Rajasthan High Court - Jaipur
Kum Saroj Meena vs R P S C Ajmer on 26 October, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil Writ Petition No. 17279 / 2015
Kum Saroj Meena
----Petitioner
Versus
R P S C Ajmer
----Respondent
Connected With S.B. Civil Writ Petition No. 17257 / 2015 Hans Raj Meena
----Petitioner Versus R P S C Ajmer
----Respondent S.B. Civil Writ Petition No. 17770 / 2015 Rahul Kumar Meena
----Petitioner Versus R P S C Ajmer
----Respondent S.B. Civil Writ Petition No. 18260 / 2015 Smt Vaijayanti Meena
----Petitioner Versus R P S C Ajmer
----Respondent S.B. Civil Writ Petition No. 18261 / 2015 Manoj Kumar Meena
----Petitioner Versus (2 of 9) [ CW-17279/2015] R P S C Ajmer
----Respondent _____________________________________________________ For Petitioner(s) : Mr. Syed Kashif Hussain For Respondent(s) : Mr. Imran Khan _____________________________________________________ HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Order 26/10/2017 Learned counsel for the parties are not in dispute on the proposition that identical matters have already been raised, considered and adjudicated upon by a Coordinate Bench of this Court in the case of Smt. Renu Gupta Vs. RPSC, Ajmer; SBCWP No. 17128/2015, along with connected matter (SBCWP No. 17127/2015) vide order dated 12th/13th April, 2017, observing thus:
"In the matters of examination wherein an individual examinee is debarred from appearing in future examinations, a Division Bench of Orissa High Court in Brajendra Maharana & Ors. v. The Utkal University, AIR 1976 Orissa 25, while considering the entire case law, has held as under:-
"7. At the outset it will be profitable to notice some authoritative decisions which have bearing on the points raised before us. In AIR 1962 SC 1110 (Board of High School and Intermediate Education, U. P. Allahabad v. Ghanshyam Das Gupta) their Lordships held that the Examination Committee, while dealing with the cases of examinees using unfair means in examination hall, acts quasi-judicially and the principles of natural justice apply to the proceedings before it. In that case no notice was at all given to the delinquent-examinee and therefore the order cancelling the examination was quashed. In AIR 1966 SC 875 (Board of High School and Intermediate Education, U. P. Allahabad v. Bagleshwar (3 of 9) [ CW-17279/2015] Prasad) it was held that the Enquiry Committee set up by the Education Board to enquire into unfair means adopted by the examinees at a particular examination has to decide all relevant questions in the light of evidence adduced before them. It was pointed out that direct evidence in such cases might not be available and the question will have to be considered in the light of the probabilities and circumstantial evidence. Their Lordships, also pointed out that the problem which the educational institutions have to face from time to time is a serious problem and the court should be slow to interfere with the decision of the domestic tribunals.
In AIR 1969 SC 198 (Suresh Koshy George v. University of Kerala) it was held as follows :
".......... The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions."
Their Lordships also referred to the observations of Lord Harman, J. in the case of Byrne v. Kinematograph Renters Society Ltd. (1958) 2 All ER 579 which are as follows:
"What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly that he should be given an opportunity to state his case; and thirdly, of course, that the tribunal should act in good faith. I do not think that there really is anything more".
In AIR 1970 SC 1269 (The Bihar School Examination Board v. Subhas Chandra Sinha) facts were of course different but the proposition of law laid down by their Lordships is clearly applicable to the facts of the present case. There was mass copying by the candidates of a particular centre It was not considered necessary to give specific charges to each of the delinquent-examinee and the examination as a whole was cancelled. Their Lordships observed that the University is responsible for its standards and the conduct of examinations. It cannot hold a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc. before the results (4 of 9) [ CW-17279/2015] are withheld or the examinations cancelled. If there is sufficient material on which it can be demonstrated that the University was right in its conclusion that the examinations ought to be cancelled then academic standards require that the University's appreciation of the problem must be respected. It would not do for the court to say that you should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not. To do this would encourage indiscipline if not also perjury.
