Nidhi Kaim Vs. State of Mp and Ors Etc, on 12th May 2016, Supreme Court of India: Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 1727 OF 2016
Nidhi Kaim …Appellant

Versus

State of Madhya Pradesh & Others Etc. … Respondents

WITH

1. The Madhya Pradesh Vyavsayik Pariksha Mandal Adhiniyam, 2007 [The
Madhya Pradesh Professional Examination Board Act, 2007] (hereinafter
referred to as ‘the Act’) came into force on 15th October 2007. Section
3[1] of the said Act contemplates establishment of a Board (a body
corporate) by a notification of the State Government. Admittedly, as on
today, the notification constituting the Board has not been issued, but a
body constituted earlier under various executive orders[2] of the State of
Madhya Pradesh (hereinafter referred to as “the BOARD”) continues to be in
existence. It carries on various activities.

2. One of the objectives of the statutory Board specified under Section
10 is as follows:
“(a) to conduct entrance examinations for admission to various professional
and other educational institutions on the request of the State Government,
other State Governments, Central Government, Universities and national or
state level institutions.”

3. It appears that admissions to various medical colleges either
privately managed or managed by the government in the State of Madhya
Pradesh are regulated by a common entrance examination [called as “Pre-
Medical Entrance Test (PMT)]. Such an examination was conducted annually
by the BOARD. The Act came to be passed with a view to create a statutory
basis for the BOARD which, inter alia, is required to conduct entrance
examinations for admissions into various educational institutions including
medical colleges. Unfortunately, the notification contemplated under
Section 3 never came to be issued but everybody in the administration of
the State of Madhya Pradesh proceeded all these years on an assumption that
the BOARD (a mythical beast) would somehow became the body contemplated
under Section 3 of the Act. This aspect of the matter is one of the issues
in the case; and, therefore, I shall deal with it later in this judgment.

4. Entrance examination for admissions into medical colleges for the
year 2013 was conducted by the abovementioned BOARD on 7.7.2013. On the
same day, a crime came to be registered in FIR No.539 of 2013 alleging
commission of various offences pursuant to a large scale conspiracy in the
context of the examination. The FIR came to be registered against several
persons including students and some employees of the State of Madhya
Pradesh who were working in the administration of the BOARD.
5. The Chairman of the BOARD also caused some enquiry[3] into the
allegations. By two orders, dated 9.10.2013 and 6.12.2013, the BOARD
cancelled the results of 345 and 70 candidates respectively. As a
consequence, admissions granted to the abovementioned students in various
medical colleges stood cancelled. Challenging those orders, a batch of
writ petitions came to be filed before the Madhya Pradesh High Court. All
the said writ petitions were dismissed by an order dated 11.4.2014 of the
Division Bench of the Madhya Pradesh High Court in Ku. Pratibha Singh v.
The State of Madhya Pradesh & Others. The correctness of the said judgment
was questioned in SLP (C) Nos.13629-630 of 2014 (Pooja Yadav & Another v.
State of M.P. & Others) and 16257 of 2014 (Sumit Sinha v. State of M.P. &
Others), which were dismissed by orders dated 19.5.2014 and 08.08.2014
respectively confirming the judgment of the High Court.

6. Parallelly, the police investigated the crime (FIR No. 539/2013)
mentioned supra. Some officers of the BOARD and others were arrested.
Pursuant to information gathered during the course of the investigation of
the abovementioned crime, the investigating agency sent two letters dated
23.10.2013 and 31.12.2013[4] to the BOARD. It is informed at the bar that
the first of the abovementioned letters informed the BOARD about some
irregularities in the conduct of the PMT of 2012, and the second called
upon the BOARD to cause an inquiry into and provide certain information
with regard to the PMTs of the years 2009 to 2011. On receipt of the said
letters, the BOARD decided to enquire into the PMT process of not only the
years 2009 to 2012 but also the year 2008.

7. The enquiry was conducted. The pattern of the enquiry is similar to
the one conducted concerning PMT 2013. Based on the enquiry reports, the
Board came to two conclusions: (i) there was a tampering with the
examination process in each one of the abovementioned five years; and (ii)
the appellants as well as some others students[5] resorted to unfair means
at the said examinations. They were beneficiaries of such tampered
examination process. The BOARD, therefore, cancelled the admissions of the
appellants and some others. Aggrieved, a large number of students, whose
admissions were cancelled, approached the Madhya Pradesh High Court by
filing writ petitions. Majority of the writ petitions came to be dismissed
by a common judgment dated 24.09.2014. The remaining writ petitions came to
be dismissed by another common judgment dated 7.10.2014 in the light of the
judgment dated 24.09.2014. The instant appeals arise out of the said
judgments preferred by some of the unsuccessful petitioners therein
(students).

8. Before I proceed to examine the correctness of the impugned
judgments, I think it would be profitable to describe broadly the
examination process (with respect to which there is no dispute) conducted
by the BOARD and also the nature of the allegations which formed the basis
for the cancellation of the admissions of the various students.

THE PROCESS:
9. Each year the BOARD conducted a common entrance examination (for
example PMT 2013) for all students aspiring to secure admission to various
medical colleges in the State of Madhya Pradesh. Each year a large number
of students (in tens of thousands)[6] not only from various parts of the
State of Madhya Pradesh but also from other States appear for such
examination. The examination is conducted in different cities/towns of
Madhya Pradesh and in each city/town there is one or more identified
examination centres depending upon the number of students choosing to
appear for the PMT from that city/town. These examination centres are
usually located in existing educational institutions in the city/town.

10. Each of the students applying is initially given a registration
number and is subsequently allotted a Roll number. It is the agreed case
of all the parties that each of the students is entitled to choose a
city/town where the student would like to take the examination. Depending
on the choice of the city/town in which the student wishes to take the
examination, students are allotted a specified examination centre or
centres (depending upon the number of students) in the city/town, as the
case may be. The process of generating roll numbers and allotment of the
centre of examination to each one of the students is done by a computerised
process. Such a process is designed and applied by an in-house computer
expert body of the BOARD.

11. According to the BOARD, such a computerised process of generating
roll numbers and allotting the students to various examination centres in
the State is by following some logical pattern. The pattern may vary from
year to year and need not be the same for all the years. For example, in a
particular year, the allotment of roll numbers could be in the alphabetical
order of the names of the students, whereas in another the same could be on
the basis of the date of the application of the student. (I make it clear
that I am not examining the exact logic applied in each of these years. It
was only meant to illustrate the possibilities of the variations in the
pattern.) What is important is the existence of a pattern and logic
underlying the generation and allotment of roll numbers and examination
centres to the students. The existence of such pattern is of great
significance and relevance in the instant case.

12. Admittedly, there was no show cause notice to any one of the students
before cancelling their admissions. No speaking order indicating the
reasons which formed the basis for the cancellation of the admissions was
either passed or served on any one of the appellants. Reasons were spelt
out for the first time in the High Court. It appears from the impugned
judgment and the submissions made before us that respondents relied upon
circumstantial evidence[7] to reach the two conclusions referred to in para
7 (supra).
13. The case of the appellants before the High Court was that:
(i) the impugned orders cancelling admission of the appellants were
passed in flagrant violation of the principles of natural justice. None of
the appellants had been given either –
a show cause notice indicating the allegations on the basis of which their
admissions were proposed to be cancelled;

any order in writing containing the reasons which formed the basis for the
orders cancelling the admissions.

Therefore, the appellants are unaware of the reasons which prompted
respondents to cancel the admission of the appellants. Consequently,
appellants had no opportunity to defend themselves against the impugned
action of cancellation of their admissions. The entire exercise was
undertaken behind the back of the appellants. Therefore the action of the
respondents is illegal and void ab initio on the ground of non-compliance
with the requirement of the principles of natural justice, more
particularly the rule of audi alteram partem.

that the circumstances (mentioned in the Footnote No.7) which formed the
basis for the twin conclusions of the respondents, that there was a
tampering with the examination process (in each of the years in question)
and that the appellants and others are beneficiaries of such tampered
examination process are without any proven factual basis and are pure
conjunctures. (Certain ancillary submissions made in this regard will be
considered later in this judgment).

The appellants also argued very forcefully that the impugned action against
the appellants who belong to different batches (commencing from 2008) is
unsustainable in view of the long lapse of time between the date of the
alleged malpractice committed by the appellants and the date of the action
by the respondents. It is submitted that the impugned action is arbitrary
and violative of Article 14 of the Constitution because the penalty is
disproportionate to the alleged misconduct of the appellants.
14. On the other hand, the defence of the respondent authorities has
been:
(i) it is a case of “mass copying” similar to a situation obtaining in
The Bihar School Examination Board v. Subhas Chandra Sinha & Others, (1970)
1 SCC 648 (hereinafter referred to as Sinha’s case) wherein this Court held
that in such a situation, there is no requirement of holding a “detailed
inquiry into the matter and examine each individual case to satisfy … which
one of the candidates had not adopted unfair means”. Therefore, there is
no violation of principles of natural justice as contended by the
appellants;
(ii) since the appellants secured admission through fraudulent means, they
cannot be permitted to retain the benefits accruing out of such a fraud,
merely on the ground that there was some delay in detection of the fraud.
15. The High Court agreed with the respondents and held that it is a case
of “mass copying” and there was no need to comply with the requirement of
the audi alteram partem rule. In coming to the conclusion, the High Court
relied upon its earlier decision in Pratibha Singh’s case rendered in
connection with PMT 2013[8]. The High Court also agreed with the conclusion
of the respondents that there was a logical pattern in the allotment of
Roll numbers and the examination centres to the students (with respect to
each of the years in question) and the said logical pattern was breached
with respect to the appellants. The High Court took note of the fact that
the conclusions of the BOARD are based on the opinion of an expert
committee (essentially consisting of people qualified in computer science)
and the same cannot be interfered with in judicial review.

16. The 2nd submission is also rejected by the High Court on the ground
that all the appellants resorted to unfair means in an organized manner (in
collusion with officials of the BOARD and certain other criminal elements
who played a major role in perpetrating such a large scale illegal
activity) and played fraud on the examination system. The High Court,
therefore, opined that appellants cannot be permitted to retain the benefit
obtained through fraud merely because there was some time gap in detecting
the fraud.

17. Hence, the instant appeals.

18. On behalf of the appellants, it is argued before us:
(i) that the cases on hand are not cases of ‘mass copying’. Having
regard to the small number of the students whose admissions have been
cancelled and having regard to the large number of students who appeared
for the examination in each of the years in question (the details of which
are already noted in para 7 supra), the number of students who were alleged
to have copied constitute a small fraction, therefore, it cannot be said
that these are cases of “mass copying”.

Apart from the objection based on the statistical data, it is also the case
of the appellants that even conceptually the case on hand cannot be a case
falling under the category of “mass copying”. According to the appellants,
the expression “mass copying” has a definite legal connotation as discussed
in Bihar School Examination Board case (supra) and the case on hand does
not answer the description of “mass copying” as understood in the said
case.
Cancellation of the examination and the admissions of the appellants
without complying with the rule of audi alteram partem is illegal and
assuming for the sake of arguments that there was some basis (the expert
committee opinion) for the respondents to draw certain inferences which
formed the basis for the allegations constituting the circumstances leading
to the twin conclusions impugned by the appellants, there are considerable
number of exceptions to each one of the circumstances [mentioned in para
(iii) to (vi) of the Footnote No.7] asserted by respondents. Therefore,
the decision of respondents that the result of examination of all these
appellants required to be cancelled on the ground that they resorted to
“mass copying” without even giving a reasonable opportunity to the
appellants to defend is flawed and legally untenable. In view of such
exceptions, it is imperative in law that the decision to cancel admissions
of the appellants must be preceded by an appropriate enquiry compliant with
the principles of natural justice.

(iv) The appellants also made some ancillary submissions to demonstrate
that the evidence relied upon by the respondents is based on facts (the
details will be considered at the appropriate place) which render the
evidence unreliable and unscientific.

(v) Even otherwise, cancellation of result of the appellants after a long
lapse of time from the date of the commission of the alleged malpractice
(ranging from 1 to 5 years) is an irrational exercise of the power by the
BOARD. It is argued that apart from the irrationality, such a course of
action would simply ruin the lives of these candidates as they would lose
precious number of years in the prime of their youth and they would be
barred by age to pursue any other course at this stage.

I make it clear that it is not the argument of any of the appellants herein
that the allegations [mentioned in the Footnote 7], even if proved to be
unexceptionable, would not be sufficient in law to justify the impugned
action of the respondents.

(vi) In the absence of a notification contemplated under Section 3 of the
Act, there is no validly constituted BOARD under the Act and, therefore,
the BOARD is without any authority of law to cancel the examinations so far
as they pertain to the appellants and also the admissions of the
appellants.

DISCUSSIONS:

19. I shall first deal with the submission No.(vi) of the appellants i.e.
in the absence of the notification contemplated under Section 3 of the Act,
the third respondent – a non- statutory Board – has no legal authority to
cancel either the examination conducted by it or the admissions of the
appellants to the various medical colleges.

20. The learned counsel for the appellants pointed out to Section
24(2)(e) of the Act which authorises the Board constituted under Section 3
of the Act to make regulations providing for “imposition of penalties on
candidates using unfair means or interfering in the examinations conducted
by the Board” and argued that such power would be available only for the
statutory Board, if ever constituted and the third respondent herein has no
authority in law – in the sense of legislative sanction to take the
impugned action.

21. Admittedly the notification contemplated under Section 3 of the Act
has not been issued so far. The composition and legal structure of the
third respondent (BOARD) was discussed elaborately in Pratibha Singh’s
case. It appears from the said judgment that the third respondent (BOARD)
was brought into existence “for conducting the examination for admission in
the medical, engineering and agricultural universities and for admission in
the polytechnics and initiate the necessary proceedings in this regard” by
a notification dated 17.4.1982 issued in the name of the Governor. The
said notification was published in the official gazette on 19.4.1982.
Such a BOARD was initially constituted with 13 members and reconstituted
from time to time. Therefore, the BOARD is a non-statutory ‘body’. It is
not a corporate entity. It has no existence apart from the government.
Barring the vague statement (extracted above) regarding the purpose for
which the BOARD is created, the Notification dated 17.4.1982 does not
contain any details regarding either the powers or the functions of the
BOARD[9].

22. The net result is that the entire exercise of holding the PMT and
regulating the admissions of students into the various medical colleges
would be only an exercise of the executive powers of the State of Madhya
Pradesh.

If the third respondent BOARD is without any authority of law for taking
the impugned action, it is equally without any authority of law to conduct
the common entrance examination (PMT).

Any admission based on the marks obtained at such common entrance
examination would be equally without any authority of law in the sense of
legislative sanction. Whatever be the legal implications of the exercise
of such power vis-à-vis others (which we are not called upon to examine in
these appeals), the appellants cannot be heard saying that the BOARD has no
authority of law to take action against them because they had appeared for
the said examination and taken the benefit of securing admissions into the
various medical colleges on the basis of the marks obtained by them in the
examination.

