1. This is an application under Article 226 of the Constitution for an appropriate writ directing the opposite parties to withdraw or revoke the order of cancellation of the Intermediate Licentiateship Medical examination held at the Burdwan centre in June 1051 and to publish the results of the said examination. The petitioner is a Matriculate of the University of Calcutta. In 1947 he got himself admitted into the Chittagong Medical School in Eastern Pakistan for the purpose of obtaining a L.M.F. Diploma. In 1948 the petitioner passed the Primary examination. In February 1950 owing to communal disturbances in Eastern Pakistan the petitioner and his family came over to India as refugees. After coming to India, the petitioner continued his medical studies and got himself admitted in the Burdwan Ronaldshay Medical School, which is an institution run by the State Medical Faculty of West Bengal. In November 1960 the petitioner appeared in the Intermediate examination conducted by the said Faculty and out of the 3 subjects prescribed for such examination the petitioner passed in two subjects namely Physiology and Pharmacology but was unsuccessful in the 3rd subject namely Anatomy. Under R, 4 of the Rules and Regulations of the said Medical Faculty relating to Intermediate Licentiateship examination a candidate who fails in one subject only is on payment of a certain fee permitted to appear in that subject at the next 6 monthly examination and if he passes he shall be held to have passed the entire examination, but a candidate failing to pass or appear under this provision shall be required to appear in all subjects of the examination. By virtue of this rule the petitioner got a chance to appear in the Anatomy paper at the June term examination in 1951. In April 1951 the medical school where the petitioner was prosecuting his studies held a test examination and the petitioner stood first in Anatomy. Thereafter the petitioner appeared at the June term of the Intermediate examination of the Medical Faculty which was held on or about 7-6-1951. Under the rules the petitioner had to sit for a theoretical examination in Anatomy and also for oral and practical examination. The theoretical examination was held on the aforesaid date namely 7-6-1951 and on 18-6-1951 the oral and practical examinations were held. It is alleged that the petitioner fared well in all these examinations.
It appears that about 71 students from different schools in West Bengal appeared in the said examination of the June term held in the Burdwan centre. Under the rules and regulations framed for the conduct of these medical examinations the examinations at the different centres are conducted under the supervision of a presiding officer, inspectors, convenor and invigilators. It appears that so far as this June term examination in Burdwan centre was concerned there was no unhappy incident during the examination. There was no case of detection of any unfair means being adopted by any of the candidates and there was no case of any expulsion from the examination hall for taking any unfair means and there was no adverse report by either the presiding officer or the inspectors or the invigilators conducting the examination. It further appears from the rules and regulations for the conduct of the medical examination that the examiners who conduct oral and practical examinations are to examine and look over the written theoretical papers of the examinees before they take up oral and practical examinations of these examinees and they are further to enter the marks of the theoretical papers on the slip rolls. It is alleged that at the time the petitioner's practical and oral examination was held the theoretical written papers and the roll slips containing the marks of that paper were before the examiners.
After the oral and practical examination of the petitioner was over the petitioner got the impression that he had fared well in such examination but sometime later the petitioner found to his utter surprise from a notice signed by the Secretary of the State Medical Faculty and hung up in the Notice Board of the school that the examination of 51 candidates including the petitioner out of the total of 71 candidates had been canceled for taking unfair means, The petitioner thereupon made enquiries and came to know that at an emergent meeting of the Governing Body of the State Medical Faculty held on 25-7-1951 the Governing Body had resolved and decided that the entire examination of the term in all the subjects of the said 51 candidates would stand cancelled, as the Governing Body had come to the conclusion that these candidates had adopted unfair means. The Governing Body came to this conclusion inasmuch as the answers written by a large number of candidates were exactly similar and most of the answers in the Anatomy and Physiology subjects is were verbatim reproduction of certain pages of Gray's Anatomy and Chakravarti's 'Aids to Human Physiology'. It is alleged in the petition that the Governing Body was wrong in coming to the conclusion that the petitioner had adopted any unfair means. It is alleged that Gray's Anatomy is the only text book prescribed for the examination and it being a highly technical subject the petitioner who wanted to get through the examination had to commit to memory important portions of the book and as the questions set were stock questions the petitioner answered the same to me best of his ability and knowledge and without adopting any unfair means.
It appears that after the decision of the Governing Body as to cancellation of the entire examination of the June term was taken, a notice was issued by the Governing Body that in view of the cancellation candidates who had already passed in 2 subjects would have to appear again in all the 3 subjects. In other words the notice purported to cancel the result of the previous examination held in November 1950. It is alleged that the order of cancellation of the examination was passed without any enquiry and without giving the petitioner any opportunity to offer an explanation. It is further alleged that there is no rule by which the Governing Body can cancel the entire examination when there is no detection of any unfair means being adopted by the candidates during the examination. The petitioner challenges the order of cancellation of the examination as illegal and arbitrary and as being against all principles of natural justice.
