Tags Education

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 1727 of 2016, Judgment Date: May 12, 2016

                                                                   Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No. 1727 OF 2016

Nidhi Kaim                                                       … Appellant

                                  Versus

State of Madhya Pradesh & Others Etc.                          … Respondents


                                    WITH
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.


                               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  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-à-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.
                                                                   Reportable
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No. 1727 OF 2016

Nidhi Kaim                                                       … Appellant

                                  Versus

State of Madhya Pradesh & Others Etc.                          … Respondents


                                    WITH
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.


                               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  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-à-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 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 of offences specified under Section 11A  of  the
Representation of the People Act, 1951 for a period specified  therein.   It
is also worthwhile  noticing  that  even  such  disqualifications  could  be
removed by the Election Commission for reasons to be recorded.[28]

      It is required to be examined whether it would be consistent with  the
public policy to deprive the appellants of the benefits of  their  education
on the ground that they secured  certain  benefits  by  adopting  fraudulent
means.

52.   We are informed that all the appellants are  also  being  investigated
for the commission of various offences which if  proved  would  render  them
liable for imprisonment  for  periods  extending  beyond  three  years,  and
therefore, there is no period of limitation for taking cognizance  of  them.
Therefore,  it  cannot  be  said  that  the  impugned  action  against   the
appellants would be inconsistent with the public policy  on  the  ground  of
the time gap.

53.   While it is a salutary principle based on public policy not to  permit
the retention of ‘property’ obtained by fraudulent  means,  the  application
of the said principle becomes a matter of doubtful utility  to  the  society
in the context of the acquisition of knowledge by adopting fraudulent  means
examined from the point of view of the public interest.   In the context  of
property (economic gains), the application of the  principle  works  to  the
benefit of the rightful  owner.   But  in  the  context  of  acquisition  of
knowledge, nobody would benefit by the application of  the  rule  and  would
therefore serve only a limited public purpose.


54.   Some 634 youngsters, who have  already  completed  their  training  in
medicine (or about to complete) and whose  knowledge  could  have  otherwise
been utilized for the benefit of  the  society,  would  be  simply  rendered
useless for the society in the sense their knowledge cannot be utilized  for
the welfare of the society.  The question is not  whether  these  appellants
deserve any sympathy. In my view, a larger question-  whether  this  society
can afford to waste such technically trained and qualified  human  resources
which require enormous amounts of energy, time and other material  resources
to generate. Obviously, it takes another five years of time and  expenditure
of considerable material resources to produce another set of  634  qualified
medical graduates.  It is in the  background  of  this  consideration,  this
issue is required to be 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
appellants serve the nation for a period of five  years  as  and  when  they
become qualified doctors[30],  without  any  regular  salary  and  attendant
benefits of service under the State, nor any claim for absorption  into  the
service of the State subject of course to  the  payment  of  some  allowance
(either in cash or kind) for their survival.  I would  prefer  them  serving
the Indian Armed Forces subject to such conditions and disciplines to  which
the armed forces normally subject their  regular  medical  corps.   I  would
prefer that the appellants be handed over the certificates of their  medical
degrees only  after  they  complete  the  abovementioned  five  years.   The
abovementioned exercise would require the  ascertainment  of  the  views  of
Ministry  of  Defence,  Government  of  India,  and   passing   of   further
appropriate orders by this Court thereafter. In view of the disagreement  of
views in this regard, I am not proposing such an exercise.

Registry is directed to place the papers before Hon’ble  the  Chief  Justice
of India for appropriate orders.


….………………………….J.
                                                     (J. Chelameswar)
New Delhi;
May 12, 2016

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.1727 OF 2016

      Nidhi Kaim                       ……Appellant(s)


                            VERSUS


State of M.P. & Ors.   Etc.            ……Respondent(s)

                                    WITH

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


                               J U D G M E N T

 

 

