R.H. Zaidi, J.
1. In all these petitions common questions of law and fact are involved. Notices of these petitions were served upon the learned counsel appearing for the respondents and they were required to file counter-affidavits.
2. Counter-affidavit has been filed only in Civil Misc. Writ Petition No. 14007 of 1997, Shailendra Kumar Srivastava v. Deputy Registrar (Examinations) University of Allahabad and others. In other petitions learned counsel for the University does not propose to file the counter-affidavits as the questions raised by the learned counsel for the petitioners are all questions of law and can be decided without counter-affidavits. Therefore, after hearing the learned counsel for the parties, and as desired by them, these petitions are disposed of finally by this common judgment.
3. By means of these petitions petitioners who are the students of Allahabad University challenge the validity of the orders passed by the respondents, in some cases cancelling the results of their examinations for the year 1996 and in other cancelling the results of the examinations of 1996 and also debarring them from appearing in corresponding (and any other) subsequent examinations of 1997. Prayers for directions in the nature of mandamus commending the respondents to declare the results of the examinations in question and to permit the petitioners to appear in their respective examinations for the year 1997 have also been made.
4. The basic facts in all the aforesaid petitions are that the petitioners appeared in the examinations of various classes/courses conducted by the Allahabad University in the year 1996. In the said examinations petitioners are alleged to have used unfair means. Some of the examinees were served notices in the examination hall itself and others were served notices after statutory period, calling upon them to show cause as to why the punishment to cancellation of the examination and debarment from appearing in the subsequent examination of the year 1997 be not awarded to them. Similarly, some of the petitioners hace submitted their replies/explanations in the examination hall itself, and others subsequently denving the charges levelled against them.
5. It may be noted that the show cause notices have been issued to the petitioners on the printed forms, indicating therein the charges levelled against them.
Petitioners on receipt of said notices submitted theird explanations denying the charges levelled against them.
Thereafter, similar orders, on printed forms have been communicated to the petitioners, one of which is reproduced below :--
" "UNIVERSITY OF ALLAHABAD
Dated : 4-3-97
Suresh Chandra Fandey
R. No. 74726
I am directed to inform you thai in accordance with the provisions contained in the Ordinances on the use of unfair means and of causing disturbances in Examination, you have been awarded following punishment for attempt/using of unfair means at the B.A. II Examination of 1996.
"Cancellation of your result of B.A. II Examination of 1996 and also debarment from corresponding (and any other) subsequent examination of 1997.
DEPUTY REGISTRAR (EXAM.)"
5A. On receipt of the aforesaid orders, the petitioners have approached this Court and/filed the above noted writ petitions.
6. In almost all the writ petitions it has been asserted by the petitioners that the procedure prescribed under the law for awarding the punishment was not followed by the respondents, inasmuch, as the notices were not served upon some of the petitioners in the examination hall, or even within seven days thereafter of the date of incident, and were served, in some cases, long thereafter. It has been asserted that petitioners have submitted their explanations, but their explanations have not been considered and the punishments have been awarded to the petitioners wholly arbitrarily and that the orders of punishment passed against the petitioners do not contain reasons. It has also been alleged in some cases the charge was different from the one which is alleged to have been found by the examiner and that no case for debarment from subsequent examination was at all made out. Therefore, the impugned orders were liable to be quashed.
7. In the counter-affidavit filed in the case of Shailendra Kumar Srivastava, referred to above, the facts stated in the writ petition are stated to be not admitted. It has been asserted that the petitioner in the said case was caught by the flying squad using unfairmeans, and a hand written chit, is alleged to have been recovered from his possession. The examiner, however, reported that the said chit was not utilised by the petitioner, but the same was stated to be relevant to the subject. The facts stated in the counter-affidavit have been verified on the basis of record; but no record has been filed along with the counter-affidavit.
