# \ v. K.S. GANDHI AND ORS

- **Citation:** [1991] 1 S.C.R. 772
- **Court:** Supreme Court of India
- **Decided:** 1991-03-12
- **Bench:** N.M. Kasliwal, K. Ramaswamy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-k-s-gandhi-and-ors-11068
- **Pages:** 37

## Headnote

Maharashtra Secondary and Higher Secondary Board Act, 1965/
~
Maharashtra Secondary and Higher Secondary Board Regulation
1977: Sections 4, 18 and 23/Regulations 9(2)(XVIII) and 14---Markc sheets found tampered with-Enquiry held-Tampering with know_,,_r -
ledge or consent of candidates parents or guardians-Students alone to
take part in the inquiry-Advocates, parents or guardians not allowed_
.....
Validity of enquiry.
The appellant-Board conducted secondary examinations in the
'r
D month of March 1990. During recounting of the marks obtained by the
candidates it was found that moderators' mark-sheets relating to 283
examinees, which included the 53 respondents, had been tampered
with. The declaration of their results was withheld pending enquiry.
Several writ petitions were tiled against non-declaration of the results
and the High Court directed the appellant to take expeditious action to
·~
E declare the results.
The Board appointed seven enquiry officers to conduct the
enquiry. Show cause notices were issued to the students informing them
of the nature of tampering, the subjects in which the marks were found
--
tampered with, the marks initially obtained and the marks increased
F due to tampering, and also indicated the proposed punishment, if in the
enquiry it would be found that marks wer.e tampered with the knowledge or connivance or at the instance of the candidates or parents or
--..,
guardians. They were also informed that they would be at liberty to
,.-""'\'
inspect the documents at the Divisional Board at Bombay; they were
entitled to adduce documentary and oral evidence at the hearing; they
G
would also be permitted to cross-examine the witnesses of the Board, if
any; they would not be entitled .to appear through an advocate, and the
...
parents or guardians would be permitted to accompany the students at
-~
the time of enquiry, but they would not be entitled to take part in the
..
enquiry.
H
All the candidates admitted that the marks initially awarded by
772
M.B.O.E. v. K.S. GANDHI
773
-~ the examiners had been tampered with in the moderators' mark-sheets;
and due to tampering the marks were increased and the increase was to
their advantage. However, they denied that either they or their parents
or guardians were privy to the tampering.
The Enquiry Officers submitted their reports holding that the
moderators' mark-sheets had been fabricated and submitted the
.>-___reports to the Board. The Standing Committee constituted in this
.~
·regard considered the records and the reports and resolved to withhold,
A
B
as a measure of punishment, the declaration of the results of their
exami.llations and to debar the students to appear in the supplementary
.... ·:-. ·
examination. The notification to that effect was published on 31.8.1990
-
and the report submitted to the High Court.
The High Court allowed the writ petitions. One Hon'ble Judge
~· held that the Standing Committee was devoid of power, and because it
did not obtain the approval of the Divisional Board, the impugned
notification was without authority of law. On merits, the learned Judge
c
held that the Standing Committee did not apply its mind in the proper
D
perspective to the material facts, and therefore, the fmding that
tempering was done at the instance of the examinees /parents /guardians
was perverse. The other Hon'ble Judge held that the examinees were
~ not guilty of the mal-practices and their guilt had not been established.
Before this Court, it was contended on behalf of the respondents
E
that the Act empowered the Divisional Board to deal with the use of
=-
unfair means at the fmal examination, and the Standing Committee was
an alien body to the Divisional Board; the students were minors and
neither the parents nor anybody like an advocate was permitted to
assist the students; answers to the questionnaire were extracted from
the students to confess their guilt; no adequate opportunity was given to
F
~
the students at the enquiry; the evidence without

## Text

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A
MAHARASHTRA STATE BOARD OF SECONDARY AND
....
HIGHER SECONDARY EDUCATION
'
r
\.
v.
K.S. GANDHI AND ORS.
,,---
MARCH 12, 1991
B
-
[N.M. KASLIWAL AND K. RAMASWAMY, JJ.]
Maharashtra Secondary and Higher Secondary Board Act, 1965/
~
Maharashtra Secondary and Higher Secondary Board Regulation
1977: Sections 4, 18 and 23/Regulations 9(2)(XVIII) and 14---Markc sheets found tampered with-Enquiry held-Tampering with know_,,_r -
ledge or consent of candidates parents or guardians-Students alone to
take part in the inquiry-Advocates, parents or guardians not allowed_
.....
Validity of enquiry.
The appellant-Board conducted secondary examinations in the
'r
D month of March 1990. During recounting of the marks obtained by the
candidates it was found that moderators' mark-sheets relating to 283
examinees, which included the 53 respondents, had been tampered
with. The declaration of their results was withheld pending enquiry.
Several writ petitions were tiled against non-declaration of the results
and the High Court directed the appellant to take expeditious action to
·~
E declare the results.
