Calcutta High Court
West Bengal Council Of Higher Secondary ... vs Roupshanara Momtaz And Another on 19 February, 1991
Equivalent citations: AIR1991CAL310, AIR 1991 CALCUTTA 310
ORDER Bhagabati Prasad Banerjee, J.
1. A writ application was moved by a girl student who appeared at Higher Secondary Examination conducted by the West Bengal Council of Higher Secondary Education in the year 1990 in which she appeared in all the papers, but ultimately her examination was cancelled by the Council on the basis of the recommendation made by the Mal practices Enquiry Committee whereupon the learned trial Judge passed an order whereby the Council was directed to publish the result of the writ petitioner and directed that any of the colleges governed and managed by the State or affiliated to the Calcutta University to admit the petitioner presumably because of the fact that the writ petition would be kept pending in this Court for several years and during the pendency of the writ application, petitioner's interest should fully by protected inasmuch as she was allowed to prosecute her study on condition that publication of the result and her admission into a college will be subject to the result of the writ application. In other words, if the writ petition fails, in that event publication of result will fall through and in that event admission in college will also be set at naught. Against the interim order passed by the learned trial Judge in the manner indicated above, an appeal was preferred by the West Bengal Council of Higher Secondary Education and applied for stay of operation of the order passed by the learned trial Judge. The matter came up before us on January 31, 1991 when the learned counsel For the parties agreed that instead of disposing of the stay application and the appeal, the writ application should be heard and disposed of expeditiously by this bench as both the parties were anxious for the ultimate results in the writ petition. Under such circumstances, this Court decided to hear out the writ application which had to be ultimately disposed of, to put an end of a litigation which would take in normal course years as against the disposal of the writ petition by a single Judge and appeal" lies to the Division Bench. This was done by consent of parties. Accordingly, while hearing of the appeal and disposal of the same we have to dispose of the main writ application on merit so that matter may not drag long.
2. The fact of the case in short is that the petitioner was duly permitted to appear in the higher secondary examination and as a matter of fact she appeared in all papers. Her seat for holding examination was allotted to Bag-bazar Multipurpose Girls' School. She was a student of Betune Collegiate School with Mathematics as an additional and optional subject.
3. Before we enter into the controversy it must be placed at the very outset that an additional and/or optional paper is not com-pulsorily to be taken by a student and the only thing is that if any mark in additional and/ or optional paper above 40% are added with the grand total for the purpose of division. If any candidate fails in the additional paper or does not appear in that paper that does not affect the result of examination at all as he has to pass in all the compulsory papers and has to get pass marks in the compulsory papers.
4. In the instant case after the examination for the year 1990 was held and when the petitioner was anxiously waiting for the result, the petitioner found that her result was not published and from the Headmistress of the Bethune Collegiate School she came to know that a charge sheet, dated June 7, 1990 was issued against her wherein it was alleged that she was found copying from incriminating papers in the examination of Mathematics 1st and 2nd paper and she was asked to show cause against the said charges. There after on June 8, 1990 a fresh charge sheet was issued in cancellation of the previous charge sheet, dated June 7, 1989 in which it was alleged as hereunder: "She falsely stated her name, Roll Number in her answer script while appearing in the H. S. Examination of 1990 in 2nd paper of Mathematics. She was asked to submit her reply to the said charges within a week from the date of receipt of the said charge sheet. Thereafter, by the letter, dated July 20, 1990 the Deputy Secretary (Examination) issued a notice addressed to the petitioner wherein it appears that her examination of 1990 was cancelled. On August 8, 1990 the father of the girl, Muhammed Momtaz wrote a letter to the President of the West Bengal Council of Higher Secondary Education stating that no letter was received by him or by the student or by any of his family members from the Council intimating the charges and he was surprised to receive the letter, dated July 20, 1990 in name of his daughter Roushanra Momtaz on August 7, 1990 evening intimating her that all her examination have been cancelled for the year 1990. The writ petitioner also made a representation on the same date before the President of the Council. Thereafter, on August 10, 1990 a fresh notice was sent under the signature of Sri R. N. Munshi, the Assistant Secretary (Examination) addressed to the petitioner intimating as hereunder:
"This is to inform you that you were issued C/S No. M.P.E.C./CN/OI2 of 8-6-90 and also a call letter No. MPC/CN/12, dated 21-6-90 by post, asking you to appear before the MPE Committee for personal hearing. Considering your claim that you did not receive any of the above two letters you are hereby given another opportunity to explain your position regarding the charge of Mal-Practies against you as quoted below.