Even otherwise, the argument of the appellants is required to be rejected
for the following reasons:

Under the scheme of our Constitution, the executive power of the State is
co-extensive with its legislative power[10]. In the absence of any
operative legislation, the executive power could certainly be exercised to
protect the public interest[11]. The right of each one of the appellants
herein for admission to the medical colleges in the State of Madhya Pradesh
is itself an emanation of the State’s executive action. No doubt, even
executive action of the State can create rights. Unless there is something
either in the Constitution or law which prohibits the abrogation or
abridgment of rights, it is permissible for the State to do so by executive
action in accordance with some specified procedure of law. No doubt, that
the overarching requirement of Constitution is that every action of the
State must be informed with reason and must be in public interest. Nothing
has been brought to our notice which prohibits the impugned executive
action. If it is established that the adoption of unfair means on large
scale resulted in the contamination of the entrance examination (PMT)
process of successive years, the State undoubtedly would have the power to
take appropriate action to protect the public interest. I, therefore,
reject the submission of the appellants.

23. I shall now deal with the submissions No. (i) and (ii) of the
appellants.
Before we deal with the submission, it would be profitable to examine
the relevant aspect of the judgment of this Court in Sinha’s case (supra),
because the High Court placed a heavy reliance on the said judgment for
rejecting the submissions of the writ petitioners/appellants herein.

Though Sinha’s case acquired the notoriety as a case of “mass
copying”, the total number of students whose examination was cancelled was
36 out of thousands of people, who appeared for the examination in the
State of Bihar. Interestingly, the said judgment nowhere employed the
phrase “mass copying”. This Court was dealing with a question of the
legality of the action of the appellants in cancelling “the examinations of
all subjects held at the secondary school examination of 1969 at Hanswadih
centre” for the reason “that unfair means were practiced on a large scale”.
This Court laid down the principle that the rule of audi alteram
partem need not be complied with in connection with the cancellation of
examinations where it would be impracticable to apply the said principle.
Adoption of unfair means on a large scale is one of them. This Court did
not go by the percentage of the students who were alleged to have had
resorted to the practice of unfair means. When this Court characterized the
situation as practice of unfair means on a ‘large scale’, it used the
expression only to distinguish the situation from cases of practice of
unfair means by one or two students. This Court has also held that there
are other circumstances justifying the departure from complying with the
audi alteram partem rule. They are – leakage of question papers and
destruction of a large number of answer papers[12]. In my opinion, the
examples given therein are not exhaustive of all the categories
constituting exceptions to the application of the rule of audi alteram
partem.

Therefore, the percentage of the students who are alleged to have resorted
to unfair means is irrelevant. Similarly, resorting to unfair means by a
‘large number of students’ is not the only circumstance which justifies the
non-compliance with the rule of audi alteram partem.

24. That leads me to the next question, whether the situation prescribed
in the case on hand falls within the exceptional circumstances contemplated
by Sinha’s case?

25. A large number of judgments are cited before us to emphasise the
importance of the requirement to comply with the rule of audi alteram
partem as an aspect of the guarantee contained in Article 14 of the
Constitution. On the other hand, the respondents have relied upon an
equally good number of judgments to demonstrate that there are well known
exceptions to the application of the principles of natural justice. I do
not think it necessary to examine all those judgments because as a general
proposition of law, there cannot be any dispute about the importance of the
above-mentioned rule.

However, the applicability of the said rule in the context of various
situations which vitiate an examination process fell for the consideration
of this Court on more than one occasion. A law in this regard is fairly
well settled.

26. The case of the BOARD is that for taking the impugned action, they
need not have proof of the guilt or complicity of the individual students
in contaminating the examination process. It is argued that if there is
some reasonably reliable material to establish the fact that the
examination process insofar as it concerns the appellants was contaminated,
the BOARD would be justified in law to take the impugned action. The
moment contamination of the examination process is established, the BOARD
is relieved of the legal obligation to comply with the rule of audi alteram
partem concerning the students who are the members of the pairs identified
by the BOARD (on the basis of the expert committee report) to be the
beneficiaries of the contaminated examination process. According to the
BOARD, tampering with the examination process took place on a large scale
in each of the years in question, and it took place pursuant to a deep
conspiracy involving several people. Following the rule of audi alteram
partem in such circumstances would be an impracticable exercise and the
same is not required to be undertaken in view of the judgments of this
Court in Bihar School Examination Board v. Subhas Chandra Sinha & Others,
(1970) 1 SCC 648 and B. Ramanjini & Others v. State of A.P. & Others,
(2002) 5 SCC 533 to emphasise on the need to comply with the rule of audi
alteram partem. The respondents also relied upon Board of High School and
Intermediate Education, U.P., Allahabad & Another v. Bagleshwar Prasad &
Another, (1963) 3 SCR 767 in support of their submission that the scope of
judicial reliance is very limited in the cases of malpractices at
examinations.
27. On the other hand, appellants placed heavy reliance on the decision
of this Court reported in Board of High School and Intermediate Education,
U.P. v. Ghanshyam Das Gupta & Others, 1962 Supp (3) SCR 36 and Onkar Lal
Bajaj & Others v. Union of India & Another, (2003) 2 SCC 673 to emphasise
on the need to comply with the applicability of the rule of audi alteram
partem.

28. Ghanshyam Das Gupta and Subhas Chandra Sinha directly deal with the
applicability of the rule of audi alteram partem in the context of
allegation of copying in an examination. Ramanjini’s case deals with
cancellation of the examination (conducted for the purpose of some
recruitment process) on the ground of leakage of question papers and Onkar
Lal Bajaj (supra) deals with cancellation of allotment of petrol pumps made
to a large number of people, on the basis of allegations that such
allotment was vitiated as a consequence of a corrupt process of selection.

29. Bagleshwar Prasad’s case (supra) was a case of cancellation of
examination results of only two students (the respondent before this Court
and another) on the ground that they had adopted unfair means. It was not a
case of non-compliance with the rule of audi alteram partem. An inquiry
was conducted by a Sub-Committee constituted for the said purpose, and it
found that both the students were guilty of adopting unfair means. Both the
students challenged the decision to cancel their examination. The High
Court set aside the impugned order on the ground that there was no direct
evidence on the basis of which a Committee could have come to the
conclusion that the students had adopted unfair means.

This Court reversed the High Court decision and held that the very
fact that both the candidates gave identical answers was sufficient
evidence of adoption of unfair means in the examination. While coming to
the conclusion, this Court observed that it would be “inappropriate in such
cases to require direct evidence[13]” and in cases where direct evidence is
not available “the questions will have to be considered in the light of
probabilities and circumstantial evidence”. This case also laid down the
principles governing the judicial review of the decisions of educational
institutions (examining bodies) in the context of the adoption of unfair
means in examinations by the students. Though this Court held that the
educational institution must “scrupulously follow the principles of natural
justice” the scope of judicial review was held to be very limited and “it
would …… not be reasonable to import into these enquiries all
considerations which govern criminal trials”.
30. It is not necessary to make any analysis of the judgment of this
Court in Ghanshyam Das Gupta (supra) as the same was considered by this
Court in Sinha’s case, analysed and distinguished.

31. I shall now analyse Sinha’s case (supra).
In the month of March, 1969, the Bihar School Examination Board conducted
the examination for the secondary school students. The results of the
examination were published. However, the result of all the 36 students
who appeared for the examination at Hanswadih was not announced. The
Examination Board cancelled the examination insofar as the abovementioned
students are concerned on the ground that they had resorted to ‘unfair
means on a large scale’. However, the students were allowed to appear at a
supplementary examination to be held in September 1969.

The students challenged the said decision of the Board before the Patna
High Court successfully.

This Court reversed the decision of the Patna High Court. Principally, two
contentions raised on behalf of the students (which found favour with the
High Court):

i) That, nobody complained about the commission of any malpractice;
therefore, the Board was not justified in cancelling the result.[14]
That there was a failure to comply with the requirement of principles of
natural justice.[15]
were considered and rejected.

For reaching such conclusions, this court took note of the fact that the
examination centre registered an unusually high rate of success compared to
the other examination centres[16] – a case of relying upon circumstantial
evidence. This Court further undertook a random inspection of the answer
papers of the students and recorded a finding that “a comparison of the
answer books showed such a remarkable agreement in the answers that no
doubt was left in our minds that the students had assistance from an
outside source. Therefore, the conclusion that unfair means were adopted
stands completely vindicated.”
The students relied upon an earlier judgment of this court in Ghanshyam Das
Gupta’s Case. It was held therein that the students (only 3 in number)
whose examination was cancelled on the ground that they had resorted to
copying ought to have been given an opportunity to defend themselves.

This court distinguished Ghanshyam Das Gupta’s case holding that the
said judgment did not imply that the rule of audi alteram partem must be
followed in cases “…where the examination as a whole was vitiated, say by
leakage of papers or by destruction of some of the answer books or by
discovery of unfair means practised on a vast scale …”. This Court
further held that in Ghanshyam Das Gupta “the Court was then not
considering the right of an examining body to cancel its own examination
when it was satisfied that the examination was not properly conducted or
that in the conduct of the examination the majority of the examinees had
not conducted themselves as they should have” and after so distinguishing
Ghanshyam Das Gupta, this Court held as follows:
“14. … To make such decisions depend upon a full-fledged judicial inquiry
would hold up the functioning of such autonomous bodies as Universities and
School Board. While we do not wish to whittle down the requirements of
natural justice and fair-play in cases where such requirement may be said
to arise, we do not want that this Court should be understood as having
stated that an inquiry with a right to representation must always precede
in every case, however different. The universities are responsible for
their standards and the conduct of examinations. The essence of the
examinations is that the worth of every person is appraised without any
assistance from an outside source. If at a centre the whole body of
students receive assistance and are managed to secure success in the
neighbourhood of 100% when others at other centres are successful only at
an average of 50%, it is obvious that the University or the Board must do
something in the matter. It cannot hold a detailed quasi-judicial inquiry
with a right to its alumni to plead and lead evidence etc., before the
results are withheld or the examinations cancelled. If there is sufficient
material on which it can be demonstrated that the university was right in
its conclusion that the examinations ought to be cancelled then academic
standards require that the 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.”

Sinha’s case judgment, in my view, yields the following principles:
Where there are allegations that students resorted to “unfair means on a
large scale” at an examination, this court would not insist upon
registration of a formal complaint. Any reliable information suggesting
the occurrence of such malpractice in the examination is sufficient to
authorize the examining body to take action because examining bodies are
“responsible for their standards and the conduct of examinations” and “the
essence of the examination is that the worth of every person is appraised
without any assistance from an outside source”.

A lone circumstance could itself be sufficient in a given case for the
examining body to record a conclusion that the students resorted to “unfair
means on a large-scale” in an examination. This Court approved the
conclusion of the Bihar School Examination Board that the students had
resorted to unfair means on a large scale in one examination centre[17] and
also approved the decision making process of the Board on the basis of
circumstantial evidence. The lone circumstance that the success rate of the
students who appeared for the examination from the centre in question is
too high in comparison to other centres.

In such cases, the examining body need not hold “a detailed quasi- judicial
inquiry with a right to its alumni to plead and lead evidence etc.” and the
examining body’s “appreciation of the problem must be respected.”

To insist on the observance of the principles of natural justice, i.e.
giving notice to each student and holding enquiry before cancelling the
examination in such cases would ‘hold up the functioning’ of the
educational institutions which are responsible for maintenance of the
standards of education, and “encourage indiscipline, if not, also perjury”.
Compliance with the rule of audi alteram partem is not necessary not only
in the cases of employment of ‘unfair means on large scale’ but also
situations where there is a ‘leakage of papers’ or ‘destruction of some of
the answer books’ etc.

This Court drew a distinction between action against an individual student
on the ground that the student had resorted to unfair means in the
examination and the cancellation of the examination on the whole (or with
reference to a group of students) because the process itself is vitiated.
32. B. Ramanjini’s case was a case where the Government of Andhra Pradesh
had cancelled the examinations conducted by the District Selection
Committee in Anantapur district on the basis of a report of the
Superintendent of Police that there was mass copying and leakage of
question papers. The said order was set aside by the High Court. It was a
case where no opportunity was given to the candidates before cancelling the
examination. The challenge was not on the ground that there was a failure
of natural justice but on the ground that there was no material before the
State justifying the conclusion that the examination process was vitiated.
On appeal, this Court reversed the said order holding that:
“8. Further, even if it was not a case of mass copying or leakage of
question papers or such other circumstance, it is clear that in the conduct
of the examination, a fair procedure has to be adopted. Fair procedure
would mean that the candidates taking part in the examination must be
capable of competing with each other by fair means. One cannot have an
advantage either by copying or by having a foreknowledge of the question
paper of otherwise. In such matters wide latitude should be shown to the
Government and the courts should not unduly interfere with the action taken
by the Government which is in possession of the necessary information and
takes action upon the same. The courts ought not to take the action
lightly and interfere with the same particularly when there was some
material for the Government to act one way or the other. …”
33. Coming to the case of Onkar Lal Bajaj (supra), Government of India
decided to cancel the allotment of all retail outlets, LPG distributorship
etc. which had been made on the basis of the recommendations of a ‘Dealer
Selection Board’. Such a decision was taken in view of serious allegations
of illegality and impropriety in making such allotments. Approximately
some 6000 allotments were cancelled without any further enquiry and
opportunity to any one of the allottees. This Court set aside the
Government’s order of cancelling all allotments with certain further
directions that the cases of 413 dealers (who were identified by the court
on the basis of the material placed before this Court) be examined by a
Committee consisting of a retired Judge of this Court and another of the
Delhi High Court. For reaching such a conclusion, this Court rejected the
submission of the Union of India that in a given situation, it may be
“legally permissible” to resort to such mass cancellation where it is found
that large number of selections were tainted and segregation of good and
bad would be time consuming. This Court opined “the solution by resorting
to cancellation of all was worse than the problem. Cure was worse than
the disease. Equal treatment to unequals is nothing but inequality. To
put both the categories – tainted and the rest – on a par is wholly
unjustified, arbitrary, unconstitutional being violative of Article 14 of
the Constitution.”

34. From an analysis of the above decisions, the following principles
emerge:-
Normally, the rule of audi alteram partem must be scrupulously followed in
the cases of the cancellation of the examinations of students on the ground
that they had resorted to unfair means (copying) at the examinations.

2. But the abovementioned principle is not applicable to the cases where
unfair means were adopted by a relatively large number of students and also
to certain other situations where either the examination process is
vitiated or for reasons beyond the control of both students and the
examining body, it would be unfair or impracticable to continue the
examination process to insist upon the compliance with audi alteram partem
rule.

The fact that unfair means were adopted by students at an examination
could be established by circumstantial evidence.

The scope of judicial review of the decision of an examining body is
very limited. If there is some reasonable material before the body to come
to the conclusion that unfair means were adopted by the students on a large
scale, neither such conclusion nor the evidence forming the basis thereof
could be subjected to scrutiny on the principles governing the assessment
of evidence in a criminal court.

Cases such as the one on hand where there are allegations of criminal
conspiracies resulting in the tampering with the examination process for
the benefit of a large number of students would be certainly one of the
exceptional circumstances indicated in Sinha’s case provided there is some
justifiable material to support the conclusion that the examination process
had been tampered with.

In the light of the principles of law emerging from scrutiny of the
abovementioned judgments, we are of the opinion that case on hand can fall
within the category of exceptions to the rule of audi alteram partem if
there is reliable material to come to the conclusion that the examination
process is vitiated.

That leads me to the next question – whether the material relied upon by
the BOARD for reaching the conclusion that the examination process was
contaminated insofar as the appellants (and also some more students) are
concerned and the appellants are the beneficiaries of such contaminated
process, is tenable?

