LONEY TANVEERA RAHMAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) In this application under Article 226 of the Constitution of India, the petitioner has prayed for quashing the notice dated 1.8.1999 issued by the Officer-in-charge, B. Borooah College Centre expelling the petitioner from the examination hall and the letter dated 9.8.1999 of the Controller of Examination, Assam Higher Secondary Education Council to the petitioner informing her that she has been expelled from the Biology Examination held on 1.8.1999 for adopting unfair means in the examination hall while appearing in the said examination.

(2.) The facts briefly are that by a notification dated 16.8.1996, a set of Executive Instructions known as Medical Colleges of Assam and Regional Dental College (Regulation of Admission of under Graduate Students) Rules 1996 were notified. The said Rules were amended by notification dated 27.5.1999. As per the said Rules, as amended a common entrance examination is conducted by the Assam Higher Secondary Education Council for admission into 1 st year MBBS/ BDS Course in the three Medical Colleges of Assam and the Regional Dental College at Guwahati. The petitioner after having passed Higher Secondary Examination from Cotton College, Guwahati took the common entrance examination for admission into 1st year MBBS/BDS Course in the three Medical Colleges of Assam and the Regional Dental College, Guwahati for the session 1999-2000. She appeared in Physics and Chemistry papers on 31.7.1999 in Room No. 19 of B.Borooah College Examination Centre, Guwahati. She also appeared in Biology examination which was held on 1.8.1999 between 9.00 AM to 12.00 noon. The petitioner's case is that at about 11.15 AM when she had just completed the answers of Botany part of the question paper in Biology examination and was busy in writing Zoology part and had completed almost 80% of the answers, the Invigilator, Sri Dhruba Choudhury, respondent No. 9, asked the petitioner to leave the examination hall and took away her answer scripts and did not allow the petitioner to complete the answers to the remaining questions. Thereafter, she wrote a letter dated 6.8.1999 to the Controller of Examination, Assam Higher Secondary Education Council, Guwahati, requesting him to let her know as to why she was not allowed to comlete the Biology paper as well as the fate of the examination. In reply to the said letter dated 6.8.1999, the Controller of Examination, Assam Higher Secondary Education Council, informed the petitioner that as per the impugned notice dated 1.8.1999, she was expelled from the Biology examination held on 1.8.1999 for adopting unfair means in the examination hall while appearing in the said examination. Aggrieved, the petitioner has moved this court in the present writ petition for appropriate relief.

(3.) Mr. AK Bhattacharyya, learned senior counsel appearing for the petitioner, relying on the averments in paragraph-9 of the writ petition, submitted that on 1.8.1999, the petitioner before entering into the examination hall left a polythene carry bag containing some printed memory notes as well as a water bottle inside the car. But a few minutes before the examination commended, the petitioner's father hurriedly brought the water bottle along with the plythene carry bag in which it was kept inside the examination hall without knowing that in the polythene bag memory notes and papers had also been left by the petitioner. The petitioner then took the examination, but suddenly at 11.15 AM the invigilator, Sri Dhruba Choudhury, respondent No. 9, brought out some papers mostly memory notes from inside the polythene bag in which the petitioner's water bottle was kept and without saying anything asked the- petitioner to leave the examination hall took away the answer scripts of the petitioner. Mr. Bhattacharyya vehemently argued that the allegation of the said invigilator, respondent No. 9, as would be clear from the endorsement of the said invigilator on the answer script of the petitioner relating to Botany part of the Biology paper is that the petitioner while copying from the printed card was caught red- handed. The said endorsement has been made on the last page of the answer script of the petitioner relating to Botany part of the biology paper and on the answer of the petitioner to the 2nd part of question No. 11 of the question paper relating to Botany part of the Biology paper. A printed card amongst other papers alleged to have been seized at the time of examination were produced in court for the purpose of showing that the answers to 2nd part of question No. 11 of Botany part of the Biology paper to a large extent tallied with the notes in the said printed card. Mr. Bhattacharyya vehemently argued that it will be clear from a bare perusal of the answer script relating to Botany part of the Biology examination that the petitioner has completed answering all the question relating to Botany part of Biology examination and that she was in the midst of answering the Zoology part of Biology examination when she was prevented from completing the answers and this would be evident from a bare perusal of the answer script of the petitioner relating to Zoology part of the Biology paper which would show that the last sentence on question relating to Zoology part attempted by the petitioner has remained incomplete. According to Mr. Bhattacharyya, therefore, the case of the petitioner in paragraph-8 of the writ petition that she had already completed the Botany