Abhay Manohar Sapre, J.
1)    I have had the advantage of  going  through  the  elaborate  and  well
considered draft judgment proposed to be pronounced by my learned Brother.
2)    Having gone through the draft judgment, I  agree  with  the  reasoning
given by my learned Brother on all the issues  except  on  one  issue  dealt
with in paragraphs 39 to 55  relating  to  issuance  of  directions  to  the
respondents.
3)    In my view,  keeping  in  view  the  nature  of  controversy  and  the
findings recorded by us on  the  main  controversy  which  has  resulted  in
upholding of the impugned judgment, no case is  made  out  for  passing  any
directions under Article 142 of the Constitution of India  and  hence  these
appeals deserve to be dismissed.
4)    However, having regard to the issues which were  ably  argued  by  the
learned counsel and in the  light  of  my  disagreement  on  one  issue,  as
mentioned above, with my learned Brother, I propose to write few  paragraphs
of my own in support of my reasoning and the conclusion.
5)    I need not set out the facts in detail since my  learned  Brother  has
succinctly mentioned them in his draft judgment.
6)    Suffice it to say, the controversy involved in these  appeals  centers
around broadly to the following facts.
7)    The appellants along with several other  candidates  appeared  in  the
PMT examinations held in the years 2008 to 2012 and 2013. So  far  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 conceived a plan as to how  the
appellants and their associates should sit in  the  examination  centre  and
accordingly sitting arrangements  in  particular  examination  centers  with
another  candidate  (described  in  scam  as  "scorer")   were  made   which
facilitated the candidate (described in scam as “beneficiary”) to copy  from
the candidate (scorer) sitting in front of him from  his  answer  sheet.  It
was also revealed that the appellants and conspirators  were  successful  in
their plan and the  appellants  secured  the  requisite  marks  in  the  PMT
examination which enabled them to get admission in MBBS course at  the  cost
of deserving candidates who  despite  clearing  the  examination  could  not
secure admissions in MBBS Course in the respective years.
10)   In support of their decision, the State/Vyapam  filed  material  which
was  seized  by  the  Special  Task  Force  (STF)  sleuths  in  the  ongoing
investigation. The material seized consisted of (1) relevant files  relating
to conduct of these examinations  from  Vyapam’s  office  (2)  statement  of
persons recorded by STF sleuths  involved  in  the  scam  such  as  Vyapam's
officials, candidates, their parents, outsiders who hatched  the  conspiracy
on receiving money consideration etc. (3) computers, hardware  and  software
used in programing the examinations      (4) benefits  (cash  or  otherwise)
alleged to have been received by  the persons  involved  in the scam
(5) copies of FIR and  Charge  sheets  filed  against  several  accused  for
commission of offences of fraud, cheating, conspiracy etc.   (6)  Copies  of
bail orders (granting or/and refusing  bail)  passed  in  several  cases  by
various courts including the orders of the High Court passed  from  time  to
time in PIL dealing with the scam (7) order of this Court directing the  CBI
to take over the ongoing investigation of  the  Scam  from  STF  (8)  Expert
Committee's reports on scam etc.
11)   The appellants, felt aggrieved by  the  decision  of  cancellation  of
their results, filed several writ petitions before the High  Court  of  M.P.
out of which these appeals arise.  The  challenge  to  the  cancellation  of
their result was on several factual and legal grounds as detailed infra.
12)   The State and Vyapam supported the decision  of  cancellation  of  the
results and inter alia contended that it  is  based  on  Expert  Committee's
reports, which has  taken  into  account  the  aforementioned  material  for
coming to a conclusion that it was 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 unsuccessful  candidates
(appellants) to this Court in these appeals.
15)   The controversy  in  these  appeals  mainly  centered  around  to  the
following legal issues.
16)   In the first place, submission of learned counsel for  the  appellants
was that the perusal of the materials relied on by the State/Vyapam  against
the appellants (though disputed by the appellants) would go to show that  it
does not make out a case of “mass copying” but at best may make out  a  case
of unfair means resorted to by few individual candidates in answering  their
questions papers. It was,  therefore,  their  submission  that  since  these
candidates, who  resorted  to  unfair  means,  were  later  identified,  the
State/Vyapam should have  given  show  cause  notices  to  these  candidates
individually setting out therein the nature of  unfair  means  committed  by
each such candidate by following the rule of natural justice, i.e., rule  of
audi alteram partem and after affording the erring  candidates  (appellants)
an opportunity of hearing by supplying the alleged material, an  appropriate
order should have been passed.
17)   Second submission of learned  counsel  for  the  appellants  was  that
there was no material on the basis of  which  the  decision  to  cancel  the
appellants’ results could have been taken by the State/Vyapam. It was  urged
that in any event such material was neither sufficient and nor relevant  for
cancellation of the results and, more so, since it was not supplied  to  the
appellants, the same was of no consequence.
18)   Third submission of learned counsel for the appellants  was  that  the
decision  to  cancel  the  results  was  not  taken  immediately  after  the
examinations were over but was taken after a considerable  delay  and  since
in the meantime, the appellants on the basis of the  results  altered  their
position and successfully completed their MBBS degree course  or  are  about
to complete in near future, the cancellation of the  results  done  at  such
belated stage is not justified being inequitable and unreasonable and  hence
deserve to be  set  aside.  In  the  alternative,  it  was  urged  that  the
appellants be allowed to prosecute their studies on suitable terms  as  this
Court may deem fit and proper to impose on the appellants.
19)   Fourth submission of learned  counsel  for  the  appellants  was  that
since the constitution of Vyapam (Board) was  not done  in  accordance  with
the requirements of  the  M.P.  Professional  Examination  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  Board  was  legally
constituted in accordance with the provisions of the Act  and  if  not  then
its effect on the controversy involved in these cases.
23)   Before we examine the aforementioned questions,  it  is  necessary  to
take note of the law laid down by this  Court  especially  the  law  dealing
with the cases of “copying” and “mass copying”.
24)   The first leading case of  this  Court  (Five-  Judge  Bench)  on  the
question  of “copying” is Board of High School  and  Intermediate  Education
U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, AIR 1962 SC 1110 =  1962
Supp (3) SCR 36. The facts of this case were that 3 students of  G.S.  Hindu
Intermediate College of  Sikandrarao  appeared  in  Intermediate  (Commerce)
Examination in 1954. These 3 students passed the  examination.  In  December
1954, their fathers/guardians received  information  that  the  Examinations
Committee had cancelled their results and debarred them  from  appearing  in
examination to be held in 1955.
25)   These 3 students thereupon filed  writ  petition  in  the  High  Court
contending  that  the  Examinations  Committee  had   never   afforded   any
opportunity to them to rebut the allegations  made  against  them  and  that
they were never informed about the nature of unfair means used  by  them  in
the examination.
26)   The majority  of  Judges  of  the  High  Court,  who  heard  the  writ
petition, accepted the writ petitioners’ contention  and  allowed  the  writ
petition. The Board, therefore, filed an appeal to this  Court.  This  Court
affirmed the view  taken  by  the  High  Court.  Construing  powers  of  the
Examination Committee, in Rule 1 (1) of the  Regulations,  this  Court  held
that the Examination Committee was acting  as  quasi-judicially  body  while
exercising powers under Rule 1 (1) and,  therefore,  principles  of  natural
justice should have been observed. Justice Wanchoo speaking  for  the  Bench
held as follows:
      “11….. We  are  therefore  of  opinion  that  the  Committee  when  it
exercises its powers under Rule 1(1)  is  acting  quasi-judicially  and  the
principles of natural justice which require that the other  party,  (namely,
the examinee in this case) must be heard,  will  apply  to  the  proceedings
before the Committee. This view was taken by  the  Calcutta  High  Court  in
Dipa Pal v. University of Calcutta, AIR 1952 Cal 594 and B.C. Das  Gupta  V.
Bijoyranjan Rakshit, AIR 1953 Cal 212 in similar  circumstances  and  is  in
our opinion correct.”

27)   The second leading 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 aside the order of the High Court and while upholding  the  cancellation
of the result dismissed the writ petition filed by the two candidates.
30)   Justice Gajendragadkar (as His Lordship then  was)  speaking  for  the
Three-Judge Bench in his distinctive style of writing held in Paras  11  and
12 as under:-
“11. Before the High Court,  a  statement  was  filed  showing  the  seating
arrangement in Room No. 10 where the respondent was sitting for writing  his
answers. It appears that he was No. 3 in the  3rd  row,  whereas  the  other
candidate with Roll No. 94733 was No. 4 in the second row.  The  High  Court
was very much impressed by the fact  that  the  respondent  could  not  have
looked back and copied from the answer-book of the other candidate, and  the
High Court did not think that there was any evidence to show that the  other
candidate  could  have  copied  from  the  respondent's   paper   with   his
connivance. We have looked at the incorrect answers  ourselves  and  we  are
not prepared to hold that the identical incorrect answers were given by  the
two candidates either by accident or by coincidence. Some of  the  incorrect
answers, and, particularly, the  manner  in  which  they  have  been  given,
clearly suggest that they were the result of either  one  candidate  copying
from the other, or  both  candidates  copying  from  a  common  source.  The
significance of this fact has been completely missed by the High Court.  The
question before the Enquiry Committee had to be decided by it in  the  light
of the nature of the incorrect answers themselves,  and  that  is  what  the
Enquiry Committee has done. It would, we think, be inappropriate in  such  a
case to require direct evidence to  show  that  the  respondent  could  have
looked back and copied from the answer written by the  other  candidate  who
was sitting behind him. There was still  the  alternative  possibility  that
the candidate sitting behind may have copied from the  respondent  with  his
connivance. It is also not unlikely that the two candidates may have  talked
to each other. The atmosphere prevailing in the Examination  Hall  does  not
rule  out  this  possibility.  These  are  all  matters  which  the  Enquiry
Committee had to consider, and the fact that the Enquiry Committee  did  not
write an elaborate report, does not mean that it did not  consider  all  the
relevant facts before it came to the  conclusion  that  the  respondent  had
used unfair means.
12. In dealing with petitions of this type, it is necessary to bear in  mind
that educational institutions like the Universities or Appellant  1  set  up
Enquiry Committees to deal with the problem posed by the adoption of  unfair
means by candidates, and normally it is  within  the  jurisdiction  of  such
domestic Tribunals to decide all relevant questions  in  the  light  of  the
evidence adduced before them. In  the  matter  of  the  adoption  of  unfair
means, direct evidence may sometimes  be  available,  but  cases  may  arise
where direct evidence is not available and the  question  will  have  to  be
considered in the light of probabilities and circumstantial  evidence.  This
problem which educational institutions have to face from time to time  is  a
serious problem and unless there is justification to do  so,  courts  should
be slow to interfere with the decisions of domestic Tribunals  appointed  by
educational bodies like the Universities. In dealing with  the  validity  of
the impugned orders passed by  Universities  under  Article  226,  the  High
Court  is  not  sitting  in  appeal  over  the  decision  in  question;  its
jurisdiction is limited and though it is true that if the impugned order  is
not supported by any evidence at all, the High Court would be  justified  to
quash that order.  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  interfering  with  the   order   passed   against   the
respondent.”

