Use of unfair means at the examination

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DIVISION BENCH

( Before : S. C. Agrawal, J; Kuldip Singh, J )

CENTRAL BOARD OF SECONDARY EDUCATION — Appellant

Vs.

VINEETA MAHAJAN (MS) AND ANOTHER — Respondent

Civil Appeal No. 5450 of 1993

Decided on : 15-10-1993

Constitution of India, 1950 – Article 226 – Unfair means – Candidate appearing in the examination – Recovery of incriminating material from possession – Requirement of Rule satisfied – Inference can be drawn that candidate used unfair means – Sufficient to prove the charge.

Counsel for Appearing Parties

P.P. Rao, Rajeev Sharma, T.C. Sharma, Rajni K. Prasad and Neelam Sharma, for the Appellant; G. Ramaswamy, Senior Advocate, S. K. Mehta, for K.L. Mehta, for the Respondent

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Kuldip Singh, J.—Special leave granted.

2. Vineeta Mahajan, respondent in this appeal, appeared in 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 Surerintendent. 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 takeout the papers from the pencil-box before entering the examination hall. The Deputy Superintendent of the Examination center 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 special leave is against the judgment of the High Court.

3. Rule 36.1(iv)(a) of the Rules (the rules) for unfair means cases framed by the Board which is relevant for our purposes is reproduced hereunder:

36.1(iv)(a) 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 examination:

(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 for 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 presumptionPresumption An inference of the truth or falsehood of a proposition or fact that stands until rebutted by evidence to the contrary. that the candidate is guilty of using unfair means if, inter- alia, written material is found on the person in the examination. But this is a rebuttable resumption and it can be seen whether in fact (he 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 and 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 the 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 costsCosts Subject to any written law, costs are at the discretion of the Court, and the Court has the power to determine all issues relating to the costs of or incidental to all proceedings, including by whom and to what extent the costs are to be paid, at any stage of the proceedings or after the conclusion of the proceedings. Generally “Costs” includes charges, disbursements, expenses, fees, and remuneration. Costs in any matter are payable from the date of the order of the Court unless the parties otherwise agree. The costs of a third-party funding contract are not recoverable as part of the costs of, or costs..

(1994) AIR(SCW) 77 : (1994) AIR(SC) 733 : (1993) 22 ALR 532 : (1993) CLJ(Service) 696 : (1993) 52 DLT 429 : (1994) 1 GujLH 71 : (1993) 6 JT 165 : (1994) 2 MLJ 18 : (1994) 1 RSJ 555 : (1993) 4 SCALE 153 : (1994) 1 SCC 66 : (1994) 1 SCC 6 : (1993) Sup3 SCR 387 : (1994) 1 SCT 482 : (1993) 5 SLR 759