HONOUREABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.10828, 11971 & 12539 of 2014 Date: 25-04-2014
W.P.No.10828 of 2014
Between:
Dr. Vikram Reddy Masani s/o.Santosh Reddy, Aged 24 years, H.No.456, LD Banswada Village, Banswada Mandal, Nizamabad District and others.
And The State of Andhra Pradesh, rep.by its Principal Secretary, Health Medical & Family Welfare (E2) Department, Secretariat, Hyderabad and others.
…. Petitioners …. Respondents
W.P.No.11971 of 2014
Between :
Asha Samdani D/o. MD.Samdani, Aged about 24 years, Occu: Student, R/o.H.No.4-120/1, Janmabhumi Nagar, Mancherial, Adilabad District.
And …. Petitioner The State of Andhra Pradesh, rep.by its Principal Secretary, Health Medical & Family Welfare (E2) Department, Secretariat, Hyderabad and others.
…. Respondents
W.P.No.12539 of 2014
Between :
Ms.Sindhura Namburi d/o.Mohan Rao, Age 23 years, r/o.D.No.4-15-50/1, 6th Line, Bhatathpet, Amaravathi Road, Guntur City and district And The State of Andhra Pradesh, rep.by its Principal Secretary, Health Medical & Family Welfare (E2) Department, Secretariat, Hyderabad and others.
…Petitioner …. Respondents This Court made the following :
HONOUREABLE SRI JUSTICE P.NAVEEN RAO WRIT PETITION NOs.10828, 11971 & 12539 of 2014 COMMON ORDER:
Greediness of few individuals to secure admission to premium Post Graduate Medical Courses by any means and unsaturated desire of some to earn quick money unconcerned about the cascading effect it has on sincere and meritorious students and on the noblest of professions, has led to this litigation. The case is a glaring example of system failure and malady that is set in all public examinations.
2. W.P.No.10828 of 2014 is taken up for final disposal. W.P.Nos.11971 and 12539 of 2014, which are coming for admission are also heard and disposed of along with W.P.No.10828 of 2014 with the consent of learned counsels for the petitioners and the State represented by the learned Government Pleader for Medical and Health and Dr.NTR University of Health Sciences represented by the standing counsel as the issue in all these writ petitions is same.
3. Dr. NTR University of Health Sciences conducted entrance examination to select candidates for admission to Post Graduate Medical Courses in Government and Private Medical Colleges for the academic year 2014-15 (PGCET). On 02.03.2014, the examination was conducted in 32 centres. The results of the entrance examination were declared on 15.03.2014. In all, 14641 candidates applied for examination and 14183 have appeared. 8105 candidates were declared qualified. According to the academic schedule, the classes were to commence from 02.05.2014 and the admission process was required to be closed by 31.05.2014. On the allegation that question paper was leaked and some candidates have illegally gained top ranks to the detriment of others, Government issued orders in G.O.Ms.No.69, dated 02.04.2014 cancelling the PGMET 2014 and directed the University to conduct the entrance examination afresh. Accordingly, the University issued revised notification proposing to conduct the examination on 27.05.2014. Students, who were in the merit list drawn by University in pursuant to entrance examination held on 02.03.2014, have instituted these writ petitions challenging the orders of the Government issued in G.O.Ms.No.69, dated 02.04.2014 and the consequential notification of the university.
4. Heard Sri S.Ramachander Rao, counsel for petitioner in W.P.No.10828 of 2014 and learned Advocate General for the Government and University.
5. Learned senior counsel Sri S.Ramachander Rao contended that Dr.NTR University is governed by the Dr. N.T.R.University of Health Sciences Act, 1986 (hereinafter referred to as ‘Act’) and all the functions of the University have to be carried out in accordance with the provisions of the Act. No power is envisaged in the Act enabling the Government to cancel the Post Graduation Common Entrance Test (PGCET)conducted by the University as is done in the impugned order and to direct the University to conduct fresh entrance examination. Thus, the order impugned in the writ petitions is without power and jurisdiction and is ex facie illegal. Learned senior counsel submitted that as per the provision contained in Section 9, the power vested in Government is only to advise the University, but has no power to issue orders and to cancel the selections made and issue directions. Similarly as per the provisions contained in Section 11, Chancellor has power to annul a selection made, but has no power to cancel the entire selection process. He further contended that power to conduct examination vests exclusively with the University in accordance with the provision contained in Section 5(b). Learned senior counsel further contended that according to Section 9, the power to investigate and issue advise as vested in that provision can be exercised by the Government only with prior notice and opportunity to the University. In the instant case, as evident from G.O.Ms.No.69, no prior notice was given to the University and no hearing was afforded to the University before taking steps.
6. Learned senior counsel further contended that as per the admission brochure, if any malpractice is committed by the student, such malpractice should be referred to a committee and candidate who is alleged to have committed malpractice can be debarred after following due procedure. Therefore, as per the prospectus, the debarment is only confined to a particular candidate, who is alleged to have committed malpractice. Even according to the provisions of the University Act as well as prospectus, which is the basis for conduct of entrance examination, entire merit list cannot be cancelled by the University.
