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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.