Nidhi Kaim Vs. State of Madhya Pradesh & Others Etc.
[Civil Appeal No. 1727 of 2016]
[Civil Appeal Nos.1720-1724, 1726, 1728, 1729, 1733, 1734-1741, 1742-1749, 1750-1751, 1752, 1753-1758, 1847-1852, 1759-1764, 1765, 1766, 1767-1768, 1769-1774, 1776-1787, 1788, 1789-1791, 1792-1794, 1795-1798, 1799-1805, 1806-1808, 1809, 1810-1811, 1812, 1813-1814, 1815, 1816-1817, 1818-1819, 1820, 1821, 1822-1824, 1825, 1826, 1827, 1828, 1830, 1831-1832, 1833, 1834, 1835, 1836-1837, 1838, 1839, 1840, 1841, 1842, 1843, 1844, 1845 & 1846 of 2016]
Chelameswar, J.
1. The Madhya Pradesh Vyavsayik Pariksha Mandal Adhiniyam, 2007 [The Madhya Pradesh Professional Examination Board Act, 2007] (hereinafter referred to as 'the Act') came into force on 15th October 2007. Section 3[1] of the said Act contemplates establishment of a Board (a body corporate) by a notification of the State Government. Admittedly, as on today, the notification constituting the Board has not been issued, but a body constituted earlier under various executive orders[2] of the State of Madhya Pradesh (hereinafter referred to as "the BOARD") continues to be in existence. It carries on various activities.
2. One of the objectives of the statutory Board specified under Section 10 is as follows:
"(a) to conduct entrance examinations for admission to various professional and other educational institutions on the request of the State Government, other State Governments, Central Government, Universities and national or state level institutions."
3. It appears that admissions to various medical colleges either privately managed or managed by the government in the State of Madhya Pradesh are regulated by a common entrance examination [called as "Pre- Medical Entrance Test (PMT)]. Such an examination was conducted annually by the BOARD. The Act came to be passed with a view to create a statutory basis for the BOARD which, inter alia, is required to conduct entrance examinations for admissions into various educational institutions including medical colleges. Unfortunately, the notification contemplated under Section 3 never came to be issued but everybody in the administration of the State of Madhya Pradesh proceeded all these years on an assumption that the BOARD (a mythical beast) would somehow became the body contemplated under Section 3 of the Act. This aspect of the matter is one of the issues in the case; and, therefore, I shall deal with it later in this judgment.
4. Entrance examination for admissions into medical colleges for the year 2013 was conducted by the abovementioned BOARD on 7.7.2013. On the same day, a crime came to be registered in FIR No.539 of 2013 alleging commission of various offences pursuant to a large scale conspiracy in the context of the examination. The FIR came to be registered against several persons including students and some employees of the State of Madhya Pradesh who were working in the administration of the BOARD.
5. The Chairman of the BOARD also caused some enquiry[3] into the allegations. By two orders, dated 9.10.2013 and 6.12.2013, the BOARD cancelled the results of 345 and 70 candidates respectively. As a consequence, admissions granted to the abovementioned students in various medical colleges stood cancelled. Challenging those orders, a batch of writ petitions came to be filed before the Madhya Pradesh High Court. All the said writ petitions were dismissed by an order dated 11.4.2014 of the Division Bench of the Madhya Pradesh High Court in Ku. Pratibha Singh v. The State of Madhya Pradesh & Others. The correctness of the said judgment was questioned in SLP (C) Nos.13629-630 of 2014 (Pooja Yadav & Another v. State of M.P. & Others) and 16257 of 2014 (Sumit Sinha v. State of M.P. & Others), which were dismissed by orders dated 19.5.2014 and 08.08.2014 respectively confirming the judgment of the High Court.
6. Parallelly, the police investigated the crime (FIR No. 539/2013) mentioned supra. Some officers of the BOARD and others were arrested. Pursuant to information gathered during the course of the investigation of the abovementioned crime, the investigating agency sent two letters dated 23.10.2013 and 31.12.2013[4] to the BOARD. It is informed at the bar that the first of the abovementioned letters informed the BOARD about some irregularities in the conduct of the PMT of 2012, and the second called upon the BOARD to cause an inquiry into and provide certain information with regard to the PMTs of the years 2009 to 2011. On receipt of the said letters, the BOARD decided to enquire into the PMT process of not only the years 2009 to 2012 but also the year 2008.
7. The enquiry was conducted. The pattern of the enquiry is similar to the one conducted concerning PMT 2013. Based on the enquiry reports, the Board came to two conclusions: (i) there was a tampering with the examination process in each one of the abovementioned five years; and (ii) the appellants as well as some others students[5] resorted to unfair means at the said examinations. They were beneficiaries of such tampered examination process. The BOARD, therefore, cancelled the admissions of the appellants and some others. Aggrieved, a large number of students, whose admissions were cancelled, approached the Madhya Pradesh High Court by filing writ petitions. Majority of the writ petitions came to be dismissed by a common judgment dated 24.09.2014. The remaining writ petitions came to be dismissed by another common judgment dated 7.10.2014 in the light of the judgment dated 24.09.2014. The instant appeals arise out of the said judgments preferred by some of the unsuccessful petitioners therein (students).
8. Before I proceed to examine the correctness of the impugned judgments, I think it would be profitable to describe broadly the examination process (with respect to which there is no dispute) conducted by the BOARD and also the nature of the allegations which formed the basis for the cancellation of the admissions of the various students.