31)   In the third leading case of Bihar School Examination Board vs  Subhas
Chandra Sinha & Ors. (1970) (1) SCC  648,  this  Court  (Three-Judge  Bench)
examined the question of    "mass  copying"  or  I  may  say  “unfair  means
practiced  on  a  large  scale  in  examination”  and  how   the   concerned
authorities and the courts qua the candidates should deal with such case.
32)   The facts of this case were that the Bihar  School  Examination  Board
(for short "Board”) conducted annual Secondary  School  Examination  in  the
State of Bihar. Several candidates appeared at various centres all over  the
State. 36 students of two schools  namely,  S.S.H.E  School  Jagdishpur  and
H.E. School Malaur of District Shahbad (Bihar) appeared in  the  examination
at Hanswadih Centre. The results of all  the  candidates  were  declared  in
papers except the results of the 36 candidates of the two  schools  who  had
appeared in the examination from Hanswadih Centre. After sometime, news  was
published in the paper  that  the  examinations  of  all  subjects  held  at
Hanswadih Centre were cancelled and the reason given  for  cancellation  was
that the candidates at this Centre practiced unfair means on a large  scale.
However, the candidates of  this  Centre  were  allowed  to  appear  in  the
supplementary Secondary School Examination.
33)   The candidates challenged the order of cancellation of  their  results
in writ petition in the High Court  of  Patna  on  the  ground  that  before
cancelling 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.  If  it  is  not  a
question of charging any one individually with unfair means but  to  condemn
the examination as ineffective for the purpose it was held. Must  the  Board
give an opportunity to all the  candidates  to  represent  their  cases?  We
think not. It was not necessary for the Board to give an opportunity to  the
candidates if the examinations as a whole were being  cancelled.  The  Board
had not charged any one with unfair means so that he could claim  to  defend
himself. The examination was vitiated by adoption of unfair means on a  mass
scale. In these circumstances it would be wrong to  insist  that  the  Board
must hold a detailed inquiry into the matter  and  examine  each  individual
case to satisfy itself which  of  the  candidates  had  not  adopted  unfair
means. The examination as a whole had to go.

14. Reliance was placed upon Ghanshyam Das Gupta case 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 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 of the 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 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.”

36)   In the fourth  leading  case  of  Prem  Parkash  Kaluniya  Vs.  Punjab
University and Ors., (1973) 3 SCC 424, which involved identical facts  alike
the facts of the case of Bagleshwar Prasad (supra)  involving  two  students
whose results were cancelled on the ground of using unfair means of  copying
in the examination, this Court (Three-Judge Bench) relied on facts  and  law
laid down in Bagleshwar Prasad (supra) and upheld the  cancellation  of  the
results.
37)   Justice Grover speaking for the Bench held  in  paras  11  and  12  as
under:-
“11. A good deal of emphasis had been laid on the answers which  were  given
by  the  two  candidates  and  our  attention  had  been  invited   to   the
discrepancies between the details  of  the  answers  contained  in  the  two
answer books. It was further pointed out that the appellant had  made  rough
calculations at the back of the answer book which showed that he had  worked
out the answer on his own without the aid of any other  source  which  could
be regarded as common from which the other candidate  was  alleged  to  have
copied. These, however, are matters on which the court  cannot  entertain  a
petition under Article 226. It was for the Standing Committee to  arrive  at
its own conclusion on the evidence before it and  the  same  cannot  be  re-
examined except on very limited grounds which have not been established.  We
are also unable to see how the finding of the Standing  Committee  could  be
regarded as vague or as having been based on no evidence.

12. In Board of High School and Intermediate Education, U.P.  v.  Bagleshwar
Prasad in which the facts were very similar, it was held that  the  identity
of the wrong answers given by the respondent in that case with that  of  the
other candidate bearing the consecutive Roll Number rendered the  charge  of
the respondent having employed unfair means highly  probable  and  that  the
findings  of  the  enquiry  committee  based  upon  such  probabilities  and
circumstantial evidence could not be said to be based on no evidence  as  in
such matters direct  evidence  quite  often  cannot  be  available.  It  was
further pointed out that in dealing with these cases the  problem  faced  by
such institutions should be appreciated by the High Court  and  so  long  as
the 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 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 or 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.  Further,  in  this  case,  the
first examinations were held on 19-4-1998. The same stood cancelled  by  the
order made on 15-5-1998. Fresh  examinations  were  held  on  11-7-1998  and
results have been published on 29-7-1998. Interviews were  however  held  on
29-7-1998 (sic 27-8-1998) in such cases. The  events  have  taken  place  in
quick succession. The  parties  have  approached  the  court  after  further
examinations  were  held  and  after  having  participated  in  the   second
examination. It is clear that such persons would  not  be  entitled  to  get
relief at the hands of the court. Even if they had not participated  in  the
second examination, they need not have waited  till  the  results  had  been
announced and then approached the  Tribunal  or  the  High  Court.  In  such
cases, it would lead to  very  serious  anomalous  results  involving  great
public inconvenience in holding fresh examinations for  a  large  number  of
candidates and in Anantapur  district  alone  nearly  1800  candidates  were
selected as  a  result  of  the  examinations  held  for  the  second  time.
Therefore, we think, the High Court ought not to have  interfered  with  the
order made by the Government on 15-5-1998  in  cancelling  the  examinations
and holding fresh examination.”

40)   In the sixth case of Union Public  Service  Commission  vs.  Jagannath
Mishra, (2003) 9 SCC 237, the facts were  identical  to  the  facts  of  the
cases of Bagleshwar Prasad and Prem Prakash Kalunia (supra).  In  this  case
also two candidates sitting in close proximity in examination centre  copied
from each other. The committee examined their answer papers and  found  that
answers were matching  with  each  other.  Their  results  were  accordingly
cancelled which led to filing of petition  first  before  the  Tribunal  and
then to the High Court successfully. However, when the matter came  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 criminal charges.  The  Court  had  further  held  that  where
findings are  based  on  probabilities  and  circumstantial  evidence,  such
findings cannot be said to have been based on no evidence.  From  the  facts
alleged, it is crystal clear that the respondent was  a  brilliant  student.
But, if a brilliant student is found to have adopted any unfair means  in  a
competitive examination, he will have to bear the consequences of the  same.
Since we ourselves have examined the two answer papers in question and  have
come to the conclusion that but for the  assistance  or  connivance  of  the
respondent in some way or the other, it would not  have  been  possible  for
the other candidate to answer his question paper in the manner in  which  he
has answered, who  was  sitting  just  behind  the  respondent,  we  see  no
justification for the Tribunal to interfere with  the  conclusion  of  UPSC.
The judgment of this Court on which the Tribunal as well as the  High  Court
has placed reliance will have no application to the case in  hand.  In  that
view of the matter, we are of  the  considered  opinion  that  the  Tribunal
committed serious error in interfering with the conclusion of  UPSC  and  in
interfering  with  the  punishment  awarded  by  it.  The  High  Court  also
committed error in affirming the said decision of the Tribunal. It  is  true
that  there  has  been  no  report  from  the  invigilator  indicating   any
malpractice by the respondent or the person  who  was  sitting  behind  him.
But, mere absence of such report would not be sufficient  to  exonerate  the
delinquency, if otherwise a conclusion could be arrived at that but for  the
assistance of the respondent the candidate  sitting  behind  him  could  not
have copied in the manner he has done. The Tribunal  as  well  as  the  High
Court committed serious error by giving extra weightage for the  absence  of
any report from the invigilator. It cannot  be  held  as  a  principle  that
wherever there is no report from  the  invigilator  indicating  adoption  of
malpractice in any examination the appropriate authority cannot come to  the
conclusion about the adoption of malpractice. It  would  always  be  a  case
depending upon the materials produced and there  would  be  no  bar  for  an
expert body to come to a definite conclusion about adoption  of  malpractice
in an examination even in the absence of a  report  of  the  invigilator  to
that effect. It would always be a question of fact  to  be  decided  on  the
basis of materials 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 petitions against  this  order  in  Calcutta
High Court. The learned single Judge allowed  the  writ  petition  and  held
that B.S.N.L  could  not  prove  that  it  was  a  case  of  “mass  copying”
attributable  to  candidates.  The  appeal  filed  by  B.S.N.L  having  been
dismissed by the Division Bench, the  matter  came  to  this  Court  at  the
instance of B.S.N.L. This Court allowed the appeal, set aside the orders  of
High Court and dismissed the candidates’ writ petition.
43)   Referring to and placing reliance  on  all  the  aforementioned  cases
referred to above, Justice Nijjar speaking for the Bench held  in  paras  28
and 33 as under:-

