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2005 Supreme(Kar) 16
Karnataka High Court
SUNIL KUMAR THAKUR - Appellant
Versus
STATE OF KARNATAKA - Respondent
Decided On : 01-07-05
W.P. : 23521 of 2004
A.N.VENUGOPAL GOWDA, AJOY KUMAR PATIL, ASHOK HARANAHAFLI, B.ASHOK, B.MANOHAR, C.DINAKAR, C.M.NAGABHUSHAN, CHANDRASEKHARA, HINCHIGERI, JAGADEESH MUNDARGI, M.K.NAIK, M.KUMAR SINGH, N.K.Ramesh, RAMESH RAO, V.C.VASARITH, VISHWANATH
Headnote:Professional education
EDUCATION
Professional education - Examination malpractices - CET examination - Some non-Karnataka students scoring abnormally high marks compared to their qualifying examinations - Allegation of obtaining questions in advance through a crime syndicate - Enquiry ordered - Enquiry officer recommending annulment of their results and to debar from appearing in future CET examinations - Legality of show-cause notice and enquiry report and its sustainability - Government having failed to pin point any official machinery without whose co-operation the mafia cannot be effective - So long as that link is missing the Government is bound to lose its case - Held, the efforts are laudable, but regional prejudice should be curbed in the larger interest of education system.
Cases Referred:
Relied: AIR 1984 SC 1182: (1983)4 SCC 392: (1983) 144 ILR 225 (SC); AIR 1984 SC 110: (1984)2 SCC 556; AIR 1997 SC 3387: (1997)7 SCC 463: 1997 SCC (L and S) 1806.
Examination malpractices
Karnataka Selection Of Candidates For Admission To Engineering, Medical, Dental And Indian System Of Medicine And Homeopathy Courses Rules, 2003 - Rule 19 - Examination malpractices - CET examination - Some non-Karnataka students scoring abnormally high marks compared to their qualifying examinations - Allegation of obtaining questions in advance through a crime syndicate - Enquiry ordered - Enquiry officer recommending annulment of their results and to debar from appearing in future CET examinations - Legality of show-cause notice and enquiry report and its sustainability - Government having failed to pin point any official machinery without whose co-operation the mafia cannot be effective - So long as that link is missing the Government is bound to lose its case - Held, the efforts are laudable, but regional prejudice should be curbed in the larger interest of education system.
[R. Gururajan, J]: Some of the candidates have undertaken some coaching in the matter. It cannot totally be ruled out that a bad performer can do well in subsequent examination with coaching/better effort and it is not necessary that a bad candidate has to be bad always as held by the Enquiry Officer. He may change his career either by hard work or by coaching or by enthusiasm in the matter. Moreover it cannot be forgotten that these candidates were valued by the valuers of CET. Insofar as S1. Nos. 29 to 47 are concerned, the Enquiry Officer states in para 18 of his report that these candidates have either disappeared from the scene after reporting to the college and surrendering the admission order issued by the Cell or have surrendered the seat at the CET Cell after joining at the concerned colleges. Thereafter he has come to a conclusion that they have either sold away the seats clandestinely or given up the seats to the managements after collecting hefty premia. This finding to say the least is unwarranted in the absence of any acceptable material available on record. It is a serious conclusion. For a sale there must be two parties. The first party is not forthcoming.
Cases Referred: Relied on:AIR 1984 SC 1182: (1983)4 SCC 392: (1983) 144 ILR 225 (SC); AIR 1984 SC 110: (1984)2 SCC 556; AIR 1997 SC 3387: (1997)7 SCC 463: 1997 SCC (L and S) 1806.
Suspicion
INDIAN EVIDENCE ACT, 1872
Section 3 - Suspicion - If not proved, remains a suspicion - It cannot partake proof.
[R. Gururajan, J]: The show-cause notice refers to "examination malpractice by illegally procuring the correct questions and answers from a person or a crime syndicate, which had illegally acquired knowledge about the questions appearing in the question papers of CET 2003. Assuming for the sake of argument that there is some malady somewhere the Enquiry Officer in paras 28 and 29 notices the procedure of CET. He comes to a categorical conclusion that it is very difficult in the normal course for a candidate or even for a mafia to get know about the identity of the question paper setters and then to get in touch with them. Question paper printers, who are about a dozen in this country are professionals in the field and their stake in the business in which they have invested crores will be much higher than what they would get by revealing the questions or leaking the question papers. He gives a clean chit to the officers of the CET by saying that the possibility of question papers getting leaked or questions getting copied at any stage earlier to the question papers reaching the treasuries, well nigh impossible. After coming to this conclusion on the part of the CET he only doubts by saying that possibility of leakage of question paper from one of the treasuries is highly probable. Therefore, from the report read as a whole, what is clear to me is that the probability is from the treasury. It is un-understandable as to why he did not get hold of treasury officers before giving his finding in the matter. After all the students are facing threat to their future. The charge is one of malpractice in the examination by illegally procuring the correct questions and answers from a person or a crime syndicate. Where did they procure when and how did they procure is not forthcoming either by evidence or by findings. Report refers to a person or a crime syndicate and identity of which is unknown even to the enquiry Officer. In such circumstances, can the Enquiry Officer find these students guilty is a question posed to render justice to the parties. Suspicion if not proved remains only suspicion. Suspicion cannot partake proof. A reading of the entire report would show that it is only a lurking suspicion or doubt in the mind of the Enquiry Officer. He himself is not sure as to how this could have happened. If he has not sure of himself, he should not find the students guilty on a the ground of mafia or syndicate. On the other hand, he should have closed the enquiry for want of material with a right to reopen after collecting the material. This Court cannot but observe that based on such report penalties are imposed. Penalties can cause education death to students. Penalties in some cases cause social boycott. Therefore before ordering penalty, the authority concerned has to apply its mind as to whether the findings are acceptable or reasonable in terms of law governing such matters. Unfortunately, in the case on hand, the Government has failed to apply its mind and on the other hand it has virtually abdicated its duty, in admitting the report in its order without applying its mind with regard to the serious shortcomings which has been referred to by me in the earlier paragraphs by the Court. Therefore, the penalty in the case on hand in the opinion of the Court is a case of non-application of mind.