THE PROCESS:
9. Each year the BOARD conducted a common entrance examination (for example PMT 2013) for all students aspiring to secure admission to various medical colleges in the State of Madhya Pradesh. Each year a large number of students (in tens of thousands)[6] not only from various parts of the State of Madhya Pradesh but also from other States appear for such examination. The examination is conducted in different cities/towns of Madhya Pradesh and in each city/town there is one or more identified examination centres depending upon the number of students choosing to appear for the PMT from that city/town. These examination centres are usually located in existing educational institutions in the city/town.
10. Each of the students applying is initially given a registration number and is subsequently allotted a Roll number. It is the agreed case of all the parties that each of the students is entitled to choose a city/town where the student would like to take the examination. Depending on the choice of the city/town in which the student wishes to take the examination, students are allotted a specified examination centre or centres (depending upon the number of students) in the city/town, as the case may be. The process of generating roll numbers and allotment of the centre of examination to each one of the students is done by a computerised process. Such a process is designed and applied by an in-house computer expert body of the BOARD.
11. According to the BOARD, such a computerised process of generating roll numbers and allotting the students to various examination centres in the State is by following some logical pattern. The pattern may vary from year to year and need not be the same for all the years. For example, in a particular year, the allotment of roll numbers could be in the alphabetical order of the names of the students, whereas in another the same could be on the basis of the date of the application of the student. (I make it clear that I am not examining the exact logic applied in each of these years. It was only meant to illustrate the possibilities of the variations in the pattern.) What is important is the existence of a pattern and logic underlying the generation and allotment of roll numbers and examination centres to the students. The existence of such pattern is of great significance and relevance in the instant case.
12. Admittedly, there was no show cause notice to any one of the students before cancelling their admissions. No speaking order indicating the reasons which formed the basis for the cancellation of the admissions was either passed or served on any one of the appellants. Reasons were spelt out for the first time in the High Court. It appears from the impugned judgment and the submissions made before us that respondents relied upon circumstantial evidence[7] to reach the two conclusions referred to in para 7 (supra).
13. The case of the appellants before the High Court was that:
(i) the impugned orders cancelling admission of the appellants were passed in flagrant violation of the principles of natural justice. None of the appellants had been given either - a show cause notice indicating the allegations on the basis of which their admissions were proposed to be cancelled; or any order in writing containing the reasons which formed the basis for the orders cancelling the admissions. Therefore, the appellants are unaware of the reasons which prompted respondents to cancel the admission of the appellants. Consequently, appellants had no opportunity to defend themselves against the impugned action of cancellation of their admissions.
The entire exercise was undertaken behind the back of the appellants. Therefore the action of the respondents is illegal and void ab initio on the ground of non-compliance with the requirement of the principles of natural justice, more particularly the rule of audi alteram partem. that the circumstances (mentioned in the Footnote No.7) which formed the basis for the twin conclusions of the respondents, that there was a tampering with the examination process (in each of the years in question) and that the appellants and others are beneficiaries of such tampered examination process are without any proven factual basis and are pure conjunctures. (Certain ancillary submissions made in this regard will be considered later in this judgment).
The appellants also argued very forcefully that the impugned action against the appellants who belong to different batches (commencing from 2008) is unsustainable in view of the long lapse of time between the date of the alleged malpractice committed by the appellants and the date of the action by the respondents. It is submitted that the impugned action is arbitrary and violative of Article 14 of the Constitution because the penalty is disproportionate to the alleged misconduct of the appellants.
14. On the other hand, the defence of the respondent authorities has been:
(i) it is a case of "mass copying" similar to a situation obtaining in The Bihar School Examination Board v. Subhas Chandra Sinha & Others, (1970) 1 SCC 648 (hereinafter referred to as Sinha's case) wherein this Court held that in such a situation, there is no requirement of holding a "detailed inquiry into the matter and examine each individual case to satisfy ... which one of the candidates had not adopted unfair means". Therefore, there is no violation of principles of natural justice as contended by the appellants;
(ii) since the appellants secured admission through fraudulent means, they cannot be permitted to retain the benefits accruing out of such a fraud, merely on the ground that there was some delay in detection of the fraud.
15. The High Court agreed with the respondents and held that it is a case of "mass copying" and there was no need to comply with the requirement of the audi alteram partem rule. In coming to the conclusion, the High Court relied upon its earlier decision in Pratibha Singh's case rendered in connection with PMT 2013[8]. The High Court also agreed with the conclusion of the respondents that there was a logical pattern in the allotment of Roll numbers and the examination centres to the students (with respect to each of the years in question) and the said logical pattern was breached with respect to the appellants. The High Court took note of the fact that the conclusions of the BOARD are based on the opinion of an expert committee (essentially consisting of people qualified in computer science) and the same cannot be interfered with in judicial review.
16. The 2nd submission is also rejected by the High Court on the ground that all the appellants resorted to unfair means in an organized manner (in collusion with officials of the BOARD and certain other criminal elements who played a major role in perpetrating such a large scale illegal activity) and played fraud on the examination system. The High Court, therefore, opined that appellants cannot be permitted to retain the benefit obtained through fraud merely because there was some time gap in detecting the fraud.
17. Hence, the instant appeals.
18. On behalf of the appellants, it is argued before us:
(i) that the cases on hand are not cases of 'mass copying'. Having regard to the small number of the students whose admissions have been cancelled and having regard to the large number of students who appeared for the examination in each of the years in question (the details of which are already noted in para 7 supra), the number of students who were alleged to have copied constitute a small fraction, therefore, it cannot be said that these are cases of "mass copying".
Apart from the objection based on the statistical data, it is also the case of the appellants that even conceptually the case on hand cannot be a case falling under the category of "mass copying".