The Board appointed seven enquiry officers to conduct the
enquiry. Show cause notices were issued to the students informing them
of the nature of tampering, the subjects in which the marks were found
--
tampered with, the marks initially obtained and the marks increased
F due to tampering, and also indicated the proposed punishment, if in the
enquiry it would be found that marks wer.e tampered with the knowledge or connivance or at the instance of the candidates or parents or
--..,
guardians. They were also informed that they would be at liberty to
,.-""'\'
inspect the documents at the Divisional Board at Bombay; they were
entitled to adduce documentary and oral evidence at the hearing; they
G
would also be permitted to cross-examine the witnesses of the Board, if
any; they would not be entitled .to appear through an advocate, and the
...
parents or guardians would be permitted to accompany the students at
-~
the time of enquiry, but they would not be entitled to take part in the
..
enquiry.
H
All the candidates admitted that the marks initially awarded by
772
M.B.O.E. v. K.S. GANDHI
773
-~ the examiners had been tampered with in the moderators' mark-sheets;
and due to tampering the marks were increased and the increase was to
their advantage. However, they denied that either they or their parents
or guardians were privy to the tampering.
The Enquiry Officers submitted their reports holding that the
moderators' mark-sheets had been fabricated and submitted the
.>-___reports to the Board. The Standing Committee constituted in this
.~
·regard considered the records and the reports and resolved to withhold,
A
B
as a measure of punishment, the declaration of the results of their
exami.llations and to debar the students to appear in the supplementary
.... ·:-. ·
examination. The notification to that effect was published on 31.8.1990
-
and the report submitted to the High Court.
The High Court allowed the writ petitions. One Hon'ble Judge
~· held that the Standing Committee was devoid of power, and because it
did not obtain the approval of the Divisional Board, the impugned
notification was without authority of law. On merits, the learned Judge
c
held that the Standing Committee did not apply its mind in the proper
D
perspective to the material facts, and therefore, the fmding that
tempering was done at the instance of the examinees /parents /guardians
was perverse. The other Hon'ble Judge held that the examinees were
~ not guilty of the mal-practices and their guilt had not been established.
Before this Court, it was contended on behalf of the respondents
E
that the Act empowered the Divisional Board to deal with the use of
=-
unfair means at the fmal examination, and the Standing Committee was
an alien body to the Divisional Board; the students were minors and
neither the parents nor anybody like an advocate was permitted to
assist the students; answers to the questionnaire were extracted from
the students to confess their guilt; no adequate opportunity was given to
F
~
the students at the enquiry; the evidence without subjecting it to crossexamination was of no value; the Standing Committee did not apply its
mind to the facts, nor recorded reasons in support of its conclusion that
· the examinee /parents /guardians were parties to the fabrication; the
Board should establish the guilt of the examinees beyond all reasonable
doubts; the standard of proof ought to be of a high degree akin to trial
G
'>--.- in a criminal case; the test of benefit to an examinee was preposterous;
·
no evidence was placed on record, nor was it proved and hence the
findings of the Standing Committee were clearly based on no evidence;
the Enquiry Report contained only conclusions bereft of the statement
of facts and reasons in support thereof; and the order ought to have
been a speaking order preceded by a fair enquiry and the report must
H
A
774
SUPREME COURT REPORTS
[1991] 1 S.C.R.
be based on cogent evidence.
On behalf of the Board, it was inter alia contended that all tht~
examinees admitted in answers to the questionnaire that tampering was
done and it was to their advantage, and that \in view of the admission,
the need to examine any person from the concerned section was
B obviated.
AHowing the appeals, upholding the notification subject to
modifications, this Court,
HELD: (1) There is no manner of doubt that unfair means were
used at the fmal Secondary Examination by fabricating the ModeraC tors' .mark-sheet of the examinees, in a concerted manner, admittedly,
to benefit the students. [782C]
(2) The State Board is empowered to constitute the Divisional
Boards and the Standing Committees. The State Board is also
. D empowered to make regulations to conduct examinations and also to
deal with the use of unfair means at the fmal examination conducted by
the Board. The Divisional Board is empowered to conduct within its
area the fmal examination on behalf of the State Board. The Divisional
Board is also empowered to deal with the cases of unfair means according to the procedure laid down by the State Board. [783F-G]
E
F
G
H
(3) The Standing Committee is an executive arm of the Divisional
Board for the efficient and expeditious functioning of the Board as
adumberated under the Act itself. It is not a foreign body. When the
Standing Education Committee takes the decision its decision is on
behalf of the Divisional Board, and the decision of the Divisional Board
in turn is on behalfof the State Board. [786E-F]
( 4) On a fair and harmonious reading of the relevant provisions
of the Act and the Maharashtra Secondary and Higher Secondary Education Board, Regulation, 1977 the Examination Committee of the Divisional Board is itself a statutory body which acted on behalf of the
Divisional Board and is not a delegate of the Divisional Board. [786H]
State of U.P. v. Batuk Deo Pati Tripathi & Anr., [1978] 2 S.C.C.
