Dr. Vipin Sharma v. National Board of Education & Ors

AB xfr $-:]IJ 'r [N 'I'HI| IXI(,JII COUIfT (}]..- DELIU nT NIIW Dlttr,HI r w.f'.(C) 328512011 ,L.' ,y,, '\ .luagmcnt dated 31.10.2012 I)l{. \/lpIN SII^I{MA :- ..... Petitioncr' 'l'hrough: Ms. Mukti Clhowclhary, Achr. vorsu!l NA't'IONnL BOAIID Olr IlDtlcnl'toN & OI{S. ..... Ilcspondcnts ,'I'hrough: Dr.lterkcsh Gosirin. Adv. for Itl & I{2 COI{AM: trI {)N' I}}., F] M X{. J IjS'I]IC Ii G. S.SI S'TAN I CrlW

¶1' 'l'lrc plcaclirrgs in this rnatlcr are coulplctc. 2 ltulc. 'l'lre writ pctition is sct down lor final hr:atring an,j disposal.

¶3tly thc prcscnt r.r,rit pctitiorr petitioner sccks quiishirrg ol' ot'dcr datcd

25.,1.?.t)l I pa:;scd bl,ttrc Natio.uai []oard of lixaminationsr. I)etitiottu'alr;o prays Jbr issuancc ol'lr,'rit in thc nature of riianclarnus dirccling thc,' itlllii to allorv tlrc pctilioncr to appeai'in thc I)NII lijnal lixaminations.

4.. 'l'hc pctitionct is a sludcnt of Scconclary Diptornat of National Boeu'd (hcx'cinallcr rcfcrrccl to as DNR), I)(i coursc 'ft'om i)ccn l)ayal IJpadhyay tlospital. Pctitioncr was aclmitLccl in Jr.rly, 2007 in tirc Sccondary I)iplortrat rif National lJoarci I)(i ccurse r.ryJrich r,vas to be considorcci iu Junr:, ?.009. On acconnt of a dispr.rtc rvith rcrgarcl to thc i:r:ct'etJitil1icr'' rrl' thc I)I)tl [o;pital by an orclcr of J7.4.2009 NI]ll granlcd pr<n,isir>tta-l roncwal of accrcdithtion in thc Oplrttralmology Dcpa.rtmcnt oi-Dl)U Ilospital as it hacl lapscd r:tr 30.6.20{Yl. lly an itrtct'irn ordct' cialoci

5.6.2009 thc (lourt pcrurittcd tho pcLitiorror to erppcar jn thr cxnrriination sohctlulcci on 13.6.2009 and 1 4.6.2A09 srlb.jcct to f-tnal outcotnc oIthc rvlit potition. 'l'hc exanrination n'as [o bc hcld on 13.06.2009 and i4.06.2409. u n.P.((') J)85/201 r l'rye | $ 14 t\ \) T)uri1g thc final cxamination thc petitioncr unintentionally and by rnistakc lailccl to clcposit his mobilc phonc with thc invigilator in thc sccond scssicrn on 14.06.2009. It is the casc of thc pctitioncr that thc mcltlcnt thc pctitiolcr rcalizcd his uristerke thc pctitioncr itnrncdiatcly and voluntarily clcpositcd his mobile phonc with thc invigilalor. It is contcndcd that it was alt innoccnt rnistarkc on thc part of tlre petitionet' atrd not a fi'ar"rdulcnt act lcither any elcctronic data u,as prcscnt in thc nrobilo phonc nor cluring thc cogrse of cxamination thc pctitioncr madc any communication tluough thc mobilc phclnc. In support of thc plca thal carying of tho rurgbilc phclnc in thc cxarninalion hall was a gcnuitro mistakc, lcarncd oounscl submits that thc phone was neither: switchccl off nor on thc silcrlt o1 vibration modc but on thc gcneral ringing tonc a.nd ha<J thc pctitioncr anl, intcnticln of using this dcvicc for unl-air mcans the first pt'ccaution hc wonlcl have taken was to kcep thc mobiJc: phonc on silcnt or vitrration mocle. It is also subrnittcd that aftcr thc mobile phouc was handecl ovcr to tlio invigilator no action was talcen against thc pctitioncr althotrgb thc pctitioncr rcndclcd his cxplanation to the rcsponclcnts and it is only cln

