Agra University vs Ashok Kumar Arora

K.B. Asthana, C.J.

Special appeals Nos. 150 of 1975, 151 of 1975, 184 of 1975 and 195 of 1975 were consolidated for hearing as the subjectmatter involved in these appeals is similar.

These appeals were heard by us on August 8, 1975 and we dismissed each one of them without giving our reasons, which we are pronouncing now.

B.S.A. College, Mathura was one of the many Centres for holding of the examinations of B.Sc. Part II of the year 1974 of the Agra University, hereinafter called the ''University''. Ashok Kumar Arora, who is appellant in Special Appeal No. 195 of 1975, and the respondents in Special Appeals Nos. 184 of 1975 and 151 of 1975 appeared in the said examination. Likewise the respondents in Special Appeals Nos. 150 of 1975 and 184 of 1975 were also examinees in the said examination. The results of the abovenamed candidates and of some other candidates who appeared at the B.S.A. Centre were withheld In due course the results of others were released but not of the abovenamed candidates. They were eventually served with notices charging them for having used unfair1 means in one of the papers of Mathematics. They were asked to submit their explanation and appear before a subCommittee appointed by the Examinations Committee of the University. The Examinations Committee found them guilty of having used unfair means, cancelled their examination of 1974 and debarred them from appearing in the examination of 1975. Ashok Kumar Arora then filed writ petition No, 134 of 1975 in this Court, the respondents to Special Appeal No. 151 of 1975 filed writ petition No. 761 of 1975 and the respondents of Special Appeal No. 184 of 1975 filed writ petition No. 195 of 1975. The petitioners in all the three writ petitions questioned the validity of the action taken against them and sought for a mandamus for releasing their results of 1974 after quashing the order of the Examinations Committee. Two writ petitions were disposed of by a common judgment while the third was decided in terms of the common judgment. Before the learned Single Judge a statement was made on behalf of the University that if the petitioners applied again to the Vice Chancellor of the University, he was ready to have their cases reconsidered. The learned Single Judge acting upon this concession did not grant any mandamus as prayed for. However, the learned Single Judge accepted the contention raised on behalf of the petitioners that the Examinations Committee of the University had no power to debar the petitioners from appearing at any future examination and quashed to that extent the order of punishment passed by the Examinations Committee. The learned Single Judge further issued a direction that in case the petitioners made applications within one week for reconsideration of the matter, the University would reconsider the matter within one month thereof and do the needful. The petitioners of writ petition No. .761 of 1975 seem to have been satisfied with the result. However, the University feeling aggrieved filed three Special Appeals against the verdict of the learned Single Judge in each of the three writ petitions. Ashok Kumar Arora filed Special Appeal No. 195 of 1975 praying that a mandamus for declaration of his result be issued.

We do not think there is any substance in the appeal filed by Ashok Kumar Arora, when at the hearing before the learned Single Judge the parties accepted the undertaking given by the learned counsel for the University and being prepared to act upon it led the learned Single Judge to give an appropriate direction. We do not think the appellant can be said to be an aggrieved party so as to maintain this appeal.

We, accordingly, dismiss his appeal No. 195 of 1975 but make no order for costs.

Now coming to the three appeals filed by the University, we find ourselves in agreement with the learned Single Judge that the Examinations Committee of the University had no power to debar a candidate from appearing at future examinations in the exercise of its power under subsection (3) of Section 29 of the U.P. State Universities Act, 1973 (Act No. X of 1973) hereinafter called the ''Act''.

