The Secretary, Bihar School Examination Board and Another vs Ehsan Ahmad Khan

Sarwar Ali, J.—This Letters Patent Appeal is directed against the decision of B. S. Sinha, J. in C. W. J. C. 1972 of 1978.

The relevant facts giving rise to this appeal may be compactly stated. The respondent (petitioner in the writ case) appeared at the annual examination of the Bihar Secondary School Examination in the year 1976 and was declared to have passed the said examination in the first division. After passing the examination he got himself admitted in C. M. College, Darbhanga in I. Com class. The Bihar Secondary School Examination Board (the ''Board'') received a letter from one Anil Kumar Verma alleging that the petitioner had passed in the examination by use of unfair means. Presumably on the basis of the said allegation the case of the petitioner was referred to the Unfair-means committee. A notice was issued to the petitioner by the Unfair-means committee asking him to show cause as to why his examination result should not be cancelled. The notice stated that on enquiry it had been found that the petitioner had sent out of the examination hall some of the leaves from the answer books which were answered by outsiders and the same were included in the answer book of the petitioner, The writings in those sheets were different from the writing of the petitioner. The petitioner appeared before the committee. He was asked , to write out some answers and read his own answer books. The committee found that the allegations as mentioned in the show cause notice were not substantiated. The Committee, however, in its report dated 26-12-1976 opined that in the opinion of the committee "there were some other types of irregularities" in the answer books, apart from those mentioned in the notice. Nothing happened for about a year. However on 26-11-1977 the petitioner received an other communication to show cause as to why the result of the petitioner by Secondary School Examination 1976 (annual) should not be cancelled. The petitioner filed show cause but did hot appear before the committee. There is some controversy between the parties as to when the petitioner had filed his show cause which is dated 6-12-1977. But that is not important in this case. The committee in its report dated 25-1- 1978 opined that the petitioner had used unfair means at the examination. This report of the committee was approved by the Chairman of the Board : on 9-2-1978. Thereafter a communique was issued in local daily newspaper; ''The Indian Nation'' dated 25-5-1978: stating that the result of the petitioner respondent as declared is cancelled under the provisions of Regulation 19 Chapter V of Bihar School Examination Board Regulations, 1964. The respondent-petitioner had prayed in the writ application for the quashing of the said communique which was Annexure 2 the writ application. The writ application was allowed and the impugned Annexure was quashed and set aside. 3. The learned single Judge held that. , although no time limit had been pre scribed for taking action under Regn. 19 aforesaid, yet the power under the said Regulation had to be exercised within reasonable time. On the facts of the case it was held that in the circumstances the action taken against the petitioner must be held to have been taken after unexplained and extraordinary delay.

Learned counsel for the appellants contended:

(a) That the power under Regn. 19 was an unfettered power. Consequently the Board was within its jurisdiction to cancel the result of the petitioner;

(b) That the decision of the learned single Judge is based on the decision of Madras High Court in Registrar, University of Madras v. Sundara Shetti AIR 1956 Mad 309. This case was distinguishable from the present case.

Regn. 19 is as fellows:--

"In any case where the result of the Examination has been ascertained and published and it is found that such re suit has been affected by error, mal practice, fraud, or any other cause whereby an examinee has in the opinion of the Board been party to or privy to or connived at such malpractice, fraud or improper conduct, the Board shall have power at any time, notwith standing the issue of the certificate to amend the result of such examinee and to make such declaration as it may consider necessary in that behalf."

Dealing with the import of the Regulation it was held in Madan Sharma Vs. The Bihar School Examination Board and Others, . "The Regulation aforesaid is only enabling and does not require that in every case where an error is detected the same should be corrected irrespective of the censequences and irrespective of the effect of such a correction on the career of a student who on the basis of a duly published result, and without any fault on his part has prosecuted his studies". This enabling provision, no doubt, does not fix a period within which the power under the Regulation has to be exercised. However, the power being discretionary must be exercised in a manner which is free from the vice of arbitrariness. Delayed action under Regn. 19 by itself does not amount, in my view, to arbitrary exercise of power. Suppose someone has been guilty of fraud. He has also been careful enough to see that the same is not discovered. But when it is discovered, I do not think the authorities would be debarred from taking action under Regn. 19 merely on the ground that the action is being taken after a lapse of consider able time. It all depends on the circum stances of each case. It is neither advisable nor possible to lay down situations when an action taken under Regulation 19 after lapse of a considerable time could be said to be arbitrary exercise of discretionary power. It all depends on the task in hand. Thus, if taking the totality of the circumstances into consideration, the court comes to the conclusion that the action taken by the authorities in exercise of power under Regn. 19 can be characterised as arbitrary exercise of discretion, it would be open to the court to strike down the action taken under the aforesaid Regulation.

In the instant case the allegations initially levelled against the petitioner were held to be unsubstantiated. There was no reason for the petitioner to think that further action was under contemplation. He joined I. Com. course. He was continuing his studies with the firm convictions that the Board had nothing against him and yet after a lapse of about a year another set of allegations were levelled against the petitioner, those circumstances and taking other relevant circumstances mentioned in the judgment the learned single Judge came to the conclusion that this delayed action taken by the Board was unreasonable. I am not persuaded to take a different view from the one taken by the learned single Judge in the peculiar circumstances of the instant case. The action taken by the Board was thus unsustainable in law.

So far as the decision in Sundara Shetti''s case AIR 1956 Mad 309 is concerned, the decision is, no doubt, distinguishable as the decision was based on the principle of legal or equitable estoppel. Indeed, the learned single Judge has not based his decision on this case. He has only referred to it as in his view the decision lends some support to the view taken by him that delay in taking action by the authorities concerned is a relevant factor to be considered. I do not, therefore, think that the decision in the instant case is based on Sundara Shetti''s case.

Learned counsel for the respondent relied on the decision of the Supreme Court in Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, . In this case the petitioner was permitted to appear at the examination after fulfilling the formalities. Later he was informed that since the percentage, of lectures which he had to attend was short, his candidature stood cancelled. This action was under challenge. It was held on interpretation of the relevant provision that this could not be done. The cancellation could only be before the examination. It was observed (at p. 380)". It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the appellant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear." The relevant clause of the Ordinance specifically stated that the provisional certificate given by the competent authority could be withdrawn at any time before the examination, if the applicant fails to attend the prescribed course of lectures before the end of his term. The power being, thus only exercisable before the examination, the Supreme Court held that the certificate could not be cancelled after the student had appeared at the examination. The principle enunciated in this case has no relevance so far as the present case is concerned.

I am, therefore, of the view that sufficient grounds do not exit for interfering with the decision of the learned single Judge. The appeal is accordingly dismissed, but in the circumstances without costs.

U.C. Sharma, J.

I agree.