Madhya Pradesh High Court
Rajkumar Dhakad vs The State Of Madhya Pradesh on 24 September, 2014
Bench: A. M. Khanwilkar, Alok Aradhe
1
HIGH COURT OF MADHYA PRADESH : JABALPUR
W.P. No. 9690/2014
Shishuvendra Singh Tomar .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 9691/2014 (S)
Bhanu Pratap Singh Bhadouriya .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 9817/2014 (S)
Ashutosh Gumasta .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 9973/2014 (S)
Sandeep Tripathi ..... Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 9976/2014 (S)
Amit Kumar Singh .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10054/2014 (S)
Ravendra Singh .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10055/2014 (S)
Umesh Pratap Singh .....Petitioner
Vs.
The State of M.P. and others .....Respondents
2
W.P. No. 10062/2014 (S)
Rajkumar Dhakad .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10063/2014 (S)
Divakant Raghuvanshi .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10082/2014 (S)
Shailesh Patel .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10124/2014 (S)
Sunil Kumar Sahu .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10199/2014 (S)
Vish Nath Singh Rajput ......Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10301/2014 (S)
Krishna Kumar Manyase .....Petitioner
Vs.
The State of M.P. and others .....Respondents
W.P. No. 10592/2014 (S)
Mihir Kumar .....Petitioner
Vs.
The State of M.P. and others .....Respondents
3
W.P. No. 11094/2014 (S)
Naresh Chandra Sagar .....Petitioner
Vs.
The State of M.P. and others .....Respondents
============================================
Coram:
Hon'ble Shri Justice A. M. Khanwilkar, Chief Justice
Hon'ble Shri Justice Alok Aradhe, J.
============================================
Shri Ritwik Parashar, Advocate for the petitioners in Writ
Petition Nos.9690, 9691, 10054, 10055, 10062, 10063, 11094
of 2014 (s).
Shri R.N.Singh, Senior Advocate with Shri Veer Vikrant
Singh, Advocate for the petitioner in W.P. No.9817 of 2014 (s).
Shri K.C. Ghildiyal, Advocate for the petitioners in Writ
Petition Nos.9973, 9976 of 2014 (s).
Smt. G.K. Patel, Advocate for the petitioner in Writ
Petition No.10082 of 2014 (s).
Shri Arpan J. Pawar, Advocate for the petitioner in Writ
Petition No.10124 of 2014 (s).
Shri Atul Anand Awasthy, Advocate for the petitioner in
Writ Petition No.10199 of 2014 (s).
Shri Ajay K. Shukla, Advocate for the petitioner in Writ
Petition No.10592 of 2014 (s).
Shri Adwait Fouzdar, Advocate for the petitioner in Writ
Petition No.10301 of 2014 (s).
Shri Piyush Dharmadhikari, Government Advocate for the
respondents/State.
4
Shri P. K. Kaurav, Advocate with Shri Aditya Khandekar,
Shri Ashish Patel, and Shri Pankaj Raj Ahirwar, Advocate for
the respondents/VYAPAM.
=============================================
Reserved On : 18.09.2014
Date of Decision : 24.09.2014
ORDER
{ 24th September, 2014 } Per: A.M. Khanwilkar, Chief Justice :
These matters involve identical issues and more so arise out of the common order dated 13.06.2014 passed by Professional Examination Board (VYAPAM), Bhopal (hereinafter referred to as "VYAPAM" for the sake of brevity).
2. By the impugned order, VYAPAM revoked the examination results of these petitioners, in respect of examination conducted in 2012 for selection of Junior Supply Officer and Inspector (Weights & Measures), on the ground that they had indulged in unfair means during the examination within the meaning of Clause 2.11 of the Rule Book.
