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2017 DIGILAW 186 (ORI)

Anup Bhattacharya v. State of Odisha

2017-02-20

A.K.RATH

body2017
A.K.Rath, J. By this writ application the petitioners have challenged, inter alia, the notification dated 16.6.2016, vide Annexue-1, issued by the Member Secretary-cum-Controller of Examination, Odisha State Board of Pharmacy, opposite party no.3, cancelling the result of D.Pharma Part-I and Part-II Examination 2015(II) of Seemanta Institute of Pharmaceutical Sciences, Jharpokharia, Mayurbhanj. 2. Shorn of unnecessary details, the case of the petitioners is that they were students of Diploma in Pharmacy. They prosecuted studies in the Institute of Pharmaceutical Sciences, Jaleswar in the district of Balasore. After completion of course, they appeared in the examination centre, namely, Seemanta Institute of Pharmaceutical Sciences, Jharpokharia, Mayurbhanj in the year 2015. The result of D.Pharma Examination 2015(II) was published on 18.3.2016, but then their results have been withheld. The Principal of the college sent an application on 3.4.2016 to know the result of the examination. The Member Secretary-cum-Controller of Examination, Odisha State Board of Pharmacy, opposite party no.3 issued a notification cancelling the result of D.Pharma Part-I and Part-II Examination 2015 (II) of Seemanta Institute of Pharmaceutical Sciences, Jharpokharia, Mayurbhanj due to centre scratch as per the decision of the Government, vide Annexure-1. The said notification is impugned in this writ application. 3. Pursuant to issuance of notice, opposite parties 1 to 3 have entered appearance and filed counter affidavit. The sum and substance of the case of the opposite parties is that the examination in question i.e., D.Pharma Part-I and Part-II, 2015 Second Examination was conducted throughout the State simultaneously in twelve different examination centers including Seemanta Institute of Pharmaceutical Sciences, Jharpokharia. The petitioners, students of Institute of Pharmaceutical Sciences, Jaleswar along with the students of other institutions appeared at Part-I and Part-II D.Pharma Examination in the said centre. Before publication of the result of the examination, a complaint was received by the Drugs Controller, Odisha. Thereafter the Drugs Controller, Odisha in its letter dated 15.2.2016 instructed the Member Secretary, Odisha State Board of Pharmacy, Bhubaneswar to conduct an enquiry into the allegations. Accordingly, a committee under the Chairmanship of Professor S.K.Behera, O.S.D. Office of the D.M.E.T., Odisha was constituted to enquire into the veracity of the allegations. The enquiry committee reviewed the CCTV footage and submitted a report. The report of the enquiry committee was considered in the meeting held on 22.4.2016 presided over by D.M.E.T., Odisha, Bhubaneswar. Accordingly, a committee under the Chairmanship of Professor S.K.Behera, O.S.D. Office of the D.M.E.T., Odisha was constituted to enquire into the veracity of the allegations. The enquiry committee reviewed the CCTV footage and submitted a report. The report of the enquiry committee was considered in the meeting held on 22.4.2016 presided over by D.M.E.T., Odisha, Bhubaneswar. It was unanimously resolved to constitute a sub-committee for micro analysis of the CCTV footage. The report of micro analysis dated 28.4.2016 was submitted to the D.M.E.T., Odisha. On perusal of the said report, it was found that there was large scale malpractice. The D.M.E.T. by its letter dated 7.5.2016 recommended for appropriate action. The Additional Secretary to Government in the Department of Health and Family Welfare in its letter dated 7.6.2016 directed the D.M.E.T. to take immediate follow up action against the Seemanta Institute of Pharmaceutical Sciences Centre, Jharpokharia, Mayurbhanj. A copy of the said letter was sent to opposite party no.3 on 10.6.2016. In terms of the said letter, the impugned notification, vide Annexure-1 dated 16.6.2016 was issued. The decision to cancel the examination was taken after due enquiry and deliberation. The allegation of violation of principles of nature justice is misconceived inasmuch as the Center Superintendent and the Invigilators were examined by the enquiry committee. They had denied the allegations regarding irregularities notwithstanding video footage which clearly established their complicity. There was large scale irregularity in the conduct of the examination. Thus it was not possible to follow the principles of natural justice. Further steps had already been initiated to handover the matter for investigation to the Crime Branch. Opposite party no.3 visited the centre only on 28.11.2015 during Part-II examination. There was no irregularity on 28.11.2015. Because of adoption of dubious methods, the sanctity of the examination process had been thrown to the wind and the entire exercise of conducting an examination had become farcical. It is further stated that in response to the notification, vide Annexure-1, reexamination had been conducted. Petitioner nos.1 and 2 appeared and failed in the said examination. 