# The Controller of Examination University Allahabad v. Rajneesh Shukla

- **Citation:** (2007) 2 ILRA 611
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-01-04
- **Case number:** Special Appeal No.5 of 2097
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/the-controller-of-examination-university-allahabad-v-rajneesh-shukla-40968
- **Pages:** 5

## Headnote

Constitution of India , Art 226- Education
-use of unfair means- chapter XXVIII
clause 1.2(A) 1.2E- petitioner appearing
L.L.B. Ist year examination- found- some
numbers written on the back side of the
admit card- may be phone number-but
not said to be related to subject matter-
decision of authorities- held- highly
arbitrary and absurd.

Held: Para 11

Existence of material related to the
subject of the examination is absent.
When a candidate is found in possession
of any unauthorized material which has
no bearing or connection with the
subject of examination, in that event it
cannot
be
held
that
the
material
recovered
from
his
possession
is
unauthorized.
Case law discussed:
1994(1) SCC 6,
2003(3) SCC 59,
Spl
Appeal
No.
1017-2006
decided
on
18.09.06.
AIR 1970 SC 1269
612 INDIAN LAW REPORTS ALLAHABAD SERIES [2007

## Text

2 All] The Controller of Examination University Allahabad V. Rajneesh Shukla
611
6. It is not disputed that the selection
of Sub Inspector is made on existing and
anticipated vacancies. Thus there could
also be a situation where for 100 existing
vacancies, there are 150 candidates
selected, as such selection is also against
anticipated vacancies. In such a case, if
salary is directed to be paid for training
period, then salary would have to be paid
to more persons than the existing posts,
which is not possible.

7. Salary can be paid only to such
person who is appointed against some
post, which can be only after completing
the training. The payment of salary prior
to appointment is not conceived of in
service jurisprudence. Only stipend or
honorarium can be paid during such
training period, and not salary.

8. For the foregoing reasons, this
Court is of the view that in the facts of
this case, salary cannot be paid for the
period of training, which is prior to
appointment on the post of sub inspector,
and as such, the order impugned in this
writ petition does not call for interference.

9. Accordingly, this writ petition is
dismissed.

No order as to cost.
---------
APPEALATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.01.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No.5 of 2097

The Controller of Examination ,Allahabad
University and another ...Appellants
Versus.
Rajneesh Shukla

...Respondent

Counsel for the Appellants:
Sri A.B.L. Gour
Sri Saurabh Gour

Counsel for the Respondent:
Sri Amitabh Tripathi

Constitution of India , Art 226- Education
-use of unfair means- chapter XXVIII
clause 1.2(A) 1.2E- petitioner appearing
L.L.B. Ist year examination- found- some
numbers written on the back side of the
admit card- may be phone number-but
not said to be related to subject matter-
decision of authorities- held- highly
arbitrary and absurd.

Held: Para 11

Existence of material related to the
subject of the examination is absent.
When a candidate is found in possession
of any unauthorized material which has
no bearing or connection with the
subject of examination, in that event it
cannot
be
held
that
the
material
recovered
from
his
possession
is
unauthorized.
Case law discussed:
1994(1) SCC 6,
2003(3) SCC 59,
Spl
Appeal
No.
1017-2006
decided
on
18.09.06.
AIR 1970 SC 1269
612 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
(Delivered by Hon'ble S. Rafat Alam, J.)

1. This special appeal, under the
Rules of the Court, is preferred against the
judgment dated 3.10.2006 of the Hon'ble
Single Judge allowing the petitionerrespondent's Civil Misc. Writ Petition
No.28603 of 2006.

2. Heard Shri A.B.L. Gaur, learned
Senior
Counsel
appearing
for
the
appellants and Shri Amitabh Tripathi,
learned
counsel
appearing
for
the
petitioner-respondent and also perused
the· judgment under appeal.

3. It appears that the petitionerrespondent was caught while appearing in
L.L.B. 1st year examination of 2006 of
first
semester
on
the
ground
that
unauthorized material has been found
from
his
possession.
The
alleged
unauthorized
material,
which
was
recovered from his possession is some
number written on the admit card. From a
perusal of relevant record, produced for
the perusal of the Court, it is apparent that
some number, may be telephone number,
is written at the top of back page of admit
card.

