ORDER
1. In the three writ petitions, the petitioners challenge the notification dated 30.5.2006 issued by the Council of Higher Secondary Education, Orissa cancelling the examination in Psychology Paper-I of the +2 Arts Examination, 2006 held on 9.3.2006 in Indira Gandhi Mahila Mahavidyalaya, Jajpur Road and as such common question of fact and law being involved, on the prayer and consent of the learned Counsel for the parties, they were taken up together and ere disposed of by this common order.
2. Petitioners in W.P.(C) No. 9682 of 2006 are the Governing Body of Indira Gandhi Mahila Mahavidyalaya and its Principal whereas in W.P.(C)
Nos. 9465 and 10170 of 2006 some of the examinees are the writ petitioners.
3. Indira Gandhi Mahila Mahavidyalaya, Jajpur Road was established in the year 1987 and is an aided private college having been affiliated to the Council of Higher Secondary Education, Orissa. This college was made a centre of examination for +2 Arts and Science streams of the Council of Higher Secondary Examination, 2006 held during the month of March, 2006. On 9.3.2006 Psychology Paper-I of the +2 Arts Examination, 2006 was being held during the second sitting where 76 candidates comprising of 66 regular and 10 ex-regular students were appearing in the said subject. According to the petitioners, all the candidates were checked by the Centre Superintendent and other college staff deputed at the entry gate and the examination was conducted in room Nos. 4 and 5 having sitting arrangement for equal number of candidates. The examination was conducted smoothly in accordance with the norms prescribed by the Council. And no malpractice was ever adopted. However, on the a basis of the report of the Flying Squad deputed by the Council, the examination has been cancelled on the alleged ground of mass-malpractice. The petitioners contend that there was absolutely no mass-malpractice but only 12 cases of malpractice were detected and booked by the Flying Squad and, as such, the examination in respect of all the 76 candidates could not have been cancelled by the Council.
4. The opposite party-Council has filed a counter affidavit denying the allegations and averments made in the writ applications. It is the specific case of the Council that the examination held in the second sitting of 9.3.2006 was not conducted in accordance with the rules as reported by the Flying Squad. It is further submitted that according to the report when the members of the Flying Squad entered into the compound of the college, the students threw away the incriminating materials but in spite of that during personal search 12 students were found to be in possession of incriminating materials. A detailed report has been submitted. The Principal who was the Centre Superintendent was sitting in her office away from the examination halls and the invigilators were not doing their duties properly in the examination halls. It is the further case of the Council that when the Members of the Flying Squad entered into the rooms, they heard murmuring sounds from inside the halls where the invigilators were silent spectators and were very inactive in conducting the examination in a fair way. All the while they could observe that the invigilators were gossiping or sitting idle in examination halls. Some of the students threw away the incriminating materials outside but the Squad managed to find 12 cases of malpractice from the centre. According to the report the Centre Superintendent agreed that she had not participated in the gate checking. The Flying Squad was of the view that no precautionary measures were taken to prevent practice of unfair means during the examination and, as such, they recommended for cancellation of the examination. The Examination Committee after consideration of all relevant facts and the report of the Flying Squad came to the conclusion that the atmosphere in the said centre was not at all conducive for a fair examination and, as such, it took the decision for cancelling the examination in Psychology Paper-I of the petitioners’ college as majority of the students were involved in malpractice during the said examination.
5. Learned Counsel for the petitioners strongly argued that a perusal of the allegation made in the counter affidavit would not make out a case on the basis of which the Council could have taken such a drastic step in cancelling the examination of all the students when the Flying Squad had detected only 12 cases of malpractice and they were booked for malpractice during the examination.
