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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No. 1727 OF 2016

Nidhi Kaim … Appellant

Versus

State of Madhya Pradesh & Others Etc. … Respondents

WITH

CIVIL  APPEAL  NOs.1720-1724,  1726,  1728,  1729,  1733, 1734-1741, 1742-1749, 1750-1751, 1752, 1753-1758, 1847-1852, 1759-1764, 1765, 1766, 1767-1768, 1769-1774, 1776-1787, 1788, 1789-1791, 1792-1794, 1795-1798, 1799-1805, 1806-1808, 1809, 1810-1811, 1812, 1813-1814, 1815, 1816-1817, 1818-1819, 1820, 1821, 1822-1824, 1825, 1826, 1827, 1828, 1830, 1831-1832, 1833, 1834,  1835,  1836-1837,  1838,  1839,  1840,  1841,  1842,  1843, 1844, 1845 & 1846 OF 2016.

J U D G M E N T  

Chelameswar, J.

1. The  Madhya  Pradesh  Vyavsayik  Pariksha  Mandal  Adhiniyam,

2007  [The  Madhya  Pradesh  Professional  Examination  Board  Act,

2007] (hereinafter referred to as ‘the Act’) came into force on 15th

October  2007.   Section  31 of  the  said  Act  contemplates 1

 Section 3. Incorporation of the Board. – (1) The State Government shall establish

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establishment of a Board (a body corporate) by a notification of the

State  Government.  Admittedly,  as  on  today,  the  notification

constituting the Board has not been issued, but a body constituted

earlier  under  various  executive  orders2 of  the  State  of  Madhya

Pradesh (hereinafter referred to as “the BOARD”) continues to be in

existence.  It carries on various activities.   

by a notification, a Board to be called the Madhya Pradesh Professional Examination Board with effect from such date as may be specified in the notification.

(2)   The  Board  shall  be  a  body  corporate  by  the  name  of  the  Madhya  Pradesh Professional Examination Board and shall have perpetual succession and a common seal with power to acquire and hold property, both movable and immovable and shall  have power to transfer  any  property  held by  it  and to  contract  and do all  other  things  necessary  for  the purposes of its constitution and may sue or be sued in its corporate name.  2

 For the details of the executive orders,  See Ku. Pratibha Singh (Minor) v. The State of Madhya Pradesh & Others, 2014 (III) MPJR 178  

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2.  One of the objectives of the statutory Board specified

under Section 10 is as follows:  

“(a)  to  conduct  entrance  examinations  for  admission  to various professional and other educational institutions on the  request  of  the  State  Government,  other  State Governments,  Central  Government,  Universities  and national or state level institutions.”

3. It appears that admissions to various medical colleges

either privately managed or managed by the government in

the State of Madhya Pradesh are regulated by a common

entrance examination [called as “Pre-Medical Entrance Test

(PMT)].  Such an examination was conducted annually by the

BOARD.  The Act came to be passed with a view to create a

statutory basis for the BOARD which, inter alia, is required to

conduct entrance examinations for admissions into various

educational  institutions  including  medical  colleges.

Unfortunately, the notification contemplated under Section 3

never came to be issued but everybody in the administration

of the State of Madhya Pradesh proceeded all these years on

an  assumption  that  the  BOARD  (a  mythical  beast)  would

somehow became the body contemplated under Section 3 of

the Act.  This aspect of the matter is one of the issues in the

case;  and,  therefore,  I  shall  deal  with  it  later  in  this 3

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judgment.   

4. Entrance  examination  for  admissions  into  medical

colleges  for  the  year  2013  was  conducted  by  the

abovementioned BOARD on 7.7.2013.  On the same day, a

crime came to be registered in FIR No.539 of 2013 alleging

commission  of  various  offences  pursuant  to  a  large  scale

conspiracy in the context of the examination.   The FIR came

to be registered against several persons including students

and some employees of the State of Madhya Pradesh who

were working in the administration of the BOARD.   

5. The Chairman of the BOARD also caused some enquiry3

into the allegations.  By  two  orders,  dated  9.10.2013

and 6.12.2013, the BOARD cancelled the results of 345 and

70 candidates  respectively.  As  a  consequence,  admissions

granted to the abovementioned students in various medical

colleges stood cancelled.  Challenging those orders, a batch

3

The nature of the enquiry was discussed by Madhya Pradesh High Court in great detail in the judgment of  Ku. Pratibha Singh (Minor) v. The State of Madhya Pradesh & Others, 2014 (III) MPJR 178  

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of writ petitions came to be filed before the Madhya Pradesh

High Court.  All the said writ petitions were dismissed by an

order dated 11.4.2014 of the Division Bench of the Madhya

Pradesh  High  Court  in  Ku.  Pratibha  Singh  v. The  State  of

Madhya  Pradesh  &  Others.   The  correctness  of  the  said

judgment was questioned in SLP (C) Nos.13629-630 of 2014

(Pooja Yadav & Another v. State of M.P. & Others) and 16257 of

2014  (Sumit  Sinha  v. State  of  M.P.  &  Others),  which  were

dismissed  by  orders  dated  19.5.2014  and  08.08.2014

respectively confirming the judgment of the High Court.

6. Parallelly,  the  police  investigated  the  crime  (FIR  No.

539/2013) mentioned supra.   Some officers of  the BOARD

and others were arrested. Pursuant to information gathered

during  the  course  of  the  investigation  of  the

abovementioned crime,  the  investigating agency sent  two

letters dated 23.10.2013 and 31.12.20134 to the BOARD.  It 4

 (a) In reference to above subject, it is submitted that on conducting inquiry from the  accused arrested in  the  cases registered in  connection  with  referenced examination and other examinations in S.T.F., M.P. Bhopal and even in so far as the accused arrested by your office have stated regarding forgery in these examination. Accused Jagdish Sagar and Sanjiv Shilpkar arrested in the S.T.F. Crime No.12/2013, under  Section  420,  467,  468,  471,  120  B  I.P.C.,  3(D)1,  2/4  M.P.  Recogniltion Examination Act, 1937 have stated regarding forgery for setting of equal roll number in P.M.T. Examination 2012 and 2013 and for setting of equal roll  numbers in the P.M.T. Examination 2013 in collusion with Officers of Vyapam namely Nitin Mohindra and Others.  

Therefore, it is requested to provide report after conducting investigation in accordance  with  law  as  conducted  in  connection  P.M.T.  Examination  2013,  P.M.T.

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is informed at the bar that the  first of the abovementioned

letters informed the BOARD about some irregularities in the

conduct of the PMT of 2012, and the second called upon the

BOARD  to  cause  an  inquiry  into  and  provide  certain

information with  regard to the PMTs of  the years 2009 to

2011.  On receipt of the said letters, the BOARD decided to

enquire into the PMT process of not only the years 2009 to

2012 but also the year 2008.

7. The enquiry was conducted.  The pattern of the enquiry

is  similar  to  the  one  conducted  concerning  PMT  2013.

Based  on  the  enquiry  reports,  the  Board  came  to  two

conclusions: (i) there was a tampering with the examination

process in each one of the abovementioned five years; and

(ii) the appellants as well as some others students5 resorted

to  unfair  means  at  the  said  examinations.   They  were

Examination 2012, in the referenced P.M.T. Examination 2009, 2010, 2011, so that, action would be taken in accordance with law in connection with above.   – relevant portion of the letter dated 31.12.2013

(b)  We understand that the original letter is in vernacular and the above is a Translation placed on record before us.”

5 Year Number of Student 2012 319 2011 98 2010 90 2009 85 2008 42

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beneficiaries  of  such  tampered  examination  process.  The

BOARD,  therefore,  cancelled  the  admissions  of  the

appellants and some others. Aggrieved, a large number of

students, whose admissions were cancelled, approached the

Madhya Pradesh High Court by filing writ petitions.  Majority

of  the writ  petitions  came to  be dismissed by a  common

judgment  dated  24.09.2014.  The  remaining  writ  petitions

came to be dismissed by another common judgment dated

7.10.2014 in  the  light  of  the judgment  dated 24.09.2014.

The instant appeals arise out of the said judgments preferred

by some of the unsuccessful petitioners therein (students).

8. Before  I  proceed  to  examine  the  correctness  of  the

impugned  judgments,  I  think  it  would  be  profitable  to

describe broadly the examination process (with respect  to

which there is no dispute) conducted by the BOARD and also

the nature of the allegations which formed the basis for the

cancellation of the admissions of the various students.

THE PROCESS:

9. Each year the BOARD conducted a common entrance

examination (for example PMT 2013) for all students aspiring

to secure admission to various medical colleges in the State 7

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of Madhya Pradesh.  Each year a large number of students

(in tens of  thousands)6 not  only from various parts of  the

State of Madhya Pradesh but also from other States appear

for  such  examination.   The  examination  is  conducted  in

different  cities/towns  of  Madhya  Pradesh  and  in  each

city/town there is one or more identified examination centres

depending upon the number of students choosing to appear

for the PMT from that city/town.  These examination centres

are usually located in existing educational institutions in the

city/town.   

10. Each  of  the  students  applying  is  initially  given  a

registration  number  and  is  subsequently  allotted  a  Roll

number.  It is the agreed case of all the parties that each of

the  students  is  entitled  to  choose  a  city/town  where  the

student would like to take the examination.  Depending on

the choice of the city/town in which the student wishes to

take  the  examination,  students  are  allotted  a  specified

examination centre or centres (depending upon the number

6 Year Total number of students who appeared in the PMT 2008 38,378 2009 29,162 2010 26,711 2011 26,116 2012 38,671

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of  students)  in  the  city/town,  as  the  case  may  be.   The

process  of  generating  roll  numbers  and  allotment  of  the

centre of examination to each one of the students is done by

a computerised process.   Such a process is  designed and

applied by an in-house computer expert body of the BOARD.

11. According to the BOARD, such a computerised process

of  generating  roll  numbers  and  allotting  the  students  to

various  examination  centres  in  the  State  is  by  following

some logical pattern.   The pattern may vary from year to

year  and  need  not  be  the  same  for  all  the  years.   For

example, in a particular year, the allotment of roll numbers

could  be  in  the  alphabetical  order  of  the  names  of  the

students, whereas in another the same could be on the basis

of the date of the application of the student.  (I make it clear

that I am not examining the exact logic applied in each of

these years.  It was only meant to illustrate the possibilities

of the variations in the pattern.)  What is important is the

existence of a pattern and logic underlying the generation

and allotment of roll  numbers and examination centres to

the  students.   The  existence  of  such  pattern  is  of  great

significance and relevance in the instant case.

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12. Admittedly, there was no show cause notice to any one

of  the  students  before  cancelling  their  admissions.   No

speaking  order  indicating  the  reasons  which  formed  the

basis  for  the  cancellation  of  the  admissions  was  either

passed or  served on any one of  the appellants.   Reasons

were spelt out for the first time in the High Court.  It appears

from  the  impugned  judgment  and  the  submissions  made

before  us  that  respondents  relied  upon  circumstantial

evidence7 to reach the two conclusions referred to in para 7 7

. The Circumstances are:-

(i) with respect to each of the five years in question, a definite pattern was  followed  by  the  BOARD  in  allotment  of  Roll  numbers  as  well  as examination centres.  But, it is detected on enquiry that allotment of both the Roll number and the examination centre with respect to some of the students was in deviation from the pattern adopted for the year;

(ii) Such deviations with reference to several centres occurred in pairs. The logical pattern employed for the generation of Roll numbers was broken with respect  to  some  pairs  of  students.   They  were  allotted  sequential  Roll numbers,  though they  could  not  have been allotted  those numbers  if  the logical pattern were followed.  Further, such pairs of students were allotted examination Centres which they could not have been allotted having regard to Roll numbers allotted to them, and the pattern of the Roll numbers allotted to the particular examination Centre.  

(iii) in such pairs, once again there is a pattern i.e. the more accomplished student is made to sit  in front of  the other of  the pair  (referred to in the impugned  judgment  as  “Scorer”  and  “beneficiary”  respectively).  Such  an arrangement was made in order to enable the “beneficiary” to copy from the “scorer”;

(iv) with reference to most of the identified pairs, the candidates not only got substantially similar (if not identical) marks, but also their answers, both correct and incorrect, with reference to each one of the questions answered by them matched to a substantial extent.

(v) in most of the cases of the identified pairs, the ‘scorer’ did not belong to Madhya Pradesh.

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(supra).

13. The case of the appellants before the High Court was

that:

(i) the impugned orders cancelling admission of the

appellants were passed in flagrant violation of the

principles  of  natural  justice.   None  of  the

appellants had been given either -  

a show cause notice indicating the allegations on the basis of which their admissions were proposed to be cancelled;  

or

any order in writing containing the reasons which formed  the  basis  for  the  orders  cancelling  the admissions.

Therefore,  the  appellants  are  unaware  of  the

reasons which prompted respondents to cancel the

admission  of  the  appellants.  Consequently,

appellants  had  no  opportunity  to  defend

themselves  against  the  impugned  action  of

cancellation  of  their  admissions.   The  entire

exercise was undertaken behind the back of the

(vi) Such ‘scorers’  in most of the cases though secured sufficiently high marks in the PMT, did not take admission in any one of the medical colleges of Madhya Pradesh. The respondents, therefore, believe that the ‘scorers’ were not genuinely interested in securing admission in any medical college of MP and they appeared in the examination only to facilitate the ‘beneficiary’ to obtain good marks to enable the beneficiary to secure admission.    

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appellants.   Therefore  the  action  of  the

respondents  is  illegal  and  void  ab  initio on  the

ground of non-compliance with the requirement of

the principles of natural justice, more particularly

the rule of audi alteram partem.

(ii) that the circumstances (mentioned in the Footnote

No.7)  which  formed  the  basis  for  the  twin

conclusions of the respondents, that there was a

tampering with the examination process (in each

of the years in question) and that the appellants

and  others  are  beneficiaries  of  such  tampered

examination  process  are  without  any  proven

factual basis and are pure conjunctures. (Certain

ancillary submissions made in this regard will be

considered later in this judgment).

(iii) The appellants also argued very forcefully that the

impugned  action  against  the  appellants  who

belong  to  different  batches  (commencing  from

2008) is unsustainable in view of the long lapse of

time between the date of the alleged malpractice

committed by the appellants and the date of the 12

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action by the respondents.  It is submitted that the

impugned  action  is  arbitrary  and  violative  of

Article 14 of the Constitution because the penalty

is  disproportionate  to  the  alleged  misconduct  of

the appellants.

14. On  the  other  hand,  the  defence  of  the  respondent

authorities has been:  

(i) it is a case of “mass copying” similar to a situation

obtaining in  The Bihar School Examination Board v.

Subhas Chandra  Sinha & Others, (1970)  1  SCC 648

(hereinafter  referred  to  as  Sinha’s  case)  wherein

this Court held that in such a situation, there is no

requirement  of  holding  a  “detailed  inquiry  into  the

matter  and  examine  each  individual  case  to  satisfy  …

which  one  of  the  candidates  had  not  adopted  unfair

means”.    Therefore,  there  is  no  violation  of

principles of natural justice as contended by the

appellants;  

(ii) since  the  appellants  secured  admission  through

fraudulent  means,  they  cannot  be  permitted  to

retain the benefits accruing out of such a fraud,

merely on the ground that there was some delay

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in detection of the fraud.    

15. The High Court agreed with the respondents and held

that it is a case of “mass copying” and there was no need to

comply  with  the  requirement  of  the  audi  alteram partem

rule.  In coming to the conclusion, the High Court relied upon

its  earlier  decision  in  Pratibha  Singh’s  case rendered  in

connection with PMT 20138. The High Court also agreed with

the conclusion of the respondents that there was a logical

pattern in the allotment of Roll numbers and the examination

centres to the students (with respect to each of the years in

question)  and  the  said  logical  pattern  was  breached  with

respect to the appellants.  The High Court took note of the

fact  that  the conclusions of  the BOARD are based on the

opinion  of  an  expert  committee  (essentially  consisting  of

people qualified in computer science) and the same cannot

be interfered with in judicial review.  

8   “Para 72.  We have already held that the candidates had indulged in mass

copying in Pre-Medical Tests, 2008 to 2012 therefore, for the reasons assigned by Division Bench in paras 91 to 106 of the decision in the case of Pratibha Singh (supra) the  principles  of  natural  justice  would  have  no  application  in  the  peculiar  fact situation of these cases. . . .”