'She falsely stated her name, Roll No. in her Answer Script while appearing in the H. S. Examination of 1990 in 2nd paper of Mathematics' You are directed to appear before the M.P.E. Committee at 12 noon on 14-8-90."
5. On August 14, 1990 she duly appeared before the Mal-Practices Enquiry Committee and on that date she filed a detailed written representation denying all the charges and in the enquiry the written statement was obtained by the said Committee from the said girl student to the following affect:
"I have appeared before the M.P.E. Committee today and I have submitted another letter to the Committee denying the charge of Mal-practices framed against me. I have been shown the answer script of Mathematics 2nd paper particularly his incriminating portion of her name. I was also shown the name written thrice in the loose sheet along with the 2nd paper. The handwriting has some similarity with my handwriting. I have nothing to say against the invigilator of the centre-in-charge. This statement is made by me voluntarily."
6. It is also on record that she had to appear alone before several members of the Mal-practice Committee. It also appears that on April 18, 1990 the Headmistress of the Bagbazar Multipurpose Girls'School submitted a report to the Deputy Secretary (Examination) with regard to the writ petitioner bearing Roll No. 832-211 No. 0137-R.A. in which it was stated that int he afternoon session she wrote her name, Roll No. etc. on the answerscript of the 2nd paper which was verified and initialed by the Invigilator concerned "that on the eve of submission of the answer script of the 2nd paper she might have tampered her name, surname. Roll No. etc. in such a way (the reasons best known to her) that her candidature cannot be identified."
7. Upon hearing the petitioner and on the basis of the written statement filed by the petitioner the Mal-Practices Enquiry Committee found that as she has admitted that there was a close (underlined by us) similarity between name and signature and the tam-pared name and signature and she has no enmity with any staff in the examination hall such committee felt convinced that the candidate herself was guilty of the charges levelled against her. The said committee also recorded that the said committee had previously taken a decision and there was no law to alter the said decision already taken, but in view of special circumstances that she was not heard, she was heard and said order was passed. On the earlier occasion when an ex parte decision was taken on July 17, 1996 it was recorded by the said committee that as the candidate did not appear in the examination, but from the report it was found that the petitioner was guilty for alteration made in the answer script and it was pointed out that although it was not clear for what purpose in mind she did it. It is also an admitted position that the petitioner had passed in all the papers which were regular and compulsory papers in the said examination and on the basis of marks obtained in the compulsory papers including optional or additional papers the petitioner secured 560 marks with 2nd division and the marks of Additional Mathematics, 1st and 2nd papers, were not given as the answer scripts have not been examined. The answer scripts were produced by the learned Counsel for the Council and we have occasion to look into the said answer scripts to clear our conscience. So it is clear that excepting the marks obtained in the addi-tional Mathematics 1st and 2nd papers the petitioner had passed in all other compulsory papers and on the basis of the marks obtained she was placed in the high Second Division. If acandidate obtains 500 marks she is placed in the 2nd division and if one obtained 600 marks he will be placed in the 1st Division.
8. Mr. Pal, learned Advocate appearing for the writ petitioner (respondents herein) contended in the first place that the Council had acted without jurisdiction and acted mala fide and arbitrarily in imposing punishment upon the petitioner in a manner it has been done. It was contended that the first charge-sheet that was issued on June 7,1990 alleging adoption of unfair means in the examination by copying from incriminating documents in the examination of Mathematics 1st and 2nd papers had no actual and factual basis at all and it was submitted that this was a very shocking thing for the petitioner, but fortunately she did not officially receive the said charge-sheet containing wrong charges and ultimately she was given a charge-sheet and she appeared before the committee and fairly stated that there has been some close similarity between her writing of actual name and the tampered One over it. The petitioner's name is Roushanara Momtaz bearing Roll No. 832211, No. 0137, Registration No. being 01099-0055 of 1988-89 and her name was over written and/or tampared to 'Rachna Malhotra' bearing Roll Nb. 832274, No. 0237, Registration No. 1008.-0099 of 1988-89.