part of the question paper and was busy in writing Zoology part is true and if this case of the petitioner is true, the allegation against the petitioner that she was copying from a printed card while answering 2nd part of question No. 11 of the Botany part of Biology examination is false and unfounded. Mr. Bhattacharyya further submitted that the report of the invigilator, respondent No. 9, a copy of which has been annexed to the affidavit-in-opposition of respondent Nos. 6 and 7 as Annexure-6, would show that the Roll No. of the girls candidate who is alleged to have copied was 036. In fact, the Roll No. of the; petitioner was not 036 but 023. Mr. Bhattacharyya further submitted that the said report dated 1.8.1999 of the invigilator also did not contain the name of the petitioner. Accouding to Mr. Bhattacharyya, such a report of the invigilator cannot possibly be relied on by the authorities for the purpose of passing an order of expulsion from the examination hall. Mr. Bhattacharyya vehemently contended that Regulation 36 B of the Regulation for Conduct of Higher Secondary Examination, 1985 which are said to be followed by the Council also for common entrance examination for admission into MBBS/BDS Course in the State of Assam, contemplates that a candidate who is found guilty of an offence for which he/she is liable to expulsion under the Rules shall only be expelled by the Officer-in-charge of the examination and shall not be allowed to continue the examination. According to Mr. Bhattacharyya, before a candidate is expelled under the aforesaid provision of the Regulation a finding has to be recorded by the appropriate authority that the candidate was guilty of an offence under the Rules. But in this case, no such precise finding has been recorded by the authorities holding the petitioner guilty of a specific offence under the Rules. Mr. Bhattacharyya referred to the statement in the impugned notice dated 1.8.1999 issued by the Officer-in-charge of B.Borooah College Centre, Guwahati that the case of the petitioner would be finally decided by the Assam Higher Secondary Education Council. But the decision of the said council has not been communicated to the petitioner. He argued that even where the answers in the answer script of a candidate tally with a document, it cannot be held that the candidate has copied from the said document because a candidate is capable of memorizing the contents of the documents and reproducing the same in the answer script. He further submitted that the petitioner was sitting in the 2nd row of the examination hall and was, therefore, right under the nose of the invigilator and hence the question of copying by the petitioner from the memory notes/printed card does not arise. Mr. Bhattacharyya cited the decision of the Supreme Court in Rajesh Kumar v. Institute of Engineers (India), AIR 1998 SC 5, in which the Supreme Court held, inter alia, that the text of a book as the common source for cramming established no connection and that per se could not be evidence of any conspiracy between the crammers to adopt unfair means in the examination unless there be material to show that there was copying of the answer books, descended from the answer book of one of the candidates, or directly form the book leading to the copying by others. According to Mr. Bhattacharyya, the mere fact that the answers of the petitioner to 2nd part of question No. 11 of Botany part of Biology paper to a larger extent tallied with the printed card alleged to have been seized form the petitioner per se would not establish the fact that the petitioner was copying from the said printed card unless there were reliable materials to show that the petitioner was in fact copying from the said printed card. Mr. Bhattacharyya further submitted that the answers of the petitioner to 2nd part of question No. 11 of the Botany part of Biology paper if evaluated would have fetched the petitioner only 2 marks and considering the academic record of the petitioner and her performance in rest of the answer papers, the allegation that the petitioner copied for the said 2 marks is not believable. Relying on the decision of the Supreme Court in C. Tulasi Priya v. AP State Council of Higher Education, AIR 1999 SC 199. Mr Bhattacharyya submitted that the authorities can always exclude evaluation of answers to 2nd part of question No. 11 of the Botany part of Biology paper and judge the petitioner on the basis of her performance in rest of the answer scripts in Biology, Physics and Chemistry, and an appropriate direction may be issued to the authorities accordingly. Alternatively Mr. Bhattacharyya submitted that the authorities before recording a final finding against the petitioner ought to have given an opportunity consistent with the principles of natural justice. He cited the decision in the case of Nripendranath v. Gauhati University, AIR 1997 Assam & Nagaland 5, and the decision of thiis court in Civil Rule No. 731/98 (Manash Jyoti Mahanta v. State of Assam & Others) delivered on 25.9.1998 to the effect that principles of natural justice have to be followed before holding a candidate guilty of having adopted unfair means and imposing punishment on him. In this case, since no such opportunity was given to the petitioner and the principle of natural justice have been violated, the impugned notice expelling the petitioner from the examination hall and the impugned communication of the Controller of Examination confirming the said notice are liable to be quashed.