Per NAIK A.B., J.:---Rule. Rule, returnable forthwith. With the consent of the respective Advocates appearing in all the petitions, matters are taken up for hearing. As common question of laws and facts are involved, all the petitions are being disposed of by this common judgment. 2. This group of petitions arise out of an action taken by the respondents 2 and 3 cancelling performance of all the petitioners/students in the subject of Chemistry for which they had appeared at XII (Science) (H.S.C.) and declaring them failed in that examination. The action was necessitated because of the report submitted by the Chief Moderator wherein he has opined that large scale malpractice has taken place in Centres in Nanded District, coming under the control of Division Board, Latur. 3. The facts are not much disputed in these petitions. We are surprised to note that large number of examinees appearing for qualifying examination indulged and adopted unfair means in the examination. This is, no doubt, because of the unhealthy competition among students to get more and more percentage of marks and to secure admission to much sought after professional courses. 4. We are perturbed to note that the system called ""Latur patter"" and ""Ahmedpur patter"", a well-known and popular pattern in the State, it appears, has been misused, at the H.S.C. examination. All the petitioners have appeared for six subjects having total marks of 700. We are only concerned with the subject of Chemistry. The subject of Chemistry consists of two parts- Part I and Part II in addition to practical examination. It is not disputed before us that the practical examination was over some time in February, 2003, and the practical examination centres were the respective Colleges/Schools, where the petitioners have studied. Chemistry, Part I paper has landed the petitioners in this Court. Whether all the petitioners and similar other candidates indulged in malpractice or unfair means at the examination, if established, it will be a serious threat to the standard of education, as some of them who will be the future Engineers and Doctors, who have to perform the onerous responsibility in the society. We make it clear that the Court dealing with such petitions cannot consider the question of sympathies or with mercy. We make it clear that the Court dealing with such petitions cannot consider the question of sympathies or with mercy. The mania of mass-copying and use of unfair means at the examination, is a common phenomenon and is increasing and this is solely because everyone was trying to get highest number of marks and to get himself or herself admitted to the professional courses. Keeping this aspect in mind, this Court is looking at the questions raised in this group of petitions. It is almost accepted that at H.S.C. level, lakhs of students do appear for examination in the State of Maharashtra. There are in all five Divisional Boards constituted, in addition to the State Board and all those Divisional Boards are entrusted with the arduous task of conducting S.S.C. and H.S.C. examinations throughout Maharashtra, rather smoothly. After passing H.S.C. examination, the students have to appear for Common Entrance Test if he or she wants to choose career in courses in Health Sciences or Engineering courses or other allied subjects. The number of the seats in professional Colleges being limited one, everyone is trying hard to secure maximum marks either by toiling hard, burning mid-night oil and, if that is not possible then the dubious method to adopt unfair means at the Examination. Though we are stating all these aspects, we will have to find out from the record and the submissions made by the Advocates appearing for the petitioners and the respondents, in this group of petitions, whether all or some of them have indulged in unfair means in examination either individually or collectively. 5. Chemistry Paper-I (Theory) examination was held on 25th March, 2003. After the examination was over, the papers were distributed to various Examiners; after the examiners examined the papers and allotted the marks, all the papers were then forwarded to the Moderator and as per the practice adopted by the Board, the students securing more than 75% and above, marks their papers were required to be re-checked by the Chief Moderator, for the purpose of moderating. When the papers were sent to the Chief Moderator, he found that 1264 students have written identical answers. The serial numbers of answers given/solved were also the same. He had noticed that mistakes committed by all the students were also the same/common. The Chief Moderator found that the answer to Question No. 2(c)(i) answered wrongly by all the students. When the papers were sent to the Chief Moderator, he found that 1264 students have written identical answers. The serial numbers of answers given/solved were also the same. He had noticed that mistakes committed by all the students were also the same/common. The Chief Moderator found that the answer to Question No. 2(c)(i) answered wrongly by all the students. The mistake which was noticed by the Chief Moderator, he noticed that the said mistake is also in a Book styled as ""2003 Model Solutions Board Questions Bank Standard XII"" published by M/s. Pradnya Latur Patters Solution, which was available in the market. After finding this identical mistakes in all the answer scripts which were verified, the Chief Moderator, concluded, prima facie, that all the examinee/students probably wrote the papers/answers on dictation by someone. He also opined that the examiners have used electronic gadget i.e. calculators at the time of solving the problems. He also found that all the answers begin with identical sentence, the mistakes in the problem solved are also the same. The Chief Moderator in all thoroughly checked 1264 answer papers from different lots. The Chief Moderator, then, submitted report to the Chairman/Secretary of respondent No. 3, vide letter dated 17th April, 2003. The Board, in turn, considering the report decided to initiate an enquiry. Accordingly, the Board appointed nine Inquiry Officers to make enquiry and to submit the report to the Board. 6. The Secretary of the respondent No. 3, then, issued notices to all those examinees who appeared for Chemistry, Paper-I examination held on 25th March, 2003. From 14 Examination Centres, show cause notices were then given to all the examinees. In the show cause notice, the unfair means adopted by the students, is indicated which read as follows:- ^^¼1½ oXkkZr fMDVsu ,sdwu mRrjs fyfgyh- ¼2½ mRrjys[kukr dWyD;qysVjpk okij dsyk- ¼3½ mRrjys[kukph lq:okr] var fkok; mRrjkrhy pqdk ,dlkj[;k vkgsr] ;ko:u ,desdkps ikgqu mRRjs fyfgyh-** 7. The notices also called upon the examinees to appear before the Inquiry Officer and tender their explanation. The Principals/Headmasters of the concerned Schools/Colleges were directed to serve the notices and also to inform them to attend the enquiry. 8. It is not disputed before us that in all notices were given to 1264 candidates. Out of those 1077 examinees appeared before the Inquiry Officers. Some examinees submitted their written reply and some orally submitted their cases. The Principals/Headmasters of the concerned Schools/Colleges were directed to serve the notices and also to inform them to attend the enquiry. 8. It is not disputed before us that in all notices were given to 1264 candidates. Out of those 1077 examinees appeared before the Inquiry Officers. Some examinees submitted their written reply and some orally submitted their cases. After the petitioners and/or their parents appeared before the Inquiry Officers, they (Inquiry Officers) asked the examinees to fill up the proforma which was in the shape of questionnaire and, accordingly, which was replied by all who appeared and then the enquiry was concluded. It is stated before us that after completion of enquiry, the Inquiry Officers submitted their report to the secretary and thereafter the report so submitted was considered by the Standing Committee of the Board and the Standing Committee proposed the publishment to be awarded. 9. The secretary of State Board, then, referred the matter to the Government of Maharashtra and the Government in exercise of powers under section 34 of the Maharashtra Secondary and Higher Secondary Board Act, 1965 (hereinafter referred to as ""the Act""), suggested the punishment to be imposed and accordingly, the Board imposed punishment and the punishment so imposed, was communicated to all the examinees through respective Heads of Schools/Colleges. 10. All the petitioners, therefore, aggrieved by the action of the respondent No. 3, filed these writ petitions, impugning the said action. 11. This Court issued notice of admission returnable on 24th June, 2003 and pursuant to the notice issued by us, the Board appeared and filed a common reply in all the petitions. The said affidavit is filed by Shri Ramrao Govindrao Patil, Divisional Secretary of the respondent No. 3. 12. The petitioners mainly contended that the procedure that is followed by the Board is improper and the action is taken in utter violation of the principles of natural justice. The petitioners have stated that the show cause notice which indicates the charges, being vague and ambiguous and they could not make proper submission or reply the charges. The petitioners appeared before the Inquiry Officers, who have not conducted real enquiry but it was a mere farce. The petitioners have stated that the show cause notice which indicates the charges, being vague and ambiguous and they could not make proper submission or reply the charges. The petitioners appeared before the Inquiry Officers, who have not conducted real enquiry but it was a mere farce. It is stated by the petitioners that the charges show that all the petitioners have answered Chemistry Paper-I. On the basis of dictation given at the time of examination, the second charge states that calculators were used while writing the answer and lastly the mistakes are common in the answer books. On the basis of the contents of the notices, the petitioners submitted that the show cause notice is based on the inference drawn by the Chief Moderator and on the basis of those inferences, the Board has arrived at conclusion that the petitioners have indulged in unfair means in the examination. It is submitted by all the petitioners that they had appeared for Chemistry Paper-I on 25th March, 2003 at different Centres, which are at different places, as some Centres are situated at Kandhar, some are at Mukhed; some are at Chapoli and other such places. Therefore, it is stated that the Charge No. 1 that the petitioners have answered the questions on the basis of dictation given in the examination Hall cannot be digested. It is further stated by the petitioners that the Board has appointed staff to conduct examination which includes Invigilators, Supervisors, Security Staff, in addition to the Police force deployed at each and every Centre. It is also stated that the Board has also deployed a Flying Squad and the Flying Squad did visit all the Centres; however any one of them leave apart the Flying Squad, did not find that the examinees indulging in unfair means at the time of examination. It is also stated that none of the Officers In-charge of the respective Centres of examination or the Examiners or the Moderator have made any report to the Secretary regarding malpractice or unfair means adopted by the petitioners. They stated that it is only the Chief Moderator, on whose report the entire action is taken. They submitted that such an action cannot be taken by the Board and unless and until the Board receives a complaint in writing from the Invigilator concerned, or in-charge from the Examination Centre or the Examiners. They stated that it is only the Chief Moderator, on whose report the entire action is taken. They submitted that such an action cannot be taken by the Board and unless and until the Board receives a complaint in writing from the Invigilator concerned, or in-charge from the Examination Centre or the Examiners. As no such report was submitted by any of such Officers the Board cannot take action on the basis of report of the Chief Moderator. According to them, the action taken is thus without any proper complaint. 13. All the petitioners have submitted that the so called report of the Inquiry Officer (who conducted enquiry) was not at all in existence as no copies were served either on the petitioners or their parents. It is submitted that there is no basis whatsoever for the Inquiry Officer to come to the conclusion that unfair means i.e. mass-copying is resorted. There is no basis, rationale or sufficient material before the Inquiry Officers to come to the conclusion that each of every examinee has indulged in the mass copying or adopted unfair means. It is submitted by the petitioners that the Inquiry Officer has not applied his mind and the relevant factors while submitting report of enquiry were not taken into consideration. The Inquiry Officers have considered some irrelevant factors i.e. only the charges stated in the notice. It is stated that the so called report is submitted in total violation of the principles of natural justice and said is submitted without application of mind. It is submitted by the petitioners that Chemistry is a subject of science and in the subject of Science there will be similarity in all answers. Hence, one cannot jump to the conclusion that the students have indulged in mass-copying. It is submitted that in the subject of Science, such as, Chemistry the answer has to be identical to every question. Therefore, one cannot assume that all the examinees numbering more than 1000 have had recourse to unfair means. It is stated that the cancellation of performance is a ""stigma"" and is a harsh blow to the examinees who are desirous of getting admission in professional career. Therefore, one cannot assume that all the examinees numbering more than 1000 have had recourse to unfair means. It is stated that the cancellation of performance is a ""stigma"" and is a harsh blow to the examinees who are desirous of getting admission in professional career. If the authorities at the helm of affairs act in such an arbitrary and unreasonable manner, that will be contrary to all established principles of equity, justice and good conscience: so also contrary to the well-established principles of natural justice. It is further submitted that before coming to the conclusion that the petitioners have indulged in mass-copying or adopted unfair means, the Inquiry Officers should have considered their last performance at the High School and S.S.C. level; (in one W.P. i.e. W.P. No. 2150/2003 the petitioner has produced before us the marks obtained by him at the MH-CET 2003, examination also). 