35. A great deal of effort was made by the appellants to demonstrate to
us that the various circumstances – relied upon by the respondents to reach
the conclusion that each one of the appellants herein is the beneficiary of
a conspiracy by which the purity of examination process undertaken by the
Board is contaminated – are impeachable. The learned counsel demonstrated
before us that at least in some cases, one or more of the circumstances
relied upon by the Board [indicated in sub-paragraphs (iii), (iv), (v) and
(vi) of Footnote 7 (supra)] are inapplicable. For example, the assumption
that the “scorer” is a more accomplished student than the “beneficiary” and
that the “scorer” always sat in front of the “beneficiary” at the time of
the examination to enable the “beneficiary” to copy from the “scorer” are
demonstrated to be wrong at least in some cases. There are cases where the
“scorer” secured less marks than the “beneficiary”. Similarly, the
allegation that “scorers” did not take admission in any of the medical
colleges of Madhya Pradesh despite securing sufficiently high marks
entitling them to obtain admissions, is demonstrated to be wrong. At least
in some cases “scorers” have in fact joined some medical colleges in Madhya
Pradesh.

36. There is nothing inherently irrational or perverse in the BOARD’s
conclusions (i) that the examination process was tampered with; and (ii)
that all the appellants herein who are identified to be members of the
‘pairs’ (referred to earlier) are beneficiaries of such manipulated
examination process[18], relying upon the circumstances (mentioned in
Footnote 7 supra) if they are unimpeachable. Each one of the circumstances
is an inference which flows from certain basic facts which either
individually or in combination with some other facts constituted the
circumstance. One or more of such facts (constituting circumstances
mentioned in (iii) to (vi) of Footnote 7 supra) are demonstrated to be not
true (with reference to some of the appellants).

37. The proof of the first two circumstances (mentioned in Footnote 7)
depends upon the analysis of the data which is available on the computers.
The fact that the entire process of the generation of roll numbers to the
students and allotment of the students to various examination centres is
done by a computerised process is not in dispute. The assertion of the
BOARD that technically such a process requires SOME LOGIC to be followed is
not disputed by the appellants. The expert committee (on an analysis of
the data) (i) identified the logic followed for generating the roll numbers
and allotting the examination centres and also (ii) reaching a conclusion
that in the case of the appellants and a few others the allotment was not
in accordance with the logic initially adopted. The same are not normally
amenable to judicial review because Courts would lack the necessary
technical expertise to sit in judgment over such matters. Apart from that,
there is no specific challenge to those conclusions, except that the matter
should have been examined by an independent expert committee. I do not find
any legal basis for such a submission. I, therefore, see no reason to
doubt either the factual or legal correctness of the first two
circumstances.

It, therefore, logically follows that there was a tampering with the
examination process insofar as the appellants and a few others are
concerned.

38. The other submission of the appellants in this regard is that if
there is a deviation from the general pattern with regard to the allotment
of Roll Numbers and the examination Centres, the appellants could not be
blamed or ‘penalised’ because the entire process of the allotment was done
by the BOARD and its officials.

In my opinion, the question of either ‘blame’ or ‘penalty’ does not arise
in the context. If tampering with the examination process took place,
whether all or some of the appellants are culpable is a matter for a
criminal court to examine as and when any of the appellants is sought to be
prosecuted.

But the fact that the examination process was tampered with is
relevant for administrative action such as the one impugned herein. The
said fact formed the foundation for the further enquiry for identifying the
beneficiaries of such contaminated process. Having regard to the
circumstances relied upon, I do not see anything illogical or untenable in
the conclusions drawn by the expert committee which formed the basis for
the impugned action of the BOARD. It is argued that the formula[19]
adopted by the BOARD to record the conclusion that the members of the
identified pairs resorted to unfair means at the examination is without any
scientific basis. I do not see any irrationality either in the formula or
the decision of the BOARD to assign greater weightage to the incorrect
matching answers. There is nothing inherently suspicious about two
candidates sitting in close proximity in an examination and giving the same
correct answer to a question because there can only one correct answer to a
question. On the other hand, if they give the same wrong answer to a given
question and if the number of such wrong answers is high, it can certainly
generate a doubt and is a strong circumstance indicating the occurrence of
some malpractice. Such a test was approved by this Court in Bagleshwar
Prasad’s case[20].

Even otherwise, in my opinion, it would be futile to pursue the
inquiry in this regard. Assuming for the sake of argument that the
submission of the appellants is right and there are some cases (of
appellants) where the appellants can demonstrate (if an opportunity is
given to them) that the circumstantial evidence is not foolproof and
therefore the impugned order must be set aside on the ground of failure of
natural justice, the BOARD would still be entitled (in fact it would be
obliged in view of the allegation of systematic tampering with the
examination process year after year) in law to conduct afresh enquiry after
giving notice to each of the appellants. That would mean spending enormous
time both by the BOARD and by the appellants for the enquiry and the
consequential (inevitable) litigation regarding the correctness of the
eventual decision of the BOARD.

For the abovementioned reasons, I do not propose to interfere with
the impugned judgment on the count that the rule of audi alteram partem was
not complied with by the respondents before cancelling the admissions of
the appellants herein.

39. The next question that requires examination is the legality of the
action of the respondents after a lapse of considerable time. It varies
between one to five years with reference to each of the appellants. The
decision of the respondents necessarily led to litigation which consumed
another three years. The net result is that appellants, who belong to 2012
batch, spent four years undergoing the training in medical course; others
progressively longer periods extending up to eight years but could not
acquire their degrees because of the impugned action and the pendency of
this litigation. Most of the appellants would have acquired their degree
in medicine by now if they had been successful at the examinations.

40. Learned counsel for the appellants made a fervent appeal that this
Court in exercise its jurisdiction under Article 142 permit the appellants
to complete their education subject to such conditions as this Court deems
fit, to satisfy the demand of justice. A very emotional appeal was made
during the course of hearing that the lives of 634 youngsters would be
ruined if the impugned action of the respondents remains unaltered. They
would lose a decade of precious time of their youth and they would become
practically useless for themselves and for their families – even for the
society. It is, therefore, submitted that this Court may modify the
impugned orders in the light of twin principles that (1) the public policy
of this country even with regard to the crimes is that they cannot be taken
cognizance of beyond the period of limitation stipulated under various
laws. It is submitted that as of now the appellants are alleged to be only
beneficiaries of a fraud but not yet proved to be criminals; (2) the
appellants are youngsters who were of adolescent age at the time of the
commission of the alleged fraud. Even if it is proved that each of the
appellants is directly a participant in the ‘crime’, which led to the
tampering with the examination process (year to year), they cannot be
subjected to the punishment under the criminal law in view of the
provisions of the Juvenile Justice Act. Therefore, it is submitted that
this Court may pass such orders, as it deems fit in the circumstances of
the case, short of depriving the appellants of their entire future. In
this regard, the learned counsel relied upon Priya Gupta v. State of
Chhattisgarh & Others, (2012) 7 SCC 433.

41. On the other hand, it is argued on behalf of the respondents that
having regard to the nature of deep rooted conspiracy behind the illegal
admissions of the appellants, showing of any compassion in dealing with the
cases of the appellants would have adverse impact on the enforcement of law
in this country. It is argued that having regard to the well known maxim
that “fraud vitiates everything” and the settled principle of law that the
benefits secured out of a fraudulent action cannot be permitted to be
retained, the appellants cannot be permitted to claim any sympathetic
consideration from this Court. In support of the said submission, the
learned counsel relied upon Ram Preeti Yadav v. U.P. Board of High School
and Intermediate Education & Others, (2003) 8 SCC 311.

42. Before I discuss the rival submissions mentioned above, I deem it
appropriate to examine the two judgments relied upon by the contending
parties.

43. Ram Preeti Yadav’s case was a case where intermediate result of the
third respondent before this Court was withheld on a suspicion of his
having employed unfair means in the examination. However, he was issued a
provisional marksheet which did not indicate that the result of his
intermediate examination has been withheld. ! On the basis of the said
provisional marksheet, he pursued higher studies and became a post graduate
and secured employment as a teacher in one of the colleges in Uttar
Pradesh. Some twelve years after intermediate examination, he was informed
that his intermediate examination was cancelled. Invariably litigation
ensued. On examination of the factual background, this Court recorded a
conclusion that “thus, it is evident that a fraud was committed.
Respondent No.3 is the sole beneficiary to the said fraud and it, as such,
must be presumed that he was a party thereto”. Invoking the principle that
“fraud avoids all judicial acts, ecclesiastical or temporal” and relying
upon two earlier judgments in S.P. Chengalvaraya Naidu (Dead) by LRs v.
Jagannath (Dead) by LRs & Others, (1994) 1 SCC 1 and Lazarus Estates Ltd.
v. Beasley, (1956) 1 All ER 341, this Court reversed the High Court
judgment granting relief to the third respondent.

44. In Priya Gupta’s case (supra), Priya Gupta’s admission to the MBBS
course granted in the academic year 2006-07 was cancelled by the State of
Chhattisgarh in 2010 on the ground that such admission was not in
accordance with the relevant Rules[21]. This Court didn’t find any
illegality in the cancellation of the admission of Priya Gupta.[22]
However, taking into consideration the fact that Priya Gupta had already
completed her course study, this Court held as follows:
“74. On the peculiar facts and circumstances of the case, though we find
no legal or other infirmity in the judgment under appeal, but to do
complete justice between the parties within the ambit of Article 142 of the
Constitution of India, we would permit the appellants to complete their
professional courses, subject to the condition that each one of them pay a
sum of Rs 5 lakhs to Jagdalpur College, which amount shall be utilised for
developing the infrastructure in Jagdalpur College.

75. We have not and should not be even understood to have stated any
precedent for the cases like grant of admission and leave to complete the
course like the appellants in the present case.”
Both Ram Preeti Yadav and Priya Gupta’s cases (supra) are cases where
opportunities secured by individuals by some fraudulent means were subject
matter of litigation. While in the earlier case, this Court declined to
take into account the time gap between fraudulent act and the detection of
the fraud, for deciding the legality of the action against Ram Preeti
Yadav, in the latter case this Court thought it fit to permit the benefits
secured to be retained through fraudulent means on payment of certain
amount to be utilized “for developing the infrastructure” in the college
where Priya Gupta had studied. One of the many judgments of this Court
falling under the “jurisprudence of peculiar facts” with a caveat that it
does not constitute a precedent. !!

45. Be that as it may, both the above-discussed cases deal with the
question of legality of the action taken against individuals (small in
number – one in the first of the abovementioned cases and two in the second
of the cases) in the context of their fraudulent conduct in securing the
benefits of higher education. They pleaded that it would be inequitable to
deprive them of the benefits of their education after considerable lapse of
time. This Court rejected the plea of Ram Preeti Yadav both in law and
fact, but in Priya Gupta’s case it was rejected in law? but accepted in
fact!

46. Coming to the case in hand, the number of students involved is
relatively huge[23]. In view of the conclusion recorded by me earlier that
neither the procedure adopted by the respondents nor the evidence relied
upon by the respondents for taking impugned action against the appellants
could be characterized as illegal, is it permissible for this Court to
interfere with the impugned action of the respondents either on the ground
that there is a considerable time lapse or that such action would have
ruinous effect on the lives and careers of the appellants? and therefore
inequitable is a troubling question.

47. The public policy of the country and the larger public interests, in
our opinion, would be more appropriate guides than the considerations of
equity to decide the questions in the absence of any statutory prescription
applicable to the controversy on hand than the consideration of equity.

48. This court in Central Inland Water Transport Corporation Limited &
Another v. Brojo Nath Ganguly & Another, (1986) 3 SCC 156 explained the
concept of public policy and its role in the judicial decision making
process in the following words:
“92. The Indian Contract Act does not define the expression “public policy”
or “opposed to public policy”. From the very nature of things, the
expressions “public policy”, “opposed to public policy”, or “contrary to
public policy” are incapable of precise definition. Public policy, however,
is not the policy of a particular government. It connotes some matter which
concerns the public good and the public interest. The concept of what is
for the public good or in the public interest or what would be injurious or
harmful to the public good or the public interest has varied from time to
time. As new concepts take the place of old, transactions which were once
considered against public policy are now being upheld by the courts and
similarly where there has been a well recognized head of public policy, the
courts have not shirked from extending it to new transactions and changed
circumstances and have at times not even flinched from inventing a new head
of public policy. There are two schools of thought— “the narrow view”
school and “the broad view” school. According to the former, courts cannot
create new heads of public policy whereas the latter countenances judicial
law-making in this area. The adherents of “the narrow view” school would
not invalidate a contract on the ground of public policy unless that
particular ground had been well-established by authorities. Hardly ever has
the voice of the timorous spoken more clearly and loudly than in these
words of Lord Davey in Janson v. Driefontein Consolidated Gold Mines
Ltd. [(1902) AC 484, 500] : “Public policy is always an unsafe and
treacherous ground for legal decision”. That was in the year 1902. Seventy-
eight years earlier, Burrough, J., in Richardson v. Mellish [(1824) 2 Bing
229, 252 : 130 ER 294, 303 and (1824-34) All ER 258, 266] described public
policy as “a very unruly horse, and when once you get astride it you never
know where it will carry you”. The Master of the Rolls, Lord Denning,
however, was not a man to shy away from unmanageable horses and in words
which conjure up before our eyes the picture of the young Alexander the
Great taming Bucephalus, he said in Enderby Town Football Club
Ltd. v. Football Assn. Ltd. [(1971) Ch 591, 606] : “With a good man in the
saddle, the unruly horse can be kept in control. It can jump over
obstacles.” Had the timorous always held the field, not only the doctrine
of public policy but even the common law or the principles of Equity would
never have evolved. Sir William Holdsworth in his History of English
Law Vol. III, p. 55, has said:
“In fact, a body of law like the common law, which has grown up gradually
with the growth of the nation, necessarily acquires some fixed principles,
and if it is to maintain these principles it must be able, on the ground of
public policy or some other like ground, to suppress practices which, under
ever new disguises, seek to weaken or negative them.”

It is thus clear that the principles governing public policy must be and
are capable, on proper occasion, of expansion or modification. Practices
which were considered perfectly normal at one time have today become
obnoxious and oppressive to public conscience. If there is no head of
public policy which covers a case, then the court must in consonance with
public conscience and in keeping with public good and public interest
declare such practice to be opposed to public policy. Above all, in
deciding any case which may not be covered by authority our courts have
before them the beacon light of the Preamble to the Constitution. Lacking
precedent, the court can always be guided by that light and the principles
underlying the Fundamental Rights and the Directive Principles enshrined in
our Constitution.”

49. One of the indicators of public policy on a given topic is the
legislation dealing with the topic. The questions on which the public
policy is required to be ascertained in the context of the present case
are:
1. Whether administrative action to nullify any benefit acquired by a
person through fraudulent means could be taken without reference to any
limitation of time?

