The Controller of Examinations, Bharathidasan University, Tiruchirappalli, and another . . . v. B. Vignesh
2005-08-29
P.SATHASIVAM, S.SARDAR ZACKRIA HUSSAIN
body2005
DigiLaw.ai
P.Sathasivam, J: By consent of both parties, writ appeals themselves are taken up for final disposal. Since the issue raised and decided is one and the same in all the appeals, they are being disposed of by the following common judgment. 2. Aggrieved by the common order of the learned single Judge, dated 21.3.2005, made in W.P. (MD) No.4408 of 2004, etc. batch, Bharathidasan University, Tiruchirappalli, has filed the above appeals. 3. The brief facts which are required for the disposal of the above are stated here under: (a) According to Bharathidasan University, after the November, 2003 B.E. examinations, the passing Board met on 8.1.2004 for passing the results. In the meeting, the Chairman of the Computer Science Board orally said that there were numerous corrections in the result copies without proper attestation. He called for the Tabulated Marks Register (TMR) and Individual Mark List (IML) for verification. On perusal of relevant documents, it was found that there was tampering in entries in the result statements and TMR. That is, the candidates who had failed as per the marks entered in the IML were shown to have passed in the TMR and in the result copies. Thereupon, the other Chairpersons of the respective Boards also called for relevant documents, viz., TMR and IML of their respective subjects. They also found that there were numerous corrections without proper attestation in the result copies and in TMR. Normally corrections are carried out in TMR and in Mark Statement, only in case where revaluation/re-totalling is sought for by the candidates securing less marks in the original valuation and the candidates have been awarded pass or higher marks in revaluation/re-totalling. (b) It is the further case of the University that the Syndicate, at its meeting held on 8.2.2004, set up a three member Committee to enquire into the matter relating to malpractice in November, 2003 examination. This opened the eyes of the authorities of the University to verify whether similar malpractices were indulged in earlier examinations. Hence, the Syndicate, in its meeting held on 23.3.2004, authorized to scrutinize the records of the examinations held during the previous years and also to conduct necessary enquiry and submit a report. (c) The Committee scrutinized and enquired 102 students from 3.4.2004 to 7.4.2004. The Committee, after affording due opportunity of hearing to the individual candidates, found that three candidates were innocent and their results were released.
(c) The Committee scrutinized and enquired 102 students from 3.4.2004 to 7.4.2004. The Committee, after affording due opportunity of hearing to the individual candidates, found that three candidates were innocent and their results were released. In respect of others, who were found guilty, the results of their appearance in the examination held in November, 2003 were cancelled and they were debarred from taking examinations for five years. (d) It is the further case of the University that enquiry was conducted by the Review and Reform Committee of the Examination Wing for the students whose records were tampered in the semesters prior to November, 2003 semester examination. The enquiry was conducted in two spells, viz., (i) from 8.10.2004 to 15.10.2004 and (ii) from 28.1.2005 to 31.1.2005. The students were shown their marks as entered in TMR based on IML, in order to compare and get convinced of the discrepancies between the tampered entries and genuine entries in TMR and in the result copies. The respondents/candidates though agreed with the tampering made in the result copy, pleaded to be innocent. All the candidates were given time to submit their written submission. After giving a fair opportunity of hearing and after considering the submissions made by the candidates, the Enquiry Committee, upon weighing the totality of the circumstances, found that the glaring illegality could not have been committed without the participation of the beneficiaries, since the benefit of the tampering would ultimately benefit only the concerned candidate, when more than 5000 students had taken the examination and the discrepancies were noticed only in the case of 99 candidates. (e) It is also the case of the University that departmental proceedings as well as criminal proceedings have been initiated against the delinquent employees and four employees were placed under suspension pending enquiry. The fact that the entries in TMR and in the result copies of few candidates, including the respondents herein, have been tampered to get higher marks/pass marks, while the records of more than 4800 candidates, including some other candidates who have failed, were intact, clearly revealed the modus operandi adopted by the beneficiaries. The details gathered by the Committee during the enquiry from all the students, including those students who turned as approvers, revealed the facts and the University Committee found that the individuals were guilty.