“28. We are of the considered opinion that  the  procedure  adopted  by  the
appellants cannot be said to be unfair or arbitrary.  It  was  a  reasonable
and fair procedure adopted in the peculiar circumstances  of  the  case.  It
cannot be said to be in breach of rules  of  natural  justice.  It  must  be
remembered that rules of  natural  justice  are  not  embodied  rules.  They
cannot be put in a straitjacket. The purpose of rules of natural justice  is
to  ensure  that  the  order  causing  civil  consequences  is  not   passed
arbitrarily. It is not that in every case there must be  an  opportunity  of
oral hearing.

33. As noticed earlier, in the present case, the appellants  had  adopted  a
very reasonable and a fair approach. A  bona  fide  enquiry  into  the  fact
situation was conducted by a  committee  of  high-ranking  officers  of  the
Department. In our  opinion,  the  High  Court  was  wholly  unjustified  in
interfering with the decision  taken  by  the  appellants  in  the  peculiar
circumstances of the case. It is settled beyond  cavil  that  the  decisions
taken  by  the  competent  authority  could  be  corrected  provided  it  is
established that the decision is so perverse that no  sensible  person,  who
had applied his mind to the question to be decided  could  have  arrived  at
it. The aforesaid principle is based on the ground of irrationality  and  is
known as the Wednesbury principle. The court can interfere with a  decision,
if it is so absurd that no reasonable authority  could  have  taken  such  a
decision. In our opinion, the procedure adopted by the appellants cannot  be
said to be suffering from any such irrationality or unreasonableness,  which
would have enabled the High Court to interfere with the decision.”

44)   After examining the facts and the  law  laid  down  in  abovementioned
seven cases, in my opinion, the ratio  laid  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
there is adequate material to prove that the copying was done by  individual
candidate or by the candidates on a large scale then even if no  report  was
submitted by any invigilator of any such incident yet  it  would  be  of  no
significance; Seventh, the Court should not act as an appellate  Court  over
the decision of Expert Committee to examine the issue  of  “copying”  or/and
“mass copying”, i.e., copying done on a large  scale  by  vast  majority  of
candidates and more so when the Expert Committee  has  found  the  candidate
guilty of resorting to unfair means; Eighth, the Court  should  be  slow  to
interfere in the decision taken by  the  Expert  Committee  in  such  cases;
Ninth,  if wrong answers  of  two  candidates  sitting  in  close  proximity
tallies with each other then it would be a strong  circumstance  of  copying
done by these two candidates; Tenth, this Court has consistently  maintained
a distinction between a case of “copying”  and “mass copying”, i.e.  copying
done on a large scale by vast majority of candidates for applying the  rules
of natural justice to the case. In the case  of  former,  rules  of  natural
justice would be applicable  and  hence  show  cause  notice  to  individual
candidate who is accused of doing copying will have  to  be  given  to  such
candidate whereas in the case of later, the rules  of  natural  justice  are
not applicable and hence it is not necessary to give any show  cause  notice
to any candidate involved in mass copying; and Eleventh, the use  of  unfair
means  by  any  candidate  is  a  serious  matter  because  it  affects  the
credibility of the examination and, therefore,  once  such  charge  is  held
proved against any such  candidate,  the  matter  needs  to  be  dealt  with
sternly in relation to erring candidates.
45)   When I examine the facts of the case at hand in  the  light  of  ratio
laid down in the  aforementioned cases, then I find that the  facts  of  the
case at hand are identical partly to the facts of the case of  Bihar  School
Examination Board (supra) and partly to the facts of Bagleshwar  Prasad  and
Prem Prakash (supra). This I say for the following reasons.
46)   First, this is a case where large number of candidates (more than  two
hundred) in the examinations held from 2008 to 2012 were found  involved  in
copying like what was noticed  in  the  case  of  Bihar  School  Examination
(supra) where 36 candidates were found involved in copying.   Second,  there
was uniform pattern  adopted  by  the  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 was found sufficient  by  the  Expert  Committee  to
form an opinion that it was a case of “mass copying”.  In  addition  it  was
also established on  probabilities  and  circumstantial  evidence  that  the
candidates in large scale which included the appellants  did  mass  copying;
Eighth, the Expert  Committee  examined  the  issues  from  all  angles  and
analyzed the material seized for coming to a conclusion that it was  a  case
of “mass copying” done by the candidates in large  scale  as  a  part  of  a
planned strategy and that they used  unfair  means;  Ninth,  allegations  of
mala fides were not alleged in the writ petitions by any  candidate  against
any member of Expert Committee or/and officials of the State/Vyapam;  Tenth,
the  writ court rightly did not act as an appellate  court  to  reverse  the
decision of Expert Committee; Eleventh, the formula evolved  by  the  Expert
Committee was usually applied in such type of cases by various  institutions
and no perversity or/and arbitrariness was shown by the  appellants  in  the
formula except to contend that it was not a proper formula; and lastly,  the
expression "mass copying" not being  defined  in  any  Act/Regulation/Rules,
its meaning in ordinary parlance can be  summed  up  as  "sizable  or  large
number of candidates found  copying  or  discovered  to  have  copied  while
answering their question paper by using unfair means  in  examination".   In
my view, this fully applies to the facts of the case at hand.
47)    I am not impressed by the submissions  of  learned  counsel  for  the
appellants when they made attempt to find fault in the  material  relied  on
by the State/Vypaym against the appellants and contended that it  is  not  a
material at all, and in any event, it is irrelevant and  hence  can  not  be
looked into for any purpose. It  was  also  urged  that  since  it  was  not
supplied to the appellants and hence it is of no use.
48)   As held above, Firstly, neither the writ  court  and  nor  this  Court
could sit as an appellate Court over the decision of  the  Expert  Committee
and find fault in the material relied on by  the  Committee;  Secondly,  the
method evolved by the experts was usually applied to find out as to  whether
two candidates had copied from each  other  and  hence  no  fault  could  be
noticed in it; Thirdly, the decision to cancel  the  results  was  based  on
other contemporaneous material  seized  during  the  investigation  by  STF;
Fourthly, the decision to cancel the results was  not  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 breach of rules of natural justice  which  has  no
application to the facts of this case as held in the cases of  Bihar  School
Examination and BSNL (supra). It  is  a  settled  principle  that  rules  of
natural justice are not embodied rules and hence such rules  cannot  be  put
in a strait-jacket.  The object of the rules of natural justice, is only  to
ensure  that  order  causing  civil  consequences  should  not   be   passed
arbitrarily.  It is not that in every case, there must be an opportunity  of
oral hearing to person concerned. This principle, in  my  view,  applies  to
the case at hand.
51)   This takes me to the  next  submission  of  learned  counsel  for  the
appellants, namely, that since there was  inordinate  delay  in  taking  the
decision to cancel the examination and in the meantime the  appellants  have
altered their position by completing their degree course, or  are  about  to
complete the Course in near future and hence this Court should  protect  the
appellants’ interest on equitable considerations. I do not agree.
52)   The issue of somewhat similar nature was examined  by  this  Court  in
the  case  of  Ram  Preeti   Yadav  vs.  U.P.  Board  of  High  School   and
Intermediate Education and Ors., (2003) 8  SCC  311.    In  this  case,  the
facts were that in the year 1984,  Mr.  Mahendra  Pratap  Yadav  (respondent
No.3 therein) appeared as  private  candidate  in  intermediate  examination
conducted by U.P.Board  of  High  School  and  Intermediate  Education.  Mr.
Yadav's result was withheld as a suspected case of  using  unfair  means  in
the examination. He was, however, issued two  provisional  mark  sheets.  In
one mark sheet, it was mentioned that his result is  withheld  (WB)  whereas
in other it was not. Mr. Yadav  on  the  basis  of  provisional  marks-sheet
which did not mention withholding of his result took admission in  B.A.  and
cleared the examination. He also thereafter  cleared  M.A.  examination.  He
was then selected as a teacher. In the  year  1993,   an  inquiry  was  made
pursuant to which he was informed in 1996 that his intermediate  examination
result, which was held in the year 1984,  is cancelled.
53)   Challenging the cancellation of his  result,   Mr.  Yadav  filed  writ
petition in the High Court at Allahabad on three grounds:  Firstly,  he  was
not afforded any opportunity of hearing before  his  result  was  cancelled;
Secondly, the cancellation of the result was done after almost 10 years  and
hence it is wholly  arbitrary;  and  Thirdly,  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:-
“2. We feel a little distressed that in matter  like  this  the  High  Court
should   have    interfered    with    the    decision    taken    by    the
Board…........................ In the face of this material, we do  not  see
any justification in the High Court  having  interfered  with  the  decision
taken by the Board to treat the examination as cancelled. It is  unfortunate
that  the  student  community  resorts  to  such  methods  to   succeed   in
examinations and then some of them come forward  to  contend  that  innocent
students become victims of  such  misbehaviour  of  their  companions.  That
cannot be helped. In such a situation the Board is left with no  alternative
but to cancel the examination. It is extremely difficult for  the  Board  to
identify the innocent students from those  indulging  in  malpractices.  One
may feel sorry for the innocent students  but  one  has  to  appreciate  the
situation in which the Board was  placed  and  the  alternatives  that  were
available to it so  far  as  this  examination  was  concerned.  It  had  no
alternative but to cancel the results and we think,  in  the  circumstances,
they were justified in doing so. This  should  serve  as  a  lesson  to  the
students  that  such  malpractices  will  not  help  them  succeed  in   the
examination and they may have to go through the drill once  again.  We  also
think that those in charge of  the  examinations  should  also  take  action
against  their  Supervisors/Invigilators,  etc.,  who  either  permit   such
activity or become silent spectators thereto. If they feel insecure  because
of the strong-arm tactics of those who indulge in malpractices,  the  remedy
is to secure the services of  the  Uniformed  Personnel,  if  need  be,  and
ensure that students do not indulge in such malpractices.”

