1. This is an application under Articles 226 and 227 of the Constitution of India for issuance of a writ quashing an order of the Bihar School Examination Board (hereinafter called the Board) expelling the petitioner from examination and withholding his result, and a writ calling upon it to declare the result of the petitioner.
2. The petitioner was one of the examinees at the Annual Secondary School Examination of 1975. According to him, the examination held on 10th March, 1975, in one of the papers, namely, Advanced Mathematics, of the centre from which he appeared was cancelled as a whole on the ground of adoption of unfair means on a large scale. There was, however, a re-examination in that subject held subsequently on 16th April, 1975. The petitioner says that he got a telegram to deposit his fee for this re-examination and to obtain the admit-card and thereafter appear thereat. He did all this and appeared at the examination. When the results were published, his result was withheld. He then made enquiry and was told by the Board that since he had been expelled from the examination having been caught red-handed while using unfair means he was not entitled to appear at the subsequent re-examination and his appearance thereat was of no consequence and hence his result was not published.
3. According to the petitioner as stated in his reply to the counter-affidavit, however, he was never expelled and in view of his having been allowed to appear at the re-examination, his result should have been published. It is urged that the decision of the Board to expel the petitioner from the examination was in violation of the principles of natural justice, no hearing having been given to him. Secondly, it is urged that the Board having allowed him to appear at the examination is barred by principle of estoppel, to ignore the result of his re-examination.
4. On behalf of the respondent, the examination Board, it is said that he had been caught red-handed using unfair means and expelled from the examination. His answer book and chit of paper from which he was copying out attached to his answer book bearing the endorsement that the petitioner was expelled, has been produced in Court. It is said that as a result of this expulsion, in view of Regulation 10 of the Regulations framed by the Bihar School Examination Board, 1964, the Superintendent had the right to expel him and he was thus debarred from appearing in the subsequent papers at that examination. It is said that in a case like this, there was no question of giving notice or personal hearing to the petitioner.
5. In view of the affidavit and the counter-affidavit and particularly the last one filed on behalf of the Examination Board producing the answer book of the candidate and the paper therein from which he was found to be copying on his answer book as also the report of the leader of the flying squad which found mass scale use of unfair means and who is alleged to have expelled 40 candidates, including the petitioner, the fact is proved beyond any doubt that the petitioner was also one of those candidates, who were caught red-handed while using unfair means at the examination and, therefore, expelled. It appears from the report that the invigilators at the examination were also co-operating with the examinees in use of unfair means and that the examinees were using slips and papers on a very large scale. It is thus patent that the petitioner is guilty of having suppressed the fact in his writ petition which was very much to his knowledge. In his writ petition he said that he came to know for the first time from the Secretary of the Board and the clerk thereof that he had been expelled. This appears to be false. The petitioner being guilty of suppression of fact is not entitled to any writ from this Court. I would dismiss his petition on that ground alone.
6. There are, however, other reasons for the same. Regulation 10 says that the Superintendent shall have the power to expel a candidate from the examination if he is found guilty of using unfair means or misconduct and further that the Superintendent shall forthwith make a detailed report of such cases to the Secretary and such candidates shall not be allowed to appear in the subsequent papers, unless otherwise directed a by the Secretary. In the present case, therefore, the petitioner having been expelled from the examination was not entitled to appear at the subsequent papers. There was no direction by the Secretary to allow him to do so.
7. The next question which arises is whether the principles of natural justice would apply in a case of this kind. The prayer is that the order of expulsion may be quashed on the ground that the petitioner has not been given a hearing. The fact that he had not been given any hearing before he was expelled from the examination is not disputed. In the case of Smt. Shiva Rani Kumari v. President of Board of Secondary Education (AIR 1975 Pat 12). I had an occasion of considering at some length the question of application of the principles of natural justice. True, it is well settled that the principle applies to cases where an authority has to discharge judicial or quasi-judicial functions. In several cases the Supreme Court even held the principle of natural justice to be applicable even to administrative orders (See AIR 1967 SC 1269 : (1969) 2 SCC 262 : AIR 1970 SC 150). It is, however, well settled, as I said in the case of Smt. Shiva Ram Kumari that the question whether a particular rule of natural justice applies to a given case must depend to a great extent on the facts and circumstances of that case, the frame work of the law under which the enquiry is held and the constitution of the tribunal or body of persons appointed for that purpose. It is equally well settled that when violation of principles of natural justice is alleged the Court has to decide whether the observance of that rule was possible for a just decision on the fact of that case. To my mind, therefore, it cannot be stated as a wide proposition that the principle of natural justice would apply to all cases of administrative orders.
