K. Santha Kumari and another vs Sri Krishnadave Raya University and another

Whether the sterio type and verbatim answers in the answer scripts of the students would constitute malpractice/ unfair means is the issue that calls for consideration in these Writ Petitioner. Since the common questions are involved in all these cases, they are decided jointly.

The petitioners are the students of B.Sc., Final Year degree. They studied the degree course at S.J.S. Degree College, Kurnool affiliated to Sri Krishnadeva Raya University, Ananthapur, the 1st respondent herein. The college imparts the course in English and Telugu medium. The petitioners herein belong to both the media. The Final Year B.Sc., Degree examinations were held from 18-4-1996 and Examination Centre in respect of the petitioners was fixed in (heir own College i.e. S.J.S. Degree College for Women, Kurnool. All the petitioners wrote the examinations and the results were announced in the newspaper on 4-7-1996. They were declared passed. However, when they went to the College for taking the memo of marks, it was intimated that some cases of malpractice were pending against them and therefore no certificates would be issued to them. While so, on 29-8-1996, a memo was issued stating that they had indulged in malpractices of mass copying Part-IJ, Paper-111 Botany Section C and they were called upon to show cause as to why they should not be debarred from the examinations. It is the case of the petitioners that they never indulged in any nialprctices. There was no check by any Flying Squad or Invigilators during the time when they wrote the examinations. It is also their case that they were not furnished with the copy of the report of the Examiner along with the show cause notice and therefore they were not in a position to submit effective explanation. It is further submitted that they appeared for M.Sc. Enterance Examinations and some of them are also seeking admission to B.Ed., Course. Therefore, they prayed for appropriate directions to the University to release the memo of marks and other relevant documents to enable them to prosecute higher studies.

In the counters filed on behalf of the University, it is stated that the petitioners had appeared for B.Sc., Final Year examination with B.Z.C., group. The answer scripts were sent to the Examiners for spot valuation and the Examiner found that the answer scripts of the petitioners in Section ''C'' of Part II Paper III of Botany Question Paper, all the answers were found to be in-the same order and verbatim. Therefore, the Examiner made a report to the concerned authority and it was verified by the Chief Examiner. It was recommended to withhold the result of the candidates. It was suspected that the petitioners had resorted to mass copying as all the answers either in Telugu or English language written by the petitioners in Part II, Paper III Botany Section C were in a stcrio type manner. Therefore, a show cause notice was isused by a Memo dated: 29-8-1996. The explanation submitted by the petitioners were placed before the Committee of the Mal practices. The Committee which met on 19-9- ''�'' 1996 once again examined the scripts of the petitioners both in respect of Telugu and English medium candidates and sound that all . the scripts were of a sterio typ,. and word to word in Section C of Part II, Paper HI Botany. Therefore, the Committee has awarded the punishment - result of the examination cancelled. The candidates are not permitted to appear for April, 1997 Examination and permitted to appear for October, 1997 Examination. The said punishment was awarded in pursuance of the norms of the punishment approved by the Syndicate dated 12-12-1987. the said pro ceedings were communicated to the Peti tioners. However, it is stated that in respect of one show cause notice there was a typogra phical mistake instead of Section ''C'' Paper III Botany, it was written as Section IV of Zoology.

It is the case of the University that since the answers are sterio type, the necessary conclusion that could be drawn is that they had resorted to malpractice and unfair means in the examination.

Heard the learned counsel for the petitioners and the learned Standing Counsel for the University.

