no other person. Admittedly, the girl student concerned had not made any wrongful gain whatsoever. " ;