4. Shri A.B.L. Gaur vehemently
contended that the admit card does not
permit any writing by the candidate
except in the columns meant therein for
filling his names etc during examination
and the action taken by the University is
in accordance with the provisions
contained under Chapter XXVII of the
Ordinances on the Use of unfair means
and causing disturbances in examination
(hereinafter referred to as the Ordinance).
He further argued that the cost has been
directed to be paid by the Controller of
Examination although as per Ordinance
he cannot be held responsible. In support
of his contention he placed reliance on the
judgments of the Hon'ble Apex Court as
well as Division Bench 'of this Court in
Central Board of Secondary Education
v. Vineeta Mahajan(Ms) and another,
(1994) 1 SCC 6, Chairman, J & K State
Board of Education v. Feyaz Ahmed
Malik and others, (2003) 3 SCC 59 and
Special Appeal, No.1017 of 2006, The
Vice Chancellor, C.S.M.U., Kanpur &
others v. Abhay Kumar Tripathi &
others decided on 18.9.2006.

5. Having considered the aforesaid
submissions we are of the view that the
judgment under appeal warrants no
interference. A candidate found using or
attempting, abating or instigating to use
the unfair means in the examination of
University of Allahabad is liable to
punishment in accordance with the
provisions contained in Chapter XXVIII
of the Ordinances. However, the term
unfair means has been defined in Clause
1.2 (A) as under: -

(A) Unfair means: - A candidate
shall
be
deemed
to
have
used
"unfairmeans" if the candidate transcribed
any part or the whole of the unauthorized
material or if he intimidates or threatens
or manhandles or uses violence against
any invigilator or person on duty in the
examination
or
if
he
leaves
the
examination hall without surrendering his
examination script to an invigilator or if
he is found communicating with other
examinees or anyone else inside or
outside the examination hall."

6. In the case in hand the case of the
University
is
that
the
petitionerrespondent was guilty of unfair means
since unauthorized material was found in
2 All] The Controller of Examination University Allahabad V. Rajneesh Shukla
613
his possession. The term unauthorized
material is also defined under Clause
1.2(C) as under:-

"(C)
Unauthorized
Material:
"Unauthorized material" shall mean any
material whatsoever, related to the subject
of the examination, printed, typed, written
or otherwise, on paper, cloth, wood or
material in any language - in the form."

7. Therefore, it is not any or every
material,
possession
whereof
would
attract the mischief of the aforesaid
provisions but only such material which is
related to the subject of examination
whether
printed,
typed
written,
or
otherwise on paper, cloth, wood etc. or
material in any language. The fact
remains that such material must relate to
the subject of the examination. The phrase
"material related to the subject of the
examination" is also defined in subClause (E) of Clause 1.2 as under: -

(E) Material related to the subject
of the examination:- 'Material related to
the subject of examination' shall if the
material is produced as evidence, mean
any material certified as related to the
subject of the examination by a teacher of
the subject. If the material is not produced
as evidence or any of the reasons referred
to in (D) above, the resumption shall be
that the material did relate to the subject
of the examination."

8. Sub-clause (E) therefore makes it
clear that the material, which is certified
by a teacher of the subject, as related to
the subject of the examination, shall be
the requisite material, which is prohibited.
In the case in hand, the petitionerrespondent is said to have been found
with the admit card whereon a number is
written by hand. The original record was
also produced before us and we did not
find any certification by a teacher of
subject that the said number mentioned on
the back of the admit card is a material
related to the subject of the examination
i.e. Environmental Law Paper of First
Semester Examination of LL.B. 2006.
Learned counsel for the University also
could not point out as to how and in what
in what manner the said number can be
related by any stretch of argument or
imagination
to
the
subject
of
the
examination.
In
these
facts
and
circumstances, we have no hesitation to
observe that the authorities have shown a
total non-application of mind and have
grossly erred in law in penalizing the
petitioner-respondent on the charge of
unfair means causing not only waste of
his valuable time but also mental agony,
loss of reputation amongst the friends and
relatives, and has caused other serious
inconvenience.

