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PETITIONER: BIHAR SCHOOL EXAMINATION BOARD

       Vs.

RESPONDENT: SUBHAS CHANDRA SINHA, & ORS.

DATE OF JUDGMENT: 10/03/1970

BENCH: HIDAYATULLAH, M. (CJ) BENCH: HIDAYATULLAH, M. (CJ) RAY, A.N. DUA, I.D.

CITATION:  1970 AIR 1269            1970 SCR  (3) 963  1970 SCC  (1) 648  CITATOR INFO :  R          1978 SC 851  (58,69)

ACT: Natural Justice-Evidence of unfair means at examination at a particular  centre apparent-Cancellation of  examination  at the centre Whether notice to examinees necessary. Bihar School Examination Board Act (Bihar Act 7 of 1952)  s. 9 (3) Scope of.

HEADNOTE: Candidates at the Secondary School Examination held in March 1969,  appeared  at  various centers.  The  results  at  all centres  were  published  in July 1969, except  those  at  a particular  centre.  The tabulators at that centre  reported that  the percentage of marks and of  successful  candidates was  unusually high (80% or more).  The matter was  referred to  tile Unfair Means Committee of the Board.  A  comparison of the answer books at that centre showed such a  remarkable agreement  in the answers, that it was obvious  that  unfair means were adopted and that the students had assistance from an  outside source.  The Chairman passed an order on  August 30,  1969,  cancelling  the examination at  the  centre  and allowing  the  examinees at the centre to  reappear  at  the Supplementary  Examination  in September The action  of  the Chairman was placed before the Board and was- approved. The  respondents,  who were the examinees  at  that  centre, moved  the  High  Court under Art. 226 and  the  High  Court quashed  the order of" the Board and ordered publication  of the results of that centre., In appeal to this Court, HELD:(1) There was enough material for the Chairman and  the Board for taking action without any’ complaint from  anybody of the Use of unfair means. [966 E-F] (2)  There was no reason for withholding the publication  of results,  of other centres which were not under  suspension. [966 F] (3) Under s. 9(3) of the Bihar School Examination Board Act. in an emergency, the powers of the Chairman are  co-terminus with  those of the Board and be can take action himself  and later  report it to the Board.  Therefore, the order of  the

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Chairman in the present case was not incompetent. [966  C-F; 967 A] (4) The essence of an examination is that the worth of every is appraised without any assistance from an outside  source. If  at  a  centre  the  whole  body  of  students   received assistance   and  managed  to  source  success  at  a   high percentage, when at other centres, the average was only 50%, the University or the Board could cancel the examination  as a  whole; and if there was -sufficient material on which  it could  be demonstrated that the Authority was right  in  its conclusion that the examination as a whole was vitiated then academic standards require that the Authority’s appreciation of the -problem must be respected.  To make such a  decision depend  upon a full-fledged judicial inquiry would  hold  up the  functioning of such autonomous bodies  as  Universities and School Boards. [967 G-H; 968 E-H] 964 In  the  present case, no principle of natural  justice  was violated  and  there was no need to give  the  examinees  an opportunity to contest the conclusion, because, the evidence was  plain and transparent, and the Board had  not  charged- anyone  with unfair means so that he could claim  to  defend himself.  Therefore, the order of the High Court must be set aside and the respondents-candidates allowed to sit for  the next examination. 1969 B-D] Board   of   High  School  Intermediate  Examination,   U.P. Allahabad  v.  Ghanshyam Das Gupta and Ors. [1962]  Supp.  3 S.C.R. 36, explained..

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2620  of 1969. Appeal  by special leave from the judgment and  order  dated December  8,  1969 of the Patna High Court in  C.W.J.C.  No. 1040 of 1969. Sarjoo  Prasad,  Roy  Paras Nath, S. K. Bisaria  and  S.  S. Jahar, for the appellant. S. N. Prasad, for the,respondents. The Judgment of the Court was delivered by Hidayatullah,  C.J., This is an appeal against the  judgment and  order of the High Court of Patna, December 8,  1969  in Civil  Writ  Jurisdiction  Case No. 1040  of  1969.   It  is brought  to this Court by special leave.  The  appellant  is the  Bihar  School Examination Board through  its  Chairman. The   respondents  are  36  students  of  S.S.H.E.   school, Jagdishpur and H. E. School Malaur, District Shahabad.  They had moved the High Court under Art. 226 of the  Constitution against  the order of the Board cancelling annual  Secondary School  Examination of 1969 in relation to Hanswadih  centre in  Shalibad District.  They had also asked that a  mandamus be  issued  to  the  Board to publish  the  results  of  the students  who appeared at this centre.  The High  Court  has quashed the order of cancellation and directed the Board  to publish the results. Candidates  at  the  Secondary School  Examination  held  in March, 1969 appeared at various centres including  Hanswadih Centre.   The  results were published in July 1969  but  the results of examinees at Hanswadih centre were not  released. On  July  22, 1969 it was reported in a  local  Hindi  daily newspaper  that the results of this centre and  others  were under  consideration.  On August 30, 1969 a communique  from the  Board  appeared in the newspaper Searchlight  that  the examinations  of all subjects held at the  Secondary  School

