LPA Nos.39/2007 etc. Page 1 of 25 IN THE HIGH COURT OF DELHI AT NEW DELHI +LPA Nos.39/2007, 40/2007/ 41/2007, 42/2007, 43/2007, 44/2007, 46/2007, 49/2007, 51/2007, 118/2007 and 204/2007 Date of Decision: 04.07.2008 #Manish Dabas ....Appellant in LPA No.39/2007 Varun Jain ....Appellant in LPA No.40/2007 Naman Rastogi ....Appellant in LPA No.41/2007 Pranjal Vashisth ....Appellant in LPA No.42/2007 Manendera Singh Rana ....Appellant in LPA No.43/2007 Mohit Banka ....Appellant in LPA No.44/2007 Ankit Sehgal ....Appellant in LPA No.46/2007 Karan Jain ....Appellant in LPA No.49/2007 Deepak Khanduja ....Appellant in LPA No.51/2007 Rachit Gupta ....Appellant in LPA No.118/2007 Prashant Vats ....Appellant in LPA No.204/2007 ! Through: Mr.Arvind Nigam with Mr.Samrat Nigam for the appellants In LPA Nos. 39, 40, 41, 42, 43, 44, 46, 51 and 204/2007. Mr.Mike Desai for the appellant in LPA No.49/2007. Versus $University of Delhi & Anr. .....Respondent ^ Through Mr.V.P. Singh, Senior Advocate with Mr.Mohinder J.S. Rupal for the University of Delhi. Ms.Avnish Ahlawat with Ms.Latika Chaudhary for DCE and NSIT. CORAM :- *THE HON'BLE MR.JUSTICE A.K.SIKRI THE HON'BLE MR. JUSTICE J.R. MIDHA LPA Nos.39/2007 etc. Page 2 of 25 1.Whether Reporters of Local papers may be allowed to see the Judgment? 2.To be referred to the Reporter or not? 3.Whether the judgment should be reported in the Digest? A.K. SIKRI, J. : 1. For admission to the Engineering course, the Delhi University conducted Combined Entrance Examination (CEE) 2005. Result of this exam was declared and merit list prepared. The appellants herein were placed quite high up in the merit list. However, immediately after the declaration of the results on 13.6.2005, the University received some complaints to the effect that unfair means were used in the said examination by many candidates. A preliminary scrutiny was conducted by the University authorities which according to the University revealed that there was some substance in the complaint regarding unfair means. The Registrar of the Delhi University, thus, vide FIR dated 27.6.2005 reported the matter to the Director, CBI for detailed investigation, alleging therein that the facts stated in the said FIR disclose commission of offences punishable under Section 120-B r/w Section 420 IPC r/w 13(d) r/w 12(2) of the Prevention of Corruption Act, 1988. Twenty one candidates were named in the said FIR. The names of the appellants were not in that list. It was alleged in the said FIR that the LPA Nos.39/2007 etc. Page 3 of 25 University had discovered that at Ranks 13, 25,36 and 56 of the merit list, there were 5, 3, 2 and 11 candidates respectively who had secured exactly the same marks in Physics, Chemistry and Mathematics, which was an unusual pattern. 2. Thereafter, the University issued show cause notices to many more persons, including the appellants herein on 6.10.2005 alleging that they had also used unfair means in the same examination and it was proposed to cancel the admission of the appellants on that basis. Separate notices were issued to these appellants, who were called upon to show cause why disciplinary action under the provisions contained in Clause 13 read with Clause 9 of Ordinance X-A of the University be not taken against them. The appellants submitted their replies. Thereafter personal hearing was also granted to them. All the appellants were separately interviewed for some time. Vide Memorandum dated 21.10.2005, result of the appellants at CEE–2005 was cancelled and they were debarred from any future examination of the Delhi University for a period of five years from 2005-06. Since the appellants were given admissions in different colleges, in the meantime, those admissions were also cancelled. On the basis of the said Memorandum, the colleges also passed orders cancelling the admissions. 3. Spate of writ petitions came to be filed before this Court challenging LPA Nos.39/2007 etc. Page 4 of 25 Memorandum dated 21.10.2005. Appellants were also the writ petitioners. When these writ petitions came up for hearing on 5.12.2005, the University sought to withdraw the impugned show-cause notices with liberty to issue fresh show-cause notices. This request of the University was allowed and the writ petitions were disposed of with the direction that the impugned show-cause notice would stand withdrawn and liberty was granted to the University to issue a fresh show-cause notice on the basis of evidence which was collected in this behalf. 