Vivekanand Higher Secondary School, Sagar vs State of M.P. and Others

Dipak Misra J.

In this batch of writ petitions the seminal and centroidal question that emerges for consideration is whether the Board of Secondary Education [in short ''the Board''] is justified in cancelling the recognition of the petitioners- institutions on the ground of masscopying by their students that finds mention in the order of cancellation which is founded on the policy-decision formulated by the State or the order of cancellation of recognition runs counter to the basic and fundamental concept of procedure for grant of recognition as well as cancellation of recognition thereby making the order erroneous and eventually building an edifice on such a fragile base to lead to a founder and further whether the Board is sound in its approach in not conferring the benefits on certain educational institutions despite the factum that they have fulfilled the eligibility criteria postulated by the Board ? Be it noted, in certain cases masscopying is the singular ground and in certain other cases masscopying is mixed with non-satisfaction of the eligibility criteria and in other cases there is cancellation of recognition because of non meeting of the relevant stipulations. Facts in the last two categories of cases need not be adumbrated for what is going to be stated in this order at a latter stage. I shall advert in detail to the cases of derecognition/cancellation of recognition which is based on masscopying. For the sake of clarity and convenience facts in W.P. No. 538/2004 would be adumbrated to appreciate the factual scenario.

It is worth noting that the question involved is pristinely legal, as it relates to educational institutions. The issue gains significance as it has nexus with imparting education which is the ''apprenticeship of life''. Speaking about education Bertrand Russell had said" The main thing needed to make men happy is intelligence and it can be fostered by education" Long back Addison had spoken in the following terms:

What sculpture is to a block of marble, education is to the human soul. The philosopher, the saint, the hero, the wise, and the good, or the great, very often lie hid and concealed in a plebeian, which a proper education might have dis-interred and brought to light.

It is not out of place to state here that Bertrand Russell has laid emphasis on four facets of education. They are : (1) Vitality, (2) Courage, (3) Sensitiveness, and (4) Intelligence. He has also laid certain principles of education. They are: (1) Curiosity, (2) Open-mindedness, (3) Faith in acquiring knowledge, (4) Perseverance, (5) Concentration, (6) Patience, and (7) Exactness. I may fruitfully say that the education is the backbone of the society. The students who engage themselves in masscopying irrefragably show a sense cowardice. Cowardice is contra-indicative of courage as education mothers courage. Indulging in masscopying has become a malignant malady and like an octopus refuges to loosen. Hence it has cut a strophic effect on the educational system and in this batch of cases it falls for consideration as rigorous surgical measures have been taken by the respondents.

The petitioner, Vivekanand Higher Secondary School, which has been founded since 13-6-1995 under the Prakhar Pragya Shiksha Prasar Samiti, Sagar, a society registered under the M.P. Societies Registrikaran Adhiniyam, 1973 was granted recognition by the Board and has earned certificates of appreciation. The respondent arbitrarily derecognised the recognition granted in favour of the institution in respect of higher secondary school and high school vide two orders dated 27-6-2003 and 8-8-2003 as per Annexure-P/2 and Annexure-P/3 respectively. It is put forth that the orders of cancellation of recognition have been passed in a capricious manner without assigning any reason and without following the due procedure contained in Recognition Regulation, 1994. It is contended that the respondents served a show cause notice vide letter No. 724/recog/2003, dated 14-5-2003 alleging that the students of the petitioner-institution had used unfair means during the Higher Secondary Examination in the year 2003 and were involved in the masscopying during the examination. It was mentioned that proper education was not imparted in the institution, as a consequence of which masscopying had ensued and, therefore, the Board was constrained to derecognise the petitioner-institution. The petitioner was required to show cause within a period of 30 days.

