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Case Number

O.J.C No. 5951 of 1996

Attorney(S)

S.D.Das
M.Satapathy
M.S.Panda
G.R.Verma

Judges

S.N Phukan
A. Pasayat, JJ.

Acts

Secondary Education Act, 1982 (in short, the Act)

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Smart Summary

Structured Summary of the Opinion (Pasayat, J.)

Factual and Procedural Background

Thirty-nine candidates who appeared at the Annual +2 Science Examination, 1996 conducted by the Council of Higher Secondary Education, Orissa ("the Council") challenged the Council's action directing cancellation of the Physics Paper II result and awarding 0 marks for that paper to each candidate. By a notification dated 17-6-1996 the Council cancelled examinations in respect of various papers and sittings; the Petitioners were candidates from Dadhipsuan College, Keonjhar (spelt "Kechjhar" in the opinion). The Examination Committee of the Council, after considering records, resolved on 16-6-1996 to cancel the examination for that sitting, to deny the benefit of the "Hard Case Rules" to the candidates and to hold no further re-examination in respect of the paper(s).

The Petitioners asserted the examination had been conducted peacefully and contended the cancellation was mala fide; the Principal filed a counter affidavit supporting the Petitioners. The Council relied on a Flying Squad report alleging mass malpractice, abetting invigilators, discarded incriminating materials outside the hall and burning of printed material in a college building corner. The writ application was heard and decided by the court.

Legal Issues Presented

Whether the Council was justified in cancelling the Physics Paper II examination and awarding 0 marks to the listed candidates based on the material placed before the Examination Committee.
Whether, in the case of alleged mass malpractice, the Council was required to give individual candidates an opportunity of hearing before cancelling the examination or withholding results.
Whether the Examination Committee properly considered and recorded reasons when two contradictory Flying Squad reports, reaching opposite conclusions about the conduct of the examination, were before it.

Arguments of the Parties

Petitioners' Arguments

The examination was conducted peacefully; not a single case of malpractice was detected at the centre.
No incriminating material was seized from any candidate and there was no material linking candidates to the alleged discarded or burning materials.
The Principal's counter affidavit affirmed peaceful conduct and, therefore, the cancellation was mala fide.
The principles of natural justice were violated because no opportunity was granted to any candidate to be heard.

Council's Arguments

Members of a Flying Squad visiting the centre found majority of students involved in malpractice and invigilators abetting such malpractice; incriminating materials were thrown out of windows and some printed materials were burning.
In cases of mass malpractice it is not necessary to give notice to each individual candidate; the Council relied on the Flying Squad report and the supporting records.
The Examination Committee acted under powers conferred by the Orissa Higher Secondary Education Act, 1982 and Regulations, and produced the Flying Squad report and annexed materials before the court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bihar School Examination Board v. Subhas Chandra Sinha, AIR 1970 SC 1269	The principle that in instances of mass malpractice the examining authority need not grant individual opportunities of hearing to every candidate before cancelling examinations or withholding results, and that courts should respect the examining body's appraisal where there is sufficient material.	The court relied on this authority to support the proposition that the Council has power to cancel results in cases of mass malpractice and that it is not required to conduct a detailed quasi-judicial inquiry by giving opportunity to all candidates before cancelling; the case was cited as a guiding statement of position in law on mass malpractice.

Court's Reasoning and Analysis

The court's analysis proceeded in several linked steps, based on the Act and Regulations and the factual record:

