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Purshottam Das Dulic... v. Board Of Secondary E...
Structured Summary of the Provided Opinion
Factual and Procedural Background
This petition under Article 226 of the Constitution of India was filed by the applicant Purshottam-das seeking a writ of mandamus directing the opponents (the Board of Secondary Education) to permit him to appear in the theory papers of the Board's Higher Secondary School Certificate / Pre-University Examination in the relevant year.
The petition was filed shortly before the examinations. The respondents initially were not prepared to argue, and thus agreed to allow the applicant to appear for the examinations on the condition that his results would not be disclosed if the petition failed. The practical examinations were held; the dispute is whether the opponents' initial refusal to permit the applicant to appear for the theory examinations was justified.
Relevant factual points advanced by the applicant: he passed Matriculation in 1958; he had appeared and failed the Pre-University Examination in 1959; he secured admission in October 1959 at Navin Vidya Bhavan and pursued the Pre-University course; he was allowed to sit for practical examinations in Physics and Chemistry on 18–19 March 1960; on 10 March 1960 he was orally informed by the Principal that the Board had decided not to permit him to sit for the theory examinations because he had not attended the minimum number of lectures and that under the rules any deficiency could not be condoned.
The respondents' position was that the applicant's late admission did not as of right make him eligible; that attendance must be calculated for a single academic session during which the school was open under the regulations contended by the respondents; that the Chairman's power to condone attendance deficiencies was limited and could be exercised only within prescribed bounds; that the applicant's deficiency exceeded the power of condonation; and that allocation of a roll number or permitting practicals did not necessarily entitle a candidate to sit for theory examinations because roll numbers are allotted early to facilitate printing and practical dates are fixed earlier.
Legal Issues Presented
- Whether the opponents' refusal to permit the applicant to appear for the theory papers of the Pre-University Examination was justified in light of the attendance regulations and the exercise (or non-exercise) of discretion to condone attendance deficiencies.
- Whether the Chairman's discretion to condone deficiency in attendance, once exercised (as argued by the petitioner), can subsequently be reversed by the Board.
- Whether the practice of permitting candidates to appear in practical examinations and allotting roll numbers before final scrutiny is consistent with Regulation 9 (Chapter XVI) which requires the Secretary to satisfy himself that a candidate has complied with all requirements for admission before furnishing an admission card.
- Whether attendance for eligibility should be calculated over two academical years (as contended by the petitioner under Regulation 5, Chapter XXIII) or for one academical year (as contended by the opponents under Regulation 8, Chapter XXIII) — the opinion raises but does not decide this question conclusively.
Arguments of the Parties
Applicant's (Petitioner's) Arguments
- The applicant had previously attended 75% of lectures before appearing for the 1959 Pre-University exam, and therefore need not again satisfy a fresh 75% attendance requirement.
- The Board wrongfully calculated attendance based solely on lectures delivered in the 1959–60 academical year at Navin Vidya Bhavan, rather than considering attendance over two academical years as per Regulation 5 of Chapter XXIII (1959 regulations).
- Regulation 5 and the Board's regulations permit condonation of attendance deficiency, and the Board had the power to condone any deficiency.
- By allotting him a roll number and permitting him to appear for practical examinations, the Board had already exercised its discretion in his favour, and was precluded from reversing that decision.
Opponents' (Respondents') Arguments
- The applicant's late admission did not entitle him automatically to eligibility or to condonation of attendance deficiency.
- Under the regulations the attendance must be calculated for one academical session during which the school was open (they rely on Regulations 5 and 8 of Chapter XXIII and contend Regulation 8 applies).
- The Chairman's power to condone attendance deficiency is limited in scope (vested in the Chairman and exercisable in exceptional cases on the Head's recommendation under Regulation 13 of the relevant Chapter), and the applicant's deficiency exceeded what the Chairman could condone.
- Allocation of roll numbers and allowing candidates to take practical examinations are administrative steps done early (to facilitate printing and because practicals are scheduled earlier); such preliminary steps do not by themselves entitle a candidate to appear in the theory examination because final eligibility is determined after scrutiny.
- Therefore, the applicant was not eligible to appear in the theory examinations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Scarf v. Jardine, (1882) 7 AC 345 | The law of election: where a party who has two remedies elects one and communicates that election in a manner that leads the opposite party to believe the choice has been made, the election is complete and the party is bound by it. | The court applied the election principle by analogy to administrative discretion: once the Chairman exercised his discretion (permitting practicals and allotting a roll number), that exercise represented a completed decision which the Board could not subsequently reverse; the discretion in relation to that specific matter was thereby exhausted. |
Court's Reasoning and Analysis
The court framed several subsidiary regulatory questions but proceeded to dispose of the petition on a narrower ground grounded in the nature and finality of the Chairman's exercise of discretion.