According to the appellants, the expression "mass copying" has a definite legal connotation as discussed in Bihar School Examination Board case (supra) and the case on hand does not answer the description of "mass copying" as understood in the said case. Cancellation of the examination and the admissions of the appellants without complying with the rule of audi alteram partem is illegal and assuming for the sake of arguments that there was some basis (the expert committee opinion) for the respondents to draw certain inferences which formed the basis for the allegations constituting the circumstances leading to the twin conclusions impugned by the appellants, there are considerable number of exceptions to each one of the circumstances [mentioned in para (iii) to (vi) of the Footnote No.7] asserted by respondents.
Therefore, the decision of respondents that the result of examination of all these appellants required to be cancelled on the ground that they resorted to "mass copying" without even giving a reasonable opportunity to the appellants to defend is flawed and legally untenable. In view of such exceptions, it is imperative in law that the decision to cancel admissions of the appellants must be preceded by an appropriate enquiry compliant with the principles of natural justice.
(iv) The appellants also made some ancillary submissions to demonstrate that the evidence relied upon by the respondents is based on facts (the details will be considered at the appropriate place) which render the evidence unreliable and unscientific.
(v) Even otherwise, cancellation of result of the appellants after a long lapse of time from the date of the commission of the alleged malpractice (ranging from 1 to 5 years) is an irrational exercise of the power by the BOARD.
It is argued that apart from the irrationality, such a course of action would simply ruin the lives of these candidates as they would lose precious number of years in the prime of their youth and they would be barred by age to pursue any other course at this stage. I make it clear that it is not the argument of any of the appellants herein that the allegations [mentioned in the Footnote 7], even if proved to be unexceptionable, would not be sufficient in law to justify the impugned action of the respondents.
(vi) In the absence of a notification contemplated under Section 3 of the Act, there is no validly constituted BOARD under the Act and, therefore, the BOARD is without any authority of law to cancel the examinations so far as they pertain to the appellants and also the admissions of the appellants.
DISCUSSIONS:
19. I shall first deal with the submission No.(vi) of the appellants i.e. in the absence of the notification contemplated under Section 3 of the Act, the third respondent - a non- statutory Board - has no legal authority to cancel either the examination conducted by it or the admissions of the appellants to the various medical colleges.
20. The learned counsel for the appellants pointed out to Section 24(2)(e) of the Act which authorises the Board constituted under Section 3 of the Act to make regulations providing for "imposition of penalties on candidates using unfair means or interfering in the examinations conducted by the Board" and argued that such power would be available only for the statutory Board, if ever constituted and the third respondent herein has no authority in law - in the sense of legislative sanction to take the impugned action.
21. Admittedly the notification contemplated under Section 3 of the Act has not been issued so far. The composition and legal structure of the third respondent (BOARD) was discussed elaborately in Pratibha Singh's case.
It appears from the said judgment that the third respondent (BOARD) was brought into existence "for conducting the examination for admission in the medical, engineering and agricultural universities and for admission in the polytechnics and initiate the necessary proceedings in this regard" by a notification dated 17.4.1982 issued in the name of the Governor.
The said notification was published in the official gazette on 19.4.1982. Such a BOARD was initially constituted with 13 members and reconstituted from time to time. Therefore, the BOARD is a non-statutory 'body'.
It is not a corporate entity. It has no existence apart from the government. Barring the vague statement (extracted above) regarding the purpose for which the BOARD is created, the Notification dated 17.4.1982 does not contain any details regarding either the powers or the functions of the BOARD[9].
22. The net result is that the entire exercise of holding the PMT and regulating the admissions of students into the various medical colleges would be only an exercise of the executive powers of the State of Madhya Pradesh. If the third respondent BOARD is without any authority of law for taking the impugned action, it is equally without any authority of law to conduct the common entrance examination (PMT). Any admission based on the marks obtained at such common entrance examination would be equally without any authority of law in the sense of legislative sanction.
Whatever be the legal implications of the exercise of such power vis-Ã -vis others (which we are not called upon to examine in these appeals), the appellants cannot be heard saying that the BOARD has no authority of law to take action against them because they had appeared for the said examination and taken the benefit of securing admissions into the various medical colleges on the basis of the marks obtained by them in the examination. Even otherwise, the argument of the appellants is required to be rejected for the following reasons:
Under the scheme of our Constitution, the executive power of the State is co-extensive with its legislative power[10]. In the absence of any operative legislation, the executive power could certainly be exercised to protect the public interest[11]. The right of each one of the appellants herein for admission to the medical colleges in the State of Madhya Pradesh is itself an emanation of the State's executive action. No doubt, even executive action of the State can create rights.
Unless there is something either in the Constitution or law which prohibits the abrogation or abridgment of rights, it is permissible for the State to do so by executive action in accordance with some specified procedure of law. No doubt, that the overarching requirement of Constitution is that every action of the State must be informed with reason and must be in public interest. Nothing has been brought to our notice which prohibits the impugned executive action. If it is established that the adoption of unfair means on large scale resulted in the contamination of the entrance examination (PMT) process of successive years, the State undoubtedly would have the power to take appropriate action to protect the public interest. I, therefore, reject the submission of the appellants.
23. I shall now deal with the submissions No. (i) and (ii) of the appellants.
Before we deal with the submission, it would be profitable to examine the relevant aspect of the judgment of this Court in Sinha's case (supra), because the High Court placed a heavy reliance on the said judgment for rejecting the submissions of the writ petitioners/appellants herein.
Though Sinha's case acquired the notoriety as a case of "mass copying", the total number of students whose examination was cancelled was 36 out of thousands of people, who appeared for the examination in the State of Bihar. Interestingly, the said judgment nowhere employed the phrase "mass copying". This Court was dealing with a question of the legality of the action of the appellants in cancelling "the examinations of all subjects held at the secondary school examination of 1969 at Hanswadih centre" for the reason "that unfair means were practiced on a large scale".
