IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 7962 of 2003 To SPECIAL CIVIL APPLICATION No 7965 of 2003 with Special Civil Applications No. 8202 & 8312 of 2003 with Special Civil Applications No. 8293 to 8301 of 2003 with Special Civil Applications No. 8304 to 8307 of 2003 with Special Civil Applications No. 9290 to 9294 of 2003 with Special Civil Applications No. 9296 to 9298 of 2003 with Special Civil Application No. 8931 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE K.A.PUJ ========================================================= 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? --------------------------------------------------------- JETALBEN JAYANTIBAHI PARKAR & Others. Versus GUJARAT SECONDARY & HIGHER SECONDARY EDUCATION BOARD & Others. --------------------------------------------------------- Appearance: 1.SPECIAL CIVIL APPLICATION No 7962 of 2003 To SPECIAL CIVIL APPLICATION No 7965 of 2003 with Special Civil Applications No. 8202 & 8312 of 2003 MR JD AJMERA for Petitioners. MR AD OZA, with Mr. Dipak R. Dave, with Mr. Hemang Raval for Respondents. 2.Special Civil Applications No. 8293 to 8301 of 2003 with Special Civil Applications No. 8304 to 8307 of 2003 Mr. VH Desai for petitioners. Mr. AD Oza, with Mr.Dipak R. Dave,with Mr. Hemang Raval for Respondents. 3. Special Civil Applications No. 9290 to 9294 of 2003 with Special Civil Applications No. 9296 to 9298 of 2003 Mr. HJ Nanavati for petitioners. Mr. AD Oza, with Mr. Dipak R. Dave with Mr.Hemang Raval for Respondents. 4. Special Civil Application No. 8931 of 2003 Ms. Heena Desai for petitioner. Mr. AD Oza, with Mr. Dipak R. Dave,with Mr. Hemang Raval for Respondents. ========================================================= CORAM : MR.JUSTICE K.A.PUJ Date of decision: 06/08/2003 CAV JUDGEMENT Following Special Civil Applications are filed under Article 226 of the Constitution of India challenging the cancellation of result of the subjects of the Post Basic Stream of Standard 12th as mentioned in the respective orders passed by the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar. ________________________________________________________________________ Sr. SCA No. Name of Irregularity Type of No. Petitioner. committed in Irregularity Subject/s. _______________________________________________________________________ 1. 7962/2003 Jetalben J.Parmar Samaj Navrachna Triangle Mark 2. 7963/2003 Kalpesh V.Chaudhari Krushi Gopalan-2 Triangle Mark 3. 7964/2003 Chandrikaben G.Patel Samaj Navrachna, Triangle Mark Sahakar. 4. 7965/2003 Ranjanben V.Chandra- Sahakar Triangle Mark mamiya. Use of black pen. 5. 8202/2003 Chandrikaben D. Parmar Krushi Gopalan-2 Triangle Mark 6. 8312/2003 Lataben C. Parmar Sahakar Triangle Mark 7. 8293/2003 Solanki Kanjibhai B. Krushi-1 Embossed Seat Number. 8. 8294/2003 Desai Jitendra S. Panchayatiraj & Embossed (Minor) Krushi-1 Seat Number. 9. 8295/2003 Desai Ashishkumar B. Sahakar, Embossed Name Panchayatiraj & & Seat Number. Krushi-1 10. 8296/2003 Shrimali Mitulben L. Sahakar & Krushi Embossed Gopalan-1 Seat Number. 11. 8297/2003 Desai Sonalben A. Krushi Gopalan - Embossed 1 & 2,Panchayati- Name & Seat raj & Sahakar. Number. 12. 8298/2003 Desai Kamleshkumar Krushi Gopalan Embossed H. 1 & 2,Panchayati- Name & Seat raj & Sahakar. Number. 13. 8299/2003 Desai Hetalben M. Krushi-1, Written Name Panchayatiraj & Sahakar. 14. 8300/2003 Chauhan Hiralben S. Krushi Vidya-1, Written Name Samaj Navrachna and Number Panchayatiraj & Embossed. Sahakar. 15. 8301/2003 Desai Shilpaben G. Samaj Navrachna, Embossed Krushi-1 & 2. Seat Number 16. 8304/2003 Parmar Geetaben G. Sahakar Written Name in Short. 17. 8305/2003 Thakor Niruben A. Panchayatiraj & Written Name Krushi 1 & 2 18. 8306/2003 Thakor Geetaben P. Krushi Gopalan-1 Written Name Panchayatiraj. 19. 8307/2003 Sonivadia Amiben S. Krushi Vidya, Written Name Sahakar & Panchayatiraj. 20. 9290/2003 Pathan Imrankhan A. Krushi Gopalan-1 Embossed Seat Number. 21. 9291/2003 Mod Nijambhai Kasam- Samaj Navrachna Star Mark. bhai. 22. 9292/2003 Lakum Manubhai Krushi-1 Embossed Joshangbhai Seat Number 23. 9293/2003 Gabu Alpeshbhai Krushi-1 Embossed Lagharbhai. Seat Number & Sign. 24. 9294/2003 Lakum Gambhir Krushi-1 Embossed Talshibhai Seat Number. 25. 9296/2003 Palaliya Rameshbhai Samaj Navrachna Embossed Kanabhai Seat Number. 26. 9297/2003 Patel Mansukh Hans Samaj Navrachna Star Mark rajbhai. 27. 8931/2003 Rathod Vijaysinh Panchayat Signed in Lagharbhai. Supervisor's Signatures' Column. 28. 9298/2003 Vishal Karsanbhai G. Sahakar Krushi-1 Embossed & Samaj Navrachna Seat Number. 