According to the writ petitioner after receipt of the show cause on 25-5-2003 a reply was filed highlighting the fact that the petitioner was not responsible for any kind of irregularity in the examination conducted by the Board; that the examination was conducted under the supervision of Centre In-charge; that the police and government examiners appointed by the Board itself; and that they were present at the centre when the masscopying was allegedly committed by the students. It was put forth in the show cause that the staff of the petitioner-institution had no involvement in the conduct of the examination of the centre and there were only 29 students from the petitioner-institution who appeared at the centre. It was highlighted that the examination at the centre was conducted in respect of 131 students and there was no separate assessment regarding of any copying in respect of any of the institutions. After filing of such show cause, vide Annexure-P/2, dated 27-6-2003 the Board cancelled the recognition of the petitioner for the year 2004 and it was directed not to admit the students for Higher Secondary School Examination and it was further stipulated that if the petitioner admitted students they should be transferred to some other institution before 30th June, 2003. The petitioner submitted repeated representations before the Secretary of the Board and approached the authority that the cancellation was absolutely unjustified, illegal, improper and unwarranted inasmuch as no single case was registered in respect of any one of the students belonging to the petitioner-institution and the institution had no role to play in the same. It is put forth that the respondent-Board derecognised the petitioner-institution for High School Examination for the year 2004 as per order dated 8-8-2003, Annexure- P/3. Before derecognising the petitioner-institution the respondent-Board did not even issue a notice to show cause and derecognised the High School because the students of Higher Secondary School of the petitioner-institution were allegedly present at the centre where the masscopying was committed by the students during examination. It is contended that the institution was inspected without prior notice by one of the Board members who gave a satisfactory report, vide Annexure-P/8. A prayer was made by the petitioner to restore the recognition. The said prayer was not paid heed to and the reminders issued by the petitioner from time to time fell in deaf ears. It is set forth that the Board had cancelled the recognition of the petitioner-institution for the year 2004 despite the factum that the Board vide letter dated 7-8-2003 contained in Annexure-P/11 had declared the result of students of the petitioner-institution who appeared in the 2003 Examination of Higher Secondary, despite the fact that there was a allegation of masscheating and the results in respect of 29 students were withheld. An amendment was brought after the counter affidavit was filed that the State Government had formulated a policy dated 22-5-2003, Annexure-R-2/7, stipulating that recognition of the institutions shall be cancelled for two years whose students found to be involved in masscopying and the Board have in possession of evidence to establish that masscopying had been committed by the students of the alleged institution.

A return has been filed by the respondent No. 2, the Board of Secondary Education, contending inter alia, that the students of the petitioner-school appeared in the Examination Centre No. 24072 and the said examination centre was involved in masscopying in the final examination. Result of the students involved in the masscopying was cancelled by the Board and the students had assailed the same in W.P. No. 3411/2003. This court did not find any merit in the writ petition and dismissed the same. On account of involvement of the students in the masscopying the Board had taken a decision to cancel the recognition of the school. It is asserted that the petitioner-school had never been interested in the welfare of the students and consequently did not choose to challenge the cancellation of results of the students. On the basis of masscopying the recognition was cancelled by order dated 27-6-2003. It is also put forth that a fresh application ought to have been submitted by the petitioner for grant of fresh recognition in accordance with provisions of Manyata Viniyam, 1994 and then only the same would have been considered and decided by the Board on its own merits.

An additional reply has been filed asseverating that on 31-05-2003 a high powered committee took a policy decision that recognition of those schools whose students are involved in masscopying would be cancelled. The schools were intimated to ensure that no admissions are given and the students are not imparted education as regular students without recognition from the Board. The policy decision taken by the State Government and communicated to the Board of Secondary Education has been brought on record as Annexure-R-2/2. On the basis of the said policy-decision it was decided by the Competent Authority of the Board that recognition of the schools whose students were found to be involved in masscopying would be cancelled for the current academic session. The Recognition Committee of the Board while considering the criteria for grant of recognition in respect of academic session 2004-2005 decided not to grant recognition to such schools whose results had been cancelled on account of involvement in masscopying in the previous year. The case of the petitioner-school was considered by the Recognition Committee of the Board and it rejected the same on the ground of masscopying. The said step has been taken at the highest level of the State Government and a notification has been issued.

An additional affidavit has been filed by the Board of Secondary Education stating that the State Government as well as the Board has been repeatedly receiving number of complaints wherein examination centre have been mobbed by thousand of persons and the invigilators and the Centre In-charge had virtually become hostages. They have expressed their inability to control masscopying because of threat to their lives and undue pressure on them. The Board has filed reports of masscopying in which flying squad has clearly implicated the management and staff of the private schools and their involvement in facilitating masscopying. It is appropriate to reproduce the said allegations:

(i) Report of SDO, Tahsil Raipur, District, Rewa dated 20-3-2003, wherein the SDO has categorically implicated many private schools, whose students were appearing from that centre. This report shows active involvement of management and staff of private schools in masscopying. This report pertains to examination centre No. 32051 and 32048. The SDO has reported that the private schools are actively involved and even rates are fixed for getting their students passed in the examination centre. It has been reported that the extent of masscopying done in these centres is beyond imagination. Copy of the said report of masscopying is Annexure, R-2/6.

