Karnataka High Court
The Karnataka State Association Of The vs The State Of Karnataka on 8 December, 2022
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WP NO.23742 OF 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 08TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.23742 OF 2022 (EDN-EX)
BETWEEN:
THE KARNATAKA STATE ASSOCIATION OF THE
MANAGEMENT OF NURSING AND ALIED HEALTH
SCIENCE INSTITUTIONS
HAVING ITS REGISTERED OFFICE AT:
NO.7380, DADAPEER LAYOUT,
NH-4, NELAMANGALA,
BENGALURU - 562 123.
REP. BY ITS GENERAL SECRETARY
SHREE HARSHA.
...PETITIONER
(BY SRI. UDAY HOLLA, SENIOR ADVOCATE FOR
SRI. KRISHNA T., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF HEALTH AND FAMILY WELFARE
Digitally signed by
MEDICAL EDUCATION,
ARUN KUMAR M S
Location: High Court
M.S. BUILDING,
of Karnataka BENGALURU - 560 001.
REP. BY ITS PRINCIPAL SECRETARY.
2. THE KARNATAKA STATE DIPLOMA IN NURSING
EXAMINATION BOARD
BANGALORE MEDICAL COLLEGE AND RESEARCH
INSTITUTE CAMPUS,
K.R. ROAD,
BENGALURU - 560 002.
REP BY ITS SECRETARY.
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WP NO.23742 OF 2022
3. KARNATAKA STATE NURSING AND PARAMEDICAL
SCIENCES EDUCATION (REGULATION) AUTHORITY
1ST FLOOR, LIBRARY BLOCK,
BMCRI CAMPUS, K.R. ROAD,
BENGALURU - 560 002.
REP. BY ITS SPECIAL OFFICER.
4. RAKESH SHETTY
MANAGING DIRECTOR
POWER TV
NO.7, 11TH MAIN, 1ST PHASE,
MATHIKERE MAIN ROAD,
1ST STAGE, GOKULA EXTENSION,
YESHWANTHPURA,
BENGALURU - 560 054.
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, AAG ALONG WITH
SMT. PRAMODHINI KISHAN, AGA FOR R1;
SRI. YOGESH D. NAIK, ADVOCATE FOR R2 & R3)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE IMPUGNED LETTER DATED 25TH NOVEMBER, 2022
ADDRESSED BY RESPONDENT NO.1 TO RESPONDENT NO.3-
AUTHORITY VIDE ANNEXURE-A; DIRECT THE RESPONDENT
NO.2- BOARD, TO CONDUCT AN INDEPENDENT ENQUIRY INTO
THE ALLEGATIONS LEVELED BY THE RESPONDENT NO.4 WHILE
CONDUCTING A STING OPERATION; AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this writ petition, the petitioner has challenged the letter dated 25th November, 2022 issued by the respondent No.1 to the respondent No.3-Authority (Annexure-A) to conduct re-examination for the 1st and 2nd year Diploma in -3- WP NO.23742 OF 2022 General Nursing and Midwifery Course which was held between 22nd November, 2022 to 25th November, 2022.
2. Heard Sri. Uday Holla, learned Senior Counsel on behalf of Sri. T. Krishna, appearing for the petitioner; Sri. Dhyan Chinnappa, learned Additional Advocate General along with Smt. Pramodhini Kishan, learned Additional Government Advocate for respondent No.1; and Sri. Yogesh D. Naik, learned counsel appearing for respondents 2 and 3.