In AIR 1972 SC 1408 (Prem Prakash v. Punjab University) their Lordships observed;
"The examinee can ask for more information or details with regard to the material or evidence which may be sought to be used against him and normally if he makes a request in that behalf, the University authorities, in order to inform him adequately of the case he has to meet, would supply him the necessary particulars or details of the evidence. In the very nature of things no hard and fast rule can be laid down and so long as the Court is satisfied that the opportunity which was afforded to the examinee was adequate and sufficient it will not interfere with any orders prejudicial to him which may have been made by the University authorities.
It was also observed :
"A good deal of emphasis had been laid on the answers which were given by the two candidates and our attention had been invited to the discrepancies between the details of the answers contained in the two answer books............ These, however, are matters on which the Court cannot entertain a petition under Article 226. It was for the Standing Committee to arrive at its own conclusion on the evidence before it and the same cannot be re-examined except on very limited grounds which have not been established. ........."
In (1972) 38 Cut LT 349 = (AIR 1972 Orissa 224) (FB) (Pramila Dei v. Secy. Board of Secondary Education, Orissa, Cuttack) a Full Bench of this Court on a review of several decisions on the subject laid down as follows:
"(i) The proceeding against an examinee on a charge of malpractice is a quasi-judicial proceeding. It affects (5 of 9) [ CW-17279/2015] his future and if any adverse view is taken by the disciplinary authority it might blast his career. Though the proceeding is administrative it is quasi-judicial in nature inasmuch as the career of the examinee is in issue.
(ii) Where there are statutory or codified rules the;
quasijudicial proceeding will be enquired into in conformity with those rules.
(iii) Where there are no such rules the principles of natural justice will be followed in making the enquiry keeping in view the fact that it involves the determination of a vital question integrally connected with the rights of the examinee.
(iv) In making such enquiry the authority might have to ascertain both facts and law.
(v) In doing so it must act in good faith.
(vi) The authority must fairly listen to both sides. XXX The next question for consideration is whether the enquiring authority has any further duty in the matter of enquiry after charges are supplied, explanation is obtained and it listens to the parties in good faith. In other words, is it bound to follow any other requirements besides the aforesaid three elements? Clearly the enquiry is not in the nature of a criminal trial. The authority has no power to administer oath unless there is a codified rule to that effect. It need not examine any witness. It can obtain information in any way it thinks best; but if the information is so obtained the examinee must be given fair opportunity of correcting or contradicting any relevant statement prejudicial to his views. It follows as a necessary corollary that if the examinee wants any material to be produced or to cross-examine any witness, then the authority must make those materials or witness available. The authority has, however, no duty to suo motu examine oral evidence or give opportunity for crossexamination. If the delinquent as a part of his defence demands that witnesses reporting against him are to be cross-examined by him refusal thereof would amount to denial of reasonable opportunity. It is also to be further remembered that in exercise of the Writ jurisdiction under Articles 226 and 227 (6 of 9) [ CW-17279/2015] of the Constitution over the decision of the educational authority the High Court does not function as a Court of appeal. It cannot look into the question of sufficiency or propriety of the evidence. It cannot interfere with the finding of that authority unless the same is based on no evidence or is based on evidence on which a reasonable person cannot hold the delinquent guilty."
8. A consideration of the principles laid down in the above decisions leads us to the following conclusions:
(1) The enquiry before the domestic tribunals in the matter of adoption of unfair means by examinees is of a quasi-judicial character and has to be undertaken in accordance with the principles of natural justice.
(2) The essential principles of natural justice that are to be followed by an authority dealing with a case of the present nature are as follows :
(a) The person affected shall be apprised of the charges of unfair means.
