PETITIONER: CENTRAL BOARD OF SECONDARY EDUCATION Vs. RESPONDENT: VINEETHA MATHAJAN DATE OF JUDGMENT15/10/1993 BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) AGRAWAL, S.C. (J) CITATION: 1994 AIR 733 1994 SCC (1) 6 JT 1993 (6) 165 1993 SCALE (4)153 ACT: HEADNOTE: JUDGMENT:
The Judgment of the Court was delivered by
KULDIP SINGH, J.- Special leave granted.
2. Vineeta Mahajan, respondent in this appeal, appeared in
the Class XII examination conducted by the Central Board of
Secondary Education, Delhi, in the month of March 1993. She
sat for the Political Science paper on March 16, 1993 in the
said examination. During the course of examination, the
invigilator found the respondent in possession of written
material in the shape of three small pieces of paper kept in
the pencil box. The matter was reported to the Central
Superintendent. Proceedings in respect of the charge “for
using unfair means at the examination” were initiated by the
Result Committee of the Board. The respondent was examined
by the said Committee on July 19, 1993. She admitted having
kept the said papers in the pencil box but she stated that
she had not used the same while answering the question
paper. According to her she arrived at the examination hall
late due to car puncture on the way and, as such, was
utterly confused and panicky and in that mental state she
forgot to take out the papers from the pencil box before
entering the examination hall. The Deputy Superintendent of
the examination centre stated before the Committee that she
had given the usual warning in the examination hall about
the possession of undesirable material by the examinees.
When questioned by the Deputy Superintendent the respondent
answered that she was too tense to hear the warning. The
Committee found the respondent guilty of using unfair means
at the examination and as a punishment her examination for
the year 1993 was cancelled. She challenged the said order
by way of a writ petition before the Delhi High Court. The
High Court allowed the writ petition and quashed the
punishment awarded to the respondent. This appeal by way of
a special leave is against the judgment of the High Court.
3. Rule 36.1 (iv)(a) of the Rules for unfair means cases
framed by the Board which is relevant for our purposes is
reproduced hereunder:
“36. 1. (iv) If during the course of examination, any
candidate is found indulging in any of the following, he
shall be deemed to have used unfair means at the
examinations:
(a) having in possession papers, books, notes or any other
material or information relevant to the examination in the
paper concerned.”
4. The High Court allowed the writ petition on the
following reasoning:
“The question which arises for our consideration is, if the
positive finding of the result committee is that the
petitioner had not copied then can the provisions of Rule
36.1 (iv) be so invoked so as to come to the conclusion that
the petitioner had been guilty of using unfair means.
It is no doubt true that the said provisions raise
presumption that the candidate is guilty of using unfair
means if, inter alia, written material is found on her
person in the examination. But this is a rebuttable
8
presumption and it can be seen whether in fact
the material was not used …. We find here in
this case that the result committee, having
come to a positive finding that the petitioner
had not copied despite having written material
on her person, ought not to have imposed any
penalty. Having come to the conclusion, on
facts, that the petitioner had not copied, the
question of imposing any penalty merely on the
presumption of some written notes being found
with the candidate, could not be arrived at,
on the facts and circumstances of the present
case. The decision of the respondents of
cancelling the result for the year 1993 did
not flow, in other words, from the finding of
fact which that authority itself had arrived
at. This Court is merely correcting the error
which has crept in the impugned order. For
the aforesaid reasons, this writ petition is
allowed. The decision of the respondents in
cancelling the examination of the petitioner
for the year 1993 is quashed and the
respondents are directed to declare the result
of the petitioner within two weeks from
today.”
5. We do not agree with the reasoning of the High Court.
The High Court fell into patent error in reading a
rebuttable presumption in the language of the Rule. The
Rule clearly defines “the use of unfair means at the
examination” and lays down in simple language that a
candidate having in possession papers, relevant to the
examination, in the paper concerned, shall be deemed to have
used unfair means at the examination. The sine qua non, for
the misconduct under the Rule, is the recovery of the
incriminating material from the possession of the candidate.
Once the candidate is found to be in possession of papers
relevant to the examination, the requirement of the Rule is
satisfied and there is no escape from the conclusion that
the candidate has used unfair means at the examination. The
Rule does not make any distinction between bona fide or mala
fide possession of the incriminating material. The High
Court reasoning, that the candidate having not used the
material in spite of the opportunity available to her
the possession alone would not attract the provisions of the
Rule, in our view, is not borne out from the plain language
of the Rule. May be, because of strict vigilance in the
examination hall the candidate was not in a position to take
out the papers from the pencil box and use the same. The
very fact that she took the papers relevant to the
examination in the paper concerned and was found to be in
possession of the same by the invigilator in the examination
hall is sufficient to prove the charge of using unfair means
by her in the examination under the Rule.
6. We allow the appeal, set aside the judgment of the High
Court dated August 23, 1993 and dismiss the writ petition
filed by the respondent, Vineeta Mahajan before the High
Court. No costs.
10