4. Opposite party no.5 has also filed a counter affidavit stating therein that he had no knowledge of irregularities or complaint during conduct of the examination. He, being the Centre Superintendent, conducted the examination as per the guidelines and supervision of the Board Authorities. Petitioner nos.1 and 2 appeared and failed in the said examination. 4. Opposite party no.5 has also filed a counter affidavit stating therein that he had no knowledge of irregularities or complaint during conduct of the examination. He, being the Centre Superintendent, conducted the examination as per the guidelines and supervision of the Board Authorities. The CCTV footage has been recorded during the course of examination and the same has been submitted as per the rule without any manipulation. 5. Heard Mr.Samantray, learned Advocate for the petitioners, Mr.V.Narasingh, learned Advocate for opposite parties 2 & 3 and Mr.Sahoo, learned Advocate for opposite party no.5. 6. Mr.Samantray, learned Advocate for the petitioners submitted that the petitioners had appeared in D.Pharma Examination Part-I and Part-II, 2015 (II) at Seemanta Institute of Pharmaceutical Sciences, Jharpokharia, Mayurbhanj. The examination was conducted in a fair manner. There was no allegation before the competent authority or the local police about the adoption of unfair practice by the students. Neither the Centre Superintendent nor the Principal had submitted any report to the Odisha State Board of Pharmacy. On 28.11.2015 opposite party no.3 visited the centre. He had also not submitted any report with regard to the alleged malpractice. No show cause notice was issued by opposite parties 1 to 3 before cancellation of result and, as such, the order is an infraction of principles of nature justice. To buttress his submission, he relied on the decisions of this Court in the case of Board of Secondary Education, Orissa, Cuttack Vrs. Gayatri Hota and others, 2001(I) OLR-398, Governing Body, Jambeswar Mahavidyalaya, Balasore Vrs. Council of Higher Secondary Education, Orissa and another, 2005 (II) OLR-518 and Governing Body of Evening College, Angul Vrs. State of Orissa and two others, 2010(I) OLR-335 and the decision of the Apex Court in the case of Board of Higher School and Intermediate Education, U.P. Allahabad Vrs. Ghansyam Das Gupta and others, AIR 1962 SC 1110 . 7. Per contra, Mr.Narasingh, learned Advocate for the opposite parties 2 and 3 submitted that the examination in question i.e. D.Pharma Part-I and Part-II, 2015 was conducted throughout the State simultaneously in twelve different centers as per the schedule including Seemanta Institute of Pharmaceutical Sciences, Jharpokharia. Pursuant to the complaint dated 2.2.2016 alleging gross malpractice, the Drugs Controller, Odisha instructed opposite party no.3 to enquire into the same and submit a report. Pursuant to the complaint dated 2.2.2016 alleging gross malpractice, the Drugs Controller, Odisha instructed opposite party no.3 to enquire into the same and submit a report. After due enquiry, report was submitted. As the future of large number of students was involved, it was resolved by the Odisha State Board of Pharmacy to constitute a Sub-Committee for micro analysis of CCTV footage. Opposite party no.2 on 7.5.2016 recommended for initiation of appropriate proceeding basing upon report on review of CCTV footage. By letter dated 7.6.2016, the Additional Secretary to Government in the Health and Family Welfare Department directed the D.M.E.T. to take immediate action in cancelling the examination by scratching the centre and to handover the matter to Crime Branch. The matter is under investigation of Crime Branch. In terms of the said communication, the impugned notification dated 16.6.2016 was issued. The decision to cancel the examination was taken after due enquiry and deliberation keeping in view the adoption of unfair means on a large scale. It is further stated that on a review of CCTV footage, vide Annexure-E/3, it is evident that not only the students, but also the invigilators were involved in the malpractice. On 18.11.2015, 19.11.2015 and 20.11.2015 copies had been supplied by the invigilators to the students. On the other dates i.e., on 16.11.2015, 17.11.2015 and 21.11.2015 relating to Part-I, complicity of the invigilators is clearly borne out. Dubious role of the invigilators also came to the fore during the Part-II examinations on 23.11.2015 26.11.2015 and 27.11.2015. In view of large scale malpractice, it was not possible to follow the principles of natural justice. Six petitioners had appeared in D.Pharma Part-I examination of 2016 (1) (Regular) and their results were likely to be published shortly. Though every endeavor was made to segregate the tainted from non-tainted candidates, but due to interchanging of seat as well as hall arrangements, it was well neigh impossible to separate the untainted from tainted, for which the authorities were constrained to cancel the whole examination to preserve the sanctity of the examination. Adoption of unfair means on a large scale had been firmly established from enquiry report as well as CCTV footage analysis. He placed reliance on the decision of the Apex Court in the case of Nidhi Kaim Vrs. State of Madhya Pradesh and others, (2016) 7 SCC 615 . 