2. The counter affidavit filed in the present proceeding is affirmed by one Haridas Gariguly, who is the Head Assistant in the office of the State Medical Faculty of West Bengal. In this affidavit it is admitted that no candidate was actually hauled up in the examination hall for resorting to unfair means but the examiners made an adverse report to the State Medical Faculty stating that the written answers of a large number of candidates were exactly the same in language and contents and many of the candidates could not answer the same questions at the oral examination and the examiners thereupon strongly suspected that unfair means of copying had been resorted to by the candidates at the written examination. It is further stated in this affidavit that the written examinations in the three subjects viz. Anatomy Physiology and Pharmacology were held on the 7th, 8th and 9th June 1951 respectively and there were 6 questions in each subject -- each question being answered in a separate book -- for eventual examination by 3 examiners, namely two questions by each examiner. The examiners commenced their examination of the written answer books as well as the oral and practical examinations from, 15-6-1951 and such examinations continued till 19-6-1951 and it was during this time that a suspicion arose in the minds of the examiners that there was something unusual in the written answers and after further comparisons and consultations the examiners in Anatomy and Physiology submitted their report dated 28-6-1951.
On receipt of these reports the Board of Studies had a meeting held on that very date and directed a scrutiny of the written answer books by two of its members and at a subsequent emergent meeting held on 10-7-1951 the Board directed the examiners to meet again and go into the matter fully. The examiners thereafter met on 13-7-1951 for comparison of the answer papers and for sorting out answer books in which the answers were similar in language. The Board thereafter met on 16-7-1951 and after considering all the reports and comparing the answer books with certain pages of Grey's Anatomy and Chakravarti's 'Aids to Human Physiology' the Board came to the conclusion that 51 candidates including the petitioner had adopted unfair means. The matter was then taken up at an emergent meeting of the entire Governing Body on 25-7-1951 and the resolution as to cancellation of the entire examination was passed at such, meeting by the Governing Body. Subsequently on 9-8-1951 the Board of Studies took the view-that these candidates must appear in all the 3 subjects at the ensuing examination and this was approved by the Governing Body at a mating held on 20-8-1951 The proceedings of the emergent meeting of the Governing Body held on 25-7-1951 as also copies of reports of the examiners in Physiology and Anatomy dated 28-6-1951 have been annexed in this Counter Affidavit and it appears therefrom that the examiners who submitted the reports and the members of the Governing B'ldy who participated in the meeting of 25-7-1951 were of opinion that the answers of a large number of candidates were exactly similar and most of the answers in the 2 subjects of Anatomy and Physiology were verbatim copies of the language and other details of certain pages of Grey's Anatomy and Chakravarti's 'Aids to Human Physiology'. It does not appear that they formed this opinion with regard to all the candidates appearing in the said examination. It also appears from the report of the examiner in Anatomy which is Annexure 'B1' that it is only some of the candidates but not all who could not answer the questions set in the theoretical examination in their oral examination.
3. In course of the hearing, the mark sheet of the candidates who appeared in the June term examination in Anatomy was produced before the Court and it appears therefrom that the petitioner whose roll number was 42 obtained the total mark of 134 in the theoretical paper out of 200 and he secured 75 per cent, marks in the oral examination and 105 out of 200 in practical examination. It is, therefore clear that the petitioner was certainly not one of those candidates who, according to the report of the examiner in Anatomy, could not answer the questions set in the theoretical paper in his oral examination, for, had it been so, it is unlikely that he would secure 75 per cent, marks in the oral examination, it is true as is evident from the mark sheet that a large number of students did not tare well in the oral examination but there are a few including the petitioner (it may be their number does not exceed 7) who did fare well in the oral examination.
4. It has been contended by Mr. Binayak Banerjee the learned Advocate for the opposite parties that proper parties against whom the writ asked for may be issued nave not been impleaded in this application and therefore this application must tail. It is submitted by Mr. Banerjee that the State Medical Faculty of West Bengal is not a corporate body and as such all the members composing that body should have been made parties in their individual names, it is not enough to make the President of the Governing Body of the State Medical Faculty or the Secretary as parties nor is it enough to make the State Medical Faculty party in its official designation. It is further pointed out by Mr. Banerjee that the State Medical Faculty is not a creature of Statute in the sense that it has not been brought into existence by any legislative act but by an executive order. According to Mr. Banerjee all the individual members composing the Faculty should be brought on record, it appears to me that this application cannot be thrown out on this technical ground,
5. Article 226(1) of the Constitution is as follows:
'Notwithstanding anything in Article 32 every High Court snail have power, throughout the territories in relation to which it exercises jurisdiction, to issue to 'any person or authority' including in appropriate cases any Government within these territories, directions, orders or writs, including writs in the nature of Habeas Corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the fundamental rights conferred by Part 3 and for any other purpose.'
