Vikalp Nayak Vs State of M.P.

@JUDGMENTTAG-ORDER

Mr. Vivek Rusia, J.—Regard being had to the similar controversy involved in these two cases, they have been heard together with the consent of the parties and a common order is being passed in the matter.

2. Vikalp Nayak i.e. petitioner in W.P. No.6617/2015 passed Higher Secondary Examination in the year 2012 and thereafter, he appeared in PEPT Examination, 2012 with Roll No.259497 and he was declared successful candidate in the examination conducted by the M.P. Professional Examination Board by obtaining 137 marks out of 200.

Based upon the aforesaid result and 264 ranking in merit list, by way of centerlised counselling and after verification of all the documents, he was allotted Shri G.S. Institute of Technology & Science, Indore under the unreserved category. After taking admission, the petitioner started his studies in Electrical Engineering Branch of Engineering Course, which is 4 years degree course. Now, he is pursuing B.E. Course and obtained good marks in all the semesters.

3. Petitioner-Shreya Bhargava, in W.P. No.7805/2015, has passed Higher Secondary Examination in year 2012 with 88% marks in the subjects-Physics, Chemistry and Mathematics and appeared in PEPT Exam, 2012 with Roll No.211882 conducted by the professional examination board and secured 161 marks out of 200. On the basis of ranking in the merits, she was also alloted Shri G.S. Institute of Technology & Science, Indore. Now, she is pursuing her studies and cleared all the semesters successfully. Her scores in every semester is as under:-

Thereafter, the petitioner appeared in GRE Examination and secured 306/340 and got placement in Infosys and Wipro by way of campus selection.

4. Respondent No.2 vide letter dated 06.08.2015 issued show cause notice to the petitioner-Vikalp Nayak alleging that he secured high rank in PET Examination, 2012 by using illegal means. The allegation against Vikalp Nayak is that he has used two different inks in the answer-sheets (i.e. OMR Sheets) by attempting 107 questions in one ink and 93 questions in different ink. It is further alleged that out of 93 questions, 92 questions were answered correctly and out of 100 questions marked with different ink, 43 questions were found correct. Accordingly, the case of the petitioner falls under Rule 1.9 of the Examination Rules, 2012 (in short "the Rules") i.e. use of unfair means.

5. Petitioner by submitting reply to the letter dated 06.08.2015 stated that by way of abandoned precaution he took two different pens for writing answer-sheets and might have used two different pens for encircling answers in OMR Sheet. Since, his reply was not found satisfactory, his result of PEPT Examination, 2012 has been cancelled. Being aggrieved by the impugned order dated 15.09.2015, present petitions have been filed.

6. While pursuing her 6th semester, petitioner-Shreya Bhargava received the impugned order dated 15.09.2015 by which her selection of PEPT 2012 has been cancelled and the aforesaid order was passed without issuing any show-cause notice to her and in the order it is alleged that she could have received 68.75% on the basis of the answers given by her using first ink but on the basis of the answers given by the second ink, she received 95.45%, which is not normal result.

7. In both the writ petitions, respondents have filed return and submitted that OMR answer sheets reflect that petitioners have used unfair means for securing marks, therefore, their result has rightly been cancelled. It is further submitted that Madhya Pradesh Professional Board has received a letter dated 25.05.2011 from the office of Special Task Force to conduct QD investigation and submit report. Respondent No.2 directed the state examiner to inspect the documents and send verification report. In the report, the opinion of the examiner in respect of petitioner-Vikalp Nayak is reproduced below:-

"Questioned OMR Sheet Marked A-2 (Ans. Sheet No.2277897 related with Questioned booklet no.214491 said to be of Vikalp Nayak)-

Set A "The tint and lustre of ink, used to execute the English writings, signature and figures and ink used to fill relative corresponding circles in the fields of Name of the Exam, Date of Exam, Surname, Name, signature, specimen writings, Question Booklet No., Date of Birth, Roll No. and set code and circle filled in front of Ans. Nos. 4, 11, 14, 16, 17, 21 to 32, 34, 35, 37 to 43, 46, 48, 50, 51, 54, 57, 58, 60, 62, 63, 72, 73, 75, 78, 80, 82, 86, 89, 91, 93, 98, 99, 101, 103, 105, 107, 109, 110, 114, 116, 117, 120, 124, 126, 127, 130, 131, 132, 135, 136, 138, 141, 143, 144, 145, 147, 149, 151, 153 to 161, 165, 167, 169 to 171, 173, 175 to 178, 180, 181, 182, 184, 186, 188, 191 to 195 and 198 to 200 are similar with each other.