12.8.2009 whcn thc rcsult of [hc final DNI] cxeunination was clcclarcd that tlrc rcsult of thc petitionct' and all other stucicnts who had filccl a writ potition in thc Iligh Court and who had appcatrcd on thc basis of an intcrirn orclcr, was also withhcid. Pctitioncr was cvell at that stagc was not infonnc<J that his rcstrlt had bcerr withhcld on account ol" ttrc rnobilc phonc in tris posscssion ch-rring thc cxamiuation. Pctitioncr was tclcphonically infonncd to appcar on 8.10.2009 bcforc thc Iithjcal Cclmrnittcc. No shor,v causc notice was issued to thc petitioncr in writing. I)otitionq'cxplaincd his stand bcforc thc litirical Committcc. Ilorvcvcr, no clccisicln of tlrc lithical (l<llnnritteo was comtriunicatcd tcl thc pctitiotrcr. '['[c rcspondcnts conlinLrcd to hold thc rnobilc phone of thc pctitioncl cvcn I'age 2 of 14 ty.r,.((:) 3285/201 I i , tLf till tfiat stagc. Pctitioner was ncver infortnccl that arny lcgal data was rccovcrccl fi'orn his mobile phone. Petitioncr was allowcd to appcar in thc final thcory cxamination hclcl in 2009. No objcction was raisccl by thc rcgpclnclcnts which wor-rld strow that evcn till Deccntbcr, 2009 no advcrsc ctccision lracJ bccn takcn by thc tithical Comrniltcc against thc pctitioncr or clsc thc pctitioncr would not havc becn pcrmittcd to appcar in thc final theory cxamination. Accotding to thc pctitioncr the orcler oI thc lithical Cornrnittcc clatecl 9.11 .201 0 was passcd post l)eccntbcl, 2010 but datcd as g.Il.20t0 which is cvidcnt Ii'om thc fact lhat ncithcr ttris orclcr was cgmrnunicatccl to thc petitioncr nor ol1 thc basis oI this ordcr thc pctitioncr rvas privcntcd fr'orn appcaring in thc cxarninatior, hclcl in I)ccctnber, 2010. Counscl lbr thc pctitioncr subrnits that aftcr thc inciclent and hcaring bcfore the Iithical Cornrnittcc thc pctitioncr rcqucstcd the rosponclcnl. No.1 to disclosc thc dccision oF thc Iithicai Cunmittsc vidc Icttcr datccl 5.4.2010. A rcmindcr was issucd on 27.8.2010. A rcclttcst was also rnaclc to disclosc the rcsult. 'fhc rcspondcnts rnaintained absolute silcncc. No rcsponse was scnt to thc rcqucst of thc pctitionel'. l'he potitioncr. thcrcaftcr filcd an application unclet thc ILight to Inlbrmation Act whep' hc r.vas inlbnncd that tirc lithical (iommittee had passccl an orclor on 9.11.2010 holding thc pctitioncr guilty for rrsing unlair rrcans arncl on thc basis of thc lithical Cornmittcc barrcd thc pctitiotrcr for a pcriod of thrcc years (6 altcmpts including the attcrnpt of Junc, 2009 lor appcaring in thc final thcory cxamination). Iivcn at that stagc thc rcsponc{cnts ctid not-,scrvc a qopy ol thc orclcr of 9.11.20J0 to thc pctitioncr'. It is lurther allegcd by counscl for thc pctitioncr that in fact po orclcr was passcd on 9.11.2010 and tlrt: ordcr passecl allcr onc ycar is a 1-akc ordcr. Petitioner thcreallcr rnovcd an application ttndcr thc l{ight to Information Act sccking thc basis on which thc punishmctlt was eiwardcd. r,"P.((') 328s/201 I I'age 3 oJ 14 '4 \, Copy of the rninutos of 8.10.2009 was also dcrnandcd. In rcply to this clLlcry thc rcsponclcnts scrved minutcs of rnccting hcld on 30'3.2010. I{elcvapt oxtract of tfio rulcs o[NI]C were also sr-rpplicd to thc pctitioner.