2. As far as the first group of petitions represented by Mr. JD Ajmera, the learned advocate, is concerned, it is their case in their respective petitions that the petitioners had appeared in the Standard 12th Board Examination conducted by the respondent Board in March 2003 and the petitioners have received notices from the respondent Board on different dates, inter alia, stating that the petitioners had committed irregularity in the examination in the paper mentioned in the said notices, by putting some indications like "Triangle" while writing question numbers and hence they were called upon to show cause as to why their results should not be cancelled. The petitioners were also asked to personally remain present on the dates mentioned in the respective notices before the Examination Committee. In some of the cases, the petitioners have tendered written reply to the Committee. However, without considering the said reply, the Committee took the decision that the petitioners had confessed the irregularities. It is further stated by the petitioners in this group of petitions that the petitioners had shown certain answer books which had been prepared by the respondent Board as model answer books in a book form and it is publicly available, indicating that the question numbers are written either in triangle or square and the same has not been treated as any irregularity by the Board. Despite this fact, the respondent Board had passed orders, whereby the petitioners Standard 12th result in some of the subjects of Post Basic Stream examination held in March 2003 have been cancelled and further informed that the petitioners would be entitled to appear in examination in March 2004. 3. As far as second group of petitions represented by Mr. VH Desai, learned advocate is concerned, the case of these petitioners was that the petitioners' results were cancelled on the ground that the petitioners have written their seat numbers on the 1st page of the answer sheet in such a manner that the same also appeared on Page No.3 of the same answer sheet and in this manner the petitioners have put their identification marks in the answer sheets. Here also, show cause notices were issued by the respondent Board and replies were also submitted, however, without considering the said reply, the petitioners were pressurized to accept their guilt as otherwise the petitioners would be debarred for a period of 3 years. Orders were, thereafter, passed cancelling the result of some of the subjects of Post Basic Stream of Standard 12th examination held in March 2003. 4. As far as the third group of petitions represented by Mr. HJ Nanavati, learned advocate, is concerned, the case of the petitioners is that the petitioners' results were cancelled on the ground that the petitioners had either written their seat numbers in the answer sheets or put some identification marks by writing the seat number on 1st page of answer sheet with pressure so that the seat number may appear on the 3rd page of the same answer sheets. In these cases also, the show cause notices were issued, explanations were called for and ultimately same type of orders were passed by the respondent Board cancelling the result of particular subject mentioned in the order and the petitioners were informed to appear in the examination of March 2004. 5. As far as Special Civil Application No. 8931 of 2003 represented by Ms. Heena Desai, the learned advocate is concerned, the result was cancelled on the ground that the petitioner wrote name at the place where the Supervisor was to put his signature. Mr. JD Ajmera, ld. advocate appearing for the petitioners submits that there was no evidence to the effect that the petitioners have committed any irregularity in the answer sheet. He has further submitted that when there is specific denial by the petitioners, it is the duty of the respondent Board to investigate into the matter and then only to draw a conclusion whether so-called irregularities were committed by the petitioners. He has further submitted that the replies submitted by the petitioners were not considered by the respondent Board and the entire case was proceeded against the petitioners only on solitary ground that the petitioners have admitted their guilt before the Examination Committee. He has further submitted that all the petitioners were minors and were of tender age and they were not allowed to be accompanied by their parents or teachers while appearing before the Examination Committee and under duress or threat, the petitioners were compelled to admit their guilt before the Examination Committee. Mr. Ajmera has further submitted that the answer sheets in question were examined by the Examiners and thereafter the said answer sheets were also checked by the Supervisors and by the Moderator. None of them has found any irregularity and it is only thereafter the show cause notices were issued and impugned orders were passed against the petitioners. 