14. It is submitted before us that on 6th May, 2003 all the petitioners were served with show cause notices and almost all of them have appeared at MH-CET 2003 examination held on 8th June, 2003 and secured good number of marks in that examination. Therefore, they prayed that this Court to take into consideration this aspect while considering the case of each petitioners independently. It is stated that some of the Inquiry Officers asked the candidate to solve some Chemistry questions and, in fact, the number of examinees have solved the questions in presence of the Inquiry Officers, but the Inquiry Officers have not tallied those answer scripts with the answer they have given at the time of answering Chemistry Paper-I. It is stated that the Inquiry reports should have been supplied and the Inquiry report must indicate that the Inquiry Officers have taken into consideration the explanation tendered by each petitioner and the answers which they have written before the Inquiry Officers. It is stated by the petitioners as a matter of fact that there is no enquiry report then it is not known as to how the Inquiry Officers have analysed the allegations and answered charges levelled against them. 15. It is submitted before us that Item No. 8 of Schedule I annexed to the Regulations which deals with punishment is also wrongly applied and, in fact, penalty as regards Item No. 8 cannot be imposed, as the requirement for the said penalty is different than the charges levelled. 15. It is submitted before us that Item No. 8 of Schedule I annexed to the Regulations which deals with punishment is also wrongly applied and, in fact, penalty as regards Item No. 8 cannot be imposed, as the requirement for the said penalty is different than the charges levelled. It is submitted that in the show cause notices no reasons are furnished. The show cause notices issued to all the petitioners and others are common. The report of the Chief Moderator is not supplied to the petitioners. It is stated by the petitioners that issuance of show cause notices shows total non-application of mind. It is stated that there is no conclusion of the Inquiry Officer as to which of the charges are proved and which charges are not proved or established. It is stated that three different charges have been levelled and, therefore, it is incumbent on the Inquiry Officers to give report in detail by considering the allegations against each and every candidate, and that too in the light of the replies given by them. It is submitted that even assuming that the Charges No. 1 is proved, there cannot be any punishment under Clause 8 of the Schedule. Clause No. 8 in Schedule 1 comes into play only when two examinees have indulged in copying i.e. one examinee is copying by the answers given by another examinee. In fact, there is no such charge in the notices. The notice says that all the petitioners have written their answers at the dictation. It is stated that all the petitioners are from different centres. Therefore, it cannot be presumed and assumed that in each and every centre the examinees have written the answer scripts as per the dictation given. It is submitted that there should not be a common show cause notice based on common allegation. All they differ because the Chief Moderator has taken out the papers from different lots. Therefore, separate show cause notices ought to have been given. In Writ Petition No. 2150/2003 only it is stated that one of the Inquiry Officer Shri S.K. Joshi was removed as a Member of the Board and, therefore, he cannot work as an Inquiry Officer. The petitioners contended that at Examination Centres there was strict vigilance and in such circumstances, hardly there will be any chance for some one to dictate the answers. The petitioners contended that at Examination Centres there was strict vigilance and in such circumstances, hardly there will be any chance for some one to dictate the answers. The petitioners have submitted that the use of calculators is also not possible as the log-books were submitted in some cases there was shortage of log-books and the examinees have done some rough work by pencil on one side of the answer book, thereafter they have answered the questions. All these aspects have not been taken into consideration by the Board. The Board should have considered and should have proved the allegations beyond reasonable doubt and the facts must be established beyond the preponderance of probabilities. These are the summary of the contentions raised in all the writ petitions. 16. The affidavit-in-reply is filed by the Board denying all the allegations, set out in the petitions. It is stated by the Board that the Board has introduced a new system of ""Bar Code"" from October, 2002, in order to curb the malpractices that were being adopted by the examinee/students in the past. This also facilitate the examiners to perform their duties without they being aware about the identity of the students/examinee. The Bar Code system is introduced with the object that seat numbers are kept under cover and an examinee is not aware who is the examiner evaluating their answer papers. To identify the paper and the Board has given an U.D.I. Code number. After giving Code number all the answer books are mixed and allotted to the examiners for examining the answers books. By this procedure, there is hardly any possibility of having access to the identity of the answer books. By the said system one cannot identify the papers. It has come in the affidavit that by introducing the Bar Code, the various dubious tactics adopted by the examinee in the past have been considerably wiped out. However, the involvement of the students in malpractices at the time of examination cannot be cent per cent foolproof. It is stated in the affidavit that the examinees have no chance or room to involve any unfair means or malpractices unless they indulge in tacit understanding with the examiners. However, the involvement of the students in malpractices at the time of examination cannot be cent per cent foolproof. It is stated in the affidavit that the examinees have no chance or room to involve any unfair means or malpractices unless they indulge in tacit understanding with the examiners. It is stated in the affidavit that those examinees who could have access to the examiners, on account of introduction of Bar Code, they cannot approach the examiners, but they now have indulged in malpractices at the Examination Centre itself, which stood demonstrated in the present matters. 17. It is submitted that the Board has introduced three-tier system for checking and assessment of the answer papers. The first examiner assess the performance and allot the marks and the marks so allotted are again to be verified by the Moderator. After the moderation, the papers of the examinees who have secured more than 75% and above marks their answer books are again re-examined and checked by the Chief Moderator as per the guidelines framed by the Board. According to the said guidelines, the Chief Moderator has to examine the answer books of all those students who secure more than 75% marks. This system was introduced with the sole object that the students or examinees who secured more than 75% marks should not suffer for any mistake committed either by the examiners or by the Moderator. In case any defect or mistake is found to have been committed either by the Examiner or Moderator, the mistake can be cured by the Chief Moderator as per Clause 17.3 of the Guidelines framed by the Board. 18. It is stated that the Chief Moderator has noticed while moderating Chemistry Paper No. 1 that large number of students have committed same mistakes while answering a particular question. It was noticed by the Chief Moderator that the spelling mistakes are also identical, serial number of questions solved and answers given are also the same. It was found by the Chief Moderator that large number of examinees have solved a particular question (option) though there are other options available. It was noticed by the Chief Moderator that the spelling mistakes are also identical, serial number of questions solved and answers given are also the same. It was found by the Chief Moderator that large number of examinees have solved a particular question (option) though there are other options available. It is stated that particular group of students/examinees have selected particular question in spite of the fact that various options were available in many questions in the subject of Chemistry Part I. By minute and meticulous scrutiny of these papers, the Chief Moderator found that each and every examinee/student has committed a mistake in answering Question i.e. Question No. 2(c)(i) and the Chief Moderator has taken extraordinary pain to verify the particular fact as to why all the students/examinees have committed such type of mistakes while answering that question. It was noticed by the Chief Moderator that the Model Solution Board Question Bank Standard XII 2003 published by M/s. Pradnya Latur Pattern Solution published and circulated in the market, indicate the same mistake and, therefore, he opined that the students might have wrote that question from this book. Thereafter, the Chief Moderator compared the said book with answers from other books where the answers were correctly given and hence it raised a doubt about writing system of answers by large number of students which is in identical words and ad verbatim. This fact was established by verification of 1774 answer books. It was also noticed that all the students have solved the answers in the same chronological manner which is not a normal conduct of the examinee. It was also noticed that all students have committed identical mistakes and it is highly improbable for each and every students/examinee to make same mistake in identical fashion and, as such, the Chief Moderator came to the conclusion that the students sought help from outside source and answered the questions. He also found that while solving problems, they have used calculators, instead of Log-table. When he reached to the conclusion about unfair means adopted by the examinee/students, he made detailed report in that behalf to the Board. 19. It is further contended by the Board that on receipt of the report from the Chief Moderator, the Board decided to take cognizance of serious malpractices noticed. When he reached to the conclusion about unfair means adopted by the examinee/students, he made detailed report in that behalf to the Board. 19. It is further contended by the Board that on receipt of the report from the Chief Moderator, the Board decided to take cognizance of serious malpractices noticed. The issue was, then, referred to the Examination Committee of the Board and the Examination Committee, in its meeting held on 6th May, 2003, has decided to take an action and directed to conduct an enquiry into the matter, against the students, the Chief Conductor, Deputy Conductor, Invigilators of those Centres from where these examinees appeared in the examination. As stated above, out of 1264 students, 1077 students were present before the Inquiry Officers. The Inquiry Report of the Inquiry Officers was, then, placed before the Standing Committee on 24th May, 2003 and the Standing Committee considered the said report and taking into consideration the magnitude of the matter and also considering future of students, law and order situation that might arise, decided to impose punishment for cancellation of performance in the subject of Chemistry Paper-I. It is also stated that the Chairman did not agree with the punishment so suggested. The Chairman has pointed and invited the attention of the Committee to schedule of punishment as prescribed by the State Board. Thereafter, the matter came to be forwarded to the State Board and subsequently to the Government of Maharashtra, who, in turn, in exercise of powers conferred under section 34(5) and (6) of the Act, has informed the Chairman of the Board to impose punishment of cancellation of performance in the subject of Chemistry as a whole, as per Clause No. 8 of the Schedule of punishment. It is further submitted that the Board has no grievance at all against individual examinee/student but the Board desires to have transparency and no one should be permitted to commit malpractice, otherwise the examination will be only a farce. It is stated discipline in the examination is required to be maintained and no one should be permitted to flout the law. It is further submitted that in view of the magnitude of the malpractice, which is noticed by the Chief Moderator, no lenient view than taken, was possible in the matter. It is stated discipline in the examination is required to be maintained and no one should be permitted to flout the law. It is further submitted that in view of the magnitude of the malpractice, which is noticed by the Chief Moderator, no lenient view than taken, was possible in the matter. The Board contended that leniency is already shown, in as much as, instead of imposing punishment of cancellation of performance of entire examination and debarring the students from one or more examination in future, which was permissible under law, the said punishment is imposed, as malpractice committed by the students, are within the ambit of Clauses 18 and 23 of the Schedule of punishment. It is, therefore, submitted that the petitioners who are guilty of the malpractices were properly dealt with. It is further submitted that principles of natural justice have been properly followed as hearing was given to all examinees by the Inquiry Officers. The Inquiry was conducted on 20th, 21st and 22nd May, 2003. It was also stated that 87 students remained absent before the Inquiry Officers on the given dates. In order to give one more opportunity to those they were again called on 29th May, 2003, on which date, out of 87, 56 students had appeared and participated in the enquiry. Therefore, they submitted that the principles of natural justice have been followed in strict sense. The charges were indicated in the notice. The examinees tendered their explanation and the same was considered by the Inquiry Officers and then further by the Examination Committee, Standing Committee and the State Board. Therefore, it is submitted that the contention raised by the petitioners that principles of natural justice, is not correct. It is further submitted that 1264 students have appeared in the examination on those centres which are at rural places with a mala fide intention, as such, centres are at interior places and Chief Conductor, Supervisors, Invigilators have been appointed by the Board from the same School. It is submitted that out of 14 centres, nine centres which are at interior places where only Deputy Conductor has been appointed by the Board from outside places with a mutual trust and belief that appointee will take all necessary precautions and restrain the students from committing malpractices. It is submitted after seeing the report of the Chief Moderator, the result was shocking. It is submitted after seeing the report of the Chief Moderator, the result was shocking. It is, therefore, submitted that the Board is taking all serious actions against the erring officials who were incharge of the examination and they will be dealt with properly, in accordance with law. 20. It is further submitted that there are several instances noticed in other seven Divisional Boards in the State of Maharashtra. For them, also, the punishment of cancellation of performance in one subject, is imposed. Therefore, it is submitted that no discriminatory treatment is given to the examinee of the these 14 centres. It is submitted that the large scale of malpractice was adopted and proper punishment was awarded and, therefore, it is submitted that this Court may not interfere in the action taken by the Board, against the examinees. 