(ii) Report dated 15-03-2003 of Dy. Collector, Jabalpur, forwarded by Commissioner, Jabalpur Division. This report also shows that outside teachers were found inside examination hall and there was a clear nexus between the schools, Examination Centre Incharge and even police. Copy of this report is Annexure-R-2/7.

(iii) Report dated 4.3.2003 made by Centre Superintendent of Examination centre No. 32090. In this report, the Examination Centre Incharge had reported that masscopying is being done with the help of thousands of wards of examinees and with the help of teachers. Copy of this report is Annexure-R-2/8.

(iv) Report dated 20-3-2003 made by Collector, Rewa with regard to examination centre No. 32056. Collector, Rewa in this report has clearly stated that the management of private schools, whose students are appearing in the examination from this centre are actively involved in masscopying. Copy of the said of report of Collector, Rewa is Annexure-R-2/9.

(v) Report dated 5-3-2003 made by Assistant Director, Education regarding examination centre No. 24051 at Sagar. It has been clearly reported that managements of private schools are instrumental in creating mismanagement and in facilitating masscopying. Copy of this report is filed herewith as Annexure-R-2/10.

(vi) Report dated 7-4-2003 made by Collector, Jabalpur regarding mass-copying in examination centre No. 71089. The report shows that large scale of masscopying and also the involvement of examination centre in-charge. Copy of this report is Annexure-R-2/11.

(vii) Report dated 11-3-02003 made by Tehsildar, Bhind with regard to examination centre No. 13037. Report shows large number of outsiders inside the examination centres and also large number of other teachers, who were not invigilators. The report shows that the examination centre in-charge was facilitating masscopying. Copy of this report is Annexure-R-2/12

(viii) Report dated 11-03-2003 made by Collector, Bhind with regard to examination centre No. 13037. Report shows hundreds of persons involved in masscopying and outsiders actively helping in masscopying. Copy of this report Annexure-R-2/13.

(ix) Report dated 4-03-2003 regarding examination centre in Govt. H.S. School, Deori, Sagar. Report shows that hundreds of outsiders were involved in masscopying and entered examination halls to supply copying material. Copy of this report is Annexure R-2/14.

(x) Report dated 7-03-2003 made by Examination centre Incharge of Centre No. 35016, Sidhi. Report shows that the persons accompanying the students helped in masscopying and even the teachers are actively involved in masscopying. Copy of this report is Annexure-R-2/15.

(xi) Copy of report dated 7-03-2003 regarding examination centre No. 35071, Sidhi. The Examination Centre Incharge reported that nearly 2000 persons were actively involved in masscopying. Hundreds of persons entered the examination centre and he was unable to control masscopying. Copy of this report is Annexure-R-2/16.

(xii) Copy of press report of Sidhi District dated 6-03-2003 showing active involvement of wards of students and the teachers of schools in masscopying. Copy of the press report is Annexure R-2/17.

It is respectfully submitted that like the aforesaid reports, many other such reports are also made directly to the District Education Officer, Collectors and Superintendent of Police of Districts and also to various other authorities in the State alleging the active involvement of management and staff of private schools, wards and associates of examinees, the invigilators and even the examination centre in-charge conducting the examinations."

I have heard the learned counsel for the petitioners, Mr. P.N. Dubey, learned Deputy Advocate General for the State and Mr. Naman Nagrath, learned counsel appearing for the respondent No. 2, the Board.

