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TMI Blog2016 (5) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... 1834,1835, 1836-1837, 1838, 1839, 1840, 1841, 1842, 1843, 1844, 1845 1846 OF 2016. CHELAMESWAR,JASTI AND SAPRE,ABHAY MANOHAR, JJ. J U D G M E N T 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 vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers, (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 brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding 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- -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. E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed 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 pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation, 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 Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 liv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer 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 Section 8 of the Representation of Peoples Act, 1951 but only for a certain specified period. Similarly, the right to vote is denied to persons convicted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decided. 55. Another important consideration in the context is that most of (if not all) the appellants, whatever be their respective role, if any, in the tampering of the examination process, must have been juveniles [29] as defined under the Juvenile Justice Act. They cannot be subjected to any punishment prescribed under the criminal law even if they are not only the beneficiaries of the tampered examination process but also the perpetrators of the various acts which constitute offences contaminating the examination process. 56. For the abovementioned reasons, I would prefer to permit the appellants to complete their study of medicine and become trained doctors to serve the nation. But at the same time there is a compelling national interest that dishonest people cannot be made to believe that time heals everything and the society would condone every misdeed if only they can manage to get away with their wrong doing for a considerably long period. Society must receive some compensation from the wrongdoers. Compensation need not be monetary and in the instant case it should not be. In my view, it would serve the larger public interests, by making the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as these appeals are concerned, they relate to examinations held in the years 2008 to 2012. The State of M.P. through Professional Examination Board hereinafter called Vyapam had conducted these examinations for getting admission in MBBS Degree Course in various Government/Private Medical Colleges in State of M.P. 8) The appellants cleared the PMT examination and got admissions in MBBS Degree Course in various Government/Private Medical Colleges in the State of M.P. Some are prosecuting their studies in MBBS Course and some claims to have completed their studies. 9) The Vyapam, however, cancelled the appellants PMT Examination results by order dated 09.10.2013 and various orders. The reason for cancellation was that the detailed investigations were made in conducting of the PMT examinations held in the years 2008 to 2013. The outcome of the investigations, however, revealed that the appellants and several other candidates resorted to unfair means in large scale by adopting planned strategy in answering their question papers. It was revealed that the appellants and other candidates in connivance with Vyapam's officials and some outsiders entered into a conspiracy and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a case of mass copying . 13) The High Court upheld the stand taken by the State/Vyapam and dismissed the writ petitions. The High Court by its reasoned judgment held inter alia that Firstly, it was a case of mass copying ; Secondly, the material seized was sufficient for the Expert Committee for coming to a conclusion that it was a case of mass copying found to have been done at a large scale by the appellants and other candidates by resorting to unfair means; Thirdly, the decision to cancel the appellants result is based on Expert Committee's report which has applied their mind to all aspects of the case after taking into account all material seized in investigation and, therefore, no fault could be found in such decision of the Expert Committee; Fourthly, the decision has been taken in larger public interest; and lastly, this being a case of mass copying , it was not necessary for the State/Vyapam to give any opportunity of hearing to any candidate individually to show cause before cancellation of their results as has been laid down by this Court consistently in several decided cases referred to hereinbelow. 14) It is this issue, which is now carried by the uns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation Board Act, 2007 (hereinafter referred to as the Act ) inasmuch as no notification under Section 3 of the Act was issued till date, all actions so far taken including cancellation of the results by the Board are rendered illegal because these actions/decisions were taken by the Board which was not validly constituted. 20) The aforementioned submissions were elaborated by the learned counsel for the appellants with reference to the record of the case and by placing reliance on various decisions of this Court. 21) In reply, learned counsel for the respondents (State/Vyapam) supported the reasoning and the conclusion of the High Court and prayed for its upholding calling no interference therein. 22) The questions, which arise for consideration in these appeals, are, Firstly, whether it is a case of mass copying ; Secondly, whether the appellants were entitled to a show cause notice before cancellation of their results; Thirdly, whether the appellants are entitled to claim any equity in their favour on account of delay occurred on the part of the State/Vyapam in cancelling their result and, if so, what relief are they entitled to claim; and lastly, whether the Vyapam B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding case where this Court (Three-Judge Bench) examined the case of copying and how it should be dealt with by the concerned authorities and the Court is Board of High School and Intermediate Education, U.P., Allahabad and Anr. vs Bagleshwar Prasad and Anr., AIR 1966 SC 875=(1963) 3 SCR 767. 