Statutory and regulatory framework: The court identified that the Council constitutionally forms Committees under section 21 of the Orissa Higher Secondary Education Act, 1982 and frames Regulations under section 30. Regulation 77 empowers the Examination Committee to consider cases of malpractice and award punishment to candidates concerned.
Nature of "mass copying" and council powers: Noting that "mass copying" is not defined in the statute or Regulations, the court explained it must be understood in common parlance and decided on facts and circumstances. Where a vast majority engage in malpractice, the examining authority may treat the examination as vitiated and refuse to accept results; this power implicitly exists even without a specific rule. The court emphasised that the Council may cancel results in such situations and is not obliged to grant individual hearing to each candidate.
Evidentiary findings from the Flying Squad report: The court recorded that one Flying Squad reported incriminating materials being thrown out of windows and burning of printed materials, and that invigilators abetted malpractice. In light of that report, the court found the Council's decision could not be lightly disturbed and considered the Principal's "clean chit" of no consequence, describing it as a possible facade protecting those responsible.
Conflict between two Flying Squad reports: Crucially, the court observed that two Flying Squads visited the centre at almost the same time and returned diametrically opposite reports — one squad reporting peaceful conduct and another reporting mass malpractice. This factual contradiction made it incumbent on the Examination Committee to state why it accepted one report over the other.
Procedural deficiency identified: The court found the Examination Committee had not recorded reasons explaining why it discarded the report indicating peaceful conduct and accepted the report recommending cancellation. Given the contradictory, near-simultaneous reports, the court considered it appropriate that the Committee reconsider and record reasons for accepting one report and rejecting the other.
Remedial direction and restraint from further adjudication: The court expressly declined to decide which report was factually correct and did not substitute its own view as to the actual state of affairs. Instead, the court directed the Examination Committee to reconsider the reports, record reasons for its conclusion, and thereafter take action against any erring members of the Flying Squad who furnished incorrect reports.

The court repeatedly cautioned that Flying Squad members, as experienced teachers, must make fair, unbiased, and accurate on-the-spot reports; false or inaccurate reports entail dereliction of duty and must be dealt with seriously.

Holding and Implications

Core Ruling: Writ application allowed in part.

Direct consequences ordered by the court:

The Examination Committee was directed to reconsider the two contradictory Flying Squad reports afresh and record reasons for accepting one report and rejecting the other within one month from the date of the order.
After recording reasons and reaching a fresh decision, the Examination Committee was to take necessary action against members of the Flying Squad who were found to have given an incorrect report.

Additional remarks in the opinion:

The court did not express any opinion on which of the conflicting reports was factually correct.
The court indicated that, as a general principle, where sufficient material exists to demonstrate that cancellation was justified, academic standards require respect for the Council's appreciation; however, here procedural shortcomings in the Committee's decision-making (failure to record reasons in face of contradictory reports) required judicial intervention limited to directing fresh consideration.
The opinion records that S.N. Phukan, C.J., concurred: "I agree." The cumulative order was "Petition allowed in part."

This summary is based exclusively on the information contained in the provided opinion and does not add or infer facts beyond that text.

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Tushar Ranjan Sahu And 38 Others v. Council Of Higher Secondary Education, Orissa And Others Opposite Parties.

Pasayat, J.:— Thirty-nine candidates, who appeared at the Annual +2 Science Examination of 1996 conducted by the Council of Higher Secondary Education. Orissa (in short, ‘the Council’) have assailed action of Council in directing cancellation of result so far as physics paper II is concerned, and award of 0 mark in respect of said paper to each candidate.

2. By the impugned notification dt. 17-6-1996 the Council has notified cancellation of examination in respect of various papers in various sittings of different colleges. Petitioners appeared as candidates of Dadhipsuan College. Puromunja in the district of Kechjhar. The examination on 2-4-1996 in respect of Physics Paper II was held in the first sitting of the day. Examination Committee of Council took note of available records on the conduct of examination, and was of the view that the examination was not conducted as per the Rules of the Council. In exercise of the powers vested in the Examination Committee by the Orissa Higher Secondary Education Act, 1982 (in short, ‘the Act’) and the Regulations framed thereunder, resolution was passed on 16-6-1996 for cancellation of the examination. It was further resolved that the benefit of Hard Case Rules was not to be extended to the candidates, and no further examination in respect of the paper/papers was to be held.