8. Adoption of unfair means on a large scale had been firmly established from enquiry report as well as CCTV footage analysis. He placed reliance on the decision of the Apex Court in the case of Nidhi Kaim Vrs. State of Madhya Pradesh and others, (2016) 7 SCC 615 . 8. Before delving deep into the matter, it is apt to refer to the decisions cited by the learned Advocates for the parties. In Ghansyam Das Gupta (supra), the Apex Court held that if a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the Statute to act judicially. In Governing Body, Jambeswar Mahavidyalaya, Balasore (supra), the petitioner assailed the notification dated 25.6.2004 cancelling the examination held in English Paper-II in second sitting of Higher Secondary Examination, 2004 on 11.3.2004 on the ground that there was no material before the examination committee. The supervisor’s report does not disclose that the Higher Secondary Examination (+2) held on 11.4.2004 in English Paper-II in the petitioner’s centre was not conducted in accordance with the norms prescribed and that the examinees in the centre were adopting mal malpractice. This Court allowed the writ application. In Board of Secondary Education, Orissa, Cuttack (supra), the Division Bench of this Court had an occasion to deal with the cancellation of result of HSC Examination-2002 of eleven students of a high school. The result of the examination was cancelled on the ground that they resorted to malpractice. The candidates took a positive stand that they had not resorted to any malpractice or unfairness in course of examination inasmuch as no allegation of malpractice was reported by the Invigilators, Centre Superintendent or Flying squad. No incriminating material whatsoever was seized from them. Notice to show cause was vague for which they could not give any proper reply. This Court held that there was infraction of principles of natural justice and, accordingly, quashed the notification. In Governing Body of Evening College, Angul (supra), the petitioner assailed the cancellation of results of 41 regular students who had appeared at +2 HSC Examiantion-2007. Notice to show cause was vague for which they could not give any proper reply. This Court held that there was infraction of principles of natural justice and, accordingly, quashed the notification. In Governing Body of Evening College, Angul (supra), the petitioner assailed the cancellation of results of 41 regular students who had appeared at +2 HSC Examiantion-2007. The Court on perusal of the report of the Examination Committee found that the committee before taking a decision to cancel the result of the students had not applied its mind and allowed the application. 9. A bare reading of the decisions, however, show that there is a significant difference in the factual matrix in which the said cases arose for consideration. The reliance upon the said decisions, therefore, is of no assistance to the petitioners. 10. In the case of Nidhi Kaim (supra), the Apex Court delved deep into the matter and summarized the principles relating to usage of unfair means on a large scale. The relevant paragraphs of the report are quoted below:- “39.1 Where there are allegations that students resorted to “unfair means on a large scale” at an examination, this court would not insist upon registration of a formal complaint. Any reliable information suggesting the occurrence of such malpractice in the examination is sufficient to authorise the examining body to take action because examining bodies are “responsible for their standards and the conduct of examinations” and “the essence of the examination is that the worth of every person is appraised without any assistance from an outside source”. 39.2. A lone circumstance could itself be sufficient in a given case for the examining body to record a conclusion that the students resorted to “unfair means on a large-scale” in an examination. This Court approved the conclusion of the Bihar School Examination Board that the students had resorted to unfair means on a large scale in one examination centre and also approved the decision making process of the Board on the basis of circumstantial evidence. The lone circumstance that the success rate of the students who appeared for the examination from the centre in question is too high in comparison to other centres. 39.3. The lone circumstance that the success rate of the students who appeared for the examination from the centre in question is too high in comparison to other centres. 39.3. In such cases, the examining body need not hold “a detailed quasi-judicial inquiry with a right to its alumni to plead and lead evidence etc.” and the examining body’s “appreciation of the problem must be respected.” 