IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 16-4-2010 Coram THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.5552 of 2010 & M.P.No.1 of 2010 W.P.No.5915 of 2010 & M.P.Nos.1, 2 of 2010 W.P.No.7568 of 2010 & M.P.Nos.1, 2 of 2010 W.P.No.5552 of 2010 Archana Institute of Technology run by Archana Educational & Charitable Trust, rep.by its Trustee D.Jayapal, N.H.7, Salem Main Road, Thimmapuram, Krishnagiri – 635 112 ..Petitioner Vs. 1. The State of Tamil Nadu, rep.by its Principal Secretary, Higher Education Department, Government of Tamil Nadu, Secretariat, Fort St.George, Chennai – 600 009. 2. The Registrar, Anna University Coimbatore, Mettupalayam Road, Jyothipuram & Post, Coimbatore - 641 047. 3. The Vice Chancellor, Anna University Coimbatore, Mettupalayam Road, Jyothipuram & Post, Coimbatore – 641 047. 4. T.Kannadasan, Vice Chancellor In-charge, Anna University Coimbatore, Mettupalayam Road, Jyothipuram & Post, Coimbatore – 641 047. 5. Palanisamy, Registrar, Anna University Coimbatore, Mettupalayam Road, Jyothipuram & Post, Coimbatore - 641 047. ..Respondents https://hcservices.ecourts.gov.in/hcservices/ This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorari, calling for the records relating to the proceedings of the second respondent dated 163.2010 in letter No.095/AUCBE/R/R1/Malpractices/2010 and quash the same. W.P.No.5915 of 2010 1. Alok Ram 2. Safrina Sadique 3. Abinav Dubey 4. Akhila K. 5. Anurag Kumar Pandy 6. Abu Haris S. 7. Amarkant Kmar Himanshi 8. Ashif V.M. 9. Kumar Gaurav 10. Navin Bhushan 11. Aditya Deswal 12. Ahammed Yasin K.A. 13. Akhil Chand C.S. 14. Alan Johnson 15. Amit Bodh 16. Asif Hussain, K.P. 17. Azhar A. 18. Christuraj. M. 19. Hafees P. 20. Jeevan Raffai John 21. Manikandan 22. Muhammed Sakkir M.C. 23. Praveen Kumar P. 24. Raees Bin Rahman K. 25. Rahul R. 26. Rajesh R. 27. Rex Rajan P. 28. Riyas P.P. 29. Rohinder Singh 30. Saheer T. ..Petitioners Vs. 1. The State of Tamil Nadu, rep.by its Principal Secretary, Higher Education Department, Government of Tamil Nadu, Secretariat, Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Registrar, Anna University Coimbatore, Mettupalayam Road, Jyothipuram & Post, Coimbatore - 641 047. 3. T.Kannadasan, Vice Chancellor In-charge, Anna University Coimbatore, Mettupalayam Road, Jyothipuram & Post, Coimbatore – 641 047. 4. S. Palanisamy, Registrar, Mettupalayam Road, Jyothipuram & Post, Coimbatore - 641 047. 5. Archana Institute of Technology, run by Archana Educational & Charitable Trust, rep.by its Trustee D.Jayapal, N.H.7, Salem Main Road, Thimmapuram, Krishnagiri – 635 112. 6. Association of Management Coimbatore Anna University Affiliated Colleges, rep.by its President, J.Sudanandan, 145, Thirunagar Colony, Erode – 638 003. 7. M.Ramesh, Joint Secretary, Association of Management Coimbatore Anna University Affiliated Colleges, 145, Thirunagar Colony, Erode – 638 003. ..Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of certiorari calling for the records relating to the proceedings of the second respondent dated 16.3.2010 in Letter No.095/AUCBE/R/R1/Malpractices/2010 and quash the same. W.P.No.7568 of 2010 1. P. Naseen Taj 2. S. Thilagavathi 3. Jaipal Kumar https://hcservices.ecourts.gov.in/hcservices/ 4. M. Jeevitha ..Petitioners Vs. 1. The Controller of Examination, Anna University of Coimbatore, Mettupalayam Road, Jothipuram Post, Coimbatore – 641 047. 2. Archana Institute of Technology, run by Archana Educational & Charitable Trust, rep.by its Trustee D.Jayapal, N.H.7, Salem Main Road, Thimmapuram, Krishnagiri – 635 112. 3. Association of Management Coimbatore Anna University Affiliated Colleges, rep.by its President, J.Sudanandan, 145, Thirunagar Colony, Erode – 638 003. ..Respondents This writ petition is filed under Article 226 of the Constitution of India, praying this Court to issue a writ of Certiorarified Mandamus calling for the records of the first respondent University's tentative re-examination schedule and quash the same and direct the first respondent to form fresh committee to conduct the enquiry apart from the Anna University, Coimbatore, and to file report to the first respondent University. For Petitioners in W.P.Nos.5552 : Mr.AR.L.Sundaresan, & 5915 of 2010 Senior Counsel for Mrs.AL.Gandhimathi For Petitioners in W.P.No.7568/2010 : Mr.R.Karuppan for Mr.P.Tamil Mani For 1st Respondent in W.P.No.5552 : Mr.G.Sankaran, & 5915 of 2010/Govt. Of Tamil Nadu Spl.Government Pleader For RR-2 to 5 in W.P.5552/2010; : Mr.R.Yashod Varadhan, RR-2 to 4 in W.P.5915/2010 & Senior Counsel R-1 in W.P.No.7568/2010 for Mr.R.Sivakumar For R-5 in W.P.No.5915/2010 & : Mr.Palanimuthu R-2 in W.P.No.7568/2010 https://hcservices.ecourts.gov.in/hcservices/ For RR-6 & 7 in W.P.No.5915/2010 : Mr.Kandhan Doraisamy & R-3 in W.P.No.7568/2010 COMMON ORDER The prayer in W.P.Nos.5552 & 5915 of 2010 are to quash the order passed by the Registrar of Anna University Coimbatore in his proceedings dated 16.3.2010, cancelling the B.E. Examinations first year, written by the students of the Archana Institute of Technology, (hereinafter called 'the Management'), Thimmapuram, Krishnagiri. 2. The prayer in W.P.No.7568 of 2010 is to quash the re-examination schedule issued by the University and to direct the University to form a fresh Committee to conduct enquiry and to file its report. 3. W.P.Nos.5915 and 7568 of 2010 are filed by the students and W.P.No.5552 of 2010 is filed by the Management of Archana Institute of Technology, Thimmapuram, Krishnagiri District. Since the issue involved in all the writ petitions are one and same, all the three writ petitions are disposed of by this common order. 