BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/10/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.9378 of 2010 W.P.(MD)NO.9379 of 2010 W.P.(MD)NO.9380 of 2010 W.P.(MD)NO.9381 of 2010 W.P.(MD)NO.9382 of 2010 W.P.(MD)NO.10699 of 2010 W.P.(MD)NO.10700 of 2010 W.P.(MD)NO.10701 of 2010 W.P.(MD)NO.10702 of 2010 W.P.(MD)NO.10703 of 2010 and M.P.(MD)NOs.1,2,1,2,1,2,1,2,1,2,1,2,1,2,1,2,1,2,1 and 2 of 2010 V.Ananthi .. Petitioner in W.P.(MD)Nos.9378 and 10699 of 2010 Asikkul Kamila, A. .. Petitioner in W.P.(MD)Nos.9379 and 10700 of 2010 Dharani .. Petitioner in W.P.(MD)Nos.9380 and 10701 of 2010 Saravanakumar .. Petitioner in W.P.(MD)Nos.9381 and 10702 of 2010 V.C.Vasudevan .. Petitioner in W.P.(MD)Nod.9382 and 10703 of 2010 vs 1.The Registrar, Alagappa University, Karaikudi. 2.The Controller of Examination, Alagappa University, Karaikudi. .. Respondents in
W.P.(MD)Nos.9378 to
9382 of 2010
1.The Director,
Directorate of Distance Education,
Alagappa University, Karaikudi.
2.The Controller of Examination,
Alagappa University, Karaikudi. .. Respondents in
W.P.(MD)Nos.10699 to
10703 of 2010
W.P.(MD)Nos.9378 to 9382 of 2010 have been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of certiorarified mandamus
to call for the records relating to the impugned order of the first respondent,
dated 20.05.2010 and to quash the same and to consequently direct the
respondents to announce the result of the examination held in May, 2010.
W.P.(MD)Nos.10699 to 10703 of 2010 have been preferred under Article 226 of the
Constitution of India praying for the issue of a writ of certiorari to call for
the records relating to the impugned notification dated nil published by the
second respondent in the University website in respect of re-examination of the
cancelled distance education examinations, May, 2010 at Palani Centre alone and
to quash the same.
!For Petitioners … Mr.M.Gnanagurunathan
^For Respondents … Mr.V.Panneerselvam
– – – –
:COMMON ORDER
The petitioners in both set of writ petitions are the same persons. In the
first writ petition, they are seeking to set aside the order of the respondent
University, dated 20.5.2010, wherein the Chief Superintendent, Alagappa
University, Distance Education Examinations at its Standard Matriculation
School, Palani was informed that the University examinations held in May, 2010
at the Palani Centre are cancelled due to mass copying as reported by the
Special Inspection Squad. The date of re-examinations was to be announced
subsequently.
2.Notice of motion was ordered in these writ petitions. In the meanwhile,
the same petitioners on coming to know from the University website wherein it
was indicated that reexaminations were to be held at Palani and Vizianagaram
centres from 25.8.2010, filed another set of writ petitions to quash the said
notification. When those writ petitions came up on 18.8.2010, this court
directed the second batch of cases to be heard along with the first batch of
writ petitions. On notice from this court, the respondent University had filed a
counter affidavit, dated 9.8.2010.
3.It is seen from the records that the respondent University started
Distance Education Programme from the year 1992-1993. They had also obtained
permission from the Distance Education Council, New Delhi upto the academic year
2007-2008. Examinations by the University were conducted twice a year, i.e. in
May and December. The examination centres were determined on the basis of
students strength from time to time and Palani became one of the centres. The
Standard Matriculation School at Palani was fixed as centre for conducting
examinations in May, 2010. The theory part of the examinations for Under
Graduate Courses and Post Graduate Courses were held from 5.5.2010 to 14.5.2010
and from 5.5.2010 to 18.5.2010 respectively. It was also found out by the
University that right from the commencement of the examinations, there has been
complaints of malpractices in that centre. Based on those reports, the
University ordered the surprise squad to visit the centre. They also appointed
the Registrar (In-charge), Dean-Research, Dean-College Development Council as
part of the Squad. They visited the centre on 15.5.2010 at 11.00 a.m. When the
squad visited the ground floor of the building where examinations were
conducted, they found that there was mass copying going on in the centre. Even
by the seating arrangements made, two or three candidates can sit in a same
bench which will enable them copy from others. The squad also found that bribe
amount of Rs.1000/- per paper was given to the staff.