8. The learned counsel appearing for the petitioners vehemently urged that the procedure prescribed under the relevant Ordinance, which are mandatory, has not been followed by the respondents and the petitioners have been punished wholly illegally and arbitrarily. It has also been urged that in some cases the notices were not served in the examination hall and have been served after expiry of the statutory period, for which there was no provision in the relevant Ordinances. It was also contended that the explanations submitted by the petitioners have not been taken into account, and nobody has applied mind to the facts of the cases and orders have been passed, that too on printed forms, for cancellation of the results and also for debarment of the petitioners from subsequent examinations. It is submitted that respondents had no jurisdiction to award punishments to the petitioners without following the principles of natural justice, i.e. without affording an opportunity of hearing and recording reasons for the conclusions arrived at against them.
9. Learned counsel for the petitioners referred to and relied upon several authorities of Hon'ble thhe Supreme Court and this Court in support of their submissions, which I shall deal with a little later.
10. Learned counsel appearing for the respondents on the other hand attempted to justify the orders impugned in these petitions. It was vehemently urged that the petitioners were afforded opportunity to explain their cases, and the impugned orders have been passed in accordance with the provisions of the relevant Ordinances, by the competent authority. It has been asserted that the provisions of Ordinance 1.3 & 1.5, which provide for service of notice in the examination hall, or within seven days of the incident by registered post, if the candidate refuses to accept or avoids or escapes personal receipt of such notice and consideration of explanations are directory. He submits that if the order of punishment awarded to the candidates can be jusstified and supported by the reasons for the decision on the record, the same should not be interfered with. Further, in all the cases principles of natural justice have been followed and the orders impugned in the present petitions were passed after affording opportunity to submit explanations and are based on evidence, therefore, they cannot be interfered with by this Court in its jurisdiction under Article 226 of the Constitution of India.
11. I have considered the rival submissions made by the learned counsel for the parties and also persued the record.
12. Chapter XXVIII contains the Ordinances on the use of unfair means and causing disturbances in Examination. The relevant provisions of said Chapter are reproduced below (only relevant quoted) :--
"ORDINANCES ON THE USE OF UNFAIR
MEANS AND OF CAUSING
DISTURBANCES IN EXAMINATIONS.
1. UNFAIR MEANS
1. Candidates found using or attempting, aiding, abetting or instigating to use unfair means at the examinations of University of Allahabad shall be punished.
(A) Unfair means : ....
(B) Possession of unauthorised material :.....
(C) Unauthorised material :.....
(D) A candidate found in possession :
(E) Material related to the subject of the Examination :.....
1.3 A candidate found using unfair means in an examination shall be served with a notice therefor in the examination hall itself and, if he refuses to accept or avoid or escapes personal receipt of such notice, such notice shall be sent to him by Registered post within seven days of the incident. The candidate shall be required to submit his reply to the notice within 10 days of the issue of such notice. If no reply is received within this period, it would be presumed that the candidate has nothing to state in his defence.
1.4 Punishment prescribed in these Ordinances (Nos. 1.1 to 1.6) shall be awarded by a Committee of not less than five teachers appointed by the Examinations Committee or by the Vice-Chancellor acting on behalf of the former. The quorum of this Committee shall be three.
1.5 The Committee referred to in Ordinance 1.4 above shall consider :--
(a) the report, if any, about the candidate having been found in possession of unauthorized material;
(b) the reply of the candidate, if any, to the notice;
(c) the report of the examiner concerned, if any, regarding the transcription or non-transcription of the unauthorized material of which the candidate was found in possession;
(d) any other report of intimation, threat, manhandling or violence received in connection therewith by any person on duty of the University; and
(e) any other material.
1.6 The Committee referred to in Ordinance 1.4 shall award the following punishment after placing on record that it has examined all the documents referred to in Ordinance 1.5 and that it has satisfied itself regarding the facts of the matter ;
(i) For possession of unauthorised material, or surrendering the examination script to an invigilator, or
(ii) For communicating with other examinees or any one else inside or outside the examination hall. Cancellation of the results of the candidate in the examination in question.
B (i) For transcribing any part or the whole of the unauthorised material of which he was found in possession, or
(ii) For intimidating or threatening any invigilator or person on duty in the examination.
Cancellation of the results of the candidate in the examination in question and debarment from the corresponding (and any other) subsequent examinations of the next academic sessions."