28) The facts of this case were that two candidates were found copying in the examination. The charge of copying was based on the fact that one candidate had given wrong answer to one question precisely in the same form in which the said answers had been given by another candidate. Both the candidates were accordingly given show cause notice to explain the charge. Both denied the charge. The enquiry committee was then constituted to probe the issue and the committee came to a conclusion, after examining the whole issue, that it was a case of copying and accordingly cancelled their results. 29) Both the candidates filed writ petition in Allahabad High Court. The High Court allowed the writ petition and set aside the cancellation order. It was held that the decision to cancel the result is not supported by any evidence. The Board appealed to this Court. This Court allowed the appeal, set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the result, the rules of natural justice and fair-play were not observed because the candidates were not afforded any opportunity of hearing before cancellation of their results. 34) The High Court accepted the submission and allowed the writ petition by quashing the order of cancellation of their results. Against the decision of the High Court of Patna, the Board appealed to this Court. This Court ordered production of answer books for their inspection and compared them. The comparison showed remarkable agreement in the answers that students had assistance from an outside source. This Court allowed the Board's appeal, set aside the order of the High Court and dismissed the writ petition filed by the candidates and upheld the cancellation of the results. 35) Justice Hidayatulla-the learned Chief Justice speaking for the Three- Judge Bench in his inimitable style of writing distinguished the case of Ghanshyamdas Gupta (supra) and held in paras 13 and 14 as under:- 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. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he enquiry held was fair and afforded the candidate an opportunity to defend himself, the matter should not be examined with the same strictness as applicable to criminal charges in the ordinary courts of law. There is hardly any justification for saying in the present case that the finding of the Standing Committee was based on no evidence. 38) In the fifth case of B. Ramanjini Ors. vs. State of A.P. Ors. (2002) 5 SCC 533, the facts of the case were that the State authorities had cancelled the examination held for selecting secondary school teachers after noticing certain complaints of mass copying found to have been done by the candidates in the examination in respect of Anantapur District. 39) Justice Rajendra Babu (as His Lordship then was) speaking for the Bench took note of the law laid down in the case of Bihar School Examination (supra) and while upholding the decision of cancellation of the result of the candidates held as under: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this Court at the instance of UPSC, this Court placed reliance on the law laid down in Bagleshwar Prasad and Prem Prakash Kalunia (supra) and while allowing the UPSC's appeal, set aside the orders of the Tribunal and the High Court and upheld the decision of cancellation of the result. It is apposite to reproduce what is held by this Court in para 4 as under: 4. Before we answer the questions posed, to have our conscience clear, we had called upon UPSC to produce the answer papers of both the candidates. We have carefully scrutinised the answer papers of both the candidates and on a thorough scrutiny of the same, we have no doubt in our mind that but for assistance and/or connivance of the respondent it would not have been possible for the other candidate to answer in the manner in which he has answered. As has been stated by this Court in the case of Prem Parkash Kaluniya v. Punjab University in a matter like this it would be difficult to get direct evidence and so long as an inquiry is held to be fair and it affords the candidate adequate opportunity to defend himself, the matter should not ordinarily be examined by courts with the same strictness as applicable to cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s produced before the expert body. 41) In the seventh leading case decided by (Three-Judge Bench) in Chief General Manager, Calcutta Telephones District, Bharat Sanchar Nigam Ltd. Ors. Vs. Surendra Nath Pandey Ors., 2011 (15) SCC 81, the facts of the case were that B.S.N.L. a Government Company conducted departmental examination for granting promotion to the post of Junior Accounts Officers to their employees. The results were displayed containing the names of successful and unsuccessful candidates. Some unsuccessful candidates then made a representation as required under Rule 13 of Telegraph Manual requesting for disclosure of their marks obtained by them in the examination. This request was not acceded to and hence these candidates filed O.A. before CAT. The CAT directed BSNL to publish the results, allow the candidates to appear in the examination next year and pass appropriate orders on their representation. The authorities concerned disposed of the representation stating that some irregular practices were noticed in the examination attributable to the candidates who resorted to unfair means and hence their results were cancelled. 42) The candidates filed writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down in these cases can be summarized thus : First, in a case where several candidates are found involved in mass copying or in other words, where vast majority of candidates were found to have resorted to use of unfair means in any examination then it is not necessary for the concerned Institute to give any show cause notice to any individual candidate before cancellation of his result; Second, when it is difficult to prove by direct evidence that the copying was done by the candidates then the same can be proved by drawing inference based on probabilities and circumstantial evidence; Third, there are several ways in which unfair means can be resorted to by the candidates for doing copying individually or in the large scale by vast majority of candidates; Fourth, where few candidates are found involved in doing copying then it is necessary to give to individual candidate a show cause notice by following rules of natural justice before taking any action against him; Fifth, there must be some material (whether direct or based on probabilities and circumstances) to prove that a candidate resorted to unfair means for doing copying in answering his question paper; Sixth, if ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... candidates for doing copy in the examinations. This circumstance lends support to the fact that mass copying was done by the candidates in a planned