ORDER
R.S. Mongia, J.
1. On June 4, 1993, I had allowed this writ petition as also C.W.P. No. 11278 of 1992 and the impugned orders of the Punjab School Education Board (hereinafter called-the ‘Board’) cancelling the result of the petitioners of the 10 + 2 examination held in March/April, 1991 and further disqualifying them from appearing in next one examination were quashed. While allowing the writ petitions, I had observed that the reasons for allowing the writ petitions would be recorded later on. Now I proceed to record the reasons. I will deal with both the writ petitions together as common question of law and fact arise in these petitions.
2. Both the petitioners i.e. Balraj Singh in C.W.P. No. 5640 of 1992 and Amarbir Singh in C.W.P. No. 11278 of 1992 appeared in 10+2 examination held by the Board in March/ April, 1991. A complaint was received by the Board that in various centres, Superintendents, in connivance with the Controller of Examination, had leaked the question papers in 3 subjects viz. Physics, Chemistry and Mathematics before the examination in those papers was to commence. The solutions to the questions were got prepared from experts and photostat copies thereof were made and the same were circulated amongst the students and mass-copying was indulged by various students. The Board took action on the complaint. The examiners and head-examiners were asked to report. The answer-books were examined. Some of the examiners reported that there was mass-copying and some reported to the contrary. Ultimately, the Board came to the conclusion that it was not a case of mass-copying. The Board detected the cases of 28 students and took action for use of unfair means in the examination. However, only 12 students were found to have indulged in unfair means as some answers to the questions or portion thereof fully tallied with the answers in the photo copies of the solutions, which were submitted along with the complajnt.
3. The Board issued show cause notice to the petitioners. As far as petitioner, Balraj Singh is concerned, two separate show cause notices were issued to him alleging that answers to some questions or, portion thereof in the subjects of Mathetics and Phytiics were tallying with answers in photostat copies of
solution (which were submitted with the complaint). In the case of petitioner, Amarbir Singh, show cause notice was issued only regarding the paper of Physics. It was mentioned in the show cause notice that the petitioners had violated Regulations 9(a), 10 and 11 of the Punjab School Education Board (Penalties for Misconduct and Use of Unfair Means in the Matriculation and Higher Secondary Examinations) Regulations, 1979 (hereinafter called the ‘Regulations’)- The petitioners in their reply denied the allegations of copying. They appeared before the Committee dealing with Unfair Means cases (hereinafter referred to as the ‘Committee’) and were shown the answer books as well as the incriminating material in the form of photostat copies of the solutions and were told that the answers to some questions or portion thereof taillied exactly with the solutions in the photostat material. In may be observed here that petitioner, Balraj Singh was even asked to attempt some questions again when he appeared before the Committee but he showed his inability to solve the same.
4. After considering the entire material, the Committee passed two separate orders in case of Balraj Singh on Sept. 25, 1991 for having violated Regulations 9(a), 10 and 11 while appearing in papers of Mathematics and Physics. Another order was passed by the same Committee against Amarbir Singh, petitioner on the same day. Vide these orders the result of the petitioners of the 10 + 2 examination held in March/April, 1991 was cancelled and they were further disqualified from appearing in the next one examination. These orders have been impugned by the petitioners by filing separate writ petitions. In C.W.P. No. 11278 of 1992, impugned order has been attached as Annexure P/1, whereas in C.W.P. No. 5640 of 1992, the impugned orders have been attached as Annexure P/1 and P/2.
5. Learned counsel for the petitioners submitted that even assuming the allegations of the Board against the petitioners to be correct, the case does not fall either under Regulations 9(a), 10 and 11 and therefore according to the learned counsel, the impugned orders were liable to be set aside on this sole ground alone. He further submitted
that the impugned orders are based on no evidence or material. Learned counsel strongly relied on a Division Bench judgment of this Court in C.W.P. No. 17830 of 1991 decided on 29-1-1992 titled Sanjeev Sharmav. Punjab School Education Board, S.A.S. Nagar in support of his contentions. Petitioner, Sanjeev Sharma before the Division Bench in C.W.P. No. 17830 of 1991 was one of the candidates, who was disqualified identically like the petitioners. Learned counsel also relied on learned single Bench’s judgment in case of Tejinder Singh v. Punjab School Education Board, C.W.P. No. 2004 of 1992 which was allowed on 7-4-1992. This candidate was also one of the candidates who was disqualified along with the petitioners. Learned counsel yet relied upon another Division Bench judgment of this Court in C.W.P.No. 14441 of 1992, which was allowed on the basis of Division Bench judgment in Sanjeev Sharma’s case (supra). It may be noticed that the petitioner Naresh Kumar in C.W.P.No. 14441 of 1992 was also one of the candidates disqualified along with the petitioners.