6. Mr. Ajmera has further submitted that before cancelling the results of the petitioners, it is the duty of the respondent Board to consider the quality of the papers supplied to the students appearing in the examinations because if any one writes with some pressure on Page No.1 the same would carry an impression of the said writing on Page No.3 also. They should depend upon the quality of the papers on which the students are writing. He has further submitted that unless there is a specific conclusion drawn by the respondent Board that identification mark was made only with certain intention, the respondent Board cannot take any penal action against the petitioners as it would amount to total non-application of mind on the part of the respondent Board. 7. Mr. HJ Nanavati, ld. advocate, appearing for the petitioners in 3rd group of petitions, has submitted that the action of the respondent Board is arbitrary, illegal, unjust and improper inasmuch as when the respondent Board has been vested with the authority and power to regulate the public examination in the State, it is expected from the authorities to act fairly, bona fide and transparently in all its dealings, transactions and approach. He has further submitted that in the case of the petitioners, the respondent Board has called the petitioners to offer their explanation in respect of the alleged irregularities, they have been forced to sign a prewritten documents in which what has been mentioned, the petitioners were not aware and on the basis of the said document, the punishments have been inflicted upon the petitioners. He has further submitted that the case of adopting illegal use of means in the public examinations can be dealt with strictly by the respondent Board, but at the same time the respondent Board is also supposed to look into the totality of the facts and if there is no mens rea or any oblique motive of the students appearing in the examination, there is no justification on their part to cancel the results of the petitioners. Mr. Nanavati has further submitted that the manner in which the inquiry was conducted by the Examination Committee is in violation of the principles of natural justice as the petitioners were only asked a question as to whether they would sign a pre-written paper or not, and, if yes, the order like impugned herein was to follow, and, if not, the fate would be of debarring the petitioner from Board examination for a period of three years. 8. Mr. VH Desai, learned advocate appearing in the 2nd group of petitions, more or less, adopted the arguments of Mr. Ajmera and Mr. Nanavati, and submitted that the action taken by the respondent Board with regard to cancellation of the result of the petitioners is absolutely unjust, uncalled for, contrary to the principles of natural justice and it has adversely affected the very bright and promising career of the students in question. The said orders are, therefore, required to be quashed and set aside and the respondent Board is required to be directed to pronounce the result of the petitioners forthwith. 9. Over and above these arguments, the learned Advocates appearing for the petitioners have further submitted that there were discrepancies between the notices issued and the orders passed in consequence of the said notices. The orders were passed in a stereotyped and mechanical manner and no reasons were given while passing such orders. The Respondent Board has failed to establish the motive behind putting the notification marks on the answer sheets, nor the Board has disclosed the basis for alleged collusion between the petitioners and the teachers or the School management. Even the relevant materials were not placed before the petitioners. It is further submitted that in one of these petitions, a specific allegation is made that though the show cause notice was issued in the case of Desai Shailesh Mafatbhai who is the relative of the Examination Secretary, the proceedings were dropped subsequently against him. It was only because of the partiality shown to that student, the proceedings were dropped against him, whereas all the petitioners who are before this Court were punished despite the fact that no malpractice or irregularity was committed by them. 10. Mr. Ajmera has relied on the decision of this Court in the case of Ketan Shivkumar Trivedi v. Gujarat Higher Secondary Education Board, Gandhinagar 24 (2) GLR Page 1373, for the proposition that orders passed are violative of the principles of natural justice. The Court has held as under : "Reports of the examiner and building conductor which were considered by the examination committee before it passed the impugned order against the petitioner were not shown to the petitioner. It is, therefore, obvious that the examination committee while it passed the orders of punishment against the petitioner did take into consideration material collected behind the back without giving any opportunity to the petitioner to meet the same or to have his own say in the matter against the said reports. This