2016 Supreme(SC) 391

SUPREME COURT OF INDIA
J. CHELAMESWAR, ABHAY MANOHAR SAPRE, JJ.
Nidhi Kaim – Appellant
Versus
State of Madhya Pradesh & Others Etc. – Respondents
Civil Appeal Nos. 1727, 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
Decided On : 12-05-2016

IMPORTANT POINTS
For concluding commission of mass copying number of candidates is not very relevant, though it should be sizeable.
Candidates submitting to authority of the Board and availing benefit of admission on the basis of PMT cannot challenge its authority to cancel the examination.
In case of mass copying ground of equity is not available to the candidates.
In case of mass copying rules of natural justice do not apply.
When impugned judgment is upheld there would be no question of issuing directions under Article 142.
Courts cannot sit in appeal over expert opinion.

Headnote:Per Chelameswar, J.

       (a) Madhya Pradesh Vyavsayik Pariksha Mandal Adhiniyam, 2007 – Section 3 – Board – Constituted by executive notification – Not constituted under the Act – Not a corporate body – Purpose of creation vague – Notification not containing any details of its functions or powers – Not legally authorised to hold PMT and regulate admissions. (Para 22)

       (b) Estoppel – PMT held by Board constituted in exercise of executive powers – Appellants appearing at the examinations – Availing benefit of result of examination by taking admission in Medical colleges – Cannot challenge the authority of the Board to cancel admissions – Approbation and reprobation. (Para 22)

       (c) Constitution of India – Article 162 – Executive power – Powers of the State executive extend to matters upon which the state Legislature is competent to legislate – In absence of any law, State executive constituting the Board – Rights can be created by executive action, but the same may be abrogated or abridged by the State in accordance with specified procedure of law – In case of large scale adoption of unfair means State would have power to take appropriate action – Cancellation of admissions by Board – No infirmity. (Para 22)

       AIR 1955 SC 549; (1982) 1 SCC 39 – Relied upon

       2014 (III) MPJR 178; SLP (C) Nos.13629-630 of 2014; SLP (C) Nos. 16257 of 2014 – Referred

       (d) Madhya Pradesh Vyavsayik Pariksha Mandal Adhiniyam, 2007 – Section 3 – Board cancelling admissions on allegations of large scale adoption of unfair means – Contention that number of students alleged to have adopted unfair means small as compared to total number required compliance with rule of audi alteram partem – Held, large number of students not necessary for non-compliance with the rule. (Para 23)

       (1970) 1 SCC 648 – Relied upon

       (e) Examinations – Judicial review – Rule of audi alteram partem – Examining body coming to conclusion on some reliable material, even circumstantial evidence, that unfair means were adopted vitiating the examination process – Rule of audi alteram partem would be excluded – Scope of judicial review very limited. (Para 34)

       (1970) 1 SCC 648; (2002) 5 SCC 533; (2003) 2 SCC 673; (1991) 2 SCC 716 – Relied upon

       (1963) 3 SCR 767; 1962 Supp (3) SCR 36 – Distinguished

       (f) Judicial Review – Expert advice – Expert body opining that logic applied for generation of roll numbers and allotment of examination centres was deviated from in some cases – Concluding that there was a tampering with the examination process insofar as the appellants and a few others are concerned – Courts cannot sit in appeal over such expert opinion – Board proceeding on such conclusion to cancel the examination – No perversity – Who was responsible or culpable is another matter – Impugned action cannot be interfered on ground of non-compliance of the rule of audi alteram partem. (Para 37, 38)

       (g) Examination – Tampering the process – Equity – Appellants praying for lenient view on ground of equity, time loss and irreparable loss – Instead, public policy and larger public interests would be more appropriate guides than consideration of equity. (Para 46, 47)

       (1986) 3 SCC 156 – Relied upon

       (2012) 7 SCC 433; (2003) 8 SCC 311; (1994) 1 SCC 1; (1956) 1 All ER 341 – Referred

       (h) Examination – Adoption of unfair means – Limitation – After investigation appellants may become liable for imprisonment for periods extending beyond three years – No period of limitation for taking cognizance – Impugned action against appellants not inconsistent with the public policy on the ground of the time gap. (Para 52)

       (2004) 8 SCC 340 – Referred

       (i) Examination – PMT – Unfair means – Admission of appellants cancelled – Most of the appellants must have been juveniles at the time of examination – Cannot be subjected to any ‘punishment’ prescribed under the criminal law – Approving the punishment will deprive society of appellants’ training and huge material and human resources would go waste – Appellants permitted to complete their study and become trained doctors – Directed to serve as doctors in Indian Armed Forces without any regular salary or attendant benefits except some allowance for survival. (Para 55, 56)

       Per Abhay Manohar Sapre, J.