6. Learned counsel for the respondent argued that the case of the petitioners may not be covered by Regulations 9(a), 10 or 11, but it is covered by Regulation 19 of the Regulations. According to the learned counsel, mere non mentioning of the correct Regulation under which the petitioners were found guilty would not make any difference if there is sufficient material/evidence to support the finding of the Committee to bring the guilt under Regulation 19. He further submitted that the case of Balraj Singh was distinguishable from the case of Sanjeev Sharma in C.W.P. No. 17830 of 1991 inasmuch as petitioner Balraj Singh was asked by the Committee to solve the questions before it in Which he was alleged to have copied, whereas in case of Sanjeev Sharrna no such opportunity was given. According to the learned counsel, there was sufficient material on the record to return a finding of guilt against the petitioners under Regulation 19 of the Regulations.
7. To appreciate the respective arguments of the learned counsel for the parties it will be appropriate to notice Regs. 9(a), 10, 11(i) and 19 of the Regulations, which are as under :–
“9. If during an examination, acandidate is found :–
(a) in possession of a paper book, note, or (b) to (f) xxxxx his result for that examination be cancelled he may be disqualified from appearing in any examination of the Board for a period which may extend to three consecutive examinations.
Provided that if a candidate is found having in his possession or accessible to him papers, book(s) or notes due to inadvertence and which could be of assistance to him, but has not made use of them, he may be debarred from passing in that paper as a disciplinary measure and without any implication of moral turpitude.
“10. Possession of solution of question — If a candidate is found in possession of solution to a question, set in the question paper or a part thereof, received through the connivance of any inside or outside agency, except any other candidate sitting in the examination hall, his result for that examination shall be cancelled and he shall be disqualified from appearing in any examination of the Board for a period which may extend to three consecutive examinations.”
“11. Copy or rendering help in copying– If during the course of an examination a candidate is found :–
(i) having copied or indulging in copying form any paper, book or note or
(ii) to (iv) xxxxx
his result for that examination shall be
cancelled and he shall be disqualified from
appearing in any examination of the Board
for a period which may extend to three
consecutive examinations.
“19. If an answer book of acandidate shows it is otherwise established that he has received or attempted to receive help from any source or in any manner or has given help to or attempted to give help to another candidate in any manner, his result for that examination shall be cancelled and he shall be disqualified from appearing in any examination of the Board for a period which may extend to three consecutive examinations.”
8. The very arguments submitted by the learned counsel for the Board were raised by
him before the Division Bench in Sanjeev Sharma’s case. The Division Bench came to the conclusion that the case of Sanjeev Sharma who was similarly placed as the petitioner was not covered under Regn. 9(a), 10 or 11 in inasmuch as the petitioner was not found copying or any incriminating material was found on him in the examination hall. According to the Division Bench, the Regulations noticed above only cover the cases when a student is caught copying or any incriminating material is found from him during the course of examination in the examination hall, Even learned counsel for the respondent did not seriously argue against the above finding of the Division Bench. However learned counsel stressed the argument that the case is covered under Regn, 19 of the Regulations noticed above. While dealing with the argument regarding application of Regn. 19 to the facts of the case, the Division Bench in Sanjeev Sharma’s case noticed that as far as Committee dealing with the Unfair Means is concerned, it never relied upon Regn. 19. In the show cause notice as well as in the impugned order, reliance was placed only on Regns.(9a), 10 and 11. The Division Bench observed as under :–
“If Regn. 19 is to be applied to a case not only that Unfair Means Committee was required to give finding that the candidate had either received help or attempted to receive help from any source. By merely establishing that the answer of the candidate was tallying with any solution paper, book or note, per se will not attract Regn. 19. It is common knowledge that books on the subject are always available to a candidate during the course of his study. Help books, guess papers and their solutions likewise are also available in the market. Merely by proving that the answers of the candidate were tallying with the answers given in such like books or papers will not show of any help having been sought by the candidate in answering the question paper. The cases, which are contemplated under Regn. 19 may be such where the candidate during the course of examination sought help either from the invigilators present in the examination hall or from such like books, solution papers, notes, placed outside the examination hall. For such a finding, it is necessary to have some such type of evidence, which is lacking in the present case.”
9. It was further observed that to attract
Regn. 19, a finding is to be recorded on the basis of evidence by the Committee and it was required to have evidence of receiving or attempting to receive help from any source. According to the Division Bench, such evidence was lacking in that case. The evidence in Sanjeev Sharma’s case as well as in the present cases is the same. The Division Bench, on the basis of whatever material was produced before it, came to the conclusion that the case was lacking evidence to record a finding of guilt under Regn. 19 of the Regulations. If such is a finding of the Division Bench, on the basis of the material produced before it (which is the same material as in the present case), I cannot record a different finding. Consequently it is held in the present case that there is no evidence to record a finding of guilt under Regn. 19 of the Regulations.
10. There is no doubt that it was noticed-by the Division Bench in Sanjeev Sharma’s case that the petitioner was not asked by the Committee to solve the questions again before it, where as Balraj Singh, petitioner was given such an opportunity. However, that would not make any difference because the Division Bench held that there was no evidence to record a finding of guilt under Regulation 19 of the Regulations against the petitioner. This finding was not based on the factum that Sanjeev Sharma, petitioner had not been given an opportunity to solve the question paper by the Committee.
11. It was for the abovementioned reasons that writ petitions of the petitioners were allowed and the impugned orders were quashed.
12. Petitions allowed.