13. The aforesaid Ordinances are stated to have been framed in exercise of power under the U.P. Stale Universilies Act, 1973, hereinafter referred to as the Act and are being justified with the help of Sections 50, 51, and 52 of the Act read with Statutes 9.02 and 9.03 of the First Statutes, 1976.
14. No sufficient material has been placed on the record by either side to substantiate the plea that the Ordinances, referred to above, were made under the provisions of the Act or not. Therefore, I do not propose to investigate into the question as to whether they were framed in accordance with law or not, I proceed to decide these cases on the assumption that the Ordinances in question were framed in accordance with the provisions of Act.
15. Before proceeding further it may be noted that under the direction of this Court, the learned Standing Counsel appearing for the University produced records of all the cases for perusal of this Court. A perusal of the records in all the aforesaid cases reveals that the proceedings for taking action, for use of unfair means against each one of the petitioners is contained in a printed document which has got 3 pages. First part of the said document provides for necessary particulars of the student (examinee), report of the Invigilator as well as report of Examination Supdt. ..... On page 2 (paragraph No. 3) provides for the particulars of the information which the examination Supdt. is supposed to furnish. Paragraph No. 4 provides for the explanation of the examinee as well as the certificate of the examination Supdt. to the effect that the explanation was submitted by the examinee in his presence. At page 3 the pro forma of the chargesheet as well as show cause notice which is required to be signed by the Examination Supdt. has been given. In part-II (paragraph No. 5) there is a provision for the report of the examiner as well as certificate by him as to whether unfair means or part thereof was used by the examinee. Paragraph No. 6 provides for the order (decision of the unfair means committee). Paragraph No. 7 and the last paragraph provides for the decision of the Examination Committee/Vice Chancellor.
16. In most of the cases the relevant columns of the aforesaid printed pro forma are blank. From the record it is also apparent that the orders of cancellation of examination and debarment against the petitioner have not been passed after following the procedure prescribed under the Ordinances which I will deal with specifically lateron. It may, however, be noted here that in none of the cases minutes of the unfair means committee of examination committee have been placed on the record and none of the cases contains any reasoned order passed by the unfair means committee. None of the record shows that the explaination submitted by the petitioner were at all considered by the competent authority or the Examination Committee of the University.
17. The questions that call for consideration by this Court are as to whether the provisions of the Ordinances, particularly those of Ordinances 1.3, 1.4, 1.5 and 1.6 are mandatory or not, whether the proceedings have been taken and orders have been passed after following the procedure prescribed and in accordance with the provisions of the Ordinances.
18. Learned counsel for the parties have referred to and relied upon the rulings of the Apex Court and this Court relevant to the subject. I, therefore, before dealing with these cases on merits refer to and dealt with the said rulings.
19. In the case of Board of High School and Intermediate Education, U.P. Allahabad v. Ghanshyam Das Gupta, AIR 1962 SC 1110, the Apex Court of the country was pleased to hold that the examination committee acts quasi-judicially and principles of audi alteram partem are applicable to the proceedings taken by it. It has been ruled that adequate opportunity of presenting his case should be given to the examinee, and if the opportunity is not afforded the action taken and orders passed is vitiated. The relevant portion of the said judgment is reproduced below (Para 11) :--
"Though therefore there is nothing express one way or the other in the Act or the Regulations casting a duty on the Committee to act judicially, the manner of the disposal, based as it must be on materials placed before it, and the serious effects of the decision of the Committee on the examinee concerned, must lead to the conclusion that a duty is cast on the Committee to act judicially in this matter particularly as it has to decide objectively certain facts which may seriously affect the rights and careers of examinees, before it can take any action in the exercise of its power under Rule 1(1). We are therefore of opinion that the Committee when it exercises its powers under Rule 1(1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Calcutta High Court in Dipa Pal v. University of Calcutta, AIR 1952 Cal 594 and B.C. Das Gupta v. Bijoyranjan Rakshit, AIR 1953 Cal 212 in similar circumstances and is in our opinion correct."