9. The petitioner in her written statement admitted that there was some similarity between her hand-writing and the over-writing on it. Mr. Pal submitted that the petitioner is a yound girl and she has stated the fact very fairly and candidly and did not suppress anything. Mr. Pal pointed out that there could not be any earthly reason on her part to put somebody's name by over-writing over the name of her inasmuch as by that process she could not make any gain out of it. It was pointed out by Mr. Pal that it was not a case of acting dishonestly or fraudulently inasmuch as no motive could be there in doing this thing. This interpolation of name by which the petitioner's name was changed, was not done or could be done by the petitioner, but was done at a subsequent stage after the answer script was collected by the staff in the examination hall.
10. A copy of the examination regulations was produced by Mr. Pal and the Counsel appearing for the Council stated that the Regulation which governs the case is Regulation of 1982 and produced a copy of the same. It was stated by the learned Counsel for the Council before us that in view of the provisions of Regulation 3(2) the petitioner was held guilty of misconduct and/or malpractice.
11. Of course it is not clear whether the said regulation had come into force and the Regulation of 1977 ceased to operate. We find that there is no Regulation like 3(2) in the Regulation of 1977 which was subsequently brought in Regulation of 1982 on which the Council relied on the basis of the said regulation that the candidate has falsely stated her name and roll number in her answer scripts.
12. Mr. Pal has submitted that Regulation 3 provides power to the Council to refuse to grant permission or to withdraw permis-
sion already granted to any candidate for appearing at any examination before, during and after such examination period if the Council finds that such candidate does not fulfil necessary (sic) for the purpose and is guilty of suppression of facts, indiscipline, misconduct or malpratice. Relying upon this Regulation and clause (2) of Regulation 3 which defines misconduct by candidate Mr. Pal submitted that on the basis of the power conferred under the said Regulation in the instant case Council has not refused permission or withdraw permission already granted and it was submitted that within the scope of the Regulation the authority is empowered to grant permission and/or withdraw permission on fulfilment of certain conditions. Mr. Pal also relied on Regulation 14 of the said regulation which provides as hereunder :
"If a candidate is detected to adopt any malpractice by suppression of facts for admission to an examination or to commit any misconduct or malpractice during the examination period as specified in clause (2) of Regulation 3, the Council shall inflict such punishment and impose such conditions on the candidates after considering the recommendations of the Committee as may be constituted by the Council to deal with such cases provided that Committee shall give an opportunity to the candidate of being heard before making any recommendation as to the punishment or otherwise."
It was submitted that there was no detection of any unfair-means at the examination hall but something was detected at a later stage. There was no proof that it was done by her for any benefit. It is the submission of Mr. Pal that the second charge-sheet dated 8-6-90 did not disclose any misconduct within the meaning of Regulation which entails punishment of cancellation of the examination and secondly it was contended that assuming that a charge-sheet discloses a misconduct which entails punishment of the nature which was imposed there was no finding sustainable in law that the petitioner girl committed any malpractice. It is further submitted that the finding of the malpractice Committee proceeds solely on the basis that the petitioner girl had admitted that "there was close similarity between her writing and actual name and the tampered name" and that it was wholly perverse because in her written statement before the Committee she denied the charge of malpractice but expressed the view or option that there was "some similarity". "Some similarity" is stated to have been deliberately converted to "Close similarity" by the members of the Malpractice Committee and on that basis she was found guilty of the sharge of malpractice. It was further submitted that in the instant case the question of adopting malpractice by the petitioner girl could not arise because admittedly the Council knew that it was her answer paper inasmuch as there were only the students appearing in the additional mathematics from the Bethune Collegiate School in that particular hall and admittedly the answers were written by her own handwriting. The only dispute that centres round the interpolation is the name on the cover page of the Mathematics Second paper script. It was submitted that there could not be cancellation of the whole examination automatically on the basis of the allegation that there had been some interpolation in the name in the front page of the answer script of the mathematics second paper which was an optional paper. Mr. Pal further submitted that unless some motive could be attributed for such interpolation on the part of the student concerned it cannot be held that she has done it with some purpose, good, bad or indifferent. Unless there is some motive there could not be any misconduct or malpractice. It was submitted that it is now an established principle that where misconduct or malpractice entails punishment there must be some motive behind it. Mistake done without any motive does not amount to misconduct or malpractice.