4.It was also stated that the Hall Supervisor, i.e. B.Kaleeswari also gave
a written statement, dated 15.5.2010 repented that mass copying was permitted by
collecting money from the examinees. Another Hall Supervisor, i.e. L.Kalaimathi
also gave her written statement acknowledging the fact of copying by students
with their books. The Correspondent-cum-Principal of the School one Mrs.Vatsala
Muthukrishnan also accepted that mass copying was done in at least two halls. On
the basis of the report of the Squad and taking into account the reputation of
the University, the University decided to cancel the examinations conducted in
Palani centre. It is also stated that in order to maintain the standard of
education and keeping the reputation of the University and confidence of general
public, cancellation had taken place.
5.However, the petitioner contended that only students in the ground floor
were found copying and that cannot be taken as copying by all. The inspection
was done only on 15.5.2010. If at all only that day’s examinations can be
cancelled and not the entire examinations undertaken by the petitioners. It was
also stated that cancellation has been done in contravention of principles of
natural justice. The petitioners were punished without being heard.
6.Mr.M.Gnanagurunathan, learned counsel for the petitioners in support of
his contention, stated that mass copying is not defined anywhere. For the
purpose of defining the said term, he placed reliance upon the judgment of the
Allahabad High Court in Rajiv Ratna Shukla and another Vs. University of
Allahabad and others reported in AIR 1987 Allahabad 208. Reliance was placed
upon the following passage found in paragraph 5 of the said judgment which is as
follows:
“5.Mass copying has not been defined in the Act or the Statute framed under the
University Act. It has therefore to be understood in its common parlance. What
could be considered mass copying cannot be laid down with mathematical
precision. It has to vary and has to be decided on circumstances. It may be
copying by a vast majority or on a massive scale or in such large proportion
that it was not possible to check it…..”
Hence it was stated that there was no mass copying found in the centre.
7.For the purpose of reiterating their right to be heard before
cancellation, he also relied upon a judgment of Chhattisgarh High Court in
Bansal Academy Vs. State of Chhattisgarh and others reported in AIR 2006
Chhattisgarh 85. He referred to the following passage found in paragraph 8 of
the said judgment which is as follows:
“8….It is trite that the impugned actions of the University authorities affect
the interests and rights of the petitioners. The University having invited the
applications, having entered into a MOUs with the petitioner-Institutions
whereby and whereunder the petitioner – Institutions were authorized to organize
the courses and conduct examinations for the students admitted by them, having
directed the petitioner-Institutions to make admissions before a cut-off date
prescribed by the University itself for the academic session 2005-2006, ought
not have abruptly cancelled all the examinations organized and conducted by all
the petitioners on the alleged ground of mass-copying. In the Notification
issued by the Registrar of the University dated 24-9-2005, except stating that
the examinations are cancelled due to mass-copying, the details of mass-copying
are not set out. It is an admitted position that before the Director, Institute
of Distance Education issued letter dated 20.9.2005 and the Registrar of the
University issued Notification dated 24.9.2005, none of the University
authorities did issue any notice to the petitioner-Institutions to know or have
their say/explanation with regard to the allegation of mass-copying. The action
of the University, therefore, amounts to condemning a person unheard. The action
apparently is vitiated not only on account of violation of principles of natural
justice but also on account of violation of the mandates of Article 14, i.e.
fairness, reasonableness and non-arbitrariness….”
8.However, this court is not persuaded to accept the contentions of the
petitioners in the light of the long line of decisions of the Supreme Court on
similar issue. It is worthwhile to refer to some of those decisions.
9.In the earliest decision rendered in Bihar School Examination Board v.