The details gathered by the Committee during the enquiry from all the students, including those students who turned as approvers, revealed the facts and the University Committee found that the individuals were guilty. The decision is in conformity with the pronouncement of the Apex Court and the University acted in accordance with Statutes and the Act. (f) The decision of the University was under challenge by the candidates before the learned single Judge by way of writ petitions. The learned single Judge, by the impugned order, held that decision of the University is based on surmises and reversed the decision of the expert body. Inasmuch as every candidate was given an opportunity of hearing and they saw their mark list was tampered, but denied involvement, the University which is expected to maintain standards, was left with no other alternative, except to act in accordance with the Statutes. The interference by the learned single Judge is not warranted. It is also brought to our notice that subsequently, on humanitarian ground, the punishment of debarment was reduced from five years to one year, as there was spate of representations from parents and others. The University had acted fairly and within its powers. In the absence of any mala fides, the decision of the expert body ought to have been accepted. 4. Heard Mr.N.G.R.Prasad, learned counsel appearing for Bharathidasan University and Mr.K.M.Vijayan, learned senior counsel for the respondents/candidates. 5. Mr.N.G.R.Prasad, learned counsel appearing for the University, after taking us through the relevant materials, including the details of tampering found in the University records in respect of the writ petitions, the Expert Committee Report, etc., would contend that the University was justified in drawing the inference of the complicity of writ petitioners in tampering the records in their favour as it was a clear case of fraud for which there cannot be any direct evidence on the ratio of the judgment of the Apex Court reported in Ram Preethi Yadav v. U.P.Board of High School and Intermediate Education, (2003)8 S.C.C. 311 and Union Public Service Commission v. Jagannatha Mishra, (2003)9 S.C.C. 237 .
He further contended that the learned Single Judge failed to see that admittedly the students concerned were given an opportunity to defend themselves and the order was passed after due hearing and when they were confronted with material documents, they did not dispute the discrepancies found out by the University and in such circumstance, the learned Single Judge erred in holding that the decision was by proxy. He also contended that the learned Judge committed an error in relying upon the decision reported in Sunder,G.S. v. The Controller of Examinations, Madurai Kamaraj University, 1992 Writ.L.R. 52, which has since been overruled by the Supreme Court in the decision reported in Controller of Examinations and others v. G.S.Sunder, (1993)3 S.C.C. (Supp.) 82. 6. On the other hand, Mr.K.M.Vijayan, learned senior counsel for the respondents/candidates submitted that mere inference cannot be sufficient to hold against the candidates. He further contended that in the absence of specific charge and detailed enquiry for the alleged tampering, the ultimate action taken by the University cannot be sustained. 7. We have carefully considered the relevant materials and rival submission. 8. In the light of the narration of facts in the earlier part of our judgment, there is no need to refer the same once again. It is the case of the University that on verification of TMR and IML, it was found that there were tampering in the entries in the result statement and TMR. In other words, it is the specific case of the University that the candidates who had failed as per the marks entered in IML, were shown to have passed in TMR and in the result copies. 9. Mr.N.G.R.Prasad has brought to our notice the details of tampering found in the University records in respect of the writ petitioners. Those details are available from pages 20 to 39 of the typed set of papers filed by the University in the above writ appeals. The scrutiny of the above statements shows that tampering was found in the semester examination that was held in November, 2003 and also reveals that when the candidates secured lesser marks, as seen from the actual marks as per IML, the University records show higher marks. As said earlier, the details furnished by the University demonstrate that the candidates who secured lesser marks as per IML were shown to have secured higher marks in the University records.