 [ The judgment in Pratibha Singh’s case (supra) dated 11.4.2014 is a common

judgment delivered in a batch of writ petitions filed by number of students who had appeared  in  the  PMT  2013,  but  whose  admissions  were  also  cancelled  on  the allegation of large scale malpractices in the said examination. ]

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16. The 2nd submission is also rejected by the High Court on

the ground that all the appellants resorted to unfair means in

an organized manner (in collusion with officials of the BOARD

and certain other criminal elements who played a major role

in perpetrating such a large scale illegal activity) and played

fraud on the examination system.  The High Court, therefore,

opined  that  appellants  cannot  be  permitted  to  retain  the

benefit  obtained through fraud merely  because there  was

some time gap in detecting the fraud.   

17. Hence, the instant appeals.

18. On behalf of the appellants, it is argued before us:  

(i) that  the  cases  on  hand  are  not  cases  of  ‘mass

copying’.    Having regard to the small  number of

the  students  whose  admissions  have  been

cancelled  and having regard to the large number

of students who appeared for the examination in

each of the years in question (the details of which

are already noted in para 7 supra), the number of

students  who  were  alleged  to  have  copied

constitute a small fraction, therefore, it cannot be

said that these are cases of “mass copying”. 15

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(ii) Apart from the objection based on the statistical

data, it is also the case of the appellants that even

conceptually the case on hand cannot be a case

falling  under  the  category  of  “mass  copying”.

According to the appellants, the expression “mass

copying”  has  a  definite  legal  connotation  as

discussed in  Bihar School Examination Board case

(supra) and the case on hand does not answer the

description  of  “mass  copying”  as  understood  in

the said case.

(iii) Cancellation  of  the  examination  and  the

admissions  of  the  appellants  without  complying

with the rule of audi alteram partem is illegal and

assuming for the sake of arguments that there was

some basis (the expert committee opinion) for the

respondents  to  draw  certain  inferences  which

formed the  basis  for  the allegations  constituting

the circumstances leading to the twin conclusions

impugned  by  the  appellants,  there  are

considerable number of exceptions to each one of

the circumstances [mentioned in para (iii) to (vi) of

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the  Footnote  No.7]  asserted  by  respondents.

Therefore,  the  decision  of  respondents  that  the

result  of  examination  of  all  these  appellants

required to be cancelled on the ground that they

resorted  to  “mass  copying” without  even giving  a

reasonable opportunity to the appellants to defend

is flawed and legally untenable.  In view of such

exceptions, it is imperative in law that the decision

to  cancel  admissions  of  the  appellants  must  be

preceded  by  an  appropriate  enquiry  compliant

with the principles of natural justice.

(iv)  The  appellants  also  made  some  ancillary

submissions  to  demonstrate  that  the  evidence

relied upon by the respondents is based on facts

(the details will be considered at the appropriate

place)  which render the evidence unreliable and

unscientific.

(v) Even  otherwise,  cancellation  of  result  of  the

appellants after a long lapse of time from the date

of  the  commission  of  the  alleged  malpractice

(ranging from 1 to 5 years) is an irrational exercise 17

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of the power by the BOARD.   It  is  argued that

apart from the irrationality, such a course of action

would simply ruin the lives of these candidates as

they would lose precious number of years in the

prime of their youth and they would be barred by

age to pursue any other course at this stage.

I make it clear that it is not the argument of any of the

appellants herein that the allegations [mentioned in the

Footnote  7],  even  if  proved  to  be  unexceptionable,

would not be sufficient in law to justify the impugned

action of the respondents.  

(vi) In  the  absence  of  a  notification  contemplated

under  Section  3  of  the  Act,  there  is  no  validly

constituted BOARD under the Act and, therefore,

the  BOARD  is  without  any  authority  of  law  to

cancel the examinations so far as they pertain to

the  appellants  and  also  the  admissions  of  the

appellants.  

DISCUSSIONS:

19. I  shall  first  deal  with  the  submission  No.(vi)  of  the

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appellants  i.e.  in  the  absence  of  the  notification

contemplated  under  Section  3  of  the  Act,  the  third

respondent - a non- statutory Board - has no legal authority

to  cancel  either  the  examination  conducted  by  it  or  the

admissions of the appellants to the various medical colleges.

20. The learned counsel for the appellants pointed out to

Section  24(2)(e)  of  the  Act  which  authorises  the  Board

constituted under Section 3 of the Act to make regulations

providing  for  “imposition  of  penalties  on  candidates  using  unfair

means or interfering in the examinations conducted by the Board” and

argued  that  such  power  would  be  available  only  for  the

statutory Board, if ever constituted and the third respondent

herein has no authority in law – in the sense of legislative

sanction to take the impugned action.

21. Admittedly the notification contemplated under Section

3 of the Act has not been issued so far.  The composition and

legal  structure  of  the  third  respondent  (BOARD)  was

discussed elaborately in  Pratibha Singh’s case.   It appears

from the said judgment that the third respondent (BOARD)

was brought into existence  “for  conducting the examination for

admission in the medical, engineering and agricultural universities and

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for  admission  in  the  polytechnics  and  initiate  the  necessary

proceedings  in  this  regard” by a  notification  dated 17.4.1982

issued in the name of the Governor.   The said notification

was published in the official gazette on 19.4.1982.   Such a

BOARD  was  initially  constituted  with  13  members  and

reconstituted from time to time.  Therefore, the BOARD is a

non-statutory  ‘body’.   It is not a corporate entity. It has no

existence  apart  from  the  government.  Barring  the  vague

statement (extracted above) regarding the purpose for which

the BOARD is created, the Notification dated 17.4.1982 does

not contain any details regarding either the powers or the

functions of the BOARD9.    

22. The net result is that the entire exercise of holding the

PMT  and  regulating  the  admissions  of  students  into  the

various medical colleges would be only an exercise of the

executive powers of the State of Madhya Pradesh.

If the third respondent BOARD is without any authority

of law for taking the impugned action, it is equally without

9  An unfortunate state of affairs in public administration of a country where

people associated with the different branches of governance under the Constitution make  tall  claims  about  the  constitutional  commitment  to  the  rule  of  law  in  the country.     

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any  authority  of  law  to  conduct  the  common  entrance

examination (PMT).   

Any admission based on the marks obtained at  such

common entrance examination would be equally without any

authority  of  law  in  the  sense  of  legislative  sanction.

Whatever be the legal implications of the exercise of such

power  vis-à-vis  others  (which  we  are  not  called  upon  to

examine in these appeals), the appellants cannot be heard

saying that the BOARD has no authority of law to take action

against  them  because  they  had appeared  for  the  said

examination and taken the benefit of  securing admissions

into the various medical colleges on the basis of the marks

obtained by them in the examination.  

Even  otherwise,  the  argument  of  the  appellants  is

required to be rejected for the following reasons:

Under  the  scheme of  our  Constitution,  the  executive

power  of  the  State  is  co-extensive  with  its  legislative

power10.  In  the  absence  of  any  operative  legislation,  the 10

 Rai Sahib Ram Jawaya Kapur & Others v. The State of Punjab, AIR 1955 SC  549

Para 7.  Article 73 of the Constitution relates to the executive powers of the Union, while the corresponding provision in regard to the executive powers of a State is contained in Article 162. The provisions of these articles are analogous to those of

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State can create rights. Unless there is something either in

the  Constitution  or  law  which  prohibits  the  abrogation  or

abridgment of rights, it is permissible for the State to do so

by  executive  action  in  accordance  with  some  specified

procedure  of  law.  No  doubt,  that  the  overarching

requirement of Constitution is that every action of the State

must be informed with reason and must be in public interest.

Nothing has been brought to our notice which prohibits the

impugned  executive  action.  If  it  is  established  that  the

adoption  of  unfair  means  on  large  scale  resulted  in  the

contamination of the entrance examination (PMT) process of

successive  years,  the  State  undoubtedly  would  have  the

power  to  take  appropriate  action  to  protect  the  public

interest.  I, therefore, reject the submission of the appellants.

23. I shall now deal with the submissions No. (i) and (ii) of

the appellants.

Before  we  deal  with  the  submission,  it  would  be

profitable to examine the relevant aspect of the judgment of

charged with the duty and the responsibility of carrying on the general administration of the State. So long as the State Government does not go against the provisions of the Constitution or any law, the width and amplitude of its executive power cannot be circumscribed. If there is no enactment covering a particular aspect, certainly the Government can carry on the administration by issuing administrative directions or instructions,  until  the  legislature  makes  a  law  in  that  behalf.  Otherwise,  the administration would come to a standstill.”  

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this  Court  in  Sinha’s  case (supra),  because  the  High  Court

placed a heavy reliance on the said judgment for rejecting

the submissions of the writ petitioners/appellants herein.

Though Sinha’s case acquired the notoriety as a case of

“mass  copying”,  the  total  number  of  students  whose

examination  was  cancelled  was  36  out  of  thousands  of

people,  who appeared for  the examination in the State of

Bihar.   Interestingly, the said judgment nowhere employed

the phrase “mass copying”.   This Court was dealing with a

question  of  the legality  of  the  action  of  the appellants  in

cancelling  “the examinations of  all  subjects held at the secondary

school  examination  of  1969 at  Hanswadih  centre”  for  the reason

“that unfair means were practiced on a large scale”.   

This Court laid down the principle that the rule of audi

alteram partem  need not  be  complied  with  in  connection

with  the  cancellation  of  examinations  where  it  would  be

impracticable to apply the said principle.  Adoption of unfair

means on a large scale is one of them.  This Court did not go

by the percentage of the students who were alleged to have

had  resorted  to  the  practice  of  unfair  means.  When  this

Court characterized the situation as practice of unfair means

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on a  ‘large scale’,  it used the expression only to distinguish

the situation from cases of practice of unfair means by one

or two students. This Court has also held that there are other

circumstances justifying the departure from complying with

the audi alteram partem rule.  They are - leakage of question

papers  and  destruction  of  a  large  number  of  answer

papers12.  In my opinion, the examples given therein are not

exhaustive of  all  the categories  constituting exceptions to

the application of the rule of audi alteram partem.    

Therefore,  the  percentage  of  the  students  who  are

alleged  to  have  resorted  to  unfair  means  is  irrelevant.

Similarly,  resorting to unfair  means by a ‘large number of

students’  is  not  the  only  circumstance  which  justifies  the

non-compliance with the rule of audi alteram partem.

24. That  leads  me  to  the  next  question,  whether  the

situation  prescribed  in  the  case  on  hand  falls  within  the

exceptional circumstances contemplated by Sinha’s case?  

25. A  large  number  of  judgments  are  cited  before  us  to

12   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.

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emphasise the importance of the requirement to comply with

the  rule  of  audi  alteram  partem  as  an  aspect  of  the

guarantee contained in Article 14 of the Constitution.  On the

other  hand,  the  respondents  have  relied  upon  an  equally

good number of judgments to demonstrate that  there are

well known exceptions to the application of the principles of

natural justice.  I  do not think it necessary to examine all

those judgments because as a general  proposition of law,

there cannot  be any dispute about the importance of  the

above-mentioned rule.

However, the applicability of the said rule in the context

of  various  situations  which vitiate  an examination process

fell  for  the  consideration  of  this  Court  on  more  than  one

occasion.  A law in this regard is fairly well settled.

26. The case of the BOARD is that for taking the impugned

action, they need not have proof of the guilt or complicity of

the  individual  students  in  contaminating  the  examination

process.    It  is  argued  that  if  there  is  some  reasonably

reliable material to establish the fact that the examination

process  insofar  as  it  concerns  the  appellants  was

contaminated, the BOARD would be justified in law to take 26

Page 27

the  impugned  action.   The  moment  contamination  of  the

examination process is established, the BOARD is relieved of

the legal obligation to comply with the rule of audi alteram

partem concerning the students who are the members of the

pairs  identified by the BOARD (on the basis  of the expert

committee  report)  to  be  the  beneficiaries  of  the

contaminated  examination  process.   According  to  the

BOARD, tampering with the examination process took place

on a large scale in each of the years in question, and it took

place  pursuant  to  a  deep  conspiracy  involving  several

people.  Following the rule of  audi alteram partem  in such

circumstances would be an impracticable exercise and the

same  is  not  required  to  be  undertaken  in  view  of  the

judgments of this Court in Bihar School Examination Board v.

Subhas  Chandra  Sinha  &  Others, (1970)  1  SCC  648  and  B.

Ramanjini & Others v. State of A.P. & Others, (2002) 5 SCC 533 to

emphasise  on  the  need  to  comply  with  the  rule  of  audi

alteram partem.  The respondents also relied upon Board of

High  School  and  Intermediate  Education,  U.P.,  Allahabad  &

Another v.  Bagleshwar Prasad & Another, (1963) 3 SCR 767  in

support of their submission that the scope of judicial reliance

is very limited in the cases of malpractices at examinations.

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27. On the other hand, appellants placed heavy reliance on

the decision of this Court reported in  Board of High School

and Intermediate Education, U.P.  v.  Ghanshyam Das Gupta &

Others,  1962 Supp (3)  SCR 36 and Onkar Lal Bajaj  & Others v.

Union of India & Another, (2003) 2 SCC 673 to emphasise on the

need  to  comply  with  the  applicability  of  the  rule  of  audi

alteram partem.

28. Ghanshyam Das Gupta and Subhas Chandra Sinha directly

deal with the applicability of the rule of audi alteram partem

in  the context  of  allegation of  copying in an examination.

Ramanjini’s case deals with cancellation of the examination

(conducted for the purpose of some recruitment process) on

the ground of leakage of question papers and Onkar Lal Bajaj

(supra) deals with cancellation of allotment of petrol pumps

made  to  a  large  number  of  people,  on  the  basis  of

allegations  that  such  allotment  was  vitiated  as  a

consequence of a corrupt process of selection.

29. Bagleshwar  Prasad’s  case (supra)  was  a  case  of

cancellation of examination results of only two students (the

respondent  before  this  Court  and another)  on  the  ground

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that they had adopted unfair means. It was not a case of

non-compliance with the rule of  audi alteram partem.  An

inquiry was conducted by a Sub-Committee constituted for

the said purpose, and it found that both the students were

guilty of adopting unfair means. Both  the  students

challenged the decision to  cancel  their  examination.   The

High Court set aside the impugned order on the ground that

there  was  no  direct  evidence  on  the  basis  of  which  a

Committee  could  have  come  to  the  conclusion  that  the

students had adopted unfair means.

This Court reversed the High Court decision and held

that the very fact that both the candidates gave identical

answers was sufficient evidence of adoption of unfair means

in the examination.   While coming to the conclusion, this

Court observed that it would be “inappropriate in such cases to

require direct evidence13” and in cases where direct evidence is 13

Para 12.   In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the Universities or Appellant 1 set up Enquiry Committees to deal  with the problem posed by the adoption of  unfair  means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them.   In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will  have to be considered in the light of probabilities and circumstantial evidence.  This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so, courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational  bodies  like the  Universities.     In dealing with the  validity  of  the impugned orders  passed by Universities under Article  226,  the  High Court  is  not

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not available “the questions will have to be considered in the light of

probabilities and circumstantial evidence”. This  case  also  laid

down  the  principles  governing  the  judicial  review  of  the

decisions  of  educational  institutions  (examining  bodies)  in

the context of the adoption of unfair means in examinations

by the students.  Though this Court held that the educational

sitting in appeal over the decision in question; its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order.   But the conclusion that the impugned order  is  not  supported  by  any  evidence  must  be  reached  after  considering  the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases must, no doubt, be  fair  and  students  against  whom charges  are  famed must  be  given  adequate opportunities to defend themselves, and in holding such enquiries, the Tribunals must scrupulously  follow  rules  of  natural  justice;  but  it  would,  we  think,  not  be reasonable to import into these enquiries all considerations which govern criminal trials in ordinary courts of law.”

See  also:  Maharashtra  State  Board  of  Secondary  and  Higher Secondary Education v. K.S. Gandhi & Others, (1991) 2 SCC 716

“Para 37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc.  seldom direct  evidence would be available.  Only  the  circumstantial  evidence would furnish the  proof.  In our  considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute  has  been  held  established  there  must  be  some  material  facts  or circumstances on record from which such an inference could be drawn. The standard of  proof  is  not  proof  beyond  reasonable  doubt  “but”  the  preponderance  of probabilities  tending to  draw an inference  that  the  fact  must  be  more  probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard of proof is the same both in civil cases and domestic enquiries.”