The learned counsel for the petitioners submitted that once they have satisfied the criteria for getting the recognition that cannot be cancelled on the ground of masscopying. It is urged by them that the examination is conducted at the centre at a different place which is determined by the Board and the petitioners-schools have no role to play therein and to cancel the recognition on that score alone is extremely arbitrary and sensitively susceptible. It is urged by them that the nature, conduct and character of the students involved in the masscopying has a different spectrum but cancellation of the recognition of the institutions granted as per rules due to the conduct of the students in the examination without finding any fault with the institutions is unsustainable. It is canvassed that before cancellation of recognition adequate opportunity of being heard should have been afforded to the petitioners-institutions so that they could have been in a position to explain their stand and stance and would not have been visited with an order or derecognition or cancellation of recognition. It is also put forth that the in the of Barhonpar Shiksha Samiti Mangi and others vs. State of M.P. and others (W.p. No. 28506/2003) this Court has held that on the ground of masscopying there cannot be cancellation of recognition.

Mr. P.N. Dubey, learned Deputy Advocate General for the State and Mr. Naman Nagrath, learned counsel appearing for the Board, per contra, submitted that a policy-decision has been taken by the State Government to cancel the recognition of certain schools whose students are involved in masscopying and when the policy-decision subserves the purpose relevant action taken under the said notification cannot be held to be arbitrary or discriminatory. It is their contention that the policy decision has been taken to curb the institutions which convert education to a trade and act against the interest of students, as a consequence of which they are compelled to get involved in the masscopying and, therefore, the policy decision taken by the State Government and worked out by the Board cannot be treated either to be erroneous or faulty. It is also canvassed by them the order of the learned single Judge in the case of Barhonpar Shiksha Samiti Mangi and others(supra) has been stayed in L.P.A. No. 177/2004.

At the very outset, I may state that the students of Centre Nos. 24033 and 24072 had approached this Court in W.P. No. 3411/2003 (Ku. Nidhi Jain and others vs. State of M.P. and others) wherein the learned Single Judge referring to certain documents came to hold that there were reports which support the findings of masscopying. Thus, as a matter of fact, it stands established that there was masscopying at the centre. The learned Single Judge in the case of Barhonpar Shiksha Samiti (supra) framed two question whether the action of the Board in not granting recognition to the petitioner-institution therein for the academic session 2003-2004 is justified; and whether action of the authorities cancelling the examination because of masscopying is correct. The learned Single Judge referred to the decision rendered in the case of DAV Higher Secondary School, Bhind vs. Madhyamik Shiksha Mandal, Madhya Pradesh, Bhopal (W.P. No. 1955/2003), decided on 23-09-2003. In the said case it has been held as under:

Recognition granted to a institute creates certain vested rights in the said Institute and to withdraw the same, basic principles of natural justice, application of mind and speaking order are required to be followed. The present case, if viewed, in the background of the compliance to the aforesaid requirement, it is seen that the order has been passed by totally ignoring these basic principles of law. The allegation against the petitioner''s Institute is that their students had indulged in masscopying. If the petitioner''s institute are to be held responsible for the same, there has to be enough material before the respondents to indicate that the aforesaid illegality or irregularity committed by the respondents was facilitated by some action undertaken by the petitioner''s institute but there is nothing on record to suggest the aforesaid.

On the contrary, it is seen that the petitioner''s Institute was not an examination centre, none of the petitioner''s staff, teachers or other employees were involved in the conduct of the examination. Even there is no adverse report with regard to any illegal activity by the petitioner''s Institute which remotely suggests of facilitating in masscopying in the centre where the examination was conducted. In the absence of these, the finding is recorded merely on the basis of a presumption that the students were not properly coached and, therefore, they have indulged in copying is clearly unsustainable. Even to indicate unsustainable. Even to indicate that proper coaching facilities were not extended to the students, no enquiry or report is available to substantiate these contentions. That being so, it has to be held that the order impugned cancelling the recognition have been passed in an arbitrary manner, without application of mind and without considering the explanation and objections raised by the petitioner. Accordingly, on this ground alone, the order has to be quashed as it is unsustainable.

After reproducing the said paragraphs the learned Single Judge recorded the finding as under:

Similar is the position here. It is not the case of the respondent Board that the examination centre was the school of the petitioners. On the contrary, the examination centre was a Government school and the entire supervision and invigilation work were done by the officers appointed by the Board or by the authorities. No staff of the petitioner school was involved in the aforesaid supervision and invigilation work. Apart from this, there is no evidence on record showing that any of the staff of petitioner''s school was found present at the time of mass-copying at the centre. In the circumstances, merely on the ground that the students of petitioner''s school were appearing in the examination and were indulged in masscopying will not be sufficient to reject the prayer of the petitioner for recognition. Petitioners'' school was granted recognition in the year 1993 and up to 2003 petitioners'' school enjoyed the aforesaid recognition. In the circumstances, on the basis of the aforesaid masscopying, the respondent Board has erroneously not granted recognition to the petitioner institution. In the circumstances, the order Annexure-P/1 passed by respondent No. 2 is quashed.