21. Writ Petition No. 2176/2003 was amended with the leave of this Court and an additional ground was taken, whereby the petitioners have challenged appointment of Shri Sudhakar Kishanrao Joshi, as an Inquiry Officer. It is contended that only the members of the Board can be appointed as the Inquiry Officer, but, Shri S.K. Joshi, on the date of appointment as Inquiry Officer, was not the Member of the Board and, therefore, the enquiry conducted by Shri Joshi is illegal and cannot be considered as the inquiry conducted by proper officer. In order to substantiate this contention, the petitioner has annexed copy of the Government Gazette dated 23rd June, 2003, wherein it is stated that appointment of Shri Sudhakar K. Joshi as Member of the Board stands cancelled, in view of section 6(1) Clause (2) of the Act. This aspect has been denied and explained by the Board stating that when Shri S.K. Joshi, was nominated as Member of the Board as he was competent to conduct the enquiry as he was qualified during the relevant point of time and his appointment stands cancelled from 23rd June, 2003. It is submitted that the cancellation is not retrospective but it is prospective. Therefore, on the date of appointment of Shri Joshi, he was very much competent to function as an Inquiry Officer and he was Member of the Board then. 22. It is submitted that the cancellation is not retrospective but it is prospective. Therefore, on the date of appointment of Shri Joshi, he was very much competent to function as an Inquiry Officer and he was Member of the Board then. 22. The petitioner in W.P. No. 2176/2003 has stated by way of amendment that he has secured good number of marks in MH-CET 2003, and looking into his past performance and the performance in the MH-CET examination, the inference drawn by the Board and, for that purpose the Inquiry Officer, that petitioner indulged in unfair means cannot be accepted. This aspect has been denied by the Board and it is contended that neither the past performance nor the marks secured by the petitioner in MH-CET 2003 examination is relevant for the purpose of considering the question of involvement of the petitioner. 23. Except the Petition No. 2150/2003 all other petitions grouped together have requested this Court to consider their past performance i.e. the marks obtained by them at X standard examination and/or Junior College examination. They submitted that throughout their School career, the petitioners have secured more than 75% marks. All the learned Advocates appearing for the those petitioners have submitted before us that this is one of the relevant considerations that should have been weighed with the Inquiry Officer and the Board and as this has not been done by the Board, the Board has not treated the petitioners properly. 24. Writ Petition No. 2150/2003 is filed by 115 students jointly, however, they have not annexed their marks-memo so as to have a look at their past performances and no submissions whatsoever were advanced on that point, by their learned Advocates. The competency of Mrs. S.K. Joshi to be a Member of the Inquiry Committee has been raised only in petition (i.e. W.P. No. 2170/2003). 25. We have heard S/Shri P.M. Shah, learned Senior Advocate, instructed by Shri N.B. Suryawanshi, S.B. Talekar, V.D. Patnoorkar, A.S. Golegaonkar, Milind Patil, Rajendra Deshmukh, Mr. S.G. Shinde, Mr. A.V. Patil, Adv. i/by Shri V.D. Gunale, R.D. Patwari, Shri S.G. Rudarawar, Smt. Ranjana D. Reddy, Pradeep Deshmukh, Adv. i/by Shri A.R. Shinde, learned Advocates for the respective petitioners and Shri P.K. Joshi learned Advocate for the Board; and Shri E.P. Sawant, Government Pleader, N.B. Khandare, U.K. Patil, P.B. Vikhe-Patil, A.V. Gorhe, R.P. Phatke and S.K. Tambe, learned A.G.P. for respondent-State. i/by Shri V.D. Gunale, R.D. Patwari, Shri S.G. Rudarawar, Smt. Ranjana D. Reddy, Pradeep Deshmukh, Adv. i/by Shri A.R. Shinde, learned Advocates for the respective petitioners and Shri P.K. Joshi learned Advocate for the Board; and Shri E.P. Sawant, Government Pleader, N.B. Khandare, U.K. Patil, P.B. Vikhe-Patil, A.V. Gorhe, R.P. Phatke and S.K. Tambe, learned A.G.P. for respondent-State. Re : Submissions : 26. Shri P.M. Shah, learned Senior Advocate, submitted before us that the notice and the charges levelled against the petitioner is so ambiguous and vague, that he could not understand the charge. He submitted that the petitioner has specifically stated before the Inquiry Officer that he has written the answers from his own memory and by heart and has not copied down from any outside material, as alleged. He submitted that the notice containing the charges is issued without application of mind. He submitted that the alleged malpractice of unfair means occurred at 14 different centres situated at different Colleges and Schools, situated at different villages and towns. Therefore, it was impossible to assume that all the papers were written on the dictation given in the Examination hall. He submitted that such a charge is so ridiculous and by imposing such a charge, the Board has drawn an inference of unfair means and imposed punishment which is per se illegal. He further submitted that the petitioner pointedly requested the Inquiry Officer to consider his past performance in the various examinations, but unfortunately, the Inquiry Officer has not taken the request into consideration. It is submitted that the petitioner has denied specifically that he has used calculator at the Examination Centre. It was submitted before us that log-books were not available and the petitioner has done rough work on one side of the answer-sheet. This aspect should have been considered by the Inquiry Officer, before arriving at a conclusion that the petitioner was privy to the malpractice and/or unfair means, as alleged. The learned Senior Advocate further submitted that the Inquiry Officer has directed the petitioner to solve the paper and has given 20 minutes time. However, the Inquiry Officer did not take pains to tally the answers given by the petitioner at the time of the enquiry. Shri Shah, submitted that the enquiry conducted was nothing but an eye-wash. The alleged enquiry is not at all an enquiry in the eye of law. However, the Inquiry Officer did not take pains to tally the answers given by the petitioner at the time of the enquiry. Shri Shah, submitted that the enquiry conducted was nothing but an eye-wash. The alleged enquiry is not at all an enquiry in the eye of law. Therefore, he submitted imposition of punishment of cancellation of performance in Chemistry and declaring him failed is, arbitrary and capricious. The learned Senior Advocate submitted that the Inquiry Officer has not given the report of enquiry to the petitioner as required and as result of which he is handicapped. Shri Shah further submitted that the petitioner is a brilliant student throughout his educational career and when repeated requests were made by the petitioner before the Inquiry Officer that his past performance should be considered, the same was fallen on deaf ears. Thus, the learned Senior Advocate submitted that principles of natural justice are violated and for no fault of petitioner, he is being punished, that too only on the basis of inferences drawn by the Chief Moderator. It is submitted that there was no basis or record before the Inquiry Officer to jump to the conclusion that the petitioner has used unfair means or indulged in malpractices as alleged. Shri Shah, therefore, submitted that the subject to Chemistry Paper-I, being a science subject, some or most of the questions are bound to have the same answers. He, therefore, submitted that the case of the petitioner should have been individually treated and tested as cancellation of performance has a permanent scar and stigma on the career of the petitioner who was otherwise throughout a brilliant student. He further submitted that the petitioners case may be tested by this Court from another angle that the petitioner has secured 80% or more, marks in all earlier examinations. The petitioner appeared in MH-CET, 2003 even after attending enquiry by the Inquiry Officer and in the said test, secured 98% marks. He, therefore, prayed that considering all these aspects, this Court may consider the case of the petitioner independently. He submitted that the charges so levelled must be proved by Board beyond any reasonable doubt and the Board must establish the charges beyond preponderance of probabilities. He, therefore, prayed that considering all these aspects, this Court may consider the case of the petitioner independently. He submitted that the charges so levelled must be proved by Board beyond any reasonable doubt and the Board must establish the charges beyond preponderance of probabilities. On the facts produced before this Court, the learned Senior Advocate contended that the charge stated in the notice was such that one cannot jump to the conclusion that the examinee has written his papers on the basis of dictation in the Examination Hall. The petitioner has specifically denied the fact of use of calculator. As regards third charge which shows that petitioner has copied down the answers from other student, he submitted that this charge is vague and absurd. Shri Shah, on the basis of the Gazette dated June 23, 2003, has submitted, that Shri S.K. Joshi was incompetent to become an Inquiry Officer and, as such, his report should be discarded. 27. Shri S.B. Talekar, learned Advocate for the petitioners, (in W.P. No./ 2003), after adopting the submissions made by Shri Shah, further, submitted that the punishment imposed on the petitioners cannot be imposed as the petitioners alleged to have been involved in the alleged malpractice only in Paper-I of Chemistry subject. The subject of Chemistry has three parts i.e. practical, Paper-I and Paper-II. He submitted that as per schedule of punishment and the punishment so imposed on the petitioners cannot be imposed as the performance of entire Chemistry subject has been cancelled. The learned Advocate submitted that the word used in the Schedule ^^R;k fo""k;kph** means ""that subject"", will have to be interpreted to mean ""that paper only"". Hence the learned Advocate submitted that ""that subject"" means Chemistry Paper-I. He submitted that the Board should have cancelled performance of Chemistry Paper-I only. As there is no allegation of malpractice, or unfair means either in practical or Chemistry Paper-II, the results thereof should have been declared on the basis of the marks obtained in Practical and Paper-II. He submitted that if the marks obtained by the petitioners in practical and Chemistry Paper-II are considered, then the petitioners cannot be declared as failed. 28. Shri Talekar, further, submitted that the show cause notice is common to all the 1264 students. The allegations are common and the report of the Chief Moderator shows different aspects. He submitted that if the marks obtained by the petitioners in practical and Chemistry Paper-II are considered, then the petitioners cannot be declared as failed. 28. Shri Talekar, further, submitted that the show cause notice is common to all the 1264 students. The allegations are common and the report of the Chief Moderator shows different aspects. Therefore, he submitted the show cause notice indicated total non-application of mind. He submitted that when the Standing Committee of the Board has decided to impose punishment as per Clause No. 8 of the Schedule of Punishment, it follows that Charge Nos. 1 and 2 are not established. He submitted that Clause No. 8 of Schedule is not at all applicable in the matter as Clause No. 8 comes into picture only when two examinees are involved. He submitted that while imposing the punishment, the Board has not used its discretion properly and sought the help of the Government for this purpose who, in turn, in exercise of powers under section 34(5) and (6) has directed the Board to impose punishment of cancellation of performance in chemistry subject in its entirety. Therefore, he submitted that punishment is not awarded by the Board but it is by the Government. He submitted that the procedure of punishment is also provided under the regulation. The Board has framed procedure from imposing penalty which is called as ""Procedure for Enquiry"". He submitted that the enquiry so conducted is in utter violation of the procedure prescribed. Shri Talekar, further, submitted that there was no complaint either from the Incharge of the Examination Centre or the examiners or from the Moderators. The action is being taken by the Board relying on the report submitted by the Chief Moderator. Therefore, he submitted that the entire enquiry is vitiated, it being contrary to the procedure provided by the Board and the guidelines laid down in that behalf. Shri Talekar, therefore, submitted that the enquiry and subsequent punishment will have to be interfered with by this Court. 