56)   This Court then equated the incident of this nature with fraud  played
by the candidate and held in Paras 13,14 and  26 of Ram Preeti Yadav’s  case
which read as under:
“13. Fraud is a conduct either by letter or words, which induces  the  other
person or authority to take a definite determinative stand as a response  to
the conduct of the former either by words or letter. Although negligence  is
not fraud but it can be evidence on fraud. (See Derry v. Peek, (1889) 14  AC
337)
14. In Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341,  the  Court  of
Appeal stated the law thus: (All ER p. 345 C-D)
“I cannot accede to this argument for a moment. No court in this  land  will
allow a person to keep 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 Court  was  not  impressed
by such submission and rejected it in express terms. So  is  the  case  here
where delay in cancellation of the result is less as compared  to  the  case
of Mr. Yadav. That apart, the case at hand prima facie  established  a  case
of “mass copying” attributable to the  appellants  who  resorted  to  unfair
means in a planned way in the PMT examination and lastly,  when  any  action
is done discretely, it takes times to discover.
59)   Learned counsel for the appellants placed reliance upon  the  decision
in Priya Gupta Vs. State of Chhattisgarh and ors.,  (2012)  7  SCC  433  and
contended that this Court should invoke  its  extra-  ordinary  jurisdiction
under Article 142 of the Constitution as was exercised in the case of  Priya
Gupta  for  granting  relief  to  the  appellants  on  equitable  terms  and
conditions and allow the appellants to continue their study in  MBBS  Degree
course. I cannot accept this submission for more than one reason.
60)   First, the facts of the case at hand and the  facts  of  the  case  of
Priya Gupta (supra) are not similar because in the case of Priya Gupta,  the
right of only one candidate was involved whereas in the case at  hand  large
number of candidates are involved.  Second,  when  this  Court  invokes  its
extra-ordinary jurisdiction under Article 142 of the Constitution  which  is
indeed rare and should indeed be rare  for  its  invocation,  it  is  always
confined to the particular facts of that case and cannot be cited as  a  law
laid down by this Court.  Third, when in similar type of cases,  this  Court
did  not  grant  any  equitable  relief  to  the  erring  candidates  except
permitted the candidates to appear in  the  supplementary  examination  (see
Para 2 of Bihar School Examination case (supra) at page 649  of  the  report
where this Court upheld such direction while allowing the  appeal  filed  by
Board), then in my view, the same principle should apply to this case  also.
 Fourth, once the cancellation of  the  Examination  results  is  upheld  as
being just, legal and proper, then its natural consequence  must  ensue.  In
other words, once the examination is cancelled  irrespective  of  ground  on
which it is cancelled then candidates whose results are  cancelled  have  to
repeat the examination whenever it is held.  They can not take  any  benefit
of such examination  like  those  candidates  who  successfully  passed  the
examination with their merit. Fifth, having regard  to  the  nature  of  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  Colleges  by  illegal  means.  Seventh,
this is not a case where the appellants’  results  were  cancelled  on  some
technical ground and that too attributable to the State. In other words,  if
the  cancellation  had  been  done  on  a  cause  not  attributable  to  the
appellants  then  perhaps  this  Court  would  have  considered   grant   of
appropriate prayer to the appellants. However, such is not  the  case  here.
Eighth, grant of any equitable relief, as prayed  by  the  appellants,  once
they are held responsible for cancellation of  their  results  would  affect
the creditability in conducting the examination and cause more harm  to  the
candidates  as  a  whole  and  especially  those  who  prepare   for   their
examination sincerely and on their merit.   In  my  view  it  will  not  be,
therefore, in larger public good in long run to entertain any  such  prayer.
Ninth, since the appellants, are in their youth, they can  still  appear  in
the examination and clear it with distinction by proving their  merit.   And
lastly, grant of any such relief  to  the  appellants  may  amount  to  some
extent  travelling  beyond  the  real  controversy  and  may  be  considered
inconsistent with the main findings rendered by this Court.
61)    In  these  circumstances,  the  State  may  consider  permitting  the
appellants and other candidates  alike  the  appellants  to  appear  in  the
competitive examination whenever  it  is  held  and  consider  granting  age
relaxation to those candidates who crossed the  age  limit,  if  prescribed.
Such liberty, if granted, would not  cause any prejudice to any one  and  at
the same time would do substantial justice to all  such  candidates  as  was
done in the case of Bihar School Examination (supra).  Beyond  this,  in  my
view, the appellants are not entitled to claim any indulgence.
62)   Learned counsel for the appellants cited several cases, such as  Union
of India & Anr. Vs. Tulsiram Patel, (1985) 3 SCC 398,  Dr.  Dinesh  Kumar  &
Ors. vs. Motilal Nehru Medical College, Allahabad & Ors., (1985) 3 SCC  542,
State of Maharashtra & Ors. vs. Jalgaon Municipal Council & Ors.,  (2003)  9
SCC 731 and Situ Sahu & Ors. vs. State of Jharkhand &  Ors.,  (2004)  8  SCC
340 etc. in support of their submissions.  Perusal of these decisions  would
show  that   this  Court  in  these  decisions  has  explained  the  general
principle of rules of  natural justice and how this principle is  applicable
to a particular case.
63)   This Court has laid down in these  cases  that  the  applicability  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 order  dated  08.08.2014
has dismissed one S.L.P. (c) No. 16257 of 2014 in limine arising out of  the
order of the High Court dated 11.04.2014 in W.P. No. 20342 of 2013  entitled
Km. Pratibha Singh & Ors. vs. State &  Ors.  and  other  connected  matters.
This writ petition was filed by the candidates who had appeared in  the  PMT
examination held in the year 2013.  The results  of  these  candidates  were
also cancelled on the same grounds on which it was cancelled  in  the  cases
at hand. i.e., in relation to candidates of the years  2008  to  2012.   The
High Court by order  dated  11.04.2014  dismissed  the  writ  petitions  and
upheld the cancellation of the results. In fact, the  impugned  judgment  in
this case has followed in extenso the main  decision  rendered  in  Pratibha
Singh’s case (supra).  Since it was a dismissal of  SLP  in  limine  and  as
rightly argued by the learned counsel for the appellants that there  was  no
merger of the decision of the High Court and  nor  it  could  be  considered
that this Court affirmed the view  taken  by  the  High  Court  in  Pratibha
Singh’s case (supra), we considered in  the  interest  of  justice  to  hear
these matters in detail and record our reasons.
66)   It was then brought to our notice by  the  learned  counsel  appearing
for the State/Vyapam that pursuant to FIR registered  in  these  cases,  the
investigation is still going on by the CBI as directed by  this  Court  vide
an order passed in pending special leave petition.  It  is  stated  that  in
several  cases, charge sheets have been filed  against  several  accused  in
Courts.
67)   It is accordingly made clear that any observation made by  this  Court
in this judgment would not, in any way, influence the ongoing  investigation
and any pending criminal case.  It is also made clear that  this  Court  has
examined the issue relating to cancellation  of  results  in  the  light  of
grounds raised by the appellants in  the  writ  petitions  and  the  special
leave petitions.  In this view of  the  matter,  ongoing  investigation  and
pending  criminal  cases  will  be   dealt  with  and  decided  strictly  in
accordance with law uninfluenced by any observation made hereinabove.
68)   Before parting,  it is considered apposite to observe that it is  well
known that the Examination is always considered as one of  the  major  means
to assess and evaluate candidate’s skills  and  knowledge  be  it  a  school
test, university  examination,  professional  entrance  examination  or  any
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/States), educational bodies/Institutions to ponder over and  evolve
a uniform policy  in  a  comprehensive  manner  to  firmly  deal  with  such
activities in the larger public good. It is hoped  that  effective  remedial
steps would be taken in that regard.
71)   In view of foregoing discussion, I find no  merit  in  these  appeals.
All the appeals thus fail and are accordingly dismissed. No Costs.