4. The case of the petitioners in all the writ petitions is that the Management was granted approval to conduct four branches of Engineering courses (B.E.) viz., Civil Engineering, Mechanical Engineering, Electronics and Communication Engineering and Computer Science Engineering with an intake of 60 students each by AICTE from the academic year 2009-2010 for two years. The Anna University has granted provisional affiliation for conducting U.G.courses for the academic year 2009-2010 with the above sanctioned strength. The management had admitted students in all the four branches and the details are as follows: 25 students in B.E. Civil Engineering 50 students in B.E. Mechanical Engineering 33 students in B.E. Electronics & Communication Engineering 16 students in B.E. Computer Science Engineering. According to the petitioners, all the students attended classes regularly and the first semester examinations were held during January, 2010. Invigilators were sent by the University from outside the college, along with Supervisors. The first semester examinations in all the branches were conducted without any complaint and all the 124 students appeared in the said examinations and they have also performed well in their examinations. 5. In February, 2010 the results were declared for the first semester and 123 students have passed out in all the subjects and only one student failed, that too in one paper i.e., Engineering Physics. Most of the students scored 85 to 90%, pursuant to which https://hcservices.ecourts.gov.in/hcservices/ the management published an advertisement in Newspapers and congratulated the students, which according to the management is the practise adopted by other colleges also. On seeing the advertisements made in the Newspapers some of the nearby colleges, due to competition and enmity, through their association made a complaint alleging malpractice by the students of the petitioner Management in the first semester examinations held in January, 2010, pursuant to which the said examinations were cancelled by the impugned proceedings and the same was also reported in the Newspapers. Thereafter the petitioners approached the University and came to know that the examinations were cancelled by order dated 16.3.2010. 6. On receipt of the impugned order dated 16.3.2010, the present writ petitions are filed on the ground that the University appointed a Committee consisting of four Senior Professors headed by the Syndicate member to enquire into the matter and the Committee has concluded that there is strong evidence relating to mass copying in the examinations held in the College and based on the report of the Committee, the University decided to cancel the first semester examinations held during January, 2010. The contentions of the petitioners are that the University having deputed Invigilators and Supervisors and the examinations having been conducted in their presence, who are posted from outside the college, and no complaint having been received from the Invigilators or supervisors, the University is not justified in cancelling the examinations on the basis of the complaint given by the Association of Managements, where the petitioner College management is not a member. There is motive to tarnish the image of the management as it has not become a member in the association and only due to jealous the complaint was given without any material. It is also contended that the examination having been written by the students without any complaints and after proper evaluation, marks having been assigned and the results having been published without notice to the students, the cancellation of the examinations made by the University based on the alleged report of the Enquiry Committee is illegal. Neither of the students nor the management was given any notice or opportunity to explain with regard to the alleged complaint nor they were put on notice about the constitution of the Committee and its report and therefore there is violation of principles of natural justice. As the cancellation of the examinations attaches civil consequences, the principles of natural justice is bound to be followed and non-observance of the same vitiates the impugned order. 7. The University filed counter affidavit by stating that the first semester examinations were conducted in January, 2010 and for conducting University examinations, the Principal of the concerned college will be the Chief Superintendent of the examinations and one University representative will be deputed to supervise the examinations. Invigilators at the ratio of 1:20 will be nominated, https://hcservices.ecourts.gov.in/hcservices/ out of this 50% of the Invigilators will be from outside the institution and the remaining 50% Invigilators will be the staff members of the concerned college and hence there is possibility of committing malpractice during the examinations. The results of the first semester examinations held in January, 2010, were declared on 26.2.2010. The average pass percentage in the affiliated colleges was only 55 to 60%, whereas in the petitioner college (in W.P.No.5552 of 2010) the pass percentage is 98.39%, which is highly unimaginable and therefore it was decided to investigate into the said matter, considering the public interest involved. The University also received a representation on 2.3.2010 from the Association of Managements of Coimbatore Anna University Affiliated