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institution  must  “scrupulously  follow  the  principles  of  natural

justice” the  scope  of  judicial  review  was  held  to  be  very

limited and  “it  would …… not be reasonable to import into these

enquiries all considerations which govern criminal trials”.

30. It  is  not  necessary  to  make  any  analysis  of  the

judgment of this Court in  Ghanshyam Das Gupta (supra) as

the  same  was  considered  by  this  Court  in  Sinha’s  case,

analysed and distinguished.

31. I shall now analyse Sinha’s case (supra).

In  the  month  of  March,  1969,  the  Bihar  School

Examination  Board  conducted  the  examination  for  the

secondary school students.  The results of the examination

were published.   However, the result of all the 36 students

who appeared  for  the  examination  at  Hanswadih  was  not

announced.  The  Examination  Board  cancelled  the

examination  insofar  as  the  abovementioned  students  are

concerned on the ground that  they had resorted to  ‘unfair

means on a large scale’. However, the students were allowed to

appear  at  a  supplementary  examination  to  be  held  in

September 1969.  

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The students challenged the said decision of the Board

before the Patna High Court successfully.   

This  Court  reversed  the  decision  of  the  Patna  High

Court.  Principally, two contentions raised on behalf of the

students (which found favour with the High Court):   

i) That, nobody complained about the commission of any

malpractice;  therefore,  the Board was not  justified in

cancelling the result.14  

ii) That there was a failure to comply with the requirement

of principles of natural justice.15

14  Para 9- The argument that no one had complained about the examination

need not detain us. The Tabulators sent their remarks on 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, nor 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. 15

Para13. 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 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.

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were considered and rejected.

For reaching such conclusions, this court took note of

the fact that the examination centre registered an unusually

high  rate  of  success  compared  to  the  other  examination

centres16 -  a case of relying upon circumstantial  evidence.

This  Court  further  undertook  a  random  inspection  of  the

answer papers of the students and recorded a finding that “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.”

The students  relied  upon an earlier  judgment  of  this

16  Para 11.  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 Language .. 94% 2. English .. 70% 3. Social Studies .. 95% 4. Everyday Science .. 90% 5. Elementary Mathematics .. 100% 6. Economics and Civics .. 92% 7. Elementary Physiology and Hygiene .. 96% 8. Geography .. 99% 9. History .. 88% 10. Physics .. 70% 11. Chemistry .. 100% 12. Advance Mathematics .. 99% 13. Sanskrit .. 100%  

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court in  Ghanshyam Das Gupta’s Case.   It  was held therein

that the students (only 3 in number) whose examination was

cancelled on the ground that they had resorted to copying

ought  to  have  been  given  an  opportunity  to  defend

themselves.  

This  court  distinguished  Ghanshyam  Das  Gupta’s  case

holding that the said judgment did not imply that the rule of

audi alteram partem must be followed in cases  “...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 ...”. This Court further held that

in Ghanshyam Das Gupta “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”  and  after  so

distinguishing  Ghanshyam  Das  Gupta, this  Court  held  as

follows:

“14. … 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

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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 are  managed 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 university’s  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.”

Sinha’s  case  judgment,  in  my  view,  yields  the  following

principles:

(1) Where  there  are  allegations  that

students resorted to “unfair means on a large scale”

at  an examination,  this  court  would  not  insist

upon registration of a formal complaint.   Any

reliable  information suggesting the occurrence

of  such  malpractice  in  the  examination  is

sufficient  to  authorize  the  examining  body  to

take  action  because  examining  bodies  are

“responsible  for  their  standards  and  the  conduct  of

examinations”  and “the essence of the examination is 35

Page 36

that the worth of every person is appraised without any

assistance from an outside source”.  

(2) A lone circumstance could itself be

sufficient  in  a  given  case  for  the  examining

body to record a conclusion that the students

resorted to “unfair means on a large-scale” in

an  examination.  This  Court  approved  the

conclusion  of  the  Bihar  School  Examination

Board that the students had resorted to unfair

means  on  a  large  scale  in  one  examination

centre17 and also approved the decision making

process  of  the  Board  on  the  basis  of

circumstantial evidence. The lone circumstance

that  the  success  rate  of  the  students  who

appeared for the examination from the centre in

question  is  too  high  in  comparison  to  other

centres.

(3) In such cases, the examining body

17  To assure itself  regarding the correctness of the said inference, this Court

undertook comparison of the answer papers of some of the students and recorded satisfaction that such answer papers “showed such a remarkable agreement in the answers that no doubt was left  in the minds of  this  Court  that the students had assistance from an outside source”.

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need not hold “a detailed quasi- judicial inquiry with a

right to its alumni to plead and lead evidence etc.” and

the examining body’s  “appreciation of the problem

must be respected.”

(4) To insist on the observance of the

principles of natural justice, i.e. giving notice to

each  student  and  holding  enquiry  before

cancelling the examination in such cases would

‘hold  up  the  functioning’ of  the  educational

institutions  which  are  responsible  for

maintenance of the standards of education, and

“encourage indiscipline, if not, also perjury”.   

(5) Compliance  with  the  rule  of  audi

alteram partem is not necessary not only in the

cases  of  employment  of  ‘unfair  means  on  large

scale’ but also situations where there is a ‘leakage

of papers’ or ‘destruction of some of the answer books’

etc.   

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(6) This  Court  drew  a  distinction

between action against an individual student on

the  ground  that  the  student  had  resorted  to

unfair  means  in  the  examination  and  the

cancellation of the examination on the whole (or

with reference to a group of students) because

the process itself is vitiated.

32. B. Ramanjini’s case was a case where the Government

of  Andhra  Pradesh  had  cancelled  the  examinations

conducted by the District Selection Committee in Anantapur

district  on  the  basis  of  a  report  of  the  Superintendent  of

Police that there was mass copying and leakage of question

papers.  The said order was set aside by the High Court.  It

was  a  case  where  no  opportunity  was  given  to  the

candidates  before  cancelling  the  examination.    The

challenge was not on the ground that there was a failure of

natural justice but on the ground that there was no material

before  the  State  justifying  the  conclusion  that  the

examination  process  was  vitiated.   On  appeal,  this  Court

reversed the said order holding that:

“8. Further, even if it was not a case of mass copying or

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leakage of question papers or such other circumstance, it is  clear  that  in  the  conduct  of  the  examination,  a  fair procedure has to be adopted.  Fair procedure would mean that the candidates taking part in the examination must be capable of competing with each other by fair means.  One cannot have an advantage either by copying or by having a foreknowledge of  the question paper of  otherwise.   In such  matters  wide  latitude  should  be  shown  to  the Government  and  the  courts  should  not  unduly  interfere with  the  action  taken  by  the  Government  which  is  in possession of the necessary information and takes action upon the same.  The courts ought not to take the action lightly and interfere with the same particularly when there was some material for the Government to act one way or the other. …”   

33. Coming  to  the  case  of  Onkar  Lal  Bajaj (supra),

Government of India decided to cancel the allotment of all

retail outlets, LPG distributorship etc. which had been made

on the basis  of  the recommendations of  a  ‘Dealer  Selection

Board’.   Such  a  decision  was  taken  in  view  of  serious

allegations  of  illegality  and  impropriety  in  making  such

allotments.   Approximately  some  6000  allotments  were

cancelled without any further enquiry and opportunity to any

one of the allottees.  This Court set aside the Government’s

order  of  cancelling  all  allotments  with  certain  further

directions that the cases of 413 dealers (who were identified

by the court on the basis of the material placed before this

Court) be examined by a Committee consisting of a retired

Judge of this Court and another of the Delhi High Court. For

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reaching  such  a  conclusion,  this  Court  rejected  the

submission of the Union of India that in a given situation, it

may  be  “legally  permissible”  to  resort  to  such  mass

cancellation where it is found that large number of selections

were tainted and segregation of good and bad would be time

consuming.   This  Court  opined  “the  solution  by  resorting  to

cancellation of all was worse than the problem.   Cure was worse than

the disease.  Equal treatment to unequals is nothing but inequality.  To

put both the categories – tainted and the rest –  on a par is wholly

unjustified, arbitrary, unconstitutional being violative of Article 14 of

the Constitution.”  

34. From an analysis of the above decisions, the following

principles emerge:-

1. Normally, the rule of  audi alteram partem  must be

scrupulously followed in the cases of the cancellation

of the examinations of students on the ground that

they had resorted to unfair means (copying) at the

examinations.

2. But the abovementioned principle is not applicable to

the  cases  where  unfair  means  were  adopted by  a

relatively  large  number  of  students  and  also  to

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certain other situations where either the examination

process is vitiated or for reasons beyond the control

of both students and the examining body, it would be

unfair or impracticable to continue the examination

process  to  insist  upon  the  compliance  with  audi

alteram partem rule.  

3.  The  fact  that  unfair  means  were  adopted  by

students at an examination could be established by

circumstantial evidence.

4.   The scope of judicial review of the decision of an

examining  body  is  very  limited.   If  there  is  some

reasonable material before the body to come to the

conclusion that  unfair  means were adopted by the

students  on  a  large  scale,  neither  such  conclusion

nor the evidence forming the basis thereof could be

subjected to scrutiny on the principles governing the

assessment of evidence in a criminal court.

Cases  such  as  the  one  on  hand  where  there  are

allegations  of  criminal  conspiracies  resulting  in  the

tampering with the examination process for the benefit of a

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large  number  of  students  would  be  certainly  one  of  the

exceptional circumstances indicated in Sinha’s case provided

there is some justifiable material to support the conclusion

that the examination process had been tampered with.

In  the  light  of  the  principles  of  law  emerging  from

scrutiny of  the abovementioned judgments,  we are of  the

opinion that  case on hand can fall  within  the category of

exceptions  to  the  rule  of  audi  alteram partem if  there  is

reliable  material  to  come  to  the  conclusion  that  the

examination process is vitiated.  

That  leads  me  to  the  next  question  –  whether  the

material  relied  upon  by  the  BOARD  for  reaching  the

conclusion that the examination process was contaminated

insofar as the appellants (and also some more students) are

concerned and the appellants are the beneficiaries of such

contaminated process, is tenable?

35. A great deal of effort was made by the appellants to

demonstrate to us that  the various circumstances -  relied

upon by the respondents to reach the conclusion that each

one  of  the  appellants  herein  is  the  beneficiary  of  a

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conspiracy  by  which  the  purity  of  examination  process

undertaken by the Board is contaminated - are impeachable.

The learned counsel demonstrated before us that at least in

some cases, one or more of the circumstances relied upon

by the Board [indicated in sub-paragraphs (iii), (iv), (v) and

(vi) of Footnote 7 (supra)] are inapplicable.  For example, the

assumption  that  the  “scorer”  is  a  more  accomplished

student than the “beneficiary” and that the “scorer” always

sat  in  front  of  the  “beneficiary”  at  the  time  of  the

examination to  enable the “beneficiary”  to  copy from the

“scorer”  are  demonstrated  to  be  wrong  at  least  in  some

cases.   There  are  cases  where  the  “scorer”  secured  less

marks than the “beneficiary”.  Similarly, the allegation that

“scorers”  did  not  take  admission  in  any  of  the  medical

colleges  of  Madhya  Pradesh  despite  securing  sufficiently

high  marks  entitling  them  to  obtain  admissions,  is

demonstrated to be wrong.  At least in some cases “scorers”

have  in  fact  joined  some  medical  colleges  in  Madhya

Pradesh.  

36. There is nothing inherently irrational or perverse in the

BOARD’s conclusions  (i) that the examination process was

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tampered with; and  (ii) that all  the appellants herein who

are identified to be members of the ‘pairs’ (referred to earlier)

are beneficiaries of such manipulated examination process18,

relying  upon  the  circumstances  (mentioned  in  Footnote  7

supra)  if  they  are  unimpeachable.  Each  one  of  the

circumstances is an inference which flows from certain basic

facts which either individually or in combination with some

other facts constituted the circumstance.  One or more of

such facts (constituting circumstances mentioned in (iii) to

(vi)  of Footnote 7 supra) are demonstrated to be not true

(with reference to some of the appellants).   

37. The proof of the first two circumstances (mentioned in

Footnote 7) depends upon the analysis of the data which is

available on the computers.  The fact that the entire process

of  the  generation  of  roll  numbers  to  the  students  and

allotment of the students to various examination centres is

done  by  a  computerised  process  is  not  in  dispute.   The

assertion  of  the  BOARD  that  technically  such  a  process

requires SOME LOGIC to be followed is not disputed by the 18

Whether the said circumstances would be sufficient to connect any one of the students on a criminal charge is a different question and we express no opinion on the  same  as  we  understand  that  criminal  cases  are  registered  and  are  being investigated against some of the appellants (if not all) in connection with the same transaction which is the subject matter of debate in these appeals.  

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appellants.   The expert  committee  (on an  analysis  of  the

data) (i) identified the logic followed for generating the roll

numbers and allotting the examination centres and also (ii)

reaching a conclusion that in the case of the appellants and

a few others the allotment was not in accordance with the

logic initially adopted. The same are not normally amenable

to judicial review because Courts would lack the necessary

technical  expertise  to  sit  in  judgment  over  such  matters.

Apart  from  that,  there  is  no  specific  challenge  to  those

conclusions,  except  that  the  matter  should  have  been

examined by an independent expert committee. I do not find

any legal basis for such a submission.  I, therefore, see no

reason to doubt either the factual or legal correctness of the

first two circumstances.

It,  therefore,  logically  follows  that  there  was  a

tampering  with  the  examination  process  insofar  as  the

appellants and a few others are concerned.

38. The other submission of the appellants in this regard is

that  if  there  is  a  deviation  from the general  pattern  with

regard to the allotment of Roll Numbers and the examination

Centres,  the  appellants  could  not  be blamed or  ‘penalised’ 45

Page 46

because the entire process of the allotment was done by the

BOARD and its officials.

In my opinion, the question of either ‘blame’ or  ‘penalty’

does  not  arise  in  the  context.  If  tampering  with  the

examination process took place, whether all or some of the

appellants are culpable is a matter for a criminal court to

examine as and when any of the appellants is sought to be

prosecuted.

But  the  fact  that  the  examination  process  was

tampered with is relevant for administrative action such as

the  one  impugned  herein.   The  said  fact  formed  the

foundation  for  the  further  enquiry  for  identifying  the

beneficiaries of such contaminated process. Having regard to

the circumstances relied upon, I do not see anything illogical

or  untenable  in  the  conclusions  drawn  by  the  expert

committee which formed the basis for the impugned action

of the BOARD. It is argued   that the formula19 adopted by 19

The Expert Committee evolved a formula to examine whether a conclusion could be reached with respect to the identified pairs that they had resorted to the unfair means.  The facts relevant for the said formula are:

(1) the total number of questions answered by each number of the pair; (2) the number of correct answers given by each number of the pair and

how many of the said correct answers matched; (3) the number of wrong answers matched.

After determining the above mentioned numbers with respect to each

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the BOARD to record the conclusion that the members of the

identified pairs resorted to unfair means at the examination

is without any scientific basis.  I do not see any irrationality

either in the formula or the decision of the BOARD to assign

greater weightage to the incorrect matching answers.  There

is nothing inherently suspicious about two candidates sitting

in close proximity in  an examination and giving the same

correct  answer  to  a  question because there  can only  one

correct answer to a question.  On the other hand, if they give

the  same  wrong  answer  to  a  given  question  and  if  the

number  of  such  wrong  answers  is  high,  it  can  certainly

generate a doubt and is a strong circumstance indicating the

occurrence of some malpractice.  Such a test was approved

by this Court in Bagleshwar Prasad’s case20.