3. Sri. Uday Holla, learned Senior Counsel appearing for the petitioner invited the attention of Court to the fact that but for the malpractice made in five colleges, conducting re- examination for the entire 1st and 2nd year Diploma in General Nursing and Midwifery course by the respondent-Authorities is not correct. He further contended that the examination has been conducted between 22nd November, 2022 to 25th November, 2022 in terms of the Timetable Circular (Annexure- B) and further argued that after the completion of last paper on 25th November, 2022, the impugned communication has been issued by the respondent No.1-Government, which would affect the entire students, in an extent of eighty eight thousand, who -4- WP NO.23742 OF 2022 are in no way concerned with the malpractice said to have been made in five colleges. Accordingly, he sought for interference of this Court. Learned Senior Counsel Sri. Uday Holla, also referred to the Notification dated 02nd December, 2022 issued by the Karnataka Nursing & Paramedical Sciences Education (Regulation) Authority / Karnataka State Diploma in Nursing Examination Board and submitted that the entire enquiry has been referred to the Malpractices Committee and no enquiry has been conducted insofar as alleged aspects relating to the malpractice said to have been made in five colleges, and accordingly, he sought for interference of this Court to set-aside the communication dated 25th November, 2022 issued by the respondent No.1-Government to the respondent-Authorities directing to conduct re-examination for the aforementioned course.
4. Per contra, Sri. Dhyan Chinnappa, learned Additional Advocate General appearing for the respondent No.1- Government sought to justify the action taken by the Government and submitted that, for fair conducting of examination for the students, the Government has taken -5- WP NO.23742 OF 2022 conscious decision in the matter pursuant to allegation of malpractice committed in the colleges referred to in the statement of objections.
5. Sri. Yogesh D. Naik, learned counsel appearing for respondents 2 and 3 referred to the judgment of the Hon'ble Apex Court in the case of NIDHI KAIM vs. STATE OF MADHYA PRADESH AND OTHERS reported in (2016)7 SCC 615, and argued that this Court is having limited jurisdiction to interfere with the process of Examination under Article 226 of the Constitution of India.
6. Having heard the learned counsel appearing for the parties, I have carefully examined the aspect that the petitioner has challenged the communication dated 25th November, 2022 addressed by the respondent No.1- Government to the respondent No.3-Authority, directing to conduct re-examination for Diploma in General Nursing and Midwifery course referred to above based on the factual aspects narrated in Annexure-A. In this regard, I have also carefully examined the statement of objections, whereby the respondent No.1-Government, pursuant to receiving -6- WP NO.23742 OF 2022 information about the activities of students indulging in malpractice, has constituted a Committee to look into the matter as per letter dated 02nd December, 2022 (Annexure-R3) and pursuant to the preliminary enquiry conducted, the Committee has made report dated 05th December, 2022 (Annexure-R4), wherein the impression of the report read thus:
"Impression • After reviewing the reports of the Invigilators, Chief Superintendents, Flying Squads and Observers of Examination Centres, it is observed that there is no evidence of mal practice noted.
• A written complaint was submitted by Chief Superintendents and Observers regarding the unauthorised entry of media personnel to the exam centre and disturbing the students and personnel on duty.
• Only few CDs were submitted along with booklets. It is observed that students were seen moving in the examination hall during process of examination. It is also found that students were not maintaining proper distance concluding that examination sanctity/process is not followed.-7-
WP NO.23742 OF 2022 • In random checking of answer scripts from all the five examination centres, in four days of examination, features of copying is identified in first two days, partial on day three and no malpractice on day four."
(emphasis supplied)
7. Having taken note of the fact that the respondent No.1-Government has taken decision pursuant to the report made by the enquiry Committee relating to the fact that after random checking of answer-scripts of five examination centers, whereby in four days of the examination, features of copying is identified in first two days, partial on day three and no malpractice on day four and also it is stated in the said enquiry report that during the examination process, students were not maintaining proper distance, no sanctity was followed while conducting examination. In this backdrop, I am of the view that interference of this Court, insofar as decision taken by the respondent No.1-Government, is very limited. In this regard, it is apt to consider the law declared by Hon'ble Apex Court in the case of NIDHI KAIM (Supra), wherein it is held as follows: -8-
WP NO.23742 OF 2022 "39. Sinha's case judgment, in my view, yields the following principles:
39.1. 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".
39.2. 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.
39.3. 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."
39.4. 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 -9- WP NO.23742 OF 2022 maintenance of the standards of education, and "encourage indiscipline, if not, also perjury". 39.5. 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. 39.6. 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.
40. 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
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WP NO.23742 OF 2022 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."
41. 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 on a par is wholly unjustified, arbitrary,
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WP NO.23742 OF 2022 unconstitutional being violative of Article 14 of the Constitution."