3. It is common ground that on the basis of the said examination results, the petitioners have been appointed against the vacant post in respect of which the selection process was 5 conducted. As a result of the impugned order, the petitioners apprehended consequential action by their employer - State of Madhya Pradesh and therefore, rushed to this Court by way of present writ petitions challenging the correctness of the impugned order passed by VYAPAM dated 13.06.2014. The said order reads, thus:
'' O;kolkf;d ijh{kk e.My] Hkksiky p;u Hkou esu jksM u-1] fpukj ikdZ ¼bZLV½] Hkksiky&462011 Øekd O;kie@5&i&1&35&3787@2014 Hkksiky] fnukad 13-06-2014 @vkns'k@ e0iz0'kklu [kk|] ukxfjd vkiwfrZ ,oa miHkksDrk laj{k.k foHkkx ds v/khu [kk|] ukxfjd vkiwfrZ ,oa miHkksDrk laj{k.k lapkyuky; ds varxZr dfu"B vkiwfrZ vf/kdkjh rFkk fu;a=d] ukirkSy] e0iz0 ds varxZr fujh{kd ukirkSy ds inksa ij HkrhZ gsrq foHkkx ds vuqjks/k ij O;kie }kjk vk;ksftr dh x;hA dfu"B vkiwfrZ vf/kdkjh ,oa fujh{kd] ukirkSy HkrhZ ijh{kk 2012 ds varxZr vfu;ferrk ifjyf{kr gksus ds mijkar Fkkuk Lis'ky VkLd QkslZ] Hkksiky esa vijk/k izdj.k Øekad 15@13 iathc) fd;k x;kA lgk;d iqfyl egkfujh{kd] Lis'ky VkLd QkslZ] e0iz0] Hkksiky }kjk i= dzekad lefu@,lVh,Q@,pD;w 789@2014 fujad tks O;kie dks fnukad 09-06-2014 dks izkIr gqvk] ds ek?;e ls ;g voxr djk;k x;k fd dfu"B vkiwfrZ vf/kdkjh ,oa fujh{kd] ukirkSy HkrhZ ijh{kk 2012 esa lfEefyr 16 vH;fFkZ;ksa dh O;kie ds LVªkax :e ls tIr vks0,e0vkj0 mRrj 'khV dh jkT; ijh{kd iz'ukLin izys[k ¼D;wMh½ iqfyl eq[;ky;] Hkksiky ls tkap djk, tkus ij mRrj 'khV~l esa vyx vyx L;kgh ls xksys Hkjs tkus laca/kh tkudkjh izkIr gqbZ gSA 2- lgk;d iqfyl egkfujh{kd] Lis'ky VkLd QkslZ] eq[;ky;] Hkksiky ds mijksDr lanfHkZr i= esa mYysf[kr rF;ksa ds vk/kkj ij ifjf'k"V&1 esa mYysf[kr 16 vH;fFkZ;ksa dks dfu"B vkiwfrZ vf/kdkjh ,oa fujh{kd] ukirkSy HkrhZ ijh{kk 2012 dh fu;e iqfLrdk dh dafMdk 2-11 ds rgr ;w0,Q0,e0 izdj.k ekU; djrs gq, budk ijh{kk ifj.kke rRdky izHkko ls fujLr fd;k tkrk gSA layXu&ifjf'k"V&1 ¼v/;{k }kjk vuqeksfnr½ lapkyd O;kolkf;d ijh{kk e.My Hkksiky** As reference is made to Clause 2.11 of the Rule Book, we deem 6 it appropriate to reproduce the same, which reads, thus:
