Full Judgment
V.K. Gupta, J.
1. In all these petitions the petitioners have challenged the order notified by the J & K State Board of School Education Jammu whereby the examination taken by the petitioners was cancelled either in its entirety or to the limited extent of one or two papers. Because the order notified is the same and the factual and legal aspects involved in all the cases are identical these petitions are disposed of by this common judgment.
2. The petitioners have approached this Court invoking its extraordinary writ jurisdiction for challenging the aforesaid order The J & K State Board of School Education (hereinafter to be referred to as the Board) has been constituted under Section 3 of the J & K Board of School Education Act, 1975 (Act No. 28 of 1975). This Act was enacted with the purpose and motto to reform and reorganise school education in the State and to consolidate and amend the law relating thereto. The preamble of the Act, perhaps one of the longest that I have come across, lists various objectives for which the Act was enacted. These objectives are wide and varied. It shall be advantageous to reproduce the entire preamble of the Act : --
'An Act to reform and reorganise School Education in the State and consolidate and amend the law relating thereto.
Whereas, with a view to securing that education should,--
(a) relate intimately to the development of the potentialities of youth, to the National needs and to the aspirations of the people; and
(b) discover talent and nurture it; and
(c) promote equality of opportunity of providing necessary facilities; and
(d) held generally to raise the standard of living and productivity of the State and achieve closer and willing participation of the people in democratic processes. It is expedient that --
(1) facilities are provided for ensuring universalisation of Elementary Education by arranging for a two point entry system in the new educational system; and
(2) the existing institutional structure at the higher secondary stage be so coordinated as to provide for twelve years schooling, ten years of schooling in secondary education followed by two years in higher secondary education so as to achieve a uniform pattern of Secondary and Higher Secondary Education for laying the foundation of a society which is academically alert, scientific in outlook and forward looking; and
whereas for securing the above objectives, it is necessary to reform, reorganise and reconstruct the existing system of school education, and for that purpose, to consolidate and amend the law relating thereto; and
whereas it is expedient to establish a Board to regulate, control and develop Education in the State of Jammu and Kashmir up to the Higher Secondary level by providing varied course with a view to equipping pupils for different occupations for education in the Universities and other cultural purposes and to examine the candidates and to award certificates to successful candidates and doing all other things incidental thereto.'
As will be seen, therefore, that one of the logical and ultimate objectives of establishing the Board under the Act was to examine the candidates and award certificates to the successful ones amongst them and doing all other things incidental thereto. With a view to achieve the aforesaid objective, the Board has been conducting the examinations for the Secondary School (10th class) Higher Secondary Part-I (11th class) and Higher Secondary Part-II (12th class) in the entire State. The total number of candidates appearing for these examinations in any given Session is over twenty thousand and therefore the Board has to establish examination centres in different places in the State and invariably at places where the number of candidates appearing in these centres hardly exceeds 75 for any given Session. In certain exceptional circumstances and on payment of special fees, centres with less than 75 candidates appearing in any particular examination are also established. It goes without saying that the establishment of such centres invariably requires the Board to arrange invigilation and other staff for the conduct of the examination in far-flung areas of the State, many of which are unconnected by road links. Because of peculiar topography of our State, in some places extreme hot climatic conditions exist which are called as Summer Zones and for others extreme cold conditions persist for a major part of the year and these are, therefore, called as and fall in the Winter Zone. Annual examinations in the Winter Zone are held in November/ December of each year and for a large number of areas covered by the Winter Zone, the examination centres are set up in difficult hilly terrains, quite a few whereof are even inaccessible by proper communication links, including the roads. Because of the topographical and administrative conditions, overwhelming percentage of the invigilation and supervisory staff at these centres is contributed by the local educational institutions. It is the case of the Board that because of the inaccessibility of the areas and at time the local considerations of the invigilation and the supervisory staff, the candidates appearing