No doubt the Examinations Committee under the said Act is an authority of the University and by subsection (2) of Section 29 of the Act is empowered to supervise all examinations of the University and by subsection (3) of Section 39 of the Act is empowered to deal with and decide cases relating to the use of unfair means of the examinees either itself or through a delegate, or through an individual or subCommittee. We do not think it is possible to spell out a power for debarring a candidate or an examinee from appearing at the future examainations when dealing and deciding his case relating to the use of unfair means. The Examinations Committee, according to the scheme of Section 29 of the Act, as we read and construe it, exercises general supervision of all examinations of the University for each particular year, that is to say, that all examinations conducted by the Agra University in 1974 were under its supervision. It would be seen from subsection (2) of Section 29 of the Act that the power of general supervision of the Examinations Committee includes appointing examiners and moderators and if necessary to remove them; reviewing from time to time the results of University Examinations and submit reports thereof to the Academic Council; scrutinizing, the list of examiners proposed by the Board of Studies, finalise the same and declare the result of the University. By the very nature of these functions it is clear that for the Examination of each year that the Examinations Committee performs its duties. It is not possible to read the provisions of that Section in a way that for all future examinations also the Examinations Committee at one particular time in a year can appoint examiners, moderators and declare results. There is, however, one function assigned to the Examinations Committee that is for making recommendations to the Academic Council for the improvement of the examination system. This function, however, would not mean supervising the examination or examinations and" cannot be said to be supervisory function. It is a recommendatory function regarding the system of examinations in general. The function of recommendation for improving the system of examinations falls outside the pale of function of supervising an examination or examinations. Merely because the Examinations Committee can also suggest methods of improvement of examination system would not mean that it can also appoint examiners, moderators and declare results of all future examinations. We are unable to accept the submission of the learned counsel for the University that the function of dealing and deciding cases relating to the use of unfair means by the examinees will vest a power with the Examinations Committee not only to cancel the particular examination in the course of which the examinee has been found guilty of using unfair means but not to allow him to appear at any future examination of the University as it is vested with the power of general supervision of all examinations of the University. The fallacy in this argument is that the learned counsel imports a meaning in the words ''all examination'' used in subsection (2), which they cannot legitimately bear as meaning examinations to be held in future by the University so long as University exists.

In support of his proposition that the Examinations Committee having vested with the power of general supervision of all examinations can debar an examinee from future examinations, a reference was made to a decision of a learned Single Judge of Calcutta High Court in the case of Bijan Behari Goswami v. University of Calcutta A.I.R. 1967 Cal. 50. In that case clause (o) of Section 21 of the Calcutta University Act, 1951 came up for consideration. That Section empowered the syndicate to conduct University examinations and approve and publish results thereof in accordance with the Statutes and Regulations. No doubt the learned Judge held that the power conferred by Section 21 (o) will give a power to debar a candidate from appearing at an examination for misconduct but the learned Judge pointed out the defect in the actual language and the doubtful position created by the rules which did not expressly empower the University to debar an examinee from future examination. The reading of the case as a whole, to our mind, does not afford any assistance to us in construing and interpreting the provisions of Section 29 of the Act. The decision of the Calcutta High Court went on peculiar provisions of the Calcutta High Court went on peculiar provisions of the Calcutta University.

The matter can be considered from another angle. Subsection (3) of Section 29 of the Act confers power on the Examinations Committee to delegate its power to any one to deal with and decide cases relating to the use of unfair means by the examinees. An examinee would be a student who has been duly found eligible and admitted to an examination. A student of the University or affiliated College of the University who has not been admitted to an examination will not be an examinee. Now debarring a candidate from an examination which is to be held in future would amount to refusal to admit him to that examination. The Examinations Committee only gets jurisdiction regarding examinations to be held each particular year and it is empowered to deal with and decide cases of a student who has been duly admitted to the examination of each particular year. It will have no jurisdiction over any matter which does not relate to the conduct of an examinee. Since a student will be an examinee after he has been admitted to the examination, the Examinations Committee in the guise of exercising its supervisory power cannot assume jurisdiction to take action against a student who is not an examinee. The Examinations Committee has no power in our opinion to admit or not to admit a candidate to an examination. There is no such power conferred under Section 29 of the Act. The Examinations Committee cannot treat a student who once has been an examinee in an examination in a particular year as always an examinee for the same examination in future. It is clear, therefore, that as a matter of punishment even no such power can be assumed. Worded as subsection (3) of Section 29 is, to say the least, it is very inartistic and lacks directness. It does not in express terms confer a power on the Examinations Committee to punish unless that power of punishment is impliedly read in phrase ''to deal with and decide cases''. It is unfortunate that though the Act has been in force for more than two years, no Ordinance has been framed as none has been brought to our notice. Thus we are driven to the conclusion that while it is within the power of the Examinations Committee to cancel the Examination relating to which use of unfair means by an examinee has been proved, it has no power to debar him from appearing at the future examination. We may observe in this connection that the learned Single Judge seems to be of the view that the Ordinances of the Agra University, an existing University within the meaning of the Act, which deal with matters relating to cases of use of unfair means by the examinees and constituted the Executive Council or the Vice Chancellor as the authority for awarding punishment to the guilty examinees, would cease to be operative as being inconsistent with the provisions of the Act. This is a question on which we reserve our opinion as we think with some tenability it can be argued that there being nothing in Section 29 of the Act conferring power of punishment to an delinquent examinee on the Examination Committee, all the existing Ordinances on the subjectmatter of awarding punishment would survive till they are varied, modified or rescinded by new ''Ordinances'' made under the Act.

For the above reasons, we do not find any merit in the appeals filed by the University and we dismiss each of them with costs.