Rajesh
Kumar & ANR Vs. The Institute of Engineers (India) [1997] INSC 620 (25 July 1997)
M. M.
PUNCHHI, K. VENKATASWAMI
ACT:
HEADNOTE:
O R D
E R Leave granted The two appellants, Rajesh Kumar and Harbir Singh appeared in
the AIME Group `B' examination conducted by the respondent-Institute of
Engineers (India) on June 1, 1990.
Their
centre was at Tagore School, Karnal. No case of copying or any malpractice was ever
noticed or reported by the supervisory staff attending the examination.
Somewhere in October 1990, the two applicants along with in 11 other examiners
received identical notices form the respondent- Institute seeking their
explanation on the allegations of copying and malpractice mentioned therein.
The contents of the notice were that the examiner evaluating the answer books
of the examinees had reported that 13 examined bad resorted to copying in as
much as their answers to some of the questions in the examination were exactly
the some and that on that basis it was thought that the examinees their replies
to the allegations stating that similarity in the answer books could be as a
result of the preparation form the came text books as available in the market
and that the question of copying could not arise as would he evident from the
sitting plan of the examinees. Further, it was stated that none of them was
close to another and all were in different rooms. The paper in question was
known as `Quantity, Surveying and Valuation' - Second B. The plea of the
examinees was negatived by the Institute and each examinees was conveyed that
his results for the examination of the year 1990 stood canceled and further
debarring him form appearing in the two immediately following examinations of
the Institute i.e. upto the summer of the year 1991, for adopting unfair means
and malpractices.
Aggrieved,
the two appellants joining one Kuldip Raj put to challenge the order of the
Institute-respondent by means of Civil Writ Petition No.4259 of 1991 in the
Punjab and Haryana High Court which when placed before a Division Bench of that
Court, was permitted to be withdrawn on November 19,1991 with permission to
file a civil suit.
Thereupon,
those three writ petitioners approached the Civil Court seeking to annul the offending communication and for
mandatory injunction requiring the Institute to declare their results. The
Institute contested the suit. Requisite issues were framed. On consideration of
the pleadings and the evidences led by the parties, the trial Court decreed the
suit holding that the non-speaking order of the Institute, bereft of any
reason, and the conclusion that plaintiffs were guilty of unfair means, was
without any basic. Direction was given to the Institute to declare the results
of the plaintiffs. The first appellate the judgment and decree of the trial
Court dismissing the suit in holding that when the plaintiff had appeared in
the subsequent examinations after the period when their disqualification was
ever, no purpose would be served in decreeing the suit.
In
second appeal before the High Court, the plaintiffs emerged successful for they
were able to convince the learned Single Judge of that Court about the
prejudice caused to their case when the answer books pertaining to the
plaintiffs, as placed before the learned Single Judge, had not been put to the
plaintiffs in the inquiry and secondly their sitting pattern/plan was such that
the question of copying could never arise. Lastly, it was submitted that an
extraneous factor had crent in the decision making process regarding the
plaintiffs having appeared in examinations subsequent to the period of
disqualification, without any basis as it was claimed that none of the
plaintiffs had ever sat in any subsequent examination. In this situation, the
High Court allowed the appeal, set aside the decree passed by the first
appellate court below directing the Institute to re-decide the matter after
affording an adequate opportunity of bearing to the plaintiffs disclosing to
them the material which was against them and to consider their plea. The
Institute was further directed to pass a detailed speaking order in accordance
with law.
When
the matter was thus taken by the Institute in compliance with the orders of the
learned Single Judge, notices were sent to the two appellants as also their
companion writ petitioner. The latter seemingly did not avail of the
opportunity but the two appellants did. They appeared at Calcutta and attempted to satisfy the
Institute about the doubts raised. The Institute surprisingly took a somersault
in putting aside all the material, which was expected to be used against the appellants
material which was relevant to the examination such as answer hooks and the
sitting plan etc. Instead, the Institute opted for a new technique to test the
ability of the appellant, which is evident from the identical orders passed in
relation to both the appellants extracted below :
"The
candidate informed that he consulted the book "Estimating and Costing"
by Prof R.N. Dutta for the purpose of preparation. The book was obtained from
the Library of the Institution at the Headquarters and the members of
Examination Disciplinary Committee and the Secretary & Director General scrutinised
the answers written by the candidate in his answer book with reference to the
said book and observed that substantial portion of the answers written by the
candidate were exactly the same as the text printed in the book. The candidate
was asked to take time to read any small paragraph form the book and cram it
for identical reproduction in presence of the Secretary & Director General
to justify his claim of exact reproduction of text of the said book for various
answers during the Examination. The candidate failed to employ with the
request." The Institute further observed as follows "The members of
EDC and the SDG also observed that report of adoption of similar malpractices
by as may as 13 candidates, including this candidate, of the came Centre in the
same subject was received from the Examiner and the EDC, after the scrutiny of
the cases, individually awarded the same punishment debarring all of them to
appear upto Summer 1991 Examination. All, except this candidate and two others,
had accepted the decision of the Institution." The afore communication was
put to challenge by the two appellants before the Punjab and Haryana High Court
through Writ Petition No. 9699 of 1996. This time, the Division Bench of the
High Court, without referring to the mandate and the parameters of the inquiry
laid by the learned Single Judge, given in the decision in the regular second
appeal, dismissed the writ petition in limine on 10.7.96 holding that the
procedure adopted by the institute could not be termed as arbitrary or unfair
warranting interference by that Court. This order is put to challenge in this
appeal.
The
resume of the afore detailed facts gives a clear insight to the minds of the
members of the Institute who sat in judgment on the fate of the appellants. The
doubts as expressed by the learned Single Judge of the High Court in the
Regular Second Appeal pertaining to the material available and the sitting
pattern and also that the appellants had never set in the subsequent
examinations after the period of disqualification was over were conveniently
disregarded by the Institute. It would, in these circumstances, be not wrong to
assume that had the member of the Institute gone into grins with that material,
the result would have gone in favour of the appellants.
Conveniently,
other factors were brought in replacement to conquer the field in asmuchas the
appellants were put to a creaming test, there and then in order to judge their
capability of memory retention in a matter of minutes. All literate men have
been students at a given point of time but have not been crammers. These who
cram do not achieve their goal by a single reading. It is a ceaseless effort
for days and days till the desired result is achieved. Crammers inter so do not
have any nexus with each other. The text of a book as the common source for
cramming establishes no connection.
That
per-se cannot be evidence of any conspiracy between the crammers to adopt
unfair means in the examination unless there be material to show that was
copying of the answer books, descended from the answer book of one of the
candidates, or directly form the book leading to the copying by others. The
overall consideration of the Institute reflected that its members thought that
they would be put to an embarrassment if the plea of the two appellants were to
be accepted and therefore, thought of declining relief to the appellants. Such
result cannot be permitted to follow from the deliberation of the Institute. In
the interest of fair play this court would thus step in to give a corrective
dose For the afore reasons, we set aside the impugned order of the High Court
and allow the appeal of the two appellants by quashing the impugned
communication dated 11, 12, 1990 (Annexure P-6) ordering closure of the matter
in the interests of justice by holding that the orders of the Institute in cancelling
the results of the appellants' examination and disqualifying them for two
succeeding examinations, were in excess of jurisdiction and are therefore,
quashed, ordering the respondent-Institute to declare the result of the
appellants forthwith.
With
this end result, the appeal would stand allowed with costs.
Back