6. Article 367(1) of the Constitution provides:
'Unless the context otherwise requires the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.'
7. It is, therefore, clear that the word 'person' in Article 226 should be interpreted in the sense in which it has been used in Section 3(39). General Clauses Act, 1897, which is as follows:
' 'Person' shall include any company or association or body of individuals whether incorporated or not.'
8. Thus, although the State Medical Faculty is an unincorporated body of individuals, a writ can be properly issued against such a body. Now it appears that the State Medical Faculty was established by an order of the Governor in Council which is numbered as Bengal Government Resolution No. 2545 Medl. dated 11-8-1914 which was published in the Calcutta Gazette of 12-8-1914 at page 1653. It is not, however, clear from the Gazette nor from the book which has been published and which contains the rules and regulations of the State Medical Faculty whether this Order in Council is a legislative order or an executive order. It is well known that at the time this Order in Council was passed the Councils of the Governors of Bengal, Madras and Bombay had the power vested in them by Statute to hold ordinary meetings that is to say meetings for executive purposes and legislative meetings that is to say meetings for the purpose of making laws. Mr. Priti Bhusan Burman referred to me earlier Statutes relating to the Government of India for the purpose of establishing that this Order in Council dated 11-8-1914 was a legislative order. But I do not think that he had been able to place sufficient materials before the Court to establish that fact. It appears from the counter affidavit that the State Medical Faculty was constituted by an executive order and this has not been denied in the affidavit in reply. It appears, however, from para. 4 of the said resolution No. 2545 Medl. that by the said Order in Council certain statutes and bye-laws were framed defining the constitution, functions and powers and duties of the State Medical Faculty as constituted by the said Order in Council. A perusal of these statutes and the rules and regulations show that the State Medical Faculty is a public body which was set up by the Government and it was entrusted with the performance of certain public duties. A public body need not necessarily be constituted by a statute, it may be set up by Government in exercise of its executive functions and otherwise than through the medium of a statute and rules and regulations may be laid down defining the scope of its powers and duties; and thereafter it functions as a body having the authority of the Government. It appears that the State Medical Faculty has received statutory recognition and the power of conferring medical degrees or diplomas has been entrusted to this body by the Indian Medical Degrees Act (Act 7 of 1916).
9. In the case of -- 'In Re G. A. Natesan', 40 Mad 125, Kumaraswamy Sastriyar J. at p. 159 observed as follows:
'The practice in English Courts seems to be that where the application is to compel some public officer or body to perform a public duty the persons are not named but are proceeded against under their official title. For example, writs of mandamus have been issued to justice of a county, inhabitants of a parish, churchwardens, overseers, inhabitants, and bailiffs of a town, keepers of the common seal of a University, the assessment committee of a borough, the Registrar of the British Pharmaceutical Society, etc. There has been so far as I can see no objection taken in any of the reported cases on the ground that except in the case of Corporations, all other public bodies or officers should be proceeded against in the individual names of the members composing them.'
10. It is true that in this Madras case the learned Judges were dealing with the case of Syndicate of the University which was constituted by a Statute, but it is clear from this decision that unincorporated public bodies can be proceeded against in their official title or designation.
11. In the case of -- 'In the matter of Provas Chandra Roy', 40 Cal 588, an objection was taken that an application for a writ of mandamus against the Board of Examiners was not in order as the members of the Board were not impleaded in their individual names, but it appears that the learned counsel did not press this objection but ultimately waived it. It appears from the Statute relating to this State Medical Faculty being Clause 2 that the State Medical Faculty consists of -- (a) Governing Body, (b) Fellows, (c) members and (d) Licentiates, and it is stated by the learned Advocate for the opposite parties that the total number of the members of the State Medical Faculty is very large. Even assuming that it would be more appropriate to implead all the members of the Faculty as parties to this application, it is open to the petitioner to have recourse to Order 1 Rule 8, Civil P.C. and proceed against only some of the members representing themselves and all other members of the State Medical Faculty, It appears to me that the objection taken by Mr. Banerji is a purely technical one and can be easily cured by a formal amendment. Therefore, the objection cannot be considered as fatal to this application.