2. Whether a benefit obtained through the perpetration of fraud could be
permitted to be retained?

The law of limitation is relevant and indicates to policy in the context of
the first question. Various periods of limitation are prescribed for
initiation of legal proceedings under the Limitation Act, 1963 and various
other laws. This Court in Situ Sahu & Others v. State of Jharkhand &
Others, (2004) 8 SCC 340 held that the statutory power of suo moto revision
could be exercised to deprive a person of the property acquired by him even
in the cases where such acquisition is through fraudulent means only within
a reasonable period. It was a case of the claim of a member of a scheduled
tribe that their ancestors were tenants of a piece of land whose landlord
obtained a deed of surrender by fraud. The question before this Court was
whether the Dy. Commissioner could exercise the statutory authority under
Section 71-A of the Chota Nagpur Tenancy Act, 1908 at any point of time
without any limitation and restore the land to the claimant. This Court
held that such power must be exercised within a reasonable time.

Criminal law also prescribes time limits for taking cognizance of offences.
But in cases of offences where the prescribed punishment is more than 3
years, no period of limitation is provided under the Code of Criminal
Procedure, 1973.[24]

50. Public policy of this country regarding the retention of the benefit
obtained by perpetrator of crime is that normally the benefit cannot be
permitted to be retained by the perpetrator of crime. But the principle is
applied only on adjudication that the benefit was obtained by perpetration
of crime.

51. A person adjudged to be guilty of an offence is not permitted to
retain the financial gains arising out of such crime.[25] Transfer of
property for the purpose of concealing the fact that it is the benefit
arising out of or statutorily presumed to be arising out of crime is not
countenanced[26]. Similarly, it is the law of this country that a person
found guilty of murder is not entitled to succeed (even if he is otherwise
eligible for succession in accordance with the relevant principles of
succession) to the estate of the victim[27].
Situ Sahu’s case (supra) is also a case establishing the principle
that the law permits the retention of property acquired pursuant to
fraudulent means (allegedly) because law does not permit an enquiry into
the allegation beyond the reasonable period.

However, when it comes to other civil rights, the public policy, as can be
discerned from various enactments, seems to be not to deprive completely
those who are found to have been guilty of offences of all civil rights.
For example, the right to contest an election for the various
constitutional bodies is denied to a person convicted of various offences
enumerated under Section 8 of the Representation of Peoples Act, 1951 but
only for a certain specified period. Similarly, the right to vote is
denied to persons convicted of offences specified under Section 11A of the
Representation of the People Act, 1951 for a period specified therein. It
is also worthwhile noticing that even such disqualifications could be
removed by the Election Commission for reasons to be recorded.[28]

It is required to be examined whether it would be consistent with the
public policy to deprive the appellants of the benefits of their education
on the ground that they secured certain benefits by adopting fraudulent
means.

52. We are informed that all the appellants are also being investigated
for the commission of various offences which if proved would render them
liable for imprisonment for periods extending beyond three years, and
therefore, there is no period of limitation for taking cognizance of them.
Therefore, it cannot be said that the impugned action against the
appellants would be inconsistent with the public policy on the ground of
the time gap.

53. While it is a salutary principle based on public policy not to permit
the retention of ‘property’ obtained by fraudulent means, the application
of the said principle becomes a matter of doubtful utility to the society
in the context of the acquisition of knowledge by adopting fraudulent means
examined from the point of view of the public interest. In the context of
property (economic gains), the application of the principle works to the
benefit of the rightful owner. But in the context of acquisition of
knowledge, nobody would benefit by the application of the rule and would
therefore serve only a limited public purpose.
54. Some 634 youngsters, who have already completed their training in
medicine (or about to complete) and whose knowledge could have otherwise
been utilized for the benefit of the society, would be simply rendered
useless for the society in the sense their knowledge cannot be utilized for
the welfare of the society. The question is not whether these appellants
deserve any sympathy. In my view, a larger question- whether this society
can afford to waste such technically trained and qualified human resources
which require enormous amounts of energy, time and other material resources
to generate. Obviously, it takes another five years of time and expenditure
of considerable material resources to produce another set of 634 qualified
medical graduates. It is in the background of this consideration, this
issue is required to be decided.

55. Another important consideration in the context is that most of (if
not all) the appellants, whatever be their respective role, if any, in the
tampering of the examination process, must have been ‘juveniles’[29] as
defined under the Juvenile Justice Act. They cannot be subjected to any
‘punishment’ prescribed under the criminal law even if they are not only
the beneficiaries of the tampered examination process but also the
perpetrators of the various acts which constitute offences contaminating
the examination process.

56. For the abovementioned reasons, I would prefer to permit the
appellants to complete their study of medicine and become trained doctors
to serve the nation. But at the same time there is a compelling national
interest that dishonest people cannot be made to believe that “time heals
everything’ and the society would condone every misdeed if only they can
manage to get away with their wrong doing for a considerably long period.

Society must receive some compensation from the wrongdoers.
Compensation need not be monetary and in the instant case it should not be.
In my view, it would serve the larger public interests, by making the
appellants serve the nation for a period of five years as and when they
become qualified doctors[30], without any regular salary and attendant
benefits of service under the State, nor any claim for absorption into the
service of the State subject of course to the payment of some allowance
(either in cash or kind) for their survival. I would prefer them serving
the Indian Armed Forces subject to such conditions and disciplines to which
the armed forces normally subject their regular medical corps. I would
prefer that the appellants be handed over the certificates of their medical
degrees only after they complete the abovementioned five years. The
abovementioned exercise would require the ascertainment of the views of
Ministry of Defence, Government of India, and passing of further
appropriate orders by this Court thereafter. In view of the disagreement of
views in this regard, I am not proposing such an exercise.

Registry is directed to place the papers before Hon’ble the Chief Justice
of India for appropriate orders.
….………………………….J.
(J. Chelameswar)
New Delhi;
May 12, 2016

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.1727 OF 2016
Nidhi Kaim ……Appellant(s)
VERSUS
State of M.P. & Ors. Etc. ……Respondent(s)
WITH

CIVIL APPEAL NOs. 1720-1724, 1726, 1728, 1729, 1733, 1734-1741, 1742-1749,
1750-1751, 1752,
1753-1758, 1847-1852, 1759-1764, 1765, 1766, 1767-1768, 1769-1774, 1776-
1787, 1788, 1789-1791,
1792-1794, 1795-1798, 1799-1805, 1806-1808, 1809,
1810-1811, 1812, 1813-1814, 1815, 1816-1817,
1818-1819, 1820, 1821, 1822-1824, 1825, 1826, 1827, 1828, 1830, 1831-1832,
1833, 1834, 1835, 1836-1837, 1838, 1839, 1840, 1841, 1842, 1843, 1844, 1845
& 1846 OF 2016
J U D G M E N T
Abhay Manohar Sapre, J.
1) I have had the advantage of going through the elaborate and well
considered draft judgment proposed to be pronounced by my learned Brother.
2) Having gone through the draft judgment, I agree with the reasoning
given by my learned Brother on all the issues except on one issue dealt
with in paragraphs 39 to 55 relating to issuance of directions to the
respondents.
3) In my view, keeping in view the nature of controversy and the
findings recorded by us on the main controversy which has resulted in
upholding of the impugned judgment, no case is made out for passing any
directions under Article 142 of the Constitution of India and hence these
appeals deserve to be dismissed.
4) However, having regard to the issues which were ably argued by the
learned counsel and in the light of my disagreement on one issue, as
mentioned above, with my learned Brother, I propose to write few paragraphs
of my own in support of my reasoning and the conclusion.
5) I need not set out the facts in detail since my learned Brother has
succinctly mentioned them in his draft judgment.
6) Suffice it to say, the controversy involved in these appeals centers
around broadly to the following facts.
7) The appellants along with several other candidates appeared in the
PMT examinations held in the years 2008 to 2012 and 2013. So far as these
appeals are concerned, they relate to examinations held in the years 2008
to 2012. The State of M.P. through Professional Examination Board
hereinafter called “Vyapam” had conducted these examinations for getting
admission in MBBS Degree Course in various Government/Private Medical
Colleges in State of M.P.
8) The appellants cleared the PMT examination and got admissions in MBBS
Degree Course in various Government/Private Medical Colleges in the State
of M.P. Some are prosecuting their studies in MBBS Course and some claims
to have completed their studies.
9) The Vyapam, however, cancelled the appellants’ PMT Examination
results by order dated 09.10.2013 and various orders. The reason for
cancellation was that the detailed investigations were made in conducting
of the PMT examinations held in the years 2008 to 2013. The outcome of the
investigations, however, revealed that the appellants and several other
candidates resorted to unfair means in large scale by adopting planned
strategy in answering their question papers. It was revealed that the
appellants and other candidates in connivance with Vyapam’s officials and
some outsiders entered into a conspiracy and conceived a plan as to how the
appellants and their associates should sit in the examination centre and
accordingly sitting arrangements in particular examination centers with
another candidate (described in scam as “scorer”) were made which
facilitated the candidate (described in scam as “beneficiary”) to copy from
the candidate (scorer) sitting in front of him from his answer sheet. It
was also revealed that the appellants and conspirators were successful in
their plan and the appellants secured the requisite marks in the PMT
examination which enabled them to get admission in MBBS course at the cost
of deserving candidates who despite clearing the examination could not
secure admissions in MBBS Course in the respective years.
10) In support of their decision, the State/Vyapam filed material which
was seized by the Special Task Force (STF) sleuths in the ongoing
investigation. The material seized consisted of (1) relevant files relating
to conduct of these examinations from Vyapam’s office (2) statement of
persons recorded by STF sleuths involved in the scam such as Vyapam’s
officials, candidates, their parents, outsiders who hatched the conspiracy
on receiving money consideration etc. (3) computers, hardware and software
used in programing the examinations (4) benefits (cash or otherwise)
alleged to have been received by the persons involved in the scam
(5) copies of FIR and Charge sheets filed against several accused for
commission of offences of fraud, cheating, conspiracy etc. (6) Copies of
bail orders (granting or/and refusing bail) passed in several cases by
various courts including the orders of the High Court passed from time to
time in PIL dealing with the scam (7) order of this Court directing the CBI
to take over the ongoing investigation of the Scam from STF (8) Expert
Committee’s reports on scam etc.
11) The appellants, felt aggrieved by the decision of cancellation of
their results, filed several writ petitions before the High Court of M.P.
out of which these appeals arise. The challenge to the cancellation of
their result was on several factual and legal grounds as detailed infra.
12) The State and Vyapam supported the decision of cancellation of the
results and inter alia contended that it is based on Expert Committee’s
reports, which has taken into account the aforementioned material for
coming to a conclusion that it was a case of “mass copying”.
13) The High Court upheld the stand taken by the State/Vyapam and
dismissed the writ petitions. The High Court by its reasoned judgment held
inter alia that Firstly, it was a case of “mass copying”; Secondly, the
material seized was sufficient for the Expert Committee for coming to a
conclusion that it was a case of “mass copying” found to have been done at
a large scale by the appellants and other candidates by resorting to unfair
means; Thirdly, the decision to cancel the appellants’ result is based on
Expert Committee’s report which has applied their mind to all aspects of
the case after taking into account all material seized in investigation
and, therefore, no fault could be found in such decision of the Expert
Committee; Fourthly, the decision has been taken in larger public interest;
and lastly, this being a case of “mass copying”, it was not necessary
for the State/Vyapam to give any opportunity of hearing to any candidate
individually to show cause before cancellation of their results as has been
laid down by this Court consistently in several decided cases referred to
hereinbelow.
14) It is this issue, which is now carried by the unsuccessful candidates
(appellants) to this Court in these appeals.
15) The controversy in these appeals mainly centered around to the
following legal issues.
16) In the first place, submission of learned counsel for the appellants
was that the perusal of the materials relied on by the State/Vyapam against
the appellants (though disputed by the appellants) would go to show that it
does not make out a case of “mass copying” but at best may make out a case
of unfair means resorted to by few individual candidates in answering their
questions papers. It was, therefore, their submission that since these
candidates, who resorted to unfair means, were later identified, the
State/Vyapam should have given show cause notices to these candidates
individually setting out therein the nature of unfair means committed by
each such candidate by following the rule of natural justice, i.e., rule of
audi alteram partem and after affording the erring candidates (appellants)
an opportunity of hearing by supplying the alleged material, an appropriate
order should have been passed.
17) Second submission of learned counsel for the appellants was that
there was no material on the basis of which the decision to cancel the
appellants’ results could have been taken by the State/Vyapam. It was urged
that in any event such material was neither sufficient and nor relevant for
cancellation of the results and, more so, since it was not supplied to the
appellants, the same was of no consequence.
18) Third submission of learned counsel for the appellants was that the
decision to cancel the results was not taken immediately after the
examinations were over but was taken after a considerable delay and since
in the meantime, the appellants on the basis of the results altered their
position and successfully completed their MBBS degree course or are about
to complete in near future, the cancellation of the results done at such
belated stage is not justified being inequitable and unreasonable and hence
deserve to be set aside. In the alternative, it was urged that the
appellants be allowed to prosecute their studies on suitable terms as this
Court may deem fit and proper to impose on the appellants.
19) Fourth submission of learned counsel for the appellants was that
since the constitution of Vyapam (Board) was not done in accordance with
the requirements of the M.P. Professional Examination Board Act, 2007
(hereinafter referred to as “the Act”) inasmuch as no notification under
Section 3 of the Act was issued till date, all actions so far taken
including cancellation of the results by the Board are rendered illegal
because these actions/decisions were taken by the Board which was not
validly constituted.
20) The aforementioned submissions were elaborated by the learned counsel
for the appellants with reference to the record of the case and by placing
reliance on various decisions of this Court.
21) In reply, learned counsel for the respondents (State/Vyapam)
supported the reasoning and the conclusion of the High Court and prayed for
its upholding calling no interference therein.
22) The questions, which arise for consideration in these appeals, are,
Firstly, whether it is a case of “mass copying”; Secondly, whether the
appellants were entitled to a show cause notice before cancellation of
their results; Thirdly, whether the appellants are entitled to claim any
equity in their favour on account of delay occurred on the part of the
State/Vyapam in cancelling their result and, if so, what relief are they
entitled to claim; and lastly, whether the Vyapam Board was legally
constituted in accordance with the provisions of the Act and if not then
its effect on the controversy involved in these cases.
23) Before we examine the aforementioned questions, it is necessary to
take note of the law laid down by this Court especially the law dealing
with the cases of “copying” and “mass copying”.
24) The first leading case of this Court (Five- Judge Bench) on the
question of “copying” is Board of High School and Intermediate Education
U.P., Allahabad Vs. Ghanshyam Das Gupta and Others, AIR 1962 SC 1110 = 1962
Supp (3) SCR 36. The facts of this case were that 3 students of G.S. Hindu
Intermediate College of Sikandrarao appeared in Intermediate (Commerce)
Examination in 1954. These 3 students passed the examination. In December
1954, their fathers/guardians received information that the Examinations
Committee had cancelled their results and debarred them from appearing in
examination to be held in 1955.
25) These 3 students thereupon filed writ petition in the High Court
contending that the Examinations Committee had never afforded any
opportunity to them to rebut the allegations made against them and that
they were never informed about the nature of unfair means used by them in
the examination.
26) The majority of Judges of the High Court, who heard the writ
petition, accepted the writ petitioners’ contention and allowed the writ
petition. The Board, therefore, filed an appeal to this Court. This Court
affirmed the view taken by the High Court. Construing powers of the
Examination Committee, in Rule 1 (1) of the Regulations, this Court held
that the Examination Committee was acting as quasi-judicially body while
exercising powers under Rule 1 (1) and, therefore, principles of natural
justice should have been observed. Justice Wanchoo speaking for the Bench
held as follows:
“11….. We are therefore of opinion that the Committee when it
exercises its powers under Rule 1(1) is acting quasi-judicially and the
principles of natural justice which require that the other party, (namely,
the examinee in this case) must be heard, will apply to the proceedings
before the Committee. This view was taken by the Calcutta High Court in
Dipa Pal v. University of Calcutta, AIR 1952 Cal 594 and B.C. Das Gupta V.
Bijoyranjan Rakshit, AIR 1953 Cal 212 in similar circumstances and is in
our opinion correct.”