¶5Aggricvccl by thc orclcr passccl by thc NllC, the pctitioncr fllcd a writ pctition wkrich was withclralvn as an aitcrnatc rcnrccly by way of an appeal to thc lixccutivc Dircotor was availablc to the petitioncr. Appcal was filccl by thc pctitioncl'on 13.3.2011 and thc ordcr was t'cscrvcd. 'fhc appcal was not clcciclcd within thc cight wccks pcriod allou'ccl by thc Court. Ilowever, the Appeal Cotnrnittcc, paflly allowcd thc appeal and rocil-rcccl thc punishmcnt liom six setnesters to thrcc scmcstcls and it was also observcd that thc punistrmcnt would not be rc{iccted in his futulc celrccr. It is this orclcr ers also thc cltclcr passcd by thc lithical Cotntnittcc which is subjccl of challcngc t>r:forc this Court. Lcatnccl counscl lol Lhc pctitioncr submits that thc irnpugned orders ot25.4.201I passcd in appcal upholding thc ordcr datcd 9.11.2010 arc complctcty arbittary as rnerc pgsscssion of a rnobilc phonc clocs uot covcr any of thc catcgorics ncntionocl in thc rulcs fol pr.rnishing thc pctitioncr. It is contcndcd that thc rcsponclcnts havc lailed to adclrcss thc isstrcs raiscd by thc pctiticlncr in the appcal. 'I'hc rcspondcnts havc lailcd to appreciatc that an innoccnt mistakc by thc petitioner could put a black spot on thc pctitioncr's oarcel'. It is sgblrittcd that thc cerse of thc pctitionct would not be covcrccl by any of.thc four catcgolics t'nol'c paltioularly oatcgory No.4 sought to bc rclicd Llpon by the respclndcnts in passing thc impugnccl ordcr. Cotrnsel submits that therc is ncl matcrierl on rccr::'d tcl suggcst that cithcr thc pctitionor was caught using thc rnobilc phonc or rccciving a call or any matcrial to show that any olIon<ling nratcrial was storecl in thc memoly <lf thc mobilc phone or any analysis oI'thc siur card to strggcst that therc was any intcnlion ou thc part oI the pctitioner to nsc thc rlobilc phonc as a mcdiunr of rurl-air , H/.r'.(() 3285/201I I'age 4 o.f 14 lb .l lncans. It is strongly urgcd beforc this Court that rlcrc posscssion of thc rnobilc phone cannol cntail thc punishmcnt rncltcd out to thc pctitioner in thc abscncc of any rcasonablc matcrial to show that thc pctiticlncr citircr intcndccl [o Llse or usecl thc mobilc phonc during thc cxanrination. Counscl subrnits that the petitioner has acLnittcd thc posscssion of the rnobilc phonc but disputcd that the phone was carried to thc cxatlination hall with thc intent to use it for rrass copying and for unlair rleans. It has alscl bccn contcnded that thc harsh pttnishrncnt has bccn rncltcd out to thc pctitionct on account of thc fact that hc was ollc of thc partics who hlcd Wp(C) No.9563/2009 challcnging thc ordcr of thc rcspondcnt No'l rclatcd tcl thc prcscntation of thc DDll I'Iospital which writ pctition was allorn cd in -f,avour of thc pctitioncr. It is also the sublnission o.f lcatncd cclunscl for thc pctitioncr that thc pctitioncr ltas bccn a. goocl stuclcnt througfto1rt his acadcrnic carccr and has nevct' bccn involvccl in any erctivilics of unfair rncans. Pctitioncr stood at rank 2 in thc DNII liutrancc lixarrination in Ancsthcsia ancl alscl securcd sccotrd ratrk in Dr\ exarnination tlrcory in G.I{.M.C Gwalior. Jlctitioncr has arlso earncd a goocl rcputation in thc DDIJ Ilospital where hc was studying. Counscl lirrthcl submits that thc pctitioner has suilcrcd irnmcnscly fiorn the year 2009 as [c has choscn not to appcar in thc oxamination till thc c{ark spot in his carccr is rornovecl. It is subrnittcd that pctitioncr has already sufferccl since 2009 ilnd thus thc impugncd ordcrs may bc clurashcd and set asidc.

