ABIDA ARA Vs. UNIVERSITY OF KASHMIR

JUDGEMENT

(1.) THE petitioner seeks a writ of certiorari to quash the notification No. FIT (UFM) Tab/KU/88 dated 4.11.1988, where -her examination for B -A Final Session. June -July, 1988, has been cancelled by the respondent. She further prays for mandamus to get her result of Final Examination Session June -July, 1988 declared.

(2.) THE case of the petitioner is that she appeared in B -A Final (Bi -annual Examination) Session June -July, 1988 under Roll No. 1061 and she was served by a charge sheet for use of unfair means/misconduct in the said Examination on 14.7.1988, in political Science paper A. The petitioner replied to the change sheet alleging that a chit was found in her answer book by the Controller of Examination and she had identified herself by making headings and sub -headings in the answer -book, thereby having used unfair means and misconduct or her part. The petitioner appears to have replied the charge sheet, (SIC) that the written chit found in her answer book was not connected with the examination on that date and the headings and sub -headings in different ink were not to identify herself, but made mark of questions replied. The respondent appears to have served a show cause notice No. FII (UFM) 1061 -Tab/I U dated 27.9.1988, annexure P -III to the petition, informing the petitioner regarding the tentative conclusion by the competent authority to cancel her examination for the unfair means used by her. The petitioner gave a detailed reply to the show cause notice (annexure P -IV to the petition), praying therein that sthe be heard in person and allowed to lead evidence that the chit recovered from her is not in any way connected with the subject of the examination and also explained regarding using green ink in headings in the answer -book. She also appears to have prayed for examination of the report regarding the conclusions of the chit recovered not connected with the examination and regarding the marking of headings and also regarding information of witnesses who appeared against her and whom she wanted to cross -examine that she be heard in person in presence of Expert and to lead evidence also Now the case of the petitioner is that despite her request for personal hearing and rebutting her case and also to cross -examine the witnesses examined against her, the respondent served the impugned notification candling her Examination for B -A Final (Bi -annual Examination) Session June July, 1988. It is on these pleas the petitioner has filed this petition, alleging that respondents have failed to observe the principle of natural justice in not allowing her personal hearing or to lead evidence in rebuttal of the allegations or to cross -examine the witness who may have deposed against her. Therefore, she is seeking a writ of certiorari to quash the notification No. FIT (UFM) Tab/KU/88 dated 4.11.1988 and also mandamus for declaring her result for the said Examination.

(3.) THE respondents on admission contested the writ petition and filed counter. The counter has been filed by the Registrar, G.N. Siddiqui, who has raised a preliminary objection to the maintainability of the writ petition that the petitioner had alternate remedy available under Statute 60 within a period of 45 days, what has not been done and this writ petition before the Court is not maintainable. The objection raised by the respondent cannot be disputed, but now it is settled law that where right of an aggrieved person and principles of natural justice are violated the aggrieved person has option either to take alternate remedy or to approach the court directly under the constitution for redress of his grievances. In this case, the allegation of the petitioner is that she asked for personal hearing after notice regarding show cause for proposed punishment was issued to her She also off erred to produce evidence and cross -examine the witnesses who may have deposed against her but the respondents by maintaining the silence did not hear the petitioner personally, nor afforded her opportunity to rebut the allegations of unfair means by producing evidence or cross -examine the witnesses examined against her. The respondents have denied this allegation merely saying that sufficient opportunity was given to the petitioner short of any proof on the file maintained by the respondent and produced before the court. In these circumstances, the petitioner cannot be barred to come the court when she has raised the allegation of principles of natural justice and her right to be heard personally under the Statute or to lead evidence or cross -examine the witnesses if any examined against her. In this view of the matter, the objection raised by the respondent stands over -ruled.