This Court laid down the principle that the rule of audi alteram partem need not be complied with in connection with the cancellation of examinations where it would be impracticable to apply the said principle. Adoption of unfair means on a large scale is one of them.
This Court did not go by the percentage of the students who were alleged to have had resorted to the practice of unfair means. When this Court characterized the situation as practice of unfair means on a 'large scale', it used the expression only to distinguish the situation from cases of practice of unfair means by one or two students. This Court has also held that there are other circumstances justifying the departure from complying with the audi alteram partem rule.
They are - leakage of question papers and destruction of a large number of answer papers[12]. In my opinion, the examples given therein are not exhaustive of all the categories constituting exceptions to the application of the rule of audi alteram partem. Therefore, the percentage of the students who are alleged to have resorted to unfair means is irrelevant. Similarly, resorting to unfair means by a 'large number of students' is not the only circumstance which justifies the non-compliance with the rule of audi alteram partem.
24. That leads me to the next question, whether the situation prescribed in the case on hand falls within the exceptional circumstances contemplated by Sinha's case?
25. A large number of judgments are cited before us to emphasise the importance of the requirement to comply with the rule of audi alteram partem as an aspect of the guarantee contained in Article 14 of the Constitution. On the other hand, the respondents have relied upon an equally good number of judgments to demonstrate that there are well known exceptions to the application of the principles of natural justice. I do not think it necessary to examine all those judgments because as a general proposition of law, there cannot be any dispute about the importance of the above-mentioned rule.
However, the applicability of the said rule in the context of various situations which vitiate an examination process fell for the consideration of this Court on more than one occasion. A law in this regard is fairly well settled.
26. The case of the BOARD is that for taking the impugned action, they need not have proof of the guilt or complicity of the individual students in contaminating the examination process. It is argued that if there is some reasonably reliable material to establish the fact that the examination process insofar as it concerns the appellants was contaminated, the BOARD would be justified in law to take the impugned action. The moment contamination of the examination process is established, the BOARD is relieved of the legal obligation to comply with the rule of audi alteram partem concerning the students who are the members of the pairs identified by the BOARD (on the basis of the expert committee report) to be the beneficiaries of the contaminated examination process.
According to the BOARD, tampering with the examination process took place on a large scale in each of the years in question, and it took place pursuant to a deep conspiracy involving several people. Following the rule of audi alteram partem in such circumstances would be an impracticable exercise and the same is not required to be undertaken in view of the judgments of this Court in Bihar School Examination Board v. Subhas Chandra Sinha & Others, (1970) 1 SCC 648 and B. Ramanjini & Others v. State of A.P. & Others, (2002) 5 SCC 533 to emphasise on the need to comply with the rule of audi alteram partem. The respondents also relied upon Board of High School and Intermediate Education, U.P., Allahabad & Another v. Bagleshwar Prasad & Another, (1963) 3 SCR 767 in support of their submission that the scope of judicial reliance is very limited in the cases of malpractices at examinations.
27. On the other hand, appellants placed heavy reliance on the decision of this Court reported in Board of High School and Intermediate Education, U.P. v. Ghanshyam Das Gupta & Others, 1962 Supp (3) SCR 36 and Onkar Lal Bajaj & Others v. Union of India & Another, (2003) 2 SCC 673 to emphasise on the need to comply with the applicability of the rule of audi alteram partem.
28. Ghanshyam Das Gupta and Subhas Chandra Sinha directly deal with the applicability of the rule of audi alteram partem in the context of allegation of copying in an examination. Ramanjini's case deals with cancellation of the examination (conducted for the purpose of some recruitment process) on the ground of leakage of question papers and Onkar Lal Bajaj (supra) deals with cancellation of allotment of petrol pumps made to a large number of people, on the basis of allegations that such allotment was vitiated as a consequence of a corrupt process of selection.
29. Bagleshwar Prasad's case (supra) was a case of cancellation of examination results of only two students (the respondent before this Court and another) on the ground that they had adopted unfair means. It was not a case of non-compliance with the rule of audi alteram partem. An inquiry was conducted by a Sub-Committee constituted for the said purpose, and it found that both the students were guilty of adopting unfair means. Both the students challenged the decision to cancel their examination. The High Court set aside the impugned order on the ground that there was no direct evidence on the basis of which a Committee could have come to the conclusion that the students had adopted unfair means.
This Court reversed the High Court decision and held that the very fact that both the candidates gave identical answers was sufficient evidence of adoption of unfair means in the examination. While coming to the conclusion, this Court observed that it would be "inappropriate in such cases to require direct evidence[13]" and in cases where direct evidence is not available "the questions will have to be considered in the light of probabilities and circumstantial evidence".
This case also laid down the principles governing the judicial review of the decisions of educational institutions (examining bodies) in the context of the adoption of unfair means in examinations by the students. Though this Court held that the educational institution must "scrupulously follow the principles of natural justice" the scope of judicial review was held to be very limited and "it would ...... not be reasonable to import into these enquiries all considerations which govern criminal trials".
30. It is not necessary to make any analysis of the judgment of this Court in Ghanshyam Das Gupta (supra) as the same was considered by this Court in Sinha's case, analysed and distinguished.
31. I shall now analyse Sinha's case (supra). In the month of March, 1969, the Bihar School Examination Board conducted the examination for the secondary school students. The results of the examination were published.