manner; Third, candidates who managed to sit in pair in close proximity (described as scorer and beneficiary ), their wrong answers consistently matched with each other. This circumstance was relied on in the cases of Bagleshwar Prasad and Prem Prakash Kalunia (supra) for forming an opinion that both the candidates copied from each other; Fourth, the material seized in investigation prima facie established that mass copying was done in a planned manner by the several candidates (appellants herein) to enable them to answer the questions; Fifth, interpolations were found in sitting plan originally made by Vyapam for some years to accommodate the candidates (appellants) and others like the appellants to sit in a particular examination center in close proximity with each other so that they are able to copy from each other; Sixth, many candidates despite clearing the examination did not take admission in any medical college. There was no satisfactory answer given by them barring very few; Seventh, material seized in investigation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken in post-haste but was taken with full application of mind by the Expert Committee which consists of experts in subjects and lastly, this being a case of mass copying , it was neither necessary to give any show cause notice to the appellants and nor necessary to supply the material to the appellants. It is for these reasons, I find no merit in this submission. 49) Though an attempt was made by learned counsel for the appellants to distinguish the cases cited above but I am unable to notice any significant distinction. This Court, therefore, has to apply the law laid down in these cases for deciding the case at hand. It is all the more because the learned counsel for the appellants did not challenge and in my view rightly, the correctness of the view taken in any of these decisions. 50) In the light of detailed discussion and the reasoning given supra, I am of the considered opinion that it is a clear case of what is called in ordinary parlance a mass copying and I have no hesitation in holding so. I am also of the opinion that the procedure adopted by the State/Vyapam cannot be said to be unfair or arbitrary. I am also of the view that the action impugned is not in b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hirdly, since in the meantime, he cleared BA and MA Examinations with good percentage and secured employment as a teacher, the cancellation of his intermediate examination result is bad in law. 54) A learned Single Judge of the High Court was of the view that since Mr. Yadav has successfully cleared BA and MA Examinations and has also secured employment due to his brilliant performance in BA and MA Examinations, why should his career be ruined. It was on these grounds, his writ petition was allowed and cancellation of his result was set aside. The appeal filed by the Board and the institute against the order of Single Judge was dismissed and hence the Board carried the matter in appeal to this Court. 55) This Court allowed the appeal and while rejecting the aforementioned three grounds of challenge, set aside the order of the High Court and dismissed the writ petition. This Court while rejecting the submissions placed reliance on earlier decision of this Court rendered in Madhyamic Shiksha Mandal M.P. vs. Abhilash Shiksha Prasar Samiti Ors., (1998) 9 SCC 236 and quoted para 2 of Madhyamic Shiksha Mondal s case (supra) in support of their reasoning which reads as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever; 26. Further, we find that there is no equity in favour of Respondent 3, inasmuch as he knew that his result had been withheld because of the allegation of having used unfair means in the examination. Suppressing this fact, he took admission in BA and studied further. 57) Applying the aforesaid law to the facts of the case at hand, I find that the appellants are not entitled to claim any equitable relief on the ground that they have almost completed their course during the interregnum period and hence no action on the basis of their PMT Examination results is called for. 58) In my view, when in the case of Ram Preeti Yadav (supra), the decision to cancel the result was taken after 10 years of the examination in which he had appeared and in the meantime, he had also completed his higher studies and secured an employment yet this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the controversy involved in the case coupled with the complicity of several persons in the Scam and the manner in which the appellants cleared the examination which gave rise to initiation of criminal proceedings (though pending) against the appellants and several others, the exercise of extraordinary equitable jurisdiction under Article 226 for grant of equitable relief of any nature to the appellants is not called for and if granted, it will be against the settled legal position laid down by this Court. Since no equitable relief under Article 226 is called for, as a corollary, the question of invoking our extraordinary powers under Article 142 does not appear to be proper. In any case, in the light of the finding recorded by this Court against the appellants which has resulted in upholding of the impugned order of the High Court, this is not a fit case for invocation of extraordinary equitable jurisdiction available under Article 142. Sixth, grant of any equitable relief may be construed as awarding premium to the appellants of what they did. It would demoralize the meritorious students who could not secure the admission on their merit due to the appellants entry in the Colleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility of rules of natural justice is not static but it has different facets and, therefore, its applicability vary from case to case. I find that none of these cases has dealt with the cases of copying or mass copying . In my view, when the question as regard the applicability of rules of natural justice has already been decided by this Court in several cases relating to copying and mass copying then the law laid down in such cases must be applied to the cases at hand and not the one which lays down the law which explains the principle in general. Similarly, the last case cited has no application to the facts of this case because it deals with the applicability of rule to the case relating to the land. It is for these reasons, the submission based on the case law cited has no merit. It is accordingly rejected. 64) This takes me to the issue regarding constitution of Vyapam under the Act and its effect on the controversy in question. Since this issue has been elaborately dealt with by my esteemed Brother, I respectfully agree with His Lordship's reasoning and the conclusion and hence do not wish to add anything. 