JUDGMENT
B. Dikshit, J.
1. This writ petition is directed against an order dated 13.3.1997 cancelling the result of B.A. Part II examination of the year 1996 or petitioner and debarring him from appearing in subsequent examination of 1997 by University of Allahabad for using unfair means. Learned Counsel for the petitioner has pressed this writ petition on three grounds, which can be better summarised as follows:
Firstly, the Ordinance 1.3 or Ordinances of use of unfair means and causing disturbances in examination under Chapter XXVIII of Allahabad University Ordinances is mandatory yet it has not been complied with and, therefore, the impugned order is bad;
Secondly, the charge levelled against the petitioner for use of unfair means are vague and, therefore, also the order is bad; and
Thirdly, the petitioner has been held guilty and punished without recording satisfaction by the ‘unfair means committee’. The argument in respect of first ground has substance but before taking up the first ground it is better to dispose of second and third contentions of Counsel for petitioner.
2. Learned Counsel for the petitioner argued that the charge is vague and not specific therefore the impugned order is bad. A notice dated 5.9.1996 was sent to petitioner wherein specific charge was levelled, which he was called upon to explain, for possession and recovery of unauthorised material. There is no force in the argument that charge is vague.
3. The other argument of learned Counsel for petitioner that committee has not recorded its satisfaction is also untenable. The petitioner has not made any averment in this respect in writ petition therefore neither reply to any such plea in counter-affidavit was necessary nor facts about such a plea could be replied therein. Learned Counsel relied on violation or Ordinance 1.6. The said ordinance could be attracted only when foundation had been laid by stating relevant facts by petitioner. In absence of necessary averments, this argument is also rejected.
4. The main objection in this case of petitioner is that Ordinance 1.3, has been violated as neither notice was served on the petitioner of use of unfair means at examination as contemplated under said Ordinance nor he refused to accept any notice. Besides said facts, the learned Counsel for petitioner argued that the University has not taken care even to send notice by registered post within 7 days of the incident and it was after a lapse of about two months from the date of the incident dated 6.7.1996 that the petitioner was called upon to meet the charges, the charges being in respect of examination of B.A. Part II paper I of Political Science. The facts about the non-serving of the notice in the examination hall and sending of further notice on 5.9,1996 in respect of the incident dated 6.7.1996 has not been disputed in the counter-affidavit. From perusal of record it is apparent that even form, which was filled up by the invegilater and has been filed as Annexure-CA-3 to counter-affidavit contains relevant column, which was to be filled up by Chief Invegilator, the column is blank. Similarly, column in respect of statement given by the student is also blank.
5. The learned Counsel for University argued in the basis of case of Amit Kumar Singh v. Registrar, University of Allahabad, (1991) 1 UPLBEC 722, that the provision of Ordinance 1.3 is mandatory.
6. Sri Ratnakar Chaduhary learned Counsel for University argued that the Ordinance 1.3 is not mandatory. The provision is directory and do not contemplate for all the exigencies. There is nothing in the counter-affidavit as to what are those contingencies which were not taken into consideration so that the case of violation of provision of Ordinance 1.3 be not accepted. Be it as it is, even if provisions of ordinance is directory yet substantial compliance of notice was necessary on the part of the invegilator and the Chief Invegilator to prepare report at the examination which was not done and relevant column was left blank. This provision of having reports appears to be to have a procedural safeguard in favour of examinee, therefore, even if the said provision of ordinances is considered directory yet it was to be substantially complied. As Ordinances 1.3 has not been complied even substantially, the impugned order cancelling the result of petitioner and debarring him from appearing in the examination of 1997 of B.A. Part II can not be sustained.
7. The learned Counsel for the University further argued that as the material which was carried by the student in the examination hall and is said to have been used by him according to the report, disentitles him for any discretionary relief under Article 226 of the Constitution of India and this Court may not interfere in such a matter. He submitted that Supreme Court of India in the case of Controller of Examination and Ors. v. S.S. Sunder, J.T. 1992 (4) S.C. 204, was held that the writ Courts must be slow in interfering on the ground of technicalities in the matter of use of unfair means. He also relied upon the case of Central Board of Secondary Education v. Miss Vineeta, J.T. 1993 (6) S.C. 165, and contended that once incriminating material was recovered from petitioner from the examination hall, which consists of two handwritten pages and 56 printed pages, then. Court may not interfere in a matter of mal-practice of using unfair means by examined at the examination. It is true that enforcement of the discipline at the examination is necessary but as the University has made the provision in its ordinances as to how a candidate found with objectionable material is to be dealt with and particular procedure as laid down stands hot followed in making of complaint by invegilator and Chief Invegilator who were required to fill up necessary forms, which are still blank, the procedure prescribed for punishing a student with procedural safeguard provided in favour of student stand violated. It is not possible for this Court to refuse discretionary relief to petitioner under such circumstances. Thus, the argument is rejected.
8. For aforesaid reasons the writ petition succeeds and is allowed. The impugned order dated 13.3.1997 is quashed. The University is directed to declare the result of petitioner within two weeks from the date of production of certified copy of this order. There shall be no order as to costs.