However, the result of all the 36 students who appeared for the examination at Hanswadih was not announced. The Examination Board cancelled the examination insofar as the abovementioned students are concerned on the ground that they had resorted to 'unfair means on a large scale'. However, the students were allowed to appear at a supplementary examination to be held in September 1969. The students challenged the said decision of the Board before the Patna High Court successfully. This Court reversed the decision of the Patna High Court. Principally, two contentions raised on behalf of the students (which found favour with the High Court):
i) That, nobody complained about the commission of any malpractice; therefore, the Board was not justified in cancelling the result.[14]
That there was a failure to comply with the requirement of principles of natural justice.[15] were considered and rejected. For reaching such conclusions, this court took note of the fact that the examination centre registered an unusually high rate of success compared to the other examination centres[16] - a case of relying upon circumstantial evidence. This Court further undertook a random inspection of the answer papers of the students and recorded a finding that "a comparison of the answer books showed such a remarkable agreement in the answers that no doubt was left in our minds that the students had assistance from an outside source. Therefore, the conclusion that unfair means were adopted stands completely vindicated."
The students relied upon an earlier judgment of this court in Ghanshyam Das Gupta's Case. It was held therein that the students (only 3 in number) whose examination was cancelled on the ground that they had resorted to copying ought to have been given an opportunity to defend themselves.
This court distinguished Ghanshyam Das Gupta's case holding that the said judgment did not imply that the rule of audi alteram partem must be followed in cases "...where the examination as a whole was vitiated, say by leakage of papers or by destruction of some of the answer books or by discovery of unfair means practised on a vast scale ...".
This Court further held that in Ghanshyam Das Gupta "the Court was then not considering the right of an examining body to cancel its own examination when it was satisfied that the examination was not properly conducted or that in the conduct of the examination the majority of the examinees had not conducted themselves as they should have" and after so distinguishing Ghanshyam Das Gupta, this Court held as follows:
"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." Sinha's case judgment, in my view, yields the following principles: Where there are allegations that students resorted to "unfair means on a large scale" at an examination, this court would not insist upon registration of a formal complaint. Any reliable information suggesting the occurrence of such malpractice in the examination is sufficient to authorize the examining body to take action because examining bodies are "responsible for their standards and the conduct of examinations" and "the essence of the examination is that the worth of every person is appraised without any assistance from an outside source".
A lone circumstance could itself be sufficient in a given case for the examining body to record a conclusion that the students resorted to "unfair means on a large-scale" in an examination. This Court approved the conclusion of the Bihar School Examination Board that the students had resorted to unfair means on a large scale in one examination centre[17] and also approved the decision making process of the Board on the basis of circumstantial evidence.
The lone circumstance that the success rate of the students who appeared for the examination from the centre in question is too high in comparison to other centres. In such cases, the examining body need not hold "a detailed quasi- judicial inquiry with a right to its alumni to plead and lead evidence etc." and the examining body's "appreciation of the problem must be respected." To insist on the observance of the principles of natural justice, i.e. giving notice to each student and holding enquiry before cancelling the examination in such cases would 'hold up the functioning' of the educational institutions which are responsible for maintenance of the standards of education, and "encourage indiscipline, if not, also perjury".
Compliance with the rule of audi alteram partem is not necessary not only in the cases of employment of 'unfair means on large scale' but also situations where there is a 'leakage of papers' or 'destruction of some of the answer books' etc.
This Court drew a distinction between action against an individual student on the ground that the student had resorted to unfair means in the examination and the cancellation of the examination on the whole (or with reference to a group of students) because the process itself is vitiated.
32. B. Ramanjini's case was a case where the Government of Andhra Pradesh had cancelled the examinations conducted by the District Selection Committee in Anantapur district on the basis of a report of the Superintendent of Police that there was mass copying and leakage of question papers. The said order was set aside by the High Court. It was a case where no opportunity was given to the candidates before cancelling the examination.
The challenge was not on the ground that there was a failure of natural justice but on the ground that there was no material before the State justifying the conclusion that the examination process was vitiated. On appeal, this Court reversed the said order holding that: "8. Further, even if it was not a case of mass copying or leakage of question papers or such other circumstance, it is clear that in the conduct of the examination, a fair procedure has to be adopted. Fair procedure would mean that the candidates taking part in the examination must be capable of competing with each other by fair means.
One cannot have an advantage either by copying or by having a foreknowledge of the question paper of otherwise. In such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes action upon the same. The courts ought not to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other. ..."
33. Coming to the case of Onkar Lal Bajaj (supra), Government of India decided to cancel the allotment of all retail outlets, LPG distributorship etc. which had been made on the basis of the recommendations of a 'Dealer Selection Board'. Such a decision was taken in view of serious allegations of illegality and impropriety in making such allotments.
Approximately some 6000 allotments were cancelled without any further enquiry and opportunity to any one of the allottees. This Court set aside the Government's order of cancelling all allotments with certain further directions that the cases of 413 dealers (who were identified by the court on the basis of the material placed before this Court) be examined by a Committee consisting of a retired Judge of this Court and another of the Delhi High Court.
For reaching such a conclusion, this Court rejected the submission of the Union of India that in a given situation, it may be "legally permissible" to resort to such mass cancellation where it is found that large number of selections were tainted and segregation of good and bad would be time consuming. This Court opined "the solution by resorting to cancellation of all was worse than the problem. Cure was worse than the disease. Equal treatment to unequals is nothing but inequality.
To put both the categories - tainted and the rest - on a par is wholly unjustified, arbitrary, unconstitutional being violative of Article 14 of the Constitution."
34. From an analysis of the above decisions, the following principles emerge:- Normally, the rule of audi alteram partem must be scrupulously followed in the cases of the cancellation of the examinations of students on the ground that they had resorted to unfair means (copying) at the examinations.
