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PETITIONER: BOARD OF HIGH SCHOOL & INTERMEDIATE EDUCATION, U.P. & OTHERS

       Vs.

RESPONDENT: KUMARI CHITTRA SRIVASTAVA & OTHERS

DATE OF JUDGMENT: 20/11/1969

BENCH: HEGDE, K.S. BENCH: HEGDE, K.S. SIKRI, S.M. SIKRI, S.M. MITTER, G.K. SHAH, J.C. GROVER, A.N.

CITATION:  1970 AIR 1039            1970 SCR  (3) 266

ACT: Natural  Justice-Board  of  examination  cancelling   result without of opportunity to candidate-Notice if necessary.

HEADNOTE: The respondent appeared in the Intermediate examination  and passed, but the appellant, instead of declaring her  result, addressed a letter on May 24, 1961, to the Principal of  the college  in  which  the  Respondent  was  studying,   making enquiries regarding the respondent’s attendance.   According to  the  regulations,  a candidate must attend  75%  of  the lectures  given  in  each subject.  The  Principal,  by  her letter dated June 14, 1961, replied that the respondent  was at  one  time short of attendance, that she  made  good  the ’shortage  in all subjects except one, but the  shortage  in that  subject  was due to the fact that  lectures  Were  not given in that subject the lecturer having been on leave.  By its  letter dated July 6, 1961, the appellant cancelled  the respondent’s  result  and  no  reference  was  made  to  the Principal’s letter in the appellant’s letter. The  respondent thereupon filed a writ petition  challenging the  appellant’s order cancelling the result, and  the  High Court allowed the petition. In appeal to this Court, HELD : The appellant should have given an opportunity to the respondent  to present her case and pursuade  the  appellant not to cancel her result. [269 C] Whether  a duty arises in a particular case to issue a  show cause notice before inflicting a penalty does not depend  on the authority’s satisfaction that the person to be penalised has no defence but On the nature of the order proposed to be passed.   In the present case, the impugned order imposed  a penalty  on the respondent as she was denied the  fruits  of her   labour,  and  when  passing  it,  the  appellant   was exercising quasi-judicial functions. [269 D-F]

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1191 of 1967. Appeal  by special leave from the judgment and  order  dated May  23, 1962 of the Allahabad High Court in Special  Appeal No. 592 of 1961. C. B. Agarwala and 0. P. Rana, for the appellants. The respondent did not appear. The Judgment of the Court as delivered by Sikri,  J. This appeal by special leave is directed  against the judgment of the Allahabad High Court whereby it  allowed the 267 writ  petition  file  by  the  respondent,  Kumari   Chittra Srivastava,  hereinafter referred to as the petitioner,  and quashed the impugned order but left it open to the Board  of High School and Intermediate Education, hereinafter referred to  as  the Board, to reconsider the case after  giving  the petitioner a chance to offer her explanation. The  facts  are not in dispute and the only  question  which arises  is whether in the circumstances the  petitioner  was entitled to an opportunity to represent her case before  the Board prior to the passing of the impugned order. The  relevant facts in brief are these.  The petitioner  was in  1959-60 session a student of Basant  Girls  Intermediate College,   Varanasi.   She  appeared  at  the   Intermediate examination  in  1960  but  failed.   She  then  joined  the Government  Inter  College for Girls at Jaunpur.   Her  name -was sent up for Intermediate examination to be held in 1961 by  the Principal.  She appeared in the examination but  her result was not declared by the Board.  On May 24, 1961,  the Board  addressed a letter to the Principal making  enquiries regarding  the attendance of the petitioner.   According  to the  regulations  framed by the Board no  candidate  can  be presented for the Intermediate examination unless he/she has attended  during two academical years 75% of lectures  given in  each subject in which the candidate is to  be  examined. In the case of a failed candidate, like the petitioner,  the percentage shall be calculated for one academical year,  but Regulation   5(xiii)  enables  the  head  of  a   recognised institution  to  condone the deficiency  in  certain  cases. This regulation reads "(xiii)  The  rule  regarding minimum  attendance  shall  be strictly  enforced.  The head of the recognised  institution may condone a deficiency in attendance of not more than (a)  ten days in the case of a candidate for the High School Examination; and (b)  ten lectures (including periods -of practical work,  if any)  given in each subject in the case of a  candidate  for the Intermediate Examination. All  cases  in which this privilege is  exercised  shall  be reported to the Director of Education as the Chairman of the Board. In  the  cases  of  failed  or  detained  candidates   whose attendance  of  one  year will be taken  into  account,  the shortage to be condoned shall be reduced to half." 268 The  Principal received the letter when on vacation  outside Jaunpur.   The  Principal replied on June 14,  1961,  saying that a proper reply to paragraphs 1 and 2 of the letter will be sent after July 8, 1961.  She, however, stated "When  Km.  Chitra Srivastava absented herself for a  pretty long  period  on account of her illness, the  position  :was explained  to her, besides informing her guardian  also  who was  even  called  to the office  and  acquainted  with  the circumstances.   At  that time, it was possible for  her  to

