CENTRAL BOARD OF SECONDARY EDUCATIONversusMS. VINEETA MAHAJAN AND ANR.

        CENTRAL BOARD OF SECONDARY EDUCATION                                A
                           v.
             MS. VINEETA MAHAJAN AND ANR.'

                          OCTOBER 15, 1993

            [KULDIP SINGH AND S.C. AGRAWAL, JJ.)                            B

      Central Board of Secondary Education Examinali~n Bye- law.s-Rule
36.l(iv)(a}-Use of unfair means at the examination-No distinction between
malafide or bona-fide possession of material relevant to the examina-
tion-Recovery thereof-Effect of-Even though the incriminating material      C
was not us~d candidate was guilty of using unfair means.

      The Respondent was appearing for Class XU examination. In the
enmlnation hall she was found In possession of three small pieces of
paper kept in her pendl box. The Result Committee of the Appellant-·
Board Initiated proceedings against her for using unfair means at the .D.
eiauninati'on. Before the Committee Respondent a~ltted having kept the
said papers In the pendl box but stated that she did not use the same while
answering the question paper. She also stated that since she arrived late
for the examination,· she was utterly confused and panicky and ~o she
forgot to remove the papers before entering the hall. When questioned E
about the warning given In the examination ball as regards possession of
undesirable material by the examinees, the respondent answered that she
was too tense to hear the warning.

      The Committee found the· respondent guilty of using unfair means
at the examination and as a punishment her examination for the year 1993    F
was cancelled. She challenged the said order by way of a writ petition
before the High Court, which allowed the writ petition and quashed the
punishment awarded to the respondent.

     Against the High Court's order, the Board preferred the present        G
appeal.

      Allowing the appeal, this Court

     HELD : 1.1. Rule 36.l(iv)(a) of the Examination Bye-laws framed by
the Central Board or Secondary Education clearly defines "the use or ( H
                                  387
    388                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R ..

A   unfair means at the examination" and lays down in simple languagt> thl't
    a candidate having in possession, papers relevant to the examination in
    the paper concerned, shall be deemed to have used unfair means at the
    examination. The sine qua 11011, for the misconduct under the rule, is the
    recovery of the incriminating material from the possession of the can-
    didate. Once the candidate is found to be in possession of papers relevant
B   to the examination, the requirement of the Rl!le is satisfied and there is
    no escape from the conclusion that the candidate has used unfair means
    at the examination. The Rule does not make any distinction between bona
    fide or ma/a fide possession· of the incriminating material. (390-E-G]

C         1.2. In the instant case, may be because of strict vigilance in the
    examination hall the candidate was not in a position to take out the papers
    from the pencil box and use the same. The very fact that she took the
    papers relevant to the examination in the paper concerned and was found
    to be in possession of the same by the invigilatot in the examination hall
    is sufficient to prove the charge of using unfair means by, her in the
D   examination under the Rule. (390-H, 391-A]

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5450 of
    1993.

E         From the Judgment and Order dated 23.8.1993 of the High Court of
    Delhi in Civil Writ Petition No. 3714/93.

         P.P. Rao, Rajeev Sharma, T.C. Sharma, Ms. Rajni K. Prasad and
    Neelam Sharma for the Appellant.

            G. Ramaswamy, S.K. Mehta and K.L. Mehta for the Respondents.
F
            The Judgment of the Court was delivered by

            KULDIP SINGH, J. Special leave granted.

          · Vineeta Mahajan, respondent in this appeal, appeared in Class XII
G   examination conducted by the Central Board of Secondary Education,
    Delhi, in the month of March, 1993. She sat for the Political Science paper
    on March 16, 1993 in the said examination. During the course of examina-
    tion, the invigilator found the respondent in possession of written-material
    in the shape of three small pieces of paper kept in the pencil box. The
H   matter was reported to the Central Surerintendent. Proceedings in respect
               C.B.S.E.'i" MS. VINEETA [KlJLDEEP SINGH,J.]                 389