2. But the abovementioned principle is not applicable to the cases where unfair means were adopted by a relatively large number of students and also to certain other situations where either the examination process is vitiated or for reasons beyond the control of both students and the examining body, it would be unfair or impracticable to continue the examination process to insist upon the compliance with audi alteram partem rule.
The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence.
The scope of judicial review of the decision of an examining body is very limited. If there is some reasonable material before the body to come to the conclusion that unfair means were adopted by the students on a large scale, neither such conclusion nor the evidence forming the basis thereof could be subjected to scrutiny on the principles governing the assessment of evidence in a criminal court. Cases such as the one on hand where there are allegations of criminal conspiracies resulting in the tampering with the examination process for the benefit of a large number of students would be certainly one of the exceptional circumstances indicated in Sinha's case provided there is some justifiable material to support the conclusion that the examination process had been tampered with.
In the light of the principles of law emerging from scrutiny of the abovementioned judgments, we are of the opinion that case on hand can fall within the category of exceptions to the rule of audi alteram partem if there is reliable material to come to the conclusion that the examination process is vitiated. That leads me to the next question - whether the material relied upon by the BOARD for reaching the conclusion that the examination process was contaminated insofar as the appellants (and also some more students) are concerned and the appellants are the beneficiaries of such contaminated process, is tenable?
35. A great deal of effort was made by the appellants to demonstrate to us that the various circumstances - relied upon by the respondents to reach the conclusion that each one of the appellants herein is the beneficiary of a conspiracy by which the purity of examination process undertaken by the Board is contaminated - are impeachable. The learned counsel demonstrated before us that at least in some cases, one or more of the circumstances relied upon by the Board [indicated in sub-paragraphs (iii), (iv), (v) and (vi) of Footnote 7 (supra)] are inapplicable.
For example, the assumption that the "scorer" is a more accomplished student than the "beneficiary" and that the "scorer" always sat in front of the "beneficiary" at the time of the examination to enable the "beneficiary" to copy from the "scorer" are demonstrated to be wrong at least in some cases. There are cases where the "scorer" secured less marks than the "beneficiary". Similarly, the allegation that "scorers" did not take admission in any of the medical colleges of Madhya Pradesh despite securing sufficiently high marks entitling them to obtain admissions, is demonstrated to be wrong. At least in some cases "scorers" have in fact joined some medical colleges in Madhya Pradesh.
36. There is nothing inherently irrational or perverse in the BOARD's conclusions (i) that the examination process was tampered with; and (ii) that all the appellants herein who are identified to be members of the 'pairs' (referred to earlier) are beneficiaries of such manipulated examination process[18], relying upon the circumstances (mentioned in Footnote 7 supra) if they are unimpeachable.
Each one of the circumstances is an inference which flows from certain basic facts which either individually or in combination with some other facts constituted the circumstance. One or more of such facts (constituting circumstances mentioned in (iii) to (vi) of Footnote 7 supra) are demonstrated to be not true (with reference to some of the appellants).
37. The proof of the first two circumstances (mentioned in Footnote 7) depends upon the analysis of the data which is available on the computers. The fact that the entire process of the generation of roll numbers to the students and allotment of the students to various examination centres is done by a computerised process is not in dispute. The assertion of the BOARD that technically such a process requires SOME LOGIC to be followed is not disputed by the appellants. The expert committee (on an analysis of the data) (i) identified the logic followed for generating the roll numbers and allotting the examination centres and also (ii) reaching a conclusion that in the case of the appellants and a few others the allotment was not in accordance with the logic initially adopted.
The same are not normally amenable to judicial review because Courts would lack the necessary technical expertise to sit in judgment over such matters. Apart from that, there is no specific challenge to those conclusions, except that the matter should have been examined by an independent expert committee. I do not find any legal basis for such a submission. I, therefore, see no reason to doubt either the factual or legal correctness of the first two circumstances. It, therefore, logically follows that there was a tampering with the examination process insofar as the appellants and a few others are concerned.
38. The other submission of the appellants in this regard is that if there is a deviation from the general pattern with regard to the allotment of Roll Numbers and the examination Centres, the appellants could not be blamed or 'penalised' because the entire process of the allotment was done by the BOARD and its officials. In my opinion, the question of either 'blame' or 'penalty' does not arise in the context. If tampering with the examination process took place, whether all or some of the appellants are culpable is a matter for a criminal court to examine as and when any of the appellants is sought to be prosecuted.
But the fact that the examination process was tampered with is relevant for administrative action such as the one impugned herein. The said fact formed the foundation for the further enquiry for identifying the beneficiaries of such contaminated process. Having regard to the circumstances relied upon, I do not see anything illogical or untenable in the conclusions drawn by the expert committee which formed the basis for the impugned action of the BOARD. It is argued that the formula[19] adopted by the BOARD to record the conclusion that the members of the identified pairs resorted to unfair means at the examination is without any scientific basis. I do not see any irrationality either in the formula or the decision of the BOARD to assign greater weightage to the incorrect matching answers.
There is nothing inherently suspicious about two candidates sitting in close proximity in an examination and giving the same correct answer to a question because there can only one correct answer to a question. On the other hand, if they give the same wrong answer to a given question and if the number of such wrong answers is high, it can certainly generate a doubt and is a strong circumstance indicating the occurrence of some malpractice. Such a test was approved by this Court in Bagleshwar Prasad's case[20].
