Excelsior Correspondent
JAMMU, Aug 20: In two appeals filed by University of Jammu against the judgment of Writ Court, Division Bench of State High Court comprising Chief Justice M M Kumar and Justice Hasnain Massodi has upheld the decision of Varsity regarding cancellation of all the papers of petitioners appearing in the BE Examination.
Senior Advocate D S Thakur appearing for the University of Jammu submitted, “the view taken by the Writ Court is not sustainable especially when the findings have been recorded that the writ petitioners-respondents have used unfair means in the examination”, adding “once the fact of adopting malpractice in the examination is accepted then the only question survives is whether the University could disqualify them in respect of the paper in which malpractice was committed or for whole of the examination”.
“The Writ Court has ignored the University Statute 4(u) read with clause (d) of Statute 5”, he said while fairly admitting that Statute could not be properly pleaded before the Single Judge which led to grave error in the judgment. He pointed out that mistake was highlighted by filing review but the same did not succeed.
On the other hand Senior Advocate A V Gupta argued, “one of the petitioner-respondent has re-taken the whole examination and has qualified after the punishment was imposed by the University therefore one of the appeals is even otherwise in-fructuous”. In respect of the other appeal, it was argued that on account of the opinion expressed by the Single Judge applying Statute 4(t) read with Statute 5(d), the issues concerning Constitutional validity of Statute 4(u) read with Statute 5(d) were not examined.
“The opportunity to challenge the Vires have been lost and the matter should be remanded back to the Single Judge for opinion afresh on the issue. In the alternative, this court may itself examine the Constitutional validity of Statute 4(u) read with proviso to Statute 5(d)”, Advocate Gupta said, adding “the Statute vests the University with an arbitrary power to cancel the examination of the whole semester, which would violate Article 14 of the Constitution. There is lack of proportionality in the Statute because if a student is found indulging in malpractice in one subject or paper then he cannot be punished and disqualified in respect of all the papers for which he did not use the unfair means”.
After hearing both the sides, Division Bench observed, “Statute 5(d) contemplates lumping together a grave misconduct by punishing a candidate by canceling all the papers of that examination coupled with the punishment of disqualifying a candidate for appearing in the examination for some period”, adding “we find no lack of proportionality. The menace of adopting unfair means and malpractices in the examination hall is on the rise. A person, who has committed the misconduct of getting his marks transferred from the answer sheet to the tabulation sheet by tampering with the record in connivance with the University staff has been suitably dealt with by the Statute”.
“There is a direct nexus with the object sought to be achieved and we find that the power conferred on the competent authority does not suffer from vice of arbitrariness and it is not violative of Article 14 of the Constitution. Statute 4(u) read with proviso to Statute 5(d) is accordingly upheld and it is declared that it does not ultra-vires the provisions of Article 14 of the Constitution”, the DB said.
With these observations, Division Bench allowed the appeals filed by the Jammu University and set-aside the judgment of Writ Court and the decision of the University inflicting upon the petitioner/respondent punishment of canceling all the papers of 5th and 6th examination of Bachelor of Engineering was upheld.
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