- (1.)RULE. Mr.Dipan A. Desai, learned advocate, waives service of notice of RULE for the respondent. On the facts and in the circumstances of the case, and with the consent of the learned advocates for the respective parties, the petition is being heard and finally decided.
(2.)THE present petition under Article 226 of the Constitution of India has been preferred with a prayer to issue a writ of mandamus or an appropriate direction, quashing and setting aside the decision dated 01.03.2011, taken by the respondent University, whereby the results of the petitioners of all the subjects for the First Semester Examination, have been cancelled, and the petitioners have been debarred from appearing in the next two Summer/Winter examinations, to be held by the University.
Briefly stated, the relevant facts of the case are that, the petitioners are students of the First Year, studying in Shri Swaminarayan Pharmacy College (College for short). The examinations for all subjects in the Faculty of Pharmacy for the First Semester of academic Year 2010-2011, were held in the month of January 2011. One of the subjects in the Faculty of Pharmacy for the First Semester of Academic Year 2010-2011, was that of Elementary (Remedial) Mathematics, for which the examination was held on 13.01.2011. The petitioners appeared in the said examination on 13.01.2011. According to the petitioners, the petitioners were amongst 45 students appearing in the said examination, who were divided into two Class rooms, one containing 30 students and the other containing 15 students. The petitioners were all sitting in the same room, containing 30 students. It is stated in the petition that the examination was held strictly under the supervision of the Observer deputed by the respondent University, and two Supervisors selected by the Observer in the premises of the College. After the examination, the Answer Sheets were duly sealed in the presence of the Observer and sent to the respondent University. On 14.02.2011, the Incharge Registrar of the respondent University addressed letters to the petitioners asking them to remain present before the Examination Committee of the respondent University, in connection with unfair means cases registered against them, at 1:00 P.M. on 22.02.2011. It was also stated in the said communication that a penalty as contemplated in Circular dated 03.11.2010 of the respondent University, was proposed to be imposed upon the petitioners. The petitioners presented themselves before the Examination Committee of the respondent University on 22.02.2011, and denied having resorted to any sort of corrupt or unfair practices. The petitioners were informed by the College that the respondent University had cancelled the results of all the examinations of the First Semester in the Faculty of Pharmacy. The petitioners were also informed by the College that the respondent University, by decision dated 01.03.2011, had debarred them from appearing for the next two Summer/Winter Examinations, to be held by the said University. The petitioners approached the College authorities, pointing out that they were innocent and have not indulged in any unfair practices during the examination, and requested that the College take up the matter with the respondent University. Letters dated 11.03.2011 and 15.03.2011 were addressed by the College authorities to the Registrar of the respondent University, requesting him to take a lenient view in the matter. However, the Incharge Registrar of the respondent University, vide letter dated 01.04.2011, addressed to the Principal of the College, informed him that the earlier decision taken by the Examination Committee of the respondent University would be maintained. Being aggrieved by the impugned decision communicated to them vide communication dated 01.03.2011, the petitioners have approached this Court by filing the present petition.

Mr.D.C.Dave, learned Senior Advocate with Mr.Jigar M.Patel, learned advocate for the petitioners, has made the following submissions:

(I) That the initiation of action against the petitioners is based solely on the Report of the Examiner which is based on inferences, surmises and conjectures, and no independent inquiry of any sort, by any expert body, has taken place to verify the contents of the said Report. (II) Referring to the communication dated 01.04.2011, it is submitted that the Incharge Registrar of the University has informed the petitioners that as per the Examiner's Report, answers to Question No.4 (A and B) and Question No.1(c) are found to be the same, therefore, it is a case of mass copying and the petitioners should remain present before the Examination Committee on the stipulated date and time, in order to render their defences. However, the Report of the Examiner was never supplied to the petitioners, therefore, the petitioners were not in a position to make adequate defences before the Examination Committee, as it was not known to them, on what basis the Examiner had inferred that mass copying had taken place and that the petitioners were involved in the same. (III) That the Observer and Supervisors who were present in the Examination Hall have not made any Report or complaint regarding mass copying having taken place in the Examination Hall where the petitioners were seated. The Examination Committee has acted merely upon the inference arrived at by the Examiner in his Report, without any other corroborating material on record. The Examination Committee ought to have independently verified the Report made by the Examiner in order to arrive at a satisfaction. However, this course of action has not been adopted and the Report of the Examiner has been accepted in toto, straightway, without application of mind. (IV) It is noteworthy that the decision of the Examination Committee has not been supplied to the petitioners at any point of time. The petitioners are, therefore, at a loss to know what factors have weighed with the Examination Committee while awarding such a harsh punishment. The decision of the Examination Committee has merely been communicated to the petitioners by the Principal of the College by communication dated 01.03.2011, without disclosing the reasons for taking the said decision. As such, the action of the respondent University in this regard is arbitrary. (V) The Report of the Examiner has come to light only before this Court by way of the affidavit-in-reply filed by the respondent. It indicates that similar mistakes were committed by the petitioners in three questions, on the basis of which an inference has been drawn that the petitioners have indulged in mass copying. The Examiner, by his communication dated 22.02.2011, addressed to the Controller of Examinations, has reiterated his original decision. However, the Examination Committee has not subjected the Report of the Examiner to further scrutiny by any Expert Body, but has accepted the inferences and suspicions raised therein without application of mind, for reasons that remain undisclosed till date. (VI) Not only has the Report of the Examination Committee not been supplied to the petitioners, the same has never seen the light of day and has been withheld from this Court as well. Though, in paragraph-5 of the affidavit-in-reply filed by the respondent-University, it is stated that the petitioners were asked to attempt the questions which had allegedly been copied, before the said Committee, to which the students gave a correct answers. According to the respondent-University this substantiates the case against the petitioners. However, this explanation appears to be an afterthought as it is not known what reason has weighed with the Examination Committee while taking the impugned decision. By not supplying the petitioners the Report of the Examiner and the decision of the Examination Committee, grave violation of the principles of natural justice has occurred. Though this has not been specifically pleaded in the petition, it is a question of law that can be raised at any stage of the pleadings, especially, if it is supported by material on record, as in the present case. The petitioners have been gravely prejudiced as they were not in a position to make an effective and adequate defence due to non-supply of the Report of the Examiner and the decision of the Examination Committee. (VII) The punishment meted out to the petitioners is extremely harsh and disproportionate. The petitioners have been debarred from appearing in all examinations for a period of two years, which punishment has been rendered as per the Circular issued by the respondent-University. This severe punishment has been inflicted only on the basis of an inference drawn by the Examiner, therefore, it is shockingly disproportionate, as the allegation against the petitioners is that they all have given wrong answers, and a more lenient view ought to have been taken. (VIII) That the petitioners have not gained any unfair advantage as all the questions alleged to have been copied are wrongly answered. The petitioners have not been permitted to attend classes for the past six months. This, as well as the punishment meted out to them, has resulted in civil consequences, and will have an adverse effect upon their future and careers. (IX) That the present is a case of no evidence. Not only have the petitioners not been given an adequate opportunity of hearing and have been prejudiced due to non-supply of material record, there is also no semblance of evidence against them, except the Report of the Examiner which is based upon an inference. It is not known to the petitioners on what basis the Examination Committee has arrived at a satisfaction so as to accept the said Report in toto. On the above grounds, it is submitted by the learned Senior Advocate for the petitioners, that as there is a serious violation of the principles of natural justice, the impugned decision may be quashed and set aside, and the petition allowed.

