ORDER
Sadashiva, J
1. Whether the Vice-Chancellor has authority of law to cancel the examinations on mere suspicion that one of the examiners must have favoured some students for extraneous considerations, without holding any enquiry of whatsoever nature is the only question that arises for consideration in these Petitions.
Though larger questions, such as the object of Post-Graduate courses, the purport and intent of examinations, scope and extent of enquiry regarding malpractices and lapses at the examinations and the applicability of principles of Natural Justice would naturally arise for consideration during the consideration of the question in controversy, in the facts and circumstances of these Cases, I do not propose to go into all these questions suffice it to state that, in matters of enforcement of discipline touching the examinations of various faculties, though applicability of Natural Justice is not a rule of thumb or a straight jacket formula, no penalty could be imposed without any enquiry. Deviation from procedure prescribed for an enquiry does not mean total abandonment of enquiry.
2. The petitioners in these Petitions are calling in question the action of the respondent and that of the Vice-Chancellor in not announcing the result of their performance in M.D. (O.B.G.) Examination held in the month of March 1994 and further cancelling the entire examination and directing the petitioners to take examination in respect of the same course in the month of September 1994.
3. The petitioners are the students of Mysore University in Post-Graduate course leading to M.D. in Obstetrics and Gynaecology. They, after having completed three years of study in the Post-Graduate Degree in O.B.G., have taken their examination held between 15.3.1994 and 23.3.1994. They also state that the dissertations submitted by them were accepted by the respondent. When they were waiting for the result of their performance in M.D. Examination, the respondent instead of declaring the result, issued a communication dated 1.7.1994 directing the Head of the Department, O.B.G., Government Medical College, Mysore, to bring it to the notice of all the students that the Syndicate of the University at its meeting held on 23.6.1994 resolved to permit the students of M.D. (O.B.G.) to take examinations scheduled to be held on 15.9.1994, if they so desire and to pay examination-fee in accordance with the Notification dated 31.5.1994. A copy of the said communication is produced at Annexure-A. Pursuant to the resolution of the Syndicate, the Vice-Chancellor appeared to have made an order cancelling the examinations. Pursuant to the order of the Vice-Chancellor, the respondent issued an order dated 16.8.1994 in No. Ex./MP/412/March 1994 as per Annexure-B, cancelling the examinations of M.D. (O.B.G.) and (D.G.P.) held in the month of September 1994.
4. Sri Ravivarma Kumar, learned Counsel for the petitioners submits that, the respondent-University has framed an Ordinance called “The Mysore University Students (Discipline and Control) Ordinance, 1989” (for short “the Ordinance”), under Sub-clause (d) of Clause (i) and (ii) of Sub-section (2) of Section 25 read with Section 37(n) of the Karnataka State Universities Act, 1976 (for short ‘the Act’); Ordinance 4 of Ordinance deals with the penalties that may be imposed against the students for the mal-practices and lapses or misconduct. Clause (viii) of Ordinance 4, empowers the Vice-Chancellor to impose the penalty of cancellation of the result of the examinations. Therefore the cancellation of the examination is a penalty against the students indulged in mal-practices and lapses at an examination; such penalties may be imposed only after an enquiry conducted by the committee constituted for the purpose under the provisions of the Ordinance; there is no allegation of malpractices or lapses of any kind of whatsoever nature against the petitioners; not even a notice has been issued to them; Hence the action of the University as per Annexure-A and the order at Annexure-B are contrary to the provisions of Section 62 of the Act and they violate principles of natural justice. He further contends that the Vice-Chancellor has no power to pass such order and the impugned order is therefore wholly without authority of law.
