Governing Body of Evening College vs State of Orissa and Others

M.M. Das, J.—Heard Mr. Routray, learned Counsel for the petitioner and Mr. Jena, learned Counsel for the opp.parties 2 and 3.

The petitioner is the Principal of Angul Evening College, Angul. 49 regular students of the petitioner''s college appeared at the +2 Annual Higher Secondary Examination, 2007.

It is the case of the petitioner that there were no allegations whatsoeveras against any student, when they appeared in the said examination, from any body in the examination centre. Rather, the examination was conducted strictly in accordance with the rules prescribed by the Council. Though the result of the said examination was published on 8.6.2007, but the name of the petitioner''s college did not find place and the result of the students of the said college was not declared. Finding thus, they moved before the Council to know the reason for not declaring the result.

After about a month, a notification was issued on 4.7.2007 notifying that the examination in respect of Economics Papers-I and II, Political Science Papers-I and II and Logic Papers-I and II of the said Examination has been cancelled in respect of the centre from which the students appeared, basing on the report submitted by the Subject Experts. The petitioner has alleged the action of the opp.parties as arbitrary and the decision taken is without resorting to the procedure as prescribed and without affording opportunity of hearing either to the institution or to the students of the institution. Being aggrieved by such action on the part of the opp.parties, the petitioner has approached this Court in the present writ petition for appropriate relief.

Mr. Routray, learned Counsel for the petitioner submits that even accepting that the Subject Experts, while reviewing the answer papers, which were already evaluated, submitted a report, but on the basis of such report, the Council is not empowered to take such a drastic action against large number of students. Such action has been taken hurriedly without due consideration of all the materials. Cancelling the result and awarding ''0'' marks to the students is a stigma, which cannot be done ex parte without hearing the affected party. No allegation whatsoever has been made either by the Invigilator/Centre Superintendent/Supervisors or the Flying Squad with regard to the students adopting mal-practice at the time of appearing in the examination.

A counter affidavit has been filed on behalf of the opp.parties, inter alia, taking a stand that as the Examination Committee found the result of the college to be abnormally high, out of suspicion, the Committee thought it proper to re-examine the answer scripts of the aforesaid papers by Subject Experts. The Subject Experts re-examined the answer scripts of the aforesaid papers and submitted their reports before the Examination Committee. As it was found from the said reports that the examinations in the said centre were not conducted as per rule and there was mass mal-practice in the aforesaid subjects, the Examination Committee decided to cancel the results of the aforesaid papers.

Mr. Routray, learned Counsel relying upon the decision of the Supreme Court in the case of Union of India (UOI) and Others Vs. Jai Prakash Singh and Another, and the decisions of this Court in the case of Board of Secondary Education, Orissa, Cuttack Vs. Gayatri Hota and others, and Kumari Babita Jena and Others Vs. Council of Higher Secondary Education and Others, submitted that law has been fairly settled in the aforesaid decisions that only because some of the answer scripts are tallying and/or similar and/or identical with some other answers, that too, in respect of the students, who were appearing in the examination in different halls, a conclusive interference cannot be drawn to the effect that they were involved in mass mal-practice. Law is also settled that before arriving at the conclusion that the examines were involved in commission of mass mal-practice during the examination, the requirements of natural justice have to be followed. The above principles have been approved by the apex Court in the case of Suresh Koshy George Vs. University of Kerala and Others,

This Court in the case of Prashanta Kumar Chakara v. Council of Higher Secondary Education, Orissa 1988 (I) OLR 451 observed that the authorities cannot utilize materials which had not been put to the petitioner and that the principle of natural justice have to be sacrosanctly followed in the case of cancellation of result on the ground of mass mal-practice. In the case of Kumari Babita Jena and Ors. (supra), a Division Bench of this Court, being posed with similar facts, held that the stand taken by the Council that the result was cancelled due to infringement of the examination rules or because of mass mal-practice, since the answer scripts indicated identical answers, cannot be accepted. Identical answers may be found for very many reasons, but for the inference that it was the result of mass mal-practice, something more has to be proved.

Learned Counsel for the C.H.S.E. relied upon the judgment dated 11.8.1992 of this Court passed in O.J.C. No. 4316 of 1991 (Radhaballav Baral and Ors. v. Council of Higher Secondary Education and Anr.) and the judgment dated 2.8.2002 passed in O.J.C. No. 6438 of 2000, Smt. Pravamayee Nayak and Ors. v. Council of Higher Secondary Education, represented through its Chairman, Pragnyapitha, Bhubaneswar and Ors. 2002 OLR 791, wherein this Court upheld the stand taken by the Council. The facts of the said cases, however, are distinguishable from the facts of the present case, as the facts of the case in Radhaballav Baral and Ors. (supra) disclose that the answers to essays were identical and the grammatical mistakes were similar. In the case of Smt. Pravamayee Nayak and others (supra), the report was submitted while evaluating the answer scripts, immediately, which was place before the Examination Committee and the said Examination Committee, observed that it is a clear case of mass mal-practice. The Court, on finding that it is not only the identicality of the answers of the petitioners therein, but also the incorrect answers being identical, upheld the decision of the Council. However, it was observed that what could be considered mass copying cannot be laid down with mathematical precision and it has to be decided on the facts and circumstances of each case as to whether there has been mass copying at a particular examination centre.

Since in the instant case, the Court had the occasion to peruse the report of the Examination Committee, which was produced, and found that except accepting the reports submitted the Subject Experts, there is nothing to show that the Examination Committee has applied its mind before taking the decision to cancel the result of the students of the petitioner college in respect of the papers mentioned above, this Court is of the view that applying the settled position of law, as discussed above, the decision of the Examination Committee cannot be sustained. Accordingly, the decision for cancelling results of the students of the petitioner-college in the aforesaid subjects is quashed and the Council of Higher Secondary Education is directed to declare the result of the students of the petitioner-college by the awarding them the marks as has been awarded by the valuers of the respective answer scripts. Such result shall be declared within a period of three months from the date of production of a certified copy of this order before the Controller of Examinations, C.H.S.E., Orissa by the petitioner and the mark-sheets and certificates of students of the petitioner-college shall be sent to the petitioner-college within a period of three weeks thereafter for being handed over to the said students.

The writ petition is accordingly allowed.

Urgent certified copy of this order be granted as per rules.