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Examination of. 1969 at Hanswadih centre were cancelled  and the  reason was that unfair means were practiced on a  large scale  at this Centre.  Examinees were, however, allowed  to appear at the supplementary Secondary School Examination  to be held in September, 1969.  96 5 The  respondents challenged the order of the Board  on  many grounds.  The main grounds were that there was no  complaint of  use of unfair means; that no opportunity had been  given to  the examinees to show cause before passing the order  of cancellation   against  them;  that  as  the   Supplementary Examination was to be held within 10 days of the  communique there  was  no  time for the students  to  prepare  for  the examination;  that  the  cancellation  ought  to  have  been announced  before, publishing the results of  other  centres and lastly that the order passed by the Chairman and not  by the  Board,  was not a valid order under  the  Bihar  School Examination Board Regulations. From  the record of the case and the return which  has  been filed by the Board the following facts appear The  Tabulators of the Hanswadih centres’ reported that  the percentage  of  successful  examinees was  as  high  as  80% whereas the average at the Arrah, Dalippur centres was  only 50%.   They  were  therefore  asked  to  prepare  percentage subject   wise.    All  the   Tabulators   submitted   these precentages.   The matter was referred to the  Unfair  Means Committee of the Board.  The Committee in its turn asked the Moderators  to  look  into all the answer  books  where  the percentage was 80% or more.  They reported unfair means on a mass scale.  The Chairman then passed an order on August 30, 1969  cancelling  the  examination in all  subjects  at  the Hanswadih  Centre allowing the examinees to reappear at  the Supplementary Examination in September, 1969 without payment of  fresh  fees.   The Head Masters  of  the  three  schools concerned  were  also informed by registered  letters.   The action  of the Chairman was placed before the Board  at  its meeting  on  September  9, 1969 and was  approved.   It  was stated in the return that a complaint was received from  one Satnarain Singh of Jagdishpur, who, however, wrote a  letter that he had made no such complaint. The High Court gave a finding that the high percentages  did give  rise to a suspicion that unfair means  were  practised and that the Board was justified in investigating the  case. It  was, however, held that the examinees were not  given  a chance to show cause and the materials on which the Chairman of  the  Board passed his order were not  disclosed  to  the examinees.  The Board had therefore failed to act  according to  the principles of natural justice and the order  of  the Chairman   and/or  the  Board  could  not,   therefore,   be sustained.  The High Court relied upon Board of High  School &  Intermediate Education, U.P., Allahabad v. Ghanshyam  Das Gupta  and  others(1) and Ajit Singh and  others  v.  Ranchi University(2).  It commented upon the short interval bet- (1) [1962] Supp. 3 S.C R. 36.                  (2) A.I.R. 1964 Patna 291. 96 6 ween  the communique and the Supplementary  Examination  and held that the communique should have been issued before  the results had been published.  The High Court also  considered the  competence of the Chairman to pass the order under  the Regulations  but  did  not  decide  it  as  it  reached  the conclusion  that  the  principles of  natural  justice  were violated  and  the orders of the Chairman and/or  the  Board were,  therefore unsustainable.  The order of the Board  was quashed and the publication of the results of the  Hanswadih