5. Sri V.C. Brahmarayappa, learned Counsel for the respondent-University, fairly concedes that the impugned order is not preceded by any enquiry of whatsoever nature, as prescribed by the Ordinance. He admits that there are no allegations of mal-practices or lapses against the petitioners and no notices were issued to them. However, he submits that, in view of the misconduct of corruption and favourtism alleged against one of the external examiners, the Vice-Chancellor has cancelled the examinations in order to maintain purity of examinations. In this context Sri V.C. Brahmarayappa states as follows :
That, the University appointed Dr. M.N. Paul, Head of the Department of O.B.G., Government Medical College, Goa, as one of the external examiners to conduct the examination of Post-Graduate Degree in O.B.G., The University received continuous anonymous telephone calls since 21.3.1994 against the said Professor, alleging that he has been collecting money from students to favour them with a pass. On receipt of such complaints the Registrar (Evaluation) directed the Deputy Registrar (Evaluation) (Examination) to conduct a search of the room in the occupation of Dr. M.N. Paul. Accordingly the Deputy Registrar, taking police assistance searched Room No. 125, Dasaprakash Hotel, Mysore, in the occupation of Dr. M.N. Paul, in his presence and in the presence of Sri R.S. Poornananda, Sri B.K. Jagadeesh and Dr. U.N. Lakshman. During the search they found a sum of Rs. 94,500/- in cash under the mattress in the room and another sum of Rs. 5,000/- in the hand-bag of Dr. M.N. Paul. On the interrogation by the police, Dr. Paul failed to satisfactorily account for possession of such a large sum of money. At that time, one person by name Dr. Bharathi Shankar entered the room of Dr. M.N. Paul. On enquiry he revealed that he came there to pay a sum of Rs. 5,000/- to Dr. Paul with a request to pass his sister Dr. Premakumari and he has further told that a sum of Rs. 5,000/- had already been paid. The Deputy Registrar during the search, further found slips containing the names of some of the doctors along with graded list of the current M.D. Examination. That pursuant to the search and discovery, the Deputy Registrar filed a complaint against Dr. Paul and Dr. Bharathi Shankar with the Assistant Commissioner of Police, Devaraja Sub-Division, Mysore, and the money recovered from Dr. Paul was also handed over to the police.
In these suspicious circumstances of grave nature, Sri V.C. Brahmarayappa learned Counsel for the respondent submits that, in order to enforce the discipline and to maintain the purity of examinations, the Vice-Chancellor, pursuant to the authorisation given by the Syndicate has cancelled the examinations and directed to conduct re-examination in the month of September 1994.
6. It is the contention of the respondent that, where there is a grave allegation against an examiner that he has indulged in such activities of taking money to pass students, no enquiry is necessary. The principles of Natural Justice has no place in such matters. The enquiry as prescribed by the Ordinance is not held only on account of delay likely to be caused in holding such enquiry and the resultant hardship to the students. Hence keeping the purity of examinations as well as the interest of the students in view, the Vice-Chancellor has cancelled the examinations, and in the facts and circumstances of this case, the Vice-Chancellor has acted fairly and justly and the non-compliance with the principles of Natural Justice would not render the order invalid.
7. It is further submitted that the object of providing courses in Post-Graduate Degree and Diploma in various faculties is, to facilitate the students to acquire excellence in the subject of their choice, unless the University enforces a certain degree of discipline during their study and examinations, the object would be defeated, in order to achieve the objective, mal-practices and lapses of any kind shall be put down with firm hand and in so doing, the principles of Natural Justice cannot be applied with mathematical precision and some deviation shall be allowed in public interest. In view of the students not being debarred from taking further examination, but allowing them a re-examination would not affect their career and they will not suffer any injury.
8. There is no dispute that in matters of enforcement of discipline the Courts must be slow in its interference. The authorities incharge of education whose duty is to conduct examination fairly and properly, know best how to deal with the situation arising under various circumstances and one cannot import the fine principles of law and weigh the same in golden scales. It is also not in dispute that the above principle would not be a bar for this Court to examine whether or not any order made by the University as regards the examinations is in accordance with law, even though the principles of Natural Justice is not applied as a straight jacket formula.
9. The petitioners are the students of the Post-Graduate Degree course. They have completed their three years study and took the examination. There is no allegation of malpractice or lapses against the students of whatsoever nature. The Ordinance provides for penalty of cancellation of the results of the examination where the students are found indulging in malpractices or lapses or misconduct in the examinations. There is no provision in the Ordinance for cancellation of the examination for the misconduct of the examiner. It is true that the misconduct of the examiner will also be a ground for the University to take action against the students if the complicity between the students and the examiner is established. The University having charged with the function of providing education, conducting examination and to confer degrees or diplomas on students, is well within its limits to take any action, provided such action is taken fairly and justly. In the facts and circumstances of this case, I am not able to pursuade myself to agree with the contention of the learned Counsel for the respondent, that, no enquiry was needed, in view of the grave suspicion against an examiner, in the absence of any allegations of complicity with the examiner against the students.