7. Learned senior counsel further contended that even according to the complaint lodged, as per the G.O., and the stand of the University as well as the Government in the counters filed, the persons who were responsible for indulging in malpractice are only few. These persons were identified and criminal cases were already registered against them. When the candidates, who have committed malpractice, were already identified and can be separated, there is no justification to cancel the entire selection. Results were declared and published on 15.03.2014 and should have been acted upon to continue the selection process after deleting the names of tainted candidates instead of going for fresh selection. It is a very tough test and it cannot be expected that a person who has performed well on 02.03.2014 would do well on 27.04.2014. The petitioners having secured merit and have not committed any misconduct or malpractice in writing the examination, there is no justification to cancel the entire selection and such action is arbitrary and discriminatory.
8. He further submitted that as admitted by the respondents no mass copying was made and no question of wide spread leakage. As evident from the reading of the counter-affidavit filed by the respondents, particularly the counter affidavit of the 5th respondent that a very careful and strategic planning was made by the brokers. The brokers have short listed the candidates, isolated them, took them to separate places, were denied communication with out side world when they were asked to practice on the question papers and the question papers were taken back from them. Thus, there was no possibility of the question papers being circulated to other candidates.
9. Heavily relying on the decision of the Supreme Court in Amit Guptha, which is enclosed to additional material papers at pages 127 to 133, learned senior counsel submitted that it is the responsibility of the authority to first isolate candidates responsible for committing illegalities and after excluding them, the other candidates who were not involved should have been provided admission.
10. Learned Senior counsel further contended that since candidates have passed the test and their names were shown in the merit list, before cancelling entire selection, they are entitled to notice and opportunity. He further contended that the cancellation of selection of candidates as per the provisions of the Act and brochure would arise only in case of committing malpractice and while the candidates selection is to be cancelled, detailed procedure is required to be followed, whereas such procedure is not followed and, therefore, the cancellation is vitiated on that ground also.
1 1 . Learned counsels for the petitioners in W.P.No.11971 and W.P.No.12539 of 2014 adopted the submissions made by the learned senior counsel. They have submitted that petitioners are highly meritorious candidates. Petitioner in W.P.No.11971 of 2014 secured 356 rank in EAMCET examination when she secured admission in MBBS and even in the present entrance examination, petitioner was assigned rank no.299. Similarly, petitioner in W.P.No.12539 of 2014 is also a meritorious candidate and in the PGCET, petitioner was assigned rank No.434.
12. Learned Advocate General appearing for respondents 1 to 5 submitted that it is an admitted fact that question paper was leaked. When the question paper was leaked, how many people had access to the entire question paper or some of the questions cannot be assessed and, therefore, when there is a leakage of question paper, it is imperative to cancel the examination and hold fresh examination for admission to Post Graduate Medical Courses. Seats in Post Graduation Medical Courses are few and competition is very high. A marginal difference in marks would drastically change the ranking position. Thus, in the absence of clear material to ascertain the extent of damage caused, it cannot be confined to few individuals. Learned Advocate General submits that only preliminary investigation was conducted by the CBCID. However, the investigation points out larger conspiracy and more persons may have been involved. It would take more time to the investigating agency to complete the investigation, but it appears from the preliminary assessment made by the investigating agency that there may be more number of brokers, who are involved. The possibility of wider circulation of question paper cannot be ruled out. It was a hard decision to take. There was no pleasure for the Government to cancel the entrance examination already held and to hold fresh examination. Such extreme decision was taken in the larger public interest and in the interest of ensuring purity of selection to such prestigious courses.
13. Learned Advocate General further contended that CID has arrested 14 brokers who are prime accused and 16 students who had access to stolen question paper. By 24.04.2014 the figure has gone upto 41, 23 students and 18 brokers. The matter is still under investigation and CID is expecting involvement of more persons in the crime. The part played by different accused and suspects would be unearthed in due course of time.
14. Leaned Advocate General further submitted that there were two choices available to the Government, one to weed out limited number of people, who are actually found to have been directly involved and continue selection of others, or to cancel the entire selection process and to hold a fresh examination. When an option was available to the State and State chooses one option, in exercise of power of judicial review under Article 226, the Court cannot hold that the option chosen by the Government is bad and the Government ought to have chosen alternative option.
15. Learned Advocate General further submitted that in view of the urgency involved in the issue and having noticed far reaching illegality in conducting of examination, concerted decision was taken to cancel the selection.
16. Learned Advocate General referred to the provisions contained in Sections 11(4), 9, 46 and 5(b) of the Act to contend that the cumulative reading of all these provisions would make it clear that Government is competent to pass the orders impugned herein. Learned Advocate General further submitted that in view of the importance of the issue involved and due to time constraint it was necessary for the Government to take such a decision. Government has inherent power to take such decision in larger public interest. Be that as it may the University was also involved in the decision making process and thus even assuming that no such power is traceable to these provisions, as it was a concerted decision, the order cannot be held to have been vitiated.
