Karnataka High Court
K. Krishnappa vs Registrar Evaluation on 9 October, 1991
Equivalent citations: ILR1991KAR4111, 1992(1)KARLJ326
Author: Shivaraj Patil
Bench: Shivaraj Patil
ORDER Shivaraj Patil, J.
1. The Writ Petition No. 11446/1991 is filed by the Principal, Visveswarapura College of Law, Bangalore first petitioner and the General Secretary of Vokkaligara Sangha, V.V. Puram, K.R. Road, Bangalore-second petitioner. Since common questions arise for consideration in this Writ Petition and the connected Writ Petitions they are taken up together for consideration and decision.
2. A few facts which are necessary for disposal of these cases as gathered from the pleadings in W.P.No. 11446/1991 are:
Visveswarapura College of Law is run by Vokkaligara Sangha. The strength in the said College is more than 1500 students studying the LL.B. Course of three years. This apart, the College has five years teaching Course also in law. The first petitioner in W.P.No. 11446/1991 was appointed as the Chief Superintendent of the Examination Centre of V.V. Puram Law College for conducting the exams of all the three years LL.B. Course during April, 1991. The I year LL.B. Examination commenced at the said College from 11-4-1991 and ended on 19-4-1991. The II year LL.B. Examination was held on 20-4-1991 and onwards.
The Bangalore University to see that the examinations are conducted in a disciplined manner and that no unfair practice is adopted by the examinees issued guidelines as per Annexure-A. On 12-4-1991 while I year LL.B. Examination was going on in the College, the Squad Members visited the College at about 3.00 p.m. They having noticed malpractice in the Centre took away the main sheets of the diary of the Room Superintendents by writing on them 'Rampant copying' and forcing the Room Superintendents to sign the same and also the Invigilators signed the blank papers. Thereafter the Squad Members entered the Chamber of the Chief Superintendent and asked him to sign the white papers in which they had written 'Rampant copying' in the Examination Halls. The Chief Superintendent asked the Squad Leader to follow the procedure as prescribed by the Bangalore University in Annexure-A. He refused to sign as the Squad Members had not brought to his notice any individual case of malpractice with incriminating material. It is further stated that in spite of the strict vigilance and periodical rounds by the Chief Superintendent of Examination and other staff it could not be said that there was no copying at all. The Chief Superintendent contends that immediately he telephoned to the first respondent - Registrar (Evaluation), Bangalore University about the illegal report of the Squad and narrated the incident. He also claims to have sent a detailed report in writing as per Annexure-C on 12-4-1991.
The petitioners further contend that the Squad Members gave surprise visit on 22-4-1991 and also on 24-4-1991 when the II year LL.B. Examination was being conducted at about 3-45 p.m. During the course of their inspection and physical search the Squad Members found some printed material in possession of the students, which they handed over to the Chief Superintendent. Again on 29-4-1991 when III year LL.B. Examination was going on the Squad Members found 5 cases of copying. In this regard a report was made as per Annexure-D. The petitioners further contend that without applying mind to the report of the first petitioner dated 12-4-1991 as per Annexure-C the Registrar (Evaluation) has passed the impugned order Annexure-E dated 3-5-1991 stating that the Squad Members noticed 'Rampant copying' on 12-4-1991 and 24-4-1991 and that they collected huge quantity of notes, chits, guide books etc. and that the Principal had not co-operated with the Squad and refused to sign the report prepared by the Squad, The University had received number of letters and telegrams alleging that the Principal of the College had collected money from the candidates taking examination to arrange for copying. The letter dated 12-4-1991 was received in the University office on 19-4-1991. In this view of the matter the examinations conducted for I and II year LL.B. Examinations at the said College on 12-4-1991, 15-4-1991, 16-4-1991, 18-4-1991, 19-4-1991, 20-4-1991, 22-4-1991, 23-4-1991 and 24-4-1991 were cancelled. It was also stated that there would be no re-examination in view of the alleged rampant mass copying found at the Centre.