10. The University has framed Rules and Regulations as regards the Post-Graduate Course in the Faculty of Medicine and has also issued instructions to the Chief Superintendent and Chairman of the Board of Examination in Post-Graduate Examination in the Faculty of Medicine. That, according to the Rules and the Regulations there shall be a minimum of 4 examiners; two internal and two external, to conduct the examination of Post-Graduate Degree course in the faculty of Medicine. Before taking the examination every student should select a subject for purposes of dissertation and four copies of the dissertation should be submitted by the students to the Registrar, six months ahead of the final examination and it should be accepted before the students sit for theory, clinical and oral examinations. The dissertation should be valued by the Guide and two External Examiners, who are appointed for theory, clinical and practical examinations, The questions should be framed by the External Examiners of the Board jointly and the theory examination must be held well before the practical and clinical examinations. The papers should be valued independently by all the examiners. The instructions issued by the University to the Chief Superintendent/Chairman, Board of Examination in Post-Graduate Examinations in the Faculty of Medicine reads as under :
“** The University Syndicate has now decided on the basis of the Recommendations of a Special Committee that the details of assessment of each component by each Examiner must be recorded and collected as also a team assessment of each component for each candidate, apart from the whole Board’s Recommendations based on such detailed assessment. Accordingly, a form has been devided and supplied, which is suitable for recording both individual examiner’s awards for each component and the consolidated assessment by the Board as a whole. The Chairman and Members of the B.O.E. are therefore requested to award marks or grades as follows and Chief Superintendents are requested to ensure that these forms reach the Chairman and Members of each Board at each centre.
(1) Each individual examiner record in terms of marks out of 100 grades on a 5 point scale A, B, C, D, E assessment of each component (separately for each paper in theory) as well as the overall assessment for the component of theory.
The grades may be used to mean
A- 70% and above (Excellent)
B- 60 to 69% (Good)
C- 50 to 59% (Satisfactory)
D- 40 to 49% (Poor)
E- Less than 40% (Very Poor).
(2) Each individual examiner may give overall grade or marks for the theory component based on the grades or marks given to each theory paper.
(3) In the consolidated record, the team assessment for each component may be recorded on the basis of the individual assessments for the paper overall component concerned, and an average grade or marks for the whole of theory component on the basis of assessment of individual theory papers. If any moderation is necessary and justified on the basis of discussion after comparing the individual assessments for each paper/component, it may be brought into the Board Assessment in the consolidated record with the indication ‘M’ within brackets.
(4) Clear recommendations on ‘pass’ or ‘failure’ based on the assessment of the different components may be recorded in the last column.
(5) Wherever there are 3 candidates or more in the two centres in a subject, the best candidate may be chosen by the whole Board and the name recorded at the bottom. Where there are more than 5 candidates, a second rank, may also be added.”
A Form prescribed for this purpose is also produced for my perusal. It is clear from the Rules and Regulations relating to Post-Graduate Course in the Faculty of Medicine and the instructions given by the University, each paper would be examined by four examiners individually and there would be a combined assessment also and on the basis of the marks secured by each candidate a grade will be assigned against them. In this case, it is admitted that there were four examiners, out of whom three were external examiners and a Professor from Calicut University was the Chairman of the Board of Examiners. The other examiners have given their assessment in the sealed cover and it is with the University. There is nothing on record to show that whether Dr. Paul has also given his assessment of the performance of the students. However it is stated That the theory papers have been valued independently by all the examiners and so also clinicals and oral, till 22.3.1994. No allegations have been made against the other examiners, nor it is stated that Dr. Paul has influenced them in any manner.
11.The Ordinance as stated supra provides for penalties against students found indulging in malpractices or lapses or misconduct in the examinations. Ordinance 4 deals with the penalties. Clause (i) of Ordinance 9 reads as follows :
“No order imposing on a University student any of the penalties specified in Clause (i) Ordinance 4 shall be passed except in the manner hereinafter provided.”