102; Khargram Panchayat Samiti & Anr. v. State of West Bengal &
Ors., [1987] 3 S.C.C. 82; Baradakanta Misra v. High Court of Orissa &
Anr., [1976] Suppl. S.C.R. 561 and Tej Pal Singh (dead) through L.rs.
v. State of U.P. &Anr., [1986] 3S.C.R. 429,referredto.
i' '
...
-
M.B.O.E. v. K.S. GANDHI
775
··~
( S) The Standing Committee is an integral part of the Divisional
A
Board and its acts are for and on behalf of the Divisional Board.
Accordingly, the Board must be deemed to have passed the impugned
notification as per the scheme of the provisions of the Act and the
Regulations. Therefore, the fmding of the learned Judge that the Standing Committee had no power to take the impugned decision etc. without
B
approval of the Divisional Board is clearly illegal and cannot be
, J..____ sustained. [789B-C, Fl
( 6) While exercising the powers under Article 226 or Article 136
of the Constitution, the High Court or this Court, is not sitting as a
Court of Appeal on the fmdings of facts recorded by the Standing
Committee (Domestic Enquiry Board) nor have power to evaluate the
evidence as an appellate court and to come to its own conclusions. If the
conclusions reached by the Board can be fairly supported by the evidence on record then the High Court or this Court has to uphold the
decision, though as appellate court of facts, it may be inclined to take a
different view. [ 789C)
(7) Fabrication cannot be done except to benefit the examinees.
The fabricator had done it for reward in concert with outside agencies.
Therefore, the inference from these facts drawn by the Standing Committee that the examinees/parents/guardians were responsible to fabricate the moderators' mark-sheets is based on evidence. [790G]
(8) It is not open to the High Court to evaluate the evidence to
come to its own conclusions. Thereby the High Court has committed
manifest error of law warranting interference by this Court. [ 791A)
(9) The Writ Court would not interfere with an order of educational institution. Therefore, what the writ court needs to do is to find
~
whether fair and reasonable opportunity bas been given to the students
in the given facts. [792F]
D.M.K. Public School v. Regional Joint Director of Hyderabad,
A.I.R. 1986 A.P. 204; G.B.S. Omkar v. Shri Venkateswara University,
A.I.R. 1981A.P.163.
( 10) Assistance of an Advocate to the delinquent at a domestic
enquiry is not a part of the principles of natural justice. It depends on
the nature of the inquiry and the peculiar circumstdttces and facts of a
particular case. [792H)
c
D
E
F
G.
H
A
776
SUPREME COURT REPORTS
(1991] 1 S.C.R.
(11) The regulations and the rules of enquiry specifically excluded the assistance of an advocate at the inquiry. Therefore, the omfasion to provide the assistance of a counsel at the inquiry is not violatiYe
of the principles of natural justice. [793A]
( 12) The procedure adopted at the inquiry was fair and just and it
B
was not vitiated by any procedural irregularity nor was violative of the
principles of natural justice~ The absence of opportunity to the parents ___...l__
or guardians, in this background, did not vitiate the legality or validity
c
D
of the inquiry conducted or decision of the Committee. [793G-H]
(13) Unless the rule expressly or by necessary implications,
excluded recording of reasons, it is implicit that the principles of
natural justice or fair play does require recording of reasons as a part of
fair procedure. In an. administrative decision, its order /decision 'itself
may not contain reasons. It may not be the requirement of the rules, but
at the least, the record should disclose reasons. It may not be like a
judgment. But the reasons may be precise. [794F]
Union of India v. Mohan Lal Capoor & Ors., [1973] 2 S.C.C.
836; Gurdial Singh Fiji v. State of Punjab & Ors., (1979] 2 S.C.C. 368
and S. N. Mukherjee v. Union of India, J. T. 1990 (3) S.C. 630, referred to.
(14) The omnipresence and omniscience of the principle of -~
E natural justice acts as deterrence to arrive at arbitrary decision in
flagrant infraction of fair play. But the applicability of the principles of
natural justice is not a rule of thumb or a straight jacket formula as an
abstract proposition of law. It depends on the facts of the case, nature of
the inquiry and the effect of the orde11-decision on the rights of the
person and attendant circumstances. [795F]
F
,~1
I
H
(15) In the instant case, since the facts are admitted, the need to >
their reiteration was obviated and so only conclusions have been stated
in the reports. The omission to record reasons is neither illegal, nor is
violative of the principles of natural justice. [795H-796A]
Khardah Co. Lta. v. Their Workmen, [1964] 3 S.C.R. 506; A.K.
Roy, etc. etc. ~· Union ~f ~ndia & Ors., (1982] 1 S.C.C. 271; Pett v_. J
Grehound Racing Association Ltd., (1968] 2 ALL Eng. Reports 545;--"".
Union of India v. H.C. Goel, [1964] 4 S.C.R. 718; M/s. Bareilly Electricity Supply Ccfl. Ltd. v. The Workmen & Ors., [1971] 2 S.C.C. 617;
Shanti Prasad Jain v. The Director of Enforcement, (1963] 3 S.C.R.