Even  otherwise,  in  my  opinion,  it  would  be  futile  to

pursue the inquiry in this regard.  Assuming for the sake of

of the identified pairs, greater weightage is given to the incorrect matching answers to arrive at a conclusion that the number of the identified pair resorted to unfair means at the examination. 20

. Para 6.  “… He admitted that the mistaken answers in the two papers were identical and he pleaded that he could not say anything as to why this happened. …”  

Para 11. “ … We have looked at the incorrect answers ourselves and we are not  prepared to  hold that  the  identical  incorrect  answers  were  given by the  two candidates either by accident or by coincidence.  Some of the incorrect answers, and, particularly, the manner in which they have been given, clearly suggest that they were the result of either one candidate copying from the other, or both candidates copying from a common source. …”   

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argument that the submission of the appellants is right and

there are some cases (of appellants) where the appellants

can demonstrate (if an opportunity is given to them) that the

circumstantial  evidence is  not  foolproof  and therefore  the

impugned order must be set aside on the ground of failure of

natural justice, the BOARD would still be entitled (in fact it

would  be  obliged  in  view  of  the  allegation  of  systematic

tampering with the examination process year after year) in

law to conduct afresh enquiry after giving notice to each of

the appellants.  That would mean spending enormous time

both by the BOARD and by the appellants for the enquiry

and  the  consequential  (inevitable)  litigation  regarding  the

correctness of the eventual decision of the BOARD.

For the abovementioned reasons, I  do not propose to

interfere with the impugned judgment on the count that the

rule of  audi alteram partem  was not complied with by the

respondents  before  cancelling  the  admissions  of  the

appellants herein.   

39. The  next  question  that  requires  examination  is  the

legality  of  the  action  of  the  respondents  after  a  lapse  of

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considerable time.  It varies between one to five years with

reference to  each  of  the  appellants.   The decision  of  the

respondents  necessarily  led  to  litigation  which  consumed

another three years.  The net result is that appellants, who

belong  to  2012  batch,  spent  four  years  undergoing  the

training  in  medical  course;  others  progressively  longer

periods extending up to eight years but could not acquire

their  degrees  because  of  the  impugned  action  and  the

pendency of  this  litigation.   Most  of  the  appellants  would

have acquired their degree in medicine by now if they had

been successful at the examinations.  

40. Learned  counsel  for  the  appellants  made  a  fervent

appeal that this Court in exercise its jurisdiction under Article

142  permit  the  appellants  to  complete  their  education

subject to such conditions as this Court deems fit, to satisfy

the demand of justice. A very emotional appeal was made

during the course of hearing that the lives of 634 youngsters

would be ruined if the impugned action of the respondents

remains unaltered.  They would lose a decade of precious

time  of  their  youth  and  they  would  become  practically

useless for themselves and for their families – even for the

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society.   It  is,  therefore,  submitted  that  this  Court  may

modify the impugned orders in the light of twin principles

that (1) the public policy of this country even with regard to

the  crimes  is  that  they  cannot  be  taken  cognizance  of

beyond  the  period  of  limitation  stipulated  under  various

laws.   It  is  submitted  that  as  of  now  the  appellants  are

alleged to be only beneficiaries of a fraud but not yet proved

to be criminals; (2) the appellants are youngsters who were

of  adolescent  age  at  the  time  of  the  commission  of  the

alleged fraud.  Even if it is proved that each of the appellants

is  directly  a  participant  in  the  ‘crime’,  which  led  to  the

tampering with the examination process (year to year), they

cannot be subjected to the punishment under the criminal

law  in  view  of  the  provisions  of  the  Juvenile  Justice  Act.

Therefore,  it  is  submitted  that  this  Court  may  pass  such

orders, as it deems fit in the circumstances of the case, short

of depriving the appellants of their  entire future.    In this

regard, the learned counsel relied upon Priya Gupta v.  State

of Chhattisgarh & Others, (2012) 7 SCC 433.

41. On  the  other  hand,  it  is  argued  on  behalf  of  the

respondents that having regard to the nature of deep rooted

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conspiracy behind the illegal admissions of the appellants,

showing of any compassion in dealing with the cases of the

appellants would have adverse impact on the enforcement

of law in this country.  It is argued that having regard to the

well known maxim that “fraud vitiates everything” and the

settled principle of law that the benefits secured out  of  a

fraudulent  action cannot  be permitted to be retained,  the

appellants  cannot  be  permitted  to  claim any  sympathetic

consideration  from  this  Court.   In  support  of  the  said

submission,  the  learned  counsel  relied  upon  Ram  Preeti

Yadav v. U.P. Board of High School and Intermediate Education

& Others, (2003) 8 SCC 311.

42. Before I discuss the rival submissions mentioned above,

I deem it appropriate to examine the two judgments relied

upon by the contending parties.

43. Ram Preeti Yadav’s case was a case where intermediate

result of the third respondent before this Court was withheld

on a suspicion of his having employed unfair means in the

examination.  However,  he  was  issued  a  provisional

marksheet  which  did  not  indicate  that  the  result  of  his

intermediate examination has been withheld. !  On the basis

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of the said provisional marksheet, he pursued higher studies

and became a post graduate and secured employment as a

teacher in one of the colleges in Uttar Pradesh.  Some twelve

years after intermediate examination, he was informed that

his  intermediate  examination  was  cancelled.   Invariably

litigation ensued.  On examination of the factual background,

this Court recorded a conclusion that “thus, it is evident that a

fraud was committed.  Respondent No.3 is the sole beneficiary to the

said fraud and it,  as such,  must be presumed that he was a party

thereto”.  Invoking the principle that “fraud avoids all judicial acts,

ecclesiastical  or  temporal”  and  relying  upon  two  earlier

judgments  in  S.P.  Chengalvaraya  Naidu  (Dead)  by  LRs  v.

Jagannath (Dead) by LRs & Others, (1994) 1 SCC 1 and Lazarus

Estates Ltd. v. Beasley, (1956) 1 All ER 341, this Court reversed

the  High  Court  judgment  granting  relief  to  the  third

respondent.

44. In Priya Gupta’s case (supra), Priya Gupta’s admission to

the MBBS course granted in the academic year 2006-07 was

cancelled by the State of Chhattisgarh in 2010 on the ground

that such admission was not in accordance with the relevant

Rules21.  This  Court  didn’t  find  any  illegality  in  the 21

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cancellation  of  the  admission  of  Priya  Gupta.22  However,

taking  into  consideration  the  fact  that  Priya  Gupta  had

already  completed  her  course  study,  this  Court  held  as

follows:    

“74. On the peculiar facts and circumstances of the case, though we find no legal or other infirmity in the judgment under  appeal,  but  to  do  complete  justice  between  the parties within the ambit of Article 142 of the Constitution of India,  we would  permit  the  appellants  to  complete their professional courses, subject to the condition that each one of  them pay a  sum of  Rs  5  lakhs  to  Jagdalpur  College, which  amount  shall  be  utilised  for  developing  the infrastructure in Jagdalpur College.

75. We have not and should not be even understood to have  stated  any  precedent  for  the  cases  like  grant  of admission  and  leave  to  complete  the  course  like  the appellants in the present case.”

Both Ram  Preeti  Yadav  and  Priya  Gupta’s cases  (supra) are

cases where opportunities secured by individuals by some

fraudulent means were subject matter of litigation.  While in

the earlier case, this Court declined to take into account the

 It was found that “the admission ... had been on the basis of fake letters purported to be issued from the Directorate General of Health Services (DGHS) …”.  22

  “Para 73.  ... By their admissions, firstly, other candidates of higher merit have  been  denied  admission  in  the  MBBS  course.  Secondly,  they  have  taken advantage of a very low professional college fee, as in private or colleges other than the government colleges, the fee payable would be Rs.1,95,000 per year for general admission and for management quota, the fee payable would be Rs.4,00,000 per year, but in government colleges, it is Rs.4000 per year. So, they have taken a double advantage.  As per their  merit,  they obviously would not have got admission into Jagdalpur  College and would have been given admission in  private  colleges.  The ranks that they obtained in the competitive examination clearly depict this possibility because there were only 50 seats in Jagdalpur College and there are hundreds of candidates above the appellants in the order of merit. They have also, arbitrarily and unfairly, benefited from lower fees charged in Jagdalpur College.”

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time gap between fraudulent act and the detection of the

fraud,  for  deciding  the  legality  of  the  action  against  Ram

Preeti  Yadav, in the latter case this Court thought it  fit  to

permit  the  benefits  secured  to  be  retained  through

fraudulent  means  on  payment  of  certain  amount  to  be

utilized  “for developing the infrastructure” in the college where

Priya Gupta had studied.   One of the many judgments of this

Court falling under the “jurisprudence of peculiar facts” with

a caveat that it does not constitute a precedent. !!

45. Be that as it may, both the above-discussed cases deal

with  the  question  of  legality  of  the  action  taken  against

individuals  (small  in  number  –  one  in  the  first  of  the

abovementioned cases and two in the second of the cases)

in  the context  of  their  fraudulent  conduct  in  securing the

benefits of higher education.  They pleaded that it would be

inequitable to deprive them of the benefits of their education

after considerable lapse of time.  This Court rejected the plea

of Ram Preeti Yadav both in law and fact, but in Priya Gupta’s

case it was rejected in law? but accepted in fact!  

46. Coming to the case in hand,  the number of students

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involved  is  relatively  huge23.   In  view  of  the  conclusion

recorded by me earlier that neither the procedure adopted

by  the  respondents  nor  the  evidence  relied  upon  by  the

respondents  for  taking  impugned  action  against  the

appellants could be characterized as illegal, is it permissible

for this Court to interfere with the impugned action of the

respondents  either  on  the  ground  that  there  is  a

considerable  time  lapse  or  that  such  action  would  have

ruinous effect on the lives and careers of the appellants? and

therefore inequitable is a troubling question.

47. The public policy of the country and the larger public

interests, in our opinion, would be more appropriate guides

than the considerations of equity to decide the questions in

the absence of any statutory prescription applicable to the

controversy on hand.

48. This court in Central Inland Water Transport Corporation

Limited & Another v. Brojo Nath Ganguly & Another,  (1986) 3

SCC 156 explained the concept of public policy and its role in

23  They are the beneficiaries of a tampered examination process. The tampering

took place systematically and repeatedly for a number of years virtually destroying the  credibility  of  the  examination  process.  It  deprived  a  number  of  other  more deserving students from securing admissions to the medical colleges.  

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the judicial decision making process in the following words:  

“92.  The  Indian  Contract  Act  does  not  define  the expression “public  policy”  or  “opposed  to  public  policy”. From the  very  nature  of  things,  the  expressions  “public policy”, “opposed to public policy”, or “contrary to public policy”  are  incapable  of  precise  definition.  Public  policy, however, is  not the policy of  a particular government.  It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions  which  were  once  considered  against  public policy are now being upheld by the courts  and similarly where  there  has  been  a  well  recognized  head  of  public policy,  the  courts  have not  shirked from extending it  to new transactions and changed circumstances and have at times  not  even  flinched  from  inventing  a  new  head  of public  policy.  There  are  two  schools  of  thought—  “the narrow  view”  school  and  “the  broad  view”  school. According to the former, courts cannot create new heads of public  policy  whereas  the  latter  countenances  judicial law-making  in  this  area.  The  adherents  of  “the  narrow view” school would not invalidate a contract on the ground of  public  policy  unless  that  particular  ground  had  been well-established by authorities. Hardly ever has the voice of  the  timorous  spoken  more  clearly  and  loudly  than in these  words  of  Lord  Davey  in Janson v. Driefontein Consolidated Gold Mines Ltd. [(1902) AC 484, 500] : “Public policy is always an unsafe and treacherous ground for legal decision”. That was in the year 1902. Seventy-eight years earlier, Burrough, J., in Richardson v. Mellish [(1824) 2 Bing 229, 252 : 130 ER 294, 303 and (1824-34) All ER 258, 266] described public policy as “a very unruly horse, and when once you get astride it you never know where it will carry you”. The Master of the Rolls, Lord Denning, however, was not a man to shy away from unmanageable horses and in words which conjure up before our eyes the picture of the young  Alexander  the  Great  taming  Bucephalus,  he  said in Enderby  Town  Football  Club  Ltd. v. Football  Assn. Ltd. [(1971) Ch 591, 606] : “With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles.” Had the timorous always held the field, not only the doctrine of public policy but even the common law or the  principles  of  Equity  would  never  have  evolved.  Sir William Holdsworth in his History of English Law Vol. III, p. 55, has said:

“In fact,  a body of law like the common law,

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which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles,  and  if  it  is  to  maintain  these principles  it  must  be  able,  on  the  ground  of public  policy  or  some  other  like  ground,  to suppress  practices  which,  under  ever  new disguises, seek to weaken or negative them.”

It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal  at  one  time  have  today  become  obnoxious  and oppressive  to  public  conscience.  If  there  is  no  head  of public policy which covers a case, then the court must in consonance  with  public  conscience  and  in  keeping  with public good and public interest declare such practice to be opposed to public policy. Above all,  in deciding any case which may not be covered by authority  our courts  have before  them  the  beacon  light  of  the  Preamble  to  the Constitution. Lacking precedent, the court can always be guided  by  that  light  and  the  principles  underlying  the Fundamental Rights and the Directive Principles enshrined in our Constitution.”

49. One of the indicators of public policy on a given topic is

the  legislation  dealing  with  the  topic.   The  questions  on

which the public policy is required to be ascertained in the

context of the present case are:

1. Whether administrative action to nullify any benefit  acquired  by  a  person  through fraudulent  means  could  be  taken  without reference to any limitation of time?

2. Whether  a  benefit  obtained  through  the perpetration of  fraud could be permitted to be retained?

The law of limitation is relevant and indicates to policy

in  the  context  of  the  first  question.   Various  periods  of

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limitation are prescribed for  initiation of  legal  proceedings

under the Limitation Act, 1963 and various other laws.  This

Court in  Situ Sahu & Others v. State of Jharkhand & Others,

(2004) 8 SCC 340 held that the statutory power of  suo moto

revision  could  be  exercised  to  deprive  a  person  of  the

property  acquired  by  him  even  in  the  cases  where  such

acquisition  is  through  fraudulent  means  only  within  a

reasonable period.  It was a case of the claim of a member of

a  scheduled  tribe  that  their  ancestors  were  tenants  of  a

piece of land whose landlord obtained a deed of surrender by

fraud. The question before this Court was whether the Dy.

Commissioner could exercise the statutory authority under

Section 71-A of the Chota Nagpur Tenancy Act, 1908 at any

point of time without any limitation and restore the land to

the  claimant.  This  Court  held  that  such  power  must  be

exercised within a reasonable time.  

Criminal  law  also  prescribes  time  limits  for  taking

cognizance of offences.  But in cases of offences where the

prescribed punishment is  more than 3 years,  no period of

limitation is provided under the Code of Criminal Procedure,

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1973.24  

50. Public policy of this country regarding the retention of

the benefit obtained by perpetrator of crime is that normally

the  benefit  cannot  be  permitted  to  be  retained  by  the

perpetrator of crime.  But the principle is  applied only on

adjudication that the benefit was obtained by perpetration

of crime.  

51. A  person  adjudged  to  be  guilty  of  an  offence  is  not

permitted to  retain  the financial  gains  arising out  of  such

crime.25  Transfer of property for the purpose of concealing 24

See Sections 468 of the Code of Criminal Procedure, 1973 468. Bar to taking cognizance after lapse of the period of limitation.-  (1) Except as otherwise provided elsewhere in this Code, no Court shall take

cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be – (a) six months, if the offence is punishable with fine only; (b) one year, if the offence is punishable with imprisonment for a term

not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a

term exceeding one year but not exceeding three years. (3)  For the purposes of this section, the period of limitation, in relation to offences

which  may be  tried  together,  shall  be  determined  with  reference  to  the  offence  which  is punishable  with  the  more  severe  punishment  or,  as  the  case  may  be,  the  most  severe punishment. 25

 See Sections 452, 453 and 456 of the Code of Criminal Procedure, 1973 “Section 452.  Order for disposal of property at conclusion of trial.-

(1) When an inquiry or trial in any Criminal Court is concluded, the Court may make such order as it thinks fit for the disposal, by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof or otherwise, of any property or document produced before it or in its custody, or regarding which any offence appears to have been committed, or which has been used for the commission of any offence.

(2) An order may be made under sub-section (1) for the delivery of any property to any person claiming to be entitled to the possession thereof, without any condition or on condition that he executes a bond, with or without sureties, to the satisfaction of the Court, engaging to restore such property to the Court if the order

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the  fact  that  it  is  the  benefit  arising  out  of  or  statutorily

presumed to be arising out of crime is not countenanced26.

Similarly, it is the law of this country that a person found

guilty  of  murder  is  not  entitled  to  succeed (even if  he  is

otherwise  eligible  for  succession  in  accordance  with  the

made under sub-section (1) is modified or set aside on appeal or revision. (3) A Court of Session may, instead of itself  making an order under

sub-section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459.