for some centres in the Winter Zone indulge in the menace and vice of copying and other mal-practices and also of unfair means at a very large scale. The further case of the Board is that during the Session November/ December 1990 the Annual Examinations of this Winter Zone for the Secondary School Examination (10th class) were conducted and the arrangements for the conduct of the said examination including the appointment of supervisory staff etc. were made by the Board to ensure, as far as possible, fair and proper conduct of the said examination. In spite of these arrangements and other methods employed by the Board, reports about large scale use of unfair means, outside interference in the examination halls and mass copying were received from different centres casting a serious cloud upon the fairness of the examination in question. According to the Board, one of these reports was submitted by the Action Group constituted for the District of Doda comprising Principal, Govt. Degree College Bhaderwah and two Professors of the said College. Looking to the nature of the reports received from various centres in the Winter Zone, including Doda District, and the allegations of mass copying etc. the matter was discussed in a Meeting of the Officers of the Board presided over by the Chairman in which the result analysis received from the Data Bank was considered and examined. On comparison of the results with the Data Bank and the examination centres in Winter Zone it was found that the results of these centres, for this particular year, were particularly higher and therefore a serious apprehension about unfairness of the said examination was created. After thorough perusal of the aforesaid analysis and the reports received from various agencies, the Board decided to place all successful candidates including those who had been placed under 'Reappear Category' from the aforesaid centres under 'Unfair Means Category', release the results of the candidates who had appeared from these centres, but had failed in the examination, co-opt more members on the Unfair Means Committee so as to form at least three groups with each group comprising not more than five members to ensure expeditious disposal of the unfair means cases relating to these centres and to call the students before the reconstituted Unfair Means Committee for their examination by the Committee so as to find out about the use or otherwise of unfair means. Consequently the reconstituted and expanded Unfair Means Committees of the Board undertook the exercise of case by case analysis of answering scripts after hearing the candidates concerned with a view to arrive at an objective and fair decision as to the use of unfair means by these candidates. The Board's contention is that in the course of proceedings of these Unfair Means Committees and the enquiry and evaluation of the scripts of the candidates, they were given full opportunity of being heard and with a view to assess their performance by reference to the answering-scripts received from their respective centres, they were even asked some searching questions in order to find out whether the allegations of copying had any basis and truth in them. The Committees in the course of these hearings asked the candidates concerned to write a few sentences and solve few problems only with a view to evaluate whether the candidates possessed the basic and elementary knowledge which could enable them to perform so well as was reflected and shown in the answer scripts received from the examination centres. Ultimately, based on the recommendations of the aforesaid Unfair Means Committees, the impugned notification No. F. 15 (UFM-Secy.) B/JD/91 dated 30-3-1991 was issued by the Board. For the sake of ready reference, this Notification is reproduced as hereunder:--
'THE JAMMU & KASHMIR STATE BOARD OF SCHOOL EDUCATION, JAMMU.
Notification No. F. 15 (UFM-SECY.)
B/JD/91.
It is hereby notified for the information of all concerned that the candidates who had resorted to Unfair Means in the Secondary School Examination, Winter & Summer Zones of Jammu Province held in Dec. 90 and were given the opportunity of personal hearing have been awarded punishment ranging from disqualification from appearing in any examination of this Board or any other Board/University/Examining Body established by law in India, to cancellation of entire examination/cancellation of subject/cancellation of paper/Let off as shown against each candidate in the attached sheets.
Place Jammu. Sd/- Prof. M. A. Sheikh,Dated : 30th March 1991. Secretary'
3. The petitioners have challenged the aforesaid notification whereby the adverse orders of the cancellation of the entire examinations or cancellation of a paper or two in some individual cases have been notified by the respondents. The Centres from which the candidates, who are the petitioners in all these writ petitions, appeared are as under:--
1. Mohalla (District Doda)
2. Chhatro (Tehsil Kishtwar)
3. Luthra Academy, Kachi Chawney, Jammu.
4. Sarthal (Tehsil Kishtwar)
5. Dachhan (Tehsil Kishtwar)
6. Jakyas (District Doda)
7. Luthra Academy Kachi Chawni, Jammu.
8.Bani, Dullangal and Lowang (Kathua Distt.)