Colleges, requesting the University to investigate the said matter. After analying the results and to avoid suspicion, Four Member Committee consisting one of the Syndicate member along with three senior Professors from various colleges was appointed to investigate into the matter, by the Vice Chancellor on 9.3.2010 and on 15.3.2010 the said Committee met in the University Campus and reviewed the answer scripts of the students and during inspection the Committee found that there was possibility of mass copying during the examinations held in January, 2010 and observed that some of the answers written by the students are verbatim same in all the answer sheets of the students. There are instances for wrong answers written verbatim were scored out in all the papers and right answers were written verbatim. The Committee also found that the answers written by the students are verbatim same in the selected answer scripts and as such there is strong evidence for coming to the conclusion of mass copying and therefore a decision was taken to cancel the first semester examination. The University is taking steps to conduct re-examination in all subjects to the students of the College as quickly as possible before the second semester examinations to be conducted in the month of May, 2010. It is further stated in the counter affidavit that the college was established only in the year 2009-2010 and all the students admitted were not extraordinarily brilliant in their higher secondary examinations and they are only average students. Therefore achievement of unreasonable results is a matter for enquiry. The decision to cancel the first semester examinations was taken based on proved misconduct of mass copying and a press release was also issued on 16.3.2010 and there is no illegality in the said order. It is also admitted in the counter affidavit that the Committee submitted its report on 16.3.2010 and the press release was made on the same day and a decision was also taken to cancel the examinations on the same day. 8. Mr.AR.L.Sundaresan, learned Senior Counsel and Mr.R.Karuppan, learned counsel appearing for the students submitted that the impugned order cancelling the first semester examinations was made by the University without any material as no complaint was made by the Invigilators or Supervisors, who were present at the time of examination hall. Not even any complaint was made while the answer https://hcservices.ecourts.gov.in/hcservices/ scripts were valued. The students were given good academic training by the management. Merely because their performance is more than average, the University is not justified in presuming something on mere suspicion and cancel the examinations of the students without any notice or opportunity of hearing either to the students or to the management, which has got civil consequences on the students and affecting the reputation of the management. The learned counsels further submitted that the Anna University Act gives power to the Syndicate alone to conduct examinations and all other incidental matters connected with the examinations and the Vice Chancellor has no power to appoint a committee and to cancel the examinations on the basis of the Committee's unilateral recommendations. There is unreasonable haste on the part of the Vice Chancellor in cancelling the examinations, i.e, on the date of the alleged report drawn by the Committee the decision was taken cancelling the examinations. The learned counsels further submitted that the Four Member Committee appointed to enquire into the matter are working in member Colleges of the Association of the Managements and the complaint having been made by the said Association, the Teachers working in the said member colleges cannot be appointed as members as there is likelihood of bias in their decision. On the said grounds the impugned order is liable to be set aside. 9. Mr.R.Yashod Varadhan, learned Senior Counsel appearing for the University on the other hand submitted that the average pass percentage of the University being 55 to 60%, in the college where the present students appeared for the examinations, the percentage being 98.39%, a strong suspicion arises apart from the complaint received from the Association of Managements. Only to rule out the suspicion and to find out the truth, a Four Member Committee was constituted by the Vice Chancellor by exercising his powers under Rule 12(2) of the Anna University Act and the Committee scrutinised the answer scripts and found that there was mass copying. Based on the said report the impugned decision was taken and there is no illegality in the said decision. The students will not be affected as the University is going to conduct special examinations to these students for the first semester, so that these students also can appear in the regular second semester examinations to be held in May, 2010, along with other College students. The learned Senior Counsel also submitted that since the complaint is relating to mass copying, individual notices to the students need not be issued as it is impossible to issue notice to the individual students before cancelling the examinations. Insofar as the allegation of bias against the four member Committee, the learned Senior Counsel submitted that merely because they are staff members of the member Colleges, who are members of the Association of Managements, there cannot be a presumption of bias against the said four members. Hence the said contention has to be rejected and if on any account the said argument is accepted, the University is willing to again scrutinise the answer papers with experts in the four subjects – Mathematics-I, https://hcservices.ecourts.gov.in/hcservices/ Engineering Physics, Engineering Chemistry, and Engineering Graphics, and time limit may be prescribed to comply with the said process, so that if it is found that there is evidence of mass copying, further orders could be passed. 