20. In the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269, the Hon'ble Supreme Court ruled that even administrative orders which involve civil consequences have to be passed consistently with the rules of natural justice. Similar view was taken by Hon'ble Supreme Court in the case of D.K. Yadav v. J.M.A. Industries Ltd., (1993) 3 SCC 259 : (1993 AIR SCW 1995). A Division Bench of this Court in the case of Prabhat Kumar v. Board of High School and Intermediate Education, Uttar Pradesh, Allahabad, 1971 All LJ 1391 also followed the aforesaid decisions and ruled that opportunity of hearing before conclusion of guilt as also to the quantum of punishent had to be given.
21. In the case of Triambak Pati Tripathi v. The Board of High School and Intermediate Education, Uttar Pradesh, Allahabad, AIR 1973 All 1, a Full Bench of this Court had the occasion to consider and deal with the case of unfair means. Relying upon the decision of Supreme Court in Ghanshyam Das Gupta's case (AIR 1962 SC 1110) (supra), it was ruled by the Full Bench as under (Para 12) :--
"A consideration of these authorities lead us to the conclusion that the essential principles of natural justice that are to be observed by an authority dealing with the case in quasi-judicial manner are as follows :--
(1) The person whose rights are to be affected must be given notice of the case or the charges which he has to meet.
(2) He must be given an opportunity to make a representation and toexplain the allegations made against him and to have his say in the matter; and
(3) The authority conducting the proceedings must not be biased and should act in good faith."
22. Another Full Bench of this Court in the case of Ghazanfar Rashid v. Secretary, Board of High School and Intermediate Education, U.P. Allahabad, AIR 1979 All 209 had the occasion to consider the matter in issue, and was pleased to rule that High Court cannot reassess the circumstances and evidence, but if there is violation of principles of natural justice and if the conclusion is not supported by evidence, the High Court has got the jurisdiction to interfere in the matter in exercise of its power under Article 226 of the Constitution of India,
23. In the case of S.L. Kapoor v. Jagmohan, AIR 1981 SC 136, the Apex Court was pleased to rule, while considering in the case of supersession of Municipal Committee, that the principles of natural justice are bound to be followed if the order results in evil consequences to the person proceeded against as admission, if any, regarding the guilt will not be sufficient. It was ruled as under (At p. 147) :--
"In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. If ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futilse writs. We do not agree with the contrary view taken by the Delhi High Court in the judgment under appeal."
24. Similar view has been taken by the Apex Court in S.N. Mukherji v. Union of India, AIR 1990 SC 1984 and in Mahesh Chandra v. Regional Manager, (1992) 2 JT (SC) 326 : (AIR 1992 SC 935).
25. In the case of Vasudeo Vishwanath Saraf v. New Education Institute, AIR 1986 SC 2105, it was ruled by Supreme Court that it was necessary to pass a speaking order. The order should record in nutshell relevant reasons. Taking the same view a Full Bench of this Court in the case of Anil Kumar v. Secretary, Board of High School and Intermediate Education, U.P. Allahabad came to the conclusion that the orders impugned in those petitions were non-speaking orders, no reasons were recorded and no adequate opportunity was afforded to the candidates, therefore, said orders were held to be unsustainable.
26. From the reading of the aforesaiddecisions of Supreme Court and this Court, it is abundantly clear that the authorities dealing with the matters of unfair means act quasi-judicially, therefore, p inciples of audi alteram partem are applicable and they are bound to afford opportunity of presenting his case to the candidate concerned, and if no opportunity is afforded the orders are vitiated. Said rule is not confined to only the quasi judicial matters, but it also applies to the adminstrative orders, which involve civil consequences. The orders are required to be passed consistently with the principles of natural justice and must contain reasons. It is also clear that that High Court while exercising its power under Article 226 of the Constitution of India is not supposed to reassess the evidence and circumstances, but if the principles of natural justice are violated and the reasons are not supported by evidence on record, High Court can interfere in the matters and appropriate orders for advancement of justice can be passed. The orders are required to contain reasons, which may be recorded in nutshell so as to justify the orders ultimately passed by the competent authority.