9. Sarthal (Tehsil Kishtwar).
10. Kandi (Tehsil Budhal)
11. Gandana (Tehsil Doda)
12. Mohra-B (Tehsil Budhal)
13. Mohra-A (Tehsil Budhal)
14. Thatharka (District Udhampur)
15. Panjdhara, Dachhan (District Doda)
16. Dessa (District Doda)
17. Jakyas (District Doda).
The punishments notified vide the impugned order, as already observed, ranged from the cancellation of the entire examination of most of the candidates and the cancellation of one or two papers in case of some individuals, details whereof have been given in the writ petitions. In OWP 471/91, for instance, the entire examination has been cancelled only in respect of petitioners 1 & 2, whereas for other petitioners the punishment imposed is the cancellation of the Maths and Science papers. Similarly, in OWP 536_/91, only the Science paper of the sole petitioner in this case has been cancelled. Likewise in OWP 537/91, again the case of the sole petitioner, his English and Science papers have been cancelled . In OWP 474/91 the entire examination of all the petitioners except petitioner No. 1 has been cancelled and in his case only Science paper has been cancelled. In OWP 473/91, but for petitioners 15, 32 and 33 entire examination has been cancelled and for these three petitioners the punishments awarded are as under --
Petitioner No. 15 -- Disqualified for one year.
Petitioner No. 32 -- Result not declared.
Petitioner No. 33 -- English B Paper cancelled.
In OWP 409/91 also the entire examination of all the petitioners except petitioner No. 9 has been cancelled, in whose case only Science and English Papers examination has been cancelled.
4. During the course of arguments, the learned counsel appearing for the petitioners in all the cases have challenged the impugned notification on a large number of grounds. The grounds of challenge may be summarized as under:
i) That the petitioners have not been afforded effective and proper right of being defended and heard and accordingly, therefore, the rules of natural justice were not properly followed.
ii) That the punishments awarded were not by the authority prescribed and competent to award them.
iii) That the procedure as prescribed by the Act has not been followed.
iv) That the examination of the petitioners by the Committee for the manner of asking them certain questions or asking them to write some answers etc. was a farce, a fraud and a mere ritual which could not be considered sufficient for the purposes of evaluation of their worth and merit.
v) That the notice sent by the respondents was without application of mind and that the petitioners were not made known the specific allegations levelled against them and therefore they were not in a position to meet those allegations and defend themselves properly.
vi) That there was no basis for coming to the conclusion that in some centres mass copying had at all taken place because neither the supervisory or invigilatory staff had intimated about mass copying nor had there been any other report to this effect.
5. Mr. T. S. Thakur, learned counsel appearing for the respondents, has refuted all the arguments of the petitioners' counsel including the aforesaid points formulated by them.
6. I have heard learned counsel for the parties and perused the record.
7. After the consideration of the cases about use of unfair means and mass copying, the Board sent the following Cyclostyled notice to all the candidates:--
'It has been observed that you resorted to the use of wide spread copying while appearing in the Secondary School Examination under Roll No. ------------------------ held by the Board in December, 1990, in Winter-Zone areas of Jammu Province.
You are, therefore, directed to present yourself before the Unfair means Committee on ------------------------------------------1 p.m. at your own expense to explain your position and defend yourself against the above allegations levelled against you.
Failing which it will be presumed that you have nothing to say in your defence and the Board will take ex parte decision as it may deem fit.'