297; Merla Ramanna v. Nallaparaju & Ors., (1955] 2 S.C.R. 941;
__;..___
-
)._.
I
M.B.O.E. v. K.S. GANDHI
777
Kashinath Dikshita v. Union of India & Ors:, [1986] 3 S.C.C. 229; .
Government Medical Store Depot, Karna/ v. State of Haryana & Anr.,
[1986} 3 S.C.R. 450; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar &
Ors., {1964] 2 S.C.R. 809; State of Punjab v. Bhagat Ram, [1976] 2
S.C.R. 370; Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor
Sabha,, [1980) 2 S.C.R. 146; Union of India & Ors. v. Mohd. Ramzan
Khan, J.r. (1990) 4 S.C. 456; Vishwa Nath v. State of Jammu & Kashmir, [1983] 1 S.C.C. 215; Olga Tellis & Ors. v. Bombay Municipal
Corporation etc., [1985] 3 S.C.C. 545, referred to.
(16) Court should be slow to interfere with the decisions of domestic tribunals appointed by the education bodies like universities. [ 799F]
( 17) In dealing with the validity of the impugned order passed by
a University under Article 226 the High Court is not sitting in an appeal
over the decision on this question. Its jurisdiction is limited and though
it is true that if the impugned order is not supported by any evidence the
High Court may be justified to quash the order but the conclusion that
the impugned order is not supported by any evidence must be reached
after considering the question as to whether the probabilities and
circumstantial evidence do not justify the said conclusion. The enquiry
held by domestic tribunals in such cases must no doubt be fair and the
students must be given adequate opportunity to defend themselves and
holding such enquiries, the tribunal must follow the rules of natural
justice. [799F-G]
Board of High S~hool and Intermediate Education U.P. v.
Sagleshar Persad & Ors., [1967] 3 S.C.R. 767 and Bihar School Examination Board. v. Subhas Chandra Sinha & Ors., [1970] 3 S.C.R. 963,
referred to.
( 18) The examination committee has jurisdiction to take decision
in the m.atter of use of unfair means not only on direct evidence but also
on probabilities and circumstantial evidence. There is no scope for
importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence. The Examination committee is not bound by technical rules of evidence and procedure as are applicable to Courts. [801E·FJ
A
B
c
D
E
F
G
Seth Gulabchand v. Seth Kudilal & Ors., [1966] 3 S.C.R. 623;
Ghazanfer Rashid v. Board H.S. & I Edn. U.P., A.I.R. 1970
Allahabad 209; Miller v. Minister of Pensions, [1947) All. E.L.R. 372;
. State of Uttar Pradesh v. Chet Ram & Ors., [1989] 2 S.C.C. 425, i H
referred to.
778
SUPREME COURT REPORTS
[ 1991] 1 S.C.R.
A
(19)There is an unmistakable subjective element in the evaluation
B
c
of the degree of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on the robust common sense and,
ultimately, on the trained intuitions of the Judge. [8020]
(20) Strict rules of the Evidence Act, and the standard of proof
envisaged therein do not apply to departmental proceedings of domestic
tribunals. It is open to the authorities to receive and place on record all
the necessary, relevant, co~ent 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. Inference from the evidence and circumstances must
. be carefully distinguished from conjectures or speculation. [8050-E]
State of U.P. v. Krishna Gopal & Anr.,, [1988] 4 S.C.C. 302;
D. Hanumant v. The State of Madhya Pradesh, [1952] S.C.R. 1091; Reg.
v. Hodge, [1838] 2 Law 227; Bank of India v. J.A.H. Chinoy, A.I.R.
1950 P.C. 90; Khwaja v. Secretary of State, [1983] 1 All E.L.R. 765
(H.L.); Sodhi Transport Co. & Anr. v. State of U.P. & Anr. etc., [1986]
1 S.C.R. 939; Bhandari v. Advocates Committee, [1956] A.E.L.R. 742
(P.C.); Glynn v. Keale University & Anr., [1971] 2 A.E.R. 89 (Ch. D.);
E
F
G
H
In Re: An Advocate, A.I.R. 1989 S.C. 245; Shri Krishan v. The
Kurukshetra University, Kurukshetra, A.I.R. 1976 S.C. 376 and Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi & Ors. & Vice
Versa, [1987] lS.C.R. 458, referred to.
(21) The standard of proof is not proof beyond reasonable doubt
"but" the preponderance of probabilities tending to draw and inference that the fact must be more probable. Standard of proof cannot be
put in a straight jacket formula. No mathematical formula could be laid
on degree of proof. The probative value could be gauged on facts and
circums~ces in a given case. The Standard of proof is the same both in
civil cases and domestic enquiries. [805H-806B]
(22) The conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees
or their parents or guardians is amply borne out from the record. The
High Court over-stepped its supervisory jurisdiction and trenched into
the arena of appreciation of evidence to arrive its own conclusion on the
specious plea of satisfying 'conscience of the court'. [806G]
...