4. Fresh show-cause notice dated 27.2.2006 was issued to the appellants. They were also asked to appear before the Examination Disciplinary Committee of the appellant. The appellants submitted their replies. Personal hearing was given when they were also asked to solve a paper carrying 30 questions. Thereafter, another show-cause notice dated 7.4.2006 was issued under Clause 13 of Ordinance X-A of the Delhi University Ordinances calling upon the appellants to show cause why the punishment recommended by the EDC, i.e., the result of the appellants at CEE–2005 be not cancelled. The appellants submitted their replies to such show-cause notices. Not convinced with these replies, the University issued separate Memoranda dated 19.4.2006 to all such persons including the appellants herein stating that the appellants were found guilty of LPA Nos.39/2007 etc. Page 5 of 25 resorting to unfair means and their results were accordingly cancelled. They were also debarred from appearing in any future examination of the University for a period of five years commencing June 2005. Although there may be some variation in the dates of show-causes notices, dates on which the appellants gave their replies and the dates on which the orders were passed, for the sake of convenience we have taken note of the dates, as appear in LPA No.39/2007. 5. Challenging the aforesaid action of the University, writ petitions were filed by each of these appellants as well as many others. All these petitions were consolidated and heard together. Vide judgment dated 19.12.2006 the learned Single Judge has dismissed these writ petitions. This is how the appellants have filed the present LPAs questioning the legality of the said judgment. We may, however, add that the debarment of five years from 2005 has been reduced to two years to be calculated from the year 2005. This period has already expired. However, the appellants are still persisting with these appeals as they want their admission to be restored on the basis of CEE–2005. 6. Before coming to the challenge raised by the learned counsel for the appellants impugning the judgment of the learned Single Judge, it would be appropriate to summarize the discussion contained in the said judgment as LPA Nos.39/2007 etc. Page 6 of 25 that would reflect not only the material which was placed before the learned Single Judge and the arguments which the parties had advanced but also the reasons which influenced the learned Single Judge to come to the conclusion that the appellants had used unfair means during CEE–2005 thus upholding the order of the University cancelling their examination. 7. We may also mention at this stage that out of 52 candidates, whose results were cancelled in the first instance, 33 candidates preferred writ petitions on the first occasion. After the first show-cause notice and fresh cancellation orders, only 27 candidates preferred writ petitions second time, which have been dismissed by the learned Single Judge vide the impugned judgment. Against this judgment, only 11 candidates have come up in appeal meaning thereby remaining persons have accepted the decision of the University and/or the learned Single Judge. The Modus Operandi 8. Before we take note of the judgment of the learned Single Judge, it would be necessary to understand as to what kind of unfair means were used, what was the modus operandi and how, according to the University, the appellants also adopted unfair means. It is explained that every year the University conducts Combined Entrance Examination for admission to prestigious engineering courses of the University in Delhi College of LPA Nos.39/2007 etc. Page 7 of 25 Engineering, Bawana and Netaji Subhash Institute of Technology, Dwarka. CEE–2005 was conducted on 29.5.2005. 120 Centres scattered all over Delhi were identified where the said examination took place. In all about 56000 students appeared in the examination. The question paper booklet (QPB) consisted of 180 objective type questions pertaining to three subjects, namely, Physics, Chemistry and Mathematics (60 questions in each subject). After the result of the examination, merit list was prepared and first 1010 candidates were found eligible to seek admission in the engineering course. Thereafter, complaint was received into which preliminary enquiry was made whereafter matter was referred to CBI. It so happened that two candidates, namely, Mr.Anshul Agarwal (Roll No.16628) and Mr.Saumya Agarwal (Roll No.68059) were caught by the invigilators at the respective examination centre during the course of CEE–2005 and mobile phones having numbers 9872899095 and 9899214819 were recovered from their person respectively. Carrying mobile phones inside the examination halls was prohibited. Mr.Anshul Agarwal had also confessed in the statement given to the Centre Superintendent