17. Learned Advocate General further contend that as investigation is not completed, it cannot be said that only few individuals who are now arrested are alone involved and that otherwise there is no illegality. It cannot be ruled out that the question paper leaked falling in the hands of many others partially or fully. The magnitude of conspiracy and involvement of others can be ascertained only after the investigation is completed by the CBCID. The CBCID requires sufficient time to investigate into the matter, whereas the Government and the University could not have waited for the finalization of the investigation by the CBCID. As per the directions of the Supreme Court of India and the regulations framed by the Medical Council of India, classes should be commenced from 30.06.2014 and process of admissions should be completed by 10th July, 2014. It was an extraordinary situation and requiring an extraordinary decision to be taken and accordingly decision was taken in the larger public interest.
18. In reply, learned senior counsel Sri Ramchander Rao submitted that statutory mandate has to be followed. When the statute does not contemplate concerted decision, the decision taken in that manner is not valid. Learned senior counsel seriously objected to the stand of Advocate General that there was concerted decision.
19. Learned senior counsel further contended that all the decisions relied by the learned Advocate General were considered by the Supreme Court in the case of Inderpreet Singh Kahlon and others v.
[1]
State of Punjab and others and in the said decision, Supreme Court held that tainted cases should be separated from non-tainted cases instead of cancelling the entire selection. He further emphasized judicial correction is available to this court if Article 14 is violated.
20. Having regard to the submissions made, the following points arise for determination:
1) Whether G.O.Ms.No.69, dated 02.04.2014 is without power and jurisdiction and, therefore, the G.O. and consequential notification of the Health University to conduct fresh entrance examination is illegal ? and
2) Whether the decision of the respondent authorities in cancelling the PGCET dated 02.03.2014 and to hold fresh PGCET for the academic year 2014-15 is illegal ?
POINT NO.1:
21. To appreciate the rival contentions, it is necessary to extract the relevant provisions of N.T.R. University of Health Sciences Act, 1986.
Section 3: The University:
(1) There shall be constituted in and for the State of Andhra Pradesh a University by the name of the N.T.R. University of Health Sciences, which shall consist of a Chancellor, a Vice-Chancellor, a Rector, if any, an Executive Council and an Academic Council.
Section 5 : Powers and functions of the University:- The University shall have the following powers and functions, namely.
….
(b) to conduct and maintain uniform curriculum and system of examinations for all the Medical Colleges in the respective systems of medicine and other institutions;
….
….
(``) to do all such acts and things, whether incidental to the objects and powers aforesaid or not, as may be necessary or desirable to further the objects of the university;
Section 9: Inspection and control:
(1) The government shall have the right to cause an inspection to be made by such person or persons as they may direct, of the affairs and properties of the University, its buildings, laboratories, libraries, Museums, workshops and equipment, and of any college or institution maintained by the University,
and also to cause an enquiry to be made into the teaching and other work conducted or done by the University, or in respect of any matter connected with the University. The Government shall in every case give notice to the University of their intention to cause such inspection or inquiry to be made and the University shall be entitled to be represented thereat.
(2) The Government shall forward to the Vice- Chancellor a copy of the inspection report for obtaining the views of the Executive council and on receipt of such views, the Government may tender such advice as they consider necessary and fix a time limit for action to be taken by the University.
(3) The Executive Council shall, within such time as the government may fix, report to them through the Vice- Chancellor the action which has been taken or is proposed to be taken on the advice tendered by them.
(4) The Government may, where action has not been taken by the University within the time fixed to their satisfaction, after considering any explanation furnished or representation made by the Executive council issue such directions as they may think fit and the University shall comply with such directions.
Section 11: The Chancellor :
(1) The Governor of Andhra Pradesh shall be the Chancellor of the University.
(2) The Chancellor, shall, by virtue of his office, be the head of the University.
(3) The Chancellor, shall, when present preside at the convocation of the University held at conferring degrees. He shall exercise such other powers and perform such other functions as may be conferred on or vested in him by or under the provisions of this Act.
(4) The Chancellor, may by order in writing annual any proceedings of the University, which is not in conformity with the provisions of this Act, the Statues, the Ordinances or the Regulations.
Provided that before making any such order, he shall give a notice calling upon the University to show cause why such an order should not be made and if any cause is shown within the time specified therefore, in the same notice, shall consider the same.
Section 46: Power to obtain information:-
Notwithstanding anything contained in this Act or any other law for the time being in force, the Government may by order in writing, call for all information from the University on any matter relating to the affairs of the University and the University shall, if such information is available with it, furnish the Government with such information within a reasonable period:
Provided that, in the case of information which the University considers confidential, the University may place the same before the Chancellor.
22. The serious challenge mounted against the decision of the Government to annul the earlier written examination for selection for admission to Post Graduate Courses for the academic year 2014-15 and to conduct a fresh examination is on the ground that there is no such power vested in the Government by the Act and, therefore, is ex facie illegal without jurisdiction and competence.