Set B-The Tint and lustre of the ink used to fill circles in front of rest other attempted Ans. Nos. are similar with each other, but different with respect to ink used to execute the writings, signature, figures and circles as described in Set A.

Above facts clearly establishes that the fields of Set-A and Set-b of this OMR sheet have been executed with using two different inks."

No such report is available in record in respect of petitioner-Shreya Bhargava. The report, which is available on record along with Return i.e. OPINION dated 04.07.2014 is in respect of Meghna Bhadauria. The only material, which is available against Shreya Bhargava is the Note Sheet dated 04.08.2016 at internal page No.76, which is reproduced below:-

"O;kolkf;d ijh{kk e.My ds vkns''k dzekad O;kie@xks0''kk0@5610@2015 fnukad 20-07-2015 }kjk xfBr lfefr dh cSBd MkW0 ,l0ds0tSu] la;qDr fu;a=d ijh{kk ds d{k esa fnukad 04-08-2015 dks le; 3-00 vk;ksftr dh xbZA cSBd esa lfefr lnL; MkW0 vkGksd pkScs] fu;a=d vodk''k esa gksus ds dkj.k mifLFkr ugha gq,A lfefr }kjk ,lVh,Q] dEI;wVj ''kk[kk ,oa lqijokbtj ls izkIr tkudkjh dk voGksdu ,oa ijh{k.k fd;k x;kA

2- ihbZihVh ijh{kk o"kZ 2012 esa vH;FkhZ fodYi uk;d] vuqdzekad 259497 lfEefyr gqvk Fkk tcfd ,lVh,Q }kjk miyC/k djkbZ xbZ D;wMh fjiksVZ esa bl vH;FkhZ dk uke =qfVo''k ihbZihVh 2013 esa n''kkZ;k x;k gSA vr% bls okLrfod :i ls ihbZihVh ijh{kk o"kZ 2012 gsrq gh ekU; fd;k x;k gSA

3- ,lVh,Q }kjk miyC/k djkbZ xbZ D;wMh fjiksVZ rFkk dEI;wVj ''kk[kk }kjk miyC/k djokbZ xbZ ekWMy mRrj dqath ewY;kadu ds vk/kkj ij lfefr dk fo''ys"k.k fuEukuqlkj djokbZ xbZ ekWMy mRrj dqath ewY;kadu ds vk/kkj ij lfefr dk fo''ys"k.k fuEukuqlkj gS%&

4- mijksDr rkfydk ds fcUnq dz0 01 ij vafdr vH;FkhZ usgG eksfgUnzk }kjk vks,evkj mRrj ''khV ij ,d gh vad dk iz;ksx mRrj vafdr djus ds fG, fd;k x;k gS] ftlds vk/kkj ij orZeku esa fdlh Hkh fu"d"kZ ij igqWap ikuk laHko ugha gSA mDr ds izdk''k esa lfefr] bl izdj.k esa fdlh Hkh izdkj dh dk;Zokgh orZeku esa ugha fd;s tkus dh vuq''kalk djrh gSA blds lkFk lfefr ;g Hkh vuq''kalk djrh gS fd ;fn Hkfo"; esa fdlh Hkh L=ksr ls vU; dksbZ tkudkjh izkIr gksrh gS rks bl izdj.k dks iqu% lfefr ds le{k j[kk tk ldrk gSA

5- mijksDr rkfGdk ds fcUnq dz0 02] 03 rFkk 04 ij vafdr vH;fFkZ;ksa ds izdj.kksa esa Li"V :i ls n`f"Vxkspj gksrk gS fd ijh{kk ds nkSjku izFke bad ls yxk; x;s mRrjksa dk ekWMy mRrj dqath ewY;kadu djus ij lkekU; ifj.kke izkIr gks jgs gSaA f}rh; bad ls yxk;s x;s mRrjksa dks ekWMy mRrj dqath ds vk/kkj ij ewY;kadu djus ij tks ifj.kke izkIr gks jgs gSa og vlkekU; gSaA blls ;g Li"V gksrk gS fd f}rh; bad ls yxk;s x;s mRrj vH;FkhZ }kjk ijh{kk ds nkSjku u yxk;s tkdj vuqfpr rjhds ls ckn esa yxk;s x;sA

