IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.08.2010 CORAM: THE HONOURABLE MS. JUSTICE K.B.K.VASUKI W.P.Nos.11397 to 11401, 11485 to 11488, 11489 to 11492, 11493 to 11496, 11497 to 11500, 11520 to 11525, 11542 to 11545, 11546 to 11549, 11559 to 11562, 11563 to 11566, 11567 to 11570, 11571 to 11573 of 2010 and 11681 to 11684 of 2010 and MP.Nos.1 to 1, 2 to 2 and 3 to 3 of 2010 A.Abinash ..Petitioner in WP 11397/2010 Bhabani Shankerpati ..Petitioner in WP 11398/2010 Girija ..Petitioner in WP 11399/2010 A.Ilakkia Dhasan ..Petitioner in WP 11400/2010 S.Mani ..Petitioner in WP 11401/2010 Abhinav Dubey ..Petitioner in WP 11484/2010 Katrodiya Vijayakmar ..Petitioner in WP 11486/2010 P.Silambarasan ..Petitioner in WP 11487/2010 Prabhat Kumar ..Petitioner in WP 11488/2010 Prajapati Priteshkumar Pravinbhai. .Petitioner in WP 11489/2010 S.Abirami ... Petitioner in WP 11490/2010 S.Abu Haris ... Petitioner in WP 11491/2010 Amarkant Kumar Himanshu ... Petitioner in WP 11492/2010 Asif Ahmed ... Petitioner in WP 11493/2010 M.S.Bharathi ... Petitioner in WP 11494/2010 G.Dhanaseelan ... Petitioner in W.P.11495/2010 Navin Bhushan ... Petitioner in W.P.11496/2010 Premchand Patel ... Petitioner in W.P.11497/2010 R. Ramkumar ... Petitioner in W.P.11498/2010 K.P.Sakthivel ... Petitioner in W.P.11499/2010 Sanjeeb Kumar Parida ... Petitioner in W.P.11500/2010 B. Pradesh Kumar ... Petitioner in W.P.11520/2010 G. Paventhan ... Petitioner in W.P.11521/2010 V.Sakthi Soruban ... Petitioner in W.P.11522/2010 C. Vellaiyan ... Petitioner in W.P.11523/2010 R. Saranya ... Petitioner in W.P.11524/2010 Shishupal Kumar ... Petitioner in W.P.11525/2010 Surya Narayan prasad ... Petitioner in W.P.11542/2010 G. Thangavel ... Petitioner in W.P.11543/2010 U.Abhilash ... Petitioner in W.P.11544/2010 K.A.Ahammad Yasin ... Petitioner in W.P.11545/2010 Amit Bodh ... Petitioner in W.P.11546 of 2010 Bijin K.Baby ... Petitioner in W.P.11547 of 2010 M.Christuraj ... Petitioner in W.P.11548 of 2010 K.N.Harish ... Petitioner in W.P.11549 of 2010 https://hcservices.ecourts.gov.in/hcservices/ Mohamed Neman Hussain ... Petitioner in W.P.11559 of 2010 G.Mohana Praveen ... Petitioner in W.P.11560 of 2010 Mc.Mohammed Sakkir ... Petitioner in W.P.11561 of 2010 Musaib A.Nazeer ... Petitioner in W.P.11562 of 2010 R.Jegadesh ... Petitioner in W.P.11563 of 2010 Kishor Kunal ... Petitioner in W.P.11564 of 2010 M.Manikandan ... Petitioner in W.P.11565 of 2010 B.Mothilesh ... Petitioner in W.P.11566 of 2010 G.Perumal ... Petitioner in W.P.11567 of 2010 R.Rahul ... Petitioner in W.P.11568 of 2010 M.Ranjeith Kumar ... Petitioner in W.P.11569 of 2010 T. Saheer ... Petitioner in W.P.11570 of 2010 M. Syam Dev ... Petitioner in W.P.11571 of 2010 Vishnu Mohan ... Petitioner in W.P.11572 of 2010 R.M. Udhaya ... Petitioner in W.P.11573 of 2010 Jaipal Kumar ... Petitioner in W.P.11681 of 2010 M. Jeevitha ... Petitioner in W.P.11682 of 2010 P. Naseentaj ... Petitioner in W.P.11683 of 2010 S. Thilagavathi ... Petitioner in W.P.11684 of 2010 Vs. 1.The Commissioner of Technical Education, Directorate of Technical Education, Govt. of Tamil Nadu, Guindy, Chennai-32. 2.The Registrar, Anna University, Coimbatore Mettupalayam Road, Jyothi Puram and Post, Coimbatore- 641 047. 3.Archana Institute of Technology, rep. By its Trustee, D.Jayapal, Archana Educational and Charitable Trust, NH-7, Salem Main Road, Thimmapuram, Krishnagiri 635 112. .. Respondents in all Wps Writ Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorari calling for the records relating to the proceedings of the first respondent bearing No.184/AUCBE-R/CEO/2010 dated 21.5.2010 and to quash the same. For Petitioners : Mr.ARL.Sundaresan, S.C. for M/s.AL.Gandhimathi for WP.11397/2010 etc. Mr.R.Karuppan for W.P.No.11681 to 11684/2010 For Respondents : Mr.P.Wilson, AAG assisted by Mrs.E.Ranganayaki, GA (Edn) (R1) Mr.R.Shivakumar (R2) COMMON ORDER https://hcservices.ecourts.gov.in/hcservices/ All the writ petitions are directed against identical show cause notice dated 21.5.2010 in No.184/AUCBE-R/CEO/2010 issued by the first respondent/the Commissioner of Technical Education in and under which, the petitioners/students are called upon to make their representations as to why the result of the first year semester examination held in February 2010 should not be cancelled and as to why they should not be debarred from writing further examination for two more years for the malpractice of mass copying committed by them. 2.The facts leading to the institution of batch of writ petitions are as follows: The third respondent herein viz., Archana Institute of Technology was established during the academic year 2009-2010 and the petitioners and few others totally numbering 123 students were admitted in four branches of Engineering Courses viz., Civil Engineering, Mechanical Engineering, Electronics and Communication Engineering and Computer Science Engineering. The first semester examinations were held in January 2010 and the results of the first semester examination were declared in