The impugned order Annexure-E is called in question stating it to be highly arbitrary, illegal, mechanical and contrary to Rule of Law. It is contended that the respondent is not conferred with the power of cancelling the examinations of all the students when there was no material on record to support such cancellation. Even if there was any malpractice found it was only in case of few students and respondent could not have cancelled the examinations of the students who had honestly written the examinations. It is also contended that though the squad had visited only on 12-4-1991, 22-4-1991 and 24-4-1991 the respondent could not have cancelled the five examinations of the I year and four examinations of the II year LL.B. Course. Thus, the impugned order being arbitrary and opposed to Rule of Law and natural justice according to the petitioners, is liable to be quashed and they have sought for a Writ of Mandamus directing the respondent to announce the results of the I and II year LL.B. examination taken at the said College conducted during April, 1991.
3. The Writ Petition Nos. 11732 to 11776 of 1991 and 11871 of 1991 are filed by the students of the Visveswarapuram College of Law. In these Writ Petitions also the impugned order Annexure-E is questioned on the ground that it is arbitrary, opposed to law and one passed in violation of principles of natural justice. As such they have sought for quashing it as stated above. They have further sought for a direction to the respondents to evaluate their answer scripts and announce the results of the examination taken by them during April, 1991.
4. The respondent has filed the statement of objections in W.P.No. 11446/1991 contending that the first petitioner who was the Custodian of the records in respect of examinations being the principal authority to enforce discipline at the Examination Centre and who was also under a duty to keep up the purity of examinations is not entitled to invoke the extraordinary jurisdiction of this Court assailing the impugned order passed by the respondent That on 12-4-1991 the Squad visited the Examination Centre at about 2-30 p.m. and inspected about 15 examination halls upto 3-30 p.m. In all the examination halls invariably most of the candidates were found copying from the books, chits and manuscripts. On arrival of the Squad most of the examinees threw away all the chits, books and incriminating materials rendering the Squad helpless to trace the thrown chits to any particular candidate or candidates. The invigilators of all the examination halls have also endorsed on the invigilation diary sheets that there was 'rampant copying'. The Chief Superintendent as well as the Deputy Chief Superintendent conceded on the 'spot that there were large scale malpractices. The Chief Superintendent refused to endorse the same contending that all the candidates should be charged individually. It was impossible to pick up the individual examinees involved in copying in view of the mass-malpractice. The Squad made a report to the respondent about the same to take necessary action. Number of anonymous telephone calls, telegrams and complaints were received not only from innocent students but also from Professors and right minded people. The charges made in various complaints involved the first petitioner stating that active assistance was given by him to errant examinees. Again on 24-4-1991 the Squad visited the centre at 3-10 p.m. while the law examinations were in progress some miscreants outside the examination hall started whistling to alert the copying examinees. In all the rooms the Squad members found chits, guide books, notes and other incriminating material which were used by some of the examinees for copying. Some of the students even prevented the Squad members from entering the examination hall by threatening of dire consequences. Some outside members were preparing answer materials to send the same to the examinees in the examination halls. Abusive language was used and confusion was created rendering the Squad members helpless in the wake of unruly and disorderly situation. The first petitioner was a mere spectator did not afford assistance to the squad members who were discharging their duties in the larger interest of purity of examinations. The Squad noticed that the examination conducted in the centre was devoid of all norms for fair conduct of examinations. Under the circumstances a report was drawn up, which was endorsed and witnessed by the Invigilators. However, the Chief Superintendent refused to receive the copy of the report besides he did not subscribe to the report. Four baskets full of chits, guide books and other incriminating materials were collected by the Squad. The Chief Superintendent refused to hand over all the baskets except one.
The respondent further contends that having regard to the report of the Squad members on 12-4-1991 and 24-4-1991 and in the light of complaints, anonymous calls and the mode and manner in which examinations were conducted at the Centre issued a notification cancelling the examinations. The details of the informants, complaints and other related materials are not placed on record and not referred to in the course of the objection statement as they are confidential in nature. Further, the respondent apprehends that the said persons would be exposed to risk and retaliatory action by the miscreants and that the respondent will make available the entire records for perusal of this Court in order to justify the action of cancelling the examinations.