12. It was further contended by Mr. Banerjee that the Governing Body which is a smaller body than the State Medical Faculty should have been impleaded and not the larger body of State Medical Faculty inasmuch as it is the act of the Governing Body which is complained of, in the present proceeding. If the Governing Body had purported to exercise any functions or powers which were peculiar to the Governing Body and in furtherance of the purposes of the Governing Body the argument of Mr. Banerjee might have some force. But the Governing Body has purported to exercise its powers for and on behalf of the State Medical Faculty. The act or decision of the Governing Body is the act or decision of the State Medical Faculty. The State Medical Faculty as a whole is liable or responsible for the acts of its Governing Body. In my view the State Medical Faculty has been rightly impleaded and the contention of Mr. Banerjee cannot be accepted.
13. The next point for consideration is whether the Governing Body of the State Medical Faculty was justified in cancelling the entire examination in Anatomy held in the June term of 1951. It appears from the Minutes of the proceedings of the emergent meeting of the Governing Body held on 25-7-1951 that the Governing Body in coming to the decision relied entirely on the individual Reports of the Examiners in Physiology and Anatomy and upon certain Reports of the Inspectors about the conducting of the examinations. There was no joint report of examiners as required by the Rules. The Governing Body did not hold any independent enquiry. The Report of the examiner in Anatomy shows that the Examiner found three sets of answers with exactly the same language and as many of the students could not answer the same questions in oral examination he entertained strong suspicions that the written papers were copied from three sets of slips brought from outside. The minutes of the meeting of the Governing Body show that there was a further scrutiny of the answer papers and it was found upon such scrutiny that most of the answers were verbatim the same in language and other details as in certain pages of Grey's Anatomy. Mr. Binayak Banerjee went to the length of suggesting in course of his argument that the petitioner's answers were also verbatim reproduction of certain passages of Grey's Anatomy and even the punctuation marks are the same. Upon such suggestion being made I expressed my desire to have a look into the answer paper of the petitioner (which was in Court) for satisfying myself as to the suggested similarity in language and the punctuation marks. My attention was drawn to a page in the Answer paper and to page 862 of Grey's Anatomy for satisfying me as to the exact similarity. I glanced through the particular page of the answer paper and the page in Grey's Anatomy but it did not appear to me that the answer was an exactly verbatim reproduction of Grey's passage or that the punctuations were in all respects absolutely identical. As has been pointed out in the affidavits the subject of Anatomy is a highly technical subject and the only book prescribed is Grey's book and it is, therefore, not at all unnatural that the candidates in order to get through the examination would try to commit to memory as many passages as possible of the Grey's Book.
14. It is quite possible that the candidates appearing in the Anatomy examination had anticipated some of the questions set in the examination and so they had committed to memory the particular passages in Grey's book or had committed to memory the language of the lectures given in school on such questions and this has resulted in the similarity of answers of the different candidates. It is clear from the Rules and Regulations framed for the conduct of the examinations that the examinations are conducted under the supervision of Presiding Officer, Inspectors, Convenor and Invigilators. It is an admitted fact that there was no detection of the adopting of any unfair means by any of the candidates during the examination and there was no case of expulsion. Rule 16 of the Rules for conduct of Examinations (page 115 of the Book of Rules and Regulations) provides for penalties in rases of detection of unfair means during an examination. There is no specific rule fop cancellation of the entire examination on the ground of suspicion as to adoption of unfair means, though I do not deubt that where a case of unfair means is established the Governing Body is entitled to take such action as it may reasonably decide to take even though there is no detection during the actual holding of the written examination of adoption of any unfair means. The minutes of the Governing Body show that the Inspectors reported that there was no proper invigilation. The Reports of the Inspectors have, however, not been placed before the Court nor is there any affidavit by the Inspectors or the Examiners. The report of the examiner in Anatomy states that 'many of the students could not answer the questions set in the written paper in their oral examination' thereby suggesting that some of the candidates did not fare in the same manner in the oral examination. The petitioner and six other candidates who got marks between 60 per cent, to 80 per cent, in the oral examination (See Roll Nos. II, 19, 36, 40, 42 (petitioner), 47, 54) were perhaps among the very few who according to the examiner did not fare as miserably as the other candidates, but there is no definite material before the Court to show whom the examiner had in mind as falling within the exception.