As said earlier, the details furnished by the University demonstrate that the candidates who secured lesser marks as per IML were shown to have secured higher marks in the University records. As a matter of fact, a candidate, who absented as per IML, was awarded higher marks in the University records. 10. Taking note of numerous corrections, without proper attestation in the result copies and in TMR, the Syndicate of the University in its meeting held on 23.3.2004, authorised the Expert Committee to scrutinize the records of the examinations held during the previous years and also directed to conduct enquiry and submit a report. The details furnished by the University show that the Committee scrutinized and enquired 102 students from 3.4.2004 to 7.4.2004 and after affording opportunity of hearing to the individual candidates and eliminating three candidates who were innocent, based on inherent document evidence and on weighing the totality of the circumstances, arrived at a conclusion that the glaring illegality could not have been committed without the participation of the beneficiaries, since the benefit of the tampering would ultimately benefit only the concerned candidates, when more than 5000 students have taken their examination and the discrepancies were noticed only in the case of 99 candidates. 11. The learned single Judge, though conscious of the fact that normally the Court would be slow to interfere in academic matters, after finding that the University is not justified in taking action against the candidates on mere inference and punishment cannot be imposed on mere suspicion as held in the decision reported in Sunder, G.S. v. The Controller of Examinations, Madurai Kamaraj University, 1992 Writ.L.R. 52, allowed all the writ petitions and directed the University to issue mark sheets without reference to IML or TML. 12. In Controller of Examinations and others v. G.S.Sunder and another, (1993)3 S.C.C. (Supp.) 82, the Hon’ble Supreme Court has held that in matters of enforcement of discipline, the Court must be very slow in interference. In that case, the first respondent was a student of B.E. degree, pursuing his study in an Engineering College. The Principal of the college brought to the notice of the Madurai Kamaraj University (Controller of Examinations) certain malpractices committed by students in the examinations. These malpractices affected innocent and intelligent students.
In that case, the first respondent was a student of B.E. degree, pursuing his study in an Engineering College. The Principal of the college brought to the notice of the Madurai Kamaraj University (Controller of Examinations) certain malpractices committed by students in the examinations. These malpractices affected innocent and intelligent students. The Principal subsequently referred to the case of the first respondent who interchanged his roll number 533276 with that of another student K.R.Gandhi whose roll number was 533275. In view of the good academic record of the said Gandhi, who used to answer better than the first respondent, the first respondent was systematically interchanging his roll number with that of Gandhi on the answer books in some of the subjects in all the four semester examinations. This resulted in first respondent passing all the examinations concerned with good marks in those subjects whenever the roll number was interchanged, while at the same time Gandhi failed in those subjects concerned. However, Gandhi took supplementary examinations and secured good marks in all these subjects in which he had failed in the main examination. Gandhi applied for revaluation of the examination papers concerned held in April, 1989. It was then discovered that the roll number on the answer books was tampered with by correction of the last digit "5" into "6". On further examination of first respondent’s answer books, it was found that in his answer books the last digit which should have been "6" had been corrected to that of digit "5". Thereupon, the matter was referred to the Syndicate Sub-Committee on Discipline of the University. The first respondent was called upon to appear before the said Sub-Committee and the matter was enquired into. Though initially the first respondent denied the knowledge of correction, at the second sitting of enquiry he gave a statement admitting the commission of malpractice. The Principal was also enquired. On completion of enquiry, the Chairman of Syndicate Sub-Committee submitted the report and recommended the punishments. Those recommendations were approved by the University and the first respondent was served with a copy of the order, dated 4.4.1991. The said order was challenged in writ petition before the learned single Judge of this Court and the learned single Judge was of the view that the admission of malpractice stated to have been made by the first respondent was unbelievable.