The respondent further states that although earlier a stand was taken not to hold the re-examinations but after some reflection in the light of the Decision of this Court the University, has taken a decision to hold re-examination for all the candidates in respect of the cancelled examinations. Having regard to the facts and circumstances narrated above the University was not in a position to pin point any particular examinee with reference to the nature of mal-practice committed as it was a case of mass-copying. Hence, the respondent had no option except to cancel the examinations in its entirety. There is no stigma attached to any individual examinee. The action taken by the respondent is bonafide and is in the larger interest of the students community more so to maintain the purity of examinations, The letter of the first petitioner dated 12-4-1991 is presented to the University only on 18-4-1991, thus taking; the serious matter in a casual manner, in the said letter he himself has admitted that he cannot vouch safe that there was no copying, at the centre. The respondent however submits that the decision was taken by him and the Syndicate which is charged with the responsibility of maintaining academic discipline and purity of examinations has ratified the impugned action in passing Annexure-E. The action taken by the respondent is not justiciable particularly in the light of shocking and alarming revealings. In this view of the matter the respondent has prayed for the dismissal of the Writ Petitions.
5. Sri G. Gangireddy, learned Counsel for the petitioners in W.P.No. 11446/1991 urged that:
(1) The impugned order Annexure-E passed by the respondent is arbitrary and it is passed in violation of principles of natural justice.
(2) The Squad Members did not follow guidelines contained in Annexure-A. (3) The respondent could not have cancelled the examinations In respect of all students of the I and II year LL.B. Course and in respect of the papers written on which dates the Squad did not visit the examination centre.
In support of his submissions he relied on the Decisions in the case of BANGALORE UNIVERSITY v. B.V. OM PRAKASH, and in the case of RAM NARAYAN SAH PRABHAT v. BANGALORE UNIVERSITY, .
6. Sri M.R. Naik, learned Counsel for the petitioners in W.P.Nos. 11773 to 11776 of 1991 argued that:
(1) The impugned order Annexure-E cancelling the examinations is illegal and void as it is opposed to law and principles of natural justice.
(2) The impugned order is passed by the authority not competent to pass such order, besides it is passed in violation of the relevant Ordinances.
(3) It was not open to the University to exercise power under Section 37(f) of the Karnataka State Universities Act, 1976 when express provision is available to deal with the subject.
(4) There was non-application of the mind of the respondent in passing the impugned order Annexure-E inasmuch as neither the examination in all the papers are cancelled nor the examinations taken up by the students only on which dates the Squad Members visited the Centre and found alleged mass-copying are cancelled. The respondents have cancelled the examinations of 5 papers of the I year LL.B. and 4 papers of the II year LL.B."
In support of his submissions he placed reliance on:
(1) Board of High School & Inter-Mediate Education, U.P. Allahabad v. Ghansham Das Gupta and Ors., (2) Bangalore University v. Ram Narayan Sah Prabhat, I.L.R. 1989(4) Karnataka 3292 (3) Sudeep Kumar v. Vikram University, Ujjain and Anr., (4) Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors., and (5) I.L.R. 1990(3) Karnataka 2820 - Para 6
7. Sri H.L. Sridhara Murthy, learned Counsel for the petitioners in W.P.Nos. 11732/1991 and 11871/1991, while supporting the argument advanced by the learned Counsel Sri G. Gangireddy and Sri M.R. Naik, submitted that the ratification of the action taken by the respondent was not permissible. In support of this submission he cited the Decision reported in Vasavi Traders v. State of Karnataka and Ors., 1982(2) Karnataka Law Journal 357.
8. Sri M.N. Seshadri, learned Counsel appearing for the Bangalore University, argued in support and justification of the action taken by the University in passing the impugned order Annexure-E contending that:
(1) The fact that the Principal (Chief Superintendent of Examination) the first petitioner in W.P.No. 11446/1991 has come forward in filing the Writ Petition shows that all was not well in the conducting of the examinations.
(2) The Decision in I.L.R. 1990(3) Karnataka 2820 does not help the petitioners. On the other hand re-examination ordered in similar situation is upheld by the Division Bench of this Court.
(3) The action taken by the respondent-Registrar (Evaluation) is ratified by the Vice-Chancellor and the Syndicate of the University.
(4) In the light of the facts and circumstances of the case the action taken by the respondent-Registrar (Evaluation) is perfectly just, valid and appropriate.