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]
      New Delhi,
      May 12, 2016.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELALTE JURISDICTION

                 CIVIL APPEAL  NO(S).1727 OF 2016

NIDHI KAIM                                      APPELLANT(S)

                                VERSUS

STATE OF M P AND ORS ETC                       RESPONDENT(S)

                                  WITH

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.

 

                                  O R D E R

      In view of the divergence of opinion in terms  of  separate  judgments
pronounced by us in these appeals today, the Registry is directed  to  place
the papers before  Hon'ble  the  Chief  Justice  of  India  for  appropriate
further orders.

                                                     …....................J.
                                  (J. CHELAMESWAR)

 

                                       …....................J.
                                       (ABHAY MANOHAR SAPRE)
NEW DELHI
MAY 12, 2016


-----------------------
[1]

 

 


       [2]   Section  3.  Incorporation  of  the  Board.  –  (1)  The  State
Government shall establish by a notification,  a  Board  to  be  called  the
Madhya Pradesh Professional Examination Board with effect from such date  as
may be specified in the notification.
      (2)  The Board shall be a body corporate by the  name  of  the  Madhya
Pradesh Professional Examination Board and shall have  perpetual  succession
and a common seal with power to acquire and hold property, both movable  and
immovable and shall have power to transfer any property held by  it  and  to
contract and  do  all  other  things  necessary  for  the  purposes  of  its
constitution and may sue or be sued in its corporate name.
[3]
      [4]  For the details of the executive orders, See Ku.  Pratibha  Singh
(Minor) v. The State of Madhya Pradesh & Others, 2014 (III) MPJR 178
[5]

 

 


      [6] The nature of the enquiry was discussed  by  Madhya  Pradesh  High
Court in great detail in the judgment of Ku. Pratibha Singh (Minor)  v.  The
State of Madhya Pradesh & Others, 2014 (III) MPJR 178

[7]
      [8]  (a) In reference to  above  subject,  it  is  submitted  that  on
conducting inquiry from the accused arrested  in  the  cases  registered  in
connection with referenced examination and  other  examinations  in  S.T.F.,
M.P. Bhopal and even in so far as the accused arrested by your  office  have
stated regarding forgery in these examination.  Accused  Jagdish  Sagar  and
Sanjiv Shilpkar arrested in the S.T.F. Crime No.12/2013, under Section  420,
467, 468, 471, 120 B I.P.C., 3(D)1, 2/4 M.P. Recogniltion  Examination  Act,
1937 have stated regarding forgery for  setting  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.”

[9]
      [10]Year              Number of Student
      2012                        319
      2011                        98
      2010                        90
      2009                        85
      2008                        42

[11]
            Year Total number of students who appeared in the PMT
            2008       38,378
            2009       29,162
            2010       26,711
            2011       26,116
            2012       38,671

[12]
      [13]. The Circumstances are:-
      (i)   with respect to each of the five years in question,  a  definite
pattern was followed by the BOARD in allotment of Roll numbers  as  well  as
examination centres.  But, it is detected on enquiry that allotment of  both
the Roll number and the examination centre  with  respect  to  some  of  the
students was in deviation from the pattern adopted for the year;

      Such deviations with reference to several centres occurred  in  pairs.
The logical pattern employed for the generation of Roll numbers  was  broken
with respect to some pairs of students.  They were allotted sequential  Roll
numbers, though they could not have  been  allotted  those  numbers  if  the
logical pattern  were  followed.   Further,  such  pairs  of  students  were
allotted examination Centres which they could not have been allotted  having
regard to Roll numbers allotted  to  them,  and  the  pattern  of  the  Roll
numbers allotted to the particular examination Centre.