It was in pursuance of this notice that the petitioners and other candidates appeared before the Unfair means Committees and subjected themselves to examination and consideration by these Committees. The grievance of the petitioners that they were not afforded effective opportunity of being heard and defending themselves before the Committees and that the rules of natural justice were not followed, has to be, therefore, considered and examined in the light of the fact that the petitioners at no stage either refused to appear before the Unfair means Committees or questioned its jurisdiction to examine them or even asked for any particular piece of information from the Committees or at any stage refused to answer any question or solve any problem. During the course of arguments, and in support of their contention that the principles of natural justice were strictly required to be followed by the respondents in processing the cases of the petitioners and that these principles were not followed and further that adequate opportunity of defending themselves was not effectively afforded to the petitioners, the learned counsel appearing for the petitioners have relied upon the following judgments of various courts : --
1. AIR 1991 Allahabad 126,
2. AIR 1991 Delhi 232,
3. AIR 1991 SC 271 : (1990 All LJ 874).
4. AIR 1983 J & K 19,
5. AIR 1966 Punjab 152
6. AIR 1965 Punjab 120 (F. B.)
7. AIR 1972 Orissa 224 (FB)
I have very carefully and minutely perused all these above referred judgments cited by the learned counsel at the bar.
8. In the case of Board of High School & Intermediate Education U.P. v. Gansham Dass Gupta reported in AIR 1962 SC 1110 : (1962 All LJ 776) it was held as under at page 1115 (of AIR) :--
'As to the manner in which it should give an opportunity to the examinee concerned to be heard, that is a matter which can be provided by regulations or bye laws if necessary. As was pointed out in Local Government Board v. Arlidge, 1915 AC 120 all that is required is that the other party should have an opportunity of adequately presenting his case. But what the procedure should be in detail will depend on the nature of the Tribunal. There is no doubt that many of the powers of the Committee under Chap. VI are of administrative nature; but where quasi-judicial duties are entrusted to an administrative body like this it becomes a quasi-judicial body for performing these duties and it can prescribe its own procedure so long as the principles of natural justice are followed and adequate opportunity of presenting his case is given to the examinee.
9. In State of Mysore v. Shivabasappa, reported in AIR 1963 SC 375, their Lordships observed as under at page 377 (of AIR):--
'For a correct appreciation of the position, it is necessary to repeat what has often been said that tribunals exercising quasi-judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed In Courts.'
10. In the case of Board of High School & Intermediate Education, U.P. v. Bagleshwar Prasad, AIR 1966 SC 875: (1963 All LJ 876), the following abstract proposition of law was propounded by the Apex Court at page 878 (of AIR):--
'In dealing with petitions of this type, it is necessary to bear in mind that educational institutions like the University or appellant No. 1 set up inquiry committees to deal with the problem posed by the adoption of unfair means by candidates, and normally it is within the jurisdiction of such domestic Tribunals to decide all relevant questions in the light of the evidence adduced before them. In the matter of the adoption of unfair means, direct evidence may sometimes be available, but cases may arise where direct evidence is not available and the question will have to be considered in the light of probabilities and circumstancial evidence. This problem which educational institutions have to face from time to time is a serious problem and unless there is justification to do so Courts should be slow to interfere with the decisions of domestic Tribunals appointed by educational bodies like Universities. In dealing with the validity of the impugned orders passed by Universities under Art. 226 the High Court is not sitting in appeal over the decision in question, its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence at all, the High Court would be justified to quash that order. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. Inquiries held by domestic Tribunals in such cases must, no doubt, be fair and students against whom charges are framed must be given adequate opportunities to defend themselves, and in holding such inquiries, the Tribunals must scrupulously follow rules of natural justice, but it would, we think, not be reasonable to import into these inquiries are considerations which govern criminal trials in ordinary court of law. In the present case, no animus is suggested and no mala fide have been pleaded. The inquiry has been fair and the respondent has had an opportunity of making his defence. That being so, we think the High Court was not justified in interfering with the order passed against the respondent.'
11. In the case of Suresh Koshy George v. University of Kerala, reported in AIR 1969 SC 198, it was held as under at page 202 :--
'What, then, are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of accusation made, secondly that he should be given an opportunity to state his case, and thirdly of course, that the tribunals should act in good faith. I do not think that there really is anything more.'