February 2010. Out of total strength of 123 students, 122 students passed out in all the subjects having secured marks approximately 82 to 85% and only one student failed in one paper. After the results were declared, the Management published advertisements in the newspaper on 1.3.2010 and 2.3.2010 congratulating all the students. Such paper advertisements, gave rise to representation in the form of complaint on the same day i.e. on 2.3.2010 by the members of the Association of Management of Coimbatore Anna University Affiliated Colleges to the Vice Chancellor, Anna University to the effect that the percentage of pass is highly greater than that of the University average pass percentage and the same is susceptible that some kind of malpractice could have been motivated and encouraged by the authorities who conduced the examination and hence, the same required thorough investigation by appointing a committee to scrutinise the answer scripts. 3.Anna University, Coimbatore (hereinafter shortly referred to as 'AUCBE') to which the third respondent institution affiliated has simultaneously suo motto taken up the issue and constituted an enquiry committee consisting of one Syndicate Member as Convenor, Head of the Department of Chemistry, Professor of Mathematics and Principal of Knowledge Institute of Technology, Salem as its members to enquire into the same and submit a report in this regard. The Anna University has also simultaneously called upon the Principal of the third respondent institution to produce the originals of the communications of the AICTE or AUCBE to substantiate its claim made in the newspaper advertisements as if its academic excellence is certified by the authorities referred to above. 4.In the meanwhile, the enquiry committee referred to above submitted its report on 15.3.2010. As per the report, some of the https://hcservices.ecourts.gov.in/hcservices/ answers in almost all the subjects written by the students were verbatim same in all the answer sheets of the students and one of the questions in mathematics was initially answered wrongly by 85 students, then the wrong answer was struck off and thereafter, correct answers were written which are verbatim the same. The enquiry committee in its report dated 15.3.2010 has also opined that two or three kinds of answers for the selected questions might have been prepared and circulated among the students during the examination and the students might have copied in random order. Based on which, AUCBE by its order dated 16.3.2010 in Lr.No.095/AUCBE/R/R1/ Malpractices/2010 arrived at a conclusion that there is strong evidence relating to mass copying in the examination held in the third respondent college. As a result, the University has decided to cancel all the first semester examinations held at the third respondent College during January 2010. AUCBE has also issued a press release on the same day that it is proposed to take necessary action against the Institution and also against the persons involved in the conduct and supervision of the above examinations and show cause notice will also be issued to disaffiliate the above institution. Following the same, AUCBE has issued a letter to the Principal of the third respondent college to direct the staff members who have acted as Internal Invigilators, Chief Superintendent and EMS Coordinator during the first semester B.E./B.Tech Degree examinations held at Archana Institute of Technology, Krishnagiri during January 2010 to meet the Vice Chancellor, Anna University, Coimbatore, Jothipuram Post, Coimbatore on the date mentioned in the letter and also directed the institution to furnish the Proforma 1 to Proforma 10 prepared for such examination. 5.Aggrieved over the said order, the writ petitions were filed by the third respondent college and by some of the students numbering 41 in W.P.Nos.5552, 5915 and 7568 of 2010 for quashing the order issued by AUCBE dated 16.3.2010 thereby cancelling the first year semester examinations held in the college during January 2010. All the writ petitions were commonly heard and seriously contested by both sides. According to the petitioners/institution as well as the students, the impugned order of cancellation is baseless and unfounded and the same is vitiated by bias as it is based on the enquiry report of the committee consisting of the professors of some of the complainants' colleges and the impugned order is passed without any notice and without any opportunity to the institution as well as the students through personal hearing to disprove the correctness of the enquiry report. The claim of the petitioners is vehemently opposed on the side of the Higher Education Department and the AUCBE on the ground that there is strong proof to show that mass copying was committed in the college and the impugned order of cancelling the first year semester examination is passed only in the interest of public at large without any other motive. It is also submitted on behalf of University that the University is willing to appoint a fresh panel, in the event of constitution of the earlier committee being held to be bad, to go into the answer scripts to https://hcservices.ecourts.gov.in/hcservices/ verify as to whether there was any mass copying or not. The University has also suggested the names of the members of fresh panel of experts. 