13. Mr. Chatterjee, learned Counsel appearing on behalf of the Council submitted in the first place that even though there was no direct evidence on the point but considering the facts and circumstances of the case and taking into consideration the report submitted by the Centre-in-Charge (sic) the top of the answer script and the statement made by the petitioner girl it must be held that the inter-
poiation was made by her in her own handwriting and for the purpose of malpractice, motive is irrelevant factor inasmuch as it could not be ascertained what benefit she would get because of such interpolation excepting that, as it was suggested, she had done very badly in this paper and as such she wanted to hide her identity. Secondly Mr. Chatterjee submitted that in the instant case the punishment was imposed after issuing a charge-sheet and after giving the petitioner No. 2 candidate girl an opportunity of being heard and in the proceeding she had stated that there was no enmity between herself and any of the members of the staff who were present in the examination hall and under such circumstances and on the basis of materials on record the decision has been taken by the Malpractice Committee observing the principle of natural justice and as such the Court should not interfere with the decision taken by the Council honestly. Mr. Chatterjee submitted that stating false name or roll member on the answer script amounts to a misconduct within regulation 3(2)(x) and in the instant case the Council acted within its jurisdiction in cancelling the examination of the candidate concerned because of disclosed misconduct inasmuch as in this case the candidate was found falsely stating name and roll number in the answer script and as such the action was taken within the jurisdiction of the Council on the basis of the recommendation made by the committee concerned. Mr. Chatterjee also pointed out that there was some suppression of facts in the writ petition on behalf of the writ petitioner but we do not wish to go into the question as in our view those are wholly irrelevant inasmuch as there was no suppression of any material facts which calls for any determination by this court. In support of his contention Mr. Chatterjee relied on the decision of the Supreme Court in the case of Board of High School and Intermediate Education, U.P. Allahabad v. Bagleshwar Prasad which the Supreme Court held that in the matter of adoption of unfair means direct evidence may sometimes be available, but cases may arise where direct evidence is not available, the question will have to be considered in the light of pro-
babilities and circumstantial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to so, Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like the Universities. It was further held that in dealing with the validity of the impugned orders passed by Universities under Art. 226, the High Court was not sitting in appeal over the decision in question; its jurisdiction was limited and though it was true that the impugned order was not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion.
14. Mr. Chatterjee also referred to cases on the question of mass copying where it was held by the Supreme Court that in the case of mass copying it is not necessary to give individual notice to the student concerned before cancellation of his examination. It is not necessary to refer to those cases in the facts and circumstances of the present case. Lastly it is submitted by Mr. Chatterjee that when the answer script was handed over to the student concerned the invigilator signed on the top of the answer script after verifying that the name and Roll No. of the student concerned have been duly filled up and in the instant case the invigilator signed on the answer script after verifying the name and Roll No. and it was suggested that interpolation in the name and Roll No. was made by her before the answer script was handed over the invigilator concerned. The original answer script had been produced before us from which it appeared that the answer script was appended with extra papers which contained five blank pages and the extra papers also bear the signature of the invigilator. But in the extra papers the name Rachna was interpolated on the name Roushanara but not the word Malhotra. The roll number and the registration number had not been interpolated. Whether there was any such student known as Rachna Malhotra having that Roll No. and registration No. in that hall, this aspect of the matter was not looked into nor enquired by the Malpractice Committee according to the submission of Mr. Chatterjee. Accordingly it was submitted by Mr. Chatterjee appearing on behalf of the Council that this Court should not interfere with the decision taken by the Council in this behalf which was inflicted correctly and in accordance with law and observing the principles of natural justice. As this Court is hearing the main writ petition sitting in Division Bench for the ends of Justice and by consent of parties this Court has taken care to look into the original records to satisfy our conscience and also went through the pleadings. Admittedly in the instant case the first charge-sheet was issued on 7th June, 1990 alleged that the petitioner was found copying from incriminating documents