42. From an analysis of the above decisions, the following principles emerge:-
42.1. 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.
42.2. 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.
42.3 The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence.
42.4 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."
8. It is also relevant to cite the judgment of Hon'ble Apex Court in the case of CHAIRMAN, J&K STATE BOARD
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WP NO.23742 OF 2022 OF EDUCATION vs. FEYAS AHAMED MALIK AND OTHERS reported in (2000)3 SCC 59, wherein the Hon'ble Apex Court at Paragraphs 18 to 20 of the judgment has observed as follows:
"18. While judging the authority or otherwise all steps taken by authorities of the Board to take action against candidates taking resort to mass malpractice it should be borne in mind that the Board is entrusted with the duty of maintaining higher standards of education and proper conduct of examinations. It is an expert body consisting of persons coming from different walks of life who are engaged in or interested in the field of education and have wide experience. The decision of such an expert body should be given due weightage by courts. This Court in the case of Bihar School Examination Board Vs. Subhash Chandra reported in AIR 1970 SC 1269 observed:
"The universities are responsible for their standards and the conduct of examinations. The essence of the examinations is that the worth of every person is appraised without any assistance from an outside source. If at a centre the whole body of students receive assistance and manage to secure success in the neighbourhood of 100% when others at other centres are successful only at an average of 50%, it is obvious that the university or the Board must do something in the matter. It cannot hold a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results are withheld or the examinations cancelled. If there is sufficient material on which it can be demonstrated that the university was right in its conclusion that the examinations ought to be cancelled then academic standards require that the universitys
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WP NO.23742 OF 2022 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."
19. The Allahabad High Court in Rajiv Ratna Shukla and another vs. University of Allahabad made the following observations :
Even otherwise the Statute and Ordinances provide for an authority known as Examination Committee to look into and decide such matter. As the examination committee after looking into the report was satisfied that the examinations were not conducted fairly it would be unfair for this Court to interfere in writ jurisdiction. It need not be mentioned that a finding recorded by a Tribunal administrative or quasi judicial, body is a finding of fact if it is based on consideration of evidence howsoever meagre and insufficient it may be. The report of the flying squad coupled with the statement of Centre Superintendent was available with the examination committees. Even if another committee or this Court on the same material could have come to a different conclusion it could not furnish ground for interference. This Court cannot substitute its opinion for the opinion of committee. It could quash the order only if it finds that it was based on no material or the committee ignored some material which is considered could have resulted in a different conclusion. Since the decision of the examination committee does not suffer from any such error it is difficult to grant relief to petitioners.
We are not oblivious of grave injustice which might be done to some of the students, may be even majority, because of refusal by this Court
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WP NO.23742 OF 2022 to interfere but we cannot ignore the deterioration in the standard of discipline of academic institutions. How this should be regulated or controlled should best be left to the discretion of those who are entrusted with this responsibility. If this Court starts substituting its own opinion in place of opinion expressed by authorities it shall result in chaos. It is well known that due to conduct of others even innocent persons suffer but the sufferings of few has to be tolerated in the larger interest of the society. As is usual in such matters it is only the few who are responsible but to protect the bona fide or the genuine if a decision is given which erodes the discipline and vitiated the atmosphere of the academic institutions then it is better to restrain and refuse.
As regards demands for enquiry and violation of principle of natural justice, suffice it to say, that on academic disciplinary proceedings exception is made where proceedings are substantially fair or it is impossible to hold inquiry. Cases of mass copying resulting in cancellation of the examination fall in this exception. By its very nature no inquiry could have been made. Decision in Km. Madhulika Mathurs case (1984 All LJ 618) (FB) has absolutely no relevance. Concept of reasonable opportunity assumes primacy where penal action is proposed to individual. Direction to hold re- examination cannot be put in that category. It was not like of what happened in Gorakhpur University where examination was not treated as ineffective or vitiated. Ratio of that decision is that what was invalid could not be treated as valid for punishment without affording opportunity.