27. It is also well settled in law that if any statute provides a particular thing to be taken in a particular manner, it is to be done in that manner alone, or not at all, and if it is not done in accordance with the provisions of statute, the action taken, or order passed is vitiated and it becomes unsustainable. A reference in this regard may be made to the decisions in Taylor v. Taylor, (1875) 1 ChD 426 and in State of Uttar Pradesh v. Singhara Singh, AIR 1 964 SC 358.
28. On behalf of the petitioners as stated above, it was contended that orders have been passed in violation of the provisions of 1.3, 1.4, 1.5 and 1.6 of the aforesaid Ordinances, which are mandatory in nature they are, therefore, not sustainable in law.
29. The question as to whether the provisions contained in Ordinances 1.3 and 1.5 of the Ordinances were mandatory or directory came to be considered before this Court in the case of Amit Kumar Singh v. The Registrar, University of Allahabad, (1992) 1 UPLBEC 722, wherein it was held as under :--
"21. As has already been noticed above, a stigma of using unfair means is of a far-reaching consequences, and visits the examinee with serious civil consequences. In case, therefore an incriminating material is found in possession of an examinee at time of appearing at the examination, a duty stands cast upon the authority concerned to bring this fact to the notice of the examinee then and there. The fact that the report, if any, about the candidate having been found in possession of unauthorised material is of considerable importance, is clear from the provisions contained in Ordinance 1.5 (a) of the Ordinances referred to above, which makes it incumbent upon the Examination Committee to consider such a report, while taking a decision. Ordinance 1.6 of the Ordinances referred to above prescribes the quantum of punishment for the use of unfair means. It shows that possession of unauthorised material by itself is punishable with cancellation of the results of the candidate in the examination in question and if its use is established, a further punishment of debarring from the corresponding and any other subsequent examinations of the next academic session is possible.
23. Taking into consideration, the aforesaid aspects, there is no escape from the conclusion that the use of the term 'shall' in Ordinance 1.3, referred to above is in an imperative sense and the requirement of serving the notice using unfair means in the examination hall itself is of a mandatory requirements is fatal to the order of punishment and the proceedings leading up to."
30. Again the same view was taken by this Court in the case of Sundaram Srivastava v. Allahabad University, Allahabad, (1992) 2 UPLBEC 949 wherein it was held as under:--
"It has been held by this Court in its decision in the case of Amit Kumar Singh v. The Registrar University of Allahabad, Civil Misc. Writ Petition No. 10431 of 1992,decidedon 14-5-1992 reported in 1992 (1) UPLBEC 722 that the provisions. contained in Ordinance, 1.3 indicated above, are of mandatory nature. It has further been held that the procedural safeguards contemplated under the aforesaid provisions have been imposed for the benefit of persons affected by the exercise of adminsitrative powers making it mandatory so that it is fatal to disregard them."
31. The aforesaid decisions were referred to and relied upon in Jyoti Prakash Pandey v. University of Allahabad, 1996 All WC 1094, by another learned single Judge and it was ruled as under :--
"Mr. Tandon relying on the decision in the case of Amit Kumar v. University of Allahabad, (1992) 1 UPLBEC 722 and Sundaram Srivastava v. Allahabad Universities, (1992) 1 UPLBEC 949, in support of his contention that Ordinance 1.3 is mandatory. Ordinance 1.3 provides that notice for using unfair means is to be served upon the candidate in the examination hall itself. If he refuses to accept or avoids or escapes personal receipt of the said notice, then the said notice shall be sent to him within 7 days of the incident. The candidates are required to submit reply to the notice within 10 days of the issue of the said notice. In the present case, it has not been alleged that the petitioner had refused to avoid or escape the receipt of the notice in the Examination Hall or that an attempt was made to serve the notice in the Examination Hall. It is also not the case that the notice was sent to him within 7 days of the incident. A plain reading of the said Ordinance 1.3 does not encompass within itself a situation like the present one. The notice can be sent to the candidate by Registered Post, that too within 7 days of the incident only when the candidate has refused or avoided or escaped receipt of the notice. Reading Clause (D) and Ordinance 1.3 together, it implies that those provisions have been engrafted to prevent misuse or uncanalised use of power. The question is touchy and it is very difficult to have proper proof or evidence. In the statute, it is not permissible to travel beyond the scope of such statute. Relying on the judgment in the case of Amit Kumar and Sundaram Srivastava (supra), it can safely be held that those provisions cannot be infracted."