Step 1 — Scope of subsidiary regulatory questions: The court noted discussion about whether a failed candidate must again pursue a regular course of study and whether attendance should be measured over one or two academical years. It observed Regulation 13 of Chapter XVI requires a failed candidate to satisfy the Board on each subsequent occasion that he has fulfilled regulatory conditions. The court declined to decide conclusively whether attendance must be calculated over two academical years (Regulation 5) or one academical year (Regulation 8), finding Regulation 8 to have prima facie no applicability and Regulation 5 unclear on a temporal point.
Step 2 — Discretion to condone attendance and the effect of its exercise: The court held that the Chairman had the discretionary power to condone attendance deficiencies and that such discretion must be exercised (i.e., the Chairman is under an obligation to exercise his discretion one way or the other when moved to do so). Once exercised in favour of a candidate, the exercise of discretion is complete and the Chairman cannot, by exercising discretion a second time, alter that earlier decision.
Step 3 — Analogy to election and supporting authority: The court relied on the principle in Scarf v. Jardine (1882) (the law of election) by analogy, reasoning that the finality attaching to an unequivocal choice (in the private-law election context) applies with even greater force to an authority required to take a definite administrative decision: an authority must exercise its discretion reasonably, not arbitrarily, and when it has taken a decision that determination exhausts the discretion in respect of that matter.
Step 4 — Application to the facts: The court reasoned that by permitting the applicant to take the practical examinations and by allotting him a roll number, the opponents had effectively condoned any deficiency in attendance and determined his eligibility for the examination. The court placed weight on Regulation 9 of Chapter XVI, which requires the Secretary to satisfy himself that a candidate has complied with requirements before furnishing a card of admission and permitting the candidate to sit. The court concluded that the practice of routinely allowing all applicants to sit practicals before scrutiny, if it exists, cannot displace the legal effect of Regulation 9. The allotment of a roll number and allowing the practical examinations were treated as indicia that the Secretary/Board had satisfied itself of the applicant's eligibility.
Step 5 — Irrelevance of the point about new versus old regulations: The court held that whether the applicant was governed by old or new regulations was immaterial for present purposes because the fact of permitting practicals and allotting a roll number must be taken to imply that any deficiency was within the Chairman's power to condone and had been condoned.
Step 6 — Mandamus and the nature of the relief sought: The court observed that mandamus will not ordinarily lie to compel a public authority to exercise a discretion in a particular way if that discretion has been exercised reasonably within jurisdiction. But in this case the relief sought was not to compel a fresh exercise of discretion in a specific manner; rather it was to compel the opponents to give effect to a decision they had already taken in the exercise of their discretion. The court noted authority supporting that where a discretion is abused so as to work an injustice, it may be controlled by mandamus.
Holding and Implications
Core Ruling: The court held that the opponents were under an obligation to permit the petitioner to take the theory examinations when they had already allowed him to appear for the practical examinations and had allotted him a roll number. The court treated those acts as amounting to condonation of any attendance deficiency and as a final decision by the Board in the applicant's favour that could not subsequently be reversed.
Direct implications for the parties:
- The immediate consequence was that the opponents were required to permit the petitioner to sit for the theory examinations in accordance with the decision they had previously taken (as manifested by allotment of roll number and permission to appear in practicals).
- The court emphasised that the relief sought was to enforce the effect of a prior exercise of discretion, not to compel a fresh discretionary determination in a particular manner.
Broader implications:
The opinion reasons by analogy to established principles (the law of election) about finality of an executed choice and underscores that an administrative authority which is obliged to exercise discretion must do so and be bound by that exercise as regards the particular matter; however, the opinion does not purport to lay down a novel rule beyond applying those principles to the facts. The opinion contains no explicit statement that it is creating a new precedent beyond the application of existing authority to these facts.
1. In this petition under Article 226 of the Constitution of India the applicant Purshottam-das seeks a writ of mandamus directing the opponents to permit him to appear for the examination conducted by the Board of Secondary Education for the Higher Secondary School Certificate (hereinafter referred to as Pre-University Examination) this year.