10. Mr.G.Sankaran, learned Special Government Pleader also supported the arguments of the learned Senior Counsel appearing for the University and contended that no notice need be given to the individual students as there is allegation of mass copying and the principles of natural justice need not be followed in this type of cases as per the judgments of the Supreme Court. 11. I have considered the rival submissions of the learned Senior Counsels and other learned counsels appearing for all the parties. 12. Admittedly 124 students, admitted in the petitioner College, appeared for the first semester B.E. Degree examinations held in January, 2010. 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. Out of the 124 students, 123 students passed in all subjects and the percentage is 98.39%. 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. The reason for sending a complaint against the College by the Association of the Managements is due to the advertisement made by the management giving wide publicity with regard to the achievements of the students i.e, 98.39% of pass in the first semester examinations. It is the case of the University that not only on the basis of the complaint, but also to remove the suspicion with regard to the alleged mass copying, Four Members Committee was constituted to verify the answer scripts and to find out whether there was any mass copying in four papers viz., Mathematics-I, Engineering Physics, Engineering Chemistry and Engineering Graphics. 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., the 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 Managements and the Committee members approached the issue in a biased manner to sustain the complaint given by the Association of https://hcservices.ecourts.gov.in/hcservices/ Managements. 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. 15. The Honourable Supreme Court considered the very issue of likelihood of bias in the decision reported in (1985) 4 SCC 417 (Ashok Kumar Yadav V. State of Haryana) and in paragraph 16 held thus, "16. We agree with the petitioners that it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias it is “in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting”. The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real livelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a Welfare State where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner. This was the basis on which the applicability of this rule was extended to the decision-making process of a selection committee https://hcservices.ecourts.gov.in/hcservices/ constituted for selecting officers to the Indian Forest Service in A.K. Kraipak v. Union of India (AIR 1970 SC 150 : (1969) 2 SCC 262). What happened in this case was that one Naqishbund, the acting Chief Conservator of Forests, Jammu and Kashmir was a member of the Selection Board which had been set up to select officers to the Indian Forest Service from those serving in the Forest Department of Jammu and Kashmir. Naqishbund who was a member of the Selection Board was also one of the candidates for selection to the Indian Forest Service. He did not sit on the Selection Board at the time when his name was considered for selection but he did sit on the Selection Board and participated in the deliberations when the names of his rival officers were considered for selection and took part in the deliberations of the Selection Board while preparing the list of the selected candidates in order of preference. This Court held that the presence of Naqishbund vitiated the selection on the ground that there was reasonable likelihood of bias affecting the process of selection. Hegde, J. speaking on behalf of the Court countered the argument that Naqishbund did not take part in the deliberations of the Selection Board when his name was considered, by saying: (SCC p. 270, para 15) “But then the very fact that he was a member of the Selection Board must have had its own impact on the decision of the Selection Board. Further admittedly he participated in the deliberations of the Selection Board when the claims of his rivals ... was considered. He was also party to the preparation of the list of selected candidates in order of preference. At every stage of his participation in the deliberations of the Selection Board there was a conflict between his interest and duty.... The real question is not whether he was biased. It is difficult to prove the state of mind of a person. Therefore what we have to see is whether there is reasonable ground for believing that he was likely to have been biased.... There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.” https://hcservices.ecourts.gov.in/hcservices/ This Court emphasised that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship or family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the part of the authority making the selection." The said principle is followed in the decision reported in (2009) 11 SCC 84 (A.U.Kureshi v. High Court of Gujarat). 16. Applying the above said decisions to the facts of this case, the Constitution of Four Member Committee to