Subhas Chandra Sinha reported in (1970) 1 SCC 648, the Supreme Court held that
in case of examinations held to be vitiated, it is unnecessary to give notice
and the decisions of the educational authorities cannot be lightly interfered
with. The following passages found in paragraphs 13 to 15 may be usefully
quoted:-
“13. This is not a case of any particular individual who is being charged with
adoption of unfair means but of the conduct of all the examinees or at least a
vast majority of them at a particular centre. If it is not a question of
charging any one individually with unfair means but to condemn the examination
as ineffective for the purpose it was held. Must the Board give an opportunity
to all the candidates to represent their cases? We think not. It was not
necessary for the Board to give an opportunity to the candidates if the
examinations as a whole were being cancelled. The Board had not charged any one
with unfair means so that he could claim to defend himself. The examination was
vitiated by adoption of unfair means on a mass scale. In these circumstances it
would be wrong to insist that the Board must hold a detailed inquiry into the
matter and examine each individual case to satisfy itself which of the
candidates had not adopted unfair means. The examination as a whole had to go.
14…… To make such decisions depend upon a full-fledged judicial inquiry
would hold up the functioning of such autonomous bodies as Universities and
School Board. While we do not wish to whittle down the requirements of natural
justice and fair-play in cases where such requirement may be said to arise, we
do not want that this Court should be understood as having stated that an
inquiry with a right to representation must always precede in every case,
however different. The universities are responsible for their standards and the
conduct of examinations. The essence of the examinations is that the worth of
every person is appraised without any assistance from an outside source. If at a
centre the whole body of students receive assistance and are managed to secure
success in the neighbourhood of 100% when others at other centres are successful
only at an average of 50%, it is obvious that the University or the Board must
do something in the matter. It cannot hold a detailed quasi-judicial inquiry
with a right to its alumni to plead and lead evidence etc., before the results
are withheld or the examinations cancelled. 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. It would not do
for the Court to say that you should have examined all the candidates or even
their representatives with a view to ascertaining whether they had received
assistance or not. To do this would encourage indiscipline if not also perjury,
15. We are satisfied that no principle of natural justice was violated in this
case. The Board through its Chairman and later itself reached the right
conclusion that the examinations at this Centre had been vitiated by practising
unfair means on a mass scale and the Board had every right to cancel the
examination and order that a fresh examination be held. There was no need to
give the examinees an opportunity of contesting this conclusion because the
evidence in the case was perfectly plain and transparent. We therefore set aside
the order of the High Court and ordered dismissal of the writ petition but made
no order as to costs.” (Emphasis added)
10.The Supreme Court vide its judgment in Maharashtra State Board of
Secondary and Higher Secondary Education v. K.S. Gandhi reported in (1991) 2 SCC
716 dealt with the scope of application of principles of natural justice. The
following passage found in paragraph 22 may be usefully extracted below:
“22. From this perspective, the question is whether omission to record
reasons vitiates the impugned order or is in violation of the principles of
natural justice. The omnipresence and omniscience (sic) of the principle of
natural justice acts as deterrence to arrive at arbitrary decision in flagrant
infraction of fair play. But the applicability of the principles of natural
justice is not a rule of thumb or a strait-jacket formula as an abstract
proposition of law. It depends on the facts of the case, nature of the inquiry
and the effect of the order/decision on the rights of the person and attendant
circumstances. It is seen from the record and is not disputed, that all the
students admitted the factum of fabrication and it was to his or her advantage
and that the subject/subjects in which fabrication was committed belong to him
or her. In view of these admissions the Enquiry Officer obviously did not find
it expedient to reiterate all the admissions made. If the facts are disputed,
necessarily the authority or the Enquiry Officer, on consideration of the
material on record, should record reasons in support of the conclusion reached.
Since the facts are admitted, the need for their reiteration was obviated and so
only conclusions have been stated in the reports. The omission to record reasons
in the present case is neither illegal, nor is violative of the principles of
natural justice. Whether the conclusions are proved or not is yet another
question and would need detailed consideration.”
