Bilaal Ahmed Syed vs Bar Council Of India,
2021 Latest Caselaw 299 AP

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       HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

WRIT PETITION Nos.5200; 4460; 8749 and 7424 of 2020

COMMON ORDER:
      These batch of Writ Petitions are filed by young

advocates, who have taken All India Bar Exam-XIV, which is

conducted by the Bar Council of India-1 respondent through

st

the Bar Council of Andhra Pradesh. Since similar questions

and facts are involved this Court has taken up all the Writ

Petitions together.

This Court has heard Sri Solomon Raju in W.P.No.5200

of 2020 since pleadings are completed in this Writ Petition.

Sri Ravi Kondaveeti and Sri Kilaru Nithin Krishna are the

learned counsels for the petitioners in W.P.Nos.4460 of 2020

and 8749 of 2020 respectively. They argued in similar lines

in support of the arguments advanced by Sri Solomon Raju.

All the petitioners are similarly placed.

For the respondent Bar Council of India, Sri Kunchem

Maheswara Rao appeared and for the Bar Council of Andhra

Pradesh Sri G. Venkata Reddy appeared.

The petitioners are law graduates. They have appeared

for the All India Bar Exam-XIV, which was held in the year

2019. After the examination was held in September, 2019 the

impugned order was published in the website of the All India

Bar Council stating that the candidates belonging to nine

centers viz., Visakhapatnam-CC 15; Bhopal-CC 35; Jabalpur-

CC 36; Allahabad-CC 54; Allahabad-CC 55; Allahabad-CC 56;

Allahabad-CC 57 and Allahabad-CC 58, will have to take

examination afresh without submitting any examination fee.

The grievance of the present set of petitioners is about

the center in Visakhapatnam. The results of the candidates

of this Centre were withheld. They have questioned the said

notification on various grounds alleging that it is illegal,

irrational, in violation of principles of natural justice etc. It

transpires that as the Bar Council of India received intimation

that large scale malpractices were conducted in nine centers,

the results of the exam in these centers were cancelled. This

is challenged.

Sri Solomon Raju, learned counsel for the petitioners

argues that there is no definition of 'examination malpractice'

in the Advocates Act. He also points out that it is open book

examination, which is being conducted. Therefore, it is his

contention that there is no proof to show that the present set

of petitioners have indulged in any malpractice. He also

argues that behind the back of the petitioners some enquiry

has been purported to have been done and the Bar Council of

India is relying upon some enquiry said to have been

conducted. Learned counsel points out that no details are

furnished of this enquiry. Even the minutes, which are filed

by the Bar Council of India, are questioned by the learned

counsel for the petitioners stating that the same are

incomplete. It is his contention that unless and until specific

cases of malpractice are pointed out the petitioners cannot be

deprived of their right to have their examination results

declared. Relying upon I.A.No.2 of 2020 he has filed with list

of declared candidates, learned counsel argues that some

candidates from Visakhapatnam city were declared passed.

Therefore, he states that it is a clear case of discrimination

between two set of people. He points out that the center in

GITAM is only center in Visakhapatnam and as the

candidates from Andhra Pradesh are declared selected, the

petitioners have been discriminated again. Relying on the

case in Sanatan Gauda v Berhampur University and

Others learned counsel argues that the petitioners have right

in view of the conduct of the respondents to get their results

declared. He also relies upon Amarjeet Jeena v Council of

Higher Secondary Education, Orissa and others in

support of his contention.

Sri Ravi Kondaveeti, learned counsel for the petitioner in

W.P.No.4460 of 2020 also argues that it is an open book

examination that is being conducted and that there were CC

cameras installed inside the examination center. He also

points out that the cell phones are being deposited outside

the examination center and four sets of question papers are

given to successive candidates. He points out that all of these

are done to eliminate the malpractices. He argues that no

opportunity is also given to the candidates to justify their

stand and that before they are condemned they should be

given an opportunity to explain their conduct. He points out

that the rules of natural justice are totally flouted. He also

argues that there is no evidence of malpractice.

Sri Kilaru Nithin Krishna, learned counsel for the

petitioner in W.P.No.8749 of 2020 also advanced the

arguments on similar lines.

Sri Maheswara Rao Kunchem, learned standing

counsel appearing for the Bar Council of India argues that

large scale of malpractices were noticed in nine centers.

Therefore, he submits that the Bar Council of India

Monitoring Committee in its meeting, dated 21.09.2019,

decided to entrust the investigation to cyber experts. The

committee after examining the reports of the expert came to a

conclusion in its meeting, dated 21.01.2020, that large scale

malpractices has taken place in nine centers. Initially the

results were withheld and thereafter they were cancelled and

the candidates were given an option of appearing of the

examination without paying the examination fee. He also

points out that the examination is scheduled to be held on

25.01.2021 and that the petitioners can apply. Relying on a

compendium of case law and his sub-rejoinder, learned

standing counsel argues that the Court should not interfere

in such matters. He points out that the Constitution Bench

of the Hon'ble Supreme Court of India in The Bihar School

Examination Board v Subhas Chandra Sinha and Others

held that in similar circumstances a Writ of Mandamus was

not maintainable. He also draws the attention of this Court

to the Order passed by a Division Bench of Madhya Pradesh

High Court in W.P.No.14013 of 2020 and another Writ

Petition, wherein the Court refused to interfere with regard to

the examination, at Jabalpur center because of the mass

copying. He points out that on the basis of sub-rejoinder the

candidates belong to Andhra Pradesh can also appear

through other centers. Therefore, the mere fact that there are

certain candidates from Andhra Pradesh in the list will not

lead to a conclusion that they took the exam at the center in

Visakhapatnam. He argues that the material available is

sufficient to cancel the examination and that the purity of the

system should be maintained.