65) It is pertinent to mention that this Court by ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other examination. Candidate s fitness for his further assignment whether in studies or employment is, therefore, judged on the basis of his performance in the examination. It is for this reason, the examination is considered as a common tool around which the entire education system revolves. 69) Examination malpractices, academic fraud or cheating in the examination is as old as the examination itself. Study made by the educationist has revealed that these malpractices are gradually on the rise across the world and has caused a threat to public trust in reliability and credibility to the system as a whole. These malpractices occur within and outside the examination halls and are perpetrated by the candidates, staff and other external agencies before, during and after the examination. Various kinds of strategies are innovated and then applied to enable the candidate to clear the examination any how. It has, therefore, destroyed the piousness of the examination. With a view to prohibit such activities, State of A.P. had enacted a legislation but it was found inadequate to control such activities. 70) It is, therefore, the collective responsibility of the Government (Central/St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of equal roll number in P.M.T. Examination 2012 and 2013 and for setting of equal roll numbers in the P.M.T. Examination 2013 in collusion with Officers of Vyapam namely Nitin Mohindra and Others. Therefore, it is requested to provide report after conducting investigation in accordance with law as conducted in connection P.M.T. Examination 2013, P.M.T. Examination 2012, in the referenced P.M.T. Examination 2009, 2010, 2011, so that, action would be taken in accordance with law in connection with above. relevant portion of the letter dated 31.12.2013 (b) We understand that the original letter is in vernacular and the above is a Translation placed on record before us. [5] Year Number of Student 2012 319 2011 98 2010 90 2009 85 2008 42 [6] Year Total number of students who appeared in the PMT 2008 38,378 2009 29,16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons assigned by Division Bench in paras 91 to 106 of the decision in the case of Pratibha Singh (supra) the principles of natural justice would have no application in the peculiar fact situation of these cases. . . . [ The judgment in Pratibha Singh s case (supra) dated 11.4.2014 is a common judgment delivered in a batch of writ petitions filed by number of students who had appeared in the PMT 2013, but whose admissions were also cancelled on the allegation of large scale malpractices in the said examination. [9] An unfortunate state of affairs in public administration of a country where people associated with the different branches of governance under the Constitution make tall claims about the constitutional commitment to the rule of law in the country. [10] Rai Sahib Ram Jawaya Kapur Others v. The State of Punjab, AIR 1955 SC 549 Para 7. Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these articles are analogous to those of section 8 and 49(2) respectively of the Government of India Act, 1935 and lay down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislature is competent to legislate and are not confined to matters over which legislation has been passed already. The same principle underlies Article 73 of the Constitution. These provisions of the Constitution therefore do not lend any support to Mr. Pathak's contention. [11] Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh Others, (1982) 1 SCC 39 Para 20. ... In other words, the State in exercise of its executive power is charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions, until the legislature makes a law in that behalf. Otherwise, the administration would come to a standstill. [12] 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red on the ground that natural justice and fair-play were not observed in this case. This was repeated to us by the respondents in the appeal. A mention of fair-play does not come very well from the respondents who were grossly guilty of breach of fair-play themselves at the examinations. Apart from the reports of the experts, the results speak for themselves. At the other centres the average of successful candidates was 50%. At this centre the examinations had the following percentage: 1. Mother Indian Language -- 94% 2. English -- 70% 3. Social Studies 95% 4. Everyday Science -- 90% 5. Elementary Mathematics -- 100% 6. Economics and Civics -- 92% 7. Elementary Physiology and Hygiene -- 96% 8. Geography .. 99% 9. History ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te copying from the other, or both candidates copying from a common source. [21] It was found that the admission ... had been on the basis of fake letters purported to be issued from the Directorate General of Health Services (DGHS) . [22] Para 73. ... By their admissions, firstly, other candidates of higher merit have been denied admission in the MBBS course. Secondly, they have taken advantage of a very low professional college fee, as in private or colleges other than the government colleges, the fee payable would be ₹ 1,95,000 per year for general admission and for management quota, the fee payable would be ₹ 4,00,000 per year, but in government colleges, it is ₹ 4000 per year. So, they have taken a double advantage. As per their merit, they obviously would not have got admission into Jagdalpur College and would have been given admission in private colleges. The ranks that they obtained in the competitive examination clearly depict this possibility because there were only 50 seats in Jagdalpur College and there are hundreds of candidates above the appellants in the order of merit. They have also, arbitrarily and unfairly, benefited from lower fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub- section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term property includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. Section 453. Payment to innocent purchaser of money found on accused.- When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen property, and it is proved that any other person bought the stolen property from him without knowing or having reason to believe that the same was stolen, and that any money ..... X X X X Extracts X X X X X X X X Extracts X X X X
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