'..>
·-
M.B.O.E. v. K.S. GANDHI [RAMASWAMY, J.]
779
a 0 {
CIVIL APPELLATE'. JURISDICTION: Civil Appeal Nos. 491544of1991.
A.
From the Judgment and Order dated 12.12.1990 of the Bombay
High Court in W.P. Nos. 2646, 2659, 2651, 2649, 2657, 2664, 2648,
2647,2666,2658,2662,2663,2667,2665,2691,2693,2694,4091,4098,
4155,2743,2789,2791,2790,2740,4290,2824,2858,2848,3052,2863,
B
),._ 2848,2844,2843,2832,2852,4846,4844,3312,5101,5102,3313,3207,
· 3064, 3005, 3335, 3188, 5123, 3514, and 4844of1990.
T.R. Andhyarujana, S.N. Wakharia, P.H. Parekh, D.Y.
;,-
Chandrachud and Ms. Shalini Soni for the Appellant.
P. Chidambaram, Arnn Jaitley, LR. Joshi, M.N. Shroof,
Ms. Indu Malhotra, Ms. Alka Mukhija, Harish N. Salve, Ms. Shireen Jain, J.P. Cama, Mukul Mudgal, Mrs. Urmila Sirur, Dileep •
Pillai P. Kesava Pillai, Kailash Vasdev and Vimal Dave for the
Respondents.
The Judgment of the Court was delivered by
K. RAMASWAMY, J. We have heard the learned counsel on
;... __ either side and grant special leave to appeal in all the cases.
I
C'
D
The quest for just result to save the precious academic years to
E
the students while maintaining the unsullied examination process is the
core problem which the facts have presented for solution. •
The appeals arise from the common judgment of a Division
Bench of the Bombay High Court in Writ Petition No. 2646 of 1990
and batch. The appellant for short 'the Board' conducted secondary
F
~
examinations in the month of March 1990, whereat the marks
·
awarded, after the formalities of valuation by the examiners of the
anwser-sheets in each subject; the random counter check by the
moderators and further recounting at the Board, Moderators' marksheets sent to Pune for feeding the computer to declare the results
were found tampered with the appellant. Thereon, admittedly, it was
G
)._ found that monderators' mark-sheets relating to 283 examinees which
include 53 respondents in these appeals were tampered, in many a case
in more than 2 to 8 subjects, and in few cases in one subject. As a
result, 214 examinees who were otherwise to fail would pass, and the
remaining 69 examinees have improved their ranking, which would be
in some cases exceptionally good. The declaration of their results were
H
A
B
c
780
SUPREME COURT REPORTS
[1991] 1 S.C.R.
withheld pending further enquiry and the rest were declared on June } a ·
30, 1990. Several writ petitions were filed in the High Court against (
-
..
non-declaration of the results and the High Court directed to take "--
expeditious action to declare the results of the examination within the
specified time. The Board appointed seven enquiry officers to conduct
the enquiry. Show cause notices were issued to the students on July 30,
1990 informing them of the nature of tampering, the subjects in which
the marks were found tampered with, the marks initially obtained and --"'
the marks increased due to tampering, and also indicated the proposed
....__
punishment, if in the enquiry it would be found that marks were
tampered with the knowledge or connivance or at the instance of the
candidates or parents or guardians. They were also informed that they
.,__,._~
would be at liberty to inspect the documents at the Divisional Board at
Bombay. They were entitled to adduce documentary and oral evidence
at the hearing. They will also be permitted to cross-examine the
witnesses of the Board, if any. They would not be entitled to appear
.....,..,..
through an Advocate, but the parents or guardians would be permitted
r
to accompany the students at the time of enquiry, but they are not
D
entitled to take part in the enquiry. The candidates submitted their
explanations denying the tampering and appeared before the Enquiry
Officers on· August 8, 9, 10, 20, 21 and 22, 1990. At the enquiry, each
student inspected the record. A questionnaire was given to be filled in
writing. Every candidate was shown his answer book, marks awarded
)
in the subject/subjects and the tampered marks in the moderators' -~
E
marks-sheets. All the candidates admitted that the marks initially
awarded by the examiner were tampered in the moderators mark··
sheets; du~ to tampering the marks were increased and the increase
was to their advantage. However, they denied that either they or their
parents or guardians were privy to the tampering. The Enquiry Offi··
F
G
cers submitted their reports holding that the moderators mark-sheets
have been fabricated and submitted the reports to the Board. The
Standing Committee constituted in this regard considered the records "->
and the reports on August 29, 1990, discussed pros and cons and
'
expressed certain doubts about the possibility of the candidates/
parents/guardians committing fabrication. They. sought for and
obtained legal·opinion in that regard. On August 30, 1990 the Standing
Committee resolved to with hold, as a measure of punishment, the
declaration of the results of their examinations and to debar the 283
1.
students to appear in the supplementary examination to be held in
.........,_
October, 1990 and March, 1991. The notification was published on
August 31, 1990 and submitted the report to the High Court. Thereafter the High Court considered the cases on merits. The learned
H Judges by separate but concurrent judgments allowed the writ
petitions.
