IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 11213 of 2010(B)
1. GAUTAM KUMAR JHA,
... Petitioner
Vs
1. THE MAHATMA GANDHI UNIVERSITY,
... Respondent
2. THE REGISTRAR,
3. THE CONTROLLER OF EXAMINATIONS,
4. THE PRINCIPAL,
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI. T.A. SHAJI, SC, M.G.UNIVERSITY
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :20/10/2010
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P.(C)No.11213 Of 2010
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DATED THIS THE 20th DAY OF OCTOBER, 2010
J U D G M E N T
The petitioner herein seeks to quash Exhibit P2 proceedings
of the University. A consequential direction is sought to allow the
petitioner to appear for the 4th Semester B.Tech Degree IT
Engineering Course.
2. The petitioner is studying in the 4th respondent-
College. The 3rd Semester examination was commenced on
9.11.2009 and he attended the examination for Engineering
Mathematics-II paper on 9.11.2009. On that day, Invigilator
recovered the calculator that was being used by the petitioner
and on verification it was found that on the lid of the calculator
there were some inscriptions made using pencil. According to the
petitioner, he was unaware of the same. The calculator was
borrowed by some of the senior students and he denied any
involvement in respect of the inscriptions made by pencil. But
the Invigilator, after recovering the calculator sent the petitioner
out of the examination hall and thereafter he was not allowed to
continue the examination. He was also prevented from appearing
W.P.(C)No.11213/10 -2-
for the subsequent examinations for the 3rd Semester.
3. This Writ Petition was filed when the 4th Semester
examination was expected to be held in the last week of April,
2010. In the meanwhile, an enquiry was conducted into the
alleged malpractice of the petitioner and Exhibit P1 is the copy of
the enquiry report. It was concluded by the Enquiry Officer that
the writing on the calculator is not connected with the
examination Mathematics-II. On enquiry with the experts, they
said that the writings is connected with the ‘C’ programming.
The Enquiry Officer recommended that the petitioner may be
permitted to write the next examination by cancelling the whole
of the examination as a punishment. Exhibit P2 is the show
cause notice which was issued later, to which the petitioner
submitted Exhibit P3 reply. The petitioner relies upon Chapter 14
of the Examination Manual, a true copy of which has been
produced as Exhibit P6. It is contended that even in the light of
the Examination Manual, it is clear that the students appearing
for the B.Tech Engineering Courses are entitled to carry a
calculator and the same is permitted. Paragraph No.35 of the
Manual provides that there shall not be any scribbling on the
W.P.(C)No.11213/10 -3-
calculator directly or indirectly to facilitate any kind of
malpractice in the examination. Going by Chapter 14, the
malpractice will be one if any material relevant to the
examination is introduced. Accordingly, it is contended that the
action cannot be supported.
4. Heard the learned Standing Counsel for the University
and the learned Standing Counsel for the College.
5. Identical question was considered in W.P.(C)
No.3831/2010, a copy of which has been produced as Exhibit P7.
Paragraphs 10 and 11 of the said judgment are reproduced
below.
10. Herein, the respondents are relying upon
item 1 of clause 2 of Ext.P1, viz. introduction
of any material relevant to the examination
inadvertently and the punishment shows
debarring of one or two chances. As rightly
pointed out by the learned counsel for the
petitioner, what is described as malpractice is
“introduction of any material relevant to the
Examination, inadvertently.” There is no proof
that the petitioner has brought any material
relevant for the examination even
inadvertently which is supported by the
W.P.(C)No.11213/10 -4-
findings in Ext.P3 enquiry report which shows
that the candidate has never used any of the
inscriptions. Even as per the report of the
invigilator recorded in Ext.P3, it reads that
“on verification it was found that the
inscriptions were not related or relevant to
the subject, Basic Electrical Engineering. The
written matter is not easily readable.”
Therefore, going by the conclusions arrived at
by the enquiry commission, as items 2 and 3,
the petitioner has never used any of the
inscriptions. It cannot be termed that the
same will be a malpractice as referred to in
clause 1 of Chapter 14. In the absence of any
finding that the petitioner has resorted to
unfair means for getting undue advantage in
the valuation, there cannot be any
punishment by way of debarring of one or
two chances, coming within item 1 of clause
2. He has not introduced any material
relevant to the examination, in the light of the
finding that the inscription has nothing to do
with the paper he has written, viz. Basic
Electrical Engineering.
11. Then the further question to be
considered is whether the reliance placed on
Statute 3 (xxi) of Chapter 6 of M.G.
University First Statutes, is correct. It applies
W.P.(C)No.11213/10 -5-
only when a candidate is found guilty of using
or attempting to use unfair means at an
examination. As evident from the facts
revealed above, the same is not evidently
attracted as no such allegations are proved.
The Syndicate is given power to cancel the
examination in such cases and also debar the
candidate from appearing in one or two
examinations. What is emphasised in the
counter affidavit is that the act of the
petitioner will amount to a malpractice. As
already found by me earlier, bringing of a
calculator in the light of Regulation 35 of the
Examination Manuel, cannot be a malpractice
at all. Therefore, the punishment granted by
the Syndicate as per Ext.P5 has no nexus with
the items of punishment provided in Ext.P1
and Statute 3(xxi) of Chapter 6 of the
Statutes. In the absence of proven
misconduct or malpractice against the
petitioner, such a punishment cannot be
granted. The punishment should have nexus
with the gravity of offence and cannot be one
unrelated to the proven acts of the students.
The violation pointed out as item 3 in Ext.P3
that the candidate brought his calculator with
some inscriptions, cannot also be supported
in the light of the findings therein that the
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candidate has never used any of the
inscriptions. Even if it amounts to a technical
violation of the Regulations, in the light of the
explanation offered by the petitioner and the
findings contained in the enquiry report, that
cannot lead to a punishment like this.
Since the position herein is the same, the said finding applies to
the facts of this case also.
6. In that view of the matter, the reason shown in the
show cause notice may not be supportable. Therefore, there
will be a direction to the University to pass an appropriate order
in the light of the findings rendered in Exhibit P7 judgment which
are applicable to the facts of this case also, within a period of six
weeks from the date of receipt of a copy of this judgment. The
result of the examination attended to by the petitioner will be
published depending upon the order to be passed by the
University.
The Writ Petition is disposed of as above. No costs.
T.R.RAMACHANDRAN NAIR, JUDGE.
dsn