and admittedly this charge had no basis at all. Subsequently the charge-sheet was replaced by another charge-sheet dated 8-6-90 wherein it was alleged that she had falsely changed her name and Roll No. in the answer script while appearingin the Higher Secondary Examination in the second paper of Mathematics. Originally punishment was inflicted without giving the petitioner an opportunity of being heard on 20th July, 1990 but on the basis of representation made by the petitioner and her father the matter was reopened and the petitioner was given hearing and after hearing a final decision was taken in which it was found that there was no reason to alter the decision already taken in this matter for cancellation of the entire examination of the petitioner's Higher Secondary Examination 1990. In the instant case the dispute centers round with regard to the alteration of the name overwritten on the original name in the Mathematics second paper which was admittedly an optional and additional paper and admittedly the petitioner had a choice not to appear and even if the petitioner appears and gets plucked in this subject there will be no effect on the result of the examination and if any extra mark is obtained above 40% the same would be added with the grand total for the purpose of division and for no other purpose. If this be the position, in that event, we have to consider the fact whether this has been done by the petitioner and what was the motive behind such interpolation, if made by the petitioner. Admittedly there was no evidence that such interpolation was made by the petitioner. The headmistress of the Bagbazar Multipurpose Girls' School had reported against the petitioner on 19th April, 1990 that after receipt of answer script from the student concerned, it was subsequently found that, in the afternoon the petitioner student concerned who wrote her name, roll number etc. on the answer script of the Council which was verified and initialled by the invigilator concerned and that on the eve of submission of the answer script of the Mathematics second paper she might have tampered her name, surname, roll number etc. in such a way that her candidature could not be identified. It was also pointed out that reasons for such action was best known to the candidate concerned. It is not the case of the respondents that tampering of the name which was detected by them before receipt of the answer script which was deposited by the candidate at the examination hall. It came into the tight before it was forwarded to the Council for examination by the school authority. It must be remembered that only two students appeared on this subject in the last examination in this paper. Considering the totality of the facts and circumstances of this case and the materials on record we are of the view that the possibility of making such interpolation by the petitioner has to be ruled out inasmuch as it does help her and by this she could not get any benefit in any manner whatsoever. It was suggested by the appellant that it was done by her to hide her identity. In the facts and circumstances of this case it was not possible to hide her identity changing the name and Roll No. in the Additional Mathematics Second Paper. The petitioner could not make any gain out of this act so that it could be said as an act of dishonesty. Unless there is wrongful gain to one person or wrongful loss to another, an act would not be dishonest; It also cannot be said to be fraudulent inasmuch as a person is said to do a thing fraudulently if he does that thing with an intent to defraud but not otherwise. It can also not be said to be a forgery. Forgery must be made for causing loss or damage or injury to public or any person. It is not a case of cheating or false personation at the examination. There is no deception and there is no intention to cause any damage or harm to anybody or wrongful gain to her. This is the circumstance in which we have to decide whether on the basis "of the state of affairs as it was in existence the girl was required to be punished by the Council as it was done in the instant case. The Malpractice Committee while imposing the ex parte punishment on 20th July, 1990 clearly stated that it is not clear with what purpose in mind she did it but it is surely a case of malpractice at the examination. We are unable to appreciate this fact that unless something was done without any motive that would amount to misconduct or malpractice at the examination. We are remindful of the legal position that in the matter of interfering with the decision of a domestic tribunal particularly in an educational matters the Courts should be slow in disturbing or interfering with the decision taken by such authority. True the Council is entrusted by the statute to hold examination and to impart higher secondary education in this state and for that purpose they are the sole authority to ay down standard for the purpose of holding examination. It is also the duty of the Council to stop malpractice in the examination. Discipline is also required to be maintained by the Council, It is a fundamental principle of good administration that Justice not only be done but seem to have been done. Fairness in action and fairness in procedure are equally important principle for any good