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3. Relying on the aforesaid counter affidavit filed by the Opp. party No. 3, the Principal-cum-Centre Superintendent of Biju Pattnaik College, Mr. P. K. Nanda, learned Counsel for the petitioners submitted that there was no report submitted by the Centre Superintendent or the invigilators complaining that there was any mal-practice adopted by the petitioners in Physics Paper-I at the time of the examination and in the absence of any such report, the conclusion arrived at by the Council that there was mal-practice amongst the students* at the time of the examination in Physics Paper-I on 29.3.2000 was wholly arbitrary and vitiated by mala fide. Mr, Nanda argued that from the mere fact that the answers of the candidates to some of the questions were identical would not mean that the candidates have adopted mal-practice. He submitted that the decision to award zero mark to all the students of Biju Pattnaik College including the petitioners has been taken by the Council for extraneous considerations. Mr. Nanda cited the decision of the Supreme Court in Rajesh Kumar and Anr. v. Institute of Engineers (India), (1997) 6 SCC 674 in which the Institute of Engineers came to the conclusion that 13 candidates who had taken the A.I.M.E. Group 'E' examination conducted by the Institute of Engineers on 1.6.1990, had adopted the malpractice on the basis of similarity of answers in the answer books of the 13 candidates and the Supreme Court held that such similarity of answers could be a result of cramming from a common source and cannot per se be evidence of any conspiracy between the crammers to adopt unfair means in the examination. Mr. Nanda next submitted that in the case of Board of Secondary Education, Orissa, Cuttack V. Gayatri Hota and others, 91 (2001) CLT 499, this Court held that only because some of the answers, that too, in respect of students who were appearing in the examinations in different halls, a conclusive conclusion cannot be reached that they were involved in mass malpractice. He also cited the decision of the Allahabad High Court in Harish Chandra Tewari and Ors. v. The Board of High School and Intermediate Education, Uttar Pradesh, Allahabad, AIR 1981 Allahabad 144 on the same point. Mr. Nanda next submitted that the case of Balia Women's College v. Council of Higher Secondary Education, Orissa and Ors., 1997 (I) OLR 230, a Division Bench of this Court has held that what could be considered mass copying cannot be laid down with mathematical precision and it has to be decided on the facts and circumstances of each case as to whether there has been mass copying at a particular examination centre. He argued that in.the facts and circumstances of the present case when there was no material whatsoever indicating that the candidates rescued to mal-practice or copying at the time of the examination, the Court cannot come to a conclusion that there has been mass copying at the centre in which the petitioners took the examination in Physics Paper-I. He contended that no show cause was issued to the petitioners before the decision was taken by the Council that mass mal-practice has been adopted in the Physics Paper-I examination at the centre in which the petitioners took the examination. Mr. Nanda finally submitted that if the petitioners had resorted to mass mal-practice in Physics Paper-I, the Council would have issued a notification cancelling the Physics Paper-I examination taken by the petitioners. But no such notification has been issued by the Council and instead in the results of the petitioners published on 1.7.2000, the petitioners have been awarded '0' (zero) mark in Physics Paper-I. Mr. Nanda submitted that it is only in the counter affidavit filed on behalf of the Council and the Controller of Examinations, Council of Higher Secondary Education, Orissa (Opp. parties 1 and 2) that for the first time it has been alleged that the petitioners have resorted to mal-practice in Physics Paper-l and for this reason, they have been all awarded '0' (zero) mark in the said paper. Mr. Nanda cited the decision of the Supreme Court in Union of India and Ors. etc. v. Mario Cabral e Sa, AIR 1982 SC 691 for the proposition that public orders, publicly made, in exercise of a statutory authority cannot be construed in the fight of explanations subsequently given by the officer making the order, of what he meant or of what was in his mind, or what he intended to do. According to Mr. Nanda, this is a fit case in which the Court should direct the Opp. parties 1 and 2 to declare the marks that the petitioners have obtained in Physics Paper-l.

In view of the above observations, it appears that mass malpractice has been adopted at the concerned centre in Physics-l."

"Thus, after verifying all the 69 answer papers in Physics Paper-I, the Expert Committee has come to the conclusion that mass malpractice has been adopted at the centre because there were identical answer to several questions in the answer papers.

6. The contention of Mr. Nanda, learned counsel for the petitioners, however, is that from mere identity of answers in the answer papers of the petitioners, no conclusion can be reached that mass malpractice has been adopted at the centre in which the petitioners took the Physics Paper-I examination because such identity answers cannot be ruled out when the petitioners all belonged to one institution and could have crammed the answers from a common source. It is difficult to accept the said contention of Mr. Nanda because there are also identical errors in the answers to the question Nos. 2(c), 3(f) and 3(j) as per the report of the Expert committee and such identical errors in the answers cannot be the result of cramming from the same source. Further, there are identical answers to question Nos. 1(c), 2(f) and 3(g) and the nature of the question Nos. 1(c), 2(f) and 3(g) are such that identical answers could not be given by the candidates. From the question paper of Physics Paper-l, the said question Nos. 1 (c), 2(f) and 3(g) are extracted hereunder:

"......... The text of a book as the common source for cramming establishes no connection. That per se cannot be evidence of any conspiracy between the crammers to adopt unfair means in the examination unless there be material to show that there was copying of the answer-books, responding from the answer-book of one of the candidates, or directly from the book leading to the copying by others........."

But in the present case, the reports of the Assistant Examiners and the Expert Committee show that there are identical errors in the answer to question Nos. 2(c), 3(f) and 3(j). Obviously such identical errors cannot be the result of cramming from a common text book or material. Further, the report of the Expert Committee shows that the candidates had given peculiar identical answers to question Nos. 1(c), 2(f) and 3(g) and the nature of the said questions are such that ready answers will not be available to the said questions from any text book or material.