12. In the case of Prem Prakashy Kaluniya v. Punjab University, reported in AIR 1972 SC 1408, the apex court made the following observations at page 1411:--
'The law on the point is well settled that an examinee must be adequately informed of the case he has to meet and given a full opportunity of meeting it. As to what the extent and content of that information should or ought to be would depend on the facts of each case. The examinee can ask for more information or details with regard to the material or evidence which may be sought to be used against him and normally if he makes a request in that behalf, the University authorities, in order to inform him adequately of the case he has to meet, would supply him the necessary particulars or details of the evidence. In the very nature of things no hard and fast rule can be laid down and so long as the Court is satisfied that the opportunity which was afforded to the examinee was adequate and sufficient, it will not interfere with any orders prejudicial to him which may have been made by the University authorities.'
The judgments cited by the learned Counsel for the petitioners have uniformally and without any divergence of opinion taken the same views as have been propounded and followed by the Apex Court in the above-referred judgments from time to time, and therefore there is no need to refer to any one of these judgments individually.
13. The law which can thus be summarized for the benefit and advantage of all of us in the case of these types is that in the exercise of writ jurisdiction against the orders adversely passed against the writ petitioners by Educational Institutions like the Universities and the Boards, the High Court does not act as a court of Appeal and that, unless there is a real justification to do so it should be slow to interfere with the decisions of these domestic Tribunals. Enquiries held by the domestic Tribunals in such cases must no doubt be fair and students against whom charges are framed must be given adequate opportunities to defend themselves and in holding such enquiries the Tribunals must scrupulously follow rules of natural justice. It would, however, not be reasonable to import into these enquiries considerations which govern criminal trials in ordinary courts of law. The person accused of unfair means should know the nature of accusation made, he should be given an opportunity to state his case and the Tribunal should act in good faith. As to what the extent of the opportunity should or ought to be, would depend on the facts of each case. The examinee can ask for information or details with regard to the material or evidence which may be sought to be used against him and normally if he makes a request in that behalf, the University or the Board, as the case may be, in order to inform him adequately of the case he has to meet, would supply him the necessary particulars or details of the evidence. In the very nature of things, no hard and fast rule can be laid down and so long as the court is satisfied that the opportunity which was afforded to the student was real, adequate, and sufficient it will not interfere with any orders prejudicial to him, which may have been passed by the Board or the University. If any material is collected by the authorities of the Board or to University after hearing has already has already taken place, it may or may not be necessary for the authorities to communicate or disclose that material or evidence to the delinquent examinee, as this will depend on a number of factors, for example, the nature of the material collected, the prejudicial matter it contains, the use which is sought to be made of it and the course which the proceedings take in each case. If there are any specific rules and regulations governing these enquiries, it is expected of the authorities to follow these rules and regulations in letter and spirit and if there is substantial compliance with them, the Courts will be reluctant to interfere with the findings even if any rule or regulation has not been strictly followed in its letter but has been observed in spirit. In the absence of any rule or regulation having been framed by the authorities, however, prescribing the procedure to be followed in such cases, it will be always open to the Enquiry Committees or the domestic Tribunals constituted by these authorities, to prescribe and follow its own procedure so long as the fundamental rule of the observance of the principles of natural justice is complied with.
14. It has now to be examined and critically analysed if the above referred principles of law were observed and followed by the respondents in the cases in hand.
15. 'Unfair Means Committee' (to be referred as Committee for short) has not been specifically mentioned as one of the Statutory or Regulatory Committees, prescribed either in the Act or in the Regulations. Section 24 of the Act provides for the appointment and constitution of the Committee, but as observed above unfair means committee is not one of the Committees mentioned in this Section. For ready reference Section 24 is reproduced as under:--
'24. Appointment and constitution of Committees.--
(1) The Board shall appoint the following Committees, namely:--
(a) a Recognition Committee;
(b) a Finance Committee;
(c) a Committee for Examinations;
(d) a Committee for Development and Research;
(e) an Academic Committee to consider general questions relating to preparation of curricula, syllabi and prescriptions of books for various courses from Class I to XII; and
(f) such other Committees, if any, as may be prescribed.