3. Petitioners have emphatically stated that the examination was conducted in most peaceful manner. Not even a single case of malpractice was detected, and therefore, the cancellation is mala fide. Their stand is supported by the Principal of the College, who has filed a counter affidavit.

4. Council has taken a positive stand in its counter affidavit that the Members of the Flying Squad who had visited the examination centre at the time of conduct of examination found that majority of the students were involved in malpractice, the invigilators were abettors to such malpractice. When the Flying Squad arrived at the College, the incriminating materials were thrown away through the windows, and were lying scattered inside and near the examination hall. Some printed materials were also found burning at a corner of half-constructed room of the college building.

5. Mr. M.S Panda, learned counsel appearing for the petitioners submitted that there is no material whatsoever to link the candidates with the alleged materials found inside or outside the hall or being burnt. No incriminating material was seized from the possession of any candidate. Since the Principal has himself stated that the examination was being conducted in peaceful manner, report of the Flying Squad is found on incorrect materials and the cancellation is improper. It is further submitted that the principles of natural justice have been violated as no opportunity was granted to any candidate for having his or her say in the matter.

Mr. S.D Das, learned counsel for Council, however, submitted that in case of mass malpractice it is not a requirement to give notice to any individual candidate. Report of the Flying Squad amply reveals disorderly manner in which the examination was being conducted with active participation of invigilators. He produced before us the records containing the report of the Flying Squad and the materials annexed thereto.

6. According to S. 21 of the Act, the Council shall constitute different Committees, and one such Committee constituted is the Examination Committee. Regulations are framed under S. 30 of the Act which inter alia deal with the powers and duties of the Committees specified in S. 21. Regulation 77 of the Orissa Higher Secondary Education Regulations, 1982 (in short, ‘the Regulations’) deals with the powers of the Examination Committee. Clause (vii) thereof provides that the Examination Committee will consider the cases of malpractice and award of punishment to the candidates concerned.

7. Mass copying has not been defined in the Act or the Regulations. It has, therefore, to be understood in its common parlance. What could be considered mass copying cannot be laid down with mathematical precision. It has to vary and has to be decided on facts and circumstances of each case. Generally, it would be a case of copying by a vast majority or on a massive scale or in such large proportion that it was not possible to cheek it. It is the unwritten rule of any examination that it must be conducted fairly which would include the concept that the examinees must take the examination fairly. Adoption of unfair practice either individually or as mass is antithesis of fairness of the examination, and even in the absence of any specific rule for the purpose, the examining body has the power not to accept the results of the examination, and take action either against an individual or against all the examinees as a whole in case of mass involvement in unfair means. The rule is implicit in all examinations and hence the Council or the Committee is within its right to cancel the examination if such a rule is violated. In a case of mass malpractice, where large number of candidates resort to malpractice, it is not a case of particular individual who is being charged with adoption of unfair means, but of the conduct of all the examinees or at least a vast majority of them at a particular centre. It is not a question of charging any one individual with unfair means, but to condemn the examination as ineffective for the purpose it was held. The council is not required to grant any opportunity to all the candidates to present their case. The Council does not charge any one with unfair means so that he could claim to defend himself. The examination itself was vitiated by adoption of unfair means at a mass scale. The Examination Committee is responsible for fair conduct of examination. The essense of examination is that the worth of every candidate appearing therein without any assistance from outside source is appraised. If at a particular centre the whole body of students receive assistance and manage to secure success, it is obvious that the Council cannot remain as a silent spectator. 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 Council was right in its conclusion that the examinations ought to be cancelled then academic standards require that the Council's appreciation of the problem must be respected. It would not be for the Court to inquire in such matters. The Court cannot ask the Council to grant opportunity to all the candidates or their representatives with a view to ascertain whether they had received assistance from any outside source. That would encourage indiscipline. The position was succinctly stated by the Apex Court in The Bihar School Examination Board v. Subhas Chandra Sinha, AIR 1970 SC 1269.