15. The decision of the Governing Body seems to have been taken on the Report of the Examiner based on pure suspicion. But it appears that no inquiry was held nor any opportunity was given to the candidates who were being condemned, to offer any explanation or make any representations against the charge of adoption of unfair means which was levelled against them. The learned Advocate for the opposite parties placed reliance on the decision of the Judicial Committee in -- 'V. Nakkuda Ali v.. M. F. De S. Jayaratne', (1951) 1 A C 66 (PC) and submitted that as there was a cloud of suspicion in the matter, the action of the Governing Body was justified. It may be noted, however, that in that case the person charged had been given ample opportunities to dispel the suspicion but he failed to do so. At page 82 Lord Radcliffe made the following observation:
'The appellant was informed in precise terms what it was that he was suspected of and he was given a proper opportunity of dissipating the suspicion and having such representations as might aid him put forward by counsel on his behalf. In fact the explanation he did offer was hardly calculated to allay the respondent's suspicions; probably it confirmed them......But failing explanations from him on points such as these, a heavy cloud of suspicion remained; and if the respondent felt bound to act on this suspicion, it was not because he had some to entertain it through any denial of natural justice or without reasonable cause, but because the appellant himself either could not or would not, produce the explanation that would have dissolved it.'
16. It appears to me that in the facts and circumstances of the case before me the Governing Body did not act reasonably in not giving an opportunity to the candidates to allay the suspicion entertained by the examiners and the Governing Body as to the adoption of unfair means by the candidates appearing in the June Term examinations. The principles of natural justice were not observed in this case. It may be that the Governing Body or the Board of Studies acted in good faith but that is not enough to justify their action. They were under a duty to exercise their powers reasonably and with due care and caution. This they have failed to do. See -- 'S.K. Ghose v. Vice Chancellor of Utkal University', : AIR1952Ori1 at p, 7. The facts and circumstances of this case before me cast a duty upon the Authorities to investigate into the individual cases of the different candidates so far as the examination in Anatomy was concerned and to find out which of the candidates had actually adopted unfair means in such examination. A sweeping decision to cancel the entire examination does not appear to have been justified in the facts of this case. The candidates were entitled to have an opportunity to explain before their examination could be cancelled. In the case of --'Cooper v. Wandsworth Board of Works', (1863) 14 C B (N'S) 180: 143 E R 414, Byles J. at page 420 of the English Report observed as follows:
'It seems to me that the Board are wrong whether they acted judicially or ministerially. I conceive they acted judicially because they had to determine the offence, and they had to apportion the punishment as well as the remedy. That being so, a long course of decisions beginning with Dr. Bentley's case and ending with some very recent cases establish that, although there are no positive words in a Statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the Legislature. The judgment of Fortescue J. in 'Dr. Bentley's case', is somewhat quaint, but it is very applicable and has been the law from that time to the present. He says, 'The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. 'Adam' (says God) 'Where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also'. There has been neither notice of the one sort nor of the other; and it seems to me, therefore, that, whether the Board acted judicially or ministerially, they have acted against the whole current of authorities, and have omitted to do that which justice requires and contravened the words of the Statute' (See also the judgment of Earle C. J. pages' 417-418).
17. In -- 'Dawkins v. Antrobus', (1881) 17 Ch D 615 at p. 630, Brett L. J. made the following observation:
'In my opinion, there is some danger that the Courts will undertake to act as Courts of appeal against the decisions of members of ' clubs whereas the Court has no right to sit in appeal upon them at all. The only question which a Court can properly consider is whether the members of the club, under such circumstances have acted ultra vires or not and it seems to me the only questions which a Court can properly entertain for that purpose are whether anything has been done which is contrary to natural justice, although it is within the rules of a club, in other words, whether the rules of the club are contrary to natural justice; etc.......at page 53.
'The first thing then is whether there was anything contrary to natural justice. If a decision was come to depriving a gentleman of his position on such a charge as must be made out here, namely that he has been guilty of conduct injurious to the character and interests of the club, in my opinion, there would be a denial of natural justice if a decision was come to without his having an opportunity of being heard.' (See also --'Hopkins v. Smethwick Local Board', (1890) 24 Q B D 712 at p. 716 per Lord Esher; --'Wood v. Wood', (1874) 9 Ex 190 at 196; --'Ambalal Sarabhai v. Phiroz H. Antia', AIR 1939 Bom 35 and -- 'M. S. Ezra v. Mahendra Banerjee', 51 Cal W N 612).
18. In my view this petition should succeed and the Rule is made absolute to the extent that the opposite parties are directed to invoke the order of cancellation of the entire examination in Anatomy held in June, 1951, and the order that the petitioner is to appear in all the three subjects at the ensuing examination. The opposite parties will be at liberty to enquire into the individual case of the candidate concerned and after such enquiry they will takesuch steps as they are entitled to take in accordance with law. The petitioner is entitledto costs of the present proceeding. Hearingfee is assessed at two gold mohurs.