The learned counsel for ihe petitioners submit that the examination centre was in the Women''s college, where the petitioners had studied B.Sc. Final Year course. But, however, the arrangement was such that it is virtually impracticable for the Telugu medium students to copy each other as in between Telugu medium students English medium students were positioned. He also submits that there was no inspection by any Flying Squad or Invegilator, when the petitioners wrote Part II, Paper III Botany examination. It is also further submitted that the report of the Examiner has not been furnished to the petitioner and therefore the entire process is vitiated for violation of the principles of natural justice. Therefore, he seeks direction to declare the result and to issue necessary memos. On the other hand, the learned Standing Counsel for the University Mr. P. V. R. Shama submits that Section ''C'' of Part U, Paper III Botany contains 15 bits having "0 marks. The candidate has to answer 10 bin; with 20 words each. He submits thai all the petitioner in Telugu medium have only answered particular bits and the answers were in sterio type namely word to word. Similarly in respect of English medium students 10 bits were answered by them and all the answer scripts of the English medium candidates also reveal that the bits selected by them are common and the answers were sterio type. Thus, the learned counsel submits that if the petitioners had really answered the bits independently, there could have been some semblance of difference in answers. If the answer scripts of the petitioners are perused, it would reveal that all the answers are sterio type and in the same wording. Hence, the learned Standing Counsel for the University submits that they had resorted to malpractices either by copying from one answer script of one student or there was also possibility of the Invigilators colluding with the students and dictating the answers to the students. However, the fact remains that all the petitioners attempted common bits and the 1 answers are in verbatim. He also submits that under the Minutes of the meeting of the Syndicate held on 12-12-1987, the criteria for awarding the punishment in the University examination was approved. In respect of using of books or other materials for copying the punishment approved is cancellation of the result of the examination and the candidates will not be permitted to appear for next two examination. Further guidelines were added on 29-11-1988 wherein for assisting examinee through supply of answer sheet or any other relevant material forbidden in the examination hall, the punishment is cancellation of that examination.

. "7. The learned counsel for the petitioner also submit that the precise nature of the malpractice of unfair-means was not spelled out in the show cause notice and the report of the Examiner was not furnished to the petitioners and therefore they were denied the opportunity to put forth their case properly. Hence, action of the Respondents has to be declared as illegal and arbitrary in violation of Article 14 of the Constitution of India. He relies on the judgment of learned single Judge of this Court reported in A. Ramakoteswara Rao Vs. The Vice-Chancellore, Nagarjuna University, Guntur and another, . In the said case, it was held that in all matters where malpractices are alleged against the students, it is necessary that they should be informed precisely the malpractice said to have been indulged by them in the Examination Hall, so that they may be in a position to meet the case before the Malpractices Committee and offer their explanation. Since the petitioner in the said Writ Petition was not put on notice, no opportunity was given to meet the allegations, the learned single Judge quashed the action of the University.

The learned counsel for the Respondent relies on the judgment of the Supreme Court reported in Suresh Koshy George v. University of Kerala, AIR 1979 SC 198 wherein it was observed that Rules of natural justice are not embodied rules. The question whether the requirements of the natural justice have been met by the procedure adotped in a given case must depend to a great extent on the facts and circumstances of the case. However, in case of enquiry with regard to the malpractices of the students, the Supreme Court held that the person accused should know the nature of the accusation made, that he should be given an opportunity to state his case and that the Tribunal should act in good faith. The enquiry contemplated for such type of unfair means cannot be equated with the enquiry u/s 311 of the Constitution of India.

It is beyond the pale of any controversy that the student cannot be condemned without being informed of different allegations made against him in connection with the examination and the duty is cast on the Malpractice Committee to act judiciously and fairly. The essential requirements of natural justice in the case of this nature are that the students should know the nature of accusation made against''them and they should be given an opportunity to state his case and the Committee should act in good faith and fairly (See: Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, , Syed Mash-hood Ali and Others Vs. The Secretary, Board of Secondary Education Government of Andhra Pradesh, Hyderabad and Another, , General Council of Medical Education & Registration, U.''K. v. Speckman (1943) AC 627, Byrne v. Kinematograph Renter''s Society Ltd. (1958) 1WLR 762. However, in the instant case, that question may not arise inasmuch as the petitioners were put on show cause notice clearly stating that they had indulged in mass copying by writing sterio type answers. Hence, I am not able to accept the contention raised by the learned counsel for the petitioner that there was a violation of principles of natural justice. On the other hand, the learned counsel for the respondent submit that under Article 226 of the Constitution of India very limited powers vest in this Court and that this Court cannot act as an appellate authority over the orders passed by the Unviersity authorities. When once the Court is satisfied that the sufficient opportunity was given to the petitioners, the Court may not interfere.