¶6Dr. I{akcsb Gosain, lcarnccl counscl for thc re.spondcnt No.2 subrnits that o114.(t.2009 clLrring thc collrse of cxarnination thc Ccntrc Supclvisor after spotting/dctccting thc rnobilc phonc with thc petitioncr rcgistcrcd a case of usc of unl-air mcans in thc oxaminalion. 'I'he original answcr shcct of thc pctitioncl'was takcn away and anothcr blank answcr sheet was handcd Irnoo S nl ll , il'.P.((:) 328s/20t I t?d i& ovcr to thc pctitioncr for completion of his cxamination. It is subrnittecl that thc clccision of thc rcsponclcnts cannot bc irnputcd or tilted with arbitrarincss, pcrvcrsily or unrcasonablencss warranting intcrl-erence undcr thc cliscretionary jurisdiction of the lligh _Court. 'lhc power of judicial rcvicr.v undcr Articlc 226 of thc Constituticln of India would look onllr 1q 1-t" clccision lnaking proccss ancl not thc dccision. Counsel subrnits that duc publicity has bccn givcn that posscssion of rnobilc phonc is prohibitcd during thc cxamination and posscssion wotrld tantatnount tcr use of unfair rncans lras been notificd to candidalcs on various clccasions through ncwspaper', notilication, admit cards, infounation, bulletin for the cxamination including at thc timc of thc cxamination printccl on the clucstion papcrs as also printcd on thc jackct of tho booklct. Attcntion of this Court is drawn on thc dol-inition of uirfair mcans as pcr thc guidclincs in thc bullctin of inforrnation which reads as follows:- "tJnfair rncalls inoludcs canvassing for support of a candiclatc with cxarnincrs oI DNI] llxarnA\Illi oflicc/any othor functionary/usc o'f clcctrotric gadgcs as Mobilc Phoncs during cxam/impersonation/usc of study aids as bcloks/notcs ctc. during cxarn/Inlurcncing any functionary of cxaln systcm/any other aot intcndcd to brcach thc sanctity o1' cxaminations prclccss."

¶7Lcarnecl coullscl for rcspondcnt No.1 ncxt submits that thc Iixaminations lithics Cornrnittcc mcc[ing of 8.7.2009 was hcld and 1hc casc of the pctitionor rvas discusscd. 'l'his cornmittcc compriscs of l6 tncmbcrs. In . thc rnccting it was clccidcd that an opportunity should bc givcn to thc pcliticlncr to reprcscnl his casc in dcfence. 't'hc pctitioncr was callcd to appoal' on i1.9.200!). Sincc thc cxaminalion Ilthics Cornrnittcc could not rnect and dcciclc thc celsos ol unfbir rncans prior to thc ])Nll Iixatnination, thc pctitioncr in all faimcss was pcrrnittecl to appcar in J)ccctnbcr', 2009 lbr the DNll lixamination provisionally. I'hc Dthics Cixnrnittec mct on F wJ'.(() 3285/zot I I'uge 6 of l4 _,Ia .t JZ; v/

