PRAVAMAYEE NAYAK Vs. COUNCIL OF HIGHER SECONDARY EDUCATION

JUDGEMENT

(1.) The twenty-eight petitioners are all students of Biju Pattnaik College at Asrampatna in the district of Jagatsinghpur. They took the + 2 Science Stream Annual Examination, 2000 conducted by the Council of Higher Secondary Education, Orissa. On 1-7-2000 the Council of Higher Secondary Education, Orissa (hereinafter referred to as the Council_) notified the results of the petitioners in the said examination and as per the said results, the petitioners were all given 0_ (zero) mark in physics paper-I. The Principal of the Biju Pattnaik College then wrote to the Controller of Examinations, Council of Higher Secondary Education, Orissa in his letter dated 4-7-2000 that it is not indicated in the notification publishing the results as to why 0_ (zero) mark has been awarded to all the students in Physics Paper-I and requested him to clarify on the point. No reply, however, was given by the Controller of Examinations, Council of Higher Secondary Education, Orissa to the said letter of the Principal of the College. Aggrieved, the petitioners have filed this writ petition under Art. 226 of the Constitution for a direction on the Council to declare the results of the petitioners in Physics Paper-I.

(2.) A counter affidavit has been filed on behalf of the Council and the Controller of Examinations, Council of Higher Secondary Education, Orissa (opp. parties 1 and 2) stating therein that after the conduct of the examination in Physics Paper-I on 29-3-2000, the answer papers of the petitioners were despatched to the valuation zone for evaluation and during the process of such evaluation, it was detected by the Zone Supervisor that almost all the answers were identical in nature as per the reports of Assistant Examiners/Chief Examiner and he immediately reported this matter to the Controller of Examinations, Council of Higher Secondary Education, Orissa on 11-5-2000. On receipt of such report from the Zone Supervisor it was decided to withhold the results of the candidates for further investigation by the Expert Committee and the results of the candidates were withheld. Thereafter, the matter was placed before the Expert Committee on 26-6-2000 and after thorough verification and scrutiny of the matter, the Expert Committee observed that it is a clear case of mass mal-practice and submitted its report before the Examination Committee and the Examination Committee after elaborate deliberations over the matter decided to cancel the examination of the petitioners in Physics Paper-I vide resolution No. 1915 in its meeting held on 29-6-2000 and directed publication of the results of the petitioners. Accordingly, the results of the petitioners were published on 1-7-2000 showing cipher (zero) against Physics Paper-I. A counter affidavit has also been filed by the Principal of Biju Pattanaik College, Asrampatna, District Jagatsinghpur (opp. Party No. 3) who was also the Centre Superintendent at the centre in which the petitioners took + 2 Science Annual Examination. In the said counter affidavit, the opp. party No. 3 has stated that the examination began on 29-3-2000 and was conducted smoothly and there was no chaos and confusion in the examination. He has further stated in the said counter affidavit that the invigilators were alert, the students have appeared in all the examinations and the Council have inspected the College through its agents during the examination time. The opp. party No. 3 has also stated in the said counter affidavit that there was no adverse report in respect of the conduct of the examination either from the Centre Superintendent or from any other source including the Council.

(3.) Relying on the aforesaid counter affidavit filed by the opp. party No. 3, the Principal-cum-Centre Superintendent of Biju Pattanaik College, Mr. P. K. Nanda, learned counsel for the petitioners submitted that there was no report submitted by the Centre Superintendent or the invigilators complaining that there was any mal-practice adopted by the petitioners in Physics Paper-I at the time of the examination and in the absence of any such report, the conclusion arrived at by the Council that there was mal-practice amongst the students at the time of the examination in Physics Paper-I on 29-3-2000 was wholly arbitrary and vitiated by malafide. Mr. Nanda argued that from the mere fact that the answers of the candidates to some of the questions were identical would not mean that the candidates have adopted mal-practice. He submitted that the decision to award zero mark to all the students of Biju Pattanaik College including the petitioners has been taken by the Council for extraneous considerations. Mr. Nanda cited the decision of the Supreme Court in Rajesh Kumar v. Institute of Engineers (India) (1997) 6 SCC 674 : (AIR 1998 SC 5) in which the Institute of Engineers came to the conclusion that 13 candidates who had taken the A. M. I. E. Group E_ examination conducted by the Institute of Engineers on 1-6-1990, had adopted the mal-practice on the basis of similarity of answers in the answer books of the 13 candidates and the Supreme Court held that such similarity of answers could be a result of cramming from a common source and cannot per se be evidence of any conspiracy between the crammers to adopt unfair means in the examination. Mr. Nanda next submitted that in the case of Board of Secondary Education, Orissa, Cuttack v. Gayatri Hota (2001) 91 Cut LT 499, this Court held that only because some of the answers, that too, in respect of students who were appearing in the examinations in different halls, a conclusive conclusion cannot be reached that they were involved in mass mal-practice. He also cited the decision of the Allahabad High Court in Harish Chandra Tewari v. The Board of High School and Intermediate Education, Uttar Pradesh, Allahabad, AIR 1981 All 144 on the same point. Mr. Nanda next submitted that the case of Balia Women_s College v. Council of Higher Secondary Education, Orissa (1997) Orissa LR 230, a Division Bench of this Court has held that what could be considered mass copying cannot be laid down with mathematical precision and it has to be decided on the facts and circumstances of each case as to whether there has been mass copying at a particular examination centre. He argued that in the facts and circumstances of the present case when there was no material whatsoever indicating that the candidates resorted to mal-practice or copying at the time of the examination, the Court cannot come to a conclusion that there has been mass copying at the centre in which the petitioners took the examination in Physics Paper-I. He contended that no show cause was issued to the petitioners before the decision was taken by the Council that mass mal-practice has been adopted in the Physics Paper-I examination at the centre in which the petitioners took the examination. Mr. Nanda finally submitted that if the petitioners had resorted to mall mal-practice in Physics Paper-I, the Council would have issued a notification cancelling the Phyiscs Paper-I examination taken by the petitioners. But no such notification has been issued by the Council and instead in the results of the petitioners published on 1-7-2000, the petitioners have been awarded 0_ (zero) mark in Physics Paper-I. Mr. Nanda submitted that it is only in the counter affidavit filed on behalf of the Council and the Controller of Examinations, Council of Higher Secondary Education, Orissa (opp. Parties 1 and 2) that for the first time it has been alleged that the petitioners have resorted to mal-practice in Physics Paper-I and for this reason, they have been all awarded 0_ (zero) mark in the said paper. Mr. Nanda cited the decision of the Supreme Court in Union of India v. Mario Cabrel e Sa, AIR 1982 SC 691 for the proposition that public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order, of what he meant or of what was in his mind, or what he intended to do. According to Mr. Nanda, this is a fit case in which the Court should direct the opp. parties 1 and 2 to declare the marks that the petitioners have obtained in Physics Paper-I.