6.All the writ petitions were disposed of by common order dated 16.4.2010 by setting aside the impugned order and the matter was remitted back to the competent authority of AUCBE to decide the issue afresh as to whether any action is warranted with regard to the higher percentage of pass in the first semester B.E. Degree examinations held in January 2010 in the college in question. Our High Court has held so, mainly by accepting the contention raised on the side of the petitioners that the impugned order is vitiated by bias as it is based on the report of the four members committee consisting of the members of complaining colleges against whom there is a plea of reasonable likelihood of bias. Our High Court has after analysing the issue of plea of bias in the light of the observations of the Supreme Court in the decisions reported in (1985) 4 SCC 417 (Ashok Kumar Yadav v. State of Hariyana) and by applying the ratio laid down in the judgments of the Supreme Court in (i) AIR 1970 SC 150: 1969 2 SCC 262 (A.K.Kraipak v. Union of India) and (ii) (2009) 11 SCC 84 (A.U.Kureshi V. High Court of Gujarat) concluded that the constitution of the four members committee to go into the allegation made by the association of management is found improper and the decision taken by the Vice Chancellor on the same day based on the report of such Committee is unsustainable. However, Our High Court has while doing so, left it to the discretion of the competent authority of Anna University to decide the matter afresh as to whether any action is warranted with regard to higher percentage of pass in the first semester B.E. Degree examination and whether there is sufficient material to enquire into the allegations levelled against the students of the petitioner's college and in the event of the appropriate authority decides to go further to appoint the committee of experts as suggested by the learned Senior counsel for the University. 7.While deciding so the issue regarding issuance of notice to individual student is also raised on the side of the writ petitioner. It was argued that if the competent authority decides to proceed further in the matter, they may be directed to issue notice to the students as well as the management before issuing any further order so as to enable them to establish their innocence before passing any adverse order in this matter. The same was objected to by the Special Government Pleader and the learned Senior counsel appearing for the University that individual notice need not be issued to the students when the allegations of mass copying is levelled against them. Both the petitioners as well as the respondents relied on the Supreme Court decisions in support of their contentions. However, our High Court was not inclined to express any opinion about the issuance of notice to the students individually and our High Court has left that issue also to the decision of the appropriate authority and has observed that if the authority decides to proceed further, the authority may decide as to https://hcservices.ecourts.gov.in/hcservices/ whether the individual students would be given an opportunity to explain their innocence, if the scrutiny of answers scripts is ordered to be made by the panel of Experts to be nominated by the competent authority. Neither the writ petitioners nor the Higher Education department or AUCBE has preferred any appeal against the common order dated 16.5.2010 as such, the same has become final and binding on all the parties to the writ petition. 8.In pursuance of the disposal of the writ petition, the matter was placed before the Syndicate for its consideration and direction in its meeting held on 30.4.2010. The Syndicate has resolved to approve the panel of Experts to verify the answer scripts as to whether there was mass copying or not. In pursuance of the resolution passed by Syndicate, the answer scripts were scrutinised by the fresh panel of Experts as suggested by the University as referred to in para 17 of the earlier order dated 16.4.2010. The panel of Experts submitted their individual reports with their findings supported by reasoning that mass copying has taken place by either of the modes mentioned in the report. Such reports of the fresh panel of Experts are again placed before Syndicate for consideration and further direction in its meeting held on 11.5.2010. On which the date, the Syndicate has resolved to constitute a disciplinary committee consisting of the Commissioner of Technical Education as its chairman and four members who shall be professors from Anna University, Chennai dealing with subjects of mathematics, Engineering Physics, Engineering Chemistry and Engineering Graphics, but who shall not be the professors who scrutinised the answer scripts earlier and the four members are to be nominated by the Vice chancellor and the disciplinary committee is directed to make further enquiry with the students who appeared for the first year semester examination in February 2010 in the third respondent college, Hall Superintendent, Reserve Hall Superintendent Chief Superintendent and the management of the institution by issuing notices to them and to file its report before the syndicate. 