29. Shri Talekar, further, submitted that the Chief Moderator was biased against the entire student community of Nanded District and, therefore, he has made such a report. Shri Talekar, has referred to Para No. 25 of the petition, in order to bring home the charge of mala fides. 30. At the outset, at this stage only, we reject the contention of mala fides for two reasons. Shri Talekar, has referred to Para No. 25 of the petition, in order to bring home the charge of mala fides. 30. At the outset, at this stage only, we reject the contention of mala fides for two reasons. Firstly, that though the petition is filed by 115 students jointly, it was verified by one Mohd. Fahedoddin. The verification clause does not disclose the sources of his information and the basis on which the statement has been made. Secondly, the Chief Moderator is not added as a party-respondent to this writ petition. Therefore, we out rightly reject the contention of mala fides. It is not out of place to mention here that it is very easy to hurl allegation of mala fides, or to raise a plea, but difficult to prove it, in the Court of law. We, are of the firm view that in a very casual manner the contention of mala fides is raised in the petition. We rejected the same being baseless. 31. S/Shri Patil and Deshmukh learned Advocates, have submitted before us that their respective clients, have not used guides for which reference is given in earlier part of this judgment. They have studied their subject from different books and have not indulged in the malpractice, as alleged. They adopted the contentions raised by S/Shri Shah and Talekar. 32. All learned Advocates appearing in the matters, have placed reliance on the judgment of the Supreme Court in the case of (1) (Rajeshkumar v. Institute of Engineers (India))1, reported in A.I.R. 1998 S.C. 5 (2) judgment of the Orissa High Court in the case of (Board of Secondary Education, Cuttack v. Gayatri Hota and others)2, reported in A.I.R. 2001 Orissa 131 and (3) judgment of the learned Single Judge of this Court in the case of (Sk. Shafique Anjuman v. University of Mumbai and others)3, reported in 1999(3) Bom.L.R. 548. 33. All the learned Advocates are ad idem in one submission that principles of natural justice have not been followed, Inquiry Officers have not conducted the enquiry properly and action is taken in utter violation of the minimum requirement of the principles of natural justice. S/Shri V.D. Patnoorkar, Pradeep Deshmukh and others and Smt. Reddy, learned Advocates have adopted same arguments. 34. S/Shri V.D. Patnoorkar, Pradeep Deshmukh and others and Smt. Reddy, learned Advocates have adopted same arguments. 34. Per contra, Shri P.K. Joshi, learned Advocate for the Board, submitted in response to the submissions made by Shri Shah, learned Senior Advocate regarding appointment of Shri S.K. Joshi as Inquiry Officer. It is stated that Shri S.K. Joshi was appointed as Inquiry Officer when he was the Member of the Board. Shri S.K. Joshi was nominated member of the Board who represented the Teachers category and he was appointed on the Board on 9th September, 2002. He was a valid member of the Divisional Board when he was nominated as an Inquiry Officer. On account of his promotion as Headmaster, he cannot continue to be Member of the Board and, as such, his appointment came to be cancelled vide Government Gazette dated 23rd June, 2003 and this being the position, he submitted that Shri Joshi was competent enough to be an Inquiry Officer. 35. Shri P.K. Joshi, the learned Advocate contended that the contention raised by all the petitioners that the principles of natural justice are not followed, is not sound contention and, on the contrary, is a ""tissue of lie"". He submitted that the Board has to conduct examination in fair manner and in order to prevent malpractice at the examination, several safeguards and methods have been introduced. Shri Joshi pointed out that from last year, the Board has introduced the Bar Code system, and after introduction of Bar Code, it is very difficult for individual candidate to indulge in malpractice as no student or examinee will identify the answer paper. After examinations of concerned paper is over, all the papers are mixed together and they are divided into several lots and then they are sent to different examiners as per the procedure adopted by the Board. There is three tier check system. The first examiner, examines the papers and allots the marks to the examinee, then the papers are sent to the Moderator who again verifies the marks and moderates the same. The third stage comes into play when the papers of those examinees who secure more than 70% marks are then sent to the Chief Moderator for the purpose of moderation. The first examiner, examines the papers and allots the marks to the examinee, then the papers are sent to the Moderator who again verifies the marks and moderates the same. The third stage comes into play when the papers of those examinees who secure more than 70% marks are then sent to the Chief Moderator for the purpose of moderation. In this cases the Chief Moderator who has thoroughly checked all the 1264 papers, noticed that all the examinees have answered their papers in identical manner; all the students have solved question No. 5(1) first. Even the optional questions are answered by all in the same manner. None of the 1264 examinees have solved question No. 5(b)(2); the mistakes committed by all examinees are the same and considering this aspect, the Chief Moderator came to the conclusion that unfair means has been adopted by all the students. On his examination he honestly came to the conclusion that (1) answers have been written at somebodys dictation (2) electronic device i.e. calculators have been used (3) they have copied down from each other. The Board has annexed the copy of the report of the Chief Moderator and we have an occasion to consider that report and we prima facie believe and accept that there is large scale malpractice adopted by the students. It is to be noted that in all these petitions no mala fides are alleged against the Chief Moderator. (The mala fides which were alleged in the writ petition which we have referred earlier, are totally baseless and hence we have rejected the same, (supra)). 36. As no mala fides are alleged against the Chief Moderator, or against the members of the Board, we have to bear in mind this aspect, while considering the merit of the contention. 37. With little deviation, we may observe that, in all the petitions the action of the Board i.e. cancellation of performance of Chemistry subject at XII standard final examination is concerned. 37. With little deviation, we may observe that, in all the petitions the action of the Board i.e. cancellation of performance of Chemistry subject at XII standard final examination is concerned. This being an act by the Board which is statutory body having statutory duties and obligations to perform and it being a body of experts in the field, the action of the Board has to be tested within the well-demarcated sphere of judicial review of administrative action, which are broadly stated as (i) reasonableness in action; (ii) extraneous consideration; (iii) non-following procedural requirement; (iv) bias; (v) proportionality as against irrationality and finally; (vi) judicial review is concerned with reviewing not the merit of the decision in support of which the application for judicial review is made. In other words, we have to find out; (a) whether the Board exceeded its power? (b) committed an error of law; (c) committed breach of the rule of natural justice; (d) reached a decision which no reasonable Tribunal have reached. It must be stated here that all the learned Advocates appearing in the matters, broadly argued on two aspects i.e. (i) procedure for imposing penalty of cancellation of performance is not followed; (ii) principles of natural justice and fair play are violated, with these broad proposition with allied points raised, we will Judge the action of the Board, with the above backdrop. 38. Shri Joshi, submitted that the malpractices established and magnitude involved in the matter was such that is was not possible to have a direct evidence nor it was possible for the persons at the respective examination centres to file a complaint because they are also equally responsible and guilty for the malpractice and they are privy to the entire episode. Ultimately the beneficiaries are the students/examinees who took assistance to the staff at the centre who have done this mischief. Shri Joshi submitted that on the basis of the report of Chief Moderator a legal inference was drawn that all the students/examinees have written the paper at somebodys dictation. They have used the calculators and they have copied down from some body elses paper or outside material. Shri Joshi submitted that on the basis of the report of Chief Moderator a legal inference was drawn that all the students/examinees have written the paper at somebodys dictation. They have used the calculators and they have copied down from some body elses paper or outside material. In such magnitude involved, he submitted that adherence to the strict principles of natural justice are not required to be followed nor it is necessary or permissible to prove the allegation beyond reasonable doubt and there is no question to proceed with the matter with the assumption of innocence of the examinee as it is required in case of criminal trial where there is presumption that the accused is innocent until he is found guilty at the trial. He, therefore, submitted that the Board has acted in utmost, fair manner. Looking into the magnitude and looking into the future career of the students, the lesser punishment is awarded i.e. cancellation of performance in the subject of Chemistry. Therefore, he submitted on the facts brought on record by the Board, the principles of natural justice are strictly followed. 39. Shri Joshi, submitted that when the expert body like the Boards takes a decision in the matter of punishment imposed, this Court will be very slow to inference in the discretion used by the Board. Shri Joshi further submitted that the contention that is raised by the learned Advocates regarding imposing of punishment and selection of Item No. 8 for awarding punishment, he stated the Standing Committee has accepted the guilt of the examinees and it had decided to cancel the performance of Chemistry Paper-I. This was not accepted or approved by the Chairman of the Divisional Board who brought to the notice of the Committee that such punishment is not provided. As there was disagreement between the Chairman and the members of the Standing Committee of the Board the matter was referred to the State Board for its opinion who opined that the Standing Committee cannot suggest punishment which is not provided under the schedule i.e. cancellation of one part only. Accordingly, reference was made to the Government and the Government of Maharashtra in exercise of its powers under section 34(5) and (6) of the Act directed the Board to impose punishment as referred to in Clause No. 8 i.e. cancellation of performance in Chemistry subject. Accordingly, reference was made to the Government and the Government of Maharashtra in exercise of its powers under section 34(5) and (6) of the Act directed the Board to impose punishment as referred to in Clause No. 8 i.e. cancellation of performance in Chemistry subject. Shri Joshi submitted that the contention raised by Shri Talekar and other Advocates that performance in Chemistry Paper-I only should have been cancelled, Shri Joshi submitted that the word ^^R;k fo""k;kph** ""that subject"" used in Clause No. 8 means the entire subject concerned. He says that the words that subject means the entire subject and, therefore, the Board has taken a lenient view and imposed the minimum punishment on the petitioners. It is, therefore, submitted that all possible material that is placed at the disposal of the Inquiry Officers so appointed who reasonably arrived at the conclusion that the examinees/students have indulged in the act of malpractice was considered by the Board which is ultimate authority in the matter. Therefore, he honestly pleaded for rejection of all these petitions. He submitted that the Board has taken a reasonable view of the matter and in order to have purity in education and as the students appearing in XII standard are to be considered as future Doctors and Engineers etc. the action which is taken by the Board being proper one, this Court in its jurisdiction under Article 226 of the Constitution of India, may not interfere. 40. Shri Joshi, in support of his contentions placed reliance on various judgments of the Apex Court and High Courts. (1) (Board of Higher School and Intermediate Education, U.P., Allahabad v. Bagleshwar Prasad and another)4, A.I.R. 1996 S.C. 875. (2) (Bihar School Examination Board v. Subhashchandra Sinha and others)5, 1970(1) S.C.C. 648 . (3) (Al Gazanfar Rashid v. Secretary Board of Higher School and Intermediate Education, U.P., Allahabad)6, A.I.R. 1979 All. 209. (4) (Maharashtra State Boar of Secondary and Higher Secondary Education v. K.S. Gandhi and others)7, 1991(2) S.C.C. 716 . (5) (State Bank of Patiala and others v. S.K. Sharma)8, 1996(3) S.C.C. 364 . (6) (Madhyamik Shiksha Mandal, M.P. v. Abhilash Shiksha Prasarak)9, 1998(9) S.C.C. 236 . (7) (Chairman, J. K. State Board of Education v. Feyaz Ahmed Malik)10, 2000(3) S.C.C. 59 . 41. Shri P.K. Joshi, has produced before us the guidelines issued by the Board to the examiners, moderators and Chief Moderator. (6) (Madhyamik Shiksha Mandal, M.P. v. Abhilash Shiksha Prasarak)9, 1998(9) S.C.C. 236 . (7) (Chairman, J. K. State Board of Education v. Feyaz Ahmed Malik)10, 2000(3) S.C.C. 59 . 41. Shri P.K. Joshi, has produced before us the guidelines issued by the Board to the examiners, moderators and Chief Moderator. He has also produced the chart indicating the answers given by the students examinees to particular questions only. He has also produced the list of 14 Examination Centres so as to indicate as to how many candidates appeared at each Centres and how many candidates were punished. 