In support of his submissions he cited the Decisions in:
(1) The Bihar School Examination Board v. Subhas Chandra Sinha and Ors., (2) Dr. H.S. Appaji v. Bangalore University, I.L.R. 1988 Karnataka 2385 - Paras 10, 12, 13 and 15
9. I have carefully considered the submissions made by the learned Counsel appearing for the parties. Broadly stated the submissions made on behalf of the petitioners are:
(1) The impugned order Annexure-E passed by the Registrar (Evaluation) is in violation of the principles of natural justice.
(2) The impugned order is passed by the authority not competent to pass such order.
(3) The impugned order is bad and arbitrary for non-application of the mind.
The submission made by the learned Counsel for the University can be summarised as:
(1) The impugned order is not passed against individual candidates. It is one passed cancelling the entire examination held at a particular centre. The order does not attach any stigma to any individual candidate. As such it cannot be said that the said order is passed in violation of principles of natural justice.
(2) The impugned order although is passed by the Registrar (Evaluation) the same is ratified by the Competent Authority of the University. As such, it is sustainable in the eye of law.
10. The case of Bangalore University v. B.V. Om Prakash does not help the petitioners. That was a case where the examination held on earlier two occasions were cancelled. The candidate had sought for holding fresh examination in the particular paper. The University Authorities refused to conduct fresh examination on the ground that conducting of such examination would cause inconvenience besides incurring expenditure to the University. The learned Single Judge directed the University to hold re-examination. The University filed Writ Appeal challenging the order of the learned Single Judge. The Division Bench of this Court (to which I was a party) dismissed the said appeal. While doing so it was observed in para-8 of the said Judgment, which reads thus:
"Normally, this Court would be slow to interfere in matters relating to academic freedom. However, what we have got to do is to carefully note the facts and grant such relief as is necessary."
But, on the case on hand the University wants to conduct fresh examination/re-examination in the light of the aforesaid Decision.
I.L.R. 1989 Karnataka 3253 in my opinion is of no assistance to the petitioners, inasmuch as in that case the performance of examination of 28 examinees was cancelled after furnishing charge memo to them and after holding enquiry by the Committee. That was not a case of cancellation of the entire examination at a given centre on the ground of 'rampant mass copying'. In that case the learned Single Judge held that the enquiry conducted by the Committee was in violation of the Ordinance which embodied in it the Rule of Natural Justice. Enquiry report was vitiated due to an error apparent on the face of the record and the order impugned in that Writ Petition was passed by the Vice-Chancellor under Section 12(5) of the Act without authority of law. The University took up the matter in appeal in Writ Appeal Nos. 1724 to 1748 of 1989. The Division Bench of this Court in the Decision reported in I.L.R. 1989 Karnataka 3292 has stated in para-6 of the said Decision thus:
"If, on the report by the Vigilance Squad that there had been mass copying or malpractice in the examination hall concerned, the University had proceeded to cancel the performance of all the candidates who took examination in that hall without reference to any individual students, and to hold a fresh examination in the subject concerned for all such students, the contention of the learned Counsel for the University would have been unexceptionable in view of the ratio of the Judgment of the Supreme Court in BOARD OF HIGH SCHOOL v. GHANSHYAM . But in the present case, what the University had done was not the cancellation of the performance of all the students at the examination on the ground that there had been a report of mass malpractice but the action was taken against 38 candidates individually in that charge memo was served on each of them and they were called upon to appear before the Mal-practices Enquiry Committee and they were interrogated by the Committee and thereafter the Committee submitted its report recording a finding that 28 of them committed malpractice and 10 did not. That report was accepted by the Vice-Chancellor and orders were passed. Though the names of all the 28 students are set out in the same communication, it is an order passed against each of the students. Each of the students is found guilty of malpractice and the penalty imposed is cancellation of performance of the particular examination. It is a fundamental rule of natural justice that no person can be found guilty of any charge or no order can be passed which has got evil or civil consequences unless it is preceded by the holding of an enquiry in that giving full opportunity to defend himself by adducing evidence in support of the charge before the authority holding the enquiry and giving full opportunity to the person against whom an enquiry is being held to cross-examine the witnesses who gave evidence against him or giving opportunity to cross-examine the persons who had made report against him. All these safeguards are incorporated in the Ordinance framed by the University for holding an enquiry. It is not disputed that in these cases no enquiry in accordance with the said ordinance had been held. This is also the finding recorded by the learned single Judge. But the contention of the learned Counsel for the appellants is that this was a case where no individual enquiry was necessary. We are unable to agree. This is a case in which the University has found each of the students guilty of malpractice and on that basis imposed penalty of cancellation of the performance of the examination against each of the students. An exactly similar situation was considered by this Court in W.P.No. 1502 of 1979 and connected cases in which the Karnataka University had imposed penalty against as many as 30 students without holding an enquiry on the ground that there was a report about mass-copying. In that case, also the University relied on the Judgment of the Supreme Court in which the Supreme Court has held that for cancellation of examination on any ground, the principles of natural justice would not be applicable. That case was distinguished by this Court and pointed out that if the University had proceeded to cancel the performance of all the students in any particular examination centre and decided to hold re-examination, the question of applying rules of natural justice does not arise because the power of the University to hold the examination necessarily includes the power to cancel the performance of the entire examination and to hold re-examination if the given situation demands such a course of action. On this reasoning, orders impugned in the said Writ Petition were quashed. The position is not different in these cases. Therefore, we respectfully agree with the view taken by the learned single Judge."