After hearing all the learned counsel, this Court is of the

opinion that the facts as they stand point out to an allegation

of mass copying at nine centers. Of the various issues that

are raised the most important of that are the submissions on

the principles of natural justice and the standard of proof

that is necessary. Three learned Judges of the Hon'ble

Supreme Court of India in Bihar School Education (3 supra)

dealt with a similar question. Paragraphs-13 of this

judgment, which is reproduced hereunder, is very relevant:

"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." (Emphasis supplied)

In paragraph 14 of the said judgment, the Hon'ble

Supreme Court of India held that it is not necessary that in

every case a notice and right of representation should be

given. A detailed quasi-judicial enquiry need not be held in

every case. It is also held in the very same paragraph that if

there is sufficient material on which it can be demonstrated

then the University was right in its conclusion that the

examinations can be cancelled. In paragraph 14 it is very

clearly held that the Court should not say that the University

should have examined all the candidates with a view to

ascertain whether any malpractice was carried out or not. In

fact, the Hon'ble Supreme Court of India clearly remarked

that holding of such an enquiry would encourage indiscipline

and also perjury. Similarly, in Board of High School and

Intermediate Board Education, U.P., Allahabad and

Another v Bagleshwar Prasad and Another three Judges

of the Hon'ble Supreme Court of India held as follows:

"12. In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or Appellant 1 set up Enquiry Committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. In dealing with the validity of the impugned orders passed by Universities under Article 226, the High Court is not sitting in appeal over the decision in question; its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order."

In fact, as rightly pointed out by the learned standing

counsel for the Bar Council of India, the September-2019

examination itself, in which the petitioners appeared, is also a

subject matter of the decision of the Division Bench of

Madhya Pradesh High Court. Along with the center in

Visakhapatnam, the results of the center in Jabalpur was

also cancelled on the ground of malpractice. The order in

W.P.No.14013 of 2020 and W.P.No.14228 of 2020 bears

testimony to this. In paragraph 14, the Division Bench held

that the examination at the centers in Jabalpur and Bhopal

have been cancelled because of mass copying and that in view

thereof no further directions can be issued for declaration of

results.

Against the backdrop of the case law cited above, this

Court has examined the material placed on record. It is a fact

that the entire copy of the minutes is not placed before this

Court by the Bar Council of India. Still that by itself cannot

be a ground to hold that the entire process is vitiated. The

Bar Council of India received information that in nine centers

the mass cheating and copying were carried on and they have

taken opinion of a cyber-expert. The cyber expert gave his

report, which was considered. This is borne out by the

minutes dated 21.09.2019 and 21.01.2020. Therefore, after

coming to a conclusion that there was a large scale mass

copying and malpractice, nine centers were directed to be

delisted and not to include these centers in future. As

pointed out by the Hon'ble Supreme Court of India a detailed

minute by minute or candidate by candidate enquiry is not

possible or feasible in such cases when exams are held with

hundreds of candidates in centers all over India. When there

is some material to hold that mass cheating has taken place,

this Court has to conclude that what is stated by the

respondents has to be accepted. Maintaining the purity of

education and the education system is the highest priority.

This examination is the stepping stone for the young law

graduates. If at this stage itself, there are allegations of mass

copying and malpractice with the use of modern technology,

this Court shudders to think what would happen to the

future of the legal profession. The Bar Council of India is not

inimical or biased against any one candidate or any Centre.

None of the submissions made lead this Court to this

conclusion. In the larger interest of the legal profession they

have taken this decision and the Bar Council of India had

some material before it coming to this conclusion.

Rules of natural justice cannot also be placed in a strait

jacket formula. They vary depending on the situation. The

Hon'ble Supreme Court of India clearly held that holding a

candidate by candidate enquiry etc., is not feasible or possible

in such cases of examinations with a large number of

candidates. So this Court has to hold that in this case due to

the facts there is no failure of the rules of natural justice.

Lastly, in the sub-rejoinder it has explained that the

mere fact that some candidates' names from Andhra Pradesh

appeared in the list does not lead to a mass conclusion that

there was discrimination. The respondent has clarified that

there were candidates from Andhra Pradesh and Telangana

appeared in other centers also apart from the center which is

now found guilty of large scale malpractice. Even the learned

standing counsel for the Bar Council of Andhra Pradesh who

argued on similar lines and supported this contention and

said that the examinations were held in Andhra University

center also along with the Centre where the malpractice took

place. Therefore, for all the above reasons, this Court holds a

clear case of discrimination is not made out. This Court also

holds that in matters of this nature, preponderance of

probabilities is the issue involved and not proof beyond

reasonable doubt. The preponderance shows that there was

large scale of malpractice and therefore, the Bar Council of

India had some material to come to the said conclusion.

Apart from this, candidates are also permitted to appear for

the examination, which is scheduled to be held on Monday

i.e., on 25.01.2021 without paying the exam fees etc.

For all the above reasons, the Writ Petitions are

dismissed. There shall be no order as to costs.

Consequently, the miscellaneous applications, pending

if any, shall also stand dismissed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:22.01.2021 ssv