42. Before we proceed to consider the submissions, it will be appropriate to refer to the relevant statutory provisions of the Act and; Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1977 (hereinafter referred to as ""the Regulations, 1977""). Section 5 provides for constitution of State Board. Section 6 provides Constitution of Divisional Boards. Section 7 deals with terms of office of members of the State Board and Divisional Board. Section 9 deals with disqualification of Chairman and Members. Section 11 speaks of vacancy of a member owning to absence without permission. Section 12 deals with decision on question as to vacancy. Section 13 deals with notification of vacancies. Section 15 deals with removal of members of the Divisional Board or State Board, by the State Government. Section 18 deals with powers and duties of the State Board. Section 19 deals with powers of Divisional Board. Section 20 deals with powers and duties of the Chairman of the Board. Section 23 deals with appointment of Committees of the Board. Section 34 deals with power of Government to issue directions. Section 36 authorises the State Board to make regulations for purpose of the Act. 43. Pursuant to the powers given by section 36 of the Act, 1965, the State Board framed Regulations, 1977. Regulations 82 and 83 deal with examination centres and date of examination. Regulation 84 deals with mode of examination. Regulation 91 deals with cancellation of performance in examination. Regulation 102 deals with publication of results etc. 44. The Guidelines have been issued by the Board for S.S.C. and H.S.C. examinations. The said guidelines are issued under the authority of the Secretary. The guidelines deal with the procedure that is to be followed by Invigilators. Guideline 7 deals with instructions to examiners. Regulation 102 deals with publication of results etc. 44. The Guidelines have been issued by the Board for S.S.C. and H.S.C. examinations. The said guidelines are issued under the authority of the Secretary. The guidelines deal with the procedure that is to be followed by Invigilators. Guideline 7 deals with instructions to examiners. Guideline 10 deals with instructions to moderators and Guideline No. 17 deals with instructions to Chief Moderator. 45. After noticing the abovesaid provisions and considering the submissions made at the Bar, there is no dispute upto the stage of report that is submitted by the Chief Moderator. The answer papers supplied at the time of examination indicate the instructions to the examinees and it is also stated in the said instructions how the questions are to be solved and how rough work is to be done. They also put on guard that any breach of instruction can lead to action by the Board. 46. The Board has also laid down the procedure of enquiry. The copy of procedure for enquiry (i.e. Guidelines) is filed on record. The procedure deals with definition misconduct, conducting enquiry by the Board, the punishment that is to be awarded and procedure to be followed for that purpose. We, will deal with the relevant provisions of the procedure of enquiry while dealing with the submissions of the learned Advocates. 47. According to the submissions advanced by all the learned Advocates for petitioners and the reply given by the learned Advocate for the Board, the following points emerge for our consideration: (1) Whether the Board has power or authority to initiate enquiry on the basis of report of Chief Moderator ? ... ... Yes. (2) Whether the procedure as contemplated in respect of enquiry is followed ? ... ... Yes. (3) Whether combined notice indicating the charges is valid, whether any prejudice is caused, to what extent, whether entire action is invalid? ... ... Partial prejudice is caused. Action from show cause notice is vitiated. (4) Whether Shri S.K. Joshi can act as an Inquiry Officer ? ... ... Yes. (5) Whether de novo enquiry can be directed ? ... ... Yes. 48. After the points framed by us, we have to deal with the submissions of the learned Advocates appearing in the matters to answer the points. Point No. 1 : 49. (4) Whether Shri S.K. Joshi can act as an Inquiry Officer ? ... ... Yes. (5) Whether de novo enquiry can be directed ? ... ... Yes. 48. After the points framed by us, we have to deal with the submissions of the learned Advocates appearing in the matters to answer the points. Point No. 1 : 49. From the record produced before us, it is clear that the action by the Board is taken on the basis of report submitted by Shri N.S. Patil, Chief Moderator, vide his letter dated 17th April, 2003 wherein he has indicated that on examining the answer-sheets which were sent to him in lots, being Nos. 2148, 2149, 2219 to 2222 and 2231 to 2234, he has reported that the answer papers in Lot Nos. 2148 and 2149 almost all answers in the answer papers are the same. Furthermore, spelling mistakes and mistakes in solving the problem are the same and, therefore, he has drawn an inference that the answers are written as per dictation. From Lot Nos. 2219 to 2222 and 2231 to 2234, he found that the beginning of the answer is the same, language is the same; problems are solved on the basis of the notes prepared through calculators. Accordingly, he has forwarded the report about 1264 answer books. On receipt of the report from the Chief Moderator, the Board placed the same before the Standing Committee and the Committee has decided to hold an enquiry by appointing Inquiry Officers and, accordingly, nine Inquiry Officers were appointed. The procedure of enquiry as prescribed, Clause (4) of the Procedure, empowers the Board either on complaint about any misconduct from the concerned or suo motu and, on being satisfied about the need of holding an enquiry under the procedure the Chairman of the Divisional Board may entrust the enquiry into the alleged misconduct, to any members of the Divisional Board other than the members of the Standing Committee. Therefore, in order to initiate enquiry by the Chairman it is not necessary that there should be a complaint about misconduct from the person in-charge of the Examination, as a matter of fact, which is established in these petitions, that the Chief Moderator, on noticing malpractice or use of unfair means on large scale, has submitted a report, and on that basis, the Board has decided to conduct an enquiry and appointed Inquiry Officers. In view of the provisions contained in the procedure for enquiry and the guidelines issued and the provisions of Regulation No. 102, we are of the view that it is not necessary that person in-charge of the examination at the particular Centre has to file a complaint. Considering the provisions of Clause (4) of the Procedure read with Regulation No. 102, we hold that the Board has power and authority to initiate inquiry into the charge of misconduct/unfair means at the Examination, on the basis of report of Chief Moderator. Accordingly, point No. 1 is answered. Point No. 4 : 50. It is not disputed before us that the Board has appointed nine Inquiry Officers in pursuance of Clause (4). Shri S.K. Joshi is one of the Inquiry Officers. Except his appointment, there is no challenge to the appointment of other Inquiry Officers. We will deal with the validity of the contention raised by the learned Senior Advocate Shri Shah, about the enquiry conducted by Shri S.K. Joshi. Shri S.K. Joshi came to be nominated as Member of the Board under section 6(1)(ii) of the Act. The appointment was continued till the notification published in the Official Gazette dated 23rd June, 2003. When Shri S.K. Joshi was nominated as the member of the Divisional Bench, he was working as Teacher in a School. Shri Joshi came to be promoted as the Headmaster of the School. Shri Joshi when appointed as Inquiry Officer in terms of Act and Regulations to enquire in the alleged misconduct by the order of the Board. At that time, he was a valid Member of the Board, but by virtue of his promotion, he cannot represent the teachers' category and, therefore, by resolution dated 17th May, 2003, the Government cancelled his appointment. Accordingly, the resolution came to be published in the Government Gazette dated 23rd June, 2003. By that time the enquiry was already completed. Shri Joshi has submitted his report on 22nd May, 2003 before the publication of the notification in the Official Gazette. Hence, Shri S.K. Joshi was competent to be an Inquiry Officer. Therefore, we are of the view that when Shri Joshi conducted an enquiry as an Inquiry Officer, he was very much competent and qualified to act as such. We find no substance in this contention. We will consider this aspect from another angle. Hence, Shri S.K. Joshi was competent to be an Inquiry Officer. Therefore, we are of the view that when Shri Joshi conducted an enquiry as an Inquiry Officer, he was very much competent and qualified to act as such. We find no substance in this contention. We will consider this aspect from another angle. None of the petitioners have raised any objection before Shri S.K. Joshi before whom they appeared at the time of the enquiry. Having appeared before Shri S.K. Joshi without any demur or without any complaint, it will not be open for the petitioners now to raise the question of competency of Shri S.K. Joshi. On facts and in law, we are of the view that Shri Joshi was competent to work as an Inquiry Officer. Shri Shah, learned Senior Advocate fairly submitted that Shri Joshi was not removed on any ground mentioned in section 9 or section 15 of the Act, 1965. His removal was by virtue of his promotion and not on any aspect touching moral turpitude etc. We accept the statement of the learned Senior Advocate, and accordingly, hold that Shri S.K. Joshi was competent to be appointed as Inquiry Officer, Point No. 5(4), thus, answered accordingly. Point Nos. 2, 3 5 : 51. Now, the crucial question that emerges for consideration is, whether the charges so indicated in notice were vague and ambiguous or whether any prejudice is caused to any of the petitioners. It is to be noted that all the petitioners and alike examinees were served with identical notices which indicate three grounds indicating the misconduct or use of unfair means adopted at the time of examination i.e. Chemistry Paper-I. The Board has prepared general questionnaire; and each and every candidate was allowed to answer the questionnaire before the Inquiry Officers. No doubt, Charge No. 1 was confusing and/or somewhat ambiguous. The Charge No. 1 states that all the examinees have written their answers on the basis of dictation given. As we have stated earlier, the malpractice or unfair means alleged is at 14 different Centres having different Examination halls and we are of the view that it was not possible for anyone to dictate the answer at all the 14 centres, that too at the same time. Therefore, we are of the view that Charges No. 1 there was confusion in the mind of the examinees. Therefore, we are of the view that Charges No. 1 there was confusion in the mind of the examinees. Nonetheless, we cannot forget the magnitude involved in the matters. The Herculean effort taken by the Chief Moderator in meticulous examination of all answer sheets numbering 1264 and he being the expert in the field, has opined that all the answers are similar, even the seriatim of the answers are written, all the mistakes are the same, wrong answers are given by all the examinees, no one has solved question No. 5(2)(b); the option question selected and answered by all which are same. Therefore, there may be two possibilities either on dictation or the examinee probably have used the printed material, namely, the Book which is mentioned by the Chief Moderator. We have perused ourselves some answer-sheets at random and noticed that there is substance in the report of the Chief Moderator and, as such we are of prima facie view that all the students cannot write similar answers in similar seriatim, commit similar mistakes. No doubt, there is some scope to arrive at the conclusion that large number of the students, though not all, have indulged in use of unfair means. Having arrived at this conclusion whether we can consider the submissions made by the petitioners that they have written their answers by their memory. This may be possible for one or two really brilliant student, having razor-sharp memory; but it is not possible at such a large scale. As the Chief Moderator has expressed his opinion, we in the writ jurisdiction cannot overrule his opinion. We endorse that 1264 examinees, (may not all), indulged in unfair means. 52. It was stated before us by the learned Advocates that each of the petitioners has denied that his/her involvement in the malpractice. They contended that it may be doing of some unscrupulous persons/elements and for their action the students like the petitioners, should not suffer. The argument appears to be appealable but at the same time we cannot ignore the fact that it is established on the report of the Chief Moderator that unfair means have been used. Therefore, we cannot accept the contentions as referred to above. For rejecting the abovesaid contention we may refer to Madhyamik Shiksha Mandal, MP's case (supra) where similar contentions were raised before the Apex Court and the Apex Court has negatived the same. Therefore, we cannot accept the contentions as referred to above. For rejecting the abovesaid contention we may refer to Madhyamik Shiksha Mandal, MP's case (supra) where similar contentions were raised before the Apex Court and the Apex Court has negatived the same. The facts, in short were that Madhyamik Shiksha Mandal, Board conducted the examination. The report of Naib Tahsildar came to be submitted to the board after he had visited the centres. On the basis of the said report, the examinations were cancelled by the Board. The action of the Board was challenged in writ petition before the M.P. High Court. The Apex Court has observed while allowing the appeals by the Board: ""2. We feel a little distressed that in matter like this the High Court should have interfered with the decision taken by the Board. The contention was that the examination was cancelled on the report of a Naib Tahsildar dated 18-3-1996 who was not authorised by the Board to visit the examination centre. It is irrelevant whether the Naib Tahsildar was authorized by the Board to visit the centre or not but what is of importance is the fact that he did visit the centre and found the students copying even before the question papers were distributed. This clearly implies that the students were aware of the questions indicative of the leakage of the question paper. The Naib Tahsildar even complained that the teachers did not object to the students entering the examination hall with books and copying material. That would mean that either they were hand in glove with the students, or, they were, for some reason not able to stop the students from copying. This is also evident from the report of the Superintendent of the Centre. The Naib Tahsildar states that neither the Superintendent of the Centre nor the invigilator were prepared to interfere and were not able to explain how the students could enter the hall with books, etc. and copy therefrom with impugnity, the Superintendent of the Centre states that he had requested the Naib Tahsildar to stay for three hours but the Naib Tahsildar did not stay. The report of the valuers at p. 81 also goes to show that there was mass copying. The High Court brushed it aside as subsequent material. and copy therefrom with impugnity, the Superintendent of the Centre states that he had requested the Naib Tahsildar to stay for three hours but the Naib Tahsildar did not stay. The report of the valuers at p. 81 also goes to show that there was mass copying. The High Court brushed it aside as subsequent material. But it supports the Board's decision and it was improper in a sensitive matter like this to ignore it on such a technical ground. 