Full Judgment Text
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PETITIONER:
CHAIRMAN, J&K STATE BOARD OF EDUCATION
Vs.
RESPONDENT:
FEYAZ AHMED MALIK & ORS.
DATE OF JUDGMENT: 28/01/2000
BENCH:
D.P.Mohapatro, M.Jagannadha Rao
JUDGMENT:
MOHAPATRA,J.
Feeling concerned about the menace of mass copying in
examinations the Jammu and Kashmir State Board of School
Education (for short the Board) made certain
amendments to the existing regulations governing
cancellation of examinations on account of mass copying,
outside interference or any other reason which vitiates the
sanctity of examination. By the said amendment regulations
66 (a) and 66(b) were introduced which read as follows:
66(a) Notwithstanding anything contained in these
regulations the Chairman may, on receipt of written report
from Superintendent/s of any authorised State Government
Officer or Officer/s of the Education Department, cancel any
examination/s either partly or wholly for reasons to be
recorded in writing whenever he is of the opinion that any
examination conducted by the Board at any centre has been
vitiated on account of mass copying by examinees or outside
interference or any other reason which deprives
examination/s of its sanctity.
66(b) The Chairman may also for reasons to be recorded
in writing, cancel any examination/s either partly or wholly
on the basis of any report or information from any source
other than those mentioned above including any anonymous
information in case he is satisfied that the sanctity of the
examination/s has been adversely affected on account of mass
copying by the examinees or outside interference at any
examination/s centre/s for any
other reason vitiating the process of conduct of
examination/s.
Provided that the Chairman shall before acting upon
any such information received from any source under clause
66-b above have the same verified by the subject
experts/officers of the Board or any authorised Government
Officer or Officer of the Education Department. The result
of the examination/s of any such centre/s shall remain
withheld pending verification of the above information
(Clause 66-b) received by the Chairman and his final order
thereon.
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Provided further that the cancellation of any
examination/s under 66(a) and 66(b) shall not prevent the
Board from initiating appropriate proceedings against any
student/s who may be reported to have used unfair means by
the concerned examination staff appointed at the centres.
Provided also but subject to the foregoing proviso,
the examinees of any such centre/s shall be allowed to
appear in the subsequent Examination/s conducted by the
Board, if otherwise eligible under rules.
The amending notification was issued by the Secretary
of the Board in terms of the decision taken by the Board at
its
meeting held on 20-1-1993. Subsequently, the Chairman
of the Board issued the notification dated 29-6-1993,
cancelling the entire examination of Higher Secondary
Part-II for regular candidates held in May-June session 1993
in the centres stated therein on account of mass copying and
violation of sanctity of the examination. Being aggrieved
by the said order of the Chairman some candidates who had
appeared in the examination at the centres in question filed
writ petition in the High Court of Jammu & Kashmir. The
High Court by the common judgment rendered on 29-9-1994
allowed all the cases. The High Court struck down certain
provisions of the Notification dated 27-1-1993; quashed the
Notification dated 29-6- 1993 and directed the Board to form
a committee of experts who shall, after examining the answer
scripts, verify as to whether or not the examinees of those
centres resorted to copying on large scale, with the further
direction that the committee shall record their reasons for
coming to the conclusions. This exercise, as directed by
the High Court was to be undertaken within a period of
forty five days from the date of the judgment. The High
Court observed that for the purpose, the Board authorities
can also utilise the services of experts outside the valley
if they so choose. The High Court further ordered that the
Board will after receiving the report from the expert
committee take decision in the case. The Board was given
liberty to formulate fresh rules on the subject; but while
doing so the parameters laid down in the judgment be taken
into consideration. In the judgment, the High Court issued
certain precautions to be taken in particular to the
following effect: Delegation of power of verification
should be made to Body of Experts which can well opinion on
the correctness or otherwise of the report of mass copying
received by the Board;
B. The Board must make endeavour to limit their
prospective sources of information with regard to mass
copying to high ranking officers of high calibre;
C. The machinery of flying squads should be evolved
in such a manner so that they can control the
supervision of the centres falling within their
definite area;
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D. The power of cancellation of results should be
vested in the Board.