(b) he must be given an opportunity to make a representation and to explain the circumstances appearing against him; and
(c) the authority conducting the proceedings must not be biased and should act in good faith. (3) Rules of natural justice not being embodied rules, it is open to the authority concerned to evolve its own procedure for acquainting the person concerned with the charges and the material on which they are founded, and also for affording him an opportunity of explaining those charges. The procedure will necessarily vary with the facts, circumstances and nature of the case, constitution of the authority dealing with it and the rules under which it functions. (4) A delinquent-examinee can ask for more information and details with regard to the material or evidence which is sought to be used against him. If he does not ask for further information, he cannot make a grievance out of it, unless it is shown that any prejudice has been caused on account of the procedure adopted.
(5) Enquiries conducted by quasi-judicial tribunals cannot be equated to the trials in ordinary courts of (7 of 9) [ CW-17279/2015] law.
(6) Where direct evidence of adoption unfair means is not available, the question will have to be considered in the light of probabilities and circumstantial evidence. (7) In dealing with the validity of the orders passed by the University authorities the High Court does not sit in appeal over the decision of the authority concerned.
Its jurisdiction is limited. If the order in question is not supported by any evidence at all the High Court may interfere; but the conclusion that the impugned order is not supported by evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify that conclusion.
(8) It is primarily for the University authorities to come to a decision after taking into consideration the explanations submitted by the delinquent examinees and other circumstances. High Court would not ordinarily interfere with the decision if it is based upon relevant considerations and is arrived at after affording adequate opportunity to the candidates concerned."
In the present case, no show cause notice was issued to the candidates. They were never called to appear before the respondent Commission to project their defence and their point of view. They were given no opportunity to project that the communication (Annx.R/1) received from the Additional Director General of Police, Anti Terrorist Squad (ATS) and Special Operation Group (SOG), Jaipur, cannot be relied upon. Respondent Commission itself or through its unfair means committee or in house domestic inquiry committee have to act as a quasi-judicial body. After taking the entire case law into consideration, it has been rightly observed by the Division Bench of Orissa High Court in the case of Brajendra Maharana & Ors. (supra) that inquiry must be held to debar a candidate from future examination and this inquiry can be conducted by a domestic tribunal and the functions performed by such tribunal are of quasi-judicialcharacter. In the present petition, petitioners who are affected candidates were not apprised of charges of unfair means. They were not given opportunity to make representation and to explain the circumstances appearing against them. In the present case, principles of natural justice have not (8 of 9) [ CW-17279/2015] been followed.
Thus, in answer to the questions formulated by the court, it is held that the opinion of the investigating agency is not per se binding upon the respondent, Rajasthan Public Service Commission. They have to formulate their own opinion by holding an inquiry. The opinion given and the material collected by the investigating agency can be taken into consideration by the respondent Commission to formulate its final opinion. In the present case, Commission ought to have issued a show cause notice to the petitioners detailing therein charges against the petitioners and material available to debar the candidates. After such a show cause notice is issued, an opportunity of hearing ought to be afforded to the petitioners to demonstrate as to why the material available with the Commission cannot be used against the petitioner. In view of settled legal position which has been noticed above, the impugned order whereby examination of the petitioners was canceled and they were debarred to appear in future examination to be conducted by the respondent Commission for whole life, is set aside. Respondent Commission is directed to proceed against the petitioners afresh after following the principles of natural justice as accepted by the courts of law. It will be appreciated that the respondent Commission formulate an Unfair Means Committee to hold inquiry in case of use of unfair means by individual candidate. Such Unfair Means Committee which shall hold inquiry in future ought to have a person having legal acumen.
In view of the directions issued above, the present petitions stand disposed of. "
However, learned counsel appearing on behalf of the respondents submits that adjudication aforesaid has been subjected to intra-Court appeals which are likely to come up on Board for admission on 30th October, 2017.
In view of the fact that, identical controversy has already been adjudicated in the case of Smt. Renu Gupta (supra); this Court is of the considered view that the instant batch of the writ (9 of 9) [ CW-17279/2015] applications also deserves to be decided in identical terms.
Consequently, the instant batch of writ applications stands disposed off in terms of the order dated 12 th /13th April, 2017, in the case of Smt. Renu Gupta (supra).
(VEERENDR SINGH SIRADHANA)J. Pooja/70-74