of the charge "for using unfair means at the examination" were initiated hy A
the Result Committee of the Board. The respondent was examined hy the
said Committee on July 19, 1993. She admitted having kept the said papers
in the pencil hox hut she stated that she had not used the same while
answering the question paper. According to her she arrived at the examina-
tion hall late - due to car puncture on the way - and, as· such, was utterly B
confused and panicky and in that mental state she forgot to takeout the
papers from the pencil-box before entering the examination hall. The
Deputy Superintendent of the Examination Centre stated before the Com-
mittee that she had given the usual warning in the examination hall about
the possession of undesirable material by the examinees. When questioned
by the Deputy Superientendent the respondent answered that she was too C
tense to hear the warning. The Committee found the respondent guilty of
using unfair means at the Examination and as a punishment her examina-
tion for the year 1993 was cancelled. She challenged the said order by way
of a writ petition before the Delhi High Court. The High Court allowed
the writ petition and quashed the punishment awarded to the repondent. D
This appeal by way of special leave is against the judgment of the High
Court.

     Rule 36.l(iv)(a) of the Rules (the rules) for unfair means cases
framed by the Board which is relevant for our purposes is reproduced
hereunder: -                                                                      E
          "36.l(iv)(a) If during the course of examination, any candidate is
          found indulging in any of the following, he shall be deemed to have
          used unfair means at the examination:

          (a) having in posse~sion, papers, books, notes or any other material    F
          or information relevant to the examination in the paper con-
          cerned."

        The High Court allowed the writ petition on the following reason-
ing:-
                                                                                  G
          "The question which arises for our consideration is, if the positive
          finding of the result committee is that the petitioner had not copied
          then can the provisions for Rule 36.l(iv) be so invoked so as to
          come to the conclusion that the petitioner had been guilty of using
          unfair means.                                                           H
    390                   SUPREME COURT REPORTS (1993) SUPP. 3 S.C.R.

A            It is no doubt true that the said provisions raise presumption that
             the candidate is guilty of using unfair means if, inter- alia, written
            material is found on the person in the examination. But this is a
            rebuttable resumption and it can be seen whether in fact the
            material was not used ............. We find here in this case that the
            result committee, having come to a positive finding that the
B           petitioner had not copied despite having written material on her
            person, ought not to have imposed any penalty. Having come to
            the conclusion, on facts, that the petitioner had not copied, the
            question of imposing and penalty merely on the presumption of
            some written notes being found with the candidate, could not be
c           arrived at, on the facts and circumstances of the present case. The
            decision of the respondents of cancelling the result for the year
            1993 did not flo.w, in other words, from the finding of fact which
            that authority itself had arrived at. This court is merely correcting
            the error which has crept in the impugned order. For the aforesaid
            reasons, this writ petition is allowed. The decision of the respon-
D           dents in cancelling the examina~ion of the petitioner for the year
            1993 is quashed and the respondents are directed to declare the
            result of the petitioner within two weeks from today."

          We do not agree with the reasoning of the High Court. The High
E Court fell into patent error in reading a rebuttable presumption in the
    language of the rule. The Rule clearly defines "the use of unfair means' at
    the examination" and lays down in simple language that a candidate having
    in possession, papers relevant to the examination in the paper concerned,
    shall be deemed to have used unfair means at the examination. The sine
F   qua non, for the miscondu~t under the rule, is the recovery of the in-
    criminating material from the possession of the candidate. Once the can-
    didate is found to be in possession of papers relevant to the examination,
    the requirement of the Rule is satisfied and there is no escape from the
    conclusion that the candidate has used unfair means at the examination.
    The Rule does not make any distinction between bona fide or ma/a fide
G   possession of the incriminating material. The High Court reasoning, that
    the candidate having not used the material - in spite of the opportunity
    available to her - the possession alone would not attract the provisions of
    the Rule, in our view, is not borne out from the plain language of the Rule.
    May be, because of strict vigilance in tl}e examination hall the candidate
H   was not in a position to take out the papers from the pencil box and use
             C.B.S.E. v. MS. VINEETA (KULDEEP SINGH, J.)            . 391

the same. The very fact that the took the papers relevant to the examination A
in the paper concerned and was found to be in possession of the same by
the invigilator in the examination hall is sufficient to prove the charge of
using unfair means by her in the examination under the Rule.

     We allow the appeal, set aside the judgment of the High Court dated
August 23, 1993. and dismiss the writ petition filed by the respondent,     B
Vineeta Mahajan before the High Court. No costs.

G.N.                                                     Appeal allowed.