30.3.2010 and al1cr due deliberations clccidcd tcl dcbar thc pctitioner for six atlcrnpts commcncing fi'orn Jnnc, 2009. Cgnscclr-rcntly, thc petiticlncr was dcbarrcd from Junc, 2009,I)ecembcr,2009, Junc, 20L0, I)ecember, 2010, Juttc, 201I and Dcccnlbcr, 20IL I'his dccision was col'Iveyccl to thc pctitiollcr on 9.11.2010. 'l'hc Appcal Cornn'rittcc carclully cxarnined thc rnatcrial on rccord and also considcrccl thc lacl that thc pctitioncr hacl deactivatcd the sirn card on 14.6.2009. 'I.hc comtnittec was unablc to ttsc Llrc sirn oardto analyz.c thc log of thc rnobilc phone. It is contcndcd that the casc ol'thc pctitioncr was cxamincd by thc ljthics Cornrnittcc and hcaring was glantcd to thc pctitioner. 'fhcrcaltcr', thc cclnrrnittcc constitutecl by :Lhe llxccutivc l)ircotor also had an opportunity to intcract ancl assess t-he pctitioncr'. Iloth Lhc comrnittccs wclc dissatisfied with thc clcfcncc of 1hc pctitioner and aocordingll'passcd thc oldcr. lt is sr:brnittcd that this is not a fit casc for .iddicial rcvicw as thc sentcucc is ncithcr unconscionablc not' clccidccl thc arnbit ancl scopo of thc scnicncing provision ancl the salnc cannot bc interfcrccl wlrile cxcrcising thc powcr of judicial revierv. It is urgccl bcfore this Courl that thc pLrnishtnent is clcsigncd to protcct socicty by dctering potential olfcndcrs as aiso by prcvcnting thc guilfy party liorn rcpcating thc offcncc. It is also designcd to rcform thc ollcndcr and rcctaim him as a law abiding citizcn for the good o1' thc socicty as a whole. Any intcrf'ercncc would crodc thc confidcnce of thc authorities aud poilution and pcrrity of thc cxamination systcm has to bc cliicacious ancl has to compound to prcvcnt futturc wl'ollg docrs. In tho rcjoindcr thc pctitioncr has pointcd out sjncc thc incident frad takcn placc on 14.6.2009 and thc rnobilc phonc was not rcturncd till tlrc ycar 20II to prcvcnt any rnisusc of thc sim carc{ thc pctitioncr rccltrestcd lor de-activatiorr of thc sirn card in thc month of July, 2009. Lt.r,.((') 3285/201 I I'age 7 o.l'14 J tt rt i' tt. Lcarlcd counscl for thc pctilioner further subrnits that on an cnqttiry rnadc liom thc vocla phonc whcrc thc pctition was rcgistcled thc pctitioner was informccl thal cvcn if thc sirn card is disconncctcd 1hc matel'ial is kcpt for' a pcriclcl of six rnonths still nothing is on record as to whether the pctitioncr was pennittecl to producc thc rnalcrial or aL any point clf time thc rcspondcnts callecl upon the service proprictor to providc thc dclails 111114.6.2009 or anY othcr datc. (). I havc hcarcl lcanrcd counscl for thc partics ancl considcrccl their rival contcntigns. 'fhc pctitioncr was appearing for tho final cxaminalion, wlrich colnm.cncccl fi'orn 13.6.2009. On 14.6.2009 during thc cclltrsc of cxarnination a rnobilc phonc was spottcd/dctcctcd by thc Ccntral Supcrvisor in the posscssion of'the pctitionor. 'l'hc mobilc phone u'as colfiscatcd. 'L'hc answcr shcct of thc pctitioncr was also takcn away by thc Ccntral Strpcrvisor. A blank ft'esh answer shcct was handcd ovcr to tirc' pctitioncr apd hc was asked to rc-writc thc cxamination. lg.It is pot in disputc that the petitioncr was inlormcd tclcphonically to appcar bcforc the littrical Cornmittec on U.9.2009. 'fhe petitionel was grantecl an opportunity of hcaring. J hcrcaltcr thc ordr:r of llthical Colrmittce was lclt communicatcd to thc petilioncr dcspilc rccpest made b)' ths pctitioncr', copics of which havc bccn placccl on rccord. Pctitioncr rnadc an application trndcr l{ight to Information Act. 'lhc pctitioncr was inforrnccl of thc ordcr, which had bccn passcd on 9.11.2010 al.1cr more than 6nc year froln thc clatc of thc incidcnt. 'I'hc pctitioncr was batrcd for a period oJ'tluec years (six atl"ernpts) inctuding atternpt o[Junc, 2009, for appcaring; in thc final theory examination. I 1.'flrc first submissicln of counscl ibr thc pctitionor is that thc pctitioner carriccl tho rnobilc phonc in the cxamination hall inadvertcntly, innoccntly ancl by mislerkc. lllaborating hcr argumcnts llrther, lcamcd counscl for thc t}" tr.P.(c) 328s/20t I I\gc I ol'14 l, potitioncr subrnits that in case thc intcnlion of thc pctitioncr r.vas to use the mobilc phone for unfair means thc petitioncr wonld have taken thc basic prccaution of kccping thc rnobilc phone on a silcnt or vibration modc. Counscl ncxt submits tliat cvcn aftcr thc rnobilc phonc was confiscatcd thc SIN{ carcl of tho phttnc rvas not analysccl which woulcl har,c olcarly shclwn that ncithcr any call 'was urade or receivcd nor any mcssagc was sent or reccivcd on the said rnobilc phone, howcver, for the rcasons bcst knorvn to thc rcspondcnts thc SIM card was not sent for analysis. It is fulthcr subrnittcd that thc pctitioner was lclrccd to ask fior canccllation of thc SIM card as hc was without thc mobilc phonc but cancclJation of thc SIM card wor"rld nol havo corre in thc way of respondcnts fi'orn sccking clctails liorn thc scrvicc providcr as the matclial is kcpt by the servicc plovicler for a pcriod of six rnonths. 'I'hc sccond submission madc by lcarncd counscl for thc pctitioncr is that thc rcspondcnts wclc not satisfied as to whcthcr thc pctitioncr had violatcd any of thc lbur catcgorics of punishmcnt as per the Itulcs and it is for this rcason that for morc than one ycar no ordcr was passcd by the responclents and thc appcal hlcd by pctitioncr w.as also not dccidcd within cight months' pcriocl grantcd by this Court. l2.It is also thc submission of lcalncd cclunscl fior thc pctitioner is that thc punishrncnt, scl awarded to thc pctilioner, docs not fall in any of thc four catcgorics, as mcntioncd in the ltegulations, as it is not a.casc whcrc any stucly rnaterial was lound fi'orn thc possession of the pclitioncr with an intcnt of copying, iror. the pctitioncr was founcl involvcd iu mass copying, abctting, hclping otlrcr candiciatcs with thc aid of unlhir ncans nor was thc petitioncr found using arry clcctronic clevicc. Sincc thc pctitioncr cloes not lall in any of thc oatcgorics of thc rulc relicd upou by thc rcspondcnt, 'q ty.r,.((:) 328s/20t I I'uge 9 o.f l4 I, 1/\ po punishrncnt ccluid lravo bccn awarded to thc pctitioncr tnuch lcss clobarrring hinr for six attcnrpts. l3.IL is submitted by Ms.Mukti Chowclhary, counscl for thc pctitioner, that the llthical Comrnittce and the Appcal Cornrnittcc havc passcd the Otder rvithor-rt any application of rnind and without rcaching a finding that thc pctitioncr hacl used thc rnobilc phonc for r-rnfair rneans. It is also thc sutrrnission of oounscl for thc pctitioncr that pctitioncr has bcen a good stuclcnt, a rcspectecl Doctor arnd thc ordcr of punishtrcnt will always lcavc a black spol in his can'icr. Ms.Chowdhary has also submittcd that thc casc of thc pctitioncr cannot bc cquatcd with the decisions rcliccl upon by counscl for thc rcspondonts as hndirlg study rnal.crial in thc posscssion oL a candiciatc cannot bc cornparcd to spotling of a rnobilc phone in the possessicln of thc pctitioncr