11.Further reiterating the same principles, the Supreme Court in Madhyamic
Shiksha Mandal, M.P. v. Abhilash Shiksha Prasar Samiti reported in (1998) 9 SCC
236 observed in paragraph 2 as follows:
“2…. In the face of this material, we do not see any justification in the High
Court having interfered with the decision taken by the Board to treat the
examination as cancelled. It is unfortunate that the student community resorts
to such methods to succeed in examinations and then some of them come forward to
contend that innocent students become victims of such misbehaviour of their
companions. That cannot be helped. In such a situation the Board is left with no
alternative but to cancel the examination. It is extremely difficult for the
Board to identify the innocent students from those indulging in malpractices.
One may feel sorry for the innocent students but one has to appreciate the
situation in which the Board was placed and the alternatives that were available
to it so far as this examination was concerned. It had no alternative but to
cancel the results and we think, in the circumstances, they were justified in
doing so. This should serve as a lesson to the students that such malpractices
will not help them succeed in the examination and they may have to go through
the drill once again….” (Emphasis added)
12.The Supreme Court vide its judgment in Dr. Ambedkar Institute of Hotel
Management, Nutrition & Catering Technology, Chandigarh v. Vaibhav Singh Chauhan
reported in (2009) 1 SCC 59 once again in paragraphs 12 and 27 reiterated the
same principles. Those passages may be usefully extracted below:
“12. The learned Single Judge in the interim order has then emphasised on the
fact that the respondent had apologised and had confessed to the possession of
the chit. In our opinion this again is a misplaced sympathy. We are of the firm
opinion that in academic matters there should be strict discipline and
malpractices should be severely punished. If our country is to progress we must
maintain high educational standards, and this is only possible if malpractices
in examinations in educational institutions are curbed with an iron hand.
….
“27. Before parting with this case, we would like to refer to the
decisions of this Court which has repeatedly held that the High Court should not
ordinarily interfere with the orders passed in educational matters by domestic
tribunals set up by educational institutions vide Board of High School &
Intermediate Education v. Bagleshwar Prasad (AIR 1966 SC 875) (vide AIR para
12), J.P. Kulshrestha (Dr.) v. Allahabad University (1980 (3) SCC 418) (vide SCC
para 17 : AIR para 17), Rajendra Prasad Mathur v. Karnataka University (1986
Supp SCC 740) (vide SCC para 7 : AIR para 7). We wish to reiterate the view
taken in the above decisions, and further state that the High Courts should not
ordinarily interfere with the functioning and orders of the educational
authorities unless there is clear violation of some statutory rule or legal
principle. Also, there must be strict purity in the examinations of educational
institutions and no sympathy or leniency should be shown to candidates who
resort to unfair means in the examinations.” (Emphasis added)
13.Very recently, the Supreme Court in All India Railway Recruitment Board
v. K. Shyam Kumar reported in (2010) 6 SCC 614 in paragraphs 18 and 43 applied
the Wednesbury principles while reviewing the decision of the authorities and
observed as follows:
“18. We are, in this case, primarily concerned with the question whether the
High Court was justified in interfering with the decision taken by the Board in
conducting a retest for those who had obtained minimum qualifying marks in the
first written test and directing the Board to go ahead with the recruitment
process on the basis of the first written test against which there were serious
allegations of irregularities and malpractices……..
……….
43. We, therefore hold, applying the test of Wednesbury1 unreasonableness as
well as the proportionality test, the decision taken by the Board in the facts
and circumstances of this case was fair, reasonable, well balanced and
harmonious. By accepting the third alternative, the High Court was perpetuating
the illegality since there were serious allegations of leakage of question
papers, large scale of impersonation by candidates and mass copying in the first
written test.”
14.In the light of the factual matrix and the legal precedents set out
above, there is no case made out to entertain the writ petitions. Hence all the
writ petitions will stand dismissed. No costs. Consequently, connected
miscellaneous petitions stand closed.
vvk
To
1.The Registrar,
Alagappa University,
Karaikudi.
2.The Controller of Examination,
Alagappa University,
Karaikudi.
3.The Director,
Directorate of Distance Education,
Alagappa University, Karaikudi.