As far as present batch of cases is concerned, the students are not before this Court. The institutions have challenged their derecognition. In the LPA by the Division Bench has passed the following order:

Subject to hearing the other side it is directed that the operation of order dated 25-2-2004 passed in W.P. No. 28506/2003, directing the appellants to consider the application of respondent Nos. 1 and 2 for recognition for the year 2004-2005, shall remain stayed until further orders.

The learned Single Judge as has been indicated earlier, quashed the cancellation and issued certain directions and the said directions have been stayed. In my considered view, it is not necessary to enter into the debate what would be the impact when the judgment has been stayed. What weights with this Court in praesenti, is that recognition of institutions has been cancelled. Indubitably, it has been established as a matter of fact, there has been masscopying at the centre. It is also a fact that the students of the petitioners-schools were appearing from the said centre. The central question that emerges for consideration is whether on the foundation that there was masscopying at the centre the recognition of the institutions-schools should be cancelled or something more is required. The policy decision lays a postulate with regard to masscopying. It has a purpose to achieve. It cannot be regarded as irrelevant but the term ''masscopying by the students of the school should not be narrowly understood. In a given case the students for their own sake may get themselves involved in masscopying. Students from many schools appear from a particular centre. Masscopying may be at the centre but the students of the institutions may not be involved. Quite apart from the above, the institution or its staff cannot be said ipso facto to have been involved either directly or vicariously. There has to be an enquiry about the role of the institutions. The persons who enter into the centre and get themselves actively involved should have some nexus with those institutions. Involvement in masscopying definitely has to be condemned. The Board has the expertise to take the decision. In the case of Chairman, J and K State Board of Education Vs. Feyaz Ahmed Malik and Others, the Apex Court expressed the view as under:

...In judging the validity a notification containing provisions regarding steps to be taken when a report of mass malpractice is receivable it is to be kept in mind whether the provisions contained in the notification are relevant for achieving the purpose for which the notification is issued and if it is found that the notification is relevant for and has a nexus with the purpose to be achieved then the notification cannot be said to be arbitrary and discriminatory.

The said decision relates to cancellation of results in the masscopying. But the present writ petitions pertain to cancellation of recognition. If the institution has not been imparting education or does not have adequate staff to impart education or without attendance of students send them for examination may be relevant factors for cancellation from a different spectrum. The institutions, the authorities of institutions or staff entering into a collusion for masscopying or doing certain acts to indirectly facilitate the masscopying by students of the school then definitely the institution invites the wrath of cancellation of recognition but it is not to be inferred. There has to be an enquiry in this regard. To that limited extent, the principle of natural justice gets attracted. In the case at hand, schools were given notice but there was no inquiry. In my considered view, the principles of natural justice are to be followed to the limited extent before any adverse consequence is visited to the institutions.

The learned counsel for the petitioners prayed as the impugned orders have been passed without hearing them cancellation of recognition should be cancelled and it should be restored. In my view the said submission is devoid of substance. For the last two years cancellation of recognition has taken place. After the recognition is cancelled the petitioners have not admitted the students as they could not have as a derecognised school. These are the cases where, I am disposed to think that doctrine of post decisional hearing has to be applied. Hence, the Board shall cause an enquiry within three months from the date of receipt of the order passed today.

Quite apart from the above, in certain cases the grievance is that though they have definite infrastructure and have satisfied the eligibility criteria yet there has been cancellation of recognition. This aspect can be brought to the notice of the authorities of the Board and the Board would be under obligation to indicate the spectrums in which the deficiencies are in existence or where rectificatory measures are to be taken to meet the eligibility criteria. Exercise in that regard be completed within the time frame that has been fixed for the other purpose.

Be it noted, in certain cases some interlocutory orders were passed to permit the students to appear in the examination. If they have appeared the Board is directed to publish their results as private candidates.

With the aforesaid directions the writ petitions are disposed of without any order as to costs.