6. On our direction, the learned Counsel for the Council of Higher Secondary Education has placed before us the original report of the Flying Squad on the basis of which the Examination Committee of the Council has taken the decision to cancel the examination in question. A perusal of the report discloses that the Flying Squad consisting of four lecturers from different colleges visited Indira Gandhi Manila Mahavidyalaya, Jajpur Road on 9.3.2006 at 3.15 P.M. when Psychology Paper I examination was being conducted and they remained there till 4.45 p.m. The Squad detected malpractice and seized incriminating materials from the possession of candidates bearing Roll Nos. 119CC052, 119CC085, 119CC086, 119CC126, 119CC129, 119CC019, 119CC124, 119CC125, 119CC108, 119CC115, 119CC109 and 119CC123 and such cases have been reported. The form-Malpractice Certificate by Squad Member contains the signatures of the members of the Squad and the Centre Superintendent. The Members of the Squad entered in the examination hall at 3.15 P.M. and heard murmuring sounds from inside the two rooms. The invigilators were silent spectators. According to the Squad the invigilators were very inactive in conducting the examination in a fair way. All the while, the Squad observed, they were gossiping or sitting idle in the examination halls. The Members of the Squad physically started searching the students with the help of lady member of the Squad because some of the examinees threw away incriminating materials outside. In course of personal search of candidates, incriminating materials were found from 12 examinees, the details of which have been attached to the prescribed form. All the while the Centre Superintendent was sitting in her room in the ground floor away from the examination halls. The Squad came to know on enquiry that she was not present during the gate checking since she was otherwise busy. The Squad, therefore, felt that no precautionary measures were taken by the authorities to prevent unfair means during the examination. The situation inside the halls was disturbing and not conducive for the examination as per rules. The invigilators were callous as also the Centre Superintendent and the Deputy Centre Superintendent. Majority of the students were involved in malpractice. In view of all these, they strongly recommended to cancel the examination.
7. Perusal of the report of the Flying Squad thus discloses that (a) while entering inside the two examination halls, they heard murmuring sounds, (b) some of the examinees threw away some incriminating materials outside the halls but on personal search of all candidates, they found incriminating materials from 12 examinees and those 12 were individually booked for malpractice, (c) the invigilators were inactive and silent spectators, gossiping amongst themselves and did not conduct the examination in a fair way. But there is no report as to what the squad observed inside the halls or as to whether the examinees were adopting malpractice by copying or were even talking with each other to obtain help. There is no whisper in the report as to the observation of the Squad relating to the manner in which and the circumstances under which they came to observe that the examinees were adopting unfair means. Nothing has been told as to whether the examinees were indiscriminately adopting mass copy or that the situation was so disturbing that it cannot be said that the examination was conducted in accordance with rules. The report even does not whisper as to whether the students were sitting in accordance with the seat chart or otherwise. A perusal of the report would at best suggest that the invigilators were not making movements inside the halls to watch the examinees and they were gossiping. The examination started at 2 p.m. and the Squad reached the Centre at 3.15 P.M. and remained there for one and half hours only till 4.15 P.M.
8. Law is well settled that the examining authorities while taking drastic step of cancelling the examination must be satisfied that the examination conducted in the centre was not in accordance with the norms prescribed and that vast majority of the students were adopting mal practice which was not practicable for the Squad to detect. It is relevant to note here that in the prescribed format the Flying Squad in Col.16 has specifically stated that malpractice in respect of 12 cases, as referred to above, was detected and reported. In Col. 17 the Squad reported that there was no misbehaviour of candidates. In Col. 19 to the question whether the Centre Superintendent was co-operative, the Squad has answered ‘yes’ whereas in the special report the answer is otherwise.
9. In the aforesaid view of the matter, the Council on the basis of such a report of the Flying Squad, as discussed above, could not have taken the decision for cancelling the examination of all the 76 candidates appearing from the centre. Such decision by the Council was taken without application of mind and on a casual approach to the matter. Had the Council scrutinized the report of the Flying Squad in its proper perspective, it could not have taken such a drastic step in cancelling the examination of all the 76 examinees. However, in view of the specific report as against 12 candidates as mentioned in the report of Squad and referred to in this order, their cases have to be dealt with in accordance with law and appropriate decision need be taken. The decision of the Council for cancelling the entire examination being not sustainable is quashed except in respect of the 12 candidates booked for malpractice.
10. The writ applications are allowed to the extent indicated.