9. Coming to the argument that a
decision of the educational authorities in
the matter of unfair means shall not be
interfered at all in any circumstance by
the Court, we have no hesitation in
observing that arbitrariness and total nonapplication of mind in any manner shall
not prevail over the constitutional power
of judicial review of this Court in exercise
of jurisdiction under Article 226 and
where this Court finds that a glaring
illegality has been committed by an
authority, it can always take steps to set it
right, Arbitrariness is antithesis, to the
doctrine of equality and any act,which is
patently arbitrary, is violative of Article
14 of the Constitution of India. A student,
victim of arbitrary act on the part of the
University is right in contending that his
fundamental right under Article 14 of the
614 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
Constitution of India has been violated
and
this
Court
being
sentinel
for
protection
of
fundamental
rights,
whenever finds such a complaint to be
correct, has to rise to the occasion for
rescue of such person to set the things
right. It is not disputed that the University
is an authority and constitute "Sate" under
Article 12 of the Constitution cannot act
arbitrarily. Whenever any act or decision
of the University or its agents and
authorities is found to be arbitrary, this
Court is well within its competence and
authority to interfere with such illegal
action of the University and its agents.
Coming to the judgments relied by the
learned counsel for the University, we
find that in the case of Vineeta Mahajan
(Supra) the student was admittedly found
in possession of written material in the
shape of three small pieces of paper kept
in the pencil box which was related to the
examination concerned but the High
Court interfered with the decision of the
educational authorities only on the ground
that she had not used the said material
while answering the question paper. Rule
36 (1) of the Rules for unfair means
framed by the Central Board of Secondary
Education provided that a person found in
possession of the incriminating material
shall be deemed to have used unfair
means at the examination and in such
circumstances it was held by the Apex
Court that once candidate was found to be
in possession of papers relevant to the
subject, the requirement of the Rule was
satisfied and there was no escape from the
conclusion that the candidate has used
unfair means. Whether the material was in
possession of the candidate bona fide or
mala fide was irrelevant and therefore the
decision of the High Court in interfering
with the decision of the educational
authorities was set aside. On the face of it,
this case is distinguishable and has no
application to the facts of the case in hand
since the possession of material related to
the subject examination is lacking in the
case in hand. Similarly in Feyaz Ahmed
Malik (Supra) the regulations framed by
the Board for dealing the cases of mass
copying was challenged on the ground of
the jurisdiction of the Board in framing
such provisions, which was upheld by the
Apex Court. The aforesaid judgment
therefore has no application at all to the
facts of the case. However it would be
relevant to mention that in Feyaz Ahmed
Malik (Supra) in para 18 of the
judgment, the Apex Court referred to its
earlier
decision
in
Bihar
School
Examination Board v. Subhas Chandra
Sinha and others, AIR 1970 SC 1269
wherein it was held that while judging the
authority or otherwise or the steps taken
by the educational authorities in taking
action against candidate resorting to
unfair means, it should be borne in mind
that
the
educational
authorities
are
entrusted with the duty of maintaining
higher standard of education and proper
conduct of examination. It. is an expert
body consisting of persons coming from
different walks of life who are engaged or
interested in the field of education and
have wide experience and decision of
such expert body should be given due
weightage by the Courts. However in para
14 of the Judgment in Subhas Chandra
Sinha (Supra) the Court held:

" If there is sufficient material on
which it can be demonstrated that the
university was right in its conclusion that
the examinations ought to be cancelled
then academic standards require that the
University's appreciation of the problem
must. be respected......." (Emphasis added)
2 All] Ram Lal Tripathi V. State of U.P. and others
615

10. Thus, in the matter of judicial
review it is true that this Court does not
sit in appeal over the decision taken by
the authorities provided the decision does
not appear to be glaringly and patently
absurd and arbitrary.

11. Similarly the facts of the case in
Abhay Kumar Tripathi (Supra) are also
different and have no application to the
facts involved in the case in hand. A bare
perusal of the, judgment shows that one
printed page was found in possession of
the candidate, which was related to the
subject
of
examination,
and.
the
possession of the such material was not
denied. In the facts, the judgment in
Abhay Kumar Tripathi (Supra) has no
application and this Court rightly, held
that such candidate could have been
punished for unfair means and in such
case
no
interference
is
warranted.
However the present case has the facts
otherwise and the very existence of
material related to the subject of the
examination is absent. When a candidate
is
found
in
possession
of
any
unauthorized material which has no
bearing or connection with the subject of
examination, in that event it cannot be
held that the material recovered from his
possession is unauthorized. In the case in
hand, some number has been found
written on the back of the admit card,
which
probably
may
be
telephone
number. Thus, the Hon'ble Single Judge
has rightly held that it is not unauthorized
material and in the facts of the case, we
do not find any factual or legal error in
the judgment of the Hon'ble Single Judge.

12. Shri Gaur lastly submitted that
imposition of costs of Rs.5000/-(Rupees
Five Thousand only), which was directed
to be recovered from the Controller, is not
justified as he has no role to play in the
matter and the entire action has been
taken on the basis of the report of the
invigilator and the experts. We cannot
accept this
submission
because
the
invigilator and the examiner are the
agents of the Controller of examination
and thus, he is liable to pay costs.
However it is provided that it would be
open to the University or the Controller of
Examination to make necessary inquiry in
the matter identifying the person guilty of
the said mischief and realize the cost from
him.

With the aforesaid observation, this
special appeal stands dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2007

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No.38716 of 2006

Ram Lal Tripathi

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri S.K. Shukla
Sri P.S. Paghel

Counsel for the Respondents:
Sri G.K. Singh
Sri V.K. Singh
Sri M.K. Srivastava
& S.C.

(A)
Constitution
of
India
Art-226-
Seniority
of
teachers
working
in
recognized institutions-to be decided
from the date of valid and substantive
appointment-otherwise
cannot
be
treated to be member of main stream of
teacher.