administration. Clause 3 of the Regulations provides that the Council shall have power to refuse to grant permission or to withdraw permission already granted to any candidate for appearing at any examination before, during and after such examination period if the Council finds that such candidate does not fulfil necessary conditions for the purpose and is guilty of suppression of facts, indiscipline, misconduct or malpractice. Malpractice has been defined in sub-clause (2)(x) which provides that if a candidate falsely states his or her name. Roll No. in his or her answer script the candidate shall be held guilty of misconduct or malpractice. Regulation 14 provides that if a candidate is detected to adopt any malpractice by suppression of facts for admission to an examination or to commit, any misconduct or malpractice during the examination period as specified in Clause (2) of Regulation 3, the Council shall inflict such punishment and impose such conditions on the candidate after considering the recommendations of the Committee as may be constituted by the Council to deal with such cases provided that Committee shall give an opportunity to the candidate of being heard before making any recommendation as to the punishment or otherwise. In this connection Mr. Pal submitted relying upon a decision of the Privy Council in Maradana Mosque (Board of Trustee) v. Badi-Ud-Din Mahmud, reported in 1966(1) All ER 545 particularly the expression 'if a candidate is detected committing an offence and pointed out that power could be exercised if such malpractice was detected at the examination". The present tense used by the Rule making authority is very much significant. No other expression has been used. In the case referred to by Mr. Pal that the Privy Council had occasion to construe the expression 'is being administer-ed'in S. 11 of a Cylon Statute by emphasising the present tense and held that jurisdiction to make an order under S. 11 would arise only if the Minister was satisfied that the present conduct of the school and not the past was such as to bring it within the mischief of the section.
15. It is the case where the examination of a student is sought to be cancelled on the ground that she had adopted malpractice in the examination hall. The word "malpractice" has a definite connotation. According to Black's Law Dictionary malpractice means "professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers and accountants. Failure of one rendering professional service to exercise that degree of skin" and bearing commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss or damage to the recipient of those services or to those entitled to rely upon them....." So it is clear that in all cases of malpractice there should result in some form of injury, loss or damage and/or wrongful gain by some persons at the costs of other. In the instant case, admittedly the student concerned wrote her name, roll number and the registration No. correctly and that it was alleged that there had been some interpolations in writing. In such a case, it is quite but natural that the interpolations had to be made on the existing style and pattern of writing and the similarity must be there. The fact alone does not and cannot go to show that it was done by handwriting of the girl student concerned and by no other person. Admittedly, the girl student concerned had not made any wrongful gain whatsoever. She appears to be at least above the ordinary standard as in all compulsory papers she had got a little below first division mark. In such circumstances it cannot be held it was done by her to hide her identity. There is another aspect of the matter which was lost sight by Malpractice Committee and the Council that it was neither possible nor feasible on her part to know the name, roll number and registration number of another candidate which was overwritten on her paper. It has not been alleged that there was no such candidate known as Rachana Malhotra. It was the duty of the Hall-in-charge to check the name, roll number etc. of the candidate before the answer scripts are collected and when they had collected without any difficulty, it cannot be alleged that it was done by her before handing over the papers. The question remains how she would do such a thing which would cause prejudice to her. Admittedly, there were serious lapses and/or negligences on the part of the Headmistress and other staff of Bagbazar Multipurpose Girls' High School where the students sat for the examination. Further there was ample scope for doing this mischief by any invigilators or persons handling with the papers after the same was deposited by the student concerned and before it was sent to the Council. The possibility of involvement of some persons at the instance of the other candidates could not be ruled out. The papers were produced before this Court in original and looking answer scripts it appears to us that there was an attempt to take out the cover page. It may be a attempted case of replacement of one cover page of one girl in place of the cover page of the girl student concerned. The act of dishonesty and malpractice can no longer be said to be confined to the students community alone and it cannot be said that the others who are part of the educational system, are above board. In