**2-11 vuqfpr ek/;e ¼Unfair means, UFM½%& vuqfpr lk/ku ¼;w-,Q-,e-½%& fuEufyf[kr esa ls dksbZ Hkh fØ;kdyki@xfrfo/kh ijh{kkFkhZ }kjk mi;ksx esa ykus ij mls vuqfpr lk/ku ¼;w-,Q-,e-½ ds varxZr ekuk tkosxk%& ¼d½ ijh{kk d{k esa vU; ijh{kkFkhZ ls fdlh Hkh izdkj dk lEidZA ¼[k½ vius LFkku ij fdlh vU; O;fDr ls ijh{kk fnykuk ;k ijh{kkFkhZ ds LFkku ij vU; dksbZ vU; O;fDr mifLFkr gksukA ¼x½ ijh{kk d{k esa vius ikl fdlh Hkh izdkj dh izfrcaf/kr lkexzh j[kukA ¼?k½ ijh{kk ds nkSjku fpYykuk] cksyuk] dkukQwlh djuk] bZ'kkjs djuk o vU; izdkj ls laidZ lk/kukA ¼M½ vU; ijh{kkFkhZ dh mRrj'khV ;k iz'uiqfLrdk ls vU; fdlh izdkj ls udy djukA ¼p½ vU; ijh{kkFkhZ ds lkFk mRrj'khV ;k iz'uiqfLrdk dh vnyk&cnyh djukA ¼N½ izfrcaf/kr lkexzh ik;s tkus ij ijh{kkFkhZ }kjk mls lkSiusa ls badkj djuk ;k mls Lo;a u"V djukA ¼t½ udy izdj.k ls lacaf/kr nLrkostksa@izi=ksa ij gLRkk{kj djus ls euk djuk A ¼>½ l{ke vf/kdkjh ds funsZ'kksa dh vogsyuk@voKk djuk ;k muds funsZ'kksa dk ikyu u djukA ¼´½ l{ke vf/kdkjh ds funsZ'kkuqlkj mRrj'khV ;k vU; nLrkost okil ugha djuk ;k okil djus ls euk djukA ¼V½ ijh{kk dk;Z esa yxs deZpkfj;ksa@vf/kdkfj;ksa dks ijs'kku djuk] /kedkuk ;k 'kkjhfjd pksV igqWpkukA mijksDr vuqfpr lk/kuksa rFkk vH;FkhZ ds fdlh vU; d`R; dks i;Zos{kd@dsUnz v/kh{kd@ oh{kd }kjk vuqfpr lk/ku dh Js.kh ekuk tkrk gS] rks ml ij U;kf;d dk;Zokgh dh tk;sxhA vH;FkhZ dh mRrjiqfLrdk dks vuqfpr lk/ku ds varxZr ekurs gq, ewy;kadu ugha fd;k tk;sxk rFkk mldk vH;fFkZRo fujLr dj fn;k tk;sxkA blds vfrfjDr fdlh vU; izdkj ds vuqfpr lk/ku dk mi;ksx fd;s tkus ij vH;FkhZ dks iqfyl dks vko';d dk;Zokgh gsrq lkSik tk;sxk vkSj mlds fo:) oS/kkfud dk;Zokgh dh tk;sxhA ;fn dksbZ O;fDr fdlh vU; mEehnokj ds LFkku ij ijh{kk esa lfEefyr gksrk gS rks og d`R; ij:i/kkj.k ¼IMPERSIONMENT½ dh Js.kh esa vk;sxkA ij:i/kkj.k dk d`R; fof/k ds vuqlkj vijk/k gSA ,sls vijk/k ds fy, vkosnudrkZ ,oa mlds LFkku ij ijh{kk esa cSBus okyk O;fDr fof/k ds vuqlkj 7 ltk ;k tqekZuk ,oa nksuksa ls nf.Mr fd;s tk ldsxsaA lkFk gh mEehnokj dk ijh{kk ifj.kke Hkh fujLr fd;k tk;sxkA foHkkx }kjk nLrkostksa ds ijh{k.k@lR;kiu o fu;qfDr ds le; dksbZ vkosnd ;k mlds nLrkost QthZ ;k lafnX/k ik;s tkrs gSa] rks foHkkx }kjk mDr vH;FkhZ dh fu;qfDr fujLr djrs gq, iqfyl Fkkus esa fjiksVZ ntZ djok dj eaMy dks voxr djk;k tk;sxk] rkfd eaMy Lrj ij lacaf/kr vH;FkhZ dk ijh{kk ifj.kke fujLr fd;k tk ldsA**
4. Indeed, the purport of provision such as Clause 2.11 and the enabling power of VYAPAM has been expounded in Ku. Pratibha Singh (Minor) vs. The State of Madhya Pradesh and others1 and companion cases decided by the Division Bench of this Court on 11th April, 2014.