9.In pursuance of the same, Anna University, Coimbatore by its order dated 14.5.2010 constituted a disciplinary committee by nominating four members having the Commissioner of Technical Education as its chairman and the same was communicated to the Commissioner of Technical Education and other members of the committee along with the copy of the reports of panel of Experts to make further enquiry based on the reports of the fresh panel of experts with the students and the staff involved in the supervisory work for the examination including Anna University representative and the Chief superintendent, the Principal of the Institution and the Management of the institution and submitted its report before the syndicate. 10.In pursuance of the same, the first respondent, who is the Chairman of the disciplinary committee has sent individual notice to all the 123 students in Letter No.184/AUCBE-R/CEO/2010 dated https://hcservices.ecourts.gov.in/hcservices/ 21.5.2010. The notice proceeds to say that Syndicate of AUCBE in pursuance of the High Court's order has resolved to proceed further by appointing a fresh panel of Experts to scrutinise the answer scripts in question and the Expert committee constituted in this regard arrived at a conclusion that there was mass copying and on the basis of the Expert reports, Syndicate has constituted the disciplinary committee and the same has to after giving reasonable opportunity to 123 students, submit its report to the university. It further proceeds to say that the individual students are found to have committed malpractice of mass coping as such the students are individually called upon to make their representations as to why not the results of the first year semester examinations should not be cancelled and the students were debarred by writing two more years for the malpractice committed by them. The students were directed to submit their written representations within 10 days from the date of receipt of that letter and were also given liberty to appear in person before the disciplinary committee on 4.6.2010 at Govt. College of Engineering, Bargur to put forth their defence and in the event of their failure to submit their explanation within the time stipulated, it shall be presumed that no representation was made and further action shall be pursued based on the available records and evidence. Challenging the validity of the said individual notices, the present batch of writ petitions came to be filed. 11.In all the writ petitions, it is categorically argued by all the learned counsel appearing for the petitioners that the impugned order purported to be the show cause notice is issued with premeditation about the further action to be taken in the matter of imposing penalty and the opportunity sought to be given in the notice is only post decisional opportunity and no notice or opportunity was given to the students by the appropriate authority before taking a decision to initiate action with regard to higher percentage of pass and before constituting a committee to scrutinise the answer scripts and the stereo type of notices are issued by the disciplinary committee merely based on the report of expert committee who are said to have scrutinised the papers and whose reports were accepted by the Syndicate behind the back of the petitioners and therefore, the impugned notice is arbitrary, illegal and violative of the principles of natural justice. It is also contended that the opportunity sought to be given to the petitioners is only a formal procedure that too for imposing penalty and the enquiry which is sought to be held is a futile exercise and is neither likely to serve any purpose nor alter the decision already arrived at by the committee. It is further argued by the respective counsel appearing on the side of the petitioners that there was no mass copying and there was no complaint of malpractice committed during the examination and the committee constituted consists of members of outside university and is without any authority and the verbatim answers given in the answer scripts cannot be the basis for suspecting malpractice of mass copying as the similarity or identity in answers may be due to the preparation from the same text books which are common for all and it is not impossible or https://hcservices.ecourts.gov.in/hcservices/ impractical to reproduce the steps in the same order and in answering the questions in the same pattern which is taught to them and by memorising and learning. One more grievance raised on the side of the petitioners is that the impugned notice is issued on 21.5.2010 calling for the representations of the students within 10 days when the second semester examinations were scheduled to be commenced on 4.6.2010 thereby the students are sought to be pressurised and harassed on the verge of commencement of the examination on 4.6.2010 and such action is arbitrarily illegal and unjust. 