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Centre  was ordered.  This Court granted special  leave  and directed  stay  of the operation of the order  of  the  High Court. We  heard this appeal on February 25, 1970.  Since the  next examination at which the respondents can appear is scheduled to  be held in March, we did not wish to delay the  decision of the appeal.  We accordingly passed an order allowing  the appeal and set aside the order of the High Court but  stated that  we  would  give our detailed reasons  later.   We  now proceed to do so. All  the  arguments which were presented in the  High  Court were  repeated  before  us by the learned  counsel  for  the respondents  We find it convenient to consider some of  them before  taking  up  the point on which the  High  Court  has cancelled   the  order  of  the  Board  and   directed   the publication of the results. The  argument  that no one had complained  about  the  exami nation  need  not  detain us.   The  Tabulators  sent  their remarks oil which investigation was made.  The Unfair  Means Committee and the Moderators gave their opinion.  These were sufficient for taking action.  There was no need to wait for a  complaint,  not was a complaint  really  necessary.   The results were withheld so that inquiries could be completed.’ In the meantime the results of the other centres which  were not under suspicion could be declared because in their  case there was no reason to withhold publication. The  contention  that the Board alone and not  the  Chairman could, cancel the examinations need not detain us.  Under S. 6(2)  of the Bihar School Examinations Board Act, the  Board considers,  moderates, determines and publishes the  results of examinations.  It also admits candidates to examinations, disqualifies  them for any reason which it considers  to  be adequate.   Under  -s. 9(3) of the Act in an  emergency  the powers  of  the Chairman are co-terminus with those  of  the Board and he can take action himself and later report it  to the  Board.  In this case action was taken by  the  Chairman and  he  reported it to the Board which fully  endorsed  it. Therefore the cancellation of the examina-  967 tions at Hanswadih Centre must be treated as an order of the Board  and  cannot, therefore, be challenged on  the  ground that it was incompetently made. This  brings us to the crux of the problem.  The High  Court interfered on the ground that natural justice and fair  play were not observed in this case.  This was repeated to us  by the respondents in the appeal.  A mention of fair play  does not  come  very well from the respondents who  were  grossly guilty   of   breach  of  fair  play   themselves   at   the examinations.   Apart from the reports of the  experts,  the results  speak  for themselves.  At the  other  centres  the average  of successful candidates was 50%.  At  this  centre the examinations had the following percentage 1.   Mother Indian Language94 2.   English70 3.   Social Studies95 4.   Everyday Science90 5.   Elementary Mathematics100 6.   Economics & Civics92 7.   Elementary Physiology and Hygiene96 8.   Geography....99 9.   History88 10.  Physics70 11.  Chemistry100 12.  Advance Mathematics99 13.  Sanskrit100

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These  figures  speak for themselves.  However,  to  satisfy ourselves  we ordered that some answer books be brought  for our inspection and many such were produced.  A comparison of the  answer books showed such a remarkable agreement in  the answers  that  no  doubt  was left in  our  minds  that  the students had assistance from an- outside source.   Therefore the  conclusion  that  unfair  means  were...adopted  stands completely vindicated. This is not a case of any 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.  If it is not a question of charging  any one  individually  with  unfair means  but  to  condemn  the examination as ineffective for the purpose it was held, must the  Board  give  an opportunity to all  the  candidates  to represent their cases ? We think not.  It was not  necessary for  the Board to give an opportunity to the  candidates  if the examinations as a whole were being cancelled.  The Board had  not charged any one with unfair means so that he  could claim to defend himself.  The examination 9 68 was  vitiated by adoption of unfair means on a  mass  scale. In these circumstances it would be wrong to insist that  the Board  must  hold  a detailed inquiry into  the  matter  and examine each individual case to satisfy itself which of  the candidates had not adopted unfair means.  The examination as a whole had to go. Reliance  was placed upon Ghanshyam Das Gupta’s case(1),  to which we referred earlier.  There the examination results of three  candidates were cancelled, and this Court  held  that they should have received an opportunity of explaining their conduct.   It  was  also  said that  even,  if  the  inquiry involved  a  large number of persons, the  Committee  should frame  proper regulations for the conduct of such  inquiries but  not  deny the opportunity.  We do not think  that  that case  has any application.  Surely it was not intended  that where  the  examination  as a whole  was  vitiated,  say  by leakage  of papers or by destruction of some of  the  answer books  or by discovery of unfair means practised on  a  vast scale  that  an inquiry would be made giving  a,  chance  to every.  one appearing at that examination to have  his  say? What  the  Court  intended  to lay  down  was  that  if  any particular person was to be proceeded against, he must  have a  proper chance to defend himself and this did not  obviate the  necessity  of  giving an opportunity  even  though  the number  of persons proceeded against was large.   The  Court was  then not considering the right of an examining body  to cancel  its own examination when it was satisfied  that  the examination  was  not  properly conducted  or  that  in  the conduct of the examination the majority of the examinees had not conducted themselves as they should have.  To make  such decisions depend upon a full-fledged judicial inquiry  would hold  up  the  functioning  of  such  autonomous  bodies  as Universities  and  School Board.  While we do  not  wish  to whittle  down the requirements of natural justice  and  fair play  in cases where such requirement may be said to  arise, we  do  not  want that this Court should  be  understood  as having,   stated   that   an  inquiry  with   a   right   to representation  must always precede in every  case,  however different.   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%

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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 [1] [1962] Supp. 3SC.R. 36.  969 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 university’s appreciation of  the  problem must  be  respected.  It would not do for the Court  to  say that  he  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. We  are satisfied that no principle of natural  justice  was violated  in this case.  The Board through its Chairman  and later   itself  reached  the  right  conclusion   that   the examinations at this Centre had been vitiated by  practising unfair  means on a mass scale and the Board-had every  right to cancel the examination and order that a fresh examination be  held.   There  was  no need to  give  the  examinees  an opportunity  of  contesting  this  conclusion  because   the evidence  in the case was perfectly plain  and  transparent. We  therefore  set  aside the order of the  High  Court  and ordered dismissal of the writ petition but made no order  as to costs. V.P.S.                                                Appeal allowed. 97 0