23. Learned Senior Counsel Sri S.Ramachander Rao contended that as per the provision contained in Section 9, in the first instance government can only advise the University to take action, but cannot suomoto cancel the PGCET and order for conducting a fresh examination and before conducting such enquiry, the University should be put on notice.
24. The defence put forth by the learned Advocate General on behalf of the State was that the provision contained in Section 9 of the Act enables the Government to issue such directions and, therefore, the order is not vitiated. Learned Advocate General also tried to justify the action in view of the extraordinary situation arising out of the reported leakage of question paper and several candidates securing very high merit who are not otherwise eligible to secure such merit, coupled with the fact that there is tight schedule determined by the Medical Council of India, within which time the admissions to Post Graduate Courses are required to be completed, necessitated the Government to take urgent decision in the large public interest to hold a fresh examination and the decision reflected in the order of the Government impugned in the writ petition is as a result of concerted effort of all the authorities concerning i.e., Government, office of the Chancellor and the University. Therefore, the power exercised by the Government can be brought into the four corners of Section 9 of the Act. Learned Advocate General further contended that even otherwise in the larger public interest, it is imperative to hold fresh examination.
25. Both sides placed reliance on the provisions contained in Section 9 of the Act. The heading of Section 9 reflects that the Act vests power in the Government to inspect as well as to control. First limb of Section 9(1) deals with power of the Government to inspect the affairs of the university and any college or institution maintained by the University, properties of the University or any college or institution maintained by the University. Second limb of the provision in Section 9(1) deals with power to cause enquiry in respect of any matter connected with the University. In case of an enquiry or inspection, the provision mandates putting the University on notice.
26. Sub-sections 2 to 4 deal with inspection part only. As per these sub-sections after obtaining inspection report, the report should be forwarded to the Vice-Chancellor for obtaining views of Executive Council. On receipt of such views, the Government is competent to tender advice as they are considered necessary and also to fix time limit for action. Sub-section 3 mandates to report back to the Government the action taken as advised. According to sub-section 4, if no action is taken as advised within the time fixed, or not satisfied with the explanation, the Government can issue directions. Thus, insofar as inspection is concerned, a direction can be issued only if advise tendered by Government is not complied. Insofar as the consequential action to be taken after enquiring into any matter connected with the University, no similar restriction is imposed.
27. The legislature has made clear distinction on the course of action that can be adopted by the Government, in case of inspection and enquiry in respect of teaching and other work conducted or done by the University or in respect of any matters connected to the university. The clear intendment of the legislature is discernable from the reading of the provision and when the Act does not restrict the power of the Government, it cannot be said that no such power is vested in the Government. It is appropriate to notice that one of the powers vested in the University by Section 5(b) is to conduct common entrance examination. Government is entitled to enquire into the method and manner of conducting PGCET. Since there is no restraint imposed on the government expressly, the Government can exercise inherent power in the larger public interest to annul the PGCET for valid reasons, as in this case, tainted by grave illegalities. The intendment of legislature can also be gauged by looking at the relevant provision in the subsequent enactment. In the year 1991, the State Legislature has enacted Andhra Pradesh Universities Act, 1991 (Act No.4 of 1991).
Section 8 (1) of Andhra Pradesh Universities Act, 1991reads as under:
Section 8: Inspection and inquiry:
(1) The Government shall have the right to cause an inspection to be made by such person or persons as it may direct of the University, its buildings, laboratories, libraries, museums, workshops and equipment and of any institutions maintained by or affiliated to the University and also to cause an inquiry to be made, into the teaching and other work conducted with the University. The government shall in every case give notice to the University of its intention to cause such inspection or inquiry to be made and the University shall be entitled to be represented thereat.
Heading of Section 8 of Act 4 of 1991 reads a s “inspection and enquiry” as against heading of Section 9 of the Act, which read as “inspection and control”.
28. The enquiry conducted by the Chairman of the A.P.State Council for Higher Education (APSCHE) is traceable to Section 9. Once power is vested to inquire into and power to control is vested, it cannot be said that as a consequence to conducting of such enquiry, the Government is denuded of the power to take consequential decision, more particularly when the Act does not expressly put any such fetters.
29. As seen from the records placed before this court, on the report of Chairman, APSCHE the University was asked to offer its views on some of the recommendations made by the Chairman. In view of serious illegalities pointed out in the report, CBCID was requested to investigate. CBCID conducted investigation and submitted preliminary report to Government pointing of grave illegalities in the PGCET-2014. Matter was further considered and the G.O.Ms.No.69 was issued.
30. The record placed before this Court points out possible complicity of senior officers of the University. In view of the same it cannot be said that the Government acted in excess of power and in an illegal manner. The extra-ordinary situation required an extra- ordinary decision in larger public interest.
31. In the above analysis, it cannot be said that the orders issued by the Government in G.O.Ms.No.69, as without power or jurisdiction or competence.