that the last SMS message received on his mobile phone was “03244312241310”, which apparently consists of a set of numerals. A characteristic feature of this set is that numerals are varying from 1 to 4 with an exception of “0”. It is LPA Nos.39/2007 etc. Page 8 of 25 interesting to note that in every question in QPB four options having serial numbers 1 to 4 are provided, out of which one of these is the correct answer to the respective question. The serial number of the correct option provides the answer to a question in the digital form. Mr.Anshul Agarwal received QPB bearing serial No.26730 of Series 14. The numerals from second number to the last but one in the above SMS received by him provide key to answers for questions No.168 to 179 of this series and “0” refers to no answer or not attempted question. Further as confessed by him, this message was the last SMS message received by him before the invigilator caught him. On the scrutiny of his QPB, two sets of 5-digit number were found written on page No.28 and in the “space for rough work”. These numbers indicating sets of 5-digit appearing in his QPB provide key to question Nos.1 to 55 of the series 14. These numbers tally with the encoded OMR answer sheets of other candidates for question No.1-55 of series 14, who figure in the bunch results. The case of Mr.Anshul Agarwal quoted above illustrates the manner in which keys for answers for questions in the QPB were constructed in the digit form consisting of set(s) of 5-digit numbers. The numerals in a 5-digit number vary from 1 to 4 and correspond to the serial number of the probable option to the question. Thus one 5-digit number provides a key to five LPA Nos.39/2007 etc. Page 9 of 25 questions in a block in the OMR sheet and as there were 180 questions to be answered, a complete key to all the questions would therefore consist of a total of 36, 5-digit numbers. These numbers can be written in a variety of ways in a linear form, each number separated from the other by a comma or in a columnar form. From this it is evident that the modus operandi was that keys for the answers to questions in the QPB were received clandestinely in the form of sets of 5-digit numbers. 9. Show-cause notices were issued to 52 candidates whose results were cancelled. Out of these, 33 candidates preferred writ petitions on the first occasion, which were disposed of vide orders dated 23.11.2005, 5.11.2005 and 8.2.2006. The nature of these orders was same, namely, the University withdrew the earlier orders with liberty to serve fresh orders. It is stated that thereafter the University entrusted the matter to independent and separate Professors of Physics, Chemistry and Mathematics to look at the matter afresh. The case of all first 1500 candidates in order of merit in the said examination was reopened for scrutiny of their QPB and OMR sheets. The scrutiny revealed that there was unique pattern of bunching of results/ranks. It was observed that in case of bunched cases not only the total marks were same but the marks secured in different segments also tallied. The occurrence of such bunching is highly improbably, it can LPA Nos.39/2007 etc. Page 10 of 25 happen only when there is a common source of information. Further, it was also observed that the questions which were left not attempted or wrongly answered with the options encoded therein, tallied amongst the bunched candidates. This unusual pattern was not observed in the remaining candidates out of total 1500. In some of the QPBs, some incriminating material was also detected. The candidates where any of the above characteristics features were found turned out to be 52 in number. Judgment of the learned Single Judge 10. The learned Single Judge noted that in the show-cause notices it was mentioned that the scrutiny done on the basis of complaint revealed that there was bunching of results/rank in certain cases and the questions, which were unattempted and the questions which were wrongly answered, tallied almost the same, which was highly unusual pattern and thus, led the University to believe that certain malpractices were adopted in the course of the said examination, namely, CEE–2005. In agreeing with the submission of the University that there were unfair means used by the appellants herein as well, the learned Single Judge has been persuaded by various circumstances discussed in great length in the impugned judgment. We may summarise the same here under:- LPA Nos.39/2007 etc. Page 11 of 25 11. A comparison of the answer books of these appellants and other candidates reveal unusual similarity. The questions which were answered incorrectly were the same. Their incorrect options were also the same, though every question had four options. The learned Single Judge has demonstrated so by giving details in this behalf in para 4 of the judgment. 