5. The question that needs to be answered in the present petitions, however, is somewhat different. The first contention urged by the petitioners is that the impugned decision is vitiated, as no opportunity whatsoever was given to the petitioners before issuance of the said order. That inevitably renders the impugned order bad in law as it is vitiated being hit by principles of natural justice. As regards this contention, the respondents contend that this argument is answered in the abovesaid decision. However, this submission may be partially correct. In that, the requirement of observance of principles of natural justice would stand dispensed with only if the Court were to further accept the plea of the respondents (VYAPAM) 1 W.P. No.20342/2013 by High Court of M.P. (DB) 8 that the action was taken against the respective petitioners being a case of mass-copying and not otherwise. Be that as it may, the challenge to the impugned order dated 13.6.2014 would succeed on the other grounds urged by the petitioners for which reason it may not be necessary for us to examine any other issue.
6. The other contention, is that, the impugned order merely refers to the fact that on examination of answer-sheets of the concerned petitioners it has been revealed that circles were filled by different ink. No more and no less. That fact, by itself, cannot be the basis to assume that the petitioners had indulged in unfair means during the examination. Moreover, the fact so recorded in the impugned order is not on the basis of any independent inquiry undertaken by VYAPAM but is solely founded on the intimation received from the Investigating Officer investigating the Crime No.15/2013 vide his letter dated 09.06.2014. In that case, it must necessarily follow that the impugned decision has been taken in abdication of its duty by VYAPAM - of undertaking scrutiny of the factual position before exercising such a drastic power - if not under dictation of Special Task Force (STF) investigating the crime.
7. It is further contended by the petitioners that even if 9 it is found that VYAPAM has intrinsic authority to deal with cases of fraud and unfair means committed during the examination conducted by VYAPAM, it could have done so only after undertaking an independent inquiry and upon reaching to a definite conclusion that, in fact, in its opinion, such fraud has been played by the concerned candidates and not merely on the basis of report or communication received from STF. Further, at best, VYAPAM could have resorted to action on the basis of proved and substantiated fact before the Criminal Court and not with reference to the contents of the charge-sheet filed before the Criminal Court indicating complicity of the concerned candidate. In other words, VYAPAM could have resorted to such a drastic action only after the finding of guilt was recorded by the Criminal Court against the concerned candidate or on the basis of definite opinion formed by VYAPAM in an independent inquiry conducted by it. These are the broad submissions made on behalf of the petitioners, which will have to be decided on the basis of the response given by the respondents.
8. The respondents, in particular, VYAPAM has filed a common reply-affidavit in Writ Petition No.9690/2014 (Shishuvendra Singh Tomar vs. The State of Madhya Pradesh 10 and others) and has placed on record relevant communications and note-sheets in the official record maintained by VYAPAM.
9. During the pendency of these petitions, Special Task Force (STF), which is entrusted with the investigation of the criminal cases registered against the petitioners, was advised to file intervention application on the assertion that several crucial matters have come to its notice during the investigation of the criminal case and the same may be considered in larger public interest. However, we are of the considered opinion that in the context of limited challenge to the order passed by VYAPAM, which is purely a civil action, the STF can neither be said to be necessary nor proper party. As a result, the intervention applications (I.A. No.10009/2014 in W.P. No.9690/2014, I.A. No.10005/2014 in W.P. No.9691/2014, I.A. No.10010/2014 in W.P. No.10199/2014 and I.A. No.10336/2014 in W.P. No.10592/2014) need not detain us any further.
