S. Rafat Alam and Sudhir Agarwal, JJ.
1. This special appeal, under the Rules of the Court, is preferred against the judgment dated 3.10.2006 of the Hon'ble Single Judge allowing the petitioner-respondent's Civil Misc. Writ Petition No. 28603 of 2006.
2. Heard Shri A.B.L. Gaur, learned Senior Counsel appearing for the appellants and Shri Amitabh Tripathi, learned Counsel appearing for the petitioner-respondent and also perused the judgment under appeal.
3. It appears that the petitioner-respondent was caught while appearing in LL.B. 1st year examination of 2006 of first semester on the ground that unauthorised material has been found from his possession. The alleged unauthorised material, which was recovered from his possession is some number written on the admit card. From a perusal of relevant record, produced for the perusal of the Court, it is apparent that some number, may be telephone number, is written at the top of back page of admit card.
4. Shri A.B.L. Gaur vehemently contended that the admit card does not permit any writing by the candidate except in the columns meant therein for filling his names etc during examination and the action taken by the University is accordance with the provisions contained under Chapter XXVII of the Ordinances on the Use of Unfairmeans and Causing Disturbances in Examination (hereinafter referred to as the Ordinance). He further argued that the cost has been directed to be paid by the Controller of Examination although as per Ordinance he cannot be held responsible. In support of his contention he placed reliance on the judgments of the Hon'ble Apex Court as well as Division Bench of this Court in Central Board of Secondary Education v. Vineeta Mahajan (Ms) and Anr. , Chairman, J &K State Board of Education v. Feyaz Ahmed Malik and Ors. (2003) 3 SCC 59 and Special Appeal No. 1017 of 2006, The Vice Chancellor, C.S.M.U., Kanpur and Ors. v. Abhay Kumar Tripathi and Ors. decided on 18.9.2006.
5. Having considered the aforesaid submissions we are of the view that the judgment under appeal warrants no interference. A candidate found using or attempting, abating or instigating to use the unfair means in the examination of University of Allahabad is liable to punishment in accordance with the provisions contained in Chapter XXVIII of the Ordinances. However, the term unfair means has been defined in Clause 1.2 (A) as under:
(A) Unfairmeans:- A candidate shall be deemed to have used "unfairmeans" if the candidate transcribed any part or the whole of the unauthorized material or if he intimidates or threatens or manhandles or uses violence against any invigilator or person on duty in the examination or if he leaves the examination hall without surrendering his examination script to an invigilator or if he is found communicating with other examinees or any one else inside or outside the examination hall.
6. In the case in hand the case of the University is that the petitioner-respondent was guilty of unfair means since unauthorized material was found in his possession. The term unauthorized material is also defined under Clause 1.2(C) as under:
(C) Unauthorised Material:- "Unauthorised material" shall mean any material whatsoever, related to the subject of the examination, printed, typed, written or otherwise, on paper, cloth, wood or material in any language - in the form.
7. Therefore, it is not any or every material, possession whereof would attract the mischief of the aforesaid provisions but only such material which is related to the subject of examination whether printed, typed written, or otherwise on paper, cloth, wood etc. or material in any language. The fact remains that such material must relate to the subject of the examination. The phrase "material related to the subject of the examination" is also defined in Sub-clause (E) of Clause 1.2 as under:
(E) Material related to the subject of the examination:- 'Material related to the subject of examination' shall if the material is produced as evidence, mean any material certified as related to the subject of the examination by a teacher of the subject. If the material is not produced as evidence or any of the reasons referred to in (D) above, the resumption shall be that the material did relate to the subject of the examination.
8. Sub-clause (E) therefore makes it clear that the material, which is certified by a teacher of the subject, as related to the subject of the examination, shall be the requisite material, which is prohibited. In the case in hand, the petitioner-respondent is said to have been found with the admit card whereon a number is written by hand. The original record was also produced before us and we did not find any certification by a teacher of the subject that the said number mentioned on the back of the admit card is a material related to the subject of the examination i.e. Environmental Law Paper of First Semester Examination of LL.B. 2006. Learned Counsel for the University also could not point out as to how and in what manner the said number can be related by any stretch of argument or imagination to the subject of the examination. In these facts and circumstances, we have no hesitation to observe that the authorities have shown a total non-application of mind and have grossly erred in law in penalizing the petitioner-respondent on the charge of unfair means causing not only waste of his valuable time but also mental agony, loss of reputation amongst the friends and relatives, and has caused other serious inconvenience.