12. Five appellants whose names are mentioned in para 3 of the judgment did not attempt the same questions, i.e., they did not given answers to the same questions, namely, question nos.51, 95, 99, 108, 134, 142 and 143, except Manish Dabas (appellant in LPA No.39/2007), who did not answer question no.164 also and Naman Rastogi, who did not answer question number 180 also. 13. It was the opinion of the experts on the subjects that nature of questions asked was such that in majority of cases some rough work was required, particularly in mathematics and physics. However, these persons had done hardly any rough work. Many had done some rough work and some had done little rough work mostly scanty and inconclusive. The learned Single Judge had found it to be correct after scrutinizing the QPBs, which were produced before him (we may mention that even we had perused these QPBs as well and find this observation to be correct). LPA Nos.39/2007 etc. Page 12 of 25 14. Some sets of 5-digit numbers were locatable in the rough work done on the first page (space for rough work). Such 5-digit number provide key to the answer to the questions in QBP. One of the 5-digit numbers tallied with the encoding done by some of these candidates on the OMR answer-sheets for certain questions. It was suggestive of information received clandestinely, which was apparently being noted down on that page. The learned Single Judge, in these circumstances, agreed with the inference of the University that there were reasons to believe that since the rough work recorded in certain question papers was erased, that work was the information so recorded, which was later erased and camouflaged by doing some rough work over it. 15. Encoding of certain candidates exactly matched with encoding of other candidates who appeared in the said exam from a different centre. A key for answers to question No.1-180 was written on the page ‘space for work’ in the QPB of Mr.Kartik Sharma. 16. Apart from the aforesaid features noted in the answer-sheets of these candidates which led to the belief that there was cheating and unfair means used in the examination. The following two additional circumstances weighed with the learned Single Judge in cementing the aforesaid inference, namely: LPA Nos.39/2007 etc. Page 13 of 25 (i) these appellants had taken entrance exam in other institutions/universities as well, i.e., CBSE AIEEE-2005 and GGSIP-2005. Though in the CEE–2005 these appellants had secured very high rank in the merit, the ranking in the other two examinations was far below, as is clear from the following chart:- Sr. Name CEE–2005 Series CEE–2005 Ranks CBSE AIEEE-2005 Ranks GGSIP 2005 Ranks 1 Pranjal Vashisht 12 221 2,69,130 19,329 2. Ankit Sehgal 12 52 1,30,548 3. Varun Jain 14 310 1,37,567 4. Prashant Vats 14 24 1,01,125 2,08,934 (2007) Phy = 17 Che = 06 Math = 26 Total=49/260 15,009 5. Manender S. Rana 14 149 4,83,817 (2006) 6. Rachit Gupta 16 107 1,08,797 7. Deepak Khanduja 16 50 2,47,843 4,31,229(2007) Phy = 04 Che = -7 Math = 17 Total = 14/360 18,738 8. Manish Dabas 18 92 2346 (2007) 9. Naman Rastogi 18 35 LPA Nos.39/2007 etc. Page 14 of 25 10. Karan Jain 18 52 11. Mohit Banka 18 52 4,00,853 (2007) Phy = -3 Che = 4 Math = 17 Total = 18/360 (ii) As pointed out above, after the second show-cause notice when these appellants were called for hearing, they were given 30 questions to answer which carried total 120 marks. The performance of all these candidates, whose results were cancelled, including the appellants herein, was very poor and abysmal, which would point out to their low calibre who could not have secured such a high ranking in CEE–2005. Following marks were obtained by each of the appellants out of 120 in the said test:- Sr. Name Marks in 30 Qs. before EDC out of 120 1 Pranjal Vashisht 8 2. Ankit Sehgal 24 3. Varun Jain 19 4. Prashant Vats 33 5. Manender S. Rana 23 6. Rachit Gupta 26 7. Deepak Khanduja Refused 8. Manish Dabas 3 LPA Nos.39/2007 etc. Page 15 of 25 9. Naman Rastogi 18 10. Karan Jain 26 11. Mohit Banka 18 17. We may also note at this stage that Mr.V.P. Singh, learned senior counsel appearing for the University emphasised before us that apart from the aforesaid, the performance of these appellants in CBSE was also not very encouraging and the marks obtained by them in the CBSE would show that they were very average students. Percentage of marks obtained by them in CBSE or PCM (Physics, Chemistry and Maths), as these were the subjects for which