20. Coming to the case on hand, as noted earlier, the High Court has quashed the notification issued by the Board as ultra vires of Article 14 of the Constitution and ultra vires the Act. Further the High Court has discussed at
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WP NO.23742 OF 2022 length how the Board should proceed in the matter and has issued directions regarding the principles to be followed and matters to be borne in mind by the Board while framing Rules and has even issued directions what some of the provisions of the Rules should be. From the discussions in the impugned judgment it is clear that the High Court has taken up on itself the task of finding out a scheme to tackle the problem of mass malpractice in examination. In our considered view the approach of the High Court in the matter is erroneous and this has vitiated the judgment. In matters concerning campus discipline of educational institutions and conduct of examinations the duty is primarily vested in the authorities in-charge of the institutions. In such matters Court should not try to substitute its own views in place of the concerned authorities nor thrust its views on them. That is not to say that the Court cannot at all interfere with the decisions of the authorities in such matters. The Court has undoubtedly the power to intervene to correct any error in complying with the provisions of the Rules, Regulations or Notifications and to remedy any manifest injustice being perpetrated on the candidates. In judging the validity a notification containing provisions regarding steps to be taken when a report of mass- malpractice is received it is to be kept in mind whether the provisions contained in the notification are relevant for achieving the purpose for which the notification is issued and if it is found that the notification is relevant for and has a nexus with the purpose to be achieved then the notification cannot be said to be arbitrary and discriminatory. The High Court has
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WP NO.23742 OF 2022 failed to keep this principle in view while considering the validity of the notification in question. A notification cannot be struck down as discriminatory merely because in implementing the same injustice is likely to be suffered by some candidates. The impugned judgment does not show that the decision to strike down the two notifications is based on grounds sound in law and justified on facts. It is our considered view that the judgment of the High Court is unsustainable and has to be quashed."
9. In the aforesaid decision, the Hon'ble Apex Court justified the action of the authorities canceling the examination based on the Expert Body report and ordered for re- examination. At this juncture, it is relevant to deduce the law declared by Hon'ble Apex Court in the case of MADHYAMIC SHIKSHA MANDAL, M.P. vs. ABHILASH SHIKSHA PRASAR SAMITHI AND OTHERS reported in (1998)9 SCC 236, wherein it is observed that it would be inconsequential even if the decision taken by the Government could affect the innocent students. In that view of the matter, following the law declared by Hon'ble Apex Court, I am of the view that submission made by Sri. Uday Holla, learned Senior that barring five colleges, the students of remaining colleges would be affected, cannot be accepted. The Division Bench of this
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WP NO.23742 OF 2022 Court in the case of BANGALORE UNIVERSITY vs. B.V. OM PRAKASH reported in ILR 1990 KAR 2820, held that normally this Court while exercising the jurisdiction under Article 226 of the Constitution of India, would be slow to interfere in the matters relating to the academic freedom, particularly the factual aspects relating to the alleged malpractice said to have been committed in some of the colleges and the decision of the Government cannot be interfered with pursuant to the aspect that the Government had taken a decision based on the enquiry conducted by the expert committee and further it is held that, this Court cannot sit in appeal against such enquiry report made by the experts and Notification issued by the Government therein.
10. Following the law declared by Hon'ble Apex Court in the aforementioned judgments, I am of the view that exercising judicial review insofar as action taken by the Government pursuant to the preliminary report by the Enquiry Committee consisting of the Expert Body relating to the alleged malpractice said to have been committed during the examination process of 1st year and 2nd year Diploma in
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WP NO.23742 OF 2022 General Nursing and Midwifery (GNM) course, is very limited and this Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, cannot sit in appeal against the decision taken by the Government on 25th November, 2022 (Annexure-A) supported by the preliminary report by the Enquiry Committee (Annexure-R4). It is also made clear that process of conducting examination is in the domain of the State Government and accordingly, writ petition deserves to be dismissed as devoid of merits. In the result, I pass the following:
ORDER
1. Writ petition dismissed;
2. Respondent-Government is permitted to conduct re-examination for 1st year and 2nd year Diploma General Nursing and Midwifery (GNM) Course at the earliest taking into account the interest of the students.
SD/-
JUDGE ARK