(4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of sub-section (2), an order made under sub-section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of.

(5) In this section, the term "property" includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything  acquired  by  such  conversion  or  exchange,  whether  immediately  or otherwise.

Section  453.  Payment  to  innocent  purchaser  of  money  found  on accused.- When any person is convicted of any offence which includes, or amounts to, theft or receiving stolen property, and it is proved that any other person bought the stolen property from him without knowing or having reason to believe that the same was  stolen,  and that  any  money has  on  his  arrest  been  taken  out  of  the possession  of  the  convicted  person,  the  Court  may,  on  the  application  of  such purchaser and on the restitution of the stolen property to the person entitled to the possession thereof, order that out of such money a sum not exceeding the price paid by such purchaser be delivered to him.

Section 456. Power to restore possession of immovable property.- (1) When a person is convicted of an offence attended by criminal force or show of force or by criminal intimidation, and it appears to the Court that, by such force or show of force or intimidation, any person has been dispossessed of any immovable property, the Court may, if it thinks fit, order that possession of the same be restored to that person  after  evicting  by  force,  if  necessary,  any  other  person  who  may  be  in possession of the property:

Provided that no such order shall be made by the Court more than one month after the date of the conviction.

(2) Where the Court trying the offence has not made an order under sub-section (1), the Court of appeal, confirmation or revision may, if it thinks fit, make such order while disposing of the appeal, reference or revision, as the case may be.

(3)  Where  an  order  has  been  made  under  sub-section  (1),  the provisions of section 454 shall apply in relation thereto as they apply in relation to an order under section 453.

(4)  No  order  made  under  this  section  shall  prejudice  any  right  or interest to or in such immovable property which any person may be able to establish in a civil suit.”  

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relevant  principles  of  succession)  to  the  estate  of  the

victim27.   

Situ Sahu’s case  (supra) is also a case establishing the

principle  that  the  law  permits  the  retention  of  property

acquired pursuant to fraudulent means (allegedly) because

law does not permit an enquiry into the allegation beyond

the reasonable period.    

However, when it comes to other civil rights, the public

policy, as can be discerned from various enactments, seems

to be not to deprive those who are found to have been guilty

of offences of all their civil rights.  For example, the right to

contest an election for the various constitutional  bodies is

denied  to  a  person  convicted  of  various  offences

26  See Section 4 of the Smugglers and Foreign Exchange Manipulators  

(Forfeiture of Property) Act, 1976 “Section 4. Prohibition of holding illegally acquired property.– (1) As

from the commencement of this Act, it shall not be lawful for any person to whom this Act applies to hold any illegally acquired property either by himself or through any other person on his behalf.

(2)  Where  any  person  holds  any  illegally  acquired  property  in contravention of the provision of sub- section (1), such property shall be liable to be forfeited to the Central Government in accordance with the provisions of this Act.”

27  See Section 25 of the Hindu Succession Act, 1956 “Section 25.  Murderer disqualified.—A person who commits  murder or

abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.”

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enumerated  under  Section  8  of  the  Representation  of

Peoples  Act,  1951 but  only  for  a  certain  specified  period.

Similarly, the right to vote is denied to persons convicted of

offences specified under Section 11A of the Representation

of the People Act, 1951 for a period specified therein.  It is

also  worthwhile  noticing  that  even  such  disqualifications

could be removed by the Election Commission for reasons to

be recorded.28

It  is  required  to  be  examined  whether  it  would  be

consistent with the public policy to deprive the appellants of

the  benefits  of  their  education  on  the  ground  that  they

secured certain benefits by adopting fraudulent means.  

52. We are informed that all the appellants are also being

investigated for the commission of various offences which if

proved  would  render  them  liable  for  imprisonment  for

periods extending beyond three years, and therefore, there

is  no  period  of  limitation  for  taking  cognizance  of  them.

28   See Section 11 of the Representation of the People Act, 1951 “Section 11. Removal or reduction of period of disqualification.—The

Election Commission may, for reasons to be recorded, remove any disqualification under  this  Chapter  (except  under  section  8A)  or  reduce  the  period  of  any  such disqualification.  

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Therefore,  it  cannot  be  said  that  the  impugned  action

against the appellants would be inconsistent with the public

policy on the ground of the time gap.  

53. While it is a salutary principle based on public policy not

to permit the retention of ‘property’ obtained by fraudulent

means,  the  application  of  the  said  principle  becomes  a

matter of doubtful utility to the society in the context of the

acquisition  of  knowledge  by  adopting  fraudulent  means

examined from the point of view of the public interest.   In

the context of property (economic gains), the application of

the principle works to the benefit of the rightful owner.  But

in  the  context  of  acquisition  of  knowledge,  nobody would

benefit by the application of the rule and would therefore

serve only a limited public purpose.   

54. Some  634  youngsters,  who  have  already  completed

their training in medicine (or about to complete) and whose

knowledge could have otherwise been utilized for the benefit

of  the  society,  would  be  simply  rendered  useless  for  the

society in the sense their knowledge cannot be utilized for

the welfare of the society.  The question is not whether these

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appellants  deserve  any  sympathy.  In  my  view,  a  larger

question-  whether  this  society  can  afford  to  waste  such

technically  trained  and  qualified  human  resources  which

require  enormous  amounts  of  energy,  time  and  other

material resources to generate. Obviously, it takes another

five years of time and expenditure of considerable material

resources to produce another set of 634 qualified medical

graduates.  It is in the background of this consideration, this

issue is required to be decided.

55. Another important consideration in the context is that

most  of  (if  not  all)  the  appellants,  whatever  be  their

respective role, if any, in the tampering of the examination

process, must have been ‘juveniles’29 as defined under the

Juvenile  Justice  Act.  They  cannot  be  subjected  to  any

‘punishment’ prescribed under the criminal law even if they

are not only the beneficiaries of the tampered examination

process but also the perpetrators of the various acts which

constitute offences contaminating the examination process.  

29  Section 2(k)  -  “juvenile” or “child” means a person who has not completed

eighteenth year of age; 3[(l) “juvenile in conflict with law” means a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of commission of such offence

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56. For  the  abovementioned  reasons,  I  would  prefer  to

permit  the appellants to complete their  study of medicine

and become trained doctors to serve the nation.  But at the

same  time  there  is  a  compelling  national  interest  that

dishonest people cannot be made to believe that “time heals

everything’ and the society would condone every misdeed if

only they can manage to get away with their wrong doing for

a considerably long period.  

Society  must  receive  some  compensation  from  the

wrongdoers.   Compensation need not be monetary and in

the instant case it should not be.  In my view, it would serve

the larger public interests, by making the appellants serve

the  nation  for  a  period  of  five  years  as  and  when  they

become qualified doctors30,  without any regular salary and

attendant benefits of service under the State, nor any claim

for absorption into the service of the State subject of course

to the payment of some allowance (either in cash or kind) for

30  Community service as an alternative to the traditional punishment of  

imprisonment for those found guilty of crime is gaining currency in some countries.    It appears to me to be more useful to the society.   I do not see any reason why such  a concept cannot be adopted in the context of situations like the one on hand.

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their survival.  I would prefer them serving the Indian Armed

Forces subject  to  such conditions and disciplines to which

the  armed  forces  normally  subject  their  regular  medical

corps.  I would prefer that the appellants be handed over the

certificates of their medical degrees only after they complete

the  abovementioned  five  years.   The  abovementioned

exercise  would  require  the  ascertainment  of  the  views  of

Ministry  of  Defence,  Government  of  India,  and  passing  of

further appropriate orders by this Court thereafter. In view of

the disagreement of views in this regard, I am not proposing

such an exercise.    

Registry is directed to place the papers before Hon’ble

the Chief Justice of India for appropriate orders.

….………………………….J.                                                      (J. Chelameswar) New Delhi; May 12, 2016

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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.1727 OF 2016

Nidhi Kaim ……Appellant(s)

VERSUS

State of M.P. & Ors. Etc. ……Respondent(s)

WITH

CIVIL  APPEAL  NOs.  1720-1724,  1726,  1728,  1729, 1733, 1734-1741, 1742-1749, 1750-1751, 1752,  1753-1758,  1847-1852,  1759-1764,  1765,  1766, 1767-1768, 1769-1774, 1776-1787, 1788, 1789-1791, 1792-1794, 1795-1798, 1799-1805, 1806-1808, 1809, 1810-1811, 1812, 1813-1814, 1815, 1816-1817,  1818-1819,  1820,  1821,  1822-1824,  1825,  1826, 1827,  1828,  1830,  1831-1832,  1833,  1834,  1835, 1836-1837,  1838,  1839,  1840,  1841,  1842,  1843, 1844, 1845 & 1846 OF 2016

J U D G M E N T

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Abhay Manohar Sapre, J.

1) I have had the advantage of going through the

elaborate  and  well  considered  draft  judgment

proposed to be pronounced by my learned Brother.

2) Having  gone  through  the  draft  judgment,  I

agree  with  the  reasoning  given  by  my  learned

Brother on all the issues except on one issue dealt

with in paragraphs 39 to 55 relating to issuance of

directions to the respondents.    

3) In  my  view,  keeping  in  view  the  nature  of

controversy and the findings recorded by us on the

main controversy which has resulted in upholding

of the impugned judgment, no case is made out for

passing  any  directions  under  Article  142  of  the

Constitution  of  India  and  hence  these  appeals

deserve to be dismissed.  

4) However,  having  regard  to  the  issues  which

were ably argued by the learned counsel and in the

light  of  my  disagreement  on  one  issue,  as

mentioned  above,  with  my  learned  Brother,  I

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propose  to  write  few  paragraphs  of  my  own  in

support of my reasoning and the conclusion.  

5) I need not set out the facts in detail since my

learned Brother has succinctly mentioned them in

his draft judgment.  

6) Suffice  it  to  say,  the  controversy  involved  in

these  appeals  centers  around  broadly  to  the

following facts.  

7) The  appellants  along  with  several  other

candidates appeared in the PMT examinations held

in the years 2008 to 2012 and 2013. So far as these

appeals are concerned, they relate to examinations

held in the years 2008 to 2012. The State of M.P.

through Professional Examination Board hereinafter

called “Vyapam” had conducted these examinations

for  getting  admission  in  MBBS Degree  Course  in

various  Government/Private  Medical  Colleges  in

State of M.P.

8) The  appellants  cleared  the  PMT examination

and  got  admissions  in  MBBS  Degree  Course  in

various Government/Private Medical Colleges in the

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State of M.P. Some are prosecuting their studies in

MBBS Course and some claims to have completed

their studies.  

9) The  Vyapam,  however,  cancelled  the

appellants’ PMT Examination results by order dated

09.10.2013 and various orders.    The reason for

cancellation  was  that  the  detailed  investigations

were made in conducting of the PMT examinations

held in the years 2008 to 2013.  The outcome of the

investigations, however, revealed that the appellants

and  several  other  candidates  resorted  to  unfair

means in large scale by adopting planned strategy

in answering their question papers.  It was revealed

that  the  appellants  and  other  candidates  in

connivance  with  Vyapam's  officials  and  some

outsiders entered into a conspiracy and conceived a

plan as to how the appellants and their associates

should  sit  in  the  examination  centre  and

accordingly  sitting  arrangements  in  particular

examination  centers  with  another  candidate

(described in scam as "scorer")  were made which

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facilitated  the  candidate  (described  in  scam  as

“beneficiary”)  to copy from the candidate (scorer)

sitting in front of him from his answer sheet. It was

also revealed that the appellants and conspirators

were  successful  in  their  plan  and  the  appellants

secured the requisite marks in the PMT examination

which  enabled  them  to  get  admission  in  MBBS

course  at  the  cost  of  deserving  candidates  who

despite clearing the examination could not secure

admissions in MBBS Course in the respective years.

10) In support of their decision, the State/Vyapam

filed material which was seized by the Special Task

Force (STF) sleuths in the ongoing investigation. The

material seized consisted of (1) relevant files relating

to  conduct  of  these  examinations  from  Vyapam’s

office  (2)  statement  of  persons  recorded  by  STF

sleuths  involved  in  the  scam  such  as  Vyapam's

officials,  candidates,  their  parents,  outsiders  who

hatched  the  conspiracy  on  receiving  money

consideration  etc.  (3)  computers,  hardware  and

software  used  in  programing  the  examinations

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(4)  benefits   (cash  or  otherwise)   alleged  to  have

been received by  the persons  involved  in the scam

(5)  copies  of  FIR  and  Charge  sheets  filed  against

several accused for commission of offences of fraud,

cheating, conspiracy etc.  (6) Copies of bail orders

(granting  or/and  refusing  bail)  passed  in  several

cases by various courts including the orders of the

High Court passed from time to time in PIL dealing

with the scam (7) order of this Court directing the

CBI  to  take  over  the  ongoing  investigation of  the

Scam from STF (8) Expert Committee's reports on

scam etc.  

11) The appellants, felt aggrieved by the decision of

cancellation  of  their  results,  filed  several  writ

petitions before the High Court of M.P. out of which

these  appeals  arise.  The  challenge  to  the

cancellation of  their  result  was on several  factual

and legal grounds as detailed infra.   

12) The State and Vyapam supported the decision

of  cancellation  of  the  results  and  inter  alia

contended that it  is based on Expert Committee's

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reports,  which  has  taken  into  account  the

aforementioned material for coming to a conclusion

that it was a case of   "mass copying".

13) The High Court upheld the stand taken by the

State/Vyapam and dismissed the writ petitions. The

High Court by its reasoned judgment held inter alia

that  Firstly,  it  was  a  case  of   "mass  copying";

Secondly, the material seized was sufficient for the

Expert Committee for coming to a conclusion that it

was a case of "mass copying” found to have been

done at a large scale by the appellants and other

candidates by resorting to unfair means;  Thirdly,

the decision to cancel the appellants’ result is based

on  Expert  Committee's  report  which  has  applied

their mind to all aspects of the case after taking into

account  all  material  seized  in  investigation  and,

therefore, no fault could be found in such decision

of the Expert Committee; Fourthly, the decision has

been taken in larger public interest; and lastly,  this

being  a  case  of    "mass  copying",   it  was  not

necessary  for  the  State/Vyapam  to  give  any

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opportunity of hearing to any candidate individually

to show cause before cancellation of their results as

has been laid  down by  this  Court  consistently  in

several decided cases referred to hereinbelow.

14) It  is  this  issue,  which is  now carried by the

unsuccessful candidates (appellants) to this Court

in these appeals.

15) The  controversy  in  these  appeals  mainly

centered around to the following legal issues.

16) In  the  first  place,  submission  of  learned

counsel for the appellants was that the perusal of

the materials relied on by the State/Vyapam against

the appellants (though disputed by the appellants)

would go to show that it does not make out a case

of “mass copying” but at best may make out a case

of  unfair  means  resorted  to  by  few  individual

candidates in answering their questions papers. It

was,  therefore,  their  submission  that  since  these

candidates,  who  resorted  to  unfair  means,  were

later  identified,  the  State/Vyapam  should  have

given  show  cause  notices  to  these  candidates

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individually setting out therein the nature of unfair

means  committed  by  each  such  candidate  by

following  the  rule  of  natural  justice,  i.e.,  rule  of

audi alteram partem and after affording the erring

candidates (appellants) an opportunity of hearing by

supplying the alleged material, an appropriate order

should have been passed.

17) Second submission of learned counsel for the

appellants was that there was no material  on the

basis of which the decision to cancel the appellants’

results  could  have  been  taken  by  the

State/Vyapam. It was urged that in any event such

material was neither sufficient and nor relevant for

cancellation of the results and, more so, since it was

not supplied to the appellants, the same was of no

consequence.   

18) Third  submission  of  learned  counsel  for  the

appellants  was  that  the  decision  to  cancel  the

results  was  not  taken  immediately  after  the

examinations  were  over  but  was  taken  after  a

considerable delay and since in the meantime, the

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appellants on the basis of the results altered their

position  and  successfully  completed  their  MBBS

degree  course  or  are  about  to  complete  in  near

future, the cancellation of the results done at such

belated stage is not justified being inequitable and

unreasonable and hence deserve to be set aside. In

the alternative, it was urged that the appellants be

allowed to prosecute their studies on suitable terms

as this Court may deem fit and proper to impose on

the appellants.  