(2) The Board shall constitute the Committees in such manner and for such period as it may prescribe by regulations.
(3) The term of office of the members of the Committees shall be such as may be prescribed by regulations.
(4) Unless otherwise provided in the regulations, no person shall be a member of more than two of the following Committees :--
(a) the Committee for Examinations;
(b) the Finance Committee;
(c) the Recognition Committee:
(d) the Academic Committee; and
(e) the Development and Research Committee.'
The powers and functions of the Committees constituted under Section 24 have been specified and prescribed in Section 25 of the Act and, for our purposes, Clause (c) of Section 25 alone is relevant which deals with the Committee for examinations. The relevant extract of Clause (c) of Section 25 reads as under:--
'(c) A Committee for examinations,--
The Committee for examinations shall, subject to the control of the Board,--
(i) make arrangement for the conduct of the examinations in conformity with the regulations;
(v) consider and decide the cases relating the misconduct and use of unfair means in the examination conducted by the Board. ... ...
(viii) constitute such other sub-committee and delegate such powers to it as it may consider necessary.'
It is no doubt correct that the Unfair Means Committee has not been specifically mentioned or prescribed in the Act but as will be seen from a plain reading of Sub-clause (xiii) of Clause (c) of Section 25 of the Act, the Committee for examinations itself has been ' given the powers to constitute a sub-committee and delegate powers to it as it may consider necessary. Nothing has been shown to me by the learned counsel for the respondents whereby it could be established that the Unfair Means Committee has been constituted by the examination committee itself in terms of the mandate prescribed under the aforesaid Sub-clause (xiii). Mr. Thakur, however, placed on record some documents to show that the Chairman of the Board had been from time to time constituting, reconstituting or even expanding the Unfair Means Committee to deal with and scrutinize the cases of misconduct in the examinations. These documents do not in terms specifically meet with the requirements of Section 25(c)(xiii) and therefore it shall be difficult to hold that the Unfair Means Committee is, in fact, a statutory committee or a sub-committee constituted under Sub-clause (xiii) of Clause (c) of Section 25 of the Act. That however by itself will not be enough to set at naught and quash and set aside the impugned notification awarding punishments to the petitioners. As pointed out earlier, Sections 24 and 25 read together specifically prescribe for and mention the 'Examinations Committee' and Section 25 specifically enjoins upon the Examinations Committee to make arrangements for the conduct of examinations and to, among other things, consider and decide the cases relating to misconduct and use of unfair means in the examination conducted by the Board. Nothing has been pointed out before me by the learned counsel for the petitioners to even remotely suggest that the examinations committee suffered from any legal or technical defect in its constitution or composition or that it had not the mandate and sanction to proceed in the manner prescribed under Section 25(c) of the Act. In the absence of any assertions, therefore, it can be manifestly clear that the impugned punishments have been awarded to the petitioners by the Board on the basis of the recommendations made by the Examinations Committee, even if one assumes the non-existence in law of the unfair means committee. It is not anybody's case that the Examinations Committee was not in existence nor is it anybody's case that the so-called Unfair Means Committee did not owe its existence to the Examinations Committee. It would indeed have been more desirable and in conformity with the technicalities of law, had the Board properly and formally constituted the Unfair Means Committee. It is hoped that this technical difficulty will be overcome by the Board sooner than later so that this point is not agitated again. For the time being, however, I am convinced that the arguments of the petitioners that the punishments were awarded to them by an incompetent authority have to be rejected because the Examinations Committee did have the authority to recommend the punishments awarded to the petitioners.