our view, the malpractice must mean some practices which were adopted by the students which was unfair and for the purpose of making some unlawful gain, such as copying from other answer script or copying from books or taking help of some other persons. Malpractice of the examination cannot be given too wide a meaning. There may be cases where the students might have changed the pen, but changing the pen and writing in two different inks has been characterised as malpractice. We are of the view, that on such ground alone a student cannot be punished for committing malpractice. In our view, while cancelling the examination of the student concerned on the ground of malpractice which was adopted by the student concerned, was unfair, improper and/or adopted a procedure by which the student concerned had made some gain. It must be unlawful and illegal. The Council may frame any rules according to its whims, but before a student is sought to be punished on the ground of adoption of practice such malpractice, in our view, must mean a practice which was adopted for the purpose of making some unlawful gain and/or thing which was unfair. In our view, the Council had acted in a manner which was beyond the zone of reasonableness. It was neither fair nor proper on the part of the council to take such an action in this matter. The Council had a discretion in the matter but the Council had failed to act properly and to exercise its discretion in the matter in proper manner. Discretion is a science or understanding to discern between falsity and truth, between wrong and right and not according to their wills and private affections. (See para 10.15 Administrative Law by Schwartz). In Halsbury Laws of England, 4th Edition (reissue), Vol. I(i) at para 78 it was said that "The Courts will quash exercises of discretionary powers in which there is not a reasonable relationship between the objective which is sought to be achieved and the means used to that end or where punishments imposed by administrative bodies or inferior Courts are wholly out of proportion to the relevant misconduct." In a case like this the Court will examine the decision-makers action more rigorously than in other cases, as in this case there are public law elements in it and the interest of the society at large is depended on such action. It is one thing to eradicate corruption and serious malpractice and it is a quite different thing to punish a student on hypertechnical lapses which does not and cannot affect the result of the examination. The scope and ambit of malpractice cannot be enlarged to an unknown concept and/or to create artificial offences which had no real or reasonable connection with the ordinary course of things in so far educational matters are concerned. The scope of regulation 3 and regulation 14 are quite different. Regulation 3 provides for refusing or withdrawal of permission while Regulation 14 provides that if a candidate is detected to adopt any malpractice by suppression of facts for admission to an examination or to commit any misconduct or malpractice during the examination period as specified in Cl. (2) of Regulation 3, the Council can cancel the examination. In the instant case, admittedly, such alleged malpractice was not detected in the hall in question. Such malpractice, if any, was detected after the examination was over. The use of expression is very much significant. If a candidate is detected committing an offence and pointed out that power would be exercised if such malpractice was detected at the examination. The principle laid own in the case of Mara-dana Mosque (Board of Trustee) v. Badi-Ud-Din Mahrnud, reported in 1966(1) All ER page 545 is fully applicable in the instant case. In our view, the present tense in the statute is very much significant. No other expression has been used. The word 'is' cannot be read in the past tense. In the matter like this Court cannot make violence to the expression used.
The word "is detected" must mean detection must be made in the hall itself before the answers scripts are deposited by the student concerned. No other interpretation could be given as the same would result in impracticable result. A purposive construction has to be given. We cannot interpret the word 'is' in such a manner that would result disproportionate counter mischief. The purpose was to detect malpractice which is ordinarily known in the field of examination. By providing an artificial definition of malpractice the Court cannot give any interpretation to such a regulation which would produce in artificial result and would produce disproportionate counter mischief. Rules have been framed to stop the adoption of unfair means of the student concerned. But in the instant case, it appears that the Council had proceeded in the manner which would produce an illogical and inconvenient and impracticable result. This Court seeks to avoid a construction that produces an unworkable and impracticable result, particularly in the context of this case. Court's duty is to encourage the educational authorities for stopping unfair means at the examination. But it is not the duty of the Court to give an interpretation to any rule, which would be against common sense and would punish a person for not committing any offence or not adopting any unfair means.