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 examination 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."" 53. Coming to the much debated question regarding the defective and vague charge for which we have made a detailed reference. No doubt, it is noticed by us that the charges were defective but whether on the basis of such defective charge can we allow the erring persons to go scot-free. Coming to the much debated question regarding the defective and vague charge for which we have made a detailed reference. No doubt, it is noticed by us that the charges were defective but whether on the basis of such defective charge can we allow the erring persons to go scot-free. The case at hand gives us a very scale picture and alarming situation where large scale unfair means is being adopted. Though we are dealing with the petitioners who approached this Court, we cannot lose sight of the fact that of cut-throat competition in the field of education and that too to get admission to professional courses. The competition must be healthy competition and in such competition everyone is trying to be super intellectual by hook or crook. This Court having constitutional obligation and duty cannot allow both the things to go on, i.e. guilty will be left scot-free and innocent will be punished. In such situation a demarcating line has to be drawn and the justice has to be done. Justice means justice between the parties. The interest of justice equally means that guilty should be punished and that technicalities and the irregularities are do no (sic) occasion to failure of justice are not allowed to defeat the ends of justice. Bearing this proposition in mind, we have to tilt the balance between the guilty and the innocent. It has come on record that the Chief Moderator has indicated that the malpractice and unfair means at the examination centre was used. On that basis the charge was given but according to us, the charge was somewhat defective. In our view, that the charge and notice is a part of the procedure which is provided by the Board and the procedural provisions are generally meant for affording reasonable and adequate opportunity. In fact, every examinee was asked to appear before the Inquiry Officers, they were asked to answer the questionnaire but on the charge that the answers were solved as per the dictation. Therefore, in our view, that there was improper charge was framed which has resulted to some extent, either in confusion or mislead. By that fact itself the entire proceedings cannot be nullified. 54. We will refer now the judgment of the Apex Court which is relied on by all the learned Advocates for the petitioners in the case of Rajeshkumar v. Institute of Engineers (supra). By that fact itself the entire proceedings cannot be nullified. 54. We will refer now the judgment of the Apex Court which is relied on by all the learned Advocates for the petitioners in the case of Rajeshkumar v. Institute of Engineers (supra). The appellants, in that case, appeared in AMIE examination, held on 1st June, 1990. No case of copying or any malpractice was ever noticed or reported by Supervisory Staff attached to the examination centres. 11 candidates who appeared in AMIE Group ""B"" in October, 1990 received notice from the Institution seeking explanation on the alleged copying and malpractice. The contents of the notice were, 13 examinees resorted to copying, some of the answers were exactly the same. On that basis, it was thought the examinees had adopted unfair means. The appellants submitted their reply, none of them was close to each other and all of them were in different rooms. The explanation was the subject in the answer books could be as a result of preparation from the same text book available in the market and the question of copying could not arise as they were sitting in different Examination Halls. The paper in question was ""Quantity, Surveying and Valuation, 2-B"". The examinees denied the allegation. The plea raised by the examinees was negatived by the Institute and each examinee was conveyed that his result for the examination for the year 1990 stood cancelled by further debarring them from appearing in two immediately following examinations. 55. Being aggrieved by the action of the Institution, some examinees challenged the action by filing writ petition in Punjab and Haryana High Court which was subsequently withdrawn and thereafter the examinees approached the Civil Court seeking to annual the offending communication and for mandatory injunction required to institute to declare the result. The trial Court decreed the suit on the ground that the Institute has passed a non-speaking order and the conclusion that the plaintiffs were guilty of unfair means was without any basis. The Institute filed an appeal. First Appellate Court reversed the judgment of the trial Court and dismissed the suit. Aggrieved party carried the second appeal to the High Court and they succeeded in the High Court. The Institute filed an appeal. First Appellate Court reversed the judgment of the trial Court and dismissed the suit. Aggrieved party carried the second appeal to the High Court and they succeeded in the High Court. The High Court allowed the appeal and set aside the decree passed by the first Appellate Court directing the Institute to re-decide the matter after affording an adequate opportunity of hearing to the plaintiffs disclosing to them the material which was against them and considering the appeal and it further directed to pass a detailed and speaking order. Thereafter the Institute complies the judgment and order of the High Court. At this juncture, some of the examinees appeared at Kolkata and attempted to satisfy the Institute about the doubt raised. It appears from the narration of the facts by the Apex Court, the Institute took somersault and adopted a new technic to test the ability of the appellants and after enquiry the Institute passed an order. Again the parties moved the High Court and ultimately the matter landed in the Apex Court. The Apex Court found : ""All literate men have been students at a given point of time but all have not been crammers. Those who cram do not achieve their goal by single reading. It is ceaseless effort for days and days till the desired result is achieved. Crammers inter se do not have any nexus with each other. Text of the book as the common source for cramming established no connection. That per se cannot be evidence of any conspiracy between the crammers to adopt unfair means in the examination, unless there being material to show that there was copying of the answer book described from the answer book one of the candidates or directly from book leading the copying by others."" Therefore, the Apex Court held that identity of the questions cannot lead to inference to copying. The Apex Court also found the attitude of the Institute and accordingly, the Apex Court allowed the appeal with costs. 56. From the passage quoted by us, we are of the view that the case cited is not applicable to the facts of the case in hand. The case before the Apex Court was of 11 students but in the case at hand there are 1264 examinees. The Chief Moderator found that striking similarities in all the papers i.e. correct answers, wrong answers. The case before the Apex Court was of 11 students but in the case at hand there are 1264 examinees. The Chief Moderator found that striking similarities in all the papers i.e. correct answers, wrong answers. Therefore, the inference which was drawn by the Chief Moderator according to us, being proper. Hence, in our humble opinion, the judgment relied on by the learned Advocate for the petitioners is of no help. 57. Coming to the judgment of the Orissa High Court in the case of Gayatri Hota (supra) 11 students of Purohitpura High School in the District of Jagjitsinghpur filed a writ application for quashing the notification dated 12th September, 2000 whereby the Board has cancelled their annual examination on the ground of malpractice. The Board has stated that 11 examinees have indulged into malpractice at the examination on the ground that some of the answers were identical in the nature with the other candidates. The candidates denied the allegation. The candidates took a positive stand thereby contending that they have not resorted to any malpractice or any unfair means in the course of examination. It was also stated no allegation of malpractice was alleged by the Invigilators, Centre Superintendent or the Flying Squad. Moreover, no incriminating material whatsoever was seized or recorded from any of the respondents. In the absence of such report and material only the allegations that answers of some of the questions appeared to be identical, result could not be withheld. The petition succeeded before the learned Single Judge. The order passed by the learned Single Judge was subject-matter of challenge before the Division Bench. The Division Bench, on considering the submissions and in particular 16 answer papers of different subjects found that the conclusion arrived at and different reports are not consistent in as much as some of the examiners have stated that the answers of the question Nos. 1 and 2 of ""A"" in respect of one or two Roll numbers are identical; whereas others have stated the answers alike. The Honourable Judges have gone through the answer papers and found that most of the answer papers the answer was same but it was in the nature of definition and as such the answers can be similar. 1 and 2 of ""A"" in respect of one or two Roll numbers are identical; whereas others have stated the answers alike. The Honourable Judges have gone through the answer papers and found that most of the answer papers the answer was same but it was in the nature of definition and as such the answers can be similar. The learned Judges also found that none of the examiners have pointed out any similarity in the mistake committed by the examinees if malpractices adopted while answering some mistake appearing in one would automatically occur in the other and answers are copied without application of mind, and that is according to the learned Judges, reasonable test to arrive at a conclusion that the examinees has indulged in malpractice. 58. With respect, we concur with the observations of the learned Judges and these observations definitely support the Board rather than the petitioners. The Chief Moderator has pointed out not only the similarity in the Eight answers but he has pointed out similarity in wrong answers also. This leads support to the contention of the Board and, therefore, in our view the judgment relied on by the petitioners is not at all helpful to them; but the same rather supports the case of the Board, to some extent. Considering the observations which we have stated above, we cannot accept that this judgment supports the contentions raised by the petitioners. 59. Coming to the judgment of this Court in Sk. Shafique Anjuman v. University of Mumbai (supra); the learned Single Judge of this Court (A.P. Shah, J.) was dealing with the case of two students who appeared in 2nd MBBS final examination. It was noticed by the University that the petitioners have indulged in unfair means during the second year MBBS examination. The University authorities reached to the conclusion of unfair means on the basis of similarity in answer to Question Nos. 5 and 6 of Pathology papers. The petitioners were called for explanation; after receipt of the same the University turned down their request and passed the order which was subject-matter of challenge before the learned Single Judge. From reading of the facts as stated, the petitioners brought before the Court the sitting arrangement. From the said sitting arrangement it was noticed by this Court that between Shafique Anjuman and Mohammed. Azam there was another candidate. From reading of the facts as stated, the petitioners brought before the Court the sitting arrangement. From the said sitting arrangement it was noticed by this Court that between Shafique Anjuman and Mohammed. Azam there was another candidate. The learned Judge found that no evidence of alleged copying was produced against the petitioners and only on the basis of similarity of pattern of answer in the examination, it is held, could not lead to sure conclusion that, there was copying. The learned Judge relied upon the judgment of Rajeshkumar (supra) of the Apex Court which we have referred to above. Accordingly, the learned Single Judge allowed the petition by setting aside the order passed by the University. The learned Judge held that: ""Since there is absolutely no evidence of alleged copying, the charge levelled against the petitioner and consequently orders of the University declaring the result of the petitioner as null and void and debarring him from University examination for one term cannot be sustained."" The learned Single Judge proceeded on the basis that there was no positive evidence and particularly there was allegation of copying but by noticing the sitting arrangement which was demonstrated by the petitioner in the petition, the learned Judge has recorded the above finding. We are of the view that this judgment is also of no help to the petitioners. No doubt, the learned Single Judge has observed that similarity of answers by itself is not the ground to arrive at a conclusion that there was copying but the case at hand is not such type. We have before us the report of Chief Moderator wherein he has positively stated that there is every possibility of malpractice as indicated in the report. Therefore, in our view the ratio of Sk. Anjuman (supra) is not at all applicable to the present matters. 