M.B.O.E. v. K.S. GANDHI {RAMASWAMY, J.]
781
Sugla, J. held that the Standing Committee of the Divisional
Board under the Maharashtra Secondary and Higher Secondary
Education Board Act of 1965 for short 'the Act' was devoid of power.
It did not obtain the approval of the Divisional Board, and therefore,
the impugned notification was without authority of law. On merits also
it was held that the Standing Committee did not apply its mind in the
proper perspective to the material facts. Therefore, the finding that
tampering was done at the instance of the examinees/parents/guardians is perverse. Bharucha, J. without going into the jurisdictional
issue agreed with Sugla, J. and held that the preponderance of the
-probalities would show that the examinees were not guilty of the malpractices. The guilt has not been established. The examinees might
well be innocent. Accordingly, the impugned notification dated
August 31, 1990 was quashed. Mandatory injunction was issued to the
Board to declare the results of 253 examinees within two weeks from
the date of the judgment and marks were directed to be communicated
to the examinees within a period of two weeks thereafter. -
A
B
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The admitted facts are that the mark-sheets of the examiners were D
not tampered. Only the moderators' mark-sheets were tampered. As
per th~ procedure, after the marks were scrutinized at the State Board
and found the marks tallied and to be correct, the moderators' marksheets were sent to the computer at Pune, obviously in sealed packets,
for feeding the results. After the date of recounting the marks in the
office of the State Board at Bombay and before the date of taking
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them to feed the computer, moderators' mark-sheets, were tampered.
The individual students were put on notice of the marks they originally obtained and the tampered marks in the subject/subjects concerned. They were also given the opportunity to lead evidence on their
behalf and if the witnesses were examined on behalf of the Board they
would be permitted to cross-examine them. They inspected the
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records. The questionnaire given to all the examinees at the enquiry
were before us at the hearing including the 53 respondents in the
appeals. We have perused the questionnaire. It is clear from the
answers given to the questionnaire that all the examinees admitted the
marks they originally got and the tampered marks on the moderators'
mark-sheets. They also admitted that the tampering was to their
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advantage. Everyone denied the complicity of either of the candidates
or the parents or the guardia,ns. Thus it is clear that at the enquiry
there is no dispute that the moderators' mark-sheets were tampered,
though the candidates, obviously and quite expectedly, denied their
complicity in that regard. Due to tampering 214 would have been
passed and 69 accelerated their ranking and percentage to seek admisH
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SUPREME COURT REPORTS
(1991] 1 S.C.R.
sion into prestigious insitutions. The racket of large scale tampering
wading through 80,000 moderators' mark-sheets obviously was done
by concerted action. It is clear that from large body of moderators'
mark-sheets, it is not possible to pick the marks-sheets of the concerned examinee alone unless there is concerted and deliberate
efforts, in conspiracy with some members of the staff ~ntrusted with
the duties in this regard, for illegal gratification. It is also not an
innocent act of mere corrections as is sought to be made out by Sri
Chidambaram, the learned counsel for the respondents. We have no
manner of doubt that unfair means were used at the final Secondary
Examination held in March 1990, by fabricating the Moderators'
mark-sheets of 283 examinees, in a concerted manner, admittedly, to
benefit the students concerned.
The first question, therefore, is whether the Standing Committee
of the concerned Divisional Board has power under the Act and Regulations to enquire into the use of unfair means committed at the final
examination conducted under the Act. Section 4 of the Act declares
that the State Board of Secondary and Higher Secondary Education is
a body corporate. Section 18 enumerates. the powers and duties of the
State Board. Clause (t) of Sec. 18 empowers the Board to make regulations for the purpose of carrying into effect the provisions of the Act.
Clause (g) empowers the Board to give to the candidates certificates
after passing final examination. Clause (m) empowers to recommend
measures and to prescribe conditions of discipline. Clause (w) gives
residuary power to do all such acts and things as may be necessary to
carry out the purposes of the Act. Section 19 gives powers and entrust
duties to the Divisional Board of each division. Clause (f) postulates,
"to conduct in the area of its jurisdiction the final examination on
behalf of the State Board." Clause ( 1) provides, "to deal with cases of
use of unfair means according to the procedure laid down by the State
Board.". Sect~on 23 provides that power of appointments of the Committees by the State Board. Sub-Section (2) thereof provides that:
"The State Board may appoint such other Committees as it
thinks necessary for the efficient performance of its
functions."
Equally sub-section (3) of Sec. 23 empower thus:
"Each Divisional Board shall appoint Committees designated as follows:
(d) Examination Committee.
......_ ....... [
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M.B.O.E. v. K.S. GANDHI [RAMASWAMY, J.]
783
~ Sub-section (5) states thus:
· "The constitution of every Committee appointed by the
State Board or a Divisional Board, the term of office of its
members and the duties and functions to be discharged by it
shall be such as may be prescribed."
