Orissa High Court
Board Of Secondary Education, Orissa, ... vs Gayatri Hota And Others on 27 February, 2001
Equivalent citations: AIR2001ORI131, 2001(I)OLR398, AIR 2001 ORISSA 131, (2001) 1 ORISSA LR 398 (2001) 91 CUT LT 499, (2001) 91 CUT LT 499
Author: A.S. Naidu
Bench: Pradipta Ray, A.S. Naidu
JUDGMENT A.S. Naidu, J.
1. The Board of Secondary Education (hereinafter referred to as 'the Board') has preferred this Letters Patent Appeal, challenging the judgment dated December 6, 2000 passed by the learned Single Judge in O. J. C. No. 9210 of 2000, in exercise of powers conferred under Articles 226 and 227 of the Constitution of India.
2. Respondents 1 to 11, the students of Purohitpur High School in the district of Jagatsingbpur, filed the aforesaid writ application praying for quashing the Notification dated 12-9-2000 cancelling their results of Annual H. S. C. Examination, 2000 on the ground of malpractice. The said Notification is annexed as Annexure-4 to the writ application.
3. Resorting to malpractice in examination has become chronic and serious problem and time has come when the same has to be dealt with utmost firmness and wisdom. It is the duty of the examining bodies-both legally and morally to check malpractice and punish those, who are indulging in it. This Court is always extremely reluctant to interfere with the decision of the constituted authorities in exercise of its jurisdiction under Article 226 of the Constitution of India, but then, unless the allegation of malpractice is proved beyond doubt future life of innocent students should not be permitted to be spoiled for all times to come. Such a finding, if arrived at recklessly, puts a stigma in the future of a student and hunts him throughout his life. Moreover punishment should not also be disproportionately harsh. Thus, a balance has to be arrived at while dealing with such cases.
Law is no more res integra to the effect that, the High Court's power to issue a writ of certiorari is supervisory in nature and the court exercising it is not entitled to act as an appellate court. It flows, therefore, that the finding of fact arrived at on appreciation of evidence cannot ordinarily be re-opened or questioned in a writ proceeding unless interest of justice and lair-play demands it. An error of law or a finding of fact based on no evidence and/or a finding arrived erroneously on wrong interpretation of materials, evidence on the face of the records can be corrected by this court in exercise of supervisory jurisdiction. In the present case, the respondents 1 to 11 who are regular students of a High School along with others appeared at the Annual H. S. C. Examination conducted by the Board in the year 2000. Their results were initially withheld by the Board. After the guardians approached the Controller of Examination, results of 53 students were declared on 1-7-2000 and notified on 4-7-2000, but on the other hand, the Board issued notice to the respondents to show cause as to why appropriate action shall not be taken against them for their involvement in malpractice on the ground that some of the answers were identical in nature with other candidates, The respondents submitted their show cause denying the charges as baseless. Thereafter, a Notification cancelling their results was published which was impugned in the writ application.
4. The candidates (respondents) took a positive stand that they had not resorted to any malpractice or any unfairness in course of examination, inasmuch as no allegation of malpractice was reported by the invigilartor, Centre Superintendent or Flying squad. No incriminating material whatsoever was seized or recovered from any of the respondents. In absence of such reports and materials, only on the allegation that the answers of some of the questions appeared to be identical, results could not have been cancelled and the decision is based on surmise and conjectures. It was also averred in the writ application that in the notice to show cause, there was no mention about the serial number of the questions or roll number of the examinees with whom the answers are found to be identical. Thus, the respondents were prevented from giving specific reply and were constrained to deny the allegations. No opportunity of adducing evidence or hearing was also accorded. Thus, there was gross violation of principles of Natural Justice.
5. After receiving notice, a counter affidavit was filed by the Board in the writ petition. It was averred that while processing the result, it was found that the Centre from which the respondents appeared, had high percentage of pass i.e. 93.33%. Suspecting malpractice, the results of the said centre was withheld for investigation. Answer books on the subjects, namely, Second Language English (SLE), Mathematics Paper-I (MTA). Mathematics Paper-II (MTS), Science Paper-I (SCP) and Science Paper-II (SSG) of the respondents were reviewed by a team of experienced subject teachers and it was reported that identical answers to some of the questions in M T A, SCP and SSG subjects were noticed and therefore, the respondents were booked under malpractice. It is further averred that the answer scripts were examined thrice by separate examiners and after consideration of all the reports, a decision was taken to exonerate some students and to penalise some. Accordingly, some students were declared pass whereas the respondents' result was cancelled.
6. It is worthwhile to note that the respondents had specifically averred in the writ application that they were appearing the Examination in different examination halls and were answering from different sets of questions, therefore, it cannot be presumed that answers made by the respondents could be copied from each other. This averment has not been controverted in the counter filed by the Board nor any explanation is given in the present A. H. O. . No statement has been made in the counter affidavit nor in this A. H. O. regarding the method of malpractice alleged to have been adopted by any of the respondents.