Even otherwise, in my opinion, it would be futile to pursue the inquiry in this regard. Assuming for the sake of argument that the submission of the appellants is right and there are some cases (of appellants) where the appellants can demonstrate (if an opportunity is given to them) that the circumstantial evidence is not foolproof and therefore the impugned order must be set aside on the ground of failure of natural justice, the BOARD would still be entitled (in fact it would be obliged in view of the allegation of systematic tampering with the examination process year after year) in law to conduct afresh enquiry after giving notice to each of the appellants. That would mean spending enormous time both by the BOARD and by the appellants for the enquiry and the consequential (inevitable) litigation regarding the correctness of the eventual decision of the BOARD.
For the abovementioned reasons, I do not propose to interfere with the impugned judgment on the count that the rule of audi alteram partem was not complied with by the respondents before cancelling the admissions of the appellants herein.
39. The next question that requires examination is the legality of the action of the respondents after a lapse of considerable time. It varies between one to five years with reference to each of the appellants. The decision of the respondents necessarily led to litigation which consumed another three years. The net result is that appellants, who belong to 2012 batch, spent four years undergoing the training in medical course; others progressively longer periods extending up to eight years but could not acquire their degrees because of the impugned action and the pendency of this litigation. Most of the appellants would have acquired their degree in medicine by now if they had been successful at the examinations.
40. Learned counsel for the appellants made a fervent appeal that this Court in exercise its jurisdiction under Article 142 permit the appellants to complete their education subject to such conditions as this Court deems fit, to satisfy the demand of justice. A very emotional appeal was made during the course of hearing that the lives of 634 youngsters would be ruined if the impugned action of the respondents remains unaltered.
They would lose a decade of precious time of their youth and they would become practically useless for themselves and for their families - even for the society. It is, therefore, submitted that this Court may modify the impugned orders in the light of twin principles that
(1) the public policy of this country even with regard to the crimes is that they cannot be taken cognizance of beyond the period of limitation stipulated under various laws. It is submitted that as of now the appellants are alleged to be only beneficiaries of a fraud but not yet proved to be criminals;
(2) the appellants are youngsters who were of adolescent age at the time of the commission of the alleged fraud.
Even if it is proved that each of the appellants is directly a participant in the 'crime', which led to the tampering with the examination process (year to year), they cannot be subjected to the punishment under the criminal law in view of the provisions of the Juvenile Justice Act. Therefore, it is submitted that this Court may pass such orders, as it deems fit in the circumstances of the case, short of depriving the appellants of their entire future. In this regard, the learned counsel relied upon Priya Gupta v. State of Chhattisgarh & Others, (2012) 7 SCC 433.
41. On the other hand, it is argued on behalf of the respondents that having regard to the nature of deep rooted conspiracy behind the illegal admissions of the appellants, showing of any compassion in dealing with the cases of the appellants would have adverse impact on the enforcement of law in this country. It is argued that having regard to the well known maxim that "fraud vitiates everything" and the settled principle of law that the benefits secured out of a fraudulent action cannot be permitted to be retained, the appellants cannot be permitted to claim any sympathetic consideration from this Court. In support of the said submission, the learned counsel relied upon Ram Preeti Yadav v. U.P. Board of High School and Intermediate Education & Others, (2003) 8 SCC 311.
42. Before I discuss the rival submissions mentioned above, I deem it appropriate to examine the two judgments relied upon by the contending parties.
43. Ram Preeti Yadav's case was a case where intermediate result of the third respondent before this Court was withheld on a suspicion of his having employed unfair means in the examination. However, he was issued a provisional marksheet which did not indicate that the result of his intermediate examination has been withheld. ! On the basis of the said provisional marksheet, he pursued higher studies and became a post graduate and secured employment as a teacher in one of the colleges in Uttar Pradesh. Some twelve years after intermediate examination, he was informed that his intermediate examination was cancelled. Invariably litigation ensued.
On examination of the factual background, this Court recorded a conclusion that "thus, it is evident that a fraud was committed. Respondent No.3 is the sole beneficiary to the said fraud and it, as such, must be presumed that he was a party thereto". Invoking the principle that "fraud avoids all judicial acts, ecclesiastical or temporal" and relying upon two earlier judgments in S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs & Others, (1994) 1 SCC 1 and Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341, this Court reversed the High Court judgment granting relief to the third respondent.
44. In Priya Gupta's case (supra), Priya Gupta's admission to the MBBS course granted in the academic year 2006-07 was cancelled by the State of Chhattisgarh in 2010 on the ground that such admission was not in accordance with the relevant Rules[21]. This Court didn't find any illegality in the cancellation of the admission of Priya Gupta.[22] However, taking into consideration the fact that Priya Gupta had already completed her course study, this Court held as follows:
"74. On the peculiar facts and circumstances of the case, though we find no legal or other infirmity in the judgment under appeal, but to do complete justice between the parties within the ambit of Article 142 of the Constitution of India, we would permit the appellants to complete their professional courses, subject to the condition that each one of them pay a sum of Rs 5 lakhs to Jagdalpur College, which amount shall be utilised for developing the infrastructure in Jagdalpur College.
75. We have not and should not be even understood to have stated any precedent for the cases like grant of admission and leave to complete the course like the appellants in the present case." Both Ram Preeti Yadav and Priya Gupta's cases (supra) are cases where opportunities secured by individuals by some fraudulent means were subject matter of litigation.
While in the earlier case, this Court declined to take into account the time gap between fraudulent act and the detection of the fraud, for deciding the legality of the action against Ram Preeti Yadav, in the latter case this Court thought it fit to permit the benefits secured to be retained through fraudulent means on payment of certain amount to be utilized "for developing the infrastructure" in the college where Priya Gupta had studied. One of the many judgments of this Court falling under the "jurisprudence of peculiar facts" with a caveat that it does not constitute a precedent. !!
