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PETITIONER: RAJESH KUMAR & ANR.

       Vs.

RESPONDENT: THE INSTITUTE OF ENGINEERS (INDIA)

DATE OF JUDGMENT:       25/07/1997

BENCH: M. M. PUNCHHI, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R Leave granted      The two  appellants,  Rajesh  Kumar  and  Harbir  Singh appeared in  the AIME Group ‘B’ examination conducted by the respondent-Institute of  Engineers (India)  on June 1, 1990. Their centre  was at  Tagore  School,  Karnal.  No  case  of copying or  any malpractice  was ever noticed or reported by the supervisory  staff attending  the examination. Somewhere in October  1990, the  two applicants along with in 11 other examiners received  identical notices  form the  respondent- Institute seeking  their explanation  on the  allegations of copying and  malpractice mentioned  therein. The contents of the notice  were that  the examiner  evaluating  the  answer books of  the examinees  had reported  that 13  examined bad resorted to  copying in  as much as their answers to some of the questions  in the  examination were exactly the some and that on  that basis  it was thought that the examinees their replies to  the allegations  stating that  similarity in the answer books  could be  as a  result of the preparation form the came  text books as available in the market and that the question of copying could not arise as would he evident from the sitting  plan of  the examinees.  Further, it was stated that none  of them  was close  to another  and all  were  in different  rooms.   The  paper  in  question  was  known  as ‘Quantity, Surveying  and Valuation’ - Second B. The plea of the examinees  was  negatived  by  the  Institute  and  each examinees was  conveyed that his results for the examination of the  year 1990  stood canceled  and further debarring him form appearing in the two immediately following examinations of the  Institute i.e. upto the summer of the year 1991, for adopting unfair means and malpractices.      Aggrieved, the  two appellants  joining one  Kuldip Raj put to  challenge the  order of  the Institute-respondent by means of  Civil Writ  Petition No.4259 of 1991 in the Punjab and Haryana  High Court  which when placed before a Division Bench of  that Court,  was  permitted  to  be  withdrawn  on November 19,1991  with permission  to  file  a  civil  suit. Thereupon, those three writ petitioners approached the Civil Court seeking  to annul  the offending communication and for mandatory injunction  requiring  the  Institute  to  declare

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their results.  The Institute  contested the suit. Requisite issues were  framed. On  consideration of  the pleadings and the evidences  led by  the parties,  the trial Court decreed the  suit   holding  that  the  non-speaking  order  of  the Institute, bereft  of any  reason, and  the conclusion  that plaintiffs were  guilty of  unfair means,  was  without  any basic. Direction  was given  to the Institute to declare the results of  the plaintiffs. The first appellate the judgment and decree of the trial Court dismissing the suit in holding that when  the plaintiff  had  appeared  in  the  subsequent examinations after  the period  when their  disqualification was ever, no purpose would be served in decreeing the suit.      In second  appeal before the High Court, the plaintiffs emerged successful  for  they  were  able  to  convince  the learned Single  Judge of  that  Court  about  the  prejudice caused to their case when the answer books pertaining to the plaintiffs, as  placed before  the learned Single Judge, had not been  put to  the plaintiffs in the inquiry and secondly their sitting  pattern/plan was  such that  the question  of copying could  never arise. Lastly, it was submitted that an extraneous factor  had crent  in the decision making process regarding the  plaintiffs having  appeared  in  examinations subsequent to  the period  of disqualification,  without any basis as it was claimed that none of the plaintiffs had ever sat in  any subsequent  examination. In  this situation, the High Court  allowed the  appeal, set aside the decree passed by the  first appellate  court below directing the Institute to  re-decide   the  matter   after  affording  an  adequate opportunity of  bearing to the plaintiffs disclosing to them the material  which was  against them  and to consider their plea. The  Institute was further directed to pass a detailed speaking order in accordance with law.      When the  matter was  thus taken  by the  Institute  in compliance with  the orders  of the  learned  Single  Judge, notices were  sent to  the  two  appellants  as  also  their companion writ  petitioner. The  latter  seemingly  did  not avail of  the opportunity  but the  two appellants did. They appeared at  Calcutta and attempted to satisfy the Institute about the  doubts raised.  The Institute surprisingly took a somersault in  putting aside  all the  material,  which  was expected to  be used  against the  appellants material which was relevant to the examination such as answer hooks and the sitting plan  etc. Instead,  the Institute  opted for  a new technique to  test the  ability of  the appellant,  which is evident from the identical orders passed in relation to both the appellants extracted below :      "The  candidate  informed  that  he      consulted the  book "Estimating and      Costing" by Prof R.N. Dutta for the      purpose of  preparation.  The  book      was obtained  from the  Library  of      the Institution at the Headquarters      and  the   members  of  Examination      Disciplinary  Committee   and   the      Secretary   &    Director   General      scrutinised the  answers written by      the candidate  in his  answer  book      with reference to the said book and      observed that  substantial  portion      of  the   answers  written  by  the      candidate were  exactly the same as      the text  printed in  the book. The      candidate was asked to take time to      read any  small paragraph  form the      book  and  cram  it  for  identical