In the peculiar circumstances of the case, parties are
left to bear their own costs.
The said judgment is under challenge in these appeals.
From the impugned judgment it appears that the High
Court considering the case of both the parties, formulated
eight questions: 1. Does the Notification dated
January27,1993 suffer from being violative of Art.14 of the
Indian Constitution?
2. Does the Notification arm the Board with powers
which are arbitrary in nature?
3. Does the Notification provide for a different
agency as repository of power so far as cancellation of the
examination is concerned and in doing so does it violate the
scheme of the Act?
4. Does the Notification dated 27-1-1993 suffer from
vagueness?
5. What can be the contours of rules of natural
justice in a matter like mass-copying?
6. Does the Notification dated 27-1-1993 suffer from
an infirmity in so far as it lays down the source from which
the information with regard to mass copying can be received?
7. Is Notification dated 27-1-1993 vitiated if so to
what extent? Consequently is the notification dated June
29, 1993 bad in law?
8. What are the findings of the Court?
The findings of the High Court on the question of
validity of the Notification dated 27-1-1993 which was
discussed under question No.7 afore stated was to the
following effect:
Having discussed the Notification dated 27-1- 1993 in
all its pros and cons we found the same to be ultra vires of
the Art.14 of Constitution of India and the Act, to the
extent indicated below:-
a. That the notification delegates the power of
cancellation of examination to the Chairman whereas the Act
makes this power exercisable by the Board. That upsets the
schemes of the act and makes a delegation of power against
the spirit of the Act;
b. That the Notification does not make any provision
for verification of a report by subject experts when the
same is received in terms of its clause 66(a). That way
while taking action in terms of this sub clause, the
notification laid down the power which is arbitrary in
nature;
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c. That first proviso to the notification is faulty
to the extent that it authorises the Authorised Government
Officer to verify a report received by the Chairman. After
all how can a Tehsildar, a Sub Divisional Magistrate, a
police officer, Additional Deputy Commissioner or Deputy
Commissioner verify the fact whether in a certain paper or
at a certain centre copying was resorted to:
d. Clause (V) of the Definition Chapter of the
notification from sub clause (c) to (e) is struck down as
the same makes the notification inconsistent and vague.
The High Court held that the notification was ultra
vires of Article 14 of Constitution of India and the Jammu &
Kashmir Board of School Education, Act, 1975 (Act No.XXVIII
of 1975) (for short the Act), since under the notification
power of cancellation of examination is delegated to the
Chairman whereas the Act makes this power exercisable by the
Board and secondly, that the notification does not make any
provision for verification of a report by subject experts
when the same is received in terms of clause 66(a) and
therefore, it is arbitrary in nature. Another infirmity
pointed out by the High Court in its judgment is that the
first proviso to the notification is invalid to the extent
that it authorised a Government Officer to verify the report
received by the Chairman. It appears that the High Court
found it difficult to reconcile that a Tehsildar, a sub
Divisional Magistrate, a Police Officer, Additional Deputy
Commissioner or Deputy Commissioner should verify the fact
whether at a certain centre mass copying was resorted to.
The learned counsel for the appellants contended that
the High Court has committed an error in quashing the
notification of the Board and also the notification issued
by the Chairman adding certain clauses in the regulations
vesting the power in the Chairman to cancel the examination
at a centre on being satisfied on the reports received from
the flying squad or other agencies that there was large
scale copying in the examinations at the centre. The
learned counsel further submitted that these regulations
were framed by the Board which is constituted by the
Government with men with considerable experience and who are
well aware of the situation prevailing in the State and
particularly in the educational institutions. The abnormal
situation prevailing in the State on account of which
serious law and order problem is being faced by the
authorities of the Board necessitate vesting of power to
take immediate measures to control the situation in the
examinations.