16. I have very carefully and minutely gone through, considered and examined the record produced before me by the learned Counsel for the respondents. It is, no doubt, true that strict technicalities of law were not followed in the present cases before the punishments were awarded to the petitioners. But I have already held. On the basis of the pronouncements of the Supreme Court, that an authority like a University or a Board has not to act like an ordinary criminal court where a proper charge-sheet has to be framed and the strict rules of evidence have to be followed. It has to be borne in mind that the Board was dealing with cases of mass-copying in a large number of centres for the Winter Zone and it would have been humanly impossible for the Board to have observed the strict technical formalities of law in each individual case. In fact, that was not even required. The Board and the Committees constituted under Section 24 were of persons well-versed in the field of academics and the business of conducting examinations and they are the best persons, most appropriately suited, to evolve such procedures, in a given set of circumstances so as to ensure that the cases of misconduct in the examinations are properly dealt with. No fault indeed can be found with the procedure adopted by the Board in these cases. If the Board was dealing with such a large number of cases, nothing wrong can be said in its having issued the cyclostyled notice to the candidates. I fail to understand the importance of submission that individually drafted notices ought to have been sent to the individual candidates, levelling specific allegations against them. In my view the issuance of the notice, reproduced in this judgment earlier, even in the cyclostyled form was enough, by way of an opportunity to the concerned candidates because the purpose of issuing the notice was to afford to the candidate concerned an opportunity of knowing that he was was being accused of mass-copying or being a party to this mass-copying and that he should come forward to defend himself against this accusation. In fact, the mere fact that the candidates responded to these notices and appeared before the Committees and also subjected themselves to answering questions put to them by the committees suggest of only one inference that the candidates understood the accusations against them and came prepared before the Committees to defend themselves. The manner in which each individual candidate was dealt with by asking him some elementary questions, to say the least was unexceptionable and no fault can be found with it. It was for the experts in the field of academics and indeed the members of the Committees were experts to evolve suitable procedure to assess whether the candidates had indulged in acts of misconduct, mass-copying or use of unfair means. This court, not being a court of appeal, cannot sit over the judgment of the members of those committees and cannot assign to itself the task of re-appreciating and re-evaluating the findings, qua each candidate, returned by these Committees. There may be some cases where minutest details may not have been observed and looked by the members of the committees or there may even be cases where the full and true worth of a candidate may not have appropriately been exposed to the members, but these are the handicaps inherent in the very nature of the procedure to be adopted when the Board is dealing with such a vast number of cases of unfair means. I am saying so because the learned counsel for the petitioners have argued that in some questions the knowledge of the petitioners could not have been properly reflected or that the answers given by them of some questions were enough to entitle them to be absolved of the accusation of copying. Even though I have gone through the samples of the questions and the answers and satisfied myself that in most of the cases the candidates did not properly answer the questions, yet I would refrain from interfering in the judgment of the experts constituting the Committees who were on spot and had the opportunity of physically examining each candidate, considering and evaluating his merit to find out whether the answers given by him in his answer scripts in the examination halls matched the quality of the knowledge that he actually possessed at the time of his oral examination, by the members of the Committees. That job could and was, in fact, well performed by the Committees and I, exercising my extraordinary jurisdiction, surely will not be in a position to perform that job, at least not as well as was done by the Experts.
17. The next contention of the petitioners was that the procedure prescribed by the Act was not followed while awarding the impugned punishments to them. This coupled with the submission that there was no basis for the Board to come to the conclusion that in some centres mass-copying had at all taken place.
18. The Board has been given the powers to make Regulations under Section 33 of the Act but under Section 34 of the Act it has been provided that the first Regulations shall be made by the Government and that they shall be deemed to have been made by the Board and shall continue to be in force until altered by the Board. The Act came into force in 1975 and had repealed the J&K; Secondary Education Act 1965. In terms of he proviso to Section 34 of the Act, the first Regulations prescribed and adopted by the Board constituted under the 1965 Act shall be acted upon for organising, regulating and supervising the Secondary School and Higher Secondary School Examinations in the State. It is the common case of the parties that under the 1975 Act no regulations have been framed either by the Board or by the Government and that, therefore, the Regulations framed by the Govt. in 1966 vide Notification SRO 30 dated 8-2-1966 in exercise of the powers under 1965 Act still are applicable and hold good. The procedure for imposing punishments against candidates accused of having indulged in unfair means has been prescribed in Regulations 61, 62 and 63 of the aforesaid Regulations. These Regulations for ready reference are reproduced as under:--
'61. No disciplinary action under these Regulations shall be taken against a candidate except after giving him a reasonable opportunity to offer an explanation, within a stated time, of the act or acts complained of against him and after having considered the same.