12.On the other hand, it is argued by the learned Additional Advocate General appearing for the respondents that the fresh expert committee is constituted in pursuance of the order of the High court and in pursuance of the decision taken by the Syndicate of university who is the competent authority and the expert committee scrutinized the answer scripts and found that there is strong evidence for mass copying by circulating the answer materials in bunches and by allowing the students to write beyond the stipulated time and by displaying the answers to the questions in the examination halls and by making the answers available to the candidates in multiple print outs of single solution etc. The committee report was duly approved by syndicate who constituted a disciplinary committee and all the four members of the disciplinary committee belonging to Anna university and Syndicate delegated its power to the disciplinary committee appointed for specific purpose and the impugned show cause notice is issued only in compliance with the principles of natural justice and the reports of the expert committee is not final and the final decision will be taken only by the syndicate after considering the representations of the petitioners and other staff members. Though no individual notice is necessary, every student has been through the impugned notice given due opportunity to prove his/her innocence before the disciplinary committee and the impugned notice is not vitiated by any illegality or infirmity and as it is only a show cause notice, it cannot be questioned at this stage. 13.The respective learned counsel appearing for the petitioners as well as the learned Additional Advocate General have also cited catena of judgments laying down the principles of law for and against the contentions raised on both sides. 14.Heard the rival contentions made on both sides and perused the materials available on record. 15.The present batch of writ petitions are the second round of litigation. Earlier batch of writ petitions were filed against the order of cancellation of the first year semester examination held in January 2010 on the basis of the earlier committee report with a finding that mass copying has taken place and the present impugned order is the out come of further proceedings taken in pursuance of the directions of this Court in the earlier writ petitions. As already referred to above, the order dated 16.4.2010 made in the https://hcservices.ecourts.gov.in/hcservices/ earlier batch of writ petitions is not challenged either by the writ petitioners or AUCBE as such, the earlier order dated 16.4.2010 has become final and binding on all the parties of the writ petitions. The order made in the earlier writ petitions is enclosed at page 4 of the typed set of papers dated 11.3.2010. In the earlier order, our High Court has made certain observations which are extracted hereunder: 12. There was no complaint from the Invigilators or Supervisors, of whom some of them are admittedly from other colleges. The answer scripts were valued by the examiners and nothing was found against the students and no complaint was received from the examiners, who valued the answer scripts. ---Merely because there is higher percentage pass than the average results of the University, one cannot come to the definite conclusion that there was mass copying. 13. ---After scrutiny of the papers, the committee found prima facie materials of copying and submitted a report, based on which, the impugned order cancelling the examinations was passed on the same day by the University viz., Vice chancellor and the order was issued by the Registrar. 14.The said report is attacked by the petitioners by contending that the members of the four Member committee are inimical towards the Archana Institute of Technology and its students as the said institute has not become a member of the Association of the managements and the committee members approached the issue in a biased manner to sustain the complaint given by the Association of Management. There is some substance in the said contention raised by the learned counsel for the petitioners as it is well settled in law that "Justice must not only be done, but must also appears to be done". The allegation of bias must be ruled out to maintain purity in administration and to maintain confidence on the persons, whose rights are affected by the decision. 16. ..the constitution of Four Member committee to go into the allegations made by the Association of Management is found improper and the decision taken pursuant to its report is unsustainable. 17...The name of the members of fresh panel of experts suggested by the learned