8. It is further submitted by the respondent No.2 in his return that on the basis of the model answer key, valuation report, QD report prepared by the M.P. Special Task Force, following findings were recorded:-

"a. the question numbers mentioned/prescribed in the QD report and the report prepared by the computed section related to attempted answers by the candidate are totally matched.

b. The matching of OMR sheet filled by the candidate and the Model Answer Sheet has been done. Both OMR sheet and Model Answer Sheet are fully matched.

c. Out of 200 questions the questions attempted by the candidate with first ink, the answer of those question are reflected in Set-B (second ink) by the report prepared and computed section QD report. The copy of the report has been submitted and marked as ANNEXURE R/4."

9. Thereafter, petitioners filed rejoinder and submitted that use of two different pens does not come within the purview of unfair means and the report nowhere says that answers were not given by the petitioners or OMR sheet was not filled by the petitioner and the report of STF cannot be relied upon as the respondent No.2 did not conduct any independent inquiry. The case of the petitioners is squarely covered by the judgment dated 24.09.2014 delivered by the Division Bench of this Court at Principal Seat at Juabalpur in the case of Shishuvendra Singh Tomar v. The State of M.P. and others (W.P. No.9690/2014). Special Task Force has also filed return in which it is stated that they have no role in process of cancelling the examinations of the petitioners and they are the formal party.

10. We have heard the learned counsel for the parties at length.

11. Shri Piyush Mathur, learned Senior Counsel on behalf of the petitioner-Vikalp Nayak and Shri Ajay Bagadiya, learned counsel on behalf of the petitioner-Shreya Bhargava, argued that as per Rule 1.8 of the Rules, a candidate is permitted to bring black ball point pen only in the examination room and unfair means (UFM) is defined in Rule 1.9 of the Rules, 2012, which talks about the illegality committed during the exam and the case of the petitioners does not fall under any of the categories mentioned in the said Rules. It is further provided in the Rules that if any unfair means is found by the central head, the examination of the candidate is liable to be cancelled and the matter would be referred to the police. In the present case, there is no allegation against the petitioners that during the examination, they used unfair means. The allegation which has been levelled against the petitioners is that they might have filled the circles by using different pens illegally after the exam. After the examination, answer-sheets are kept in a secured premises of VYAPAM and it cannot be imagined that petitioners without the help of others manage to get the answer-sheets and filled the same later on because in the present case, there is no allegation against any one except the petitioners.

12. It is submitted that apart from the result of PEPT, 2012, career of both the petitioners are throughout outstanding. In the school examinations, they secured first division marks and in the engineering examinations also they secured high grade/1st division marks in each semester, therefore, it cannot be presumed that they used unfair means to get selection in engineering college. It is further submitted that similar issue came for consideration before the High Court regarding selection of Junior Supply Officer and Inspector (Weights & Measures) and conducted by VYAPAM in the year 2012 and the Division Bench of this Court has considered the similar arguments of VYAPAM and rejected the same. It is also submitted that no criminal case has been registered against the petitioners and the inquiry, which was conducted by the VYAPAM behind the back of the petitioners and without granting any opportunity to present their defence and considering the reply of the petitioners, the impugned order has been passed by a non-speaking order hence, the same is liable to be set aside.

13. Per contra, Shri Akash Sharma, learned counsel appearing on behalf of VYAPAM submits that OMR sheets of the petitioners were considered by the examiner and after taking images by using VSC-2000 H/R in different light arrangement with magnifications it was found that two different inks were used by the petitioners in OMR Sheets. He further submits that the action of VYAPAM is justified and no interference is called for in the writ petitions and prays for dismissal of the writ petitions.

14. In our opinion, under Rule 1.8 of the Rules, a candidate is permitted to bring one black ball point pen in the examination hall.