It is ncxtly contended by the learned counsel for the petitioners that the finding arrived by the Committee that the petitioners had committed malpractice is not based on any evidence and that the petitioners were found guilty of the charge on mere surmises and conjectures. On the other hand Sri Sharma, the learned counsel for Respondent submits that the power of judicial review vested in this Court cannot be stretched so as to convert this Court as an appellate authority. If the Committee relied'' on acceptable evidence had arrived at a finding it is sufficient compliance. He relies on the judgment of this Court reported in P. Prabhat Kumar v. Secretary, Board of Intermediate Education,A.P.(1983) 1 ALT 15(2), wherein it is stated that the finding arrived by the authorities with regard to the malpractice in the examination, the High Court cannot interfere with. When, once the finding was arrived at bona fide and also when the petitioner was given sufficient opportunity by scrutinising the answer scrips. He also cites another case reproted in G.B.S. Omkar v. Sri Venkateswara University (1981) 1 ALT 36 (1), wherein it is stated that so long as there is evidence justifying the inference arrived without there being any serious procedural delay, the possibilities as arrived at out of conclusion of consideration of the same material can never form a ground of writ for a writ Court to interfere with the order of the educational institution* keliance was also sought by the learned counsel on the decision of the Surpeme Court in The Board of High School and Intermediate Education U.P. Vs. Bagleshwar Prasad and Others, . In the said case, the Surpeme Court observed as follows (at p. 878 of AIR):

"In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 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 Art. 226, the High Court is not sitting in appeal over the decision in question, its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to.defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice; but it would, we think, not be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary Courts of law. In the present case, no animus is suggested and no mala fides have been pleaded. The enquiry has been fair and the respondent has had an opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent."

In The Bihar School Examination Board Vs. Subhas Chandra Sinha and Others, , the Supreme Court held that when the students had adopted unfair means by resorting to mass-copying, the action of the school examination board in cancelling the examination as a whole at that centre is justified. The Supreme Court further stated that no opportunity be given to all the students before the action was taken. Paras 13 and 14 are relevant and which are extracted below:

"13. This is not a case of any particular individual who is being charged with adoption of unfair means but of the conduct of all the examinees or at least a vast majority of them at a particular centre. If it is not a question of charging any one individually with unfair means but to condemn the examination as ineffective for the purpose it was held, must the Board give an opportunity to all the candidates to represent their cases? We think not. It was not necessary for the Board to give an opportunity to the candidates if the examinations as a whole were being cancelled. The Board had not charged any one with unfair means so that he could claim to defend himself. The examination was vitiated by adoption of unfair means on a mass scale, rh these circumstances it would be wrong to insist that the Board must hold a detailed inquiry into the matter and examine each individual case to satisfy itself which of the candidates had not adopted unfair means. The examination as a whole had to go.

Reliance was placed upon Board of High School and Intermediate Education, U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, , to which we referred earlier. There the examination results of three candidates were cancelled, and this Court held that they should have received an opportunity of explaining their conduct. It was also said that even if the inquiry involved a large number of persons the Committee should frame proper regulations for the conduct of such inquiries but not deny the opportunity. We do not think that that case has any application. Surely it was not intended that 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 that an inquiry would be made giving a chance to every one appearing at that examination to have his say. What the Court intended to lay down was that if any particular person was to be proceeded against, he must have a proper chance to defend himself and this did not obviate the necessity of giving an opportunity even though the number of persons proceeded against was large. 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 ofthe examination the majority of the examinees had not conducted themselves as they should have. 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 manage 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."

It is now well settled that this Court is clothed with powers of review under Article 226/227 of the Constitution of India over the actions/orders of the administrative and quasi-judicial authorities. But, at the same time, the power has to be operated within the well defined limits. It is no part of the function of this Court, while exercising the power of judicial review to record a finding that explanation offered by the students was plausible and satisfactory as that power is vested with Malpractices Committee and that Committee alone has the power to decide the question of fact. This position can be traced Jrom the decisions of the English Courts. Lord Greene, M.R. in Associated Provincial Picture Houses Limited v. Wednesbury Corporation (1948) 1 KB 223 at 229, has stated the permissible grounds of attack for allowing judicial review - (i) bad faith, (ii) dishonesty, (iii) attention given to extraneous circumstances, and (iv) disregard of public policy. What is meant by an unreasonable action was explained by the learned Master of Rolls:

"For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may truly be said, and often is said to be acting unreasonably. Similarly, there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authority."