From what is stated above it becomes clear that if the University had proceeded to cancel the performance of all the candidates who took the examination in particular examination centre/hall without reference to. any individual student a fresh examination could be held in the subject concerned for alf such students. The Decision in the case of Board of High School v. Ghanshyam relied on by the learned Counsel for the petitioners is also referred to and distinguished by this Court in W.P.No. 1502/1979, it is pointed out that if the University had proceeded to cancel the performance of all the students in any particular examination centre and decided to hold re-examination, the question of applying Rules of Natural Justice does not arise because the power of the University to hold the examination necessarily includes the power to cancel the performance of the entire examination and to hold re-examination if the given situation demands such a course of action. As to the scope and powers under Section 12(5) of the Act the Division Bench of this Court reserved for consideration in an appropriate case, has no application to the facts of the present cases.
Learned Counsel for the petitioners in support of their submission cited the Decision drawing my attention to para 8 of the said Decision. What is stated in para-8 of the said Decision is that:
"When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise."
I do not think that this Decision helps the petitioners in any way in the light of the facts and circumstances of the cases on hand.
11. The Bihar School Examination Board v. Subhas Chandra Sinha and Ors. pressed into service by the learned Counsel for the University in my opinion aptly applies to the facts of these cases, in the said Decision the Supreme Court has stated in para-13 that where it is not a case of any particular individual who is being charged with adoption of unfair means but to condemn the examination as ineffective for the purpose it was held, it is not necessary to give an opportunity to all the candidates to represent their cases when the examinations as a whole were being cancelled. Ghanshyam Das Gupta's case relied on by the petitioners in these cases is also referred to and distinguished in para-14 of the Decision. It is further observed by the Supreme Court in the same paragraph that 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 is not for the Court to say that University should examine all the candidates or their representatives.
In I.L.R. 1988 Karnataka 2385 this Court having considered in details keeping in view the relevant Rules and Regulations of the Bangalore University for conduct of examinations has held thus in paragraph 12 of the said Judgment:
"The relevant Rules confer ample power on the Controller and he is put in overall charge on behalf of the Syndicate on matters relating to the conduct of examinations, announcement of results and conferment of degree at the convocation."
It is further stated in the same paragraph that:
"the Controller who has got the overall powers of conducting the examinations and that power to conduct examinations implies a power to cancel the examinations, if they are not held in compliance with the relevant Rules and Regulations."
Added to this, in these cases on hand although the Registrar (Evaluation) has passed the impugned order Annexure-E the same is ratified by the Syndicate of the Bangalore University.
12. Thus, in the light of the Decisions referred to and discussed above the following positions emerge:
(1) In case of cancellation of examination as a whole on the ground of 'rampant mass copying' without reference to any individual/individuals the question of complying with principles of Natural Justice by way of giving opportunity to them does not arise.
(2) The Registrar (Evaluation) who is put in charge of conducting the examinations and the matters relating to the same has implied power to cancel the examinations also, if the situation so demands.