The falling standards of education are resultant of unfair means being adopted at the examinations. The real worth of a student is never tested in the process. He who deserves five marks get 85 marks because of assistance received from outside source and the unfair means adopted. The degree or diploma or certificate is not received in its true sense and is tainted with the vice of adopting unfair means.

8. In the case at hand, we find from the report that the Members of the Flying Squad arrived at the examination centre at 10.15 a.m Relevant portion of their report reads as follows:

“…….. As the Flying Squad was arriving the college, incriminating materials were thrown away through the windows, which were lying scattered outside. Some printed materials were also found burning at the corner of half constructed building.”

It further indicated that the invigilators were abettors to the malpractice. Flying Squad had recommended cancellation of the sitting on being satisfied that the examination was not conducted as required in law. This being the background, we have no hesitation in holding that the decision of the Council cannot in any manner be termed to be vulnerable. The clean chit given to the candidates by the Principal in his counter affidavit is really of no consequence. The report itself shows that the invigilators were abettors to the adoption of malpractice. The counter affidavit of the Principal obviously is a facade to protect interest of those who were themselves responsible for infraction. In such circumstances, we could have normally declined to interfere. But certain facts have come to light on perusal of records produced before us by learned counsel for the council.

9. We find from the records that on the same day, i.e, 2-4-1996 two flying squad visited the centre almost at the same time. First squad consisted of three members, namely. Shri J. Sahu. Reader in History, Shri A.K Mohanty. Reader in English and Shri R.M Patra, Lecturer in Economics, who supervised the conduct of examination between 9.00 a.m and 11.30 a.m They observed that the examination was being conducted in peaceful manner without any infraction. Three other members of another flying squad supervised the conduct of examination between 10.15 a.m and 11 a.m Their observation has already been quoted above. It is strange that the two sets of members of the flying squads arrived at diametrically opposite conclusions about the manner of conduct of examination.

10. The moot question is whether the Examination Committee considered the two reports pragmatically. It was urged by Mr. S.D Das, learned counsel appearing for the Council that on consideration of both the reports, the report suggesting cancellation was accepted. The minutes of the proceedings of the Examination Committee were produced before us. The Examination Committee has observed that it has considered the reports and was of the view that cancellation of examination of 39 numbers of listed centres was warranted. We are not concerned with the other reports. The case at hand has some distinguishing features. Two reports as indicated above were contradictory contextually. The reports related to almost simultaneous periods of visit. It would have been appropriate, had the Examination Committee indicated the reasons as to why it discarded the report observing that the examination was being conducted in peaceful manner. That having not been done, it would be appropriate for the Examination Committee to consider the reports afresh and take a fresh decision. We make it clear that we have not expressed any opinion about acceptability of any of the reports. It is startling that the, reports are so diametrically opposite. Only one of the reports can be said to be reflecting the actual state of affairs, and not both. If there was no adoption of unfair means, the report indicating to the contrary has serious consequences. If on the other hand there was adoption of unfair means, and the report shows that everything was in order, it is equally objectionable as it gives certificate of proper conduct to an examination which is not so. The Examination Committee would to well to make an in depth study of the two reports, find out the actual position and take stringent action against the members of the flying squad who have given an incorrect report. Members of flying squad are expected to make an on the spot study of the situation in an examination hall. Such members are normally experienced teachers. Their reports is required to be fair, unbiased and reflective of accurate fact situation. Serious consequences flow if the report indicates adoption of unfair means. Care and caution should be taken to submit a factually correct report. Any departure would be dereliction of duty breach of confidence imposed and has to be seriously viewed. No laxity in such matters is warranted.

11. In conclusion, we direct the Examination Committee to take a fresh decision within a month from today, and record reasons as regards acceptability of one of the reports. Thereafter, necessary action shall be taken against the erring members.

The writ application is allowed to the extent indicated above.

S.N Phukan, C.J 12.:— I agree.

Petition allowed in part.

Tushar Ranjan Sahu A... v. Council Of Higher Se...