7. The learned Single Judge after hearing the counsel called upon the Board to produce the answer scripts of the respondents and the reports. After perusing the same observed as follows.
"I have carefully perused the answer scripts as well as the reports. It appears from the records that in respect of certain questions, answers were found to be identical in nature including some objective type answers also. After examining the reports submitted, a decision was taken to the effect that the petitioners were involved in malpractice and the results had been cancelled. From the reports, it is found that the teachers examined the papers were of the view that some of the answers are identical and not identical in mass scale, All the examiners have opined that such identical answers found in some papers is irrelevant as the same were objective type but no one has given a report that it must be a case of malpractice. Neither of the teachers examining to question No. 1 have stated that it may be a case of malpractice, but there is no positive statement that it is in fact a case of malpractice. Apart from the records, it is also not disputed that there was any allegation of malpractice either by the Centre Superintendent 'or from any quarters whatsoever. There is no dispute that no incriminating materials had been seized from the petitioners at the time of examination. Only because the Centre had so high percentage of pass, review was made and answer to some questions were found to be identical in respect of papers submitted by the petitioners. On presumption only they were booked for malpractice."
The learned Single Judge categorically held that in absence of positive evidence of involvement in malpractice, no presumption can be drawn that the petitioners were involved in malpractice only on the ground that the answers in respect of some questions appeared to be identical in nature.
8. In course of hearing of this appeal, we also called upon the Board to produce relevant answer papers as well as the reports for our scrutiny. At the threshold it would be appropriate to refer to the modus operandi adopted by the Examination Committee of the Board with regard to disposal of cases booked under malpractice for identical answers. For the sake of brevity, relevant portion of the same is quoted below :
"The Committee decided that cases where substantial quantity of answers are identical only in those cases the resutls of Annual H. S. C. Examination, 2000 are to be cancelled on account of adoption of malpractice.
We have carefully gone through sixteen answer papers of different subjects and also gone through the reports submitted by the Examiners as well as other documents. We find that the conclusion arrived at in different reports are not consistent inasmuch as some of the Examiners have stated that the answers of question Nos. 1 and 2 of Set 'A' in respect of one or two roll numbers are identical, whereas the others have stated that the answers are alike. Some have also stated that there are possibility of identical answers in Mathematics and objective type of question, Some others have stated that there are similarity in answers. On the other hand, some have stated that there ate some irregularities in answers. The reports are also varying in respect of some roll numbers. In the present day examinations, most of the questions are objective type and there is possibility that the answers may be identical. This fact has also been pointed out by one of the examiners, as is evident from scrutiny of the reports.
We have also gone through the answer papers. We find that in most of the answer papers, question No. 3 in S. S. G. paper is similar. It is apt to mention here that the said question appears to be in the nature of a definition and as such answer can be similar,
9. Be that as it may, only because some of the answers are tallying and/or identical with some other answers, that too, in respect of students who were appearing the examination in different halls and in regard to different sets of question papers, a conclusive conclusion cannot be reached to the effect that they were involved in mass malpractice. Law is well settled that on the basis of a suspicion, a positive decision cannot be arrived at, Most of the questions, the answers of which are alleged to be identical, are short questions bearing maximum marks varying from 1 to 5. The answers of such short questions are likely to tally with each other specially in view of the fact that the students are of one school and the definitions and answers to the short questions might have been dictated by the same teacher. There is also possibility that the students have crammed the answers. Surprisingly none of the examiners has pointed out any similarity in mistakes committed by the examinees. If malpractice is adopted, while answering, some mistakes appearing in one answer would automatically occur in the other, as answers are copied without application of mind, and that is, according to us, a reasonably reliable test to arrive at a conclusion that the examinees had adopted malpractice.
The procedure adopted before cancelling the results, also appears to be not very much satisfactory. Law is well settled that before arriving at a conclusion that the examinees were involved in commission of mass malpractice during the examination, the requirements of Natural Justice have to be followed. The fundamental and mandatory requirement of natural justice is : (1) the accused should know the nature of the accusation made, (2) he should be given an opportunity to state his case and (3) the authorities should act on the basis of cogent material evidence either oral or documentary.
10. The principles cited above have been approved by the Apes Court in the case of Suresh Koshy George v. University of Kerala and others, A. I. R. 1969 S. C. 198. This Court in the case of Prashanta Kumar Chakra v. Council of Higher Secondary Education, Orissa, 1988 (II) O. L. R. 451, has observed that the authorities cannot utilise materials which had not been put to the petitioner and that the principle of Natural Justice have to be sacrosanctly followed in the case of cancellation of result for mass malpractice.
The learned Single Judge has perused the answer scripts as well as the reports. We also delved into the same exercise, but are unable to reach at any other conclusion than arrived at by the learned Single Judge,
11. In this view of the matter, we are not persuaded to interfere with the judgment passed by the learned Single Judge and the A. H. O. is, accordingly, dismissed.
Fradipta Ray, J.
I agree.
12. A. H. O. dismissed.