39.4 To insist on the observance of the principles of natural justice, i.e. giving notice to each student and holding enquiry before cancelling the examination in such cases would ‘hold up the functioning’ of the educational institutions which are responsible for maintenance of the standards of education, and “encourage indiscipline, if not, also perjury”. 39.5 Compliance with the rule of audi alteram partem is not necessary not only in the cases of employment of ‘unfair means on large scale’ but also situations where there is a ‘leakage of papers’ or ‘destruction of some of the answer books’ etc. 39.6 This Court drew a distinction between action against an individual student on the ground that the student had resorted to unfair means in the examination and the cancellation of the examination on the whole (or with reference to a group of students) because the process itself is vitiated. 42.1 Normally, the rule of audi alteram partem must be scrupulously followed in the cases of the cancellation of the examinations of students on the ground that they had resorted to unfair means (copying) at the examinations. 42.2 But the abovementioned principle is not applicable to the cases where unfair means were adopted by a relatively large number of students and also to certain other situations where either the examination process is vitiated or for reasons beyond the control of both students and the examining body, it would be unfair or impracticable to continue the examination process to insist upon the compliance with audi alteram partem rule. 42.3 The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence. 42.4 The scope of judicial review of the decision of an examining body is very limited. 42.3 The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence. 42.4 The scope of judicial review of the decision of an examining body is very limited. If there is some reasonable material before the body to come to the conclusion that unfair means were adopted by the students on a large scale, neither such conclusion nor the evidence forming the basis thereof could be subjected to scrutiny on the principles governing the assessment of evidence in a criminal court.” xxx xxx xxx 11. Be it noted that since there was cleavage of opinion as to whether the appellants should be disentitled to retain the benefits of the training in medical course which they secured by virtue of their being beneficiaries of a tainted examination process conducted for the purpose of admitting them for training in medical colleges, the matter was referred to the Larger Bench. The Larger Bench held that it would not be proper to legitimize the admission of students to the MBBS course, in exercise of power of the Apex Court under Article 142 of the Constitution of India. But then the principles enunciated in paragraphs 39 & 42 of the report are still holding the field. 12. The instant case may be examined on the anvil of the decision in the case of Nidhi Kaim (supra). D.Pharma Part-I and Part-II Examination, 2015 (ii) was held in Seemanta Institute of Pharmaceutical Sciences, Jharpokharia from 16.11.2015 to 30.11.2015. The petitioners appeared at the examination. On receipt of complaint, the Drugs Controller, Odisha sent a letter on 15.2.2016 to the Member Secretary, Odisha State Board of Pharmacy to enquire into the matter and submit a report. A committee under the Chairmanship of Professor S.K.Behera, O.S.D. Office of the D.M.E.T., Odisha was constituted to ascertain the veracity of the allegation. The committee submitted its report after reviewing CCTV footage to D.M.E.T., Odisha. The report indicates that some Invigilators were involved in assisting the students in malpractice and when they were questioned on such visual clippings, they remained silent. The Centre Superintendent/Dy.Centre Superintendent also remained silent on such visual clippings. The committee found that though all the students were not involved in malpractice, but some invigilators were involved in assisting the students in malpractice. Both the Center Superintendent and Dy. Center Superintendent had not supervised the examination process. The Centre Superintendent/Dy.Centre Superintendent also remained silent on such visual clippings. The committee found that though all the students were not involved in malpractice, but some invigilators were involved in assisting the students in malpractice. Both the Center Superintendent and Dy. Center Superintendent had not supervised the examination process. It recommended that entire mass of students should not suffer for the circumstances created by some students. The invigilators, who were involved, would not be allowed to be a part of the examination process and the centre may be banned for a consecutive period of five years. Thereafter a meeting was held on 22.4.2016 under the Chairmanship of Odisha State Board of Pharmacy, wherein Heads of Department Pharmacology, Vimsar, Burla, Prof. Pharmacology, S.C.B. Medical College, Cuttack, Principal, Gayathri College of Pharmacy, Sambalpur, Principal, Mayurbhanj Medical Academy, Baripada and the Member Secretary-cum-Controller of