16. In the instant case, the Council in the affidavit has stated that as the student concerned has not been able to do well in the Mathematics second paper, she is trying to hide her identity. It is admitted that the Additional Mathematics 1st paper was not examined at all. The allegation was with regard to Additional Mathematics 2nd paper that was also not examined. In the instant case, the council has come forward before this Court with the statement which had not actual or factual basis. It is not understood why and how the Council can take a stand that the student who had done bad in this paper, tried to suppress her identity. In the answer script of her examination we are unable to understand how the Council can make such a statement which is contrary to record. Without examining the papers it was not possible on the part of the Council to make such a statement which appears to us wrong. There are limits of surmise and conjecture and on the basis of surmise and conjecture we are not inclined to punish a girl in the beginning of her career and we do not propose to put an end of the academic career of a girl who has done well in all the compulsory papers and has obtained 560 out of 1000 marks and what has happened in the last paper is a mysterious thing for which it would be a mere travesty of justice if the girl concerned is held to be liable for the same. We are of the view that the Board has taken a reckless stand to find out the alleged motive of the student concerned. The Council had acted in a manner which is not expected from the Council, inasmuch as the fate of lakhs of students in the State are depended on such authority who is required to deal such matter with some sense of responsibilities. They must remember that they are not dealing with ordinary criminal but they are dealing with the students who are normally innocent. There may be some dishonest students, but that does not create any presumption that all students, are bad and all persons who are in charge of duty in taking examination, are above board. Admittedly, there was no charge of copying against the student concerned, but the high power Malpractice Committee had issued a charge-sheet charging the student concerned for adoption of unfair means. There is a limit of acting in a reckless manner. It is also within the knowledge of the member of the Board who are also the people of this state that every year when the results of the examinations are out, a large number of students commit suicide who become cases that are made by some unsuccessful students. This tendency on the part of the students for committing suicide had to be stopped by some means. We are sorry to place on record that the Council and the Malpractice Committee were indifferent in such a serious matter. They are required to act carefully. What was done in the instant case, is nothing but acting mechanically and in a manner which is subversive to the cause of education. The Malpractice Committee should take care in future and should not take matter in a cavalier fashion. It is their duty to find out the dishonest boys and to punish them. But in all cases they are required to act fairly and reasonable, simply because power is conferred upon them, they cannot act in any manner, they like. They should not act wholly out of proportion to the relevant misconduct alleged. Things which are unreasonable or irrational are beyond sense of proportion or wholly out of proportion.
17. Considering the facts and circumstances of the case, we are of the view that the allegation against the student concerned does not amount to any malpractice which warrants cancellation of the examination of the student concerned. Even assuming that there was some wrong with regard to Additional Mathematics, as because that was not a compulsory paper that cannot vitiate the entire examination. In our view, unless malpractice is detected in the examination hall, the regulation in question could not be invoked. Something done subsequently by somebody whose identities are not known, cannot be made a ground for punishing a student and lastly, we are of the view that there was no reasonable ground for inflicting the punishment upon the student concerned by casting a permanent stigma on her life at the beginning of her career.
18. Accordingly, we hold that the punishment that was inflicted by the Council by cancellation of the petitioner's examination in Higher Secondary Education 1990 is illegal and is set aside. The Council is directed to get those two Additional Mathematics papers examined and to allot marks which the student is entitled to and on that basis to issue a fresh mark sheet. The petitioner is declared to pass the examination and the only thing that remains to be decided on the basis of the marks obtained in Additional Mathematics 1st and 2nd papers for the purpose of ascertaining the division. By an-interim order the A Council was directed to declare the result of the compulsory papers and on the strength of the interim order passed by the learned trial Judge, the Girl student concerned was admitted to Raja Bazar Science College, Calcutta. The said admission to confirmed. The Council shall issue a fresh mark-sheet in terms of this order after examining these two papers within a period of one month from today. Accordingly, the writ petition succeeds. Let a writ in the nature of mandamus commanding the respondent council to cancel, withdraw and rescind the punishment inflicted on the petitioner student on 14th August, 1990 cancelling the petitioner's examination and also commanding them to publish the result of the petitioner after examining the two papers in Additional Mathematics within one month. The provisional admission in the college is hereby confirmed and made final.
19. Accordingly, the writ petition is allowed. The appeal filed by the appellant is dismissed. Normally we do not impose any cost in writ matters but considering the peculiar facts and circumstances of the case the Appellate Council is directed to pay cost to the writ petitioner assessed at 100 G.Ms.
20. Let a xerox copy of this judgment be given to both the parties on payment of usual charges and on an undertaking to obtain a certified copy of this order.
Sachi Kanta Hazari, J.
21. I agree.
22. Order accordingly.