19) Fourth submission of learned counsel for the

appellants  was  that  since  the  constitution  of

Vyapam (Board) was  not done in accordance with

the  requirements  of  the  M.P.  Professional

Examination Board Act,  2007 (hereinafter referred

to as “the Act”)  inasmuch as no notification under

Section 3 of the Act was issued till date, all actions

so far taken including cancellation of the results by

the  Board  are  rendered  illegal  because  these

actions/decisions were  taken by  the  Board which

was not validly constituted.  

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20) The  aforementioned  submissions  were

elaborated by the learned counsel for the appellants

with  reference  to  the  record  of  the  case  and  by

placing reliance on various decisions of this Court.

21) In reply,  learned counsel for the respondents

(State/Vyapam)  supported  the  reasoning  and  the

conclusion  of  the  High  Court  and  prayed  for  its

upholding calling no interference therein.

22) The questions, which arise for consideration in

these appeals, are, Firstly, whether it is a case of

“mass copying”; Secondly, whether the appellants

were  entitled  to  a  show  cause  notice  before

cancellation  of  their  results;  Thirdly,  whether  the

appellants are entitled to claim any equity in their

favour on account of delay occurred on the part of

the State/Vyapam in cancelling their result and, if

so, what relief are they entitled to claim; and lastly,

whether the Vyapam Board was legally constituted

in accordance with the provisions of the Act and if

not  then its  effect  on the  controversy  involved in

these cases.

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23) Before  we  examine  the  aforementioned

questions, it is necessary to take note of the law laid

down by this Court especially the law dealing with

the cases of “copying” and “mass copying”.

24) The first leading case of this Court (Five- Judge

Bench) on the question  of “copying” is  Board of

High  School  and  Intermediate  Education  U.P.,

Allahabad Vs. Ghanshyam Das Gupta and Others,

AIR 1962 SC 1110 = 1962 Supp (3) SCR 36. The

facts of this case were that 3 students of G.S. Hindu

Intermediate  College  of  Sikandrarao  appeared  in

Intermediate  (Commerce)  Examination  in  1954.

These  3  students  passed  the  examination.  In

December  1954,  their  fathers/guardians  received

information that the Examinations Committee had

cancelled  their  results  and  debarred  them  from

appearing in examination to be held in 1955.  

25) These 3 students thereupon filed writ petition

in the High Court contending that the Examinations

Committee  had never  afforded any opportunity  to

them to  rebut  the  allegations  made  against  them

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and that they were never informed about the nature

of unfair means used by them in the examination.  

26) The majority of Judges of the High Court, who

heard  the  writ  petition,  accepted  the  writ

petitioners’ contention and allowed the writ petition.

The Board, therefore, filed an appeal to this Court.

This  Court  affirmed  the  view  taken  by  the  High

Court.  Construing  powers  of  the  Examination

Committee,  in  Rule  1  (1)  of  the  Regulations,  this

Court  held  that  the  Examination  Committee  was

acting  as  quasi-judicially  body  while  exercising

powers under Rule 1 (1) and, therefore, principles of

natural justice should have been observed. Justice

Wanchoo speaking for the Bench held as follows:  

“11….. We are therefore of opinion that the Committee when it exercises its powers under Rule 1(1) is acting quasi-judicially and the principles of natural justice which require that the other party, (namely, the examinee in this case) must be heard, will apply to the proceedings before the Committee. This view was taken by the Calcutta High Court in Dipa Pal  v.  University of  Calcutta,  AIR 1952 Cal 594  and  B.C.  Das  Gupta  V.  Bijoyranjan Rakshit,  AIR  1953  Cal  212  in  similar circumstances and is in our opinion correct.”

27) The  second  leading  case  where  this  Court

(Three-Judge  Bench)  examined  the  case  of

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"copying" and how it should be dealt with by the

concerned  authorities  and the  Court  is  Board of

High School and Intermediate Education, U.P.,

Allahabad and Anr. vs Bagleshwar Prasad and

Anr., AIR 1966 SC 875=(1963) 3 SCR 767.

28) The facts of this case were that two candidates

were found copying in the examination. The charge

of copying was based on the fact that one candidate

had given wrong answer to one question precisely in

the same form in which the said answers had been

given  by  another  candidate.  Both  the  candidates

were accordingly given show cause notice to explain

the  charge.  Both  denied  the  charge.  The  enquiry

committee was then constituted to probe the issue

and  the  committee  came  to  a  conclusion,  after

examining  the  whole  issue,  that  it  was  a  case  of

copying and accordingly cancelled their results.  

29) Both  the  candidates  filed  writ  petition  in

Allahabad High Court. The High Court allowed the

writ petition and set aside the cancellation order. It

was held that the decision to cancel the result is not

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supported by any evidence. The Board appealed to

this Court. This Court allowed the appeal, set aside

the order of the High Court and while upholding the

cancellation of the result dismissed the writ petition

filed by the two candidates.  

30) Justice Gajendragadkar (as His Lordship then

was)  speaking  for  the  Three-Judge  Bench  in  his

distinctive style of writing held in Paras 11 and 12

as under:-

“11. Before the High Court, a statement was filed  showing  the  seating  arrangement  in Room  No.  10  where  the  respondent  was sitting  for  writing  his  answers.  It  appears that he was No. 3 in the 3rd row, whereas the other candidate with Roll No. 94733 was No. 4 in the second row. The High Court was very much  impressed  by  the  fact  that  the respondent could not have looked back and copied  from  the  answer-book  of  the  other candidate, and the High Court did not think that there was any evidence to show that the other candidate could have copied from the respondent's paper with his connivance. We have  looked  at  the  incorrect  answers ourselves  and  we  are  not  prepared  to  hold that  the  identical  incorrect  answers  were given  by  the  two  candidates  either  by accident  or  by  coincidence.  Some  of  the incorrect  answers,  and,  particularly,  the manner  in  which  they  have  been  given, clearly suggest that they were the result of either one candidate copying from the other, or both candidates copying from a common source. The significance of this fact has been completely  missed  by  the  High  Court.  The question before the Enquiry Committee had to be decided by it in the light of the nature

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of the incorrect answers themselves, and that is what the Enquiry Committee has done. It would, we think, be inappropriate in such a case to require direct evidence to show that the respondent could have looked back and copied from the answer written by the other candidate who was sitting behind him. There was still  the alternative possibility that the candidate  sitting  behind  may  have  copied from the respondent with his connivance. It is also not unlikely that the two candidates may  have  talked  to  each  other.  The atmosphere  prevailing  in  the  Examination Hall does not rule out this possibility. These are all matters which the Enquiry Committee had  to  consider,  and  the  fact  that  the Enquiry  Committee  did  not  write  an elaborate report,  does not mean that it  did not consider all  the relevant facts before it came to the conclusion that the respondent had used unfair means. 12. In dealing with petitions of this type, it is necessary to bear  in mind that  educational institutions like the Universities or Appellant 1 set up Enquiry Committees to deal with the problem  posed  by  the  adoption  of  unfair means  by  candidates,  and  normally  it  is within  the  jurisdiction  of  such  domestic Tribunals to decide all relevant questions in the  light  of  the  evidence  adduced  before them. In the matter of the adoption of unfair means,  direct  evidence  may  sometimes  be available,  but  cases  may arise  where  direct evidence  is  not  available  and  the  question will  have  to  be  considered  in  the  light  of probabilities  and  circumstantial  evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is  justification to do so, courts should be slow to interfere with the  decisions  of  domestic  Tribunals appointed  by  educational  bodies  like  the Universities.  In  dealing  with the validity of the impugned orders passed by Universities under  Article  226,  the  High  Court  is  not sitting  in  appeal  over  the  decision  in question;  its  jurisdiction  is  limited  and though it is true that if the impugned order is not supported by any evidence at all, the

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High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to  whether  probabilities  and  circumstantial evidence do not justify the said conclusion. Enquiries held by domestic Tribunals in such cases  must,  no doubt,  be  fair  and students against  whom  charges  are  framed  must  be given  adequate  opportunities  to  defend themselves,  and  in  holding  such  enquiries, the Tribunals must scrupulously follow rules of natural justice; but it would, we think, not be reasonable to import into these enquiries all  considerations  which  govern  criminal trials in ordinary courts of law. In the present case,  no animus is  suggested  and no  mala fides have  been  pleaded.  The  enquiry  has been  fair  and  the  respondent  has  had  an opportunity  of  making  his  defence.  That being so,  we think the High Court was not justified  interfering  with  the  order  passed against the respondent.”

31) In  the  third  leading  case  of  Bihar  School

Examination Board vs Subhas Chandra Sinha

& Ors. (1970) (1) SCC 648, this Court (Three-Judge

Bench) examined the question of    "mass copying"

or  I  may  say  “unfair  means  practiced  on  a  large

scale  in  examination”  and  how  the  concerned

authorities  and  the  courts  qua the  candidates

should deal with such case.   

32) The  facts  of  this  case  were  that  the  Bihar

School  Examination  Board  (for  short  "Board”)

conducted annual Secondary School Examination in

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the State of Bihar. Several candidates appeared at

various centres all  over  the State.  36 students  of

two schools namely, S.S.H.E School Jagdishpur and

H.E.  School  Malaur  of  District  Shahbad  (Bihar)

appeared in the examination at Hanswadih Centre.

The results of  all  the candidates were declared in

papers except the results of the 36 candidates of the

two schools who had appeared in the examination

from Hanswadih Centre. After sometime, news was

published in the paper that the examinations of all

subjects held at Hanswadih Centre were cancelled

and the reason given for cancellation was that the

candidates at this Centre practiced unfair means on

a large scale. However, the candidates of this Centre

were  allowed  to  appear  in  the  supplementary

Secondary School Examination.  

33) The  candidates  challenged  the  order  of

cancellation of their results in writ petition in the

High  Court  of  Patna  on  the  ground  that  before

cancelling  the  result,  the  rules  of  natural  justice

and  fair-play  were  not  observed  because  the

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candidates  were  not  afforded  any  opportunity  of

hearing before cancellation of their results.

34) The High Court accepted the submission and

allowed the writ petition by quashing the order of

cancellation of their results. Against the decision of

the High Court of Patna, the Board appealed to this

Court.  This  Court  ordered  production  of  answer

books for their inspection and compared them.  The

comparison  showed  remarkable  agreement  in  the

answers  that  students  had  assistance  from  an

outside  source.   This  Court  allowed  the  Board's

appeal, set aside the order of the High Court and

dismissed the writ petition filed by the candidates

and upheld the cancellation of the results.

35) Justice  Hidayatulla-the  learned  Chief  Justice

speaking  for  the  Three-Judge  Bench  in  his

inimitable style of writing distinguished the case of

Ghanshyamdas Gupta (supra) and held in paras 13

and 14 as under:-  

“13.  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

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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  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.

14.  Reliance  was  placed  upon  Ghanshyam Das Gupta case 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 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

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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 are managed 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 university’s 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.”  

36) In  the  fourth  leading  case  of  Prem Parkash

Kaluniya Vs. Punjab University and Ors., (1973) 3

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SCC 424,  which  involved  identical  facts  alike  the

facts  of  the  case  of  Bagleshwar  Prasad  (supra)

involving two students whose results were cancelled

on the ground of using unfair means of copying in

the  examination,  this  Court  (Three-Judge  Bench)

relied  on  facts  and  law laid  down in  Bagleshwar

Prasad (supra) and upheld the cancellation of the

results.  

37) Justice Grover speaking for the Bench held in

paras 11 and 12 as under:-

“11. A good deal of emphasis had been laid on the answers which were given by the two candidates  and  our  attention  had  been invited  to  the  discrepancies  between  the details of the answers contained in the two answer books. It was further pointed out that the appellant had made rough calculations at the back of the answer book which showed that  he had  worked out  the answer  on  his own  without  the  aid  of  any  other  source which  could  be  regarded  as  common  from which  the  other  candidate  was  alleged  to have copied. These, however, are matters on which the court cannot entertain a petition under  Article  226.  It  was  for  the  Standing Committee to arrive at its own conclusion on the evidence before it and the same cannot be  re-examined  except  on  very  limited grounds which have not been established. We are also unable to see how the finding of the Standing  Committee  could  be  regarded  as vague  or  as  having  been  based  on  no evidence.

12.  In  Board  of  High  School  and

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Intermediate Education, U.P. v.  Bagleshwar Prasad in which the facts were very similar, it  was  held  that  the  identity  of  the  wrong answers given by the respondent in that case with that of the other candidate bearing the consecutive Roll Number rendered the charge of  the  respondent  having  employed  unfair means highly probable and that the findings of  the  enquiry  committee  based  upon such probabilities  and  circumstantial  evidence could not be said to be based on no evidence as  in  such  matters  direct  evidence  quite often  cannot  be  available.  It  was  further pointed out that in dealing with these cases the  problem  faced  by  such  institutions should be appreciated by the High Court and so  long  as  the  enquiry  held  was  fair  and afforded  the  candidate  an  opportunity  to defend  himself,  the  matter  should  not  be examined  with  the  same  strictness  as applicable to criminal charges in the ordinary courts  of  law.  There  is  hardly  any justification  for  saying  in  the  present  case that the finding of the Standing Committee was based on no evidence.”    

38) In the fifth case of  B. Ramanjini & Ors. vs.

State of A.P. & Ors. (2002) 5 SCC 533,  the facts of

the  case  were  that  the  State  authorities  had

cancelled  the  examination  held  for  selecting

secondary  school  teachers  after  noticing  certain

complaints of  "mass copying" found to have been

done  by  the  candidates  in  the  examination  in

respect of Anantapur District.

39) Justice Rajendra Babu (as His Lordship then

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was) speaking for the Bench took note of  the law

laid  down  in  the  case  of  Bihar  School

Examination (supra)  and  while  upholding  the

decision  of  cancellation  of  the  result  of  the

candidates held as under:

“8. Further, even if it was not a case of mass copying or leakage of question papers or such other  circumstance,  it  is  clear  that  in  the conduct of the examination, a fair procedure has  to  be  adopted.  Fair  procedure  would mean that the candidates taking part in the examination  must  be  capable  of  competing with each other by fair  means.  One cannot have  an advantage  either  by  copying or  by having a foreknowledge of the question paper or otherwise.  In such matters wide latitude should be shown to the Government and the courts should not unduly interfere with the action taken by the Government which is in possession of the necessary information and takes  action  upon  the  same.  The  courts ought  not  to  take  the  action  lightly  and interfere  with  the  same  particularly  when there was some material for the Government to act one way or the other. Further, in this case,  the  first  examinations  were  held  on 19-4-1998. The same stood cancelled by the order  made  on  15-5-1998.  Fresh examinations  were  held  on  11-7-1998  and results  have  been  published  on  29-7-1998. Interviews were however held on 29-7-1998 (sic 27-8-1998)  in  such  cases.  The  events have  taken  place  in  quick  succession.  The parties  have  approached  the  court  after further  examinations  were  held  and  after having  participated  in  the  second examination.  It  is  clear  that  such  persons would  not  be  entitled  to  get  relief  at  the hands  of  the  court.  Even  if  they  had  not participated in the second examination, they need not have waited till the results had been

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announced and then approached the Tribunal or  the  High  Court.  In  such cases,  it  would lead  to  very  serious  anomalous  results involving  great  public  inconvenience  in holding  fresh  examinations  for  a  large number  of  candidates  and  in  Anantapur district  alone  nearly  1800  candidates  were selected as a result of the examinations held for the second time. Therefore, we think, the High Court ought not to have interfered with the  order  made  by  the  Government  on 15-5-1998  in  cancelling  the  examinations and holding fresh examination.”

40) In  the  sixth  case  of  Union  Public  Service

Commission vs. Jagannath Mishra, (2003) 9 SCC

237, the facts were identical to the facts of the cases

of  Bagleshwar Prasad and Prem Prakash Kalunia

(supra). In this case also two candidates sitting in

close proximity in examination centre copied from

each other.  The committee examined their answer

papers and found that answers were matching with

each other. Their results were accordingly cancelled

which  led  to  filing  of  petition  first  before  the

Tribunal and then to the High Court successfully.