45. Be that as it may, both the above-discussed cases deal with the question of legality of the action taken against individuals (small in number - one in the first of the abovementioned cases and two in the second of the cases) in the context of their fraudulent conduct in securing the benefits of higher education. They pleaded that it would be inequitable to deprive them of the benefits of their education after considerable lapse of time. This Court rejected the plea of Ram Preeti Yadav both in law and fact, but in Priya Gupta's case it was rejected in law? but accepted in fact!
46. Coming to the case in hand, the number of students involved is relatively huge[23]. In view of the conclusion recorded by me earlier that neither the procedure adopted by the respondents nor the evidence relied upon by the respondents for taking impugned action against the appellants could be characterized as illegal, is it permissible for this Court to interfere with the impugned action of the respondents either on the ground that there is a considerable time lapse or that such action would have ruinous effect on the lives and careers of the appellants? and therefore inequitable is a troubling question.
47. The public policy of the country and the larger public interests, in our opinion, would be more appropriate guides than the considerations of equity to decide the questions in the absence of any statutory prescription applicable to the controversy on hand than the consideration of equity.
48. This court in Central Inland Water Transport Corporation Limited & Another v. Brojo Nath Ganguly & Another, (1986) 3 SCC 156 explained the concept of public policy and its role in the judicial decision making process in the following words:
"92. The Indian Contract Act does not define the expression "public policy" or "opposed to public policy". From the very nature of things, the expressions "public policy", "opposed to public policy", or "contrary to public policy" are incapable of precise definition. Public policy, however, is not the policy of a particular government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time.
As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the courts and similarly where there has been a well recognized head of public policy, the courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. There are two schools of thought- "the narrow view" school and "the broad view" school. According to the former, courts cannot create new heads of public policy whereas the latter countenances judicial law-making in this area.
The adherents of "the narrow view" school would not invalidate a contract on the ground of public policy unless that particular ground had been well-established by authorities. Hardly ever has the voice of the timorous spoken more clearly and loudly than in these words of Lord Davey in Janson v. Driefontein Consolidated Gold Mines Ltd. [(1902) AC 484, 500] : "Public policy is always an unsafe and treacherous ground for legal decision". That was in the year 1902. Seventy- eight years earlier, Burrough, J., in Richardson v. Mellish [(1824) 2 Bing 229, 252 : 130 ER 294, 303 and (1824-34) All ER 258, 266] described public policy as "a very unruly horse, and when once you get astride it you never know where it will carry you".
The Master of the Rolls, Lord Denning, however, was not a man to shy away from unmanageable horses and in words which conjure up before our eyes the picture of the young Alexander the Great taming Bucephalus, he said in Enderby Town Football Club Ltd. v. Football Assn. Ltd. [(1971) Ch 591, 606] : "With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles." Had the timorous always held the field, not only the doctrine of public policy but even the common law or the principles of Equity would never have evolved.
Sir William Holdsworth in his History of English Law Vol. III, p. 55, has said: "In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to suppress practices which, under ever new disguises, seek to weaken or negative them." It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience.
If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our Constitution."
49. One of the indicators of public policy on a given topic is the legislation dealing with the topic. The questions on which the public policy is required to be ascertained in the context of the present case are:
1. Whether administrative action to nullify any benefit acquired by a person through fraudulent means could be taken without reference to any limitation of time?
2. Whether a benefit obtained through the perpetration of fraud could be permitted to be retained?
The law of limitation is relevant and indicates to policy in the context of the first question. Various periods of limitation are prescribed for initiation of legal proceedings under the Limitation Act, 1963 and various other laws. This Court in Situ Sahu & Others v. State of Jharkhand & Others, (2004) 8 SCC 340 held that the statutory power of suo moto revision could be exercised to deprive a person of the property acquired by him even in the cases where such acquisition is through fraudulent means only within a reasonable period.
It was a case of the claim of a member of a scheduled tribe that their ancestors were tenants of a piece of land whose landlord obtained a deed of surrender by fraud. The question before this Court was whether the Dy. Commissioner could exercise the statutory authority under Section 71-A of the Chota Nagpur Tenancy Act, 1908 at any point of time without any limitation and restore the land to the claimant. This Court held that such power must be exercised within a reasonable time. Criminal law also prescribes time limits for taking cognizance of offences. But in cases of offences where the prescribed punishment is more than 3 years, no period of limitation is provided under the Code of Criminal Procedure, 1973.[24]
50. Public policy of this country regarding the retention of the benefit obtained by perpetrator of crime is that normally the benefit cannot be permitted to be retained by the perpetrator of crime. But the principle is applied only on adjudication that the benefit was obtained by perpetration of crime.
51. A person adjudged to be guilty of an offence is not permitted to retain the financial gains arising out of such crime.[25] Transfer of property for the purpose of concealing the fact that it is the benefit arising out of or statutorily presumed to be arising out of crime is not countenanced[26]. Similarly, it is the law of this country that a person found guilty of murder is not entitled to succeed (even if he is otherwise eligible for succession in accordance with the relevant principles of succession) to the estate of the victim[27].
Situ Sahu's case (supra) is also a case establishing the principle that the law permits the retention of property acquired pursuant to fraudulent means (allegedly) because law does not permit an enquiry into the allegation beyond the reasonable period. However, when it comes to other civil rights, the public policy, as can be discerned from various enactments, seems to be not to deprive completely those who are found to have been guilty of offences of all civil rights. For example, the right to contest an election for the various constitutional bodies is denied to a person convicted of various offences enumerated under