POINT NO.2:
32. Learned senior counsel contended that when no allegation of involvement of the petitioners is made and when it is possible to segregate and identify the persons responsible for committing malpractices, only such persons should be weeded out and the rest of the merit list should be operated and cancellation of entire merit list is illegal. He contended that as per the allegations in the complaint lodged with CBCID a group of students were taken to secluded places, given question papers and were asked to practice on the questions and memorize correct answers and after the cession was over question papers were taken back. During the entire period of giving such training to the students, they were denied to access to outside world. It is thus contended that since such kind of students can be weeded out, there is no justification to cancel the entire selection.
33. On the contrary, learned Advocate General submitted that when it is alleged that question paper was leaked it cannot be said that only few have benefited and when there is an allegation of leakage of question paper, the examination has to be conducted afresh.
34. Several precedents are relied upon by the learned senior counsel Sri S. Ramachander Rao and learned Advocate General.
35. In Union of India vs. Rajesh P.U. Puthuvalnikathu
[2]
, subject matter was illegality in recruitment to the post of Constable in CBI. Illegalities relate to valuation of answer sheets, such as, awarding of marks to incorrect answers and not awarding marks to correct answers. In the said manner, 31 candidates found to have benefited and equal number were denied the selections. As seen from the facts, the candidates who were benefited were identified and the nature of malpractices was confined to them. There were 134 successful and 184 unsuccessful candidates. Supreme Court noticed that there was no serious grievance of any malpractices as such in the process of written examination - either by the candidates or by those who actually conducted them. Supreme Court held as under:
“There was no infirmity whatsoever in the selection of the other successful candidates than the 31 identified by the Special Committee. In the light of the above and in the absence of any specific or categorical finding supported by any concrete and relevant material that widespread infirmities of all pervasive nature, which could be really said to have undermined the very process itself in its entirety or as a whole and it was impossible to weed out the beneficiaries of one or other of irregularities, or illegalities, if any, there was hardly any justification in law to deny appointment to the other selected candidates whose selections were not found to be, in any manner, vitiated for any one or other reasons. Applying an unilaterally rigid and arbitrary standard to cancel the entirety of the selections despite the firm and positive information that except 31 of such selected candidates, no infirmity could be found with reference to others, is nothing but total disregard of relevancies and allowing to be carried away by irrelevancies, giving a complete go bye to contextual considerations throwing to winds the principle of proportionality in going farther than what was strictly and reasonably required to meet the situation. In short, the Competent Authority completely misdirected itself in taking such an extreme and unreasonable decision of cancelling the entire selections, wholly unwarranted and unnecessary even on the factual situation found too, and totally in excess of the nature and gravity of what was at stake, thereby virtually rendering such decision to be irrational” (highlighted portion relied by Sri S.Ramachander Rao).
36. As seen from the extracted portion, Supreme Court is of the view that if there are widespread infirmities of all pervasive nature, it would undermined the very process and if it was impossible to weed out beneficiaries, it is permissible to cancel the entire selection.
37. In Onkar Lal Bajaj Etc. v. Union of India
[3]
, the issue was cancellation of merit panels numbering 3760 dealerships prepared by several District Selection Boards. Out of 3760, 2248 dealerships/distributorships were already operational. By one stroke all these were cancelled. Supreme Court noticed that the basis for cancellation was widespread reporting in daily newspapers that there were several illegalities, such as, close relatives and family members of the Ministers were granted such dealerships. Supreme Court held that even according to the paper reports, such wrong selections were 417, which would constitute just about 10% of the total selections made. Supreme Court, therefore, observed that if the number of alleged tainted allottees is not such a magnitude fair play demanded cancellation of only those selections. The court also found that there was no application of mind before taking such a decision and there was no material available with the Government except reporting in the newspaper to come to such a drastic decision. Supreme Court, therefore, held that it was an arbitrary decision. Supreme Court held as under:
“Here the controversy raised was in respect of 5 to 10%, as earlier indicated. In such a situation, en masse cancellation would be unjustified and arbitrary. It seems that the impugned order was a result of panic reaction of the Government. No facts and figures were gone into. Without application of mind to any of relevant consideration, a decision was taken to cancel all allotments. The impugned action is clearly against fair play in action.
… The solution by resorting to cancellation of all was worse than the problem. Cure was worse than the disease. The equal treatment to unequals is nothing but inequality. To put both categories – tainted and the rest – at par is wholly unjustified, arbitrary, unconstitutional being violative of Article 14 of the Constitution.”
38. In G.Chandra Mouli and others. Vs. Director, B.R.Ambedkar, Controller of Examinations, Chief Superintendent and Principal,
[4]
Co-Ordinator, Study Center , the examination conducted in particular centre to first year and third year graduation courses, imparted by the Dr.B.R.Ambedkar Open University were cancelled and re-examination was ordered. This court found that there was no material to come to conclusion that there was mass copying or committing malpractices. A committee appointed by the University submitted its report. The report did not suggest the cancellation of the entire first and third year examination of the centre. The Court found that the consequential decision of the Controller of examinations was contrary to the resolution of the Committee and held that the Controller could not have gone beyond the decision of the Committee and expand the scope. The Court observed that individual cases were booked and action was taken against the students concerned and, therefore, the cancellation of entire examination becomes untenable.