      (iii) in such pairs, once again there  is  a  pattern  i.e.  the  more
accomplished student is made to sit in  front  of  the  other  of  the  pair
(referred  to  in  the  impugned  judgment  as  “Scorer”  and  “beneficiary”
respectively).  Such  an  arrangement  was  made  in  order  to  enable  the
“beneficiary” to copy from the “scorer”;

      (iv)  with reference to most of the identified pairs,  the  candidates
not only got substantially similar (if not identical) marks, but also  their
answers, both correct and incorrect, with  reference  to  each  one  of  the
questions answered by them matched to a substantial extent.

      in most of the cases of the identified pairs,  the  ‘scorer’  did  not
belong to Madhya Pradesh.

      Such ‘scorers’ in most of the cases though secured  sufficiently  high
marks in the PMT, did not take admission in any one of the medical  colleges
of Madhya Pradesh. The respondents, therefore, believe  that  the  ‘scorers’
were not genuinely interested in securing admission in any  medical  college
of  MP  and  they  appeared  in  the  examination  only  to  facilitate  the
‘beneficiary’ to obtain good marks  to  enable  the  beneficiary  to  secure
admission.

[14]
      [15]  “Para  72.   We  have  already  held  that  the  candidates  had
indulged in mass copying in Pre-Medical Tests, 2008 to 2012  therefore,  for
the 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. ]
[16]
      [17] 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.

[18]
      [19]  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 the rule  of  distribution
of executive powers between the Union and the  States,  following  the  same
analogy as is provided in regard to the distribution of  legislative  powers
between them.    Article 162, with which we are directly concerned  in  this
case, lays down:

      "Subject to the provisions of this Constitution, the  executive  power
of  a  State  shall  extend  to  the  matters  with  respect  to  which  the
Legislature of the State has power to make laws:

      Provided that in any matter with respect to which the  Legislature  of
a State and Parliament have power to make laws, the executive power  of  the
State shall be subject to, and limited by,  the  executive  power  expressly
conferred by this Constitution or by any law made  by  Parliament  upon  the
Union or authorities thereof."

      Thus under this article  the  executive  authority  of  the  State  is
exclusive in respect to matters enumerated in List II of  Seventh  Schedule.
The authority also extends to the Concurrent List except as provided in  the
Constitution itself or in any law  passed  by  the  Parliament.   Similarly,
Article 73 provides that the executive powers of the Union shall  extend  to
matters with respect to which the Parliament has power to make laws  and  to
the exercise of such rights, authority and jurisdiction as  are  exercisable
by the Government of India by virtue of any treaty  or  any  agreement.  The
proviso engrafted on clause (1) further lays down that although with  regard
to the matters in the Concurrent  List  the  executive  authority  shall  be
ordinarily left to be State it would be open to the  Parliament  to  provide
that in exceptional cases the executive power of the Union shall  extend  to
these matters also.
      Neither of these articles  contain  any  definition  as  to  what  the
executive function is and what activities  would  legitimately  come  within
its scope. They  are  concerned  primarily  with  the  distribution  of  the
executive power between the Union on the one hand  and  the  States  on  the
other. They do not mean, as Mr. Pathak seems to suggest,  that  it  is  only
when the Parliament or the  State  Legislature  has  legislated  on  certain
items appertaining to their respective lists, that the Union  or  the  State
executive, as the case may be, can proceed to function in respect to them.
      On the other hand, the language of Article 162 clearly indicates  that
the powers of the State executive do extend to matters upon which the  state
Legislature 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.

[20]
      [21]  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.”

[22]
      [23]  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.
[24]
      [25] Para 12.    In  dealing  with  petitions  of  this  type,  it  is
necessary  to  bear  in  mind  that  educational   institutions   like   the
Universities or Appellant 1 set up  Enquiry  Committees  to  deal  with  the
problem posed by the adoption of unfair means by  candidates,  and  normally
it is within the jurisdiction of  such  domestic  Tribunals  to  decide  all
relevant questions in the light of the evidence adduced  before  them.    In
the matter of the adoption of unfair means, direct  evidence  may  sometimes
be available, but cases may arise where direct  evidence  is  not  available
and the question will have to be considered in the  light  of  probabilities
and circumstantial evidence.  This problem  which  educational  institutions
have to face from time to time is a serious  problem  and  unless  there  is
justification to do  so,  courts  should  be  slow  to  interfere  with  the
decisions of domestic Tribunals appointed by  educational  bodies  like  the
Universities.    In dealing with the validity of the impugned orders  passed
by Universities under Article 226, the High Court is not sitting  in  appeal
over the decision in question; its jurisdiction is limited and though it  is
true that if the impugned order is not supported by  any  evidence  at  all,
the High Court would be justified to quash that order.   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 famed  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.”

      See also: Maharashtra State Board of Secondary  and  Higher  Secondary
Education v. K.S. Gandhi & Others, (1991) 2 SCC 716
      “Para 37. It is thus  well  settled  law  that  strict  rules  of  the
Evidence Act, and the standard of proof envisaged therein do  not  apply  to
departmental  proceedings  or  domestic  tribunal.  It  is   open   to   the
authorities to receive and place on  record  all  the  necessary,  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 made the  method  of  inference  fails  and
what  is  left  is  mere  speculation  or  conjecture.  Therefore,  when  an
inference of proof that a fact in dispute has been  held  established  there
must be some material facts or circumstances on record from  which  such  an
inference could be  drawn.  The  standard  of  proof  is  not  proof  beyond
reasonable doubt “but” the preponderance of probabilities  tending  to  draw
an inference that the fact must be more probable. Standard of  proof  cannot
be put in a strait-jacket formula. No mathematical formula could be laid  on
degree of proof.  The  probative  value  could  be  gauged  from  facts  and
circumstances in a given case. The standard of proof is  the  same  both  in
civil cases and domestic enquiries.”
[26]
      [27] Para 9- The  argument  that  no  one  had  complained  about  the
examination need not detain us. The Tabulators sent their remarks  on  which
investigation was made. The Unfair Means Committee and the  Moderators  gave
their opinion. These were sufficient for taking action. There  was  no  need
to wait for a complaint, nor was a complaint really necessary.  The  results
were withheld so that inquiries could be  completed.  In  the  meantime  the
results of the other  centres  which  were  not  under  suspicion  could  be
declared because in their case there was no reason to withhold publication.
[28]
      [29] Para13. This is not a case of any particular  individual  who  is
being charged with adoption of unfair means but of the conduct  of  all  the
examinees or at least a vast majority of them at a particular centre. If  it
is not a question of charging any one individually with unfair means but  to
condemn the examination as ineffective for the purpose  it  was  held.  Must
the Board give an opportunity to  all  the  candidates  to  represent  their
cases? We think not.  It  was  not  necessary  for  the  Board  to  give  an
opportunity to the candidates if the examinations  as  a  whole  were  being
cancelled. The Board had not charged any one with unfair means  so  that  he
could claim to defend himself. The examination was vitiated by  adoption  of
unfair means on a mass scale. In these circumstances it would  be  wrong  to
insist that the Board must hold a  detailed  inquiry  into  the  matter  and
examine each individual case to satisfy itself which of the  candidates  had
not adopted unfair means. The examination as a whole had to go.
[30]
      [31] Para 11.  This brings us to the crux of  the  problem.  The  High
Court interfered 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                          ..   88%
      10.   Physics                          ..   70%
      11.   Chemistry                  ..    100%
      12.   Advance Mathematics              ..   99%
      13.   Sanskrit                         ..   100%