32. In view of the aforesaid decisions, the provisions of said Ordinance are mandatory and non compliance whereof render the action taken by the orders passed invalid.
33. A contrary view, as pointed out by the learned counsel for the respondents has been taken by this Court in the case of Mahendra Tripathi v. Allahabad University Allahabad, (1997) 1 LBESR 224. While noticng the facts of said case in very first paragraph of the judgment, it has been noted as under :--
"He was given printed notice of using unfair means in the examination and his signature obtained on the second page of the notice forming part of the answer book. The room invigilator under the own signature made an endorsement 'caught by the University Flying Squad' on the first page of the notice which was attested by the Chief Invigilator and the Examination Superintendent/Principal C.M.P. Degree College, Allahabad. On the answer book also an endorsement was made 'caught by University Flying Squad'. Printed pages recovered from the student was made under the signature of B.K. Srivastava on the first page of the answer book which is meant for noting down the marks obtained by the examinee. Ail these formalities were done in the Examination Hall itself."
34. Another notice was stated to have been served upon the petitioner in aforesaid case on 1910, 1994 of which the reply was given by him on 17-10-1995.
35. On the tacts of that case, it is apparent that the learned Judge was not called upon to decide as to whether it was obligatory to serve the notice in the examination or within seven days thereafter, inasmuch as, the notice upon the examinee was admittedly served in the examination hall itself, therefore, it was not necessary for him to decide as to whether the provisions of aforesaid Ordinances were mandatory or directory. With due respect I may say that the view taken and the observations made by the learned Judge that those provisions were directory are nothing but obiter dictum, and as such have got no binding effect. Further learned single Judge could not take the contrary view, he could at the best make a recommendation to Hon'ble the Chief Justice to refer the matter to a larger Bench for consideration of the controversy and to resolve the same.
36. I fully agree with the view taken by this Court in the cases of Amit Kumar (1992 (1) UPLBEC 722) and Sundram Srivastava (1992 (2) UPLBEC 949) (supra) and hold that the provisions of Ordinances 1.3 and 1.5 of the Ordinances are mandatory, non-compliance whereof is fatal to the action taken and order passed by the authority concerned. It may be noted that except in Ordinance 1.3, there is no other provisions in the Ordinances for service of notice. The said Ordinance specifically provide that the notices will have to be served in the examination hall itself, or within seven days thereafter by registered post under the facts and circumstances noted in the said Ordinance. Therefore, if action is not taken in the examination hall, or within prescribed period of seven days of the date of incident, the University will not be entitled to issue notices thereafter. Purpose is apparent as had been indicated in the decisions, referred to above. In the absence of any provision of the same in the Ordinances, it is not possible for me to hold that University can taken action even after the prescribed period on the report of the examiner or any other authority, or otherwise, and can issue a notice for taking action as well as awarding punishment as provided in the said ordinances. The remedy, if any of the University is to review and reframe the Ordinances by introducing appropriate provisions to meet the situation, if it is so advised.
37. It is also well established in law that in quasi-judicial proceedings, principles of audi alteram parterm are applicable. Even in the administrative orders, which involve civil consequences, the orders are necessarily to be passed consistently with the rules of natural justice. Thus, the opportunity of showing cause is to be afforded to the candidates concerned and the reasons are required to be recorded in the orders passed against them in support of the conclusions arrived at by the authorities. In the cases where the opportunity of showing cause is afforded and explanation in respect of charge levelled is also submitted, but if nobody applies its mind to the explanations submitted by the candidates and no reason is recorded for rejecting the same, and the orders are passed wholly arbitrarily, it will be an exercise in futility and the actions taken and the orders passed are vitiated. A reference in this regard may be made to the decision in Raj Kumar v. University of Allahabad, (1991) 2 UPLBEC 1012 where it was observed as under by this Court :--
"There is no evidence on record to show that the Committee has considered the explanation offered by the petitioner in reply to the aforesaid notice. The notice is as vague as anything. Therefore, the contention of the learned counsel for the petitioner to this effect is not without substance."