The said order was challenged in writ petition before the learned single Judge of this Court and the learned single Judge was of the view that the admission of malpractice stated to have been made by the first respondent was unbelievable. Aggrieved of the said judgment, the matter was taken up in W.A.No.1341 of 1991 to a Division Bench. The findings of the learned single Judge were confirmed. However, special leave petition was preferred by the University. The Hon’ble Supreme Court, after analyzing the materials, has not accepted the view expressed by the learned single Judge and the Division Bench of this Court and observed in para.10 of the judgment as follows: "10. We have given our careful consideration to the above submissions. One thing must be put beyond doubt, in matters of enforcement of discipline this Court must be very slow in interference. After all, the authorities in charge of education whose duty it is to conduct examinations fairly and properly, know best how to deal with situations of this character. One cannot import fine principles of law and weigh the same in golden scales. In the present system of education, the system of examinations is the best suited to assess the progress of the student so long as they are fairly conducted. Interference by Court in every case may lead to unhappy results making the system of examination a farce. . . . ." Finally, the Supreme Court concluded as under: "11. When the matter is approached from the above point of view, we find, as rightly submitted by the learned Attorney General it is a systematic case of fraud committed by the first respondent. It cannot be a sheer coincidence that in all the semesters, namely, viz., III to VI the first respondent secured good marks and the other student K.R.Gandhi failed. There is nothing unbelievable in the first respondent admitting his mistake and giving a statement to this effect. We also find that there is no question of violation of principles of natural justice. The first respondent knew the charge fully and he had admitted his guilt. That is why we are constrained to point out that technicalities of law should not be imported to further the cause of a student who had indulged in malpractice.
We also find that there is no question of violation of principles of natural justice. The first respondent knew the charge fully and he had admitted his guilt. That is why we are constrained to point out that technicalities of law should not be imported to further the cause of a student who had indulged in malpractice. Even if others are in complicity with the perpetration of fraud, that does not mean the first respondent is absolved of his guilt. Thus, we are unable to agree with the findings of the High Court which are hereby set aside." 13. The above decision of the Supreme Court makes it clear that in matters of enforcement of discipline, particularly in the affairs of education, the Court must be very slow in interference. In this regard, it is relevant to note and as rightly pointed out by Mr.N.G.R.Prasad, the learned single Judge mainly relied on the decision of another learned single Judge of this Court reported in Sunder, G.S. v. The Controller of Examinations, Madurai Kamaraj University,1992 Writ.L.R. 52, which has been over ruled by the Supreme Court in the above refered decision reported in Controller of Examinations v. G.S.Sunder and another, (1993)3 S.C.C. (Supp.) 82. 14. In the decision reported in Ram Preeti Yadav v. U.P.Board of High School and Intermediate Education and others, (2003)8 S.C.C. 311 , before referring to the conclusion, it is relevant to note the facts. In 1984, respondent No.3 therein, viz., Mahendra Pratap Yadav, appeared as a private candidate in the intermediate examination conducted by the U.P.Board of High School and Intermediate Education from Janta Inter College, Azamgarh (U.P.). When the results of intermediate examination of the year 1984 were declared, the result of respondent No.3 was shown as withheld as a suspected case of using unfair means. He was issued a provisional mark sheet without showing that his result for the intermediate examination has been withheld. In another, provision certificate, which was issued on or about 1.9.1986 by the Principal of the College, the words "WB" i.e., result withheld find place. It is admitted that the respondent No.3 did not apply for nor was given any final mark sheet nor any certificate of passing the examination.
In another, provision certificate, which was issued on or about 1.9.1986 by the Principal of the College, the words "WB" i.e., result withheld find place. It is admitted that the respondent No.3 did not apply for nor was given any final mark sheet nor any certificate of passing the examination. It appears that on the basis of the provisional mark-sheet, respondent No.3 took his admission in B.A. without disclosing the fact that his result has been withheld and passed the B.A. examination as well as the M.A. examination. Subsequently, he also got employment as a teacher in Mathura Inter College, Naharpur. It appears that in the year 1993, some enquiry was made as regards the passing of the intermediate examination by respondent No.3. The enquiry continued for some time and it is under such circumstances, the Principal of Janta Inter College informed respondent No.3 on 16.10.1996 that his result of the intermediate examination of the year 1984 was cancelled. At this stage, respondent No.3 filed a petition under Art.226 of the Constitution challenging cancellation of his result of the intermediate examination. The learned single Judge of the Allahabad High Court was of the view that in the instant case if the result of intermediate examination of respondent No.3 is allowed to be shown as cancelled, his career would be ruined and since he had passed the high school examination in first division, B.A. examination in second division and M.A. examination in first division and by and large his academic career is brilliant, the cancellation of his result is unreasonable. Consequently, the writ petition was allowed and the order of cancellation of the result of intermediate examination was set aside. Aggrieved, the appellant who is a colleague of respondent No.3 is working in the same institution wherein respondent No.3 is working as well as the Board of High School and Intermediate Education filed special appeals before a Division Bench of the High Court. The Division Bench summarily dismissed the appeal. It is against the said judgment and order, the appellant filed appeal before the Supreme Court. While considering the claim of respondent No.3 and the decision of the Allahabad High Court, the Supreme Court has held as follows: “10.