13. Hence, I am unable to agree with the submissions made by the learned Counsel for the petitioners that the impugned order is one passed in violation of the principles of Natural Justice and that it is not passed by the Competent Authority. However, in these cases even the action taken by the Registrar (Evaluation) in passing the impugned order Annexure-E is ratified by the Syndicate of the University. The records maintained by the University and in the light of the statement of objections filed I am of the opinion that the cancellation of the examination was warranted. It is unnecessary to consider as to the allegations and counter-allegations made by petitioner No. 1 in W.P.No. 11446/1991 and by the University Authorities in the objection statement inasmuch as I am not called upon to decide about the same in these Writ Petitions.
14. What remains to be considered is whether there has been an application of mind in passing the impugned order and whether the respondent-Registrar (Evaluation) was justified in cancelling the examinations of the I year LL.B. held on 12-4-1991, 15-4-1991, 16-4-1991, 18-4-1991 and 19-4-1991 and examinations of the II year LL.B. held on 20-4-1991, 22-4-1991, 23-4-1991 and 24-4-1991 when the Squad visited the Examination Centre only on 12-4-1991 when I year LL.B. examination was going on and on 24-4-1991 when II year LL.B. examination was going on as can be seen from the impugned order Annexure-E.
15. The Registrar (Evaluation) has neither cancelled the examinations conducted on all dates during April, 1991 nor he has cancelled the examinations of only in respect of such papers on which I dates the Squad visited the College. When pointedly asked, the learned Counsel for the University, was not in a position to give any convincing answer as to why the Registrar (Evaluation) chose to cancel the examination of 5 papers of I year LL.B. and 4 papers of II year LL.B. and why not only on the dates when the Squad visited the Examination Centre. In such situation it is not possible to say as to whether on the dates when the Squad did not visit the Examination Centre the candidates indulged in 'rampant mass copying'. In the absence of any material to show that the mass-copying was going on all the days, in my considered opinion, the respondent-Registrar (Evaluation) was not at all justified in cancelling the examination of papers on the dates other than the dates on which Squad visited the Examination Centre. Hence, what should have followed was that the Registrar (Evaluation) should have cancelled the examination taken up by the students only on such dates the Squad visited the College and found 'rampant mass copying'. From the material on record it is quite dear that on the date on which the Squad visited the Centre 'rampant mass copying' was going on. The Invigilators/Room Superintendents have endorsed on the invigilation dairy sheets that there was 'rampant copying'. In view of four baskets full of chits, guide books and other incriminating materials collected by the Squad and in view of several complaints and telegrams received by the University the situation demanded cancelling the performance of all the students in the examinations at the centre and holding of re-examinations. Now that the University has come forward to hold the re-examination, in my opinion considering the facts and circumstances of these cases and to meet the ends of justice it is appropriate to direct the respondent-University to hold the re-examination in respect of the examination held on 12- 4-1991 for the I year LL.B. and examination held on 24-4-1991 for the II year LL.B. and to evaluate the answer scripts and announce the results of the students in respect of the examinations held on 11-4-1991, 15-4-1991, 16-4-1991, 18-4-1991 and 19-4-1991 of the I year LL.B and in respect of the examinations held on 20-4-1991, 22-4-1991, 23-4-1991, 25-4-1991 and 26-4-1991 of the II year LL.B. making it clear that re-examinations to be held shall not be considered as supplementary examinations.
16. In the result and for the reasons stated above the following order is passed:
(1) The Writ Petitions are partly allowed.
(2) The respondent-University is directed to hold the re-examination in respect of the examination conducted on 12-4-1991 for the I year LL.B. and examination conducted on 24-4-1991 for the II year LLB. within a period of two weeks from today.
(3) The University shall evaluate the answer scripts and announce the results of the examinations taken by the candidates on 11-4-1991, 15-4-1991, 16-4-1991, 18-4-1991 and 19-4-1991 of the f year LL.B. and 20-4-1991, 22-4-1991, 23-4-1991, 25-4-1991 and 26-4-1991 of the II year LL.B. within a period of two weeks from today.
(4) Such of the candidates who desire to take up the examinations after announcing the results including that of the re-examination are permitted to take up the ensuing supplementary/annual examination subject to payment of necessary fees and fulfilling the other requirements, if any.
(5) The re-examination to be held shall not be considered as supplementary examination.