39. I n Rajnish K.Gaind, Pulkit Kaushik through N.G.Surinder Kaushik, Kartik Sharma through N.G.Ramesh Kumar vs. Dean,
[5]
Faculty of Technology (Delhi University) , the issue was concerning unfair means adopted by some students, whereby it was found that group of students have secured merit positions by adopting unfair means. The Delhi High court noticed that there was no leakage of question paper on a massive scale. It was also noticed that there was no mass copying. Few of the candidates have received answer keys from the prime accused.
40. Inderpreet Singh case concerns cancellation of selections made by the Pubjab Public Service Commission between 1998 and 2001 on the ground that several allegations were made against the then Chairman of the Commission of indulging in illegalities resulting in wrong selections made to various posts in the State services. On preliminary investigation, it revealed that the then Chairman ammassed huge money. It was also noticed that some candidates given unusually low marks in the interview and some candidates were given unusually high marks. Similarl other illegalities were also noticed. As seen from the judgment that all those candidates were already appointed and have been serving the State for a long time. No notice or opportunity was given to any of them before terminating their services. The Court also noticed that all the decisions taken by th e Commission during the tenure of the Chairman were not set aside. The Court found that entire record was available and it was permissible to inspect the record to identify the persons who have been benefited by such illegalities and without doing that, there was no justification to cancel the entire selection. Court noticed that there was no finding that all the appointments were made on extraneous considerations including monetary considerations. Court noticed that it was not the case of mass cheating in a Board examination. Therefore, Court observed that it is permissible for the separation of tainted cases from untainted cases and without doing that, cancellation or setting aside of appointments made was illegal. The court issued consequential directions.
41. In Madhyamic Shiksha Mandal, M.P. vs. Abhilash Shiksha
[6]
Prasar Samiti and others , Supreme court held as under:
“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 again. ”
42. I n The Bihar School Examination Board vs. Subhas
[7]
Chandra Sinha and others , the issue was cancellation of annual examination, 1969 in relation to one centre in a District in State of Bihar. The High Court quashed the order of cancellation and direction was issued to the Board to publish results. Supreme Court held that if an entire examination centre is cancelled, it is not a question of charging any one individually with unfair means and, therefore the question of giving opportunity to represent to individual candidates does not arise as the examination was vitiated by adoption of unfair means on a mass scale.
[8]
43. B.Ramanjini and others v. State of A.P. and others is a case of cancellation of teachers recruitment examination in the year 1998 in Ananthapur District. The cancellation of selection was made while announcing the results of such recruitment in other districts. Initial challenge before the Administrative Tribunal was unsuccessful. The contention with reference to announcement of results in other districts, but not announcing the results in Ananthapur District was again assailed before this Court. This Court found that enquiry was conducted in other districts and as no illegality was noticed, results in those districts were announced. Thus, there was no need to cancel the selection in other District. Therefore, this Court rejected the writ petitions. Aggrieved thereby, appeals were filed before the Supreme Court. Noticing the fact that there was mass copying and leakage of question papers which were also published in the newspapers and photocopies of the question papers were available for sale, it was held that it was alarming enough for any Government to cancel the examination.
44. In Chairman, J&K State Board of Education v. Feyaz Ahmed
[9]
Malik and others , Supreme Court upheld the decision of Allahabad High Court rendered in R a j iv Ratna Shukla v. University of
[10]
Allahabad . Allahabad High Court held that once Examination Committee found illegalities even if another committee or High Court on the same material could have come to a different conclusion it could not furnish ground for interference. Court cannot substitute its opinion for the opinion of the Committee. Though grave injustice would be caused to some of the students, or majority of the students if the Court refuses to interdict the decision to cancel the examination, but court cannot ignore the deterioration in the standard of discipline of academic institutions. How this should be regulated or controlled should best be left to the discretion of those who are entrusted with this responsibility. The contention of violation of principles of natural justice was also rejected. It was held that direction to hold re examination is not a penal action. Approving the decision of Allahabad High Court, the contrary decision taken by the High Court of Jammu and Kasmir was held to be bad. Supreme Court held that Court cannot interfere in matters concerning educational institutions and such decision should vest in the competent authorities.
45. In Chairman, All India Railway Recruitment Board and
[11]
another v. K,.Shyam Kumar and others , Supreme Court held that in matters concerning cancellation of examination, the principle laid down by the Supreme Court in Mohinder Singh Gill v. Chief
[12]
Election Commr. , has no application where larger public interest is involved and it is permissible for the competent authority to place reliance on subsequent material in support of the earlier decision. In the said case, the order impugned therein was based on a report of the Vigilance. The subsequent materials furnished by the CBI pointed out glaring illegalities. Supreme Court also held even minute leakage of question paper would be sufficient to besmirch the written test and to go for a re-test so as to achieve the ultimate object of fair selection.