The other clauses deal with the procedure. In view of the fact that no enquiry was admittedly conducted in this case, it is unnecessary to extract the other clauses of Ordinance 9.
12. Sri V.C. Brahmarayappa, learned Counsel for the respondent, submits that in view of the grave suspicion against the conduct of the examiner, the examination has been cancelled, in order to maintain the purity of the examination. It is true that, the University charged with the function of conducting the examination is empowered to enforce discipline. But, to enforce discipline, compliance with the Rule of Law is as important as the discipline. It is not possible to enforce discipline violating Rule of Law, as it would result in indiscipline. In order to enforce discipline, Rule of Law shall necessarily have to be enforced. There may be some deviations as regards the procedure to be followed to enforce discipline. But that does not mean compliance with Rule of Law may be totally omitted. Giving a go-by to Rule of Law will result in chaos in the society. It is admitted that the object of education in Post-Graduate courses is to acquire excellence in the chosen subject. There is no dispute that in so acquiring the candidates shall maintain the discipline and devotion necessary for such acquisition. In the absence of discipline and dedication, it is impossible to achieve excellence in any field and the failure would result in the defeat of objective. To achieve the object both the teacher and the taught shall conform to the norms prescribed. That the failure to maintain such norms and to indulge in malpractices or lapses would result in penalties. In order to achieve an object, the means to achieve such object is as important as the object itself. If the means to achieve object is not just and fair, the end gets vitiated. Hence to instil and to enforce discipline the means adopted shall be as prescribed and accepted by Rule of Law. Depending upon the facts and circumstances of the case, there may be deviations from following the means prescribed, but there cannot be a total abandonment of the means.
13. Pursuant to the order of the Vice-Chancellor, the Examinations of M.D. (O.B.G.) and (D.P.G.) held in the month of March 1994 have been cancelled. No provision of law was brought to my notice for cancellation of the Examinations in the manner it was done in this case.
14. It is admitted that no allegation of mal-practices, fraud or misconduct have been made against the petitioners. No enquiry of whatsoever nature was held even in respect of the allegations made against Dr. M.N. Paul. There is no finding as to the complicity of the petitioners with Dr. Paul in the commission of any act or misconduct of fraud. It is not known as to what happened to the complaint filed with the police. It is well settled that, suspicion however strong may be, will not take the place of proof. It may be argued that, in the circumstances of this case, 100% proof is not necessary in a matter touching the conduct of the examiner. There are no two opinions on this point, but atleast there shall be semblance of proof for the University to take action against the petitioners. It is submitted by Sri V.C. Brahmarayappa, learned Counsel for the respondent, that in view of the fact that the petitioners are allowed to take the Examination to be held in the month of September 1994, no prejudice is caused to them. It is not the question of mere prejudice or injury. It is the question of enforcement of Rule of Law to enforce one’s right to get the fruits of their hard work, for which they are entitled under law. The right of the petitioners to get their results of their performance declared cannot be defeated without recourse to law.
15. It is submitted by Sri V.C. Brahmarayappa, learned Counsel for the respondent, that the assessment of each component as done by each examiner and grading awarded by them is kept in a sealed cover. It is not argued that it is impermissible for the University to declare the result of M.D. (O.B.G.) Examination held in the month of March 1994 on the basis of the assessment and grading awarded by the said Examiners without reference to the assessment and grading awarded by Dr. Paul.
16. In the result, I make the following Order:
(i) The Writ Petitions are allowed.
(ii) The order dated 16.8.1994 made by the respondent in No. Ex./MP/412/March 1994, Annexure-B, is quashed in so far as it relates to the petitioners.
(iii) There shall be a direction to the respondent to declare the results of the performance of the petitioners in M.D. (O.B.G.) Examinations held in the month of March 1994. It is open to the respondent to consider the declaration of performance of other candidates also.
After the pronouncement of the Order, it is noticed that no time is fixed for compliance with the Order. In the circumstances of these cases, it is necessary to prescribe a period within which the respondent shall comply with the order. Hence the respondent is directed to comply with the order within four weeks from today.