Before considering the merits of the case it will be
convenient to notice some provisions of the Act. As the
preamble shows the Act was enacted to reform and reorganise
school education in the State and consolidate and amend the
law relating thereto. In Section 3 of the Act it is
mandated that the Government shall, by notification in the
Government Gazette, establish a Board of School Education
for the State to advise the Government on matters of policy
relating to Elementary Education, Secondary Education and
Higher Secondary Education and in respect of matters
specified by or under this Act.
Under Section 4 the Board shall consist of the
Chairman; the Commissioner Education; the Secretary
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Education; the Director School Education (Boys); the
Director School Education (Girls); a representative each of
the two Universities of Kashmir and Jammu respectively, to
be nominated by the concerned University Council; four
school teachers to be nominated by Government, of which two
shall be lady teachers concerned with Girls Education and
two male teachers concerned with Boys Education; An eminent
educationist unconnected with the administration, to be
nominated by the Government; a representative of one of the
Teachers Training Institutions in the State, to be
nominated by the Government; and two persons to be
nominated by Government one lady and one male officer, from
among Principals, Headmasters and Headmistresses of teaching
institutions of the State.
From the provision it is clear that the Board consists
of men from different walks of life, rich in experiences in
the field of education in the State.
Under Section 10 of the Act are enumerated the powers
and functions of the Board. Some of the provisions of the
Section are noted below : (ii) to conduct public
examinations for persons who have pursued the secondary
school and higher secondary (school graduation) school
education courses;
(iii) to publish the results of examinations conducted
by the Board;
(ix) to admit candidates to the examinations of the
Board under the conditions laid down by the Regulations;
(xvii) to take such measures as the Board may think
necessary to raise the standard of the education in the
State and advise the Government on matters of policy
relating to elementary, secondary and higher secondary
education;
(xviii) to frame regulations for carrying out its
purposes;
(xxi) to appoint committees consisting of such members
of the Board and such other persons, if any, as the Board in
each case may deem fit for carrying out specified purposes
and to delegate to these committees, such powers as it may
consider necessary;
(xxv) to delegate such of its powers to any officer or
committee of the Board as it may deem fit, provided that
such delegation is made by a majority of not less than
two-thirds of the members of the Board;
(xxix) to constitute various divisions, units and
committees for the furtherance of its objectives;
In Section 13 it is provided that the Chairman shall
be the Head of the Board and shall ensure that this Act and
the regulations are faithfully observed and shall have all
powers necessary for the purpose. Sub-Section (4) of the
Section lays down that if, in the opinion of the Chairman,
any emergency has arisen which requires that immediate
action should be taken, he shall take such action as he
deems necessary and shall thereafter, report the action
taken to the Board at its next meeting.
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Section 24 which makes provision for appointment and
constitution of committees of the Board provides that the
Board shall appoint a Committee for Examinations.
In Section 25 some of the powers and functions of the
Committees which are enumerated in Clause © are (iv) to
consider and decide the cases relating to misconduct and use
of unfair means in the examination conducted by the Board;
(xiii) to constitute such other sub-committee and
delegate such powers to it as it may consider necessary.
In Section 33 the Board is vested with powers to make
regulations for the purposes of carrying into effect the
provisions of the Act. In sub-Section (2) of the said
section it is provided that in particular and without
prejudice to the generality of the foregoing powers, the
Board may make regulations providing for the following
matters, namely;
(a) the procedure of conduct of business of the Board
and its committees;
(f) the conditions under which the candidates shall be
admitted to the examinations of the Board and shall be
eligible for diplomas and certificates;
(j) the conduct of examinations;
(s) all matters which by this Act are to be or may be
prescribed or provided by regulations.
