M.M.DAS, J. W.P.(C) NO.10377 OF 2009 (Decided on 01.11.2010) BASANTA KUMAR PRADHAN & ORS. ……….. Petitioners. .Vrs. STATE OF ORISSA & ORS. ………. Opp.Parties. For Petitioners - M/s. S.D.Das, H.S.Satapathy, A.N.Sahu, M.Panda, D.Mohanty & M.M.Swain. For Opp.Parties - Addl. Standing Counsel (for O.P.No.1) M/s. S.B.Jena & A.Mishra (O.P. Nos.2 & 3) M.M. DAS, J. The petitioners are some of the students and guardians of students, who appeared in the Annual + 2 Examination conducted by the Council of Higher Secondary Education (CHSE), Orissa in the year 2009. They appeared in the said examination from Harishankar College, where they were prosecuting their studies. When the result of the students of the said college was declared, the result of the petitioners were withheld and a Tabulation Register which was supplied to the college disclosed that the petitioners have been awarded with ‘00’ marks in History Paper-I. On 26th June, 2009, a Notification was published by the Council of Higher Secondary Education (for short ‘the CHSE’) inter-alia notifying that the results of 31 candidates of Harishankar College for history paper in the Annual Higher Secondary Examination, 2009 be published by awarding the marks they have secured and the result of the rest of the candidates of the said examination, which were kept withheld, be published by awarding ‘00’ marks in the concerned history paper. Being aggrieved by such awarding of ‘00’ marks in History Paper-I, the petitioners have approached this Court for issuance of a writ of mandamus directing the CHSE to declare their results by awarding the marks they have been secured in the said paper, as was awarded by the evaluators. A counter affidavit has been filed by the CHSE inter-alia stating that on 07.03.2009 when the examination in History Paper-I was being conducted in Harishankar College, the Central Flying Squad visited the said Centre and as per their report, the examinees were found to be involved in mass mal-practice and it was also mentioned in the report that the answer scripts of almost all the examinees were identical with each other. This report was placed before the Examination Committee, which decided to withhold the result of the Centre and took the decision to verify the answer scripts of the said college once again by the Subject Experts. After reviewing the answer scripts in respect of History Paper-I of the petitioners’ college, it was observed by the subject experts that some of the students were involved in mass mal-practice, as their answers were identical and there were identical errors. It was also mentioned in the report of the Subject Experts that some of the students were not involved in mass mal-practice. The Examination Committee in its meeting held on 07.07.2009 considering the report of the Subject Experts resolved to publish the result of 31 candidates by awarding the marks they have secured in the said paper and to publish the result of rest of the candidates by awarding ‘00’ marks. It is also stated in the counter affidavit that the Central Flying Squad found that large number of students were involved in mal-practice and they collected a huge number of incriminating materials from inside and outside the examination hall. The students were found talking with each other and also found the answers of almost all the students to be identical. 2. The report of the Central Flying Squad has been annexed as Annexure-A/2 to the counter affidavit. The relevant columns of the said report i.e. Column Nos. 13, 15, 16 and 17 are quoted hereunder. “13. Outsiders present – (a) Inside the Exam. Hall No [ If Yes specify the rooms ] (b) Inside the College campus No (c) Outside the College campus Yes 15. Whether there was Malpractice inside the Examination Halls No 16. a] Malpractice detected and reported No [If yes, Roll Numbers of malpractice case be mentioned] [ b] i) Form No.20 [MP Form] duly filled in and submitted to C.S. …… ii) Receipt of the same from C.S. obtained …………………. c) i) Script seized and submitted to C.S. …………….. ii) Receipt from C.S. obtained …………………… [Ask the C.S. to send such scripts and Form No.20 to Dy. Controller of Examinations by Regd. Post soon after each sitting of the Examination] 17. Misbehaviour of candidates No [ If yes, mention the Roll No. & Reg. No. of such candidates, with a detailed report.]” However, the certificate of the Centre Superintendent has been annexed along with the said report of the Flying Squad which is as follows :- “Certified that around 4.30 P.M. the Central Flying Squad members reached at our college and collected inside and outside the exam Hall these increasing materials on 07.03.2009 1- 34 pages of printed History incriminating materials. Sd/- Pramod Kumar Pani 7.3.09 Centre Superintendent Harishankar College Khaprakhol.” 