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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

LPA 36/2013 & CM 683/2013(stay)

NATIONAL BOARD OF EXAMINATIONS

..... Appellant

Through:

Mr. Mukul Gupta and Dr. Ratesh Goswami,

Advocates

versus

VIPIN SHARMA

..... Respondent

Through:

Ms. Mukti Chowdhary, Adv.

CORAM:

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE V.K. JAIN

O R D E R

% 08.04.2013

While appearing in Diplomat of National Board (DNB) Final Examination

held in June, 2009, the respondent no.1 was, on 14.6.2009 found in possession of a

mobile phone. The Ethics Committee of the Board after giving an opportunity of

hearing to the respondent, decided, vide order dated 30.3.2010, to debar him for six

attempts and cancelled the attempt made by him in June, 2009. The respondent

no.1 filed W.P(C) No.803/2001 before this Court challenging the order passed by

the appellant debarring him for three years (six attempts) including the attempt of

June, 2009, on the ground that he was found using unfair means in the said

examination. In the meanwhile, the respondent no.1 had appeared for the

subsequent examination In December, 2009, on the strength of the provisional

permission granted to him by the appellant. That attempt was also cancelled by the

appellant.

LPA 36/2013

Page 1 of 4

2013:DHC:1769-DB

2. W.P(C) 803/2011 was then filed by the respondent no.1 challenging the

aforesaid action of the appellant. The writ petition came to be disposed of vide

order dated 4.2.2011 directing the respondent no.1 to first exhaust the remedy of

appeal available to him. On such an appeal being filed by the respondent, an

independent Expert Committee was constituted by the Appellate Authority.

Accepting the recommendations made by the Expert Committee, the Appellate

Authority reduced the penalty from six attempts to four attempts and allowed

respondent no.1 to appear in June, 2011 onward examination. W.P(C) 3285/2011

was then filed by the respondent no.1 challenging the aforesaid decision of the

Appellate Authority. Vide order dated 31.10.2012, the learned Single Judge of this

Court quashed the order passed by the Appellate Authority on 25.4.2011. Being

aggrieved from the aforesaid order, the appellant is before us by way of this

appeal.

3. During the course of arguments, we specifically asked the learned senior

counsel for the appellant as to whether instructions were issued to the candidates

prohibiting them from carrying mobile phones inside the examination hall or not.

In response thereto, the learned senior counsel for the appellant referred to the

following instructions contained in the Information Bulletin and application form

for DNB-Final Examination:

“Unfair means includes canvassing for support of a candidate

with examiners of DNB Exam/NBE office/any other

functionary/ use of electronic gadgets as Mobile Phone during

exam/ impersonation/ use of study aids as

books/ notes etc during exam/ influencing any functionary of

exam system/ any other act intended to breach the sanctity of

examination process.”

A perusal of the above extracted clause contained in the information

LPA 36/2013

Page 2 of 4

2013:DHC:1769-DB

bulletin would show that it does not prohibit the candidates from carrying mobile

phone inside the examination hall nor does it say that mere carrying a mobile

phone in the examination hall, without actually using it, would amount to an unfair

practice or use of unfair means. What the aforesaid clause prohibits is the „use‟ of

any electronic gadget such as mobile phone during examination and not an

inadvertent act of taking such a phone inside the examination hall even if no

attempt is made to make any use of the mobile phone inside the examination hall.

Therefore, it cannot be said that the respondent had indulged into an unfair practice

or had attempted unfair means merely by carrying the mobile phone inside the

examination