~
Section 36 empowers the State Board to make regulations for the
purpose of carrying into effect the provisions of the.Act. Sub-section
(2) thereof states that:
"In particular and without prejudice to the generality of the
foregoing power, such regulations may provide for all or
any of the following matters, namely:
(a) the constitution, powers and duties of the Committees.
appointed under section 23;
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(f) the arrangement for the conduct of final examinations
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by the Divisional Boards and publication of results;
(n) any other matter which is to be or may be prescribed
under this Act."
Sub-section (3) provides:
"No regulation made under this section shall have effect
until the same has been sanctioned by the State Govern;nent. ··
Thus it is clear that the State Board is empowered to constitute the
Divisional Boards and the Standing Committees. The State Board is
also empowered to make regulations to conduct examinations and also
to deal with the use of unfair means at the final examination conducted
by the Board. The Divisional Board is empowered to conduct within
its area the final examinations on behalf of the State Board. The Divisional Board is also empowered to deal with the cases of unfair means
according to the procedure laid down by the State Board.
·
The State Board made regulations named as Maharashtra Secondary and Higher Secondary Education Board Regulations 1977 which
came into force with effect from July 11, 1977. Regulation 9(2)(xviii)
reads thus:
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784.
SUPREME COURT REPORTS
[1991) 1 S.C.R.
"to lay down the procedure and specify the penalties to be
followed by the Divisional Boards, in dealing ,with cases of
use of unfair means by persons seeking admission to or
appearing at the examinations conducted under the authority of the State Board."
.)..-·
Under Regulations 14 the Standing Committee of the Divisional
Board was to be constituted under sub-regufation (1) thereto. Sub- _..l ..
regulation (2) provides:
"Subject ·to the provisions of the Act and the Regulations,
the Standing Committee shall have the following duties and
functions, namely-
(x) to deal with cases of use of unfair means by parsons
seeking admission to or appearing at the final examinations, according to the procedure laid down by. the State
Board."
By a resolution passed at the meeting of the State Board held on
October 26, 1985, Exhibit 'z' provides the procedure for enquiry.
Clause 3(f) defines 'misconduct' as follows:
"Misconduct" shall mean any illegal or wrongful act or
conduct which is alleged to have been resorted to by any
candidate and/or any member of the staff, at, for or in
respect of the final examinati~n and, without prejudice to
the generality of the foregoing, shall include ...... .
tampering with the documents issued by the Board or
otherwise howsoever changing a candidate's results in any
manner whatsoever and generally acting in such a manner ~
so as to affect or impede the conduct of the final examinations and fair declaration of results thereof." ·
Clause (4) empowers to conduct an enquiry either suo moto or on a
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complaint about any misconduct and the procedure in that regard so
that the Chairman of the Divisional Board may entrust the enquiry
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into the alleged misconduct to any member or members of the Divi-
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sional Board other than the members of the Standing Committee.
Clause (5) empowers to entrust the enquiry. The Enquiry Officer shall
give a notice in writing to the candidate .... setting forth the nature of
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the misconduct alleged against the candidate and call upon the candi-
...
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M:B.0.E. v. K.S. GANDHI [RAMASWAMY, J.]
785
-(date to show cause within the time specified therein. It also empowers
to set out the punishment proposed to be imposed on a candidate.
Clause 5(b) gives an opportunity to the candidates to inspect the relevant documents proposed to be relied upon at the enquiry. Clause 6
gives opportunity to the delinquent to submit an explanation; to.produce his witnesses as well as documentary evidence and to be heard in
person, if he/she so desires, but shall not be entitled to be represented
~Yan Advocate or any other persons. The delinquent shall be bound
to answer truthfully to all questions relevant to the subject of enquiry
that may be put to him/her by the Enquiry Officer. Clause ( 10) provides that the concerned Enquiry Officer shall submit the report in
writing including the findings and the proposed punishment. Clause 11
provides thus:
"The Standing Committee shall consider the report and
decide the case as it may deem fit. The Standing Committee will take the decision in the same meeting."
Clause (12) states thus:
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"The Standing Committee shall not be bound to give
detailed reasons in support of its order or decision but shall
record its reasons if it disagrees with the findings of recommendations of the inquiry officer and under such circumsA
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tances the Standing Committee need not give hearing to
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the delinquent concerned."
Other clauses are not relevant for the purpose of this case. Hence
omitted. The Board also in its meeting held on October 26, 1985
framed rules in Appendix 'A' providing under different heads the
nature of the offence and the quantum of punishment, the relevant
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16 reads thus:
"Tampering with the Secondary/Higher Secondary School
Certificate and/or statement of marks or their copies and
any other documents issued by the Board."
Cancellation of performance of the Examination and
debarring the candidate for five more examinations and/or
to lodge complaint by the concerned institution/ Authority
to Police Department.
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Thus a conspectus of these relevant provisions of the· Act, regulations
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SUPREME COURT REPORTS
[1991] l S.C.R.