38. Similar view was taken in Anil Kumar v. Secretary Board of High School and Intermediate Education, U.P. Allahabad, (1989) 1 UPLBEC 647, wherein it was ruled as under :--
"At least, it was incumbent upon the authorities to pass a speaking order giving sufficient reasons for the cancellation of the result but in the instant case no such order appears to have been passed. The opposite parties have committed a manifest error of law firstly, by withholding the result of the petitioners and secondly by cancelling their result and without any cogent and sufficient reason. In view of our observations mentioned above, this writ petition deserves to be allowed and the order dated 4-2-1987 passed by Additional Secretary Board of High School and Intermediate Education, Uttar Pradesh, Sub-office U.P. Meerut communicated to the petitioners on 14-2-1987 by the Principal Virendra Bhaniya Inter College, Jeonti, Mainpuri, is quashed and a mandamus is issued against the opposite parties Nos. 1 and 2 to declare the result of the petitioners and issue mark sheets to them within a fortnight from the date of the production of certified copy of this order."
39. Thus, I conclude that it was obligatory upon the respondents to serve show cause notices to the petitioners in the examination hall itself, or within seven days after the incidents by the registered post, if they avoided to receive the same in examination hall and to consider objectively the explanations submitted by the candidates as well as to record reasons for rejecting the explanations.
40. I have examined the records produced by the learned counsel appearing for the University relating to each one of the aforesaid cases. None of the record contains any reasoned order or resolution. The explanation submitted by the petitioners have, thus, been completely ignored. Nobody has applied its mind to the facts of the case particularly the explanation furnished, by the petitioners and punishments have been awarded wholly arbitrarily and contrary to the rules. Calling for explanation and submissions thereof by the students is not only a formality. Ordinance 1.5 specifically provides that the unfair means committee shall consider the report, if any, about the candidate having been found in possession of unauthorised material, the reply of the candidate, if any, to the notice the report of examiner concerned, if any, regarding the transcription or non-transcription of the unauthorised material of which the candidate was found in possession; any other material. Ordinance 1.6 further provides that the Committee referred to in Ordinance 1.4 shall award the punishment afterplacingthe record that it has examined all the documents referred to in Ordinance 1.5 and that it has satisfied itself regarding the facts of the matter.
41. I am constrained to observe that in none of the cases the committee constituted under Ordinance 1.4 i.e. the unfair means committee or the examination commitee of the University complied with the procedure prescribed under Ordinances 1.5 and 1.6 inasmuch as in none of the cases, the explanation of the student has been considered and in none of the cases reasoned order as prescribed under the law have been passed. Therefore, the orders impugned in these petitions are all illegal and unenforceable in law.
42. Learned counsel appearing for the University in support of his submission that orders passed by the respondents cannot be invalidated for the inaction or failure of others entrusted to perform the public duty, referred to and relied upon the decision of Supreme Court in the case of Ramington Rand of India v. Workmen, AIR 1968 SC 2 24, wherein it was ruled as under :--
"When the provisions of Statute relate to the performance of a public duty and the case is that to hold null and void acts in neglect of this duty, would work serious general incoveniences or injustice to persons who have no control over those who are entrusted with the duty and al the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only....."
43. In the cases in hand, it cannot be said that the respondents have no control over those who are entrusted with the public duty, inasmuch as the invigilators and other authorities of the University, or of the affiliated colleges are in the direct control and supervision of the University, and they are bound to comply with the orders passed and action taken by the University, and if they fail to comply with orders to perform their duty they are liable to be proceeded against on the adminstrative side, but in no way and no manner the candidate should suffer for the inaction or wrong actions of the persons entrusted with public duty.
44. There is yet another aspect to insist upon the respondents to strictly follow the procedure prescribed in the aforesaid Ordinance and to pass and communicate the students reasoned order.
