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2008 Supreme(Guj) 48
2008 (2) GCD 1183 (Guj)
Hon’ble Mr. Justice Jayant Patel
Patel Neha Dilipbhai [Navsari]
Versus
Veer Narmad South Gujarat University & Anr.
Special Civil Application No. 30729 of 20071—Decided on 08/02/2008
Appearance :
Mr. K.B. Pujara, for the Petitioner No. 1.
Mr. D.C. Dave, for the Respondents No. 1-2.
Notice Served, by DS, for the Respondent No. 2.
Decided in Favour of :
Petitioner
Petition Partly Allowed
Headnote:Subject :
Marks in mark-sheet different than arranged by examiner — Cancellation of results — And debarring for study for five years — Property of — Sustainability — Finding as to.
Point in Issue :
Whether in the facts debarring petitioner student for study for five years justified.
Head Note :
Constitution of India, 1950 — Article 226 — Marks in mark-sheet different than assigned by examiner — Cancellation of results — And debarring for study for five years — Propriety of sustainability — Finding as to — The variance in the marks mentioned in mark-sheet and assigned by examiner to the extent fund cannot be said as human error apply test of normal prudence — It would be reasonable to say that such manipulation in the record in the result-sheet is intentional or may be with extraneous consideration — The petitioners are the student who are directly beneficiary of such manipulation in the result-sheet — Under the circumstances it will be difficult to record the conclusion that students directly or indirectly not at all played role in the alleged manipulation of mark-sheet — However maximum punishment prescribed can be imposed in extreme cases but if it is in the realm of probabilities to the extent of involvement or degree of involvement is difficult to be ascertained though the direct benefit is extracted thereof in the case University may take lenient view and impose punishment appropriately — The authority as in the case Syndicate of University has power to punish, therefore, it is required to follow principles of natural justice by giving opportunity of hearing to the delinquent — Such appears to have not been considered by University in the present case — As a result the order of University for imposition of the punishment for debarring petitioners for five years is set aside, and University is directed to give an opportunity of hearing to petitioners concerned and pass appropriate order.
Held :
If the details are considered with the normal prudence, it is unbelievable that, such could happen by any human error without any purpose whatsoever. The strongest circumstance is that, the variance to great extent is in more that 2 to 4 subject and that too in each two sets of answer-sheets. If such cannot be said as human error applying test of normal prudence, it would reasonable to say that such manipulation in the record in the result-sheet is intentional, or may be with extraneous consideration. The petitioners concerned who are students are directly beneficiary of such so-called manipulation in the result- sheet, may be through the staff of the University. [Para 8]
Under these circumstances, it will be difficult to record the conclusion that students have directly or indirectly, not at all played role in the benefit to be received on account of the alleged manipulated mark-sheet. It is true that no material was before the Committee, to directly shows the link by the students with the staff of the University, who played role in such manipulation, but at the same time when the students concerned are directly beneficiary, and keeping in view the facts and circumstance that, such manipulation in the result-sheet is for more than one subject, and within one subject in more than two sets of answer-sheets, it cannot be said a case of no evidence whatsoever for unfair means applied in the examination . It may be stated that for assessing scope of the unfair means during the examination, the restricted meaning as sought to be canvassed on behalf of the petitioner cannot be accepted. [Para 9]
The University in a case, where unfair means are applied by the students, may have power to punish, but it is by now well settled that, the authority who has power to punish, should apply the mind on the aspect of proportionality of the punishment also. Keeping in view the facts and circumstances of the case, if the grosses case is found with the cogent and uncontroverted evidence on record, the maximum punishment prescribed can also be imposed upon the student concerned, but if it is in the realm probabilities to the extent of involvement, or the degree of involvement is difficult to be ascertained, though the direct benefit is extracted thereof, the University may take lenient view and may impose punishment appropriately. Therefore, until such aspects are considered, and the decision is recorded by application of mind, on the aspect of proportionality of punishment, the imposition of the punishment to the fullest extent cannot be sustained in the eye of law. [Para 10]
The order of the University for imposition of the punishment for debarring for a period of five years is quashed and set aside on condition that the petitioners deposits the original mark-sheets with the University and with the further direction that the matter shall stands restored on the aspect of imposition of punishment to the University and the University shall either itself or through authorised Committee after giving and opportunity of hearing to the petitioner concerned, shall pass appropriate orders. [Para 13]
Law Laid Down :
The authority who has power to punish is required to observe the principles of natural justice.
Jayant Patel, J.—Rule. Mr. Dave learned Counsel appears for the University and the Head of the Department of the University concerned and Mr. Manan Shah learned Counsel appears for Respondent No. 2, in Special Civil Application No. 30764 of 2007, and waives service of notice of rule. With the consent of the learned Counsel appears for both the sides, the matter is finally heard today.
2. The facts under consideration are more or less common and the common question arise for consideration, and, therefore, they are being considered by this common judgment.
3. The facts relevant for the purpose of this petition are that all the petitioners were prosecuting studies in the subject of Msc. Part-1, and they appeard in the examination conducted by the respondent-University, the mark-sheets came to be issued for the declaration of the result, and in the said result declared all the petitioners were shown as passed the examination with the marks assigned in the mark-sheets, except petitioner of Special Civil Application No. 30766/2007, who was declared fail. The University after issuance of the mark-sheets received information that, there is something wrong with the mark-sheets issued inasmuch as students have not scored mark as assigned by the examiner in the answer-sheet, but different marks are recorded in the mark-sheets. The same led to the inquiry by the University, the matter was assigned to Examination Conduct Committee, and ultimately it was found by the Examination Conduct Committee that, there was substance in the information, and the marks mentioned in the mark-sheets, which were issued to the concerned petitioner in certain subjects, were different than the actual mark assigned by the examiner in the answer-sheet. The Committee, therefore, recommended for cancellation of the result, and also observed that, if the students have taken admission based on the mark-sheet, same also be cancelled.
4. It appears that thereafter, the matter was considered by the Syndicate of the University and having considered report of the Committee, the report is accepted, and results are cancelled, and all the petitioners are debarred in any University for study for five years, and it is under this circumstances, the petitioners have approached to this Court by preferring the present petitions.
5. Heard Mr. Pujara learned Counsel for the petitioner Mr. Dave learned Counsel for the University and the concerned Head of the Department of the University who are joined as the respondent in the respective petitions and Mr. Shah for the college in one of the petition.
6. It was contended by the learned Counsel appearing for the petitioners that the decision has been taken on the basis without there being any evidence whatsoever, nor any opportunity of hearing has been given to the petitioner concerned by the Committee, or by the University before the impugned decision is taken. Whereas on behalf of the University it has been submitted that the petitioner concerned was called for hearing, not only that but they are interrogated. The inquiry was made by the Committee and thereafter, the Committee on the basis of the material available on record recommended for cancellation of the result, and cancellation of the admission based on the so-called mark-sheet and the Syndicate has passed an order for imposition of the punishment for debarring the petitioner concerned for five years. It was submitted that the mark-sheets are issued showing the additional marks in various subjects to each of the petitioners than marks actually granted by the examiner in the concerned answer-sheet, is sufficient to conclude that there is mischief and the petitioner concerned are the beneficiary of such mischief. It was also submitted by Mr. Dave learned Counsel for the respondent that criminal complaints were filed, and the police was to investigate. At that stage one of the person Mr. Vimal Zariwala, who is programmer in Computer Examination Center of the University, had p