A
and resolutions clearly cover the entire field of operation regarding the ,..,,.._.
use of unfair means at the final examinations specified the comperent
authorities and the procedure to deal with the same. The Divisional
Board undoubtedly has been empowered under Sec. 19 of the Act to
deal with the use of unfair means at the final examination. It may be
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made clear at this juncture that the Standing Committee consists of six
members of the Divisional Board and none of them associated with the
enquiry. Enquiry Officers are also the members of the DivisionaJ ~
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Board. The regulations provide the procedure in this regard. It is
undoubtedly true as contended by Shri Chidambaram, that the Act
empowers the Divisional Board to deal with the use of unfair means at
the final examination. But to give acceptance to the contention that -----<· :.,
the Standing Committee is an alien body to the Divisional Board is to
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do violence to the scheme of the Act and Regulations. It is seen that
under the scheme of the Act and Regulations the State Board is
empowered to constitute the Standing Committee. Equally the Divi- 'rsional Board is empowered to constitute the committees which include
the Examination Committee. The members thereof are only members
of the Divisional Board. Equally the Inquiry Officers are also the
members of the Divisional Board, other than the members of the
Education Standing Committee. The Standing Committee is an executive arm of the Divisional Board for the efficient and expeditious
fun_ctioning of the Board as adumbrated under the Act itself. It is not a ~
foreign body. Therefore, when the Divisional Board is acting in conducting the examinations and dealing with the use of unfair means at
the final Examination, it is acting on behalf of the State Board as its
agent. When the enquiry was conducted by some members and the
Standing Committee was taking the decision thereon, it is acting on
behalf of the Divisional Board. There is no dichotomy but distribution
of the functions. Therefore, when the Standing Education Committee
takes the decision its decision is on behalf of the Divisional Board to~
which they are members and the decision of the Divisional Board in
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turn is on behalf of tfie State Board. This is the integral scheme woven
by the Act and Regulations. Thus under the scheme of the Act, for the
efficient and expeditious functioning of the concerned Boards; implementation of the provisions of the Act, and to prevent use of unfair
means at the final examination including tampering the result of the
examination, the Standing Committee is clearly within its power to~
take final decision. On a fair and harmonious reading of the relevant
provisions and given their due scope and operational efficiency, we are
of the considered view that the Examination Standing Committee of
the Divisional Board itself a statutory, body acted on behalf of the
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Divisional Board and is not a delegate of the Divisional Board.
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M.B.O.E. v. K.S. GANDHI [RAMASWAMY, J.]
787
......(,
In State of U. P. v. Batuk Deo Pati Tripathi & Anr., ] 1978- 2 SCC
102 the respondent was appointed as a Munsif in the State Judicial
Service and was later promoted as a District Judge. The Administrative Committee of the High Court reviewed the service and the
Committee recommended to the State Government and communicated to all the Judges of the recommendation to compulsorily retire
the respondent' from service. The Govt. accordingly retired the
~~espondent compulsorily which_ was challenged in a writ_ pe~ition. A
'
-Pull Bench of the Allahabad High Court held that the Distnct Judge
cannot be retired from service on the opinion formed by the
Administrative Committee and all the Judges should have considered
- ---
and made recommendation. Accordingly, the order was set aside. On
appeal, the Constitution Bench of this Court held that Art. 235 of the
Constitution provides control over the District Judges and the Court
subordinate thereto shall be vested in the High Court. It is open to the
-
-~- High Court to make rules to exercise the power of control feasible,
convenient and effective. Accordingly the High Court regulated the
manner of appointment of a Committee to screen the service record.
Thus, the rules framed prescribed the manner in which the power has
to be exercised. Truely, it is regulatory in character and the powers
were exercised by the Committee and recommended to the State
Govt. to compulsorily retire the respondent and it amounts to taking a
~
decision on behalf of the High Court. In Khargram Panchayat Samiti
& Anr. v. State of West Bengal &.Ors., l198T 3 SCC 82 at p. 84 the
facts were that the Panchayat Samiti passed a resolution on April 12,
1985 specifying that the c;attle fairs run by the two rival organisations
would be held on specified different dates which were impugned in the
writ petition contending that the Samiti was devoid of power and
jurisdiction to pass such a resolution. The High Court held that the
Samiti was vested with power to grant licence to hold the fair under
Sec. 117 of West Bengal Panchayat Act, 1973. In the absence of any
W-rules framed in that regard it had no power to specify dates on which
such Hat or fair shall be held. While reversing the High Court's judgment, this Court held that the general administration of the local area
vested in the Samiti which had power to grant licences to held fair or
hat under Sec. 117 of the Act. Necessarily it carries with it the power
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to supervise, control and manage such a hat or fair within its territorial G
\
Jurisdiction. The c~n~erment of the power to gran~ a .licence for hold-
(
mg of a hat or a fair includes the power to make mc1dental or consequential order for specification of a date on·which such a Hat or fair
shall be held. Accordingly, the resolution of the Sarni ti was upheld.
In Baradakanta Misra v.