10. Reverting to the stand taken by VYAPAM in the common reply-affidavit, the attempt is to point out that the impugned decision has been taken by VYAPAM on the basis of information received by VYAPAM in that behalf. Reference is made to the communications exchanged between the Investigating Agency (STF) and officials of VYAPAM. 11
11. The first communication received from the Investigating Officer of STF dated 25.11.2013, addressed to the Controller of VYAPAM, mentions that STF registered Crime No.15/2013 under Sections 420, 467, 468, 471 and 120-B of IPC, Sections 3(d), 1 and 2/4 of the M.P. Recognised Examination Act, 1937 and also under Section 65 and 66 of the Information Technology Act against 18 candidates, who had appeared in the Food Inspector Examination-2012 and who have taken illegal benefit and the investigation in that behalf was in progress. The STF, thereafter, seized all the original OMR sheets of the named 18 candidates (including the petitioners before this Court), on 29.11.2013. The officials of VYAPAM provided information, as was demanded by the Investigating Officer, vide letter dated 07.12.2013. During the investigation of the crime, the Investigating Officer obtained Expert's opinion with reference to the contents of the answer- sheets. That became available on 24th April, 2014 (Annexure A- 1 at page-4 of Intervention Application). The Investigating Officer vide his letter dated 19th May, 2014 informed the Controller of VYAPAM that from the investigation done till then it is revealed that the named 15 candidates had indulged in unfair means during the examination and have been appointed 12 against the concerned post on the basis of examination results declared by VYAPAM. The Investigating Officer, therefore, recommended to take action against the concerned candidates. In response to that communication, the Controller of VYAPAM requested the Investigating Officer by his letter dated 05.06.2014 to furnish report regarding the involvement of 15 candidates so that VYAPAM could initiate appropriate action against them.
12. Reliance is also placed on another communication dated 07.06.2014 sent by Controller, VYAPAM to the Assistant Inspector General of Police. This letter is sent with reference to communication dated 26.04.2014 received from Assistant Inspector General of Police whereby VYAPAM was called upon to furnish original copy of the answer-sheets and original copy of Record of Attendance Sheet concerning the 18 named candidates. The Controller by his abovementioned letter, informed that the stated record has already been seized by Shri Gulab Singh Rajput, Dy.S.P., STF, Bhopal on 29.04.2014 and 24.05.2014 respectively from the office of VYAPAM. In response to the letter received from VYAPAM dated 05.06.2014, the Inspector General of Police by his letter dated 09.06.2014 informed the Controller, VYAPAM that the 13 investigation done so far revealed that the named candidates have used different ink to fill the circles in the OMR sheets, as is revealed from Q.D. Report. The letter then recommends the Controller, VYAPAM to take appropriate action against the named 16 candidates. The note appended to the said communication further mentions that candidate Abhishek Singh Thakur (Roll No.704605), who has been named as one of the 16 candidates, however, has died due to accident on 11.10.2013.
13. Reliance is also placed on internal note-sheets of VYAPAM between 30.05.2014 to 11.06.2014 to point out that the entire matter was considered at different level and finally conclusion was reached that the stated 15 candidates had indulged in unfair means during the examination for which reason, their examination result was required to be cancelled. The said internal note-sheet has been appended as Annexure R- 8 to reply filed by respondent No.3. The first note-sheet dated 30.05.2014 refers to the communication received from the Investigating Officer of STF dated 19th May, 2014 and the fact that the investigation in connection with Crime No.15/2013 was underway and the investigation done till then revealed that 15 named candidates had indulged in unfair means during the examination conducted by VYAPAM and succeeded in being 14 appointed against the concerned posts of Junior Food Supply Officer/ Inspector (Weights and Measures). The note-sheet also explicitly mentions that the communication received from the office of STF recommends taking action against the named candidates. The file was, thereafter, processed at different level upto the highest level. From the notings of the different officials it is amply clear that the action is solely founded on the information furnished by the officials of Special Task Force about the evidence gathered during investigation indicating complicity of 16 candidates, who had appeared in the examination conducted by VYAPAM having resorted to unfair means by using different ink to fill the circles in the answer- sheets. There is no mention whatsoever that VYAPAM after receipt of intimation from the officials of Special Task Force decided to independently inquire into the correctness of the factum of different ink used by those candidates to fill in the circles in the answer-sheet and whether that conduct by itself was sufficient to infer that the concerned candidate indulged in commission of unfair means during the examination. The remarks in all the note-sheets, instead, refer to the communication received from STF informing about status of investigation and possibility of involvement of 16 candidates 15 (including the petitioners). Having referred to that communication received from Special Task Force, the concerned Authorities of VYAPAM jumped to the conclusion that it was a case covered by Clause 2.11 of the Rule Book meaning thereby the named 16 candidates indulged in unfair means during the examination and for which reason, their examination results deserved to be cancelled. The same position is manifest from the final order passed against the petitioners dated 13.06.2014, which is impugned in these petitions.