The Division Bench summarily dismissed the appeal. It is against the said judgment and order, the appellant filed appeal before the Supreme Court. While considering the claim of respondent No.3 and the decision of the Allahabad High Court, the Supreme Court has held as follows: “10. It is also a matter of great suspicion as to how another marksheet was issued in his favour on 1.9.1987 with the words” WB “ particularly when the Principal of the College admittedly was made known about the order dated 1.9.1985 passed by the first respondent cancelling the examination of respondent No.3. Thus, it is evidence that a fraud was committed. Respondent 3 is the sole beneficiary of the said fraud and it, as such, must be presumed that he was a party there.” Finally, their Lordships have concluded as under: “24. The learned single Judge in the aforementioned situation was not correct in proceeding on the basis that respondent 3 was not communicated the result. A presumption against him must be raised particularly having regard to the fact that he had not been able to produce any material to show as to why no attempt was made by him to obtain a final marksheet and/or certificate for passing the examination.” 15. In the decision reported in Union Public Service Commission v. Jagannatha Mishra, (2003)9 S.C.C. 237 , the Supreme Court has held that if an expert body comes to a conclusion to the fact, the same should not be ordinarily interfered by a Court of law. Their Lordships also concluded that: “4 . . . .It cannot be held as a principle that wherever there is no report from the invigilator indicating adoption of malpractice in any examination the appropriate au thority cannot come to the conclusion about the adoption of malpractice. It would always be a case depending upon the materials produced and there would be no bar for an expert body to come to a definite conclusion about adoption of malpractice in an examination even in the absence of a report of the invigilator to that effect. It would always be a question of fact to be decided on the basis of materials produced before the expert body”. 16.
It would always be a question of fact to be decided on the basis of materials produced before the expert body”. 16. The above decisions make it clear that the respondents/candidates are beneficiaries of the fraud committed by the officers of the University and as such, it must be presumed that they were parties thereto. It is relevant to note that in our case, some of the candidates have confessed and admitted the guilt. It is also brought to our notice that the University has already taken action against the persons concerned (i.e. University staff) by suspending them and also launching criminal prosecution. As a matter of fact, it is stated that the criminal prosecution has now been entrusted to CB CID. 17. Though Mr.K.M.Vijayan, learned senior counsel, contended that in the absence of specific charge and adequate opportunity by way of conducting enquiry, the University is not justified in punishing the candidates for malpractice and tampering of records, as stated earlier, based on the report of the Expert Committee, individual notice was issued to the candidates and they were asked to appear individually before the Enquiry Committee with all original mark statements in connection with the suspected involvement in tampering of marks. It is also brought to our notice that the actual marks scored and the marks entered in the University records were shown to each candidate and after getting the views of the candidates, the University, after finding that without interference of the candidates, the marks could not have been corrected by the University officials, imposed the punishment of debarment. Though candidates were debarred for a period of five years, in the light of various representations and taking a lenient view, the punishment was reduced to debarment for a period of one year. As a matter of fact, these candidates were allowed to write examination in the next academic year. After reserving the matter for orders, the decision reported in Vincent. D. v. Director of Government Examinations, 1987 Writ. L.R.. 69, has been circulated to us. In the said case, action was taken against the appellant/original petitioner for altering 21 marks in Group-B in English at the T.S.L.C. examination as 41.