14.I'he submission of learncd counssl for thc rcsponclcnts arc that all thc candidatos wcrc clulf inlirt rccl that rnobilc phoncs arc not pcnnittcd in thc cxarnination hall. In gross violation of thc dir:cctions issucd, the petilioner was spotLcd with a rnobilc phonc on thc bccp of thc mobilc phonc in thc oxaurinaticln hall. It is li"rrthcl' subrnittcd that since the respondcnts havc not violatccl the principles of natural justicc, grantccl an oppol'tLrniLy o.f hcaring to thc pctitioncr and thcrcaftcr thc irnpugncd ordcr datcd

9.11.2010 was passccl by tirc litirical Cornrnittcc and the ordcr datcd

25.4.2011 rvas passccl by thc Appcllatc Conrruittcc. It is ucxt subtnitted that it is not a iit casc fol juclicial rcview as thc plrnishmcnl arvarclcd is not of a nature which would shock thc consciencc of the Court. It is also submittcd that thc punishmcnt is designccl to protccl socicty by clctcrring thc potcntial offcnclcrs and atso by preventing thc guilty party from rcpcating thc offbncc. a It"t,.((.) 32I5/20I I I'age l0 of l'l .{" a I5.Lcamccl counsel for thc rcspondents submits tbat thc pctitioncr had clcactivatcd the SIM card so that thc log of thc nrobilc phonc is crased. Sincc thc pctitioncr was found with an elcctronic dcvicc thc pctitioner was . r'ightly awardccl thc rnaxirrlLrlrl punishrncnt as pcr thc Itulcs.