14. After having perused the impugned order dated 13.06.2014 and upon close scrutiny of the documents pressed into service by VYAPAM, it is amply clear that the impugned action of VYAPAM was ignited after receipt of communication from the officials of Special Task Force dated 19.05.2014, in particular. Upon receipt of that communication, admittedly, VYAPAM did not set up any enquiry committee of its own to inquire into the factual matter referred to in the said communication and more so, to examine the fact whether using of different ink to fill in the circles in the answer-sheets by the named candidates, by itself, amounted to unfair means committed during the examination or something more was necessary and further whether that something more can be 16 discerned from the records available with VYAPAM. No doubt, the relevant record concerning the examination of named 16 candidates (including the petitioners) was seized by the Special Task Force on 29.11.2013. However, if VYAPAM wanted to conduct independent inquiry to ascertain whether it was a case of mass copying or mass malpractice and, in particular, commission of unfair means during the examination, it could have requested STF to make available the seized documents for the purposes of such inquiry. In other words, the indisputable fact emerging from the communications and note-sheets pressed into service, is that, VYAPAM purely went by the communication received from the Investigating Agency that the investigation of criminal case registered against the petitioners revealed that they used different inks to fill in the circles in the answer-sheet during the examination. In our opinion, that, by itself, cannot be the basis to proceed in the matter and more so, to pass such a drastic order of cancellation of the examination results of the petitioners. In that, VYAPAM has not independently inquired into the factual aspects and including whether the fact of using different ink to fill in the circles in the answer-sheets by the candidate would be a case of unfair means as such, much less a case of mass copying or mass malpractice, 17 so as to dispense with the requirement of giving opportunity of being heard to the candidate likely to be affected by its decision. Thus understood, it is a case of abdication of duty by VYAPAM. Inasmuch as, existence of such a drastic power is coupled with the duty to exercise that power with circumspection and by following fair procedure. Even if we do not intend to go into the argument as to whether the impugned action is taken under dictation of the Investigating Agency (Special Task Force), as there is other strong reason, which is so palpable from the record, to hold that the impugned order and the process adopted by VYAPAM to invoke the power of cancellation of results of the concerned candidates is untenable in law, the petitioners are entitled for relief of quashing of the impugned order on that basis alone.
15. Once it is held that the impugned order passed by VYAPAM dated 13.06.2014 is unsustainable and cannot stand the test of judicial scrutiny, the same is required to be quashed and set aside. It would necessarily follow that the impugned order cannot be made the basis to take any further action by the employer against the concerned petitioner. At the same time, quashing of the said order would not denude VYAPAM from initiating proper inquiry into the factual matters brought to its 18 notice by the Investigating Agency to ascertain whether the factum of using different ink by the concerned candidate can be made basis for concluding that it was a case of unfair means and more so, a case of mass copying or mass malpractice. Dependent on the opinion to be formed in such independent inquiry, it would be open to VYAPAM to take the matter further including to cancel the examination results of the candidates. All questions in that behalf will have to be examined on its own merits in accordance with law at the appropriate stage.