On a fair reading of the relevant provisions of the
Act as noted above, the position is manifest that the Board
is constituted to advise the State Government in policy
matters relating to education and also to regulate
establishment of educational institutions and to ensure
proper functioning of such institutions. The Board is also
vested with the power to conduct examinations for awarding
certificates and diplomas to successful candidates. Power
is vested in the Board under the Act to ensure proper
conduct of examinations. Under the provisions of the Act,
Board is vested with power to constitute committees for
different purposes, to delegate any of its (Board) functions
in favour of the committee and also to delegate any of its
functions in favour of any officer of the Board. If the
Board in its wisdom considered it advisable to delegate the
power to take action in the matter of mass copying at any
examination centre in favour of its Chairman no exception
can be taken to it on the ground of want of power. In that
case the Chairman acts as a delegate of the Board. Any
action taken or order passed by the Chairman on the strength
of the delegation made by the Board cannot be faulted on the
ground of lack of competence or authority. On careful
consideration of the provisions of the Act and the
regulation of the Board under challenge, we are of the view
that both the Board and its Chairman were within their
powers and authority in issuing the notifications dated
27-1-1993 and 29-6-1993 respectively. The High Court was
clearly in error in quashing the said notifications as
beyond the power of the Board and its authorities.
While judging the authority or otherwise all steps
taken by authorities of the Board to take action against
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candidates taking resort to mass malpractice it should be
borne in mind that the Board is entrusted with the duty of
maintaining higher standards of education and proper conduct
of examinations. It is an expert body consisting of persons
coming from different walks of life who are engaged in or
interested in the field of education and have wide
experience. The decision of such an expert body should be
given due weightage by courts. This Court in the case of
Bihar School Examination Board Vs. Subhash Chandra reported
in AIR 1970 SC 1269 observed: The universities are
responsible for their standards and the conduct of
examinations. The essence of the examinations is that the
worth of every person is appraised without any assistance
from an outside source. If at a centre the whole body of
students receive assistance and manage to secure success in
the neighbourhood of 100% when others at other centres are
successful only at an average of 50%, it is obvious that the
university or the Board must do something in the matter. It
cannot hold a detailed quasi-judicial inquiry with a right
to its alumni to plead and lead evidence etc. before the
results are withheld or the examinations cancelled. If
there is sufficient material on which it can be demonstrated
that the university was right in its conclusion that the
examinations ought to be cancelled then academic standards
require that the universitys appreciation of the problem
must be respected. It would not do for the Court to say
that you should have examined all the candidates or even
their representatives with a view to ascertaining whether
they had received assistance or not. To do this would
encourage indiscipline if not also perjury.
The Allahabad High Court in Rajiv Ratna Shukla and
another vs. University of Allahabad, AIR 1987 Allahabad
208, made the following observations :
Even otherwise the Statute and Ordinances provide for
an authority known as Examination Committee to look into and
decide such matter. As the examination committee after
looking into the report was satisfied that the examinations
were not conducted fairly it would be unfair for this Court
to interfere in writ jurisdiction. It need not be mentioned
that a finding recorded by a Tribunal administrative or
quasi judicial, body is a finding of fact if it is based on
consideration of evidence howsoever meagre and insufficient
it may be. The report of the flying squad coupled with the
statement of Centre Superintendent was available with the
examination committees. Even if another committee or this
Court on the same material could have come to a different
conclusion it could not furnish ground for interference.
This Court cannot substitute its opinion for the opinion of
committee. It could quash the order only if it finds that
it was based on no material or the committee ignored some
material which is considered could have resulted in a
different conclusion. Since the decision of the examination
committee does not suffer from any such error it is
difficult to grant relief to petitioners.
We are not oblivious of grave injustice which might be
done to some of the students, may be even majority, because
of refusal by this Court to interfere but we cannot ignore
the deterioration in the standard of discipline of academic
institutions. How this should be regulated or controlled
should best be left to the discretion of those who are
entrusted with this responsibility. If this Court starts
substituting its own opinion in place of opinion expressed
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by authorities it shall result in chaos. It is well known
that due to conduct of others even innocent persons suffer
but the sufferings of few has to be tolerated in the larger
interest of the society. As is usual in such matters it is
only the few who are responsible but to protect the bona
fide or the genuine if a decision is given which erodes the
discipline and vitiated the atmosphere of the academic
institutions then it is better to restrain and refuse.