27) The second leading case where this Court (Three-Judge Bench) examined
the case of “copying” and how it should be dealt with by the concerned
authorities and the Court is Board of High School and Intermediate
Education, U.P., Allahabad and Anr. vs Bagleshwar Prasad and Anr., AIR 1966
SC 875=(1963) 3 SCR 767.
28) The facts of this case were that two candidates were found copying in
the examination. The charge of copying was based on the fact that one
candidate had given wrong answer to one question precisely in the same form
in which the said answers had been given by another candidate. Both the
candidates were accordingly given show cause notice to explain the charge.
Both denied the charge. The enquiry committee was then constituted to probe
the issue and the committee came to a conclusion, after examining the whole
issue, that it was a case of copying and accordingly cancelled their
results.
29) Both the candidates filed writ petition in Allahabad High Court. The
High Court allowed the writ petition and set aside the cancellation order.
It was held that the decision to cancel the result is not supported by any
evidence. The Board appealed to this Court. This Court allowed the appeal,
set aside the order of the High Court and while upholding the cancellation
of the result dismissed the writ petition filed by the two candidates.
30) Justice Gajendragadkar (as His Lordship then was) speaking for the
Three-Judge Bench in his distinctive style of writing held in Paras 11 and
12 as under:-
“11. Before the High Court, a statement was filed showing the seating
arrangement in Room No. 10 where the respondent was sitting for writing his
answers. It appears that he was No. 3 in the 3rd row, whereas the other
candidate with Roll No. 94733 was No. 4 in the second row. The High Court
was very much impressed by the fact that the respondent could not have
looked back and copied from the answer-book of the other candidate, and the
High Court did not think that there was any evidence to show that the other
candidate could have copied from the respondent’s paper with his
connivance. We have looked at the incorrect answers ourselves and we are
not prepared to hold that the identical incorrect answers were given by the
two candidates either by accident or by coincidence. Some of the incorrect
answers, and, particularly, the manner in which they have been given,
clearly suggest that they were the result of either one candidate copying
from the other, or both candidates copying from a common source. The
significance of this fact has been completely missed by the High Court. The
question before the Enquiry Committee had to be decided by it in the light
of the nature of the incorrect answers themselves, and that is what the
Enquiry Committee has done. It would, we think, be inappropriate in such a
case to require direct evidence to show that the respondent could have
looked back and copied from the answer written by the other candidate who
was sitting behind him. There was still the alternative possibility that
the candidate sitting behind may have copied from the respondent with his
connivance. It is also not unlikely that the two candidates may have talked
to each other. The atmosphere prevailing in the Examination Hall does not
rule out this possibility. These are all matters which the Enquiry
Committee had to consider, and the fact that the Enquiry Committee did not
write an elaborate report, does not mean that it did not consider all the
relevant facts before it came to the conclusion that the respondent had
used unfair means.
12. In dealing with petitions of this type, it is necessary to bear in mind
that educational institutions like the Universities or Appellant 1 set up
Enquiry Committees to deal with the problem posed by the adoption of unfair
means by candidates, and normally it is within the jurisdiction of such
domestic Tribunals to decide all relevant questions in the light of the
evidence adduced before them. In the matter of the adoption of unfair
means, direct evidence may sometimes be available, but cases may arise
where direct evidence is not available and the question will have to be
considered in the light of probabilities 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 do so, courts should
be slow to interfere with the decisions of domestic Tribunals appointed by
educational bodies like the Universities. In dealing with the validity of
the impugned orders passed by Universities under Article 226, the High
Court is not sitting in appeal over the decision in question; its
jurisdiction is limited and though it is true that if the impugned order is
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. Enquiries held by domestic Tribunals in such cases must,
no doubt, be fair and students against whom charges are framed must be
given adequate opportunities to defend themselves, and in holding such
enquiries, the Tribunals must scrupulously follow rules of natural justice;
but it would, we think, not be reasonable to import into these enquiries
all considerations which govern criminal trials in ordinary courts of law.
In the present case, no animus is suggested and no mala fides have been
pleaded. The enquiry has been fair and the respondent has had an
opportunity of making his defence. That being so, we think the High Court
was not justified interfering with the order passed against the
respondent.”

31) In the third leading case of Bihar School Examination Board vs Subhas
Chandra Sinha & Ors. (1970) (1) SCC 648, this Court (Three-Judge Bench)
examined the question of “mass copying” or I may say “unfair means
practiced on a large scale in examination” and how the concerned
authorities and the courts qua the candidates should deal with such case.
32) The facts of this case were that the Bihar School Examination Board
(for short “Board”) conducted annual Secondary School Examination in the
State of Bihar. Several candidates appeared at various centres all over the
State. 36 students of two schools namely, S.S.H.E School Jagdishpur and
H.E. School Malaur of District Shahbad (Bihar) appeared in the examination
at Hanswadih Centre. The results of all the candidates were declared in
papers except the results of the 36 candidates of the two schools who had
appeared in the examination from Hanswadih Centre. After sometime, news was
published in the paper that the examinations of all subjects held at
Hanswadih Centre were cancelled and the reason given for cancellation was
that the candidates at this Centre practiced unfair means on a large scale.
However, the candidates of this Centre were allowed to appear in the
supplementary Secondary School Examination.
33) The candidates challenged the order of cancellation of their results
in writ petition in the High Court of Patna on the ground that before
cancelling the result, the rules of natural justice and fair-play were not
observed because the candidates were not afforded any opportunity of
hearing before cancellation of their results.
34) The High Court accepted the submission and allowed the writ petition
by quashing the order of cancellation of their results. Against the
decision of the High Court of Patna, the Board appealed to this Court. This
Court ordered production of answer books for their inspection and compared
them. The comparison showed remarkable agreement in the answers that
students had assistance from an outside source. This Court allowed the
Board’s appeal, set aside the order of the High Court and dismissed the
writ petition filed by the candidates and upheld the cancellation of the
results.
35) Justice Hidayatulla-the learned Chief Justice speaking for the Three-
Judge Bench in his inimitable style of writing distinguished the case of
Ghanshyamdas Gupta (supra) and held in paras 13 and 14 as under:-

“13. This is not a case of any particular individual who is being charged
with adoption of unfair means but of the conduct of all the examinees or at
least a vast majority of them at a particular centre. If it is not a
question of charging any one individually with unfair means but to condemn
the examination as ineffective for the purpose it was held. Must the Board
give an opportunity to all the candidates to represent their cases? We
think not. It was not necessary for the Board to give an opportunity to the
candidates if the examinations as a whole were being cancelled. The Board
had not charged any one with unfair means so that he could claim to defend
himself. The examination was vitiated by adoption of unfair means on a mass
scale. In these circumstances it would be wrong to insist that the Board
must hold a detailed inquiry into the matter and examine each individual
case to satisfy itself which of the candidates had not adopted unfair
means. The examination as a whole had to go.

14. Reliance was placed upon Ghanshyam Das Gupta case to which we referred
earlier. There the examination results of three candidates were cancelled,
and this Court held that they should have received an opportunity of
explaining their conduct. It was said that even if the inquiry involved a
large number of persons, the Committee should frame proper regulations for
the conduct of such inquiries but not deny the opportunity. We do not think
that that case has any application. Surely it was not intended that where
the examination as a whole was vitiated, say by leakage of papers or by
destruction of some of the answer books or by discovery of unfair means
practised on a vast scale that an inquiry would be made giving a chance to
every one appearing at that examination to have his say? What the Court
intended to lay down was that if any particular person was to be proceeded
against, he must have a proper chance to defend himself and this did not
obviate the necessity of giving an opportunity even though the number of
persons proceeded against was large. The Court was then not considering the
right of an examining body to cancel its own examination when it was
satisfied that the examination was not properly conducted or that in the
conduct of the examination the majority of the examinees had not conducted
themselves as they should have. To make such decisions depend upon a full-
fledged judicial inquiry would hold up the functioning of such autonomous
bodies as Universities and School Board. While we do not wish to whittle
down the requirements of natural justice and fair-play in cases where such
requirement may be said to arise, we do not want that this Court should be
understood as having stated that an inquiry with a right to representation
must always precede in every case, however different. The universities are
responsible for their standards and the conduct of examinations. The
essence of the examinations is that the worth of every person is appraised
without any assistance from an outside source. If at a centre the whole
body of students receive assistance and are managed to secure success in
the neighbourhood of 100% when others at other centres are successful only
at an average of 50%, it is obvious that the University or the Board must
do something in the matter. It cannot hold a detailed quasi-judicial
inquiry with a right to its alumni to plead and lead evidence etc., before
the results are withheld or the examinations cancelled. If there is
sufficient material on which it can be demonstrated that the university was
right in its conclusion that the examinations ought to be cancelled then
academic standards require that the 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.”

36) In the fourth leading case of Prem Parkash Kaluniya Vs. Punjab
University and Ors., (1973) 3 SCC 424, which involved identical facts alike
the facts of the case of Bagleshwar Prasad (supra) involving two students
whose results were cancelled on the ground of using unfair means of copying
in the examination, this Court (Three-Judge Bench) relied on facts and law
laid down in Bagleshwar Prasad (supra) and upheld the cancellation of the
results.
37) Justice Grover speaking for the Bench held in paras 11 and 12 as
under:-
“11. 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. It was further pointed out that the appellant had made rough
calculations at the back of the answer book which showed that he had worked
out the answer on his own without the aid of any other source which could
be regarded as common from which the other candidate was alleged to have
copied. 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. We
are also unable to see how the finding of the Standing Committee could be
regarded as vague or as having been based on no evidence.

12. In Board of High School and Intermediate Education, U.P. v. Bagleshwar
Prasad in which the facts were very similar, it was held that the identity
of the wrong answers given by the respondent in that case with that of the
other candidate bearing the consecutive Roll Number rendered the charge of
the respondent having employed unfair means highly probable and that the
findings of the enquiry committee based upon such probabilities and
circumstantial evidence could not be said to be based on no evidence as in
such matters direct evidence quite often cannot be available. It was
further pointed out that in dealing with these cases the problem faced by
such institutions should be appreciated by the High Court and so long as
the enquiry held was fair and afforded the candidate an opportunity to
defend himself, the matter should not be examined with the same strictness
as applicable to criminal charges in the ordinary courts of law. There is
hardly any justification for saying in the present case that the finding of
the Standing Committee was based on no evidence.”

38) In the fifth case of B. Ramanjini & Ors. vs. State of A.P. & Ors.
(2002) 5 SCC 533, the facts of the case were that the State authorities
had cancelled the examination held for selecting secondary school teachers
after noticing certain complaints of “mass copying” found to have been
done by the candidates in the examination in respect of Anantapur District.
39) Justice Rajendra Babu (as His Lordship then was) speaking for the
Bench took note of the law laid down in the case of Bihar School
Examination (supra) and while upholding the decision of cancellation of the
result of the candidates held as under:

“8. Further, even if it was not a case of mass copying or leakage of
question papers or such other circumstance, it is clear that in the conduct
of the examination, a fair procedure has to be adopted. Fair procedure
would mean that the candidates taking part in the examination must be
capable of competing with each other by fair means. One cannot have an
advantage either by copying or by having a foreknowledge of the question
paper or otherwise. In such matters wide latitude should be shown to the
Government and the courts should not unduly interfere with the action taken
by the Government which is in possession of the necessary information and
takes action upon the same. The courts ought not to take the action lightly
and interfere with the same particularly when there was some material for
the Government to act one way or the other. Further, in this case, the
first examinations were held on 19-4-1998. The same stood cancelled by the
order made on 15-5-1998. Fresh examinations were held on 11-7-1998 and
results have been published on 29-7-1998. Interviews were however held on
29-7-1998 (sic 27-8-1998) in such cases. The events have taken place in
quick succession. The parties have approached the court after further
examinations were held and after having participated in the second
examination. It is clear that such persons would not be entitled to get
relief at the hands of the court. Even if they had not participated in the
second examination, they need not have waited till the results had been
announced and then approached the Tribunal or the High Court. In such
cases, it would lead to very serious anomalous results involving great
public inconvenience in holding fresh examinations for a large number of
candidates and in Anantapur district alone nearly 1800 candidates were
selected as a result of the examinations held for the second time.
Therefore, we think, the High Court ought not to have interfered with the
order made by the Government on 15-5-1998 in cancelling the examinations
and holding fresh examination.”

40) In the sixth case of Union Public Service Commission vs. Jagannath
Mishra, (2003) 9 SCC 237, the facts were identical to the facts of the
cases of Bagleshwar Prasad and Prem Prakash Kalunia (supra). In this case
also two candidates sitting in close proximity in examination centre copied
from each other. The committee examined their answer papers and found that
answers were matching with each other. Their results were accordingly
cancelled which led to filing of petition first before the Tribunal and
then to the High Court successfully. However, when the matter came to this
Court at the instance of UPSC, this Court placed reliance on the law laid
down in Bagleshwar Prasad and Prem Prakash Kalunia (supra) and while
allowing the UPSC’s appeal, set aside the orders of the Tribunal and the
High Court and upheld the decision of cancellation of the result. It is
apposite to reproduce what is held by this Court in para 4 as under:
“4. Before we answer the questions posed, to have our conscience clear, we
had called upon UPSC to produce the answer papers of both the candidates.
We have carefully scrutinised the answer papers of both the candidates and
on a thorough scrutiny of the same, we have no doubt in our mind that but
for assistance and/or connivance of the respondent it would not have been
possible for the other candidate to answer in the manner in which he has
answered. As has been stated by this Court in the case of Prem Parkash
Kaluniya v. Punjab University in a matter like this it would be difficult
to get direct evidence and so long as an inquiry is held to be fair and it
affords the candidate adequate opportunity to defend himself, the matter
should not ordinarily be examined by courts with the same strictness as
applicable to criminal charges. The Court had further held that where
findings are based on probabilities and circumstantial evidence, such
findings cannot be said to have been based on no evidence. From the facts
alleged, it is crystal clear that the respondent was a brilliant student.
But, if a brilliant student is found to have adopted any unfair means in a
competitive examination, he will have to bear the consequences of the same.
Since we ourselves have examined the two answer papers in question and have
come to the conclusion that but for the assistance or connivance of the
respondent in some way or the other, it would not have been possible for
the other candidate to answer his question paper in the manner in which he
has answered, who was sitting just behind the respondent, we see no
justification for the Tribunal to interfere with the conclusion of UPSC.
The judgment of this Court on which the Tribunal as well as the High Court
has placed reliance will have no application to the case in hand. In that
view of the matter, we are of the considered opinion that the Tribunal
committed serious error in interfering with the conclusion of UPSC and in
interfering with the punishment awarded by it. The High Court also
committed error in affirming the said decision of the Tribunal. It is true
that there has been no report from the invigilator indicating any
malpractice by the respondent or the person who was sitting behind him.
But, mere absence of such report would not be sufficient to exonerate the
delinquency, if otherwise a conclusion could be arrived at that but for the
assistance of the respondent the candidate sitting behind him could not
have copied in the manner he has done. The Tribunal as well as the High
Court committed serious error by giving extra weightage for the absence of
any report from the invigilator. It cannot be held as a principle that
wherever there is no report from the invigilator indicating adoption of
malpractice in any examination the appropriate authority cannot come to the
conclusion about the adoption of malpractice. It would always be a case
depending upon the materials produced and there would be no bar for an
expert body to come to a definite conclusion about adoption of malpractice
in an examination even in the absence of a report of the invigilator to
that effect. It would always be a question of fact to be decided on the
basis of materials produced before the expert body.”