45. From the non-speaking orders no reasonable person can come to the conclusion that the order passed or action taken by the authority concerned was justified under the facts and circumstances of any particular case. The result is that in all such cases time is granted to the learned counsel appearing for the University to file counter-affidavit and also to produce the records. In some cases in which the examinations are going on, or were scheduled to commence, orders as usual are passed, permitting the petitioners to appear in the examinations.
46. In some cases petitioners are also permitted to attend the classes. By the time the counter-affidavit is filed, or record is produced, the examination is over, or the next examination is to commence. In some cases counter-affidavits in spite of time being granted by this Court are not filed, nor the records are produced, therefore, reliance is being placed by the petitioners on the decisions of the Supreme Court the case of Dr. Rajeev Srivastava v. State of U.P., 1985 UPLBEC 152 and of this Court in the case of Dr. Anil Kumar Agarwal v. Director of Medical Education and Training, U.P., Lucknow, 1987 UPLBEC 547. It is contended that it will be in the interest of justice to permit the petitioners either to appear in the subsequent examinations or to declare their results. This Court consistently with the view taken by the Supreme Court, which has got binding effect on this Court and on humanitarian grounds is obliged to pass orders in favour of the petitioners. This practice has also resulted into accumulation of arrears of cases of this type in the High Court, which is already over burdened by the arrears of the cases. Therefore, in my opinion, it will be just and proper for the University authorities to take stock of the situation and to pass reasoned orders and communicate the same to the candidates concerned after following the procedure prescribed under the Ordinances, so that this court may, as in other cases, where reasoned orders are challenged, take decision without waiting for the counter affidavits and the records of the cases.
47. It is also evident from the record that the entire proceedings for action against the petitioners for use of unfair means have been recorded on printed pro formas, referred to above. Most of the columns of which, even the relevant columns, have been left blank. No reasoned orders have at all been passed and the punishment awarded to the petitioner has also been communicated to them on printed forms. Cyclostyled or printed orders clearly show non-application of mind to the facts of the case by the authority passing/ signing the orders. This practice is deprecated and should be stopped at once. As the authorities acting quasi -judicial are required to act fairly and reasonable and not arbitrarily. The examinee against whom the orders are passed, should be supplied speaking and reasoned orders along with the provisions of the Ordinances, referred to above. The orders impugned in the present petition are, therefore, also liable to be quashed on this ground. In Dr. Siya Ram Singh v. Director Higher Education, U.P., Allahabad, (1992) 2 UPLBEC 1120, it was ruled by this Court as under :--
"The orders passed against the petitioners are all cyclostyled. A reading of the same indicates that there was no application of mind. Individual cases were not examined. They are non-speaking orders. The Director should have given some reasons. In the case reported in AIR 1990 SC 1984, S.N. Mukherji v. Union of India, it has been held that even administrative orders must be supported by reasons. The recording of reasons by adminstrative authorities serves a good purpose, namely, it excludes the chance of arbitrariness."
48. It is strange that the record of Sanjeev Kumar Singh, File No. 447 of 1996, does not contain even the non-speaking order awarding any punishment by the authority of the University to him. In the relevant column, it was noted as under :--
"Referred to examination committee as the case is not covered under 1.5"
Sanjeev Kumar Singh was also communicated the order dated 28-2-1997 by the Registrar on the printed form cancelling his result of B.A. II Examination of 1996 for which there was absolutely no justification.
49. In view of the aforesaid discussions, all the aforesaid petitions deserves to be allowed and the impugned orders are liable to be quashed.
50. All these petitions succeed and are allowed with costs which I assess moderately at Rupees 1,500/- in each case. The impugned orders in all these petitions, cancelling the result of the petitioners of their examinations as well as debarring them (in some cases) from appearing in corresponding (and any other) subsequent examination of 1997 are quashed. The respondents are directed to declare the results of the petitioners after getting their answer book examined in accordance with law within one month from the date a certified copy of this order is produced before the Registrar of Allahabad University, Allahabad, and before the Controller of Examinations.
51. It is further directed that the petitioners, who are declared successful in the examination, shall be permitted to appear in the examination of the next higher classes and others to appear in the examination of the sameclasses if they are declared unsuccessful.