3.. The resolution of the meeting of the Examination Committee adopted in its meeting on 07.07.2009 under Item No.2 (b) in respect of Harishankar College is as follows :- “2.b) BA-12 HS College, Khaparakhole, Dist- Bolangir “considering the report of the subject experts, the Committee resolved to publish the result of the following 31 candidates by awarding the marks they have secured in History ( Roll Nos. 112BA006, 015, 025, 026, 027, 029, 036, 037, 044, 046, 048, 051, 052, 053, 054, 056, 058, 060, 061, 062, 065, 068, 070, 081, 089, 100, 102, 108, 412BA001, 005, & 006 = 31 cases ). The result of the rest Regular and Ex-Regular candidates (Registered during the year 2006-2007) of Annual HS Exam.2009 in Arts stream of HS College, Khaparakhole which have been kept withheld be published by awarding Zero (O) marks in the concerned History paper. Further resolved that the results in respect of the old Ex- 2 Regular candidates in Arts stream of HS College, Khaparakhole for the Annual HS Exam.2009 be kept withheld until the opinion of subject experts is obtained in History paper-II after verification.” 4. It is strange that when the Flying Squad found no outsiders in the examination hall or inside the college campus and stated that there was no mal-practice inside the examination hall as well as no mal-practice was detected and reported nor there was any misbehaviour on the part of the candidates inasmuch as the relevant Clause nos.16 (b) & (c) were left blank but obtained a certificate from the Centre Superintendent that the Flying Squad collected incriminating materials from inside and outside the examination hall. The said incriminating materials have been mentioned in the certificate as 34 pages of printed materials of history subject. None of such alleged incriminating materials appear to have been produced before the Examination Committee or the subject expert have been considered by the Examination Committee while either resolving to review the answer nor scripts of the petitioners in respect of History Paper-I or taking the resolution to award ‘00’ marks to the petitioners in the said paper. The entire basis of the decisions of the Examination Committee appears to be on the report of the Subject Experts, who stated that there were identical answers given by the candidates. In the facts of the present case, even if it is accepted that there ware identical answers given by the students, no presumption arises that they adopted mal- practice. In this contest, the observation made by the Hon’ble Supreme Court in the case of Rajesh Kumar and another v. Institute of Engineers (India) AIR 1997 SCW 3946 needs to be referred which is as follows :- “All literate men have been students at a given point of time but all have not been crammers. Those 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 se 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 there was copying of the answer books, descended from the answer book of one of the candidates, or directly from the book leading to the copying by others.” 5. This Court has laid down that there cannot be any presumption of any mass mal- practice without any basis, which would result in depriving genuinely good students from succeeding in the examination and presence of such students in such circumstances cannot be ruled out. It has been further settled in law that the Examination Committee which is the authority to publish the results of an examination before taking a decision that the result of the students for a particular centre should be cancelled or they should be awarded with ‘00’ marks in a particular paper on account of adopting mass mal- practice must have sufficient materials before them to come to such a conclusion and cannot base their decisions on presumption, conjectures and surmises. 6. In the instant case, it is clearly evident that the Examination Committee took the decision to award ‘00’ marks to the petitioners solely basing on the report of the Subject Experts that they have given identical answers to the question. This if-so-facto cannot lead to the presumption that the petitioners have adopted mal-practice. Moreso, when even though a certificate was obtained from the Centre Superintendent that incriminating materials were collected by the Flying Squad from inside and outside the 3 examination hall, no such incriminating materials were placed before the Examination Committee or the Subject Experts to find out, if any of the petitioners took the aid of such incriminating materials while giving their answers. It is also seen that such incriminating materials were not found from the possession of any particular student nor were found from the examination halls as would be seen from the report of the Flying Squad. 7. In view of the above, the decisions of the Examination Committee to award ‘00’ marks to the petitioners in History Paper-I of Higher Secondary + 2 Examination, 2009 cannot be sustained. The said decision is, therefore, quashed and the opposite party nos. 2 and 3, the Chairman and the Controller of Examinations, CHSE, Orissa, Bhubaneswar are directed to publish the result of the petitioners, of the aforesaid examination, by including the marks awarded to them in History Paper-I by the evaluators in the answer scripts, such result should be published and communicated to the opposite party no.4- the Principal of Harishankar College, Khaparakhole, Bolangir within a period of one month from the date of production of certified copy of this Judgment before the opposite party no.2- the Chairman, CHSE by any of the petitioners. Thereupon, the petitioners shall be supplied with the certificate and mark sheets by the Principal-opposite party no.4. 8. The writ petition is accordingly allowed, but in the circumstances without any cost. Writ petition allowed. 4