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make good this shortage by her regular attendance. The teacher in Home Science took leave in February, 1961. Chitra  was short in attendance in other subjects also,  but she made good the shortage by her regular attendance.  When, during  the  days the classes were held, lectures  in  other subjects were held and the girl attended there, it was,  not considered  proper  to  detain her  from  appearing  at  the examination  on  account of her absence from lectures  in  a subject in which the required lectures were not held. I  got  the  student admitted to the examination  as  I  was confident that the officers of the Board will agree with  my view." The  substance  of  the  letter was  that  the  shortage  in lectures was due to the lecturer taking leave. The Board was, however, impatient.  It is not clear  whether this  letter was received by the Board because no  reference to  it is made in the letter dated July 6, 1961.  The  Board wrote: "In  continuation of this office letter No. E.I./617,  dated 24th May, 1961 and telegram dated 24th May, 1961 1 have  the honour  to  inform that you have not furnished  the  desired information  about the student Km.  Chitra Srivastava,  roll no.  50452.  From your previous letter No. 143/E  dated  6th May,  1961,’ it is learnt that the admission of the  student by  you  to the examination. by condoning her  absence  from seven  lectures on the subject of Home Science was  contrary to rules.  Hence the student’s Inter Examination of 1961  is cancelled.   Kindly  communicate this to the  student  under intimation to this office."                             269 The  Principal replied on July 11, 1961, giving  details  of the  lectures  attended  and requested  that  the  order  be cancelled  and the severe punishment be not awarded  to  the petitioner. On  October 6, 1961, the petitioner filed a  petition  under Art. 226 of the Constitution challenging the impugned  order dated July 6, 1961.  Mathur, J., dismissed it summarily.  On appeal, Srivastava and Katju, JJ., allowed the petition,  as mentioned  earlier.  They were of the view that  the  Board, while cancelling the examination, acted in a  quasi-judicial capacity.   The  Board was "by  cancelling  the  examination inflicting  a penalty" and if opportunity had been given  to the petitioner to present her case she might have  persuaded the Board not to cancel the examination. The  learned counsel for the appellant, Mr. C. B.  Aggarwal. contends that the facts are not in dispute and it is further clear  that no useful purpose would have been served if  the Board had served a show-cause notice on the petitioner.   He says  that  in  view  of  these  circumstances  it  was  not necessary for the Board to have issued a show-cause notice-. We  are  unable to accept this contention.  Whether  a  duty arises  in--a particular case to issue a show  cause  notice before   inflicting  a  penalty  does  not  depend  on   the authority’s satisfaction that the person to be penalised has no  defence  but on the nature of the order proposed  to  be passed. We agree with the High Court that the impugned order imposed a  penalty.  The petitioner has appeared in the  examination and answered all the question papers.  According to her  she had passed.  To deny her the fruits of her labour cannot but to  be  called a penalty.  We are unable to  appreciate  the contention  that the Board, in "cancelling her  examination" was  not  exercising quasijudicial functions.   The  learned counsel urges that this would be, casting a heavy burden  on the Board.  Principles of natural justice are to some  minds

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burdensome  but  this price-a small price indeed-has  to  be paid if we desire a society governed by the rule of law.  We should not be taken to have decided that this rule will also apply   when  a  candidate  is  refused  admission   to   an examination.   We are not concerned with this  question  and say nothing about it. The learned counsel invites us to hold that the decision  of the Board was on the facts correct and that the Board had no power to condone the shortage of 2 lectures.  But we decline to  into these questions.  We are not sitting as a court  of appeal  and  it is for the Board to decide after  giving  an opportunity  to  the petitioner and pass such orders  as  it thinks  fit.   Whether  it  has the  power  to  condone  the shortage  of  lectures  is for it, at  least  in  the  first instance, to decide. 270 The  learned  counsel  further invites us to  say  that  the possible courses which the petitioner’s counsel had outlined before  the High Court will not be legal or justified.   The petitioner’s  counsel had pointed out that the  Board  could have been persuaded to adopt -some of the following courses "(1) To accept the explanation of the principal as valid. (2)  To  condone  the  shortage of two  lectures  which  the Principal could not condone.  The question whether the Board had  power  to condone shortage was raised in the  Board  of High   School  and  Intermediate  Education  Uttar   Pradesh Allahabad and others versus G. Vishwanath Nayar but was  not decided  and was left open.  It -is urged on behalf  of  the appellant  that  the  power  to  admit  a  candidate  to  an examination  vests  in  the  Board.  -The  Regulations  only provide  the extent to which shortage in attendance  can  be condoned by the heads of institutions.  There is nothing  in the  Regulations to limit -the power of the Board itself  to admit a candidate to an examination after condoning shortage which could -not be condoned by the head of the institution. (3)  After noting that a technical breach of rules had  been committed the Board or the Chairman may have decided not  to take any action. (4)  The  Board  may  have  framed  a  new  regulation  with retrospective  effect  either  permitting the  head  of  the institution to condone a shortage in a case like that of the appellant  or  permitting  the  Board  itself  to  make  the necessary condonation in such cases. (5)  The   Board   could   have   given   an   authoritative interpretation of the words ’lectures given’ in clause (iii) of regulation 5 of chapter XII and decided whether the words covered such cases where the students were present to attend the  lecture  but it could not be arranged because  of  some unavoidable reason." But,  like  the  High  Court, we  are  not  called  upon  to pronounce  on  their  legality or  appropriateness  at  this stage. In  the  result the appeal fails and is dismissed.   As  the petitioner (now respondent) is not represented there will be no order as to costs. V.P.S.                           Appeal dismissed. 271