16.'Jlhcrc is no doubtthat thc rcsponctents havc not violatcd thc principlcs of natural justicc, affoldcd a rcasonablc opportunity of hcaring to thc pctitioncr and thcrealler passccl thc irnpugncd ordcr. It is also not in cloubt that thc candidatcs wcrc duly informed that 1hc rnobilc phoncs wcrc not pcrrnittcd in thc cxarnination halt, howevcr, thc respotrdcnts havc failcd to rccorcl a lrnding that thc pctitioncr was found r"rsing thc rnobilc plronc, nor thc rcspondcnts havc rccorded a hnding that any attcmpt was madc to arpproaoh the servicc proviclcr to scck inlbrrnation witir rcgard to thc use of rnobilc phonc during thc pcriocl when ii was in his p<lsscssion. What is Iurthcr surprising is that in thc log of thc rnobile plronc itsclf dctails alc availablc with rcgarcl to calls rnaclc ancl rcocivcd on thc rnobilc phonc and thc nlcssagc scnt or I'cceivcd. I{cspondcnts clid not cvcn bothcr to asccrtain from the log oI'thc rnobilc phonc as to whcther lhc pctitioncr had uscd ftc rnobilc phclnc or rcceivcd any rncssagc cln lhe motrilc phone cluring thc cxamination. Another factor, whjr:h cannot bc ignorcd, is that thc rnobile phone was not at thc silcnl modc or thc viblation mclclc as in case thc pctitioncr had intcnclcd to usc thc mobilc phonc he woLrld havc takcn thc basic prccaution o1'kecping thc rnobilc phonc in thc silent tnodc, rvhich woulcl prima facie shou, that tlre pctitioncr carriod thc rnobilc phonc in tlic cxarnination hall by mistakc. Anothcr aspccl" of thc mattcr, lbr which ncl satisfactory or rcasonable cxplanation has bcon rcndcrcd by the counscl lbr thc rcsponclcnts, is the dclay in deciding thc casc of thc. petitioncr and thc rcasons fot not cotntnunicating thc clrdcr to thc I'age Il uf 14 tL'.P.(C) 3285/201 I a tv.r,.(() 3285/2011 S. No. 0t petitioncl', which givcs an inrprcssion that either the respondcnts wcrc not scriotts or not surc of thc actiotL to bc initiatcd eIS pcr thc ltules.

17.I{cspondcnts have arvarclcd thc maximurn punishmcnt as pcr 1hc l{ulcs of dcbarring the pctitioncr for six consecutivc altempts, which was reduccd to thrcc <;onsecutivc attcmpts by thc Appcllatc Committcc. 'fhc relevant rulcs arc rcproduced below: -;---- - Carnclidatcs Action tu",fiAut. *hu huv. b"",t fouttd in possession of study material, notes ctc. or any othcr matcrial with thc intcnd to Lrse for copying / bcing r-rscd Itlr copyipB_: Candidatos lbund in possession of matcrial as mentioned in (1) abovc and also found to havc transcribecl thc satnc onto thc answcr shccl.. - Carndiclatcs lbund in posscssicln / indulging in activitics notcd as per 1 and 2 abovc, in casc thc candidatc in addition to thcsc is lbund to be indulging in bringing of undue iuflucncc upon the invigilator etc. or usc languagc / gcsttrrcs against thc invigilator / cxatr stafl' / offiocrs or othcrs involvcd with conduct of c.xattriualiotr ctc. Candiclates founcl involvcd in lrass copying whcrcby hc shc is found atrctting / hclping othcr canclidalcs to writc thc cxanrination with aid of unlair rn c ar1 s, u s9_9,[g]gg!gge@. j ,2 Pcnalty Canccllation papcf Canccllation of currcnt papcr plus being debarrcd frorn appcaring in thc next _1t19tp,t' Canccllation of thc currcnt papcr plus bcing clcbarrcd h'orn appcaring ncxt two conscctttivc cxalts. Canccllaii,ru offi. current papcr plus being debarcd for five consccutivc attcmpLs. ' I\rye 12 of 14 of in aclctition tir u"Vtt"ti"g cvcrything as dcscribcd in and r,2, 1ti.I{cspondcnts havc rcliccl uporr I{ulc 4 for awat'ding thc punislment. In my vicw thc rcsponclcnts havc failcd to rccord a finding that thc pctitioncr-rvas involvcd in lnass copying, abctling and helping othcr candidatcs ttr writc the cxamination with ttre aid oJ. unfair rteans or.usc of clcctronic dcvico in acldition. lg.Lcarncd counscl krr thc rcspondents has relicd upon l)irector (Studies), Dr.Amhedkor Institute o/'Ilotel Management, Ntdrition ond Catering Technology, Chandigarh and Others r'. Vsilthut, Singh Cltaultan, rcporlcd at (2009) I SCC 59, in support o1'his subrnission that thc Apex Court hacl hcld thal rncrc posscssion clf a slip during thc coursc of oxarnination was held as ntalpracticc iucspcctivc oI thc lact that the slip rvas actually. usccl or not. 'fhc Apcx Court had {urtlrcr hcJd that it rvas wholly irrelcvant as to whcthcr thc canclidate l'racl actually usccl the slip of papcr found in his posscssion. 'l'his judgmcnt, sought to be tclicd upon by cclunscl for thc rcspondcnts, in rny vicw is nclt applicablc to thc facts of t['rc prescnt case as posscssion cl:[ wtittcn rnalelial witlr a candidatc cannot bc cornparcd to thc posscssion of a rnobilc phonc unlcss thc rnobile phone contains rnatcrial which would thcn be comparabl,c to wriltcll matcrial.