16. Learned counsel for the respondent-VYAPAM was at pains to persuade us to take the view that the inquiry to be conducted by VYAPAM would be a mere formality. In that, the Experts, whose report was sought by the Investigating Agency, have already opined that different ink was used to fill in the circles in the answer-sheets by the same candidates during the examination. Further, the Experts were none other than the State Agency. Being independent Agency, there was no reason to doubt its opinion about the use of different ink appearing in the answer-sheets of the concerned candidates. In other words, no fruitful purpose would be served by conducting independent inquiry to ascertain the same fact on which opinion has been given by the Experts.
19
17. In our opinion, that report may be a relevant material to be considered during the inquiry to be undertaken by VYAPAM. But, that report, by itself, will not be sufficient to answer the issue as to whether the act of commission or omission mentioned therein, is a case of commission of unfair means by the concerned candidate and more so, of resorting to mass copying or mass malpractice. Something more will have to be spelt out. Further, as observed by the Division Bench of this Court in the case of Ku. Pratibha Singh (supra), VYAPAM is the sole Authority to deal with all aspects concerning the examination conducted by it. Thus, the stand taken by VYAPAM that no independent inquiry would be necessary before exercise of power to cancel the examination results of the concerned candidates, does not commend to us.
18. For the same reason, we are not impressed by the argument of the respondents that from the record furnished by the Investigating Agency (STF) there was ample material to conclude that it was not only a case of using of different ink to fill in the circles in the answer-sheet during the examination by the same candidates but indicating a consistent pattern of the concerned candidates having left the circles blank and the same were later on filled in by the erring officials of VYAPAM, who 20 used different ink or that it was a case of commission of organized unfair means during the examination. As aforesaid, in the independent inquiry, these aspects will have to be analyzed on its own merits.
19. Be that as it may, we find that neither the note-sheets nor the communications exchanged between the officials of VYAPAM and of Special Task Force, even remotely suggest that subjective satisfaction or conclusion of the appropriate Authority of VYAPAM, about the existence of facts constituting commission of organised unfair means by the concerned candidate or to be a case of mass copying or mass malpractice has been recorded. Instead, the note-sheets make it amply clear that VYAPAM merely went by the opinionated remark of the Investigating Agency and mistook its recommendation of taking action against the concerned candidates as sufficient, without conducting any independent inquiry of its own. A priori, it is a clear case of non-application of mind by VYAPAM, if not abdication of its duty before exercising the drastic power of cancellation of examination results of the petitioners.
20. Having said this, we may now turn to the reported decisions on which reliance has been placed by the learned counsel for the respective parties. The Apex Court in the case of 21 State Bank of India and others vs. Palak Modi and another2 in paragraph 37, had occasion to deal with the issue of use of unfair means during the evaluation test/confirmation test held by the Bank. The Court, in similar circumstances, observed that the exercise was not preceded by an inquiry involving the private respondents and no opportunity was given to them to defend themselves against the charge of use of unfair means. Reliance was also placed on paragraph 46 of this judgment to point out that the Bank was directed to reinstate the private respondents with liberty for taking fresh decision in the matter after giving opportunity of hearing to the concerned persons. The petitioners have also relied on another decision of the Apex Court in the case of Inderpreet Singh Kahlon and others vs. State of Punjab and others3, in particular, on the dictum in paragraphs 59, 94 and 95 as well as 146 to buttress the argument that the impugned order be quashed.