60. Shri Joshi, the learned Advocate for the Board, has placed reliance on the judgment of Allahabad High Court which we have referred. Now we will find out how far that authority is applicable in the present case. We bear in mind that we are dealing with the action of the Board in respect of use of unfair means and malpractices adopted by the examinees at the Examination Centres. Now we will find out how far that authority is applicable in the present case. We bear in mind that we are dealing with the action of the Board in respect of use of unfair means and malpractices adopted by the examinees at the Examination Centres. We have already referred to the provisions of the Act, 1965 and Regulation, 1977 and we are of the view that the Board has power and authority to take action against the persons involved in adopting unfair means at the Examination. The judgments of the Apex Court which are cited by Shri Joshi, right from Bagleshwar Prasad and another to Feyax Ahmed Malik (supra) including the Full Bench judgment of the Allahabad High Court, deal with identical situation which we are dealing. Once we accept the power of the Board, we have to bear in mind the principles that has been laid down by the Apex Court in Bagleshwar Prasad's case which was followed till this date. The Apex Court in Bagleshwar Prasad's case was dealing with a case, whereby the U.P. Board has cancelled the result of Bagleshwar Prasad and other candidates on the ground that they have indulged in use of unfair means at the Examination. The facts before the Apex Court in Bagleshwar Prasad's case can be summarized as follows: Bagleshwar Prasad appeared for examination conducted by the U.P. Board from Nehru Intermediate College Centre, Bindki. He was declared to have passed the said examination in second division and with distinction in Arts. Thereafter he joined Intermediate first year class in college at Allahabad. On 3rd September, 1960 he received a letter from the Principal of Adarsha High Court, Jehanabad from where he has appeared for Board examination, calling upon him to appear before the Sub-Committee to answer the charge of having used unfair means in English, Mathematics and Hindi papers. Accordingly, he appeared before the Sub-Committee a charge was given to him and his explanation was obtained on the said charge. The charge was based on the facts that in Hindi third paper set at the said examination Bagleshwar Prasad has given wrong answers the Question No. 4 in precisely the same form in which the said answer had been given by the candidate whose Roll No. was 94733, Bagleshwar Prasad's Roll No. was 94734. The charge was based on the facts that in Hindi third paper set at the said examination Bagleshwar Prasad has given wrong answers the Question No. 4 in precisely the same form in which the said answer had been given by the candidate whose Roll No. was 94733, Bagleshwar Prasad's Roll No. was 94734. He was shown the identical wrong answers to the question which were found in two papers and he was asked to explain about the said identity of the wrong answer. He submitted that the wrong answers appear to be identical but the denied that he has used any unfair means. The Committee, however, not satisfied with the explanation, and reported that both the candidates had used unfair means. As a result of the report made by the Sub-Committee, the Board passed an order cancelling the result of the candidates. Both the candidates challenged the validity of the said order in Allahabad High Court. The petition filed by one candidate was dismissed; but that of Bagleshwar Prasad was allowed and the order passed by the Board cancelling the result of the respondent in High School examination has been set aside. In that case, the challenge before the High Court was on several grounds but the principal contentions raised in the petition was against the competency of the authority of the Board and against the fairness of the enquiry held. The High Court rejected the contention of law and for the reasons recorded in the judgment the petition was allowed. The High Court proceeded to examine the ground of attack against the validity of the order which was made on the basis that the impugned order was not supported by the evidence at all and the order was set aside on that ground. The proceedings taken against Bagleshwar Prasad were in the nature of quasi judicial proceedings. It is not disputed that the enquiry was conducted. The report of enquiry Committee shows that the complaints were received to investigate copying on large scale in several papers, besides Hindi. It is after examining of the complaints in the light of the evidence available to them, the Committee made its final report. The Apex Court perused the incorrect answers and the learned Judges were not prepared to hold that the identical incorrect answers were given by two candidates either by accident or by co-incidence. It is after examining of the complaints in the light of the evidence available to them, the Committee made its final report. The Apex Court perused the incorrect answers and the learned Judges were not prepared to hold that the identical incorrect answers were given by two candidates either by accident or by co-incidence. Some of the incorrect answers and in particular manner in which they have been given, clearly suggest that they were the result of either one candidate copying from another or both candidates copying form common source and according to the Apex Court this significant fact has been completely lost sight of by the High Court. With this background, the Apex Court considered the problem and recorded thus: ""(12) In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or appellant No. 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 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 the probabilities and circumstantial evidence do not justify the said conclusion. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether the 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 of defend themselves, and in holding such enquiries, the Tribunals must scrupulously follow rules of natural justice, but it would be, we think, not 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 in interfering with the order passed against the respondent."" 61. Applying the ratio of Bagleshwar Prasad's case to the present case, we are of the view that the basic evidence is that report of the Chief Moderator wherein the Chief Moderator has opined about the malpractices at examination on a large scale. As there are no mala fides alleged of any kind against the Chief Moderator, or the Board for that matter, the report of the Chief Moderator which was accepted by the Board and the enquiry was initiated and in such circumstance we cannot doubt the validity of the report of the Chief Moderator. We have accepted the Board's power to initiate enquiry. Initiation of inquiry by the Board within its jurisdiction and which the Board has done by appointing nine Inquiry Officers. 62. The contentions raised by all the learned Advocates that there was no evidence produce by the Board to establish the guilt or complicity of the petitioners, while dealing with this contention. We have to bear in mind the magnitude involved in these matters and we cannot on mere submissions of the Advocates reach to the conclusion that there was no direct evidence. Considering the facts which were placed before us and the magnitude of malpractice surfaced, it smacks of collusion, conspiracy between most of the examinees and/or their guardian parents and the officials (including the police posted at the Centres of Examination). Otherwise, it would not be possible for 1264 students to write identical answers in identical Sr. Nos. Considering the facts which were placed before us and the magnitude of malpractice surfaced, it smacks of collusion, conspiracy between most of the examinees and/or their guardian parents and the officials (including the police posted at the Centres of Examination). Otherwise, it would not be possible for 1264 students to write identical answers in identical Sr. Nos. that identical mistakes and also the wrong answers. Nonetheless the report of the Chief Moderator cannot, be lightly brushed aside or ignored. When it is stated by the Board that the Chief Moderator has examined all the papers very minutely and arrived at the prima facie conclusion that unfair means was adopted by the examinees. With this background can there be any direct evidence to establish the fact. We are not oblivious of the fact that we are dealing not with criminal case where the Court has to proceed on the basis of innocence of the accused. In the present case we cannot proceed on the basis of innocence of the examinees. If the malpractices would not have been detected, all the examinees would have been benefited and that would have resulted adversely against the honest, sincere and hand working students. The Board has stated in its affidavit about the complicity of the staff at the Centre and it has also taken action against the in-charge of the Examination Centres. The fact that the malpractice has been noticed on a large scale by the Chief Moderator and this fact was not brought to the notice of the Board by the persons in-charge of the Centres, speaks volumes. With this background on one can expect a direct evidence. 63. We may refer with advantage the observation of the Full Bench in Gazanfar Rashid (supra). The Full Bench of Allahabad High Court was dealing with the similar situation and that too with Chemistry Paper II. The complaint was received by the Board that unfair means was used by the examines on large scale at the Centres i.e. Inter College Banda. On the basis of complaint, the Board appointed screening Committee of experts in various subjects to ascertain the correctness of the allegations. The screening Committee on scrutiny of answer books found that examinees who appeared from that Centre used unfair means. On the basis of complaint, the Board appointed screening Committee of experts in various subjects to ascertain the correctness of the allegations. The screening Committee on scrutiny of answer books found that examinees who appeared from that Centre used unfair means. The screening Committee appointed a spot inquiry Committee to enquire into the matter in detail and the Committee approved the charge in the form of questionnaire for serving of the same on the erring examinees. The spot Inquiry Committee served the charge-sheet on the examinees and obtained explanation and the Committee found that examinees could not write the answer themselves and arrived at the conclusion that the question was written with aid of some outside agency. The charge, however, has been denied. The Committee drew an inference that the examinee has used unfair means in answering the question. The Allahabad High Court with the backdrop of this facts considered the jurisdiction under Article 226 of the Constitution. Quoting the observations of the Apex Court in Bagleshwar Prasad's case, and observed thus : ""16......... If the Examinations Committee relying on the probabilities and circumstantial evidence and the intrinsic evidence available in the answer book of the examinee comes to the conclusion that unfair means was used it is outside the jurisdiction of the High Court to re-apprise and re-assess the evidentiary value of those circumstances to take a different view. The examinations Committee and the Screening Committee are constituted of experts, they are the sole Judges to determine the question of use of unfair means on the basis of materials present on record. Their decision cannot be interfered with by this Court under Article 226 of the Constitution unless the decision is mala fide, arbitrary or capricious, any decision of an authority, quasi judicial or administrative, is vitiated on the ground of mala fides. Similarly, decision of a quasi judicial authority would be vitiated if it is based on no evidence or it is arbitrary and the conclusion which the authority has arrived at could not be reached by any reasonable person or body of persons. 17. These principles are well settled but the real difficulty arises in their application to the particular facts of a case. 17. These principles are well settled but the real difficulty arises in their application to the particular facts of a case. While applying these principles it must be borne in mind that in the case of no evidence the order would be vitiated only when there is not a single piece of evidence direct or indirect, oral or documentary, or even circumstantial evidence based on the probabilities to sustain the decision of the authority concerned, but if there is some evidence of circumstantial nature, it would not be a case of no evidence. Inadequacy of evidence does not fall within the principle of no evidence. If there be any evidence, howsoever weak it may be in its probative value, it will not be a case of no evidence and the High Court has no jurisdiction to interfere with the finding. Similarly, while considering the question of arbitrariness it must be kept in mind that if two views are possible on the material on record and if the examinations Committee has bona fide taken one view, it is not open to the High Court to interfere with that finding merely because a different view is possible. The High Court can interfere if the order is wholly arbitrary and so capricious that no reasonable person could come to the conclusion on the material on record, but if a person can reasonably come to that conclusion, the High Court has no jurisdiction to interfere with the order. An arbitrary decision of a quasi judicial authority would be perverse and liable to be quashed. It is however not permissible to assume possibilities or circumstances in support of the examinee's innocence and then to interfere with the decision of the examination Committee on the ground that there was no conclusive evidence to hold the examinee guilty of the charge of use of unfair means. If several probabilities are available in the circumstances of a case, some of which support the examinee's innocence, while other circumstances support the decision of the examinations Committee holding the examinee guilty, in that situation it is not permissible to interfere with the decision of the examinations Committee as that would amount to appraisal of evidence."" 