       (j) Constitution of India – Article 142 – Impugned judgment upheld – No question of issuing directions under Article 142. (Para 3)

       (k) Examination – Unfair means – Majority of candidates found resorting to use of unfair means – Not necessary to give any show cause notice to individual candidate before cancellation of result – Mass copying can be proved by drawing inference based on probabilities and circumstantial evidence – There are several ways in which unfair means can be resorted to by candidates – Number of candidates involved in copying less – Necessary to give to individual candidate a show cause notice – There must be some material direct or based on probabilities and circumstances to prove adoption of unfair means by a candidate – Action can be taken even without any complaint – Court should not act as an appellate Court over the decision of Expert Committee and should be slow to interfere in the decision taken by the Expert Committee in such cases – 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 – “Copying” and “mass copying” distinction – Large scale copying – Rule of natural justice not applicable – Once charge of use of unfair means is proved, matter needs to be dealt with sternly. (Para 44)

       AIR 1962 SC 1110: 1962 Supp (3) SCR 36; AIR 1966 SC 875: (1963) 3 SCR 767; (1970) 1 SCC 648; (1973) 3 SCC 424; (2002) 5 SCC 533; (2003) 9 SCC 237; (2011) 15 SCC 81 – Referred

       (l) Examination – Use of unfair means – More than 200 candidates involved in mass copying – Mass copying means sizeable or large number of candidates found copying – No infirmity in impugned judgment. (Para 46, 50)

       (1970) 1 SCC 648; AIR 1966 SC 875: (1963) 3 SCR 767; (1973) 3 SCC 424 – Referred

       (m) Judicial review – Neither the writ court nor Supreme Court could sit as appellate Court over the decision of the Expert Committee and find fault in the material relied on it – No fault could be noticed in the method evolved by the experts – Decision to cancel the results based on other contemporaneous material seized during the investigation – Decision to cancel results taken with full application of mind by the Expert Committee – This being a case of “mass copying”, it was neither necessary to give any show cause notice to the appellants nor supply the material to the appellants – No infirmity. (Para 48)

       (n) Examination – Mass copying – Delay in cancellation of result – Appellants resorting to mass copying in a planned way – Equitable relief on the ground that they have almost completed their course during the interregnum period – Discrete action takes time – Held, appellants not entitled to claim any equitable relief – Exercise of extraordinary jurisdiction under Article 142 of Constitution of India not warranted – Liberty given to State to consider permitting appellants to appear at next competitive examination and give age relaxation (Para 57, 58, 60, 61)

       (2003) 8 SCC 311; (1998) 9 SCC 236 – Referred

       (2012) 7 SCC 433 – Distinguished

       (o) Natural justice – Not applicable in instant case. (Para 63)

       (1985) 3 SCC 398; (1985) 3 SCC 542; (2003) 9 SCC 731; (2004) 8 SCC 340 – Distinguished

       Facts of the case:

       One of the questions in this appeal is whether the Madhya Pradesh Professional Examination Board can be reckoned as the Board contemplated under section 3 of the Madhya Pradesh Vyavsayik Pariksha Mandal Adhiniyam, 2007?

       Entrance examination for admissions into medical colleges for the year 2013 was conducted by the BOARD on 7.7.2013. On the same day, a crime was registered against several persons including students and some employees of the State of Madhya Pradesh who were working in the administration of the BOARD alleging commission of various offences pursuant to a large scale conspiracy in the context of the examination.

       The Chairman of the BOARD also caused some enquiry 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. Admissions granted to these students in various medical colleges stood cancelled. Challenging those orders, a batch of writ petitions were filed before the Madhya Pradesh High Court. All these writ petitions were dismissed by the High Court. The correctness of the said judgment was questioned before Supreme Court which were dismissed confirming the judgment of the High Court.

       Parallelly, the police investigated the crime (FIR No. 539/2013) mentioned supra. Some officers of the BOARD and others were arrested.

       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 students resorted to unfair means at the said examinations. 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 which were dismissed.

       

       Finding of the Court:

       There is no infirmity in the impugned judgment.

       Result:

       In view of the divergence of opinion in terms of separate judgments, the Registry directed to place the papers before Hon'ble the Chief Justice of India for appropriate further orders.