21. On the other hand, counsel for the respondent- VYAPAM has relied on the decision of the Apex Court in the case of Board of High School and Intermediate Education, U.P. Allahabad and another vs. Bagleshwar Prasad and 2 (2013) 3 SCC 607 3 (2006) 11 SCC 356 22 another4 , in particular paragraph 11, to contend that since it is a case of mass copying or mass malpractice, the question of giving personal hearing to the petitioners did not arise. This judgment has been noticed by the Division Bench of this Court in the case of Ku. Pratibha Singh (supra). The respondents may be justified in taking this plea, provided, are in a position to substantiate that it was, in fact, a case of mass copying so as to dispense with personal hearing to be given to the candidates before cancelling their examination results. However, for the reasons already recorded, the impugned decision cannot be sustained but with liberty to VYAPAM to conduct independent inquiry before taking final decision. We would agree to the limited extent that depending on the outcome of the said inquiry it may be open to VYAPAM to consider whether to give personal hearing to the concerned candidate or otherwise. In that, if it is a case of mass copying or mass malpractice, in law, there would be no obligation to give personal hearing to the concerned candidate.
22. Respondents also placed reliance on the decision of the Apex Court in the case of Ram Preeti Yadav vs. U.P. Board of High School and Intermediate Education and others5 to 4 AIR 1966 SC 875 5 (2003) 8 SCC 311 23 contend that once it is found that it is a case of fraud, it will deprive the person indulging in such fraud of all advantages and benefits obtained thereby. No doubt, if VYAPAM were to conduct independent inquiry and finally conclude that it was a case of unfair means committed by the concerned petitioner during the examination, would be free to proceed against that candidate including by revoking his examination results and the consequences of such cancellation would follow in law. This aspect has already been considered by the Division Bench of our High Court in the case of Ku. Pratibha Singh (supra).
23. Reliance was then placed on another decision of the Apex Court in the case of Chairman, All India Railway Recruitment Board and Another vs. K. Shyam Kumar and others6, in particular paragraphs 45 and 46 thereof, to contend that the decision-maker can rely on subsequent material to support the decision already taken when larger public interest is involved. There can be no quarrel with this proposition. In fact, even this principle has been applied by the Division Bench of this Court in the case of Ku. Pratibha Singh (supra). However, in the present case, it is noticed that VYAPAM has not independently dealt with the entire matter but has merely 6 (2010) 6 SCC 614 24 followed the recommendation made by the Investigating Agency without doing anything more. That position is discerned from the communications exchanged between VYAPAM and STF as also from the internal note-sheets on which reliance was placed by the respondents.
24. The respondents have then relied on the observations of the Apex Court in paragraph 8 in the case of B. Ramanjini and others vs. State of A.P. and others7, which dealt with the issue of mass copying or leakage of question paper. The observations in this judgment may be useful during the independent inquiry to be conducted by VYAPAM before taking any final decision. Reliance was then placed on the decision in the case of Biswa Ranjan Sahoo and others vs. Sushanta Kumar Dinda and others8. In paragraph 3 of this judgment the Court after taking into account the factual position, opined that it was a case of enormity of mass malpractices in the selection process and therefore, issuance of individual notices to all the candidates was not necessary.
25. In the case of State of Maharashtra and others vs. Jalgaon Municipal Council and others, (2003) 9 SCC 731, the Court dealt with the issue of basic principles to be adhered to 7 (2002) 5 SCC 533 8 (1996) 5 SCC 365 25 for complying with the doctrine of natural justice and the excepted situations where a right of hearing has been excluded. For the reasons already noted, it is unnecessary to dilate on this decision any further.
26. Taking over all view of the matter, therefore, we have no hesitation in quashing and setting aside the impugned common order dated 13.06.2014 passed by VYAPAM and also direct the respondents not to give effect to the said order against the petitioners. At the same time, VYAPAM is granted liberty to commence independent inquiry on the basis of information received from the Investigating Agency (Special Task Force) and to proceed in the matter on the basis of the view formed in that inquiry. That inquiry will have to proceed on its own merits and in accordance with law. All questions in that behalf are left open.
27. Accordingly, all these writ petitions succeed and are disposed of on the aforestated terms with no order as to costs. With the disposal of these petitions all interim applications stand disposed of.
(A.M. Khanwilkar) (Alok Aradhe)
Chief Justice Judge
S/