2. This petition was filed a few days before the commencement of the examination. We were anxious that the petition should be heard and disposed of before the examination began. But as the respondents were not prepared to address arguments within the short time at their disposal, they rightly agreed to allow the applicant to appear for the examination on the condition that the result of his performance in the examination would not be disclosed in the event of this petition failing. The examination has now been held, and the question for determination is whether the opponents' refusal to permit the applicant to appear for the examination was justified.
3. The petitioner's case is that he passed the Matriculation Examination conducted by the Board in 1958. In 1959 he appeared for the Pre-University Examination of the Board but failed in it. Thereafter he was trying to secure admission in any of the colleges teaching Science but was unable to secure admission till the end of September, 1959. In October, 1959 he secured admission in the Navin Vidya Bhavan and pursued in that institution the Pre-University course. He sent his application for examination in due course and was allowed to take practical examinations in Physics and Chemistry held by the Board on 18th and 19th March. 1960. On 10th March, 1960 he was orally informed by the Principal of the Navin Vidya Bhavan that the Board had decided not to permit him to appear for the theory examinations as he had not attended, the minimum number of lectures delivered in his subjects for qualifying himself for the examination and that under the rules in force the deficiency in his attendance could not be condoned.
4. The applicant contends that having already attended seventy-five per cent of the lectures delivered before he appeared for the Pre-University examination in 1959 it was not necessary for him to fulfil again the requirement about seventy-five per cent attendance; that the Board was wrong in calculating the attendance on the basis of the number of lectures delivered only in one academical year 1959-60 at the Navin Vidya Bhavan; that under Regulation 5 of Chapter XXIII of the regulations framed by the Board in 1959 the attendance had to be calculated on the basis of the lectures delivered during two academical years in classes X and XI that under the regulations the Board had the power to condone any deficiency in the attendance; and that even if the attendance fell short of the minimum required, the Board having allotted him a roll number for the examination and allowed him to appear for the practical examinations in Physics and Chemistry had already exercised its discretion in the matter of condoning the deficiency in attendance and was therefore precluded from reversing the decision already taken in exercise of its discretion.
5. The reply of the opponent is that the petitioner's late admission in Navin Vidya Bhavan did not ipso facto make him as of right eligible to the admission or entitle him to a condonation of the deficiency in his attendance; that under regulations 5 and 8 of the Regulations contained in Chapter XXIII the attendance had to be calculated for one academic session during which the school was open; that the power to condone deficiency in the prescribed percentage of the attendance was vested in the Chairman of the Board and he could condone the deficiency If it was within the permissible limits in exceptional cases on the recommendation of the Head of the Institution under regulation 13 of Chapter; that the applicant's deficiency in attendance exceeded the deficiency which the Chairman was empowered to condone; and that, therefore, he was not eligible to appear at the examination.
It has been further averred in the return that allocation of roll numbers to the candidates for admission to the examination is done a long before the examination starts to facilitate the printing of lists of examinees and that the allotment of roll number does not by itself entitle a candidate to appear at the examination. It is not denied that the applicant was allowed to take practical examinations. The opponents further submitted that the dates for the practical examinations are fixed long before the theory examinations starts and that as a matter of course all candidates who have sent application forms for examination are allowed to appear for the practical examination and they take practical examinations before their application forms are scrutinised and are finally admitted for examination According to the respondents, the fact that the applicant was allowed to appear for the practical examination did not, therefore, preclude them from determining the eligibility of the applicant for the examination.
6. There was considerable discussion at the bar on the question whether a candidate who has pursued a regular course of study and has appeared for examination once and has failed thereat is again required to follow a regular course of study if he wishes to re-appear for the examination. Regulation 13 of Chapter XVI, however, lays down that a candidate who has failed in an eaxamination may present himself for one or mote subsequent examinations, provided that he shall on each and every such occasion satisfy the Board that he has fulfilled the condition laid down in the Regulations for the admission of candidates to the Board's examination. It would, therefore, appear that a failed candidate can appear for the subsequent examination if he pursues again a regular course of study. It does not, however, seems to be necessary for us to decide this question conclusively or the question whether the attendance has to be calculated in accordance with regulation 5 contained in Chapter XXIII on the basis of attendance in two academical years or, as contended by the opponents, in one academical year under regulation 8. Regulation 8 has prima facie no applicability. "Regulation 5 does not give a clear indication whether the required attendance should be in the two academical years immediately preceding the examination.