20.In this case the respondents rnadc no attcrnpt to asccdain whcthcr tlris rnobilc phclnc was cithcr capablc of stclring rnatcrial or iu fact thcrc was gratcrial in thc rnobiic phonc. 'fhcrc is nothing on rccord thal in addition to ilrc nrobilo phclnc thcrc was any hidclcn dcvicc such as J]luctooth. ear phclnc or heacl phonc, which was corlccalcd in thc body of thc pctitioncr, which would show that thcrc was any intcntion of bringing 1he rnobilc phonc in thc exatnination hall for thc pulposcs of chcating. I'age 13 of 14 il'.P.((;) 328s/20t I 2l.IL is Lritc law thal in judicial rcviow the Cotrrt is not conccrncd rvith thc clccisiol but tlrc Cclurt rnust satisfy with a dccision ntaking proccss. No doubt rcsp6ndc.nts have followecl thc principlcs of natural justicc, the Ijthical Cornrnittcc as also the Appellatc Committcc havc considercd the casc clf thc petitioner but in rny view thc casc of thc pctitioncr docs not t'all in any of thc Ilules I-4 nor thc inrpugncd orclcr shows that rcspondcnts madc any attcmpt to asccrtaiu as to rvhcthcr thc rtobilc phone was bror-rght to thc cxamination hall with any intcntiotl of chcating. ltespoldcnts clicl not cvcn bothcrto look at the log o.[thc mobilc phonc, leavc alone encpriry lrom thc sctvicc providcr. 22;I'hc Court cannot also losc track of the {act that lrorn thc ycar 2009 till clatc thc pctitioner has not bccn ablc to sit ir"r thc cxamiuatiotr. In rny vicw tlrc pctitioncr has alrcacll, sull-clod lor thc urilitakc contini[tcd b1' him in rrot bcir-rg r:are[ul and bringing thc mobile phono irr the cxalrlitlal.ion halJ. 'fhc pctitioncr has also su{fercd on accol.tnt of dclay irr passing of tho or<Jer iry thc rcspondcnts ancl nol bcing cotltttunicatcd tlrc satnc ttl tltc. pctitioncr dcspitc his recprcsts and his application made uttdcr l{ight to Inlblrnation Act.

23.\n thc pccr-rliar lacts and spccial cjrcr-unstanccs ol'this casc as morc than thrco and a half ycaus period has alrcady clapscd lionr thc date ol'tirc ilcidcnt thc pctitioner hars alrcacly approachccl this Cotlrt trvicc, I dccm it appropriate ancl to rncet l-hc cnds oi justicr: to cluash tho ordct'ciatcd

25.4.20[ 1. According. writ pctition is allor,vccl. '['hc inrpugncd ordcr clatecl

25.4.201 1 passcd by tcspondenl. uo.1 is cluasJrcd. O(l'[0Bl]ll. 31 ,2012 rnm tv.r,.(() 328s/201 I t'ige I4 rtf I4