2016 (12) TMI 1895 - HC - Indian Laws

Cancellation of result of the examination and debarring him from appearing in any University examination till the end of the Second Semester of the Academic Year 2015-16 and penalty imposed - alleged commission of unfair means in the M.B.B.S. Part 2 examination held in January, 2016 - HELD THAT - The decision of the Supreme Court in Siddharth Ashvinbhai Parekh 2016 (7) TMI 1674 - GUJARAT HIGH COURT directly and squarely comes into play. As was noticed from the facts of that case, the said petitioner and the present petitioner, both appeared in the same M.B.B.S. examination in the same paper in the same language. The notice regarding unfair means was given to both on the same day. Both were called by communication dated 15th February, 2016 before the Unfair Means Committee to remain present on 24th February, 2016. The case of the petitioners were considered in the same meeting and in the minutes, present petitioner's case was decided under agenda No. 18 whereas petitioner of Siddharth Ashvinbhai Parekh was under agenda No. 17. The impugned order is of even date in both cases. The present petitioner as well as that petitioner faced similar charges about allegedly conducting themselves to disclose their identity in the answer-book. While in the case of the petitioner the nature of acts alleged for identification revilement were as noted above, in case of the petitioner in the other case, the allegation was that the said petitioner had breached the instructions by doing rough work on a different page number than required as per the instructions and that it was deliberately done to disclose the identity and reap the advantage. There was no gainsaying that the case of the present petitioner and case of Siddharth Ashvinbhai Parekh had similar and parallel facts and both the petitioners were virtually identically situated. In Siddharth Ashvinbhai Parekh, the set of rival contentions by both the sides were on the similar lines as could be seen from the contents recording the submissions in paragraph 5 to paragraph 13 of the said decision. The Division Bench applied the principle of no evidence to hold that the case against the petitioner was one of 'no evidence'. Pausing at this stage, the statement recorded on the same day of the present petitioner, if considered (Annexure C, Page 19), it was stated by the petitioner that providing a margin on the right hand side and mentioning page number was his way of writing. He explained that he had done that so that he could see the pages of the entire paper in serially within no time in the concluding moments of the examination time. He stated that it was done to ensure that no question is left untouched. It was stated that he had no intention to commit any unfair means and had not misconducted in any way but it was only his way of presentation the answers. He specifically denied the allegation about he having intention of committing misconduct or revealing identity thereby. Learned advocate for the petitioner struggled in vain, to contend that the facts of both the cases were different. In all respects ranging from nature of allegations to the nature of defence and the statement given by the petitioner, the facts were parallel and went hand-in-hand. It could be successfully submitted that therefore the petitioner being similarly situated, was entitled to the benefit of decision in Siddharth Ashvinbhai Parekh. By comparing the facts on record, the theory that the present case offers different facts could hardly be countenanced. Nor the aspect of special feature of case hold good. As noticed from the comparison of facts of both the case, they were similar wherein both the students were proceeded in same way on similar nature of charge. The principle of 'no evidence' and the attended reasoning supplied by the Division Bench apply to the present case with equal force. When the Apex Court does not entertain any Special Leave Petition while observing that it was keeping the question of law decided to be kept open, such question would be treated to have been left open for the Supreme Court only. As far as the High Court is concerned, it would be bound by the judgment not interfered with in the Special Leave Petition as per the law of precedence. In the subsequent case with similar facts and identical issue, the decision not interfered with by the Supreme Court would bind and the different view would be prohibited to be taken on the spacious ground that the question of law kept open, which was the liberty reserved by the Supreme Court for itself only. Therefore, in the instant case when Division Bench judgment in Siddharth Ashvinbhai Parekh was left untouched by the Supreme Court but the question of law was kept open, in the subsequent case considered by this Court where the facts were even otherwise found to be similar and the issue identical, this Court is bound by the decision in Siddharth Ashvinbhai Parekh. The impugned order dated 08th March, 2016 passed by the respondent University is hereby set aside and the respondents are directed to declare the result of the petitioner forthwith - petition allowed.

Summary

Issues Involved:
1. Alleged commission of unfair means by the petitioner in the M.B.B.S. Part 2 examination.
2. Imposition of punishment by the University.
3. Comparison with a similar case (Siddharth Ashvinbhai Parekh vs. Veer Narmad South Gujarat University).
4. Application of the principle of 'no evidence'.
5. Precedential effect of the Supreme Court's dismissal of the Special Leave Petition (SLP).

Issue-wise Detailed Analysis:

1. Alleged Commission of Unfair Means by the Petitioner:
The petitioner was accused of using unfair means during the M.B.B.S. Part 2 examination held in January 2016. The specific allegations included attempts to disclose identity by marking the answer sheets with identifiable features such as drawing margins, writing page numbers in boxes, putting a cross line with a pencil, and creating an index. These actions were considered a breach of examination conduct rules.

2. Imposition of Punishment by the University:
The University imposed a punishment on the petitioner, which included canceling the examination results, debarring the petitioner from appearing in any University examination until the end of the Second Semester of the Academic Year 2015-16, and imposing a penalty of Rs. 1,000/-. This decision was communicated to the petitioner on 8th March 2016, following an inquiry and consideration by the Unfair Means Committee and the Disciplinary Committee.

3. Comparison with a Similar Case (Siddharth Ashvinbhai Parekh vs. Veer Narmad South Gujarat University):
The petitioner's counsel argued that the case was similar to Siddharth Ashvinbhai Parekh vs. Veer Narmad South Gujarat University, where the Division Bench held it was a case of 'no evidence.' Both cases involved the same examination, similar allegations, and parallel inquiries. The Supreme Court did not entertain the SLP in the Siddharth Ashvinbhai Parekh case, noting special features but keeping the question of law open.

4. Application of the Principle of 'No Evidence':
The principle of 'no evidence' was central to the petitioner's argument. The Division Bench in the Siddharth Ashvinbhai Parekh case concluded that the University acted on assumptions and presumptions without concrete evidence. The petitioner in the current case made similar denials and explanations regarding the alleged misconduct, asserting that the markings were his way of organizing answers and not intended to disclose his identity.

5. Precedential Effect of the Supreme Court's Dismissal of the Special Leave Petition (SLP):
The Supreme Court's dismissal of the SLP in the Siddharth Ashvinbhai Parekh case, while keeping the question of law open, was discussed extensively. The High Court clarified that this meant the question of law was left open for the Supreme Court only and did not allow the High Court to take a different view in similar cases. Therefore, the Division Bench's decision in Siddharth Ashvinbhai Parekh was binding, and the current case, having similar facts, was subject to the same legal precedent.

Conclusion:
The High Court set aside the impugned order dated 8th March 2016, directing the University to declare the petitioner's result. The Court emphasized that the principle of 'no evidence' applied, and the University's decision was based on assumptions without concrete proof. The request for a stay on the judgment was rejected.