64. If several probabilities are available in the circumstances of a case, some of which support the examinee's innocence, while other circumstances support the decision of the examinations Committee holding the examinee guilty, in that situation it is not permissible to interfere with the decision of the examinations Committee as that would amount to appraisal of evidence."" 64. We will now refer to the judgment of the Apex Court where the Apex Court was dealing with the action taken by the Maharashtra Secondary and Higher Secondary Education Board in K.S. Gandhi's case (supra). The facts in K.S. Gandhi's case were, thus: The Board conducted secondary examination in the month of March, 1990, whereafter the formalities of valuation by the examinees of the answer-sheets in each subject, the random counter check by the Moderators and further recounting by the Board. The Moderator's mark sheet were sent to Pune for feeding the computer to declare the result. It was found that the Moderator's mark-sheets relating to 283 examinees which include 53 respondents, were tampered with, in many a case in more than 2 to 8 subjects, and in few cases in one subject. As a result, 214 examinees improved their ranking which would be in some cases exceptionally good. The declaration of their results were withheld pending further enquiry and the rest were declared on June 30, 1990. The Board appointed seven Inquiry Officers to conduct the enquiry; show cause notices were issued to the students on 30th June, 1990 informing them the nature of tampering the subjects in which the marks were found tampered with, but the marks initially obtained and the marks increased due to tampering and also indicated the proposed punishment if in the enquiry it is found that the marks were tampered with, at the instance of candidates or parents or guardians. The students were also informed that they would be at liberty to inspect the documents at the Divisional Board at Bombay, the candidates submitted their explanation denying the tampering and appeared before the Inquiry Officers. At the inquiry, questionnaire was given to be filled up in writing and every candidate was shown his answer books, marks were awarded in the subject/subjects and the tampered marks in Moderator's Marks sheet. The student easily identified the his own answer-books and the verified marks. They denied, either they or their parents or the guardians were privy to the tampering. The student easily identified the his own answer-books and the verified marks. They denied, either they or their parents or the guardians were privy to the tampering. The Inquiry Officer submitted their report to the Board holding that the Moderators' marks had been fabricated. Accepting the report the punishment was imposed on 283 students. Accordingly, they were debarred from examination to be held in October 1990 and 1991. The action of the Board was challenged by filing writ petition in this Court where they succeeded and the High Court quashed the order passed by the Board which has resulted in filing appeal by the Board before the Apex Court. Though in Gandhi's case all the students/examinees admitted the fact that the final marks sheet was tampered with but they denied their complicity in the whole affair. With this background, it was contended before the Apex Court that there was no evidence to indicate the complicity in the matter. The Apex Court considered the question regarding standard of proof at the time of enquiry by the Expert Body like the Board. The Apex Court negatived the contention of the examinees in respect of question of strict proof. The Apex Court, thus, observed : ""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 circumstances to deduce necessary inference 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. There must be evidence direct or circumstances to deduce necessary inference 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 with as much 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 inference 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 straight 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. 38. From this legal setting we have to consider whether the inference deduced by the Education Standing Committee that the fabrication of moderators' mark sheets was done at the behest of either the examinee or the parent or guardian is based on the evidence on record. It is already found that the examinees admitted the forgery of their concerned moderators' mark-sheets resulting the increase of marks to their advantage. The fabrication of the moderators' mark-sheets was done after the scrutiny by the concerned officials in the office of the State Board at Bombay and before the moderator's mark-sheets were taken out to Pune to feed the computer. Why one is expected or interested to wade through eighty thousand moderator's mark-sheets to locate only the 283 examinees mark-sheets and add marks by fabrication? Unless either the examinee or parent or guardian approached the fabricator; given the number and instructed him/them to fabricate the marks, it would not be possible to know their number to fabricate. The act of fabrication is an offence. Unless either the examinee or parent or guardian approached the fabricator; given the number and instructed him/them to fabricate the marks, it would not be possible to know their number to fabricate. The act of fabrication is an offence. Merely it was done in one subject or more than one makes little difference. Its gravity is not mitigated if it is committed in one subject alone. This is not an innocent act or a casual mistake during the course of performance of the official duty as is sought to be made out. It was obviously done as a concerted action. In view of the admitted facts and above circumstances the necessary conclusion that could unerringly be drawn would be that either the examinee or the parent or guardian obviously was a privy to the fabrication and that the forgery was committed at his or her or parent's or guardian's behest. It is, therefore clear that the conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record. The High Court in our view over-stepped its supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive its own conclusions on the specious plea of satisfying 'conscience of the Court."" Incidentally, the Apex Court has also considered the mode of punishment indicated in Appendix 'A' to the resolution of the Board. In these petitions, the learned Advocates have submitted that the punishment indicated in Appendix 'A' and identical contention was rejected by the Apex Court in S.K. Gandhi's case. The Apex Court justified the action of the Board. Applying the ratio of K.S. Gandhi's case in the case at hand, we are of the view that the Board has power or authority to initiate the enquiry on the basis of report of Chief Moderator, the procedure contemplated in respect of enquiry is also properly followed and principles of natural justice are complied with. 65. The last judgment on which Shri Joshi relied is in the case of Feyaz Ahmed Malik (supra). The Apex Court reiterated its view in Subhashchandra Sinha's case (supra). That case was also because of cancellation of examination by the Board on account of mass copying by the students/examinees. 65. The last judgment on which Shri Joshi relied is in the case of Feyaz Ahmed Malik (supra). The Apex Court reiterated its view in Subhashchandra Sinha's case (supra). That case was also because of cancellation of examination by the Board on account of mass copying by the students/examinees. The Apex Court observed that while judging the authority or otherwise all steps taken by the authorities of the Board to take action against the candidates taking resort to malpractice, it be borne in mind that the Board is entrusted with the duty of maintaining higher standard of education and proper conduct of examination. If an expert Body consisting of persons coming from different walks of life who are engaged or entrusted in the field of education and have wide experience, the decision of such expert body should be given due weightage by the courts. Considering this observation of the Apex Court and applying the same in the facts of this case, we are of the view that the action to initiate enquiry on the basis of Chief Moderator's report cannot be faulted with. 66. As such, we have to find out a solution whether the entire action of the Board is nullity or the Board be given opportunity to issue proper notice/charges. The question therefore is whether the defective notice/charge can be treated as fatal one. 67. To find out, we may refer to the ""procedure of enquiry"" adopted by Board in its resolution. The procedure of enquiry says that those are guidelines to conduct an enquiry. Section 13(1) authorises the Divisional Board to deal with the case of unfair means, according to the procedure laid down by the Board. Section 18 demarcates powers and duties of the State Board and it permits the Board to frame bye-laws relating to matter such as procedure to be followed by the State/Divisional Board and their Committee which are not provided under the Act and Regulations. In our view, considering this aspect the procedure of enquiry is framed is in the nature of guidelines for conduct of enquiry. Therefore, whether those are mandatory or directory. If it is held that the procedure of enquiry is mandatory, then non-following the same or any defect in the conduct of enquiry is fatal. Then the entire action has to be decided as invalid. Therefore, whether those are mandatory or directory. If it is held that the procedure of enquiry is mandatory, then non-following the same or any defect in the conduct of enquiry is fatal. Then the entire action has to be decided as invalid. If it is held directory then the result is not the same and the defect can be cured. It is accepted that any defect in following procedure ipso facto does not vitiate the action; if the defect is in such a nature, it completed wash out the action. The procedure of enquiry itself states as ""guidelines"" to be followed in conducting an enquiry. This aspect clearly establishes that the procedure of enquiry is in the nature of guidelines and its breach cannot vitiate the action as the guidelines are not mandatory in nature. Those are only Guidelines issued by the State Board under section 19 for the purpose of cancellation of examination under section 91 are publication of result under Regulation 102(3) and those guidelines are enabling one to the Board or in Committee to perform its obligation under the statute. Looking into the facts and circumstances that are brought before us, we are of the view the petitioners are justified in complaining of prejudice, because of the defect in the notice/charge. Though all the examinee/students appeared before the Inquiry Officers and answered the questionnaire, still those are based on the notice/charge, and, in our considered opinion, the charges so framed was defective. We have indicated that the procedure of enquiry being only guidelines which are not of a mandatory character and the violation of guidelines, will not result in nullifying the action. As none of the petitioners have waived the requirement and they have challenged it, merely because the charge is not being proper and the procedure is only directory and in the nature of guidelines, the punishment finally cannot be set aside, but this Court can give appropriate direction to the Board after setting aside the order to make fresh enquiry by issuing proper and precise charges to all the examinees/students. The view which are taking is supported by the judgment of the Apex Court in S.K. Sharma's case (supra). This view we are taking because of the magnitude that has surfaced. The view which are taking is supported by the judgment of the Apex Court in S.K. Sharma's case (supra). This view we are taking because of the magnitude that has surfaced. We are fully aware that by directing de novo trial it will take some time and some of the examinees will have to suffer for which no one can help. Similarly, we cannot also ignore the submissions advanced by the learned Advocates regarding consideration of the past merit of the petitioners though it is not a sure test to exonerate the students from the charge, some time it may happen that a brilliant student may also indulge in such unfair means. In order to do real justice between the parties i.e. students who have really indulged in malpractices and those who are not, a de novo enquiry is required and, therefore, we issue following direction to the Board by setting aside impugned orders in these petitions. Hence the order: ORDER (1) The Board shall issue fresh notices to the 1264 examinees by indicating proper charges/allegations of malpractices or unfair means, so that everyone will be in a position to answer the charge. (2) The Board shall appoint Inquiry Officers except Shri S.K. Joshi, who now in no more a member of the Board, and they may be directed to give report against each and every student; while doing so, the Inquiry Officers if found that a particular candidate has not indulged in unfair means or malpractice, the report to the effect be submitted individually. (3) The Board, then, will take action immediately on the report of the Inquiry Officers. (4) The Board should complete the entire exercise within one month from today. (5) The notice be published in widely circulated local newspaper and also be sent to all School or Junior Colleges in which the examinees/students studied their XII standard. In addition of the notice, the learned Advocates appearing in the matter shall also direct their respective clients to appear before the Inquiry Officers as and when indicated in the publication of notice in newspaper, and thereafter if it is found that the examinees/students have not indulged in malpractices or unfair means, then their result shall be declared and those who found guilty may be dealt with in accordance with law. (6) This order will not mean that the action taken/initiated by the Board against the erring officer/s at the Examination Centres is also vitiated. We are not called upon to deal with that aspect. Rule made absolute in above terms. There will be no orders as to costs. Order accordingly.