41) In the seventh leading case decided by (Three-Judge Bench) in Chief
General Manager, Calcutta Telephones District, Bharat Sanchar Nigam Ltd. &
Ors. Vs. Surendra Nath Pandey & Ors., 2011 (15) SCC 81, the facts of the
case were that B.S.N.L. a Government Company conducted departmental
examination for granting promotion to the post of Junior Accounts Officers
to their employees. The results were displayed containing the names of
successful and unsuccessful candidates. Some unsuccessful candidates then
made a representation as required under Rule 13 of Telegraph Manual
requesting for disclosure of their marks obtained by them in the
examination. This request was not acceded to and hence these candidates
filed O.A. before CAT. The CAT directed BSNL to publish the results, allow
the candidates to appear in the examination next year and pass appropriate
orders on their representation. The authorities concerned disposed of the
representation stating that some irregular practices were noticed in the
examination attributable to the candidates who resorted to unfair means and
hence their results were cancelled.
42) The candidates filed writ petitions against this order in Calcutta
High Court. The learned single Judge allowed the writ petition and held
that B.S.N.L could not prove that it was a case of “mass copying”
attributable to candidates. The appeal filed by B.S.N.L having been
dismissed by the Division Bench, the matter came to this Court at the
instance of B.S.N.L. This Court allowed the appeal, set aside the orders of
High Court and dismissed the candidates’ writ petition.
43) Referring to and placing reliance on all the aforementioned cases
referred to above, Justice Nijjar speaking for the Bench held in paras 28
and 33 as under:-

“28. We are of the considered opinion that the procedure adopted by the
appellants cannot be said to be unfair or arbitrary. It was a reasonable
and fair procedure adopted in the peculiar circumstances of the case. It
cannot be said to be in breach of rules of natural justice. It must be
remembered that rules of natural justice are not embodied rules. They
cannot be put in a straitjacket. The purpose of rules of natural justice is
to ensure that the order causing civil consequences is not passed
arbitrarily. It is not that in every case there must be an opportunity of
oral hearing.

33. As noticed earlier, in the present case, the appellants had adopted a
very reasonable and a fair approach. A bona fide enquiry into the fact
situation was conducted by a committee of high-ranking officers of the
Department. In our opinion, the High Court was wholly unjustified in
interfering with the decision taken by the appellants in the peculiar
circumstances of the case. It is settled beyond cavil that the decisions
taken by the competent authority could be corrected provided it is
established that the decision is so perverse that no sensible person, who
had applied his mind to the question to be decided could have arrived at
it. The aforesaid principle is based on the ground of irrationality and is
known as the Wednesbury principle. The court can interfere with a decision,
if it is so absurd that no reasonable authority could have taken such a
decision. In our opinion, the procedure adopted by the appellants cannot be
said to be suffering from any such irrationality or unreasonableness, which
would have enabled the High Court to interfere with the decision.”

44) After examining the facts and the law laid down in abovementioned
seven cases, in my opinion, the ratio laid down in these cases can be
summarized thus : First, in a case where several candidates are found
involved in “mass copying” or in other words, where vast majority of
candidates were found to have resorted to use of unfair means in any
examination then it is not necessary for the concerned Institute to give
any show cause notice to any individual candidate before cancellation of
his result; Second, when it is difficult to prove by direct evidence that
the “copying” was done by the candidates then the same can be proved by
drawing inference based on probabilities and circumstantial evidence;
Third, there are several ways in which unfair means can be resorted to by
the candidates for doing copying individually or in the large scale by vast
majority of candidates; Fourth, where few candidates are found involved in
doing copying then it is necessary to give to individual candidate a show
cause notice by following rules of natural justice before taking any action
against him; Fifth, there must be some material (whether direct or based on
probabilities and circumstances) to prove that a candidate resorted to
unfair means for doing copying in answering his question paper; Sixth, if
there is adequate material to prove that the copying was done by individual
candidate or by the candidates on a large scale then even if no report was
submitted by any invigilator of any such incident yet it would be of no
significance; Seventh, the Court should not act as an appellate Court over
the decision of Expert Committee to examine the issue of “copying” or/and
“mass copying”, i.e., copying done on a large scale by vast majority of
candidates and more so when the Expert Committee has found the candidate
guilty of resorting to unfair means; Eighth, the Court should be slow to
interfere in the decision taken by the Expert Committee in such cases;
Ninth, if wrong answers of two candidates sitting in close proximity
tallies with each other then it would be a strong circumstance of copying
done by these two candidates; Tenth, this Court has consistently maintained
a distinction between a case of “copying” and “mass copying”, i.e. copying
done on a large scale by vast majority of candidates for applying the rules
of natural justice to the case. In the case of former, rules of natural
justice would be applicable and hence show cause notice to individual
candidate who is accused of doing copying will have to be given to such
candidate whereas in the case of later, the rules of natural justice are
not applicable and hence it is not necessary to give any show cause notice
to any candidate involved in mass copying; and Eleventh, the use of unfair
means by any candidate is a serious matter because it affects the
credibility of the examination and, therefore, once such charge is held
proved against any such candidate, the matter needs to be dealt with
sternly in relation to erring candidates.
45) When I examine the facts of the case at hand in the light of ratio
laid down in the aforementioned cases, then I find that the facts of the
case at hand are identical partly to the facts of the case of Bihar School
Examination Board (supra) and partly to the facts of Bagleshwar Prasad and
Prem Prakash (supra). This I say for the following reasons.
46) First, this is a case where large number of candidates (more than two
hundred) in the examinations held from 2008 to 2012 were found involved in
copying like what was noticed in the case of Bihar School Examination
(supra) where 36 candidates were found involved in copying. Second, there
was uniform pattern adopted by the candidates for doing copy in the
examinations. This circumstance lends support to the fact that “mass
copying” was done by the candidates in a planned manner; Third, candidates
who managed to sit in pair in close proximity (described as “scorer” and
“beneficiary”), their wrong answers consistently matched with each other.
This circumstance was relied on in the cases of Bagleshwar Prasad and
Prem Prakash Kalunia (supra) for forming an opinion that both the
candidates copied from each other; Fourth, the material seized in
investigation prima facie established that “mass copying” was done in a
planned manner by the several candidates (appellants herein) to enable them
to answer the questions; Fifth, interpolations were found in sitting plan
originally made by Vyapam for some years to accommodate the candidates
(appellants) and others like the appellants to sit in a particular
examination center in close proximity with each other so that they are
able to copy from each other; Sixth, many candidates despite clearing the
examination did not take admission in any medical college. There was no
satisfactory answer given by them barring very few; Seventh, material
seized in investigation was found sufficient by the Expert Committee to
form an opinion that it was a case of “mass copying”. In addition it was
also established on probabilities and circumstantial evidence that the
candidates in large scale which included the appellants did mass copying;
Eighth, the Expert Committee examined the issues from all angles and
analyzed the material seized for coming to a conclusion that it was a case
of “mass copying” done by the candidates in large scale as a part of a
planned strategy and that they used unfair means; Ninth, allegations of
mala fides were not alleged in the writ petitions by any candidate against
any member of Expert Committee or/and officials of the State/Vyapam; Tenth,
the writ court rightly did not act as an appellate court to reverse the
decision of Expert Committee; Eleventh, the formula evolved by the Expert
Committee was usually applied in such type of cases by various institutions
and no perversity or/and arbitrariness was shown by the appellants in the
formula except to contend that it was not a proper formula; and lastly, the
expression “mass copying” not being defined in any Act/Regulation/Rules,
its meaning in ordinary parlance can be summed up as “sizable or large
number of candidates found copying or discovered to have copied while
answering their question paper by using unfair means in examination”. In
my view, this fully applies to the facts of the case at hand.
47) I am not impressed by the submissions of learned counsel for the
appellants when they made attempt to find fault in the material relied on
by the State/Vypaym against the appellants and contended that it is not a
material at all, and in any event, it is irrelevant and hence can not be
looked into for any purpose. It was also urged that since it was not
supplied to the appellants and hence it is of no use.
48) As held above, Firstly, neither the writ court and nor this Court
could sit as an appellate Court over the decision of the Expert Committee
and find fault in the material relied on by the Committee; Secondly, the
method evolved by the experts was usually applied to find out as to whether
two candidates had copied from each other and hence no fault could be
noticed in it; Thirdly, the decision to cancel the results was based on
other contemporaneous material seized during the investigation by STF;
Fourthly, the decision to cancel the results was not taken in post-haste
but was taken with full application of mind by the Expert Committee which
consists of experts in subjects and lastly, this being a case of “mass
copying”, it was neither necessary to give any show cause notice to the
appellants and nor necessary to supply the material to the appellants. It
is for these reasons, I find no merit in this submission.
49) Though an attempt was made by learned counsel for the appellants to
distinguish the cases cited above but I am unable to notice any significant
distinction. This Court, therefore, has to apply the law laid down in
these cases for deciding the case at hand. It is all the more because the
learned counsel for the appellants did not challenge and in my view
rightly, the correctness of the view taken in any of these decisions.
50) In the light of detailed discussion and the reasoning given supra, I
am of the considered opinion that it is a clear case of what is called in
ordinary parlance a “mass copying” and I have no hesitation in holding so.
I am also of the opinion that the procedure adopted by the State/Vyapam
cannot be said to be unfair or arbitrary. I am also of the view that the
action impugned is not in breach of rules of natural justice which has no
application to the facts of this case as held in the cases of Bihar School
Examination and BSNL (supra). It is a settled principle that rules of
natural justice are not embodied rules and hence such rules cannot be put
in a strait-jacket. The object of the rules of natural justice, is only to
ensure that order causing civil consequences should not be passed
arbitrarily. It is not that in every case, there must be an opportunity of
oral hearing to person concerned. This principle, in my view, applies to
the case at hand.
51) This takes me to the next submission of learned counsel for the
appellants, namely, that since there was inordinate delay in taking the
decision to cancel the examination and in the meantime the appellants have
altered their position by completing their degree course, or are about to
complete the Course in near future and hence this Court should protect the
appellants’ interest on equitable considerations. I do not agree.
52) The issue of somewhat similar nature was examined by this Court in
the case of Ram Preeti Yadav vs. U.P. Board of High School and
Intermediate Education and Ors., (2003) 8 SCC 311. In this case, the
facts were that in the year 1984, Mr. Mahendra Pratap Yadav (respondent
No.3 therein) appeared as private candidate in intermediate examination
conducted by U.P.Board of High School and Intermediate Education. Mr.
Yadav’s result was withheld as a suspected case of using unfair means in
the examination. He was, however, issued two provisional mark sheets. In
one mark sheet, it was mentioned that his result is withheld (WB) whereas
in other it was not. Mr. Yadav on the basis of provisional marks-sheet
which did not mention withholding of his result took admission in B.A. and
cleared the examination. He also thereafter cleared M.A. examination. He
was then selected as a teacher. In the year 1993, an inquiry was made
pursuant to which he was informed in 1996 that his intermediate examination
result, which was held in the year 1984, is cancelled.
53) Challenging the cancellation of his result, Mr. Yadav filed writ
petition in the High Court at Allahabad on three grounds: Firstly, he was
not afforded any opportunity of hearing before his result was cancelled;
Secondly, the cancellation of the result was done after almost 10 years and
hence it is wholly arbitrary; and Thirdly, since in the meantime, he
cleared BA and MA Examinations with good percentage and secured employment
as a teacher, the cancellation of his intermediate examination result is
bad in law.
54) A learned Single Judge of the High Court was of the view that since
Mr. Yadav has successfully cleared BA and MA Examinations and has also
secured employment due to his brilliant performance in BA and MA
Examinations, why should his career be ruined. It was on these grounds, his
writ petition was allowed and cancellation of his result was set aside. The
appeal filed by the Board and the institute against the order of Single
Judge was dismissed and hence the Board carried the matter in appeal to
this Court.
55) This Court allowed the appeal and while rejecting the aforementioned
three grounds of challenge, set aside the order of the High Court and
dismissed the writ petition. This Court while rejecting the submissions
placed reliance on earlier decision of this Court rendered in Madhyamic
Shiksha Mandal M.P. vs. Abhilash Shiksha Prasar Samiti & Ors., (1998) 9 SCC
236 and quoted para 2 of Madhyamic Shiksha Mondal’s case (supra) in support
of their reasoning which reads as under:-
“2. We feel a little distressed that in matter like this the High Court
should have interfered with the decision taken by the
Board……………………… In the face of this material, we do not see
any justification in the High Court having interfered with the decision
taken by the Board to treat the examination as cancelled. It is unfortunate
that the student community resorts to such methods to succeed in
examinations and then some of them come forward to contend that innocent
students become victims of such misbehaviour of their companions. That
cannot be helped. In such a situation the Board is left with no alternative
but to cancel the examination. It is extremely difficult for the Board to
identify the innocent students from those indulging in malpractices. One
may feel sorry for the innocent students but one has to appreciate the
situation in which the Board was placed and the alternatives that were
available to it so far as this examination was concerned. It had no
alternative but to cancel the results and we think, in the circumstances,
they were justified in doing so. This should serve as a lesson to the
students that such malpractices will not help them succeed in the
examination and they may have to go through the drill once again. We also
think that those in charge of the examinations should also take action
against their Supervisors/Invigilators, etc., who either permit such
activity or become silent spectators thereto. If they feel insecure because
of the strong-arm tactics of those who indulge in malpractices, the remedy
is to secure the services of the Uniformed Personnel, if need be, and
ensure that students do not indulge in such malpractices.”

56) This Court then equated the incident of this nature with fraud played
by the candidate and held in Paras 13,14 and 26 of Ram Preeti Yadav’s case
which read as under:
“13. Fraud is a conduct either by letter or words, which induces the other
person or authority to take a definite determinative stand as a response to
the conduct of the former either by words or letter. Although negligence is
not fraud but it can be evidence on fraud. (See Derry v. Peek, (1889) 14 AC
337)
14. In Lazarus Estates Ltd. v. Beasley, (1956) 1 All ER 341, the Court of
Appeal stated the law thus: (All ER p. 345 C-D)
“I cannot accede to this argument for a moment. No court in this land will
allow a person to keep an advantage which he has obtained by fraud. No
judgment of a court, no order of a minister, can be allowed to stand if it
has been obtained by fraud. Fraud unravels everything. The court is careful
not to find fraud unless it is distinctly pleaded and proved; but once it
is proved it vitiates judgments, contracts and all transactions
whatsoever;”

26. Further, we find that there is no equity in favour of Respondent 3,
inasmuch as he knew that his result had been withheld because of the
allegation of having used unfair means in the examination. Suppressing this
fact, he took admission in BA and studied further.”