(3.)IN support of his submissions, reliance has been placed on the following judgments:
(i) Siddharth Mohanlal Sharma v. South Gujarat University - 1982 GLH 648 (ii) Prasida Kismatkumar Trivedi v. Principal, Sarvajanik College of Engineering & Technology and another - AIR 2000 Gujarat 244 (iii) Neha Jain v. University of Delhi and Anr. - AIR 2002 Delhi 403.

The petition is opposed by Mr.Dipan A.Desai, learned advocate for the respondent-University, by making the following submissions:

(A) Though it has been argued at the Bar that the principles of natural justice have been violated, no such averment has been made by the petitioners in the entire petition. On the contrary, it has been mentioned that the petitioners have been informed of the Charge and of the penalty, therefore, the ground of violation of the principles of natural justice is not made out. In any case, denial of the principles of natural justice has to be specifically pleaded and proved, and in the absence of any pleadings to that effect, the petitioners may not be permitted to raise this contention. Alternatively, even if it is found, though not admitted, that the principles of natural justice have been violated, the petitioners would have to show what prejudice has been caused to them, which has not been done, as it is nowhere stated in the petition that they have been prejudiced due to non-supply of the Report of the Examiner. Reliance has been placed upon the following judgments on this point: (i) State of Karnataka And Another v. Mangalore University Non-Teaching Employees' Association And Others - (2002)3 SCC 302 (ii) City Montessori School v. State of Uttar Pradesh And Others - (2009)14 SCC 253 (iii) Haryana Financial Corporation And Another v. Kailash Chandra Ahuja - (2008)9 SCC 31 (B) Though admittedly, the Examiner's Report was not supplied to the petitioners, however, no demand for the same was made by them. The petitioners have stated that they have not indulged in copying, which means that they were very much aware of the allegations against them, on the basis of which the proceedings were initiated. Though a copy of the actual decision taken by the Examination Committee has not have been supplied to the petitioners, it has been conveyed to them, and they were aware of the same. In any case, the actual decision is not required to be communicated to the petitioners and it is sufficient that they have been informed regarding the same, therefore, the petitioners have not been prejudiced in any manner. (C) Though the Observer and the Supervisors may not have reported any incident of mass copying, it cannot be presumed that no such event took place. There may not be direct evidence of copying, but the Examiner has formed an opinion on the basis of indirect evidence, after examining the answer-sheets. This is sufficient for the Examination Committee to take a decision that the petitioners have indulged in mass copying. The opinion of the Examiner has not been formed on the basis of mere presumption, but is based upon probability, as all the petitioners were sitting in the same examination hall, and have given identical, wrong answers, to three questions. The only plausible explanation for this would be that they have copied from each other. With regard to this submission, reliance has been placed on the following judgments: (i) Union Public Service Commission v. Jagannath Mishra - (2003)9 SCC 237 (ii) Prem Parkash Kaluniya v. The Punjab University And Others - (1973)3 SCC 424 (iii) Maharashtra State Board of Secondary And Higher Secondary Education v. K.S.Gandhi And Others - (1991)2 SCC 716 (iv) Director (Studies), Dr.Ambedkar Institute of Hotel Management, Nutrition & Catering Technology, Chandigarh And Others - (2009)1 SCC 59 (v) Dr.J.P.Kulshrestha And Others v. Chancellor, Allahabad University And Others - (1980)3 SCC 418 (D) That cases of malpractice in examinations should be dealt with iron hands, so as to maintain educational standards. The penalty prescribed by the respondent-University cannot be said to be disproportionate, and no leniency can be shown on misplaced sympathy. On the ground of proportionality, the following judgments have been referred to by the learned advocate for the respondent-University: (i) Charanjit Lamba v. Commanding Officer, Southern Command & Ors. - AIR 2010 SC 2462 (ii) Chairman, All India Railway Recruitment Board And Another - (2010)6 SCC 614 On the strength of the above submissions, it is submitted that the petition be dismissed.