they were tested in CEE–2005:- Sr. Name PCM out of 300 Marks % of Marks 1 Pranjal Vashisht 214 71.33 2. Ankit Sehgal 188 62.66 3. Varun Jain 224 74.66 4. Prashant Vats 204 68 5. Manender S. Rana 187 62.33 6. Rachit Gupta 222 74 7. Deepak Khanduja 194 64.66 8. Manish Dabas 224 74.66 9. Naman Rastogi 235 78.33 10. Karan Jain 248 82.66 11. Mohit Banka 215 71.66 LPA Nos.39/2007 etc. Page 16 of 25 18. There appears to be some force in this submission of the learned counsel for the University as well inasmuch as, in science and maths papers the marks which these appellants got ranged between 62% to 78% and one candidate has secured 82%. It is a matter of common knowledge that with these marks the ranking of the appellants in CBSE would be virtually at the bottom of those who passed such an examination. The aforesaid factors, in our opinion, when taken cumulatively, would furnish requisite and sufficient basis to reasonably conclude that performance of these appellants in the CEE–2005 was the result of unfair means. 19. We may note at this stage that learned counsel for the appellants had argued that only inferences were drawn and there was no direct evidence which would establish beyond reasonable doubt the use of unfair means by the appellants. The learned Single Judge rejected this contention of the appellants seeking to invoke the application of the principle “proof beyond reasonable doubt”. In the opinion of the learned Single Judge such cases are to be examined on the touchstone of “preponderance of probability”. We are in agreement with this approach of the learned Single Judge simply because this approach has the support of catena of judgments of the Supreme Court which were taken note of while formulating the aforesaid principle. We quote the relevant extracts from the impugned judgment in LPA Nos.39/2007 etc. Page 17 of 25 this behalf:- “16. The learned counsel for the petitioners have argued on the premise that the respondents have failed to prove beyond reasonable doubt the use of unfair means by the petitioners. However what is to be seen is whether on the basis of preponderance of probability it could be inferred that the petitioners have used unfair means during the examination. Strict rules of evidence act and the standard of proof envisaged therein do not apply to such proceedings taken by the University against the candidates regarding their use of unfair means in the examination. What is to be seen is that the material germane and relevant to the facts in the issue had been placed and considered. What is also to be considered is that the inference have been drawn from the evidence and not based on the speculation and conjectures. The standard of proof is not proof beyond reasonable doubt but the preponderance of probabilities tending to draw inferences that the facts are more probable. In Maharastra State Board of Secondary and Higher Education Vs K.S.Gandhi & Ors. (1991) 2 SCC 716, the Supreme Court had held that in administrative bodies and domestic tribunals the standard of proof required is preponderance of probabilities and not proof beyond reasonable doubt and the probative value is to be judged on the basis of particular facts and circumstances. The Supreme Court had held on page 748 as under: "37. It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal. It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act. The material must be germane and relevant to the facts in issue. In grave cases like forgery, fraud, conspiracy, misappropriation, etc. seldom direct evidence would be available. Only the circumstantial evidence would furnish the proof. In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation. The mind is prone LPA Nos.39/2007 etc. Page 18 of 25 to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole. There must be evidence direct or circumstantial to deduce necessary inferences in proof of the facts in issue. There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish. In some cases the other facts can be inferred, as much as is practical, as if they had been actually observed. In other cases the inferences do not go beyond reasonable probability. If there are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation or conjecture. Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn. The standard of proof is not proof beyond reasonable doubt “but” the preponderance of probabilities tending to draw an inference that the fact must be more probable. Standard of proof cannot be put in a strait-jacket formula. No mathematical formula could be laid on degree of proof. The probative value could be gauged from facts and circumstances in a given case. The standard