As regards demands for enquiry and violation of
principle of natural justice, suffice it to say, that on
academic disciplinary proceedings exception is made where
proceedings are substantially fair or it is impossible to
hold inquiry. Cases of mass copying resulting in
cancellation of the examination fall in this exception. By
its very nature no inquiry could have been made. Decision
in Km. Madhulika Mathurs case (1984 All LJ 618) (FB) has
absolutely no relevance. Concept of reasonable opportunity
assumes primacy where penal action is proposed to
individual. Direction to hold re-examination cannot be put
in that category. It was not like of what happened in
Gorakhpur University where examination was not treated as
ineffective or vitiated. Ratio of that decision is that
what was invalid could not be treated as valid for
punishment without affording opportunity.
Coming to the case on hand, as noted earlier, the High
Court has quashed the notification issued by the Board as
ultra vires of Article 14 of the Constitution and ultra
vires the Act. Further the High Court has discussed at
length how the Board should proceed in the matter and has
issued directions regarding the principles to be followed
and matters to be borne in mind by the Board while framing
Rules and has even issued directions what some of the
provisions of the Rules should be. From the discussions in
the impugned judgment it is clear that the High Court has
taken up on itself the task of finding out a scheme to
tackle the problem of mass malpractice in examination. In
our considered view the approach of the High Court in the
matter is erroneous and this has vitiated the judgment. In
matters concerning campus discipline of educational
institutions and conduct of examinations the duty is
primarily vested in the authorities in-charge of the
institutions. In such matters Court should not try to
substitute its own views in place of the concerned
authorities nor thrust its views on them. That is not to
say that the Court cannot at all interfere with the
decisions of the authorities in such matters. The Court has
undoubtedly the power to intervene to correct any error in
complying with the provisions of the Rules, Regulations or
Notifications and to remedy any manifest injustice being
perpetrated on the candidates. In judging the validity a
notification containing provisions regarding steps to be
taken when a report of mass- malpractice is received it is
to be kept in mind whether the provisions contained in the
notification are relevant for achieving the purpose for
which the notification is issued and if it is found that the
notification is relevant for and has a nexus with the
purpose to be achieved then the notification cannot be said
to be arbitrary and discriminatory. The High Court has
failed to keep this principle in view while considering the
validity of the notification in question. A notification
cannot be struck down as discriminatory merely because in
implementing the same injustice is likely to be suffered by
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some candidates. The impugned judgment does not show that
the decision to strike down the two notifications is based
on grounds sound in law and justified on facts. It is our
considered view that the judgment of the High Court is
unsustainable and has to be quashed.
Before parting with the case we would like to place it
on record that by the notification No.13 B of 1995 dated
23.11.1995 of the Jammu and Kashmir State Board of School
Education, Jammu, a new set of regulations for prevention of
unfair means/misconduct in examination of the Board were
framed. It is stated in the notification, inter alia, that
these regulations have superseded the earlier regulation
Nos. 50 to 66 of J&K Board of Secondary Education
Regulations, 1967 and any other regulations made thereto and
have come into force from the date notified by the Board.
The impugned judgment in this case was not based on
consideration of the notified regulations in 1995. Further,
the incidents giving rise to the controversy raised in the
case took place much before the said regulations were
framed. Therefore, it is not necessary for decision of the
case to consider the provisions of the said regulations.
Accordingly, the appeals are allowed. The impugned
judgment is set aside. It is however, made clear that any
action already taken by the authorities in pursuance of the
impugned judgment concerning any candidate or group of
candidates shall not be disturbed on the basis of this
judgment. There will, however, be no order as to costs.