[32]
       [33]  To  assure  itself  regarding  the  correctness  of  the   said
inference, this Court undertook comparison of the answer papers of  some  of
the students and recorded satisfaction that such answer papers “showed  such
a remarkable agreement in the answers that no doubt was left  in  the  minds
of this Court that the students had assistance from an outside source”.
[34]
      [35] Whether the said circumstances would  be  sufficient  to  connect
any one of the students on a criminal charge is a different question and  we
express no opinion on the same as we  understand  that  criminal  cases  are
registered and are being investigated against some  of  the  appellants  (if
not all) in connection with  the  same  transaction  which  is  the  subject
matter of debate in these appeals.
[36]
      [37] The Expert Committee evolved  a  formula  to  examine  whether  a
conclusion could be reached with respect to the identified pairs  that  they
had resorted to the unfair means.  The facts relevant for the  said  formula
are:
      (1)   the total number of questions answered by  each  number  of  the
pair;
      (2)   the number of correct answers given by each number of  the  pair
and how many of the said correct answers matched;
      (3)   the number of wrong answers matched.

      After determining the above mentioned numbers with respect to each  of
the identified pairs, greater weightage is given to the  incorrect  matching
answers to arrive at a conclusion that the number  of  the  identified  pair
resorted to unfair means at the examination.
[38]
      [39]. Para 6.  “… He admitted that the mistaken  answers  in  the  two
papers were identical and he pleaded that he could not say  anything  as  to
why this happened. …”
      Para 11. “ … We have looked at the incorrect answers ourselves and  we
are not prepared to hold that the identical incorrect answers were given  by
the two candidates either by  accident  or  by  coincidence.   Some  of  the
incorrect answers, and, particularly, the manner in  which  they  have  been
given, clearly suggest that they were the result  of  either  one  candidate
copying from the other, or both candidates copying from a common source.  …”

[40]
      [41]  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) …”.
[42]
      [43]
         “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
Rs.1,95,000 per year for general admission and  for  management  quota,  the
fee payable would be Rs.4,00,000 per year, but in  government  colleges,  it
is Rs.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  charged  in
Jagdalpur College.”

[44]
      [45] They are the beneficiaries of  a  tampered  examination  process.
The tampering took place systematically  and  repeatedly  for  a  number  of
years virtually destroying the credibility of the  examination  process.  It
deprived a number of other more deserving students from securing  admissions
to the medical colleges.

[46]
      [47] See Sections 468 of the Code of Criminal Procedure, 1973
       468.  Bar  to  taking  cognizance  after  lapse  of  the  period   of
limitation.-
      (1) Except as otherwise provided elsewhere  in  this  Code,  no  Court
shall take cognizance of an  offence  of  the  category  specified  in  sub-
section (2), after the expiry of the period of limitation.
      (2) The period of limitation shall be –
      (a) six months, if the offence is punishable with fine only;
      (b) one year, if the offence is punishable  with  imprisonment  for  a
term not exceeding one year;
      (c) three years, if the offence is punishable with imprisonment for  a
term exceeding one year but not exceeding three years.
      (3)  For the purposes of this section, the period  of  limitation,  in
relation to offences which may be tried together, shall be  determined  with
reference  to  the  offence  which  is  punishable  with  the  more   severe
punishment or, as the case may be, the most severe punishment.
[48]
      [49]  See Sections 452, 453 and 456 of the Code of Criminal
Procedure, 1973
      “Section 452.  Order for disposal of property at conclusion of trial.-
 (1) When an inquiry or trial in any Criminal Court is concluded, the  Court
may make such order as it thinks  fit  for  the  disposal,  by  destruction,
confiscation  or  delivery  to  any  person  claiming  to  be  entitled   to
possession thereof or  otherwise,  of  any  property  or  document  produced
before it or in its custody, or regarding which any offence appears to  have
been committed, or which has been used for the commission of any offence.
      (2) An order may be made under sub-section (1)  for  the  delivery  of
any property to any  person  claiming  to  be  entitled  to  the  possession
thereof, without any condition or on condition  that  he  executes  a  bond,
with or without sureties, to the satisfaction  of  the  Court,  engaging  to
restore such property to the Court if the order made under  sub-section  (1)
is modified or set aside on appeal or revision.
      (3) A Court of Session may, instead of itself making  an  order  under
sub-section (1), direct the property to 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 has on his arrest  been
taken out of the possession of the convicted person, the Court may,  on  the
application of such purchaser and on the restitution of the stolen  property
to the person entitled to the possession thereof, order  that  out  of  such
money a sum not exceeding the price paid by such purchaser be  delivered  to
him.


      Section 456. Power to restore possession of immovable  property.-  (1)
When a person is convicted of an offence attended by criminal force or  show
of force or by criminal intimidation, and it appears to the Court  that,  by
such  force  or  show  of  force  or  intimidation,  any  person  has   been
dispossessed of any immovable property, the Court may,  if  it  thinks  fit,
order that possession of the same be restored to that person after  evicting
by force, if necessary, any other person who may be  in  possession  of  the
property:
      Provided that no such order shall be made by the Court more  than  one
month after the date of the conviction.
      (2) Where the Court trying the offence has not  made  an  order  under
sub-section (1), the Court of appeal, confirmation or revision  may,  if  it
thinks fit, make such order while disposing  of  the  appeal,  reference  or
revision, as the case may be.
       (3)  Where  an  order  has  been  made  under  sub-section  (1),  the
provisions of section 454 shall apply in relation thereto as they  apply  in
relation to an order under section 453.
      (4) No order made under this section  shall  prejudice  any  right  or
interest to or in such immovable property which any person may  be  able  to
establish in a civil suit.”

[50]
      [51] See Section 4 of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976
      “Section 4. Prohibition of holding illegally acquired  property.–  (1)
As from the commencement of this Act, it shall not be lawful for any  person
to whom this Act applies to hold any illegally acquired property  either  by
himself or through any other person on his behalf.
      (2)  Where  any  person  holds  any  illegally  acquired  property  in
contravention of the provision of sub- section (1), such property  shall  be
liable to be forfeited to the Central  Government  in  accordance  with  the
provisions of this Act.”

[52]
      [53] See Section 25 of the Hindu Succession Act, 1956
      “Section 25. Murderer disqualified.—A person  who  commits  murder  or
abets the commission of murder shall be  disqualified  from  inheriting  the
property of the person murdered, or any other  property  in  furtherance  of
the succession to which he or she committed or  abetted  the  commission  of
the murder.”


[54]
      [55]  See Section 11 of the Representation of the People Act, 1951
      “Section 11. Removal or reduction of period  of  disqualification.—The
Election  Commission  may,  for  reasons  to   be   recorded,   remove   any
disqualification under this Chapter (except under section 8A) or reduce  the
period of any such disqualification.


[56]
      [57] Section 2(k)  - “juvenile” or “child” means a person who has  not
completed eighteenth year of age; 3[(l)  “juvenile  in  conflict  with  law”
means a juvenile who is alleged to have committed an  offence  and  has  not
completed eighteenth year of age as  on  the  date  of  commission  of  such
offence

[58]
      [59] Community service as an alternative to the traditional
punishment of imprisonment for those found guilty of crime is gaining
currency in some countries.   It appears to me to be more useful to the
society.   I do not see any reason why such a concept cannot be adopted in
the context of situations like the one on hand.

 

  

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