7. The petition can, however, be disposed of on the short ground that it was in the discretion of the Chairman to condone the deficiency in attendance of any candidate and that discretion having been already exercised in favour of the petitioner by permitting him to appear at the practical examinations, it was not open to the Board to disallow him from taking examinations in theory subjects. Under the Regulations the Chairman is under an obligation to exercise one way or the other his discretion in the matter of condonation of the attendance when moved to do so. When in the exercise of his discretion he has taken a decision in the matter of condonation of deficiency in attendance, then the Chairman is under an obligation to act according to the decision taken by him. The exercise of discretion in a particular manner in the matter of condonation of deficiency in attendance is complete when if has been exercised once. After having exercised the discretion once, the Chairman does not retain the liberty to alter the decision taken by him by exercising his discretion a second time. The matter of exercise of discretion I is analogous to the exercise of election.
Now, as pointed out by Lord Blackburn in Scarf v. Jardine, (1882) 7 AC 345, when a party who has an option of following one of two remedies writes down that he will choose one particular remedy, that alone will not bind him; but as soon as he has not only decided to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not if he has done an unequivocal act, which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way, and that is election. He is not bound to elect. But if he did elect he is concluded by it and is bound by it.
The principle laid down in this case would apply with greater force here. In the case of an election of two remedies, the party's choice is not fettered. Where an authority is required to take a decision in exercise of its discretion, the discretion has to be exercised reasonably and discreetly and not arbitrarily. The vesting of discretionary power pre-supposes that the person to whom it is given is discreet. Again in the case of election, a person is not bound to elect. Here the Chairman was under an obligation to exercise his discretion one way Or the other. He could not just refuse to act at all. When, therefore, the Chairman has taken a decision in exercise of his discretionary powers, his discretion in relation to that particular matter is exhausted and he cannot again claim to revise his decision already taken by exercising his discretion a second time.
8. Now, here it must be taken that when the opponents permitted the petitioner to take practical examination they condoned the deficiency in attendance of the applicant, if there was any, and found him eligible for the examination. The argument that all candidates applying for examination are as a matter of course allowed to appear at the practical examinations and the scrutiny of their application forms is done subsequently cannot be accepted for the reason that regulation 9 of Chapter XVI expressly lays down that the Secretary shall, after satisfying himself that a candidate has complied with all the requirements for admission to an examination, furnish him with a card of admission and on presentation of that card the candidate shall be permitted to sit for the examination.
It is clear from regulation 9 that a candidate cannot be allowed to sit for the examination unless the Secretary has satisfied himself that he has fulfilled all the requirements for admission to the examination. There is thus no justification for the practice, if any be such existing, of permitting candidates to take practical examination as a matter of course. Such a wrong practice cannot displace the legal effect of regulation 9 which is that if a candidate has been allowed to appear in any subject in the examination, it must be taken that he has fulfilled all the requirements for admission to the examination. In the present case, the applicant was not only allowed to appear in the practical examination but he was also allotted a roll number for the examination. It is difficult to see hew a roll number could have been allotted to him if the Secretary had not satisfied himself with regard to the points mentioned in regulation 9- The filling in of admission cards and their actual issue to the candidate is merely a formality after the allotment of roll numbers.
9. Much was made by the opponents of the fact that the applicant was governed by new regulations which came into force on 1st November 1959 and not by the old regulations, and that under the new regulations the power of the Chairman to condone the deficiency in attendance was limited up to a particular period and the deficiency in the applicant's attendance far exceeded the limit which could be condoned. It is immaterial whether the applicant was governed by the new regulations or by the old ones. The fact that the applicant was allowed to appear for practical examination and was allotted a roll number must be taken as having the necessary implication that the deficiency in the petitioner's attendance was such which could be condoned and Was condoned under the regulations which were applicable to him. Therefore, if the new regulations applied to him, then it must be taken that the deficiency in the applicant's attendance was such which was within the power of the Chairman to condone.
10. For all these reasons, we are of the opinion that the opponents were under an obligation to permit the petitioner to take theory examination when they had allowed him to appear for the practical examinations in Physics and Chemistry and when he had been allotted a roll number. It is no doubt true that mandamus does not lie where the duty is clearly discretionary and when the party upon whom the duty rests has exercised the discretion reasonably and within his jurisdiction. But the present case is not one where the applicant seeks mandamus to compel the opponents to exercise their discretion in a particular manner. The mandatory direction that is sought is for compelling the opponents to act according to the decision they have already taken in exercise of their discretion. There is good authority in support o£ the proposition that where a discretion is abused so as to work injustice it can be controlled by mandamus.
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