Rule 1.8 is reproduced below:-

"ijh{kk d{k esa Gs tkus gsrq vko'';d lkexzh%&

1- eaMy dh osclkbZV www.vyapam.nic ls MkmuyGksM@fizaV fd;k gqvk izos''k&i= (TAC)

2- dkGk ckWG IokbaV isuA

mijksDr ds vfrfjDr vU; dksbZ lkexzh tSls fd lsY;wGj@eksckbZG Qksu] dsYdqGsVj] ykWx Vscy] jQ isij vkfn vH;FkhZ ds ikl ijh{kk d{k esa ugha ikbZ tkuk pkfg, vU;Fkk vH;FkhZ ds ;w0,Q0,e0 izdj.k ntZ fd;k tk ldrk gSA rFkk ijh{kk esa cSBus ls Hkh oafpr fd;k tk ldrk gSA"

The candidate may carry more than one pen in the examination hall and is permitted to use them while giving answers, therefore, using of 2 or 3 pens in the answer sheet cannot be termed as unfair means. It is not a case of the respondent that the petitioners have used other than black ball point pen in the answer sheets whereas the allegation of the respondent is that the shed of ink is different and the petitioner used two ball pens. When two pens are permitted to be used in the examinations then it cannot be held unfair means because the sheds of two pens are different. The "unfair means" is also defined in Rule 1.9 of the Rules in which also there is no restriction to use two pens, therefore, by no stretch of imagination, it can be assumed that use of two different pens comes under the category of unfair means.

Rule 1.9 is reproduced below:-

"vuqfpr lk/ku (Unfair means UFM) ;-

vuqfpr lk/kku ;w0,Q0,e0 %& fuEufyf[kr esa ls dksbZ Hkh fdz;kdGki@xfrfof/k ijh{kkFkhZ }kjk mi;ksx esa Gkus ij mls vuqfpr lk/ku ;w0,Q0,e0 ds vUrxZr ekuk tkosxk%&

d & ijh{kk d{k esa vU; ijh{kkFkhZ ls fdlh Hkh izdkj dk lEidZA

[k & vius LFkku ij fdlh vU; O;fDr ls ijh{kk fnGkuk ;k ijh{kkFkhZ ds LFkku ij vU; dksbZ O;fDr mifLFkr gksukA

x & ijh{kk d{k esa vius ikl fdlh Hkh izdkj dh izfrcaf/kr lkexzh j[kukA

?k & ijh{kk ds nkSjku fpYykuk] cksGuk] dkukQqlh djuk] bZ''kkjs djuk o vU; izdkj laidZ lk/kukA

M & vU; ijh{kkFkhZ dh mRrj''khV ;k iz''uiqfLrdk ls vU; fdlh izdkj ls udG djukA

p & vU; ijh{kkFkhZ ds lkFk mRrj''khV ;k iz''uiqfLrdk dh vnGk&cnGh djukA

N & izfrca/ku lkexzh ik;s tkus ij ijh{kkFkhZ }kjk mls lkSaius ls badkj djuk ;k mls Lo;a u"V djukA

t & udG izdj.k ls lacaf/kr nLrkostksa@izi=ksa ij gLrk{kj djus ls euk djukA

> & l{ke vf/kdkjh ds funsZ''kksa dh vogsGuk@voKk djuk ;k muds funsZ''kksa dk ikGu u djukA??

= & l{ke vf/kdkjh ds funsZ''kkuqlkj mRrj''khV ;k vu; nLrkost okil ugh djuk ;k okil djus ls euk djukA

.k & ijh{kk dk;Z esa yxs deZpkfj;ksa@vf/kdkfj;ksa dks ijs''kku djuk] /kedkuk ;k ''kkjhfjd pksV igqWapkukA

mijksDr vuqfpr lk/kuksa rFkk vH;FkhZ ds fdlh vU; d`R; dks i;Zos{kd@dsUnz v/kh{kd@oh{kd }kjk vuqfpr lk/ku dh Js.kh ekuk tkrk gS] rks ml ij U;kf;d dk;Zokgh dh tkosxhA vH;FkhZ dh mRrjiqfLrdk dks vuqfpr lk/ku ds vUrxZr ekurs gq, ewY;kadu ugha fd;k tk;sxk rFkk mldk vH;fFkZRo fujLr dj fn;k tk;sxkA blds vfrfjDr fdlh vU; izdkj ds vuqfpr lk/ku dk mi;ksx fd;s tkus ij vH;FkhZ dks iqfGl dks vko'';d dk;Zokgh gsrq lkSaik tk;sxk vkSj mlds fo:) oS/kkfud dk;Zokgh dh tk;sxhA