Examination, Odisha State Board of Pharmacy were present. The committee unanimously decided to constitute a sub-committee consisting of four members for micro analysis of CCTV footage. The subcommittee after examining the CCTV footage submitted the report, vide Annexure-E/3. Thereafter, D.M.E.T., who is the Chairman of the Odisha State Board of Pharmacy sent a letter on 7.5.2016 to the Principal Secretary, Health and Family Welfare Department, Government of Odisha requesting for taking appropriate action against the institution for promoting malpractice in an organized manner. On 7.6.2016, the Additional Secretary to Government, Health and Family Welfare Department sent a letter to D.M.E.T., Odisha directing to cancel the examination held from 16.11.2015 to 30.11.2015, scratch the centre and ban it for a period of five years, handover the matter to Crime Branch, Odisha, take immediate steps to conduct re-examination of candidate and debar the invigilators involved in malpractice. While the matter stood thus, the Member Secretary-cum-Controller of Examination, Odisha State Board of Pharmacy cancelled the examination on 16.6.2016. The report on review of CCTV footage (Part-I and II of D.Pharma examination) held in Seemanta Institute of Pharmaceutical Sciences, Jharpokharia from 16.11.2015 to 30.11.2015, vide Annexure E/3, depicts a sordid picture. In fact on 16.11.2015 and 17.11.2015 in some halls the invigilators used to supply copies to the students. The time of supply of copies by the invigilators had also been recorded. On 19.11.2015, the invigilators involved themselves in supplying copies to the students in all halls. Apart from that the students resorted to malpractice in different halls. 13. In fact on 16.11.2015 and 17.11.2015 in some halls the invigilators used to supply copies to the students. The time of supply of copies by the invigilators had also been recorded. On 19.11.2015, the invigilators involved themselves in supplying copies to the students in all halls. Apart from that the students resorted to malpractice in different halls. 13. The submission of Mr.Samantray, learned Advocate for the petitioners that principles of natural justice have not been followed has no legs to stand. The Apex Court in the case of Nidhi Kaim (supra) held that normally, the rule of audi alteram partem must be scrupulously followed in the cases of the cancellation of the examination of the students on the ground that they had resorted to unfair means (copying) at the examinations. But the abovementioned principle is not applicable to the cases where unfair means were adopted by a relatively large number of students and also to certain other situations where either the examination process is vitiated or for reasons beyond the control of both students and the examining body, it would be unfair or impracticable to continue the examination process to insist upon the compliance with audi alteram partem rule. The fact that unfair means were adopted by students at an examination could be established by circumstantial evidence. 14. The Apex Court in the case of the Chairman, Board of Mining Examination and Chief Inspector of Mines and another, Vrs. Ramjee, A.I.R.1977 SC 965 held thus: “……………...Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice, without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be finical nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt that is the conscience of the matter.” (emphasis laid) 15. The Apex Court in the case Nidhi Kaim (supra) in no uncertain terms held that the scope of judicial review of the decision of an examining body is very limited. No man shall be hit below the belt that is the conscience of the matter.” (emphasis laid) 15. The Apex Court in the case Nidhi Kaim (supra) in no uncertain terms held that the scope of judicial review of the decision of an examining body is very limited. If there is some reasonable material before the body to come to the conclusion that unfair means were adopted by the students on a large scale, neither such conclusion nor the evidence forming the basis thereof could be subjected to scrutiny on the principles governing the assessment of evidence in a criminal court. The matter has been handed over to Crime Branch. The Crime Branch is investigating into the matter. Further some of the students have appeared at the examination and their results have been declared. 16. Malpractice is a malady. Its tentacle spread over all branches of education. Education is a preparation for the future. The teachers whom the society adores as “Guru Bramha, Guru Bishnu and Gurudev Maheswar” are the beacon light of knowledge. Can any one perceive the idea that a teacher will actively engage in malpractice ? The unfortunate students, who have polluted the stream of examination, have approached the portals of this Court. Writ is a discretionary as well as equitable remedy. The petitioners have approached this Court with unclean hands. They are not entitled to any equitable relief. 17. As a sequel to the above conclusion, the writ application is dismissed.