However, when the matter came to this Court at the

instance of UPSC, this Court placed reliance on the

law  laid  down  in  Bagleshwar  Prasad  and  Prem

Prakash  Kalunia (supra)  and  while  allowing  the

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UPSC's appeal, set aside the orders of the Tribunal

and  the  High  Court  and  upheld  the  decision  of

cancellation of the result. It is apposite to reproduce

what is held by this Court in para 4 as under:

“4. Before we answer the questions posed, to have  our  conscience  clear,  we  had  called upon UPSC to produce the answer papers of both  the  candidates.  We  have  carefully scrutinised  the  answer  papers  of  both  the candidates and on a thorough scrutiny of the same, we have no doubt in our mind that but for  assistance  and/or  connivance  of  the respondent it  would not have been possible for  the  other  candidate  to  answer  in  the manner  in  which  he  has  answered.  As  has been stated by this Court in the case of Prem Parkash Kaluniya v.  Punjab University in a matter like this it  would be difficult to get direct evidence and so long as an inquiry is held to be fair and it  affords the candidate adequate opportunity to defend himself, the matter should not ordinarily be examined by courts with the same strictness as applicable to  criminal  charges.  The  Court  had  further held  that  where  findings  are  based  on probabilities  and  circumstantial  evidence, such  findings  cannot  be  said  to  have  been based on no evidence. From the facts alleged, it is crystal clear that the respondent was a brilliant student. But, if a brilliant student is found to have adopted any unfair means in a competitive examination, he will have to bear the  consequences  of  the  same.  Since  we ourselves  have  examined  the  two  answer papers  in  question  and  have  come  to  the conclusion  that  but  for  the  assistance  or connivance of the respondent in some way or the other, it would not have been possible for the other candidate to answer his  question paper  in  the  manner  in  which  he  has answered,  who  was  sitting  just  behind  the respondent,  we  see  no  justification  for  the Tribunal to interfere with the conclusion of UPSC. The judgment of this Court on which

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the Tribunal  as well  as the High Court  has placed  reliance  will  have  no  application  to the case in hand. In that view of the matter, we  are  of  the  considered  opinion  that  the Tribunal  committed  serious  error  in interfering with the conclusion of UPSC and in interfering with the punishment awarded by it. The High Court also committed error in affirming the said decision of the Tribunal. It is true that there has been no report from the invigilator indicating any malpractice by the respondent  or  the  person  who  was  sitting behind him. But, mere absence of such report would  not  be  sufficient  to  exonerate  the delinquency, if otherwise a conclusion could be arrived at that but for the assistance of the respondent the candidate sitting behind him could not have copied in the manner he has done. The Tribunal as well  as the High Court  committed  serious  error  by  giving extra weightage for the absence of any report from the invigilator. It cannot be held as a principle  that  wherever  there  is  no  report from  the  invigilator  indicating  adoption  of malpractice  in  any  examination  the appropriate  authority  cannot  come  to  the conclusion  about  the  adoption  of malpractice.  It  would  always  be  a  case depending upon the materials produced and there would be no bar for an expert body to come to a definite conclusion about adoption of malpractice in an examination even in the absence of a report of the invigilator to that effect. It would always be a question of fact to  be  decided  on  the  basis  of  materials produced before the expert body.”

41) In  the  seventh  leading  case  decided  by

(Three-Judge  Bench)  in  Chief  General  Manager,

Calcutta  Telephones  District,  Bharat  Sanchar

Nigam Ltd. & Ors. Vs. Surendra Nath Pandey &

Ors., 2011 (15) SCC 81, the facts of the case were

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that  B.S.N.L.  a  Government  Company  conducted

departmental examination for granting promotion to

the  post  of  Junior  Accounts  Officers  to  their

employees.  The  results  were  displayed  containing

the  names  of  successful  and  unsuccessful

candidates.  Some  unsuccessful  candidates  then

made a representation as required under Rule 13 of

Telegraph Manual requesting for disclosure of their

marks obtained by them in the examination. This

request  was  not  acceded  to  and  hence  these

candidates filed O.A. before CAT. The CAT directed

BSNL to publish the results, allow the candidates to

appear  in  the  examination  next  year  and  pass

appropriate  orders  on  their  representation.  The

authorities  concerned  disposed  of  the

representation stating that some irregular practices

were noticed in the examination attributable to the

candidates who resorted to unfair means and hence

their results were cancelled.  

42) The candidates filed writ petitions against this

order  in  Calcutta  High  Court.  The  learned  single

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Judge  allowed  the  writ  petition  and  held  that

B.S.N.L could not prove that it was a case of “mass

copying” attributable  to  candidates.  The  appeal

filed  by  B.S.N.L  having  been  dismissed  by  the

Division Bench, the matter  came to this  Court at

the  instance  of  B.S.N.L.  This  Court  allowed  the

appeal,  set  aside  the  orders  of  High  Court  and

dismissed the candidates’ writ petition.  

43) Referring  to  and  placing  reliance  on  all  the

aforementioned  cases  referred  to  above,  Justice

Nijjar speaking for the Bench held in paras 28 and

33 as under:-

“28. We are of  the considered opinion that the  procedure  adopted  by  the  appellants cannot be  said  to be  unfair  or  arbitrary.  It was a reasonable and fair procedure adopted in the peculiar circumstances of the case. It cannot  be  said  to  be  in  breach  of  rules  of natural justice. It must be remembered that rules  of  natural  justice  are  not  embodied rules.  They cannot be put in a straitjacket. The purpose of rules of natural justice is to ensure  that  the  order  causing  civil consequences is not passed arbitrarily. It is not  that  in  every  case  there  must  be  an opportunity of oral hearing.

33. As noticed earlier,  in  the present  case, the appellants had adopted a very reasonable and a fair approach. A bona fide enquiry into the  fact  situation  was  conducted  by  a committee  of  high-ranking  officers  of  the

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Department. In our opinion, the High Court was wholly unjustified in interfering with the decision  taken  by  the  appellants  in  the peculiar  circumstances  of  the  case.  It  is settled beyond cavil that the decisions taken by  the  competent  authority  could  be corrected provided it is established that the decision  is  so  perverse  that  no  sensible person,  who  had  applied  his  mind  to  the question to be decided could have arrived at it.  The  aforesaid  principle  is  based  on  the ground of irrationality and is known as the Wednesbury  principle.  The  court  can interfere  with a  decision,  if  it  is  so  absurd that  no  reasonable  authority  could  have taken  such  a  decision.  In  our  opinion,  the procedure adopted by the appellants cannot be  said  to  be  suffering  from  any  such irrationality  or  unreasonableness,  which would  have  enabled  the  High  Court  to interfere with the decision.”

44) After  examining  the  facts  and  the  law  laid

down  in  abovementioned  seven  cases,  in  my

opinion, the ratio laid down in these cases can be

summarized thus :  First,  in a case where several

candidates are found involved in  “mass copying”

or in other words, where vast majority of candidates

were found to have resorted to use of unfair means

in any examination then it is not necessary for the

concerned Institute to give any show cause notice to

any individual candidate before cancellation of his

result; Second, when it is difficult to prove by direct

evidence  that  the  “copying”  was  done  by  the

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candidates then the same can be proved by drawing

inference based on probabilities and circumstantial

evidence;  Third,  there  are  several  ways  in  which

unfair means can be resorted to by the candidates

for doing copying individually or in the large scale

by vast majority of  candidates; Fourth,  where few

candidates are found involved in doing copying then

it  is  necessary  to  give  to  individual  candidate   a

show  cause  notice  by  following  rules  of  natural

justice before taking any action against him; Fifth,

there  must  be  some  material  (whether  direct  or

based on probabilities and circumstances) to prove

that a candidate resorted to unfair means for doing

copying in answering his question paper; Sixth, if

there is adequate material to prove that the copying

was  done  by  individual  candidate  or  by  the

candidates on a large scale then even if no report

was  submitted  by  any  invigilator  of  any  such

incident yet it would be of no significance; Seventh,

the Court should not act as an appellate Court over

the  decision of  Expert  Committee  to  examine  the

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issue  of  “copying”  or/and  “mass  copying”,  i.e.,

copying done on a large scale by vast majority of

candidates and more so when the Expert Committee

has found the candidate guilty of resorting to unfair

means;  Eighth,  the  Court  should  be  slow  to

interfere  in  the  decision  taken  by  the  Expert

Committee in such cases; Ninth,  if wrong answers

of  two candidates sitting in close proximity tallies

with  each  other  then  it  would  be  a  strong

circumstance  of  copying  done  by  these  two

candidates;  Tenth,  this  Court  has  consistently

maintained  a  distinction  between  a  case  of

“copying”  and “mass copying”, i.e. copying done

on a large scale by vast majority of candidates for

applying the rules of natural justice to the case. In

the case of former, rules of natural justice would be

applicable  and  hence  show  cause  notice  to

individual  candidate  who  is  accused  of  doing

copying  will  have  to  be  given  to  such  candidate

whereas in  the  case of  later,  the rules of  natural

justice  are  not  applicable  and  hence  it  is  not

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necessary  to  give  any  show  cause  notice  to  any

candidate involved in mass copying; and Eleventh,

the  use  of  unfair  means  by  any  candidate  is  a

serious matter  because it  affects the credibility  of

the examination and, therefore, once such charge is

held proved against any such candidate, the matter

needs to be dealt with sternly in relation to erring

candidates.

45) When I examine the facts of the case at hand

in the light of ratio laid down in the  aforementioned

cases, then I find that the facts of the case at hand

are identical partly to the facts of the case of Bihar

School Examination Board  (supra) and partly to

the  facts  of  Bagleshwar Prasad  and  Prem

Prakash (supra).  This  I  say  for  the  following

reasons.  

46) First,  this  is  a  case  where  large  number  of

candidates  (more  than  two  hundred)  in  the

examinations held from 2008 to 2012 were found

involved  in  copying  like  what  was  noticed  in  the

case of  Bihar School Examination (supra) where

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36  candidates  were  found  involved  in  copying.

Second, there was uniform pattern adopted by the

candidates for doing copy in the examinations. This

circumstance lends support to the fact that  “mass

copying” was done by the candidates in a planned

manner;  Third,  candidates who managed to sit  in

pair in close proximity (described as  "scorer" and

"beneficiary"),  their  wrong  answers  consistently

matched  with  each  other.  This  circumstance  was

relied on in the cases of  Bagleshwar Prasad and

Prem  Prakash  Kalunia (supra)  for  forming  an

opinion that both the candidates copied from each

other;  Fourth,  the  material  seized in  investigation

prima facie established that  “mass copying”  was

done in a planned manner by the several candidates

(appellants  herein)  to  enable  them to  answer  the

questions;  Fifth,   interpolations  were  found  in

sitting  plan  originally  made  by  Vyapam for  some

years  to  accommodate  the  candidates  (appellants)

and others like the appellants to sit in a particular

examination  center  in   close  proximity  with  each

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other so that they are able to copy from each other;

Sixth,  many  candidates  despite  clearing  the

examination did not take admission in any medical

college. There was no satisfactory answer given by

them barring very few; Seventh, material seized in

investigation  was  found  sufficient  by  the  Expert

Committee to form an opinion that it was a case of

“mass copying”. In addition it was also established

on  probabilities  and  circumstantial  evidence  that

the  candidates  in  large  scale  which  included  the

appellants  did  mass  copying;  Eighth,  the  Expert

Committee examined the issues from all angles and

analyzed  the  material  seized  for  coming  to  a

conclusion that  it  was a case of  “mass copying”

done by the candidates in large scale as a part of a

planned strategy and that they used unfair means;

Ninth, allegations of  mala fides were not alleged in

the  writ  petitions  by  any  candidate  against  any

member of Expert Committee or/and officials of the

State/Vyapam; Tenth, the  writ court rightly did not

act as an appellate court to reverse the decision of

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Expert Committee; Eleventh, the formula evolved by

the Expert Committee was usually applied in such

type  of  cases  by  various  institutions  and  no

perversity  or/and arbitrariness was shown by the

appellants in the formula except to contend that it

was not a proper formula; and lastly, the expression

"mass  copying" not  being  defined  in  any

Act/Regulation/Rules,  its  meaning  in  ordinary

parlance  can  be  summed up  as  "sizable  or  large

number of candidates found copying or discovered to

have copied while answering their question paper by

using  unfair  means  in  examination".   In  my view,

this fully applies to the facts of the case at hand.   

47)  I  am  not  impressed  by  the  submissions  of

learned counsel for the appellants when they made

attempt to find fault in the material relied on by the

State/Vypaym  against  the  appellants  and

contended that it is not a material at all, and in any

event, it is irrelevant and hence can not be looked

into for any purpose. It was also urged that since it

was not supplied to the appellants and hence it is of

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no use.    

48) As held above,  Firstly,  neither the writ  court

and nor this Court could sit as an appellate Court

over the decision of the Expert Committee and find

fault  in  the  material  relied  on by  the  Committee;

Secondly,  the  method evolved by  the  experts  was

usually  applied  to  find  out  as  to  whether  two

candidates had copied from each other and hence

no fault could be noticed in it; Thirdly, the decision

to  cancel  the  results  was  based  on  other

contemporaneous  material  seized  during  the

investigation  by  STF;  Fourthly,  the  decision  to

cancel the results was not taken in post-haste but

was  taken  with  full  application  of  mind  by  the

Expert  Committee  which  consists  of  experts  in

subjects  and  lastly,  this  being  a  case  of  “mass

copying”,   it  was  neither  necessary  to  give  any

show  cause  notice  to  the  appellants  and  nor

necessary to supply the material to the appellants.

It  is  for  these  reasons,  I  find  no  merit  in  this

submission.

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49) Though  an  attempt  was  made  by  learned

counsel for the appellants to distinguish the cases

cited above but I am unable to notice any significant

distinction.  This Court, therefore, has to apply the

law laid down in these cases for deciding the case at

hand. It is all the more because the learned counsel

for the appellants did not challenge and in my view

rightly, the correctness of the view taken in any of

these decisions.

50) In  the  light  of  detailed  discussion  and  the

reasoning  given  supra,  I  am  of  the  considered

opinion that it is a clear case of what is called in

ordinary parlance a “mass copying”  and I have no

hesitation in holding so.  I am also of the opinion

that  the  procedure  adopted  by  the  State/Vyapam

cannot be said to be unfair or arbitrary.  I am also

of  the  view  that  the  action  impugned  is  not  in

breach  of  rules  of  natural  justice  which  has  no

application to the facts of this case as held in the

cases  of  Bihar  School  Examination  and  BSNL

(supra). It is a settled principle that rules of natural

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justice are not embodied rules and hence such rules

cannot be put in a strait-jacket.  The object of the

rules of natural justice, is only to ensure that order

causing  civil  consequences  should  not  be  passed

arbitrarily.  It is not that in every case, there must

be  an  opportunity  of  oral  hearing  to  person

concerned. This principle, in my view, applies to the

case at hand.    

51) This  takes  me  to  the  next  submission  of

learned  counsel  for  the  appellants,  namely,  that

since  there  was  inordinate  delay  in  taking  the

decision  to  cancel  the  examination  and  in  the

meantime the appellants have altered their position

by completing their degree course, or are about to

complete the Course in near future and hence this

Court  should  protect  the  appellants’  interest  on

equitable considerations. I do not agree.

52) The  issue  of  somewhat  similar  nature  was

examined by this Court in the case of  Ram Preeti

Yadav  vs.  U.P.  Board  of  High  School  and

Intermediate Education and Ors., (2003)  8 SCC

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311.   In this case, the facts were that in the year

1984, Mr. Mahendra Pratap Yadav (respondent No.3

therein)  appeared  as  private  candidate  in

intermediate  examination conducted by  U.P.Board

of  High  School  and  Intermediate  Education.  Mr.

Yadav's result was withheld as a suspected case of

using  unfair  means  in  the  examination.  He  was,

however, issued two provisional mark sheets. In one

mark  sheet,  it  was  mentioned  that  his  result  is

withheld  (WB)  whereas  in  other  it  was  not.  Mr.

Yadav  on  the  basis  of  provisional  marks-sheet

which  did  not  mention  withholding  of  his  result

took admission in B.A. and cleared the examination.

He also thereafter cleared M.A. examination. He was

then selected as a teacher. In the year 1993,  an

inquiry  was  made  pursuant  to  which  he  was

informed in 1996 that his intermediate examination

result,  which  was  held  in  the  year  1984,   is

cancelled.  

53) Challenging the cancellation of his result,  Mr.

Yadav  filed  writ  petition  in  the  High  Court  at

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Allahabad  on  three  grounds:  Firstly,  he  was  not

afforded any opportunity of hearing before his result

was  cancelled;  Secondly,  the  cancellation  of  the

result was done after almost 10 years and hence it

is  wholly  arbitrary;  and  Thirdly,  since  in  the

meantime,  he  cleared  BA  and  MA  Examinations

with good percentage and  secured employment as a

teacher,  the  cancellation  of  his  intermediate

examination result is bad in law.  