;fn dksbZ O;fDr fdlh vU; mEehnokj ds LFkku ij ijh{kk esa lfEefGr gksrk gS rks og d`R; ij:i/kkj.k (IMPERSONATION) ds Js.kh esa vk;sxk ij:i/kkj.k dk d`R; fof/k ds vuqlkj vijk/k gSA ,sls vijk/k ds fy, vkosnudrkZ ,oa mlds LFkku ij ijh{kk esa cSBus okGk O;fDr fof/k ds vuqlkj ltk ;k tqekZuk ,oa nksuksa ls nf.Mr fd;k tk ldsxkA lkFk gh mEehnokj dk ijh{kk ifj.kke Hkh fujLr fd;k tkosxkA

The fact which came in the report of the examiner dated 04.07.2014 that maximum correct answers were given by a pen from which petitioners filled in names, surname, specimen signatures and date of birth and SET Code etc.

15. That, it is expected from a candidate that he would attempt those questions first in which he is confident about their correctness. In the present case, petitioners started using one pen by filling all the entries in the answer-sheet and thereafter, answered the maximum correct questions and thereafter might have changed the pen for answering remaining question in which he was not sure about the correctness. Since, there is no negative marking, petitioners attempted all the questions. Except the image of OMR sheets, there is no material available with the respondents to hold that the petitioners have used unfair means because after the examinations the answer-sheets were kept in secured premises and it is not possible for the students to access in the premises of VYAPAM. There is no allegation against the petitioners that they took help of others for securing answer sheets and later on attempted remaining questions.

16. That, this Hon''ble Court while considering the similar issue in the case of Shishuvendra Singh Tomar (supra) in paragraph No.14 and 15 has held as under:-

"14. After having perused the impugned order dated 13.06.2014 and upon close scrutiny of the documents pressed into service by VYAPAM, it is amply clear that the impugned action of VYAPAM was ignited after receipt of communication from the officials of Special Task Force dated 19.05.2014, in particular. Upon receipt of that communication, admittedly, VYAPAM did not set up any enquiry committee of its own to inquire into the factual matter referred to in the said communication and more so, to examine the fact whether using of different ink to fill in the circles in the answer-sheets by the named candidates, by itself, amounted to unfair means committed during the examination or something more was necessary and further whether that something more can be discerned from the records available with VYAPAM. No doubt, the relevant record concerning the examination of named 16 candidates (including the petitioners) was seized by the Special Task Force on 29.11.2013. However, if VYAPAM wanted to conduct independent inquiry to ascertain whether it was a case of mass copying or mass malpractice and, in particular, commission of unfair means during the examination, it could have requested STF to make available the seized documents for the purposes of such inquiry. In other words, the indisputable fact emerging from the communications and note-sheets pressed into service, is that, VYAPAM purely went by the communication received from the Investigating Agency that the investigation of criminal case registered against the petitioners revealed that they used different inks to fill in the circles in the answer-sheet during the examination. In our opinion, that, by itself, cannot be the basis to proceed in the matter and more so, to pass such a drastic order of cancellation of the examination results of the petitioners. In that, VYAPAM has not independently inquired into the factual aspects and including whether the fact of using different ink to fill in the circles in the answer-sheets by the candidate would be a case of unfair means as such, much less a case of mass copying or mass malpractice, so as to dispense with the requirement of giving opportunity of being heard to the candidate likely to be affected by its decision. Thus understood, it is a case of abdication of duty by VYAPAM. Inasmuch as, existence of such a drastic power is coupled with the duty to exercise that power with circumspection and by following fair procedure. Even if we do not intend to go into the argument as to whether the impugned action is taken under dictation of the Investigating Agency (Special Task Force), as there is other strong reason, which is so palpable from the record, to hold that the impugned order and the process adopted by VYAPAM to invoke the power of cancellation of results of the concerned candidates is untenable in law, the petitioners are entitled for relief of quashing of the impugned order on that basis alone.

15. Once it is held that the impugned order passed by VYAPAM dated 13.06.2014 is unsustainable and cannot stand the test of judicial scrutiny, the same is required to be quashed and set aside."

17. That, during the pendency of the writ petition, petitioners have completed their studies as noted above and they have secured distinction marks in all the semesters of the degree course and before even selection in PEPT, 2012 their percentage in the school examinations as well as in board examinations were upto the mark, therefore, it cannot be held that the petitioners were not deserving to get the selection through PEPT, 2012. Accordingly, we quash the impugned order dated 15.09.2015 and allow both the writ petitions.