9. Coming to the argument that a decision of the educational authorities in the matter of unfair means shall not be interfered at all in any circumstance by the Court, we have not" hesitation in observing that arbitrariness and total non-application of mind in any manner shall not prevail over the constitutional power of judicial review of this Court in exercise of jurisdiction under Article 226 and where this Court finds that a glaring illegality has been committed by an authority, it can always take steps to set it right, Arbitrariness is antithesis to the doctrine of equality and any act, which is patently arbitrary, is violative of Article 14 of the Constitution of India. A student, victim of arbitrary act on the part of the University is right in contending that his fundamental right under Article 14 of the Constitution of India has been violated and this Court being sentinel for protection of fundamental rights, whenever finds such a complaint to be correct, has to rise to the occasion for rescue of such person to set the things right. It is not disputed that University is an authority and constitute "State" under Article 12 of the Constitution cannot act arbitrarily. Whenever any act or decision of the University or its agents and authorities is found to be arbitrary, this Court is well within its competence and authority to interfere with such illegal action of the University and its agents. Coming to the judgments relied by the learned Counsel for the University, we find that in the case of Vineeta Mahajan (Supra) the student was admittedly found in possession of written material in the shape of three small pieces of paper kept in the pencil box which was related to the examination concerned but the High Court interfered with the decision of the educational authorities only on the ground that she had not used the said material while answering the question paper. Rule 36(1) of the Rules for unfair means framed by the Central Board of Secondary Education provided that a person found in possession of the incriminating material shall be deemed to have used unfair means at the examination and in such circumstances it was held by the Apex Court that once candidate was found to be in possession of papers relevant to the subject, the requirement of the Rule was satisfied and there was noescape from the conclusion that the candidate has used unfair means. Whether the material was in possession of the candidate bona fide or mala fide was irrelevant and therefore the decision of the High Court in interfering with the decision of the educational authorities was set aside. On the face of it, this case is distinguishable and has no application to the facts of the case in hand since the possession of material related to the subject examination is lacking in the case in hand. Similarly in Feyaz Ahmed Malik (Supra) the regulations framed by the Board for dealing the cases of mass copying was challenged on the ground of the jurisdiction of the Board in framing such provisions, which was upheld by the Apex Court. The aforesaid judgment therefore has no application at all to the facts of the case. However it would be relevant to mention that in Feyaz Ahmed Malik (Supra) in para 18 of the judgment, the Apex Court referred to its earlier decision in Bihar School Examination Board v. Subhas Chandra Sinha and Ors. wherein it was held that while judging the authority or otherwise or the steps taken by the educational authorities in taking action against candidate resorting to unfair means, it should be borne in mind that the educational authorities are entrusted with the duty of maintaining higher standard of education and proper conduct of examination. It is an expert body consisfing of persons coming from different walks of life who are engaged or interested in the field of education and have wide experience and decision of such expert body should be given due weightage by courts. However, in para 14 of the judgment in the Subhas Chandra Sinha (Supra) the Court held:
If there is sufficient material on which It can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled then academic standards require that the university's appreciation of the problem must be respected....
10. Thus, in the matter of judicial review it is true that this Court does not sit in appeal over the decision taken by the authorities provided the decision does not appear to be glaringly and patently absurd and arbitrary.
11. Similarly the facts of the case in Abhay Kumar Tripathi (Supra) are also different and have no application to the facts involved in the case in hand. A bare perusal of the judgment shows that one printed page was found in possession of the candidate, which was related to the subject of examination, and the possession of the said material was not denied. In the facts, the judgment in Abhay Kumar Tirpathi (Supra) has no application and this Court rightly held that such a candidate could have been punished for unfair means and in such case no interference is warranted. However the present case has the facts otherwise and the very existence of material related to the subject of the examination is absent. When a candidate is found in possession of any unauthorised material, which has no bearing or connection with the subject of the examination, in that event it cannot be held that the material recovered from his possession is unauthorised. In the case in hand, some number has been found written on the back of the admit card, which probably may be telephone number. Thus, the Hon'ble Single Judge has rightly held that it is not unauthorised material and in the facts of the case, we do not find any factual or legal error in the judgment of the Hon'ble Single Judge.
12. Shri Gaur lastly submitted that imposition of costs of Rs. 5000/-(Rupees Five Thousand only), which was directed to be recovered from the Controller, is not justified as he has no role to play in the matter and the entire action has been taken on the basis of the report of the invigilator and the experts. We cannot accept this submission because the invigilator and the examiner are the agents of the Controller of Examination and thus, he is liable to pay costs. However, it is provided that it would be open to the University or the Controller of Examination to make necessary inquiry in the matter 'identifying the person guilty of the said mischief and realize the cost from him.
13. With the aforesaid observation, this special appeal stands dismissed.