54) A learned Single Judge of the High Court was

of the view that since Mr. Yadav has successfully

cleared  BA  and  MA  Examinations  and  has  also

secured  employment  due  to  his  brilliant

performance  in  BA  and  MA  Examinations,  why

should  his  career  be  ruined.  It  was  on  these

grounds,  his  writ  petition  was  allowed  and

cancellation of his result was set aside. The appeal

filed  by  the  Board  and  the  institute  against  the

order of Single Judge was dismissed and hence the

Board carried the matter in appeal to this Court.  

55) This  Court  allowed  the  appeal  and  while

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rejecting  the  aforementioned  three  grounds  of

challenge, set aside the order of the High Court and

dismissed  the  writ  petition.  This  Court  while

rejecting the submissions placed reliance on earlier

decision  of  this  Court  rendered   in  Madhyamic

Shiksha Mandal M.P. vs. Abhilash Shiksha Prasar

Samiti & Ors., (1998) 9 SCC 236 and quoted para 2

of  Madhyamic Shiksha Mondal’s  case (supra)  in

support of their reasoning which  reads as under:-  

“2. We feel  a little  distressed that in matter like this the High Court should have interfered with  the  decision  taken  by  the Board…........................  In  the  face  of  this material, we do not see any justification in the High Court having interfered with the decision taken by the Board to treat the examination as cancelled.  It  is  unfortunate  that  the student community  resorts  to  such  methods  to succeed  in  examinations  and  then  some  of them come forward to contend that innocent students become victims of such misbehaviour of their companions. That cannot be helped. In such  a  situation  the  Board  is  left  with  no alternative but to cancel the examination. It is extremely  difficult  for  the  Board  to  identify the innocent students from those indulging in malpractices.  One  may  feel  sorry  for  the innocent students  but  one has to  appreciate the situation in which the Board was placed and the alternatives that were available to it so far as this examination was concerned. It had no alternative but to cancel the results and we think,  in  the  circumstances,  they  were justified  in  doing  so.  This  should  serve  as  a lesson to the students that such malpractices will not help them succeed in the examination and they may have to go through the drill once

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again. We also think that those in charge of the  examinations  should  also  take  action against  their  Supervisors/Invigilators,  etc., who  either  permit  such  activity  or  become silent spectators thereto. If they feel insecure because of the strong-arm tactics of those who indulge  in  malpractices,  the  remedy  is  to secure  the  services  of  the  Uniformed Personnel, if need be, and ensure that students do not indulge in such malpractices.”

56) This  Court  then equated the incident  of  this

nature with fraud played by the candidate and held

in Paras 13,14 and  26 of Ram Preeti Yadav’s case

which read as under:  

“13. Fraud is  a  conduct  either  by letter  or words,  which  induces  the  other  person  or authority  to  take  a  definite  determinative stand as  a  response  to  the  conduct  of  the former  either  by  words  or  letter.  Although negligence is not fraud but it can be evidence on fraud.  (See  Derry v.  Peek,  (1889)  14 AC 337) 14. In  Lazarus  Estates  Ltd. v.  Beasley, (1956)  1  All  ER  341, the  Court  of  Appeal stated the law thus: (All ER p. 345 C-D)

“I cannot accede to this argument for  a  moment.  No  court  in  this land will  allow a person to keep an  advantage  which  he  has obtained by fraud. No judgment of a  court,  no  order  of  a  minister, can be allowed to stand if it has been  obtained  by  fraud.  Fraud unravels everything. The court is careful not to find fraud unless it is  distinctly pleaded and proved; but  once  it  is  proved  it  vitiates judgments,  contracts  and  all transactions whatsoever;”

26. Further, we find that there is no equity in favour of Respondent 3, inasmuch as he knew

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that his result had been withheld because of the allegation of having used unfair means in the  examination.  Suppressing  this  fact,  he took admission in BA and studied further.”           

57)  Applying the aforesaid law to the facts of the

case  at  hand,  I  find  that  the  appellants  are  not

entitled to claim any equitable relief on the ground

that they have almost completed their course during

the interregnum period and hence no action on the

basis of their PMT Examination results is called for.  

58) In my view, when in the case of  Ram Preeti

Yadav (supra), the decision to cancel the result was

taken after 10 years of the examination in which he

had  appeared  and  in  the  meantime,  he  had  also

completed  his  higher  studies  and  secured  an

employment  yet  this  Court  was not  impressed by

such submission and rejected it in express terms.

So is the case here where delay in cancellation of

the result  is  less as compared to the case of  Mr.

Yadav.  That  apart,  the  case  at  hand  prima  facie

established a case of  “mass copying” attributable

to the appellants who resorted to unfair means in a

planned  way  in  the  PMT  examination  and  lastly,

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when any action is done discretely, it takes times to

discover.

59) Learned  counsel  for  the  appellants  placed

reliance upon the decision in Priya Gupta Vs. State

of Chhattisgarh and ors.,  (2012) 7 SCC 433 and

contended that this Court should invoke its extra-

ordinary  jurisdiction  under  Article  142  of  the

Constitution as was exercised in the case of  Priya

Gupta for  granting  relief  to  the  appellants  on

equitable  terms  and  conditions  and  allow  the

appellants to continue their study in MBBS Degree

course.  I  cannot  accept  this  submission for  more

than one reason.  

60) First,  the  facts  of  the  case  at  hand and the

facts  of  the  case  of  Priya  Gupta (supra)  are  not

similar  because  in  the  case  of  Priya  Gupta,  the

right of only one candidate was involved whereas in

the  case  at  hand large  number  of  candidates  are

involved.  Second,  when  this  Court  invokes  its

extra-ordinary jurisdiction under Article 142 of the

Constitution  which  is  indeed  rare  and  should

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indeed  be  rare  for  its  invocation,  it  is  always

confined  to  the  particular  facts  of  that  case  and

cannot be cited as a law laid down by this Court.

Third, when in similar type of cases, this Court did

not  grant  any  equitable  relief  to  the  erring

candidates  except  permitted  the  candidates  to

appear in the supplementary examination (see Para

2  of  Bihar School  Examination case  (supra)  at

page 649 of the report where this Court upheld such

direction while allowing the appeal filed by Board),

then in my view, the same principle should apply to

this case also.  Fourth, once the cancellation of the

Examination results is upheld as being just, legal

and  proper,  then  its  natural  consequence  must

ensue.  In  other  words,  once  the  examination  is

cancelled  irrespective  of  ground  on  which  it  is

cancelled  then  candidates  whose  results  are

cancelled have to repeat the examination whenever

it is held.  They can not take any benefit of such

examination like those candidates who successfully

passed  the  examination  with  their  merit.  Fifth,

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having  regard  to  the  nature  of  the  controversy

involved in the case coupled with the complicity of

several  persons  in  the  Scam  and  the  manner  in

which the appellants cleared the examination which

gave  rise  to  initiation  of  criminal  proceedings

(though pending) against the appellants and several

others,  the  exercise  of  extraordinary  equitable

jurisdiction under Article 226 for grant of equitable

relief of any nature  to the appellants is not called

for and if granted, it will be against the settled legal

position laid down by this Court. Since no equitable

relief under Article 226 is called for, as a corollary,

the question of invoking our extraordinary powers

under Article 142 does not appear to be proper.  In

any case, in the light of the finding recorded by this

Court against the appellants which has resulted in

upholding of the impugned order of the High Court,

this is not a fit case for invocation of extraordinary

equitable  jurisdiction  available  under  Article  142.

Sixth, grant of any equitable relief may be construed

as awarding premium to the appellants of what they

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did.  It  would  demoralize  the  meritorious students

who could not secure the admission on their merit

due to the appellants’ entry in the Colleges by illegal

means.  Seventh,  this  is  not  a  case  where  the

appellants’ results were cancelled on some technical

ground and  that  too  attributable  to  the  State.  In

other words, if the cancellation had been done on a

cause  not  attributable  to  the  appellants  then

perhaps this Court would have considered grant of

appropriate prayer to the appellants. However, such

is not the case here.  Eighth, grant of any equitable

relief,  as  prayed by the appellants,  once they are

held  responsible  for  cancellation  of  their  results

would  affect  the  creditability  in  conducting  the

examination  and  cause  more  harm  to  the

candidates  as  a  whole  and  especially  those  who

prepare for their examination sincerely and on their

merit.  In my view it will not be, therefore, in larger

public  good  in  long  run  to  entertain  any  such

prayer.  Ninth,  since  the  appellants,  are  in  their

youth, they can still appear in the examination and

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clear it with distinction by proving their merit.  And

lastly, grant of any such relief to the appellants may

amount to  some extent  travelling beyond the real

controversy  and  may  be  considered  inconsistent

with the main findings rendered by this Court.  

61) In these circumstances, the State may consider

permitting the appellants and other candidates alike

the  appellants  to  appear  in  the  competitive

examination  whenever  it  is  held  and  consider

granting  age  relaxation  to  those  candidates  who

crossed the age limit, if prescribed.  Such liberty, if

granted, would not  cause any prejudice to any one

and at the same time would do substantial justice

to all such candidates as was done in the case of

Bihar School Examination (supra). Beyond this, in

my view, the appellants are not entitled to claim any

indulgence.  

62) Learned  counsel  for  the  appellants  cited

several cases, such as  Union of India & Anr. Vs.

Tulsiram  Patel, (1985)  3  SCC  398,  Dr.  Dinesh

Kumar & Ors. vs. Motilal Nehru Medical College,

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Allahabad  &  Ors.,  (1985)  3  SCC  542,  State  of

Maharashtra  &  Ors.  vs.  Jalgaon  Municipal

Council & Ors., (2003) 9 SCC 731 and Situ Sahu &

Ors. vs. State of Jharkhand & Ors., (2004) 8 SCC

340 etc. in support of their submissions.  Perusal of

these decisions would show that  this Court in these

decisions  has  explained  the  general  principle  of

rules of  natural justice and how this principle is

applicable to a particular case.  

63) This Court has laid down in these cases that

the  applicability  of  rules  of  natural  justice  is  not

static but it has different facets and, therefore, its

applicability vary  from case to case. I find that none

of these cases has dealt with the cases of “copying”

or “mass copying”.  In my view, when  the question

as regard the applicability of rules of natural justice

has already been decided by this Court in several

cases  relating  to  “copying” and  “mass  copying”

then  the  law  laid  down  in  such  cases  must  be

applied to the cases at hand and not the one which

lays down the law which explains the principle in

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general.   Similarly,  the  last  case  cited  has  no

application to the facts of this case because it deals

with the applicability of rule to the case relating to

the land.  It  is for these reasons,  the submission

based on the case law cited  has no merit.   It  is

accordingly rejected.  

64) This  takes  me  to  the  issue  regarding

constitution of Vyapam under the Act and its effect

on the controversy in question.  Since this issue has

been elaborately dealt with by my esteemed Brother,

I  respectfully  agree  with  His  Lordship's  reasoning

and the conclusion and hence do not wish to add

anything.

65) It  is  pertinent to mention that  this Court by

order dated 08.08.2014 has dismissed one S.L.P. (c)

No. 16257 of 2014 in limine arising out of the order

of  the  High  Court  dated  11.04.2014  in  W.P.  No.

20342 of 2013 entitled Km. Pratibha Singh & Ors.

vs.  State & Ors.  and other connected matters.

This writ petition was filed by the candidates who

had appeared in the PMT examination held in the

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year  2013.   The results  of  these  candidates  were

also cancelled on the same grounds on which it was

cancelled in the cases at hand. i.e.,  in relation to

candidates of  the years 2008 to 2012.  The High

Court by order dated 11.04.2014 dismissed the writ

petitions and upheld the cancellation of the results.

In  fact,  the  impugned  judgment  in  this  case  has

followed  in  extenso the main decision rendered in

Pratibha  Singh’s  case  (supra).  Since  it  was  a

dismissal of SLP in limine and as rightly argued by

the  learned  counsel  for  the  appellants  that  there

was no merger of the decision of the High Court and

nor it could be considered that this Court affirmed

the  view  taken  by  the  High  Court  in  Pratibha

Singh’s case (supra), we considered in the interest

of justice to hear these matters in detail and record

our reasons.

66) It  was  then  brought  to  our  notice  by  the

learned  counsel  appearing  for  the  State/Vyapam

that pursuant to FIR registered in these cases, the

investigation is still going on by the CBI as directed

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by  this  Court  vide  an  order  passed  in  pending

special  leave petition.   It  is  stated that  in several

cases, charge sheets have been filed against several

accused in Courts.  

67) It  is  accordingly  made  clear  that  any

observation made by  this  Court  in  this  judgment

would  not,  in  any  way,  influence  the  ongoing

investigation and any pending criminal case.  It is

also made clear that this Court has examined the

issue relating to cancellation of results in the light

of  grounds  raised  by  the  appellants  in  the  writ

petitions  and  the  special  leave  petitions.   In  this

view  of  the  matter,  ongoing  investigation  and

pending  criminal  cases  will  be   dealt  with  and

decided  strictly  in  accordance  with  law

uninfluenced by any observation made hereinabove.

68) Before  parting,   it  is  considered  apposite  to

observe that it is well known that the Examination

is always considered as one of the major means to

assess  and  evaluate  candidate’s  skills  and

knowledge  be  it  a  school  test,  university

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examination, professional entrance examination or

any other examination. Candidate’s fitness for his

further  assignment  whether  in  studies  or

employment is, therefore, judged on the basis of his

performance  in  the  examination.   It  is  for  this

reason, the examination is considered as a common

tool  around  which  the  entire  education  system

revolves.  

69) Examination malpractices,  academic fraud or

cheating  in  the  examination  is  as  old  as  the

examination itself. Study made by the educationist

has revealed that these malpractices are gradually

on  the  rise  across  the  world  and  has  caused  a

threat to public trust in reliability and credibility to

the  system as  a  whole.  These  malpractices  occur

within and outside the examination halls  and are

perpetrated  by  the  candidates,  staff  and  other

external  agencies  before,  during  and  after  the

examination.  Various  kinds  of  strategies  are

innovated and then applied to enable the candidate

to clear the examination any how. It has, therefore,

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destroyed the piousness of the examination. With a

view to  prohibit  such activities,  State  of  A.P.  had

enacted a legislation but it was found inadequate to

control such activities.  

70) It  is,  therefore,  the collective responsibility of

the  Government  (Central/States),  educational

bodies/Institutions  to  ponder  over  and  evolve  a

uniform policy in a comprehensive manner to firmly

deal with such activities in the larger public good. It

is  hoped  that  effective  remedial  steps  would  be

taken in that regard.  

71) In view of foregoing discussion, I find no merit

in these appeals.  All the appeals thus fail and are

accordingly dismissed. No Costs.  

                      ………..................................J.                      [ABHAY MANOHAR SAPRE]

New Delhi, May 12, 2016.

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IN THE SUPREME COURT OF INDIA CIVIL APPELALTE JURISDICTION

    CIVIL APPEAL  NO(S).1727 OF 2016 NIDHI KAIM                                      APPELLANT(S)                                 VERSUS STATE OF M P AND ORS ETC                       RESPONDENT(S)

WITH  CIVIL  APPEAL  NOs.1720-1724,  1726,  1728,  1729, 1733,  1734-1741,  1742-1749,  1750-1751,  1752, 1753-1758,  1847-1852,  1759-1764,  1765,  1766, 1767-1768, 1769-1774, 1776-1787, 1788, 1789-1791, 1792-1794, 1795-1798, 1799-1805, 1806-1808, 1809, 1810-1811,  1812,  1813-1814,  1815,  1816-1817, 1818-1819,  1820,  1821,  1822-1824,  1825,  1826, 1827,  1828,  1830,  1831-1832,  1833,  1834,  1835, 1836-1837,  1838,  1839,  1840,  1841,  1842,  1843, 1844, 1845 & 1846 OF 2016.

O R D E R In  view  of  the  divergence  of  opinion  in  terms  of

separate judgments pronounced by us in these appeals today, the Registry is directed to place the papers before Hon'ble the Chief Justice of India for appropriate further orders.

…....................J. (J. CHELAMESWAR)

…....................J. (ABHAY MANOHAR SAPRE)

NEW DELHI MAY 12, 2016

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