In the celebrated case of Ridge v. Baldwin (1964) AC 40, Lord Reid, in his speech, laid down the principle:

"..... a decision given without regard to the principles of natural justice is void ..... The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case."

The English Law as to the limits of power of judicial review has become part of our public law. The Supreme Court while citing English authorities, in Dwarkadas Marfatia and Sons Vs. Board of Trustees of the Port of Bombay, :

"It is not within the purview of a Court to substitute a decision taken by a constituted authority simply because the decision sought to be substituted is a better one."

Unless it is shown that the conclusions arrived by the authority suffered from want of evidence, breach of principles of natural justice, unreasonableness, illegality, irrationality or perversity or bad faith. They are not susceptible for interference under Art. 226 of the Constitution of India.

To satisfy myself about the contention raised bythe University. I had called for the answer scripts of the petitioners and I find that all the petitioners who answered in Telugu medium attempted identical bits in Botany examination. I noticed that the answers were written in verbatim. Same case is with the English medium students.

But the question that falls for consideration is whether copying was done from the answer script of one examinee or the material was supplied to these persons by outside agency. To this effect there is no evidence whatsoever. Normally in the examination, Flying Squads are pressed into service apart from the Invigilators and if any material are found in the possession of examinees or copying in the examination centre, they will be caught red-handed. But, in the instant case that situation did not arise and there was no such complaint from the examination centre. But, none-the-less the petitioners cannot be cleared of the allegations, inasmuch as they could not have written the answers word for word, which confirms that they did indulge in malpractice. Even though there is no direct evidence to prove such malpractices, yet the probabilities and circumstancial evidence are so heavy against the petitioners which only lead to an inescapable conclusion that there was a mass-copying. The fact that the answers in Section-C of the question paper written by all the petitioners are found to be verbatim is itself a clinching evidence to sustain the accusation. Thus, I am convinced that the petitioners had adopted unfair means in the examination hall in Part-II, Paper-Ill Botany Section-C.

Therefore, it is clear that this Court should be slow to interfere with the orders passed by the University authorities except in the circumstances referred to above. Admittedly in these cases there is no direct evidence, but still the circumstantial evidence itself is sufficient to draw legal inference that the petitioners had resorted to malpractice. As already observed, the judicial review is concerned, not with a decision, but with the decision making process. Therefore, 1 am of the view that the action of the University authorities cannot be said to be either illegal, unreasonable or unfair.

But, the most important point that falls for consideration is whether the punishment of cancellation of the examination and debarring the candidates for taking next two examinations is justified and whether it is in conformity with the resolutions passed by the Syndicate of the University. It is not in dispute that all the students of the Women''s College at Kurnool had appeared for the B.Sc., Final Year Examination and answers to Section-C of Part-II, Paper-Ill Botany were found to contain identical wordage. The following are the relevant malpractices and the punishments which have been approved by the Syndicate of the University.

Malpractice : Punishment :

a)

Actual use of books or other material for copying.

The resuh of ibat examination will be cancelled and candidates will not be permitted to take next two examinations.

b)

Assisting the co-examinee through the supply of either his/her main/ Addl. Answer sheet/any other relevant material forbidden in the examination hall.

Cancellation of that examination.

It has to be been under which category the malpractice committed by the petitioners falls. As already stated, there is no direct evidence and the enquiry was initiated on the basis of the report of the examiner. Obviously, in the instant case, the punishment was imposed under clause (a). There is no charge that the petitioners used the books or other material for copying since no such material was seized. It is only on the basis that sterio typed and verbatim answers were found in at! the answer books,, the Committee concluded that the petitioners adopted unfair means in the particular examination. Therefore the malpractice falls under clause (b) above for which the punishment is only the cancellation of that examination. Therefore, I find that the petitioners were meted out with inappropriate punishment. Accordingly, I hold that the petitioners are liable for punishment of cancellation of Part-II, Paper-III Botany Examination only for the proved misconduct.

Therefore, while holding that the charge of malpractice against the petitioners has been established, I modify the punishment to that of cancellation of aforesaid paper only. The petitioners are entitled to appear for the said examination in the ensuing examination that may be conducted by the University.

The writ petitions are allowed to the extent indicated supra. No costs.

Petitions allowed.