46. R.Radhakrishen and others v. Osmania University and
[13]
others , this Court considered the violation of principles of natural justice to an individual where allegation of mass copying is made. It is held as under:
“To insist on notice to all candidates in such a situation is to parody the principles of natural justice and take an unnatural form. When the whole examination is scrapped I do not see how any one can say that it is an aspersion against him unless, of course, as the Telugu proverb goes (Vernacular proverb – omitted –Ed.).
47. After the announcement of the results, Joint Action Committee of Junior Doctors Association, Gandhi Hospital wing, Secunderabad submitted a memorandum to his Excellency the Governor alleging that malpractices said to have been occurred in PGCET. They have alleged that there was a lot of suspicion regarding many rankers below 100 and that question paper was leaked prior to the entrance examination and that few of the accused in the PGI, Chandigarh examination of 2012 have their names below 100 list. In the history of conducting examination in the last 10 years, this is the first time that candidates have secured 180 marks out of 198 marks in the examination. It was also widely reported in the newspapers. Professor S.Venugopal Reddy, the Chairman of A.P.State Council for Higher Education was requested to conduct an enquiry.
48. The Chairman visited the office of the University, obtained written statements of the present Vice-Chancellor, former Vice- Chancellor, Controller of Examinations and others. He has also held public hearing. During the public hearing, there were different views expressed by the people on fresh examination. On thorough enquiry he has submitted his report. The Chairman noticed several lapses in preparation of question papers. He noticed that question papers in the sealed cover and pen drive containing the soft copy of the confidential printer was not properly done, that the confidential material in the Pen Drive was not effectively protected, at least first stage password was not ensured, and directly delivered to a representative of the printer at the place other than the place where the printer’s press is located. He has also noticed that there was a long time gap between the entrustment of printing work and handing over the question papers by the printer. No lock is maintained in the strong room and there was no police security; jumbling was not properly done. The University lodged complaint with Crime Investigation Department on 24.03.2014. Accordingly, the Crime No.12 of 2014 was registered and CID took investigation. The investigation is in progress. According to the CID, by 22.04.2014, 41 persons were arrested, out of which 18 are brokers and 23 are students. Out of these 23, 21 secured below 100 ranks and one person 110th rank and another person 263rd rank. Investigation is in progress to elicit involvement of other rank holders beyond 100 rankers. Prima facie, report of the Chairman of A.P.State Council for Higher Education and the investigation conducted so far by the CID points out the possibility of widespread leakage of question paper and involvement of others. In the facts of this case, therefore, it cannot be said that leakage of question paper is confined to few individuals. It is also not certain as to at what stage the question paper was leaked. Prima facie, it appears from the reading of the report of the Chairman of the State Council for Higher Education, leakage can be elsewhere also and not necessarily in the Printing Press. However, this is a matter for investigation. As contended by the learned Advocate General, at this stage, it cannot be ascertained as to what was the magnitude of the leakage and how deep pervasive the leakage could have been.
49. On the issue of leakage of question papers and cancellation of the entire selection process and holding a fresh selection, consistently the Supreme Court held that the leakage has an effect of vitiating the entire selection and it is impossible to segregate those who are indulging in malpractices and those who did not and it is desirable to hold fresh examination.
50. In Union of India through the Secretary, Ministry of Home
[14]
Affairs and others vs. Joseph P.Cherian , Supreme Court held as under:
“The High Court’s view appears to be that if unfair means were adopted at one centre, result of other centres should not have been cancelled. This view is wholly indefensible. The Staff Court of Inquiry recorded a finding that there were serious irregularities in the conduct of examination at Jallandhar centre and unfair means on a large scale were adopted. There was leakage of question papers and its transmission to candidates at other centres through modern modes of communication was not ruled out. Having regard to all these factors, the decision to cancel the examination was taken. When the results of 1995 examination have been cancelled, the question of the respondent employee’s case being considered on the basis of marks secured by him at the said examination does not arise. As is settled in a long line of decisions, while considering the case of mass malpractice there is no scope of examining an individual;s case.” (See Bihar School Examination Board v. Subhas Chandra
[15] [16]
Sinha , Krishan Yadav v. State of Haryana ,
[17]
P.Ratnakar Rao v. Govt. of A.P. , Kendriya Vidyalaya
[18]
Sangathan v. Ajay Kumar Das and Union of India v.
[19]
O.Chakradhar )
51. In Ashok Lanka v. Rishi Dikshit and others
[20]
, Supreme Court held that it is permissible to cancel the entire selection process if it is held that same is tainted to such an extent that it may not be possible to separate the innocent from the tainted ones.
52. In M.P.State Coop. Bank Ltd., Bhopal v. Nanuram Yadav and
[21]
others , after reviewing the case law on various issues concerning the recruitment and holding examinations, Supreme Court delineated the principles laid down in precedents. It was a case of public appointments, but the said principles would equally apply in admission to Post Graduation Courses. The principles delineated by the Supreme Court read as under:
“ 24 (7). If the mischief played is so widespread and all pervasive, affecting the result, so as to make it difficult to pick out the persons who have been unlawfully benefited or wrongfully deprived of their selection, it will neither be possible nor necessary to issue individual show-cause notice to each selectee. The only way out would be to cancel the whole selection.