After reserving the matter for orders, the decision reported in Vincent. D. v. Director of Government Examinations, 1987 Writ. L.R.. 69, has been circulated to us. In the said case, action was taken against the appellant/original petitioner for altering 21 marks in Group-B in English at the T.S.L.C. examination as 41. It further shows that he scored only 21 marks at the T.S.L.C. examination held in March,1956 as per the office records, but the marks were fraudulently entered in his certificate as 41 to enable him to pass the examination and his name was also included in the Gazette. After finding that the marks in the certificate issued to him were at variance with marks found in the Tabulated Mark Register, the certificate possessed by the appellant was bogus one, the certificate was cancelled in accordance with Rule 154-1 of the Tamil Nadu Educational Rules. The said order was challenged before the State Government, which rejected the appeal on 4.10.1977 and the appellant challenged the said orders by writ petition. The learned single Judge rejected the claim of the appellant and the matter was taken up by way of appeal. The Division Bench, after finding that the department was not in a position to bring the answer books (since destroyed) and not justified in fastening the entire proceedings against the appellant, quashed the departmental proceedings. On going through the factual details, we are able to notice that there was no proper enquiry, the answer book was not produced since destroyed and the Educational Department found that the appellant therein alone was responsible for entirety. In our case, the writ petitioners were given opportunity to participate in the enquiry, answer books and valuation made therein was shown to them, entries in the University register was also shown to them and some of the candidates admitted the guilt and some of them pleaded innocence. It is not the claim of the writ petitioners that they were not given opportunity at all or no enquiry was conducted. In the light of the factual details and in view of the law laid down and explained by the Hon’ble Supreme Court in the above referred decisions the Division Bench decision referred above is not helpful to the cases in our hand. 18.
In the light of the factual details and in view of the law laid down and explained by the Hon’ble Supreme Court in the above referred decisions the Division Bench decision referred above is not helpful to the cases in our hand. 18. As rightly pointed out, we are satisfied that the candidates were given adequate opportunity to put-forth their stand and in fact, all the candidates appeared along with original mark statements and submitted their defence. Some of them admitted their guilt and some of them pleaded innocence. We are satisfied that the University was justified in drawing the inference of complicity of the writ petitioners in tampering the records in their favour and the learned Single Judge has committed an error in holding that “malpractice by way of inference cannot be accepted”. As stated earlier, the learned single Judge has failed to note that the concerned students were given opportunity to defend themselves and the order was passed after due hearing. They were confronted with the material documents, which they did not dispute and the discrepancies found out by the University. In those circumstances, the learned Judge erred in holding that the decision was by proxy. 19. Further, as rightly pointed out, the learned Judge mainly relied on the decision reported in Sunder, G.S. v. The Controller of Examinations, Madurai Kamaraj University,1992 Writ L.R. 52, which has since been over ruled by the Supreme Court in the decision reported in Controller of Examination and others v. G.S.Sunder and another, (1993)3 S.C.C. (Supp.) 82. We are satisfied that on coming to know the malpractices, the University appointed an Enquiry Committee and only after giving an opportunity of hearing to all the concerned individuals, taken a decision, which has been accepted by the Syndicate. In such circumstances, as observed by the Supreme Court, the learned Single Judge ought not to have lightly interfered with the decision of the University in debarring the candidates, when in fact, the original debarment for five years was reduced to one year. 20. In the light of our above discussion, we are unable to agree with the view expressed by the learned Single Judge and we are satisfied that the learned Judge committed an error in interfering with the order passed by the University. Accordingly, the writ petitions filed by the respondents/candidates are dismissed. The writ appeals filed by the University are allowed. No costs.
Accordingly, the writ petitions filed by the respondents/candidates are dismissed. The writ appeals filed by the University are allowed. No costs. Connected W.A.M.P. (MD) Nos.388, 390, 392, and 394 of 2005 are closed.