has introduced a fatal infirmity in the order of punishment and it must be held that the petitioner did not get reasonable opportunity to have his say in the matter and to meet the charge of misconduct levelled against him." 11. This Court has issued notices, on different dates in all of these petitions, directing the respondent Board to depute a responsible person from the Board along with the relevant answer sheets in each of the petitions. Since more or less a common question is involved in all these petitions, the same were taken up for final hearing on the same day. The respondent Board has also filed affidavit-in-reply in most of the cases and the Court has also seen and verified the answer sheets produced before it by the respondent Board. In some cases, wherever some specific demand is made to that effect, the same were also shown to the learned advocates appearing for the petitioners. In some of the cases, Rule was issued by the Court and where Rule was not issued but the matters are kept for final disposal, Rule is issued and the same is waived by Mr. AD Oza, the learned advocate with Mr. Dipak Dave, ld. advocate appearing for the respondent Board. 12. Mr. AD Oza, the learned advocate along with Mr. Dave, the learned advocate appearing for the respondent Board, submitted that the petitioners have indulged in malpractices in the HSC Examinations conducted by the respondent Board in March 2003. He has further submitted that the Board has, after following due procedure of law, rightly cancelled the results of the petitioners. He has further submitted that as far as 1st group of petitions is concerned, the petitioners had appeared in HSC Examination in Post Basic Stream in March 2003 from Nutan Bhartiya Vidyalaya, Madangadh, Taluka-Palanpur. The petitioners in 2nd group of petitions are from Shri Uchhatar Buniyadi Vidyalaya and the petitioners in 3rd group of petitions are from Uttar Buniyadi Vidyalaya. In this post basic stream in all 3825 students have appeared in the examination through out the State of Gujarat and 2581 students were declared as passed. He has further submitted that for post basic stream, the Central Assessment Centre was Swaminarayan Gurukul Vidyalaya, Zundal, District-Gandhinagar where all the answer sheets of subjects of post basic stream and some of the answer sheets of vocational stream were accumulated and assessed. In Post Basic Stream, there are four subjects and in General Stream, there are also four subjects. The answer sheets of 4 Post Basic Stream subjects were kept separately and answer sheets of 4 general subjects like Gujarati, Hindi and Social Studies were mixed and assessed with the answer sheets of students who appeared in General Stream. 13. Mr. Dave has further submitted that when the assessment work was going on, the Secretary of the Board, Dr. GK Patel has received oral information regarding certain irregularities committed by the students in the answer sheets and hence Dr. Patel has personally visited the said Centre and found that many students have marked some signs like triangle, square etc., or have written their names in their answer sheets or wrote their seat numbers with pressure for identification. Dr. Patel therefore informed this fact to the Chairman of the Board and on 22nd April 2003 a Committee was formed for verification at the said Assessment Centre. The Committee has visited the said Assessment Centre and found that in certain answer sheets, some identification marks like triangle, square etc., were found. The Committee has found a total of 775 answer sheets of 514 students wherein such type of identification marks were made and out of these students, 29 students from Nutan Bhartiya Vidyalaya, Taluka-Palanpur have done triangle marks in the answer sheets and other students from other Schools put other identification marks and accordingly actions were taken against these students. 14. Mr. Dave has further submitted that in all these cases, not only the students, but the teachers of the same school who were the Examiners are also involved in the malpractice committed by the students. He has further submitted that the management of the School was also involved in facilitating the students for commission of such malpractices with a view to get more percentage of result of their schools. The Committee has also found that the teachers and students of some of the Post Basic Stream were involved with one another for the purpose of identification of the answer sheets and because of that students of Nutan Bhartiya Vidyalaya, Madangadh, Taluka-Palanpur have marked triangle for identification while students of other schools have marked square for identification of the students. Mr. Dave has further submitted that the answer sheets of all the Post Basic Stream subjects were mixed subject-wise for the purpose of assessment and for the purpose of hiding the identity of the students the Board has adopted the practice of affixing Bar Code Sticker but the attempts on the part of the students and teachers by putting the identification marks have frustrated the basic purpose of affixing the Bar Code Sticker. He has further submitted that the Committee of expert teachers consisting of 10 numbers has verified and found the identification marks in the answer sheets which are deliberate. They have also found that there was over-assessment in those cases, where identification marks were found. 