62. The Superintendent of the examination centre shall report to the Secretary without delay and in detail each case of misconduct or use of unfair means with all available evidence and, wherever possible, with the explanation of the candidate concerned. In calling upon the candidate to explain his conduct with reference to the incident concerned the material facts shall invariably be stated in precise terms. Where necessary, the Secretary shall obtain the explanation of the candidate or candidates concerned or make inquiries at the instance of the superintendent or on direct receipt of a report of misconduct or use of unfair means relating to a Board examination.'
'63. Each case shall be scrutinised by and decided by the examination Committee. After the Committee has considered the case and arrived at a tentative decision, such decision shall be communicated to the candidate who shall be asked to show cause, within a stated time, why the action proposed by the Committee should not be taken against him. After considering the candidates final explanation, the committee shall take a final decision and the Secretary shall, as soon as possible communicate the same to the candidate concerned.'
A careful perusal of the aforesaid three Regulations clearly suggests that a candidate is entitled to be given 'reasonable opportunity' to offer an explanation of the act complained of against him and that in calling upon the candidate to explain his conduct with reference to the incident concerned, the material facts shall invariably be stated in precise terms. It has also been provided in the Regulations that each case shall be scrutinized and decided by examinations committee and that each candidate has to be issued a show cause notice within a stated time as to why the action proposed by the Committee should not be taken against him. The issuance of the notice referred earlier in the judgment, the evaluation of the answer scripts by the Committees and the oral examination of all the candidates individually also with reference to the exercise conducted involving the written answers by the candidates and the final opportunities afforded to them were sufficient and enough by way of compliance with the requirements prescribed under the aforesaid Regulations. Indeed nothing more at all was required to be done by the Board and the Regulations above referred were followed, for sufficient compliance, by the Board before the impugned punishments were awarded to the petitioners.
19. In so far as the submissions of the learned Counsel that the Board had no basis for coming to the conclusion that masscopying had at all taken place in the some centres, I have to once again refer to the Act and the Regulations to hold that there is no provision either in the Act or in the Regulations, which provides that the Board cannot act in any case of misconduct or use of unfair means except on the basis of a report by the Superintendent of the Examinations Centre or by some other agency. In fact, the Legislature never intended to put any restraint on the powers of the Board while discharging its obligation under the Act and that the Board has wide powers to consider, examine, scrutinize and decide the cases of mass-copying misconduct or use of unfair means in examinations and while discharging these obligations it cannot be held bound by any particular procedure or the fact that there was no basis for the Board to initiate action in deciding the cases of misconduct in examinations. There can be cases galore where neither the Superintendent of the Examinations Centre nor any member of the Invigilation or supervisory staff nor any other agency ever reports to the Board about the use of unfair means and yet the Unfair-Means are used in a particular examination centre and the Board does come to know about them from its own sources. Does it mean that the Board cannot act? The answer has to be an emphatic 'NO', because it is the obligation of the Board to ensure that the examinations are conducted in a proper and orderly manner and that certificates of success are awarded only to those candidates in these examinations who, on the basis of their performance and merit, in fact, deserve these certificates.
20. Viewed from any angle, therefore, and in the totality of circumstances discussed above, I have been unable to find any flaw or illegality in the impugned punishments awarded to the petitioners nor have I been able to find any reason or occasion warranting the interference of this Court in the impugned notification issued by the Board.
21. The result, therefore, is that all these petition? are dismissed, but without any order as to costs.