(8). When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place and the entire selection has to be set aside.”
53. In Union of India and others v. Tarun K.Singh and others
[22]
, Supreme court held that process of selection to a public office, which stand vitiated by adoption of large scale malpractice, cannot be permitted to be sustained by a Court of law.
54. In Yashpal and Others v. Chandigarh Administration and others (Special Leave to Appeal (Civil) No.15559/2011, decided on 30.05.2011), the High Court Punjab and Haryana considered the decision of Supreme Court in Ashok Lanka and Inderpreet Singh Kahlon and held that in case of this nature, it is not possible to segregate the tainted from untainted. It is not possible to find out as to how many candidates have access to the leaked question paper and how many of them did not have the leaked material. Thus sanctity of the whole examination has been vitiated. Approving the said decision, Supreme Court Held as under:
“ Leakage of the question paper had the effect of vitiating the entire selection and it was impossible to segregate those who had indulged in malpractices and those who did not.”
55. As held by Supreme Court in Shyam Kumar even minute leakage of question paper would be sufficient to besmirch the written test and go for a re-test. As pointed out in the report of the Chairman of the State Council for Higher Education and the stand of the CID in the counter-affidavit, it cannot be said that the leakage of question paper does not have far reaching impact. The extent of leakage is to be unravelled. However, in the peculiar facts of this case, since it is mandatory to adhere to the schedule of admissions for Post Graduation Courses, the authorities cannot wait till the finalization of investigation by the CID. However, the material on record points out to serious malady in the manner of conducting PGCET.
56. The principles of law is also well settled that merely because a candidate is selected and included in the merit list, acquires no indefeasible right for being provided admission to the course of study. It is not a case of pointing of malpractice against individual students and thus the issue of show cause notice and opportunity of hearing to all the candidates who have passed does not arise. Impugned action does not amount to penalising individual candidates. The principle of law is well settled on this proposition and needs no reiteration.
57. It may be true that there are several innocent students, who are being victimised on account of the illegalities of few greedy people, but in the larger interest of purity of admission process in higher education, more particularly to Post Graduation Education in Medical Courses, such course is unavoidable. These innocent students have to suffer and such sufferance has to be tolerated in the larger interest of the society to ensure the discipline and also to ensure that the disobedient candidates do not get selected to Post Graduation course. The conduct of re-test is alone the best possible course to be adopted.
58. The extent of malady can be compared to cancer. The disease is at an advanced stage. Cure for cancer depends on isolation of the affected cells in the body and administering the treatment. If it is spread far and wide in the body, treatment is difficult, if not impossible. By this treatment while it seeks to remove the affected cells, it damages the organs of the body which are otherwise healthy. The record discloses that the disease has spread far and wide and it is not possible to isolate. The greediness of few students caused damage to sincere and meritorious students. In the larger public interest and in the interest of this noble profession the sincere and meritorious students are made to suffer in silence. I hope and expect that enough alarm bells have rang and effective mechanism will be set up to ensure fair selection to such premium courses. The investigation has to proceed on a priority basis and concluded within a fixed time frame. It should be monitored by the Director General of Police and the Chief Secretary.
59. In the facts of this case, it cannot be said that the decision taken by the Government to cancel the PGCET held on 2.3.2014 and to conduct the test afresh is vitiated on the touch stone of arbitrary exercise of power.
60. Thus, I see no merit in the submissions made on behalf of the petitioners. Accordingly, these writ petitions are dismissed. There shall be no order as to costs.
Miscellaneous petitions if any pending in these writ petitions, shall stand cancelled.
JUSTICE P.NAVEEN RAO Date: 25.04.2014.
Kkm HONOUREABLE SRI JUSTICE P.NAVEEN RAO kkm WRIT PETITION NOs.10828, 11971 & 12539 of 2014 Date: 25-04-2014
[1] (2006 ) 11 Supreme Court Cases 356
[2] LAWS(SC)-2003-7-49
[3] LAWS (SC)-2002-12-57
[4] LAWS(APH)-2005-11-45
[5] LAWS(DLH)-2005-7-58
[6] (1998) 9 Supreme Court Cases 236
[7] AIR 1970 Supreme Court 1269
[8] (2002) 5 Supreme Court Cases 533
[9] (2000) 3 Supreme Court Cases 59
[10] AIR 1987 All 208
[11] (2010) 6 Supreme Court Cases 614
[12] (1978) 1 SCC 405
[13] AIR 1974 Andhra Pradesh 283
[14] (2005) 8 Supreme Court Cases 180
[15] (1970) 1 SCC 648
[16] (1994) 4 SCC 165
[17] (1996) 5 SCC 359
[18] (2002) 4 SCC 503
[19] (2002) 3 SCC 146
[20] (2006) 9 Supreme Court Cases 90
[21] (2007) 8 Supreme Court Cases 264
[22] (2003) 11 Supreme Court Cases 768