57) Applying the aforesaid law to the facts of the case at hand, I find
that the appellants are not entitled to claim any equitable relief on the
ground that they have almost completed their course during the interregnum
period and hence no action on the basis of their PMT Examination results is
called for.
58) In my view, when in the case of Ram Preeti Yadav (supra), the
decision to cancel the result was taken after 10 years of the examination
in which he had appeared and in the meantime, he had also completed his
higher studies and secured an employment yet this Court was not impressed
by such submission and rejected it in express terms. So is the case here
where delay in cancellation of the result is less as compared to the case
of Mr. Yadav. That apart, the case at hand prima facie established a case
of “mass copying” attributable to the appellants who resorted to unfair
means in a planned way in the PMT examination and lastly, when any action
is done discretely, it takes times to discover.
59) Learned counsel for the appellants placed reliance upon the decision
in Priya Gupta Vs. State of Chhattisgarh and ors., (2012) 7 SCC 433 and
contended that this Court should invoke its extra- ordinary jurisdiction
under Article 142 of the Constitution as was exercised in the case of Priya
Gupta for granting relief to the appellants on equitable terms and
conditions and allow the appellants to continue their study in MBBS Degree
course. I cannot accept this submission for more than one reason.
60) First, the facts of the case at hand and the facts of the case of
Priya Gupta (supra) are not similar because in the case of Priya Gupta, the
right of only one candidate was involved whereas in the case at hand large
number of candidates are involved. Second, when this Court invokes its
extra-ordinary jurisdiction under Article 142 of the Constitution which is
indeed rare and should indeed be rare for its invocation, it is always
confined to the particular facts of that case and cannot be cited as a law
laid down by this Court. Third, when in similar type of cases, this Court
did not grant any equitable relief to the erring candidates except
permitted the candidates to appear in the supplementary examination (see
Para 2 of Bihar School Examination case (supra) at page 649 of the report
where this Court upheld such direction while allowing the appeal filed by
Board), then in my view, the same principle should apply to this case also.
Fourth, once the cancellation of the Examination results is upheld as
being just, legal and proper, then its natural consequence must ensue. In
other words, once the examination is cancelled irrespective of ground on
which it is cancelled then candidates whose results are cancelled have to
repeat the examination whenever it is held. They can not take any benefit
of such examination like those candidates who successfully passed the
examination with their merit. Fifth, having regard to the nature of the
controversy involved in the case coupled with the complicity of several
persons in the Scam and the manner in which the appellants cleared the
examination which gave rise to initiation of criminal proceedings (though
pending) against the appellants and several others, the exercise of
extraordinary equitable jurisdiction under Article 226 for grant of
equitable relief of any nature to the appellants is not called for and if
granted, it will be against the settled legal position laid down by this
Court. Since no equitable relief under Article 226 is called for, as a
corollary, the question of invoking our extraordinary powers under Article
142 does not appear to be proper. In any case, in the light of the finding
recorded by this Court against the appellants which has resulted in
upholding of the impugned order of the High Court, this is not a fit case
for invocation of extraordinary equitable jurisdiction available under
Article 142. Sixth, grant of any equitable relief may be construed as
awarding premium to the appellants of what they did. It would demoralize
the meritorious students who could not secure the admission on their merit
due to the appellants’ entry in the Colleges by illegal means. Seventh,
this is not a case where the appellants’ results were cancelled on some
technical ground and that too attributable to the State. In other words, if
the cancellation had been done on a cause not attributable to the
appellants then perhaps this Court would have considered grant of
appropriate prayer to the appellants. However, such is not the case here.
Eighth, grant of any equitable relief, as prayed by the appellants, once
they are held responsible for cancellation of their results would affect
the creditability in conducting the examination and cause more harm to the
candidates as a whole and especially those who prepare for their
examination sincerely and on their merit. In my view it will not be,
therefore, in larger public good in long run to entertain any such prayer.
Ninth, since the appellants, are in their youth, they can still appear in
the examination and clear it with distinction by proving their merit. And
lastly, grant of any such relief to the appellants may amount to some
extent travelling beyond the real controversy and may be considered
inconsistent with the main findings rendered by this Court.
61) In these circumstances, the State may consider permitting the
appellants and other candidates alike the appellants to appear in the
competitive examination whenever it is held and consider granting age
relaxation to those candidates who crossed the age limit, if prescribed.
Such liberty, if granted, would not cause any prejudice to any one and at
the same time would do substantial justice to all such candidates as was
done in the case of Bihar School Examination (supra). Beyond this, in my
view, the appellants are not entitled to claim any indulgence.
62) Learned counsel for the appellants cited several cases, such as Union
of India & Anr. Vs. Tulsiram Patel, (1985) 3 SCC 398, Dr. Dinesh Kumar &
Ors. vs. Motilal Nehru Medical College, Allahabad & Ors., (1985) 3 SCC 542,
State of Maharashtra & Ors. vs. Jalgaon Municipal Council & Ors., (2003) 9
SCC 731 and Situ Sahu & Ors. vs. State of Jharkhand & Ors., (2004) 8 SCC
340 etc. in support of their submissions. Perusal of these decisions would
show that this Court in these decisions has explained the general
principle of rules of natural justice and how this principle is applicable
to a particular case.
63) This Court has laid down in these cases that the applicability of
rules of natural justice is not static but it has different facets and,
therefore, its applicability vary from case to case. I find that none of
these cases has dealt with the cases of “copying” or “mass copying”. In my
view, when the question as regard the applicability of rules of natural
justice has already been decided by this Court in several cases relating to
“copying” and “mass copying” then the law laid down in such cases must be
applied to the cases at hand and not the one which lays down the law which
explains the principle in general. Similarly, the last case cited has no
application to the facts of this case because it deals with the
applicability of rule to the case relating to the land. It is for these
reasons, the submission based on the case law cited has no merit. It is
accordingly rejected.
64) This takes me to the issue regarding constitution of Vyapam under the
Act and its effect on the controversy in question. Since this issue has
been elaborately dealt with by my esteemed Brother, I respectfully agree
with His Lordship’s reasoning and the conclusion and hence do not wish to
add anything.
65) It is pertinent to mention that this Court by order dated 08.08.2014
has dismissed one S.L.P. (c) No. 16257 of 2014 in limine arising out of the
order of the High Court dated 11.04.2014 in W.P. No. 20342 of 2013 entitled
Km. Pratibha Singh & Ors. vs. State & Ors. and other connected matters.
This writ petition was filed by the candidates who had appeared in the PMT
examination held in the year 2013. The results of these candidates were
also cancelled on the same grounds on which it was cancelled in the cases
at hand. i.e., in relation to candidates of the years 2008 to 2012. The
High Court by order dated 11.04.2014 dismissed the writ petitions and
upheld the cancellation of the results. In fact, the impugned judgment in
this case has followed in extenso the main decision rendered in Pratibha
Singh’s case (supra). Since it was a dismissal of SLP in limine and as
rightly argued by the learned counsel for the appellants that there was no
merger of the decision of the High Court and nor it could be considered
that this Court affirmed the view taken by the High Court in Pratibha
Singh’s case (supra), we considered in the interest of justice to hear
these matters in detail and record our reasons.
66) It was then brought to our notice by the learned counsel appearing
for the State/Vyapam that pursuant to FIR registered in these cases, the
investigation is still going on by the CBI as directed by this Court vide
an order passed in pending special leave petition. It is stated that in
several cases, charge sheets have been filed against several accused in
Courts.
67) It is accordingly made clear that any observation made by this Court
in this judgment would not, in any way, influence the ongoing investigation
and any pending criminal case. It is also made clear that this Court has
examined the issue relating to cancellation of results in the light of
grounds raised by the appellants in the writ petitions and the special
leave petitions. In this view of the matter, ongoing investigation and
pending criminal cases will be dealt with and decided strictly in
accordance with law uninfluenced by any observation made hereinabove.
68) Before parting, it is considered apposite to observe that it is well
known that the Examination is always considered as one of the major means
to assess and evaluate candidate’s skills and knowledge be it a school
test, university examination, professional entrance examination or any
other examination. Candidate’s fitness for his further assignment whether
in studies or employment is, therefore, judged on the basis of his
performance in the examination. It is for this reason, the examination is
considered as a common tool around which the entire education system
revolves.
69) Examination malpractices, academic fraud or cheating in the
examination is as old as the examination itself. Study made by the
educationist has revealed that these malpractices are gradually on the rise
across the world and has caused a threat to public trust in reliability and
credibility to the system as a whole. These malpractices occur within and
outside the examination halls and are perpetrated by the candidates, staff
and other external agencies before, during and after the examination.
Various kinds of strategies are innovated and then applied to enable the
candidate to clear the examination any how. It has, therefore, destroyed
the piousness of the examination. With a view to prohibit such activities,
State of A.P. had enacted a legislation but it was found inadequate to
control such activities.
70) It is, therefore, the collective responsibility of the Government
(Central/States), educational bodies/Institutions to ponder over and evolve
a uniform policy in a comprehensive manner to firmly deal with such
activities in the larger public good. It is hoped that effective remedial
steps would be taken in that regard.
71) In view of foregoing discussion, I find no merit in these appeals.
All the appeals thus fail and are accordingly dismissed. No Costs.
…………………………………….J. [ABHAY MANOHAR SAPRE]
New Delhi,
May 12, 2016.

IN THE SUPREME COURT OF INDIA

CIVIL APPELALTE JURISDICTION

CIVIL APPEAL NO(S).1727 OF 2016

NIDHI KAIM …………………………………..APPELLANT(S)

VERSUS

STATE OF M P AND ORS ETC …………….RESPONDENT(S)

WITH

O R D E R

In view of the divergence of opinion in terms of separate judgments
pronounced by us in these appeals today, the Registry is directed to place
the papers before Hon’ble the Chief Justice of India for appropriate
further orders.

…………………..J. (J. CHELAMESWAR)

…………………..J. (ABHAY MANOHAR SAPRE)
NEW DELHI
MAY 12, 2016
———————–
[1]
[2] Section 3. Incorporation of the Board. – (1) The State
Government shall establish by a notification, a Board to be called the
Madhya Pradesh Professional Examination Board with effect from such date as
may be specified in the notification.
(2) The Board shall be a body corporate by the name of the Madhya
Pradesh Professional Examination Board and shall have perpetual succession
and a common seal with power to acquire and hold property, both movable and
immovable and shall have power to transfer any property held by it and to
contract and do all other things necessary for the purposes of its
constitution and may sue or be sued in its corporate name.
[3]
[4] For the details of the executive orders, See Ku. Pratibha Singh
(Minor) v. The State of Madhya Pradesh & Others, 2014 (III) MPJR 178
[5]
[6] The nature of the enquiry was discussed by Madhya Pradesh High
Court in great detail in the judgment of Ku. Pratibha Singh (Minor) v. The
State of Madhya Pradesh & Others, 2014 (III) MPJR 178

[7]
[8] (a) In reference to above subject, it is submitted that on
conducting inquiry from the accused arrested in the cases registered in
connection with referenced examination and other examinations in S.T.F.,
M.P. Bhopal and even in so far as the accused arrested by your office have
stated regarding forgery in these examination. Accused Jagdish Sagar and
Sanjiv Shilpkar arrested in the S.T.F. Crime No.12/2013, under Section 420,
467, 468, 471, 120 B I.P.C., 3(D)1, 2/4 M.P. Recogniltion Examination Act,
1937 have stated regarding forgery for setting of equal roll number in
P.M.T. Examination 2012 and 2013 and for setting of equal roll numbers in
the P.M.T. Examination 2013 in collusion with Officers of Vyapam namely
Nitin Mohindra and Others.

Therefore, it is requested to provide report after conducting
investigation in accordance with law as conducted in connection P.M.T.
Examination 2013, P.M.T. Examination 2012, in the referenced P.M.T.
Examination 2009, 2010, 2011, so that, action would be taken in accordance
with law in connection with above. – relevant portion of the letter dated
31.12.2013

(b) We understand that the original letter is in vernacular and the
above is a Translation placed on record before us.”

[9]
[10]Year Number of Student
2012 319
2011 98
2010 90
2009 85
2008 42

[11]
Year Total number of students who appeared in the PMT
2008 38,378
2009 29,162
2010 26,711
2011 26,116
2012 38,671

[12]
[13]. The Circumstances are:-
(i) with respect to each of the five years in question, a definite
pattern was followed by the BOARD in allotment of Roll numbers as well as
examination centres. But, it is detected on enquiry that allotment of both
the Roll number and the examination centre with respect to some of the
students was in deviation from the pattern adopted for the year;

Such deviations with reference to several centres occurred in pairs.
The logical pattern employed for the generation of Roll numbers was broken
with respect to some pairs of students. They were allotted sequential Roll
numbers, though they could not have been allotted those numbers if the
logical pattern were followed. Further, such pairs of students were
allotted examination Centres which they could not have been allotted having
regard to Roll numbers allotted to them, and the pattern of the Roll
numbers allotted to the particular examination Centre.

(iii) in such pairs, once again there is a pattern i.e. the more
accomplished student is made to sit in front of the other of the pair
(referred to in the impugned judgment as “Scorer” and “beneficiary”
respectively). Such an arrangement was made in order to enable the
“beneficiary” to copy from the “scorer”;

(iv) with reference to most of the identified pairs, the candidates
not only got substantially similar (if not identical) marks, but also their
answers, both correct and incorrect, with reference to each one of the
questions answered by them matched to a substantial extent.

in most of the cases of the identified pairs, the ‘scorer’ did not
belong to Madhya Pradesh.

Such ‘scorers’ in most of the cases though secured sufficiently high
marks in the PMT, did not take admission in any one of the medical colleges
of Madhya Pradesh. The respondents, therefore, believe that the ‘scorers’
were not genuinely interested in securing admission in any medical college
of MP and they appeared in the examination only to facilitate the
‘beneficiary’ to obtain good marks to enable the beneficiary to secure
admission.

[14]
[15] “Para 72. We have already held that the candidates had
indulged in mass copying in Pre-Medical Tests, 2008 to 2012 therefore, for
the reasons assigned by Division Bench in paras 91 to 106 of the decision
in the case of Pratibha Singh (supra) the principles of natural justice
would have no application in the peculiar fact situation of these cases. .
. .”

[ The judgment in Pratibha Singh’s case (supra) dated 11.4.2014 is a
common judgment delivered in a batch of writ petitions filed by number of
students who had appeared in the PMT 2013, but whose admissions were also
cancelled on the allegation of large scale malpractices in the said
examination. ]
[16]
[17] An unfortunate state of affairs in public administration of a
country where people associated with the different branches of governance
under the Constitution make tall claims about the constitutional commitment
to the rule of law in the country.

[18]
[19] Rai Sahib Ram Jawaya Kapur & Others v. The State of Punjab, AIR
1955 SC 549
Para 7. Article 73 of the Constitution relates to the executive
powers of the Union, while the corresponding provision in regard to the
executive powers of a State is contained in Article 162. The provisions of
these articles are analogous to those of section 8 and 49(2) respectively
of the Government of India Act, 1935 and lay down the rule of distribution
of executive powers between the Union and the States, following the same
analogy as is provided in regard to the distribution of legislative powers
between them. Article 162, with which we are directly concerned in this
case, lays down:

“Subject to the provisions of this Constitution, the executive power
of a State shall extend to the matters with respect to which the
Legislature of the State has power to make laws:

Provided that in any matter with respect to which the Legislature of
a State and Parliament have power to make laws, the executive power of the
State shall be subject to, and limited by, the executive power expressly
conferred by this Constitution or by any law made by Parliament upon the
Union or authorities thereof.”