Cases Referred:
Relied: AIR 1984 SC 1182: (1983)4 SCC 392: (1983) 144 ILR 225 (SC); AIR 1984 SC 110: (1984)2 SCC 556; AIR 1997 SC 3387: (1997)7 SCC 463: 1997 SCC (L and S) 1806.
Constitution of India - Interference with findings of administrative authority - Articles 226 & 227 - Interference with findings of administrative authority. [R. Gururajan, J]: Court can go into the finding and find out as to whether the said findings are based on facts or the said finding are reasonable in the given circumstances.
Cases Referred:
Relied on: AIR 1984 SC 1182: (1983)4 SCC 392: (1983) 144 ILR 225 (SC); AIR 1984 SC 110: (1984)2 SCC 556; AIR 1997 SC 3387: (1997)7 SCC 463: 1997 SCC (L and S) 1806.
Interference with findings of administrative authority
Constitution of India - Articles 226 & 227 - Interference with findings of administrative authority.
[R. Gururajan, J]: Court can go into the finding and find out as to whether the said findings are based on facts or the said finding are reasonable in the given circumstances.
Cases Referred:
Relied on: AIR 1984 SC 1182: (1983)4 SCC 392: (1983) 144 ILR 225 (SC); AIR 1984 SC 110: (1984)2 SCC 556; AIR 1997 SC 3387: (1997)7 SCC 463: 1997 SCC (L and S) 1806.
( 1 ) ALL these petitions are filed by the students of engineering/medical/dental courses conducted by the University in karnataka.
( 2 ) ALL these petitioners are before me aggrieved by the show-cause notice dated 5-11-2003 issued to each one of the petitioners, in the matter of enquiry into abnormally high marks scored by non-Karnataka candidates in CET 2003 and also the subsequent report of the Enquiry officer dated 20-12-2003 and the Government Order dated 2-4-2004 passed against these students. The facts and circumstances raised by the petitioners are almost same or similar excepting some variance in some of the petitions. Hence a common order is passed.
( 3 ) W. P. Nos. 23312 to 23314 of 2004 is taken as a leading petition for deciding these petitions.
( 4 ) PETITIONERS in these petitions are studying in various professional courses in different professional colleges conducted by the University in the Karnataka State. Petitioners are natives of Bihar, Jharkhand and uttarpradesh. They responded to Karnataka CET 2003 notification issued by the Government of Karnataka for Common Entrance Test 2003-04. The true copy of the brochure of the Government mentions in para 3 at page 4 that a candidate who has passed the second PUC or 12th standard or equivalent examination (hereinafter referred to as qualifying Examination - "qe" for short) with Physics and mathematics along with Chemistry/bio-Technology/computer science/electronics/ Information Science/biology as optional subjects with English as one of the languages of study and obtained at least 45% marks in the optional subjects is eligible for Engineering/technology/ architecture courses.
( 5 ) PETITIONERS in W. P. Nos. 23312 to 23314 of 2004 are general merit candidates. They had passed 12th standard examination with 66%, 54. 667% and 70% respectively. They sent their application form and appeared for CET 2003 which was conducted on the basis of multiple choice questions. The petitioners secured 70,972%), 59,583% and 75. 833%. respectively in the CET 2003. The marks they have secured in cet 2003 is not very much higher than the marks secured by them in the 12th standard examination. Admission orders of the petitioners issued by CET 2003 are produced at Annexures-B, C and D respectively. Petitioners have referred to their achievements and they refer to their efferts to get marks by joining JEE 2003 Screening Test. It is not necessary to deal with these details at present.
( 6 ) EACH one of the petitioners received notice dated 5-11-2003 from respondent 2 (University ). In the show-cause notice they were called upon to explain as to why it should not be held that they have committed an examination malpractice by illegally procuring the correct questions and answers from a person or a crime syndicate, which had illegally acquired knowledge about the questions appearing in the question papers of CET 2003. Petitioners submitted their reply in the matter. Thereafter the Enquiry Officer in his report dated 20-12-2003 has ruled that the 90 candidates described in para 24 of the report are undoubtedly guilty of examination malpractice and their result in CET 2003 deserves to be annulled. It is also appropriate to permanently debar these candidates from appearing in any of the entrance tests conducted by the CET Cell in future and also debar them from seeking admission to any of the professional colleges within Karnataka, otherwise. The Government by its order dated 2-6-2004 accepted the report and the admission of the petitioners stood cancelled in terms of the said order. The Government ruled that the concerned college may relieve these students forthwith. The said candidates were further debarred from appearing for any of the CETs conducted by the CET cell in future. They are also debarred from admission to any of the professional Colleges within Karnataka by the management of the colleges. Aggrieved by the same petitioners are before me.
( 7 ) RESPONDENT-STATE Gover
