Board Of High School &
Intermediate Education, U.P. & Other Vs. Kumari Chittra Srivastava &
Ors [1969] INSC 328 (20 November 1969)
20/11/1969 HEGDE, K.S.
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]
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 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 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.
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