Thus under this article the executive authority of the State is
exclusive in respect to matters enumerated in List II of Seventh Schedule.
The authority also extends to the Concurrent List except as provided in the
Constitution itself or in any law passed by the Parliament. Similarly,
Article 73 provides that the executive powers of the Union shall extend to
matters with respect to which the Parliament has power to make laws and to
the exercise of such rights, authority and jurisdiction as are exercisable
by the Government of India by virtue of any treaty or any agreement. The
proviso engrafted on clause (1) further lays down that although with regard
to the matters in the Concurrent List the executive authority shall be
ordinarily left to be State it would be open to the Parliament to provide
that in exceptional cases the executive power of the Union shall extend to
these matters also.
Neither of these articles contain any definition as to what the
executive function is and what activities would legitimately come within
its scope. They are concerned primarily with the distribution of the
executive power between the Union on the one hand and the States on the
other. They do not mean, as Mr. Pathak seems to suggest, that it is only
when the Parliament or the State Legislature has legislated on certain
items appertaining to their respective lists, that the Union or the State
executive, as the case may be, can proceed to function in respect to them.
On the other hand, the language of Article 162 clearly indicates that
the powers of the State executive do extend to matters upon which the state
Legislature is competent to legislate and are not confined to matters over
which legislation has been passed already. The same principle
underlies Article 73 of the Constitution. These provisions of the
Constitution therefore do not lend any support to Mr. Pathak’s contention.

[20]
[21] Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh &
Others, (1982) 1 SCC 39
“Para 20. … In other words, the State in exercise of its executive
power is charged with the duty and the responsibility of carrying on the
general administration of the State. So long as the State Government does
not go against the provisions of the Constitution or any law, the width and
amplitude of its executive power cannot be circumscribed. If there is no
enactment covering a particular aspect, certainly the Government can carry
on the administration by issuing administrative directions or instructions,
until the legislature makes a law in that behalf. Otherwise, the
administration would come to a standstill.”

[22]
[23] The Court was then not considering the right of an examining
body to cancel its own examination when it was satisfied that the
examination was not properly conducted or that in the conduct of the
examination the majority of the examinees had not conducted themselves as
they should have.
[24]
[25] Para 12. In dealing with petitions of this type, it is
necessary to bear in mind that educational institutions like the
Universities or Appellant 1 set up Enquiry Committees to deal with the
problem posed by the adoption of unfair means by candidates, and normally
it is within the jurisdiction of such domestic Tribunals to decide all
relevant questions in the light of the evidence adduced before them. In
the matter of the adoption of unfair means, direct evidence may sometimes
be available, but cases may arise where direct evidence is not available
and the question will have to be considered in the light of probabilities
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 do so, courts should be slow to interfere with the
decisions of domestic Tribunals appointed by educational bodies like the
Universities. In dealing with the validity of the impugned orders passed
by Universities under Article 226, the High Court is not sitting in appeal
over the decision in question; its jurisdiction is limited and though it is
true that if the impugned order is 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. Enquiries held
by domestic Tribunals in such cases must, no doubt, be fair and students
against whom charges are famed must be given adequate opportunities to
defend themselves, and in holding such enquiries, the Tribunals must
scrupulously follow rules of natural justice; but it would, we think, not
be reasonable to import into these enquiries all considerations which
govern criminal trials in ordinary courts of law.”

See also: Maharashtra State Board of Secondary and Higher Secondary
Education v. K.S. Gandhi & Others, (1991) 2 SCC 716
“Para 37. It is thus well settled law that strict rules of the
Evidence Act, and the standard of proof envisaged therein do not apply to
departmental proceedings or domestic tribunal. It is open to the
authorities to receive and place on record all the necessary, relevant,
cogent and acceptable material facts though not proved strictly in
conformity with the Evidence Act. The material must be germane and relevant
to the facts in issue. In grave cases like forgery, fraud, conspiracy,
misappropriation, etc. seldom direct evidence would be available. Only the
circumstantial evidence would furnish the proof. In our considered view
inference from the evidence and circumstances must be carefully
distinguished from conjectures or speculation. The mind is prone to take
pleasure to adapt circumstances to one another and even in straining them a
little to force them to form parts of one connected whole. There must be
evidence direct or circumstantial to deduce necessary inferences in proof
of the facts in issue. There can be no inferences unless there are
objective facts, direct or circumstantial from which to infer the other
fact which it is sought to establish. In some cases the other facts can be
inferred, as much as is practical, as if they had been actually observed.
In other cases the inferences do not go beyond reasonable probability. If
there are no positive proved facts, oral, documentary or circumstantial
from which the inferences can be made the method of inference fails and
what is left is mere speculation or conjecture. Therefore, when an
inference of proof that a fact in dispute has been held established there
must be some material facts or circumstances on record from which such an
inference could be drawn. The standard of proof is not proof beyond
reasonable doubt “but” the preponderance of probabilities tending to draw
an inference that the fact must be more probable. Standard of proof cannot
be put in a strait-jacket formula. No mathematical formula could be laid on
degree of proof. The probative value could be gauged from facts and
circumstances in a given case. The standard of proof is the same both in
civil cases and domestic enquiries.”
[26]
[27] Para 9- The argument that no one had complained about the
examination need not detain us. The Tabulators sent their remarks on which
investigation was made. The Unfair Means Committee and the Moderators gave
their opinion. These were sufficient for taking action. There was no need
to wait for a complaint, nor was a complaint really necessary. The results
were withheld so that inquiries could be completed. In the meantime the
results of the other centres which were not under suspicion could be
declared because in their case there was no reason to withhold publication.
[28]
[29] Para13. This is not a case of any particular individual who is
being charged with adoption of unfair means but of the conduct of all the
examinees or at least a vast majority of them at a particular centre. If it
is not a question of charging any one individually with unfair means but to
condemn the examination as ineffective for the purpose it was held. Must
the Board give an opportunity to all the candidates to represent their
cases? We think not. It was not necessary for the Board to give an
opportunity to the candidates if the examinations as a whole were being
cancelled. The Board had not charged any one with unfair means so that he
could claim to defend himself. The examination was vitiated by adoption of
unfair means on a mass scale. In these circumstances it would be wrong to
insist that the Board must hold a detailed inquiry into the matter and
examine each individual case to satisfy itself which of the candidates had
not adopted unfair means. The examination as a whole had to go.
[30]
[31] Para 11. This brings us to the crux of the problem. The High
Court interfered on the ground that natural justice and fair-play were not
observed in this case. This was repeated to us by the respondents in the
appeal. A mention of fair-play does not come very well from the respondents
who were grossly guilty of breach of fair-play themselves at the
examinations. Apart from the reports of the experts, the results speak for
themselves. At the other centres the average of successful candidates was
50%. At this centre the examinations had the following percentage:

1. Mother Indian Language .. 94%
2. English .. 70%
3. Social Studies .. 95%
4. Everyday Science .. 90%
5. Elementary Mathematics .. 100%
6. Economics and Civics .. 92%
7. Elementary Physiology and Hygiene .. 96%
8. Geography .. 99%
9. History .. 88%
10. Physics .. 70%
11. Chemistry .. 100%
12. Advance Mathematics .. 99%
13. Sanskrit .. 100%

[32]
[33] To assure itself regarding the correctness of the said
inference, this Court undertook comparison of the answer papers of some of
the students and recorded satisfaction that such answer papers “showed such
a remarkable agreement in the answers that no doubt was left in the minds
of this Court that the students had assistance from an outside source”.
[34]
[35] Whether the said circumstances would be sufficient to connect
any one of the students on a criminal charge is a different question and we
express no opinion on the same as we understand that criminal cases are
registered and are being investigated against some of the appellants (if
not all) in connection with the same transaction which is the subject
matter of debate in these appeals.
[36]
[37] The Expert Committee evolved a formula to examine whether a
conclusion could be reached with respect to the identified pairs that they
had resorted to the unfair means. The facts relevant for the said formula
are:
(1) the total number of questions answered by each number of the
pair;
(2) the number of correct answers given by each number of the pair
and how many of the said correct answers matched;
(3) the number of wrong answers matched.

After determining the above mentioned numbers with respect to each of
the identified pairs, greater weightage is given to the incorrect matching
answers to arrive at a conclusion that the number of the identified pair
resorted to unfair means at the examination.
[38]
[39]. Para 6. “… He admitted that the mistaken answers in the two
papers were identical and he pleaded that he could not say anything as to
why this happened. …”
Para 11. “ … We have looked at the incorrect answers ourselves and we
are not prepared to hold that the identical incorrect answers were given by
the two candidates either by accident or by coincidence. Some of the
incorrect answers, and, particularly, the manner in which they have been
given, clearly suggest that they were the result of either one candidate
copying from the other, or both candidates copying from a common source. …”

[40]
[41] It was found that “the admission … had been on the basis of
fake letters purported to be issued from the Directorate General of Health
Services (DGHS) …”.
[42]
[43]
“Para 73. … By their admissions, firstly, other candidates of
higher merit have been denied admission in the MBBS course. Secondly, they
have taken advantage of a very low professional college fee, as in private
or colleges other than the government colleges, the fee payable would be
Rs.1,95,000 per year for general admission and for management quota, the
fee payable would be Rs.4,00,000 per year, but in government colleges, it
is Rs.4000 per year. So, they have taken a double advantage. As per their
merit, they obviously would not have got admission into Jagdalpur College
and would have been given admission in private colleges. The ranks that
they obtained in the competitive examination clearly depict this
possibility because there were only 50 seats in Jagdalpur College and there
are hundreds of candidates above the appellants in the order of merit. They
have also, arbitrarily and unfairly, benefited from lower fees charged in
Jagdalpur College.”

[44]
[45] They are the beneficiaries of a tampered examination process.
The tampering took place systematically and repeatedly for a number of
years virtually destroying the credibility of the examination process. It
deprived a number of other more deserving students from securing admissions
to the medical colleges.

[46]
[47] See Sections 468 of the Code of Criminal Procedure, 1973
468. Bar to taking cognizance after lapse of the period of
limitation.-
(1) Except as otherwise provided elsewhere in this Code, no Court
shall take cognizance of an offence of the category specified in sub-
section (2), after the expiry of the period of limitation.
(2) The period of limitation shall be –
(a) six months, if the offence is punishable with fine only;
(b) one year, if the offence is punishable with imprisonment for a
term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a
term exceeding one year but not exceeding three years.
(3) For the purposes of this section, the period of limitation, in
relation to offences which may be tried together, shall be determined with
reference to the offence which is punishable with the more severe
punishment or, as the case may be, the most severe punishment.
[48]
[49] See Sections 452, 453 and 456 of the Code of Criminal
Procedure, 1973
“Section 452. Order for disposal of property at conclusion of trial.-
(1) When an inquiry or trial in any Criminal Court is concluded, the Court
may make such order as it thinks fit for the disposal, by destruction,
confiscation or delivery to any person claiming to be entitled to
possession thereof or otherwise, of any property or document produced
before it or in its custody, or regarding which any offence appears to have
been committed, or which has been used for the commission of any offence.
(2) An order may be made under sub-section (1) for the delivery of
any property to any person claiming to be entitled to the possession
thereof, without any condition or on condition that he executes a bond,
with or without sureties, to the satisfaction of the Court, engaging to
restore such property to the Court if the order made under sub-section (1)
is modified or set aside on appeal or revision.
(3) A Court of Session may, instead of itself making an order under
sub-section (1), direct the property to be delivered to the Chief Judicial
Magistrate, who shall thereupon deal with it in the manner provided in
sections 457, 458 and 459.
(4) Except where the property is livestock or is subject to speedy
and natural decay, or where a bond has been executed in pursuance of sub-
section (2), an order made under sub-section (1) shall not be carried out
for two months, or when an appeal is presented, until such appeal has been
disposed of.
(5) In this section, the term “property” includes, in the case of
property regarding which an offence appears to have been committed, not
only such property as has been originally in the possession or under the
control of any party, but also any property into or for which the same may
have been converted or exchanged, and anything acquired by such conversion
or exchange, whether immediately or otherwise.

Section 453. Payment to innocent purchaser of money found on accused.-
When any person is convicted of any offence which includes, or amounts to,
theft or receiving stolen property, and it is proved that any other person
bought the stolen property from him without knowing or having reason to
believe that the same was stolen, and that any money has on his arrest been
taken out of the possession of the convicted person, the Court may, on the
application of such purchaser and on the restitution of the stolen property
to the person entitled to the possession thereof, order that out of such
money a sum not exceeding the price paid by such purchaser be delivered to
him.
Section 456. Power to restore possession of immovable property.- (1)
When a person is convicted of an offence attended by criminal force or show
of force or by criminal intimidation, and it appears to the Court that, by
such force or show of force or intimidation, any person has been
dispossessed of any immovable property, the Court may, if it thinks fit,
order that possession of the same be restored to that person after evicting
by force, if necessary, any other person who may be in possession of the
property:
Provided that no such order shall be made by the Court more than one
month after the date of the conviction.
(2) Where the Court trying the offence has not made an order under
sub-section (1), the Court of appeal, confirmation or revision may, if it
thinks fit, make such order while disposing of the appeal, reference or
revision, as the case may be.
(3) Where an order has been made under sub-section (1), the
provisions of section 454 shall apply in relation thereto as they apply in
relation to an order under section 453.
(4) No order made under this section shall prejudice any right or
interest to or in such immovable property which any person may be able to
establish in a civil suit.”

[50]
[51] See Section 4 of the Smugglers and Foreign Exchange Manipulators
(Forfeiture of Property) Act, 1976
“Section 4. Prohibition of holding illegally acquired property.– (1)
As from the commencement of this Act, it shall not be lawful for any person
to whom this Act applies to hold any illegally acquired property either by
himself or through any other person on his behalf.
(2) Where any person holds any illegally acquired property in
contravention of the provision of sub- section (1), such property shall be
liable to be forfeited to the Central Government in accordance with the
provisions of this Act.”

[52]
[53] See Section 25 of the Hindu Succession Act, 1956
“Section 25. Murderer disqualified.—A person who commits murder or
abets the commission of murder shall be disqualified from inheriting the
property of the person murdered, or any other property in furtherance of
the succession to which he or she committed or abetted the commission of
the murder.”
[54]
[55] See Section 11 of the Representation of the People Act, 1951
“Section 11. Removal or reduction of period of disqualification.—The
Election Commission may, for reasons to be recorded, remove any
disqualification under this Chapter (except under section 8A) or reduce the
period of any such disqualification.
[56]
[57] Section 2(k) – “juvenile” or “child” means a person who has not
completed eighteenth year of age; 3[(l) “juvenile in conflict with law”
means a juvenile who is alleged to have committed an offence and has not
completed eighteenth year of age as on the date of commission of such
offence

[58]
[59] Community service as an alternative to the traditional
punishment of imprisonment for those found guilty of crime is gaining
currency in some countries. It appears to me to be more useful to the
society. I do not see any reason why such a concept cannot be adopted in
the context of situations like the one on hand.