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    reproduction  in  presence  of  the      Secretary  &  Director  General  to      justify   his    claim   of   exact      reproduction of  text of  the  said      book for various answers during the      Examination. The  candidate  failed      to employ with the request."      The Institute  further observed  as      follows      "The members  of EDC  and  the  SDG      also  observed   that   report   of      adoption of similar malpractices by      as may  as 13 candidates, including      this candidate,  of the came Centre      in the  same subject  was  received      from  the  Examiner  and  the  EDC,      after the  scrutiny of  the  cases,      individually   awarded   the   same      punishment debarring all of them to      appear     upto     Summer     1991      Examination.   All,   except   this      candidate  and   two  others,   had      accepted  the   decision   of   the      Institution."      The afore communication was put to challenge by the two appellants before  the Punjab and Haryana High Court through Writ Petition  No. 9699  of 1996.  This time,  the  Division Bench of  the High  Court, without  referring to the mandate and the parameters of the inquiry laid by the learned Single Judge, given  in the  decision in the regular second appeal, dismissed the  writ petition  in limine  on 10.7.96  holding that the  procedure adopted  by the  institute could  not be termed as  arbitrary or  unfair warranting  interference  by that Court. This order is put to challenge in this appeal.      The resume  of the  afore detailed  facts gives a clear insight to the minds of the members of the Institute who sat in judgment  on the  fate of  the appellants.  The doubts as expressed by  the learned  Single Judge of the High Court in the  Regular   Second  Appeal  pertaining  to  the  material available  and   the  sitting  pattern  and  also  that  the appellants had  never set  in  the  subsequent  examinations after  the   period  of   disqualification  was   over  were conveniently disregarded  by the  Institute.  It  would,  in these circumstances,  be not  wrong to  assume that  had the member of  the Institute gone into grins with that material, the result  would have  gone in  favour of  the  appellants. Conveniently, other  factors were  brought in replacement to conquer the  field in  asmuchas the appellants were put to a creaming test,  there and  then  in  order  to  judge  their capability of  memory retention  in a matter of minutes. All literate men have been students at a given point of time but have not  been crammers. These who cram do not achieve their goal by  a single reading. It is a ceaseless effort for days and days till the desired result is achieved. Crammers inter so do not have any nexus with each other. The text of a book as the common source for cramming establishes no connection. That per-se cannot be evidence of any conspiracy between the crammers to  adopt unfair  means in  the examination  unless there be  material to  show that  was copying  of the answer books,  descended  from  the  answer  book  of  one  of  the candidates, or directly form the book leading to the copying by  others.  The  overall  consideration  of  the  Institute reflected that its members thought that they would be put to an embarrassment  if the  plea of the two appellants were to be accepted  and therefore,  thought of  declining relief to

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the appellants.  Such result  cannot be  permitted to follow from the  deliberation of  the Institute. In the interest of fair play this court would thus step in to give a corrective dose      For the  afore reasons, we set aside the impugned order of the High Court and allow the appeal of the two appellants by quashing  the impugned  communication dated  11, 12, 1990 (Annexure  P-6)  ordering  closure  of  the  matter  in  the interests of  justice by  holding that  the  orders  of  the Institute in  cancelling  the  results  of  the  appellants’ examination  and   disqualifying  them  for  two  succeeding examinations,  were   in  excess  of  jurisdiction  and  are therefore, quashed,  ordering  the  respondent-Institute  to declare the result of the appellants forthwith.      With this  end result,  the appeal  would stand allowed with costs.