15. Mr. Dave has further submitted that the petitioners have not put up any identification mark like a triangle or a square in the answer sheets of Gujarati, Hindi and other subjects of General Stream because such answer sheets are mixed with the answer sheets of General Stream and thus it is difficult to identify the answer sheets of the petitioners. The total number of students appearing in the General Stream are 3,09,084 and the answer sheets of the general subjects of Post Basic Stream are mixed with the answer sheets of General Stream. This fact itself shows that the identification marks put on the subjects of Post Basic Stream appear to be with some malafide intention and/or to commit malpractice in the examination. 16. Mr. Dave has further submitted that with a view to instruct the students, necessary instructions are printed on the answer sheets itself and the Instructions No. 3 and 6 specifically state that the students must not write the name of any Code/Codes or make any symbol for the purpose of identification of the students and that except fountain pen or ball pen of blue ink no other colour ink pen should be used and the use of any other colour ink pen is prohibited. It is further instructed that the students must not put up any mark on the number of question or sub-question. Despite this specific instruction, the petitioners have put up mark of triangle and used the pen of another colour with a view to disclose their identify and therefore the respondent Board is justified in taking action against the petitioners. 17. Mr. Dave has denied all the allegations made in the petitions. He has also invited the Court's attention to the necessary denial made in the affidavit-in-reply and he has pointed out that no threat or duress was given to any of the petitioners as alleged in the petitions. Since the petitioners themselves have realised their mistakes and the irregularities committed by them, they have admitted their guilt. Now, under the advice which they might have received, in the present petitions they have come out with the fact that the petitioners were threatened and guilt was confessed by them. Mr. Dave has further submitted that there was no arbitrariness much less malafide committed by the Examination Committee and the decisions were given by the Committee absolutely in accordance with law. 18. Mr. Dave has made the same submission with regard to writing of seat number on the 1st page of the answer sheet with pressure so as to have an impression on the 3rd page of the answer sheet and also with regard to putting up an identification mark, namely Star, Square etc. He has further relied on the affidavits-in-reply filed in almost all petitions bringing out the relevant facts and circumstances which ultimately led to the respondent authority to take action of cancelling the result of the petitioners in the subject of Post Basic Stream. 19. In support of his submissions, Mr. Dave has relied on the Division Bench Judgment of this Court in the case of Rajesh Chandulal Purohit v. Saurashtra University & Anr. - 38 (1) GLR Page 317, wherein, while dealing with the Ordinances 160A and 161AA of Saurashtra University Ordinances, the Court has observed that non-supply of report of observer to the delinquent student would not violate the principles of natural justice as no prejudice was shown to have been caused. The breach alleged was in respect of procedural provision other than that of the fundamental nature. Violation of procedural rule fell in the category of "No proper hearing" rather than "No hearing". In absence of proof of prejudice caused, the action of the University was not liable to be quashed on the ground of breach of principles of natural justice. 20. Mr. Dave has further relied on another Division Bench Judgment of this Court in the case of Gujarat Secondary Education Board & Anr. v. Sunny Dharampalsingh Chaudhary Minor Through his Father Dharampalsingh Chaudhary & Anr. - 42(1) GLR Page 28, wherein it is held as under : "In the course of the second enquiry, the Examination Committee has taken into consideration the fact that while the students were caught in the course of copying by the Squad Officer, they gave statement in writing, admitting the fact of possession of copying material with them. The examinees, depending upon