8. In the instant case, there is a regulation which entitles the Superintendent to expel from the examination any examinee whom he finds indulging in act of misbehaviour or using unfair means and the regulation further provides that such person shall not be allowed to appear at the subsequent papers of the same examination. I may repeat that for the purpose of finding out whether the principle of natural justice applies, it has to be found out as to how the rule and regulations are framed in the particular case. The question thus arises whether or not the act of expelling a candidate from an examination can be a judicial, a quasi judicial or an administrative act. There can be hardly any doubt that it is neither a judicial nor a quasi judicial act. This right has to be exercised by the Superintendent as soon as he finds for himself a candidate using unfair means in the examination. Once the right is exercised there is an end of it. If an examinee appearing at the examination is not allowed to appear thereat and is physically removed from the examination hall, it cannot be anything but an administrative act. Could such a rule have envisaged giving a notice to the examinee, of hearing him and then taking the action of expelling him from the examination hall? The answer is obvious. The order of expulsion which has to be passed at the moment on the existence of fact is effective at the very same moment or to be precise a few moments later cannot by any stretch of imagination be said to be a case where the examinee is to be given a notice of the charge and to be heard in defence. Looking at the regulation and the circumstances of the case of expulsion I have not the slightest doubt that the principle of natural justice has no application at all to a case like this.
9. Learned counsel for the petitioner has, however, placed great reliance on the decision in the case of Board of High School and Intermediate Education, U.P v. Ghanshyam Das Gupta (AIR 1962 SC 1110). The facts of that case were entirely different. It was not a case where the candidate had been expelled having been caught red-handed using unfair means at the examination. That was a case of cancelling the result of the respondents after the examination had been held and their results had been published. The order was, therefore, obviously passed long after the examination on certain allegations against the three students who were the petitioners in that case without giving them any opportunity of being heard in their defence. The decision given in that case was, therefore, upon the facts of that case, and is, therefore, of no avail to the petitioner. The decision of this Court in the case of Ajit Singh v. Ranchi University (AIR 1964 Pat 291), was referred to in the decision in the case of Board of High School and Intermediate Education, U.P v. Ghanshyam Das Gupta (AIR 1962 SC 1110) (Supra) was referred to. The facts do not appear in the judgment of the case of Ajit Singh (Supra) in respect of the manner in which the order was passed by the Syndicate debarring the petitioner of that case from appearing at any University examination but from what appears in the report it cannot be said to be a case where the examinees were found using unfair means and expelled from examination. That decision is also thus of no relevance to the instant case.
10. Learned counsel for the respondent has placed reliance on the decision of the Supreme Court in the case of Bihar School Examination Board v. Subhas Chandra Sinha ((1970) 1 SCC 648 : AIR 1970 SC 1269). In that case there was an adoption of unfair means by vast majority of examinees at a particular centre and the Examination Board had cancelled the examination as a whole and it was that order of cancellation of the examination that was being challenged on the ground of violation of the principles of natural justice. Hidayatullah, C.J, who delivered the judgment for the Court held that the principle of natural justice has no application to a case of that kind where the examination itself had been cancelled on the ground of a large scale use of unfair means. The learned Chief Justice distinguished the decision in the case of Board of High School and Intermediate Education, U.P (AIR 1962 SC 1110). In the instant case, the facts are slightly different from the facts of that case though similar in respect of the order of cancellation of the examination as a whole. The petitioner in the instant case is not really making a grievance against the order by which the examination as a whole was cancelled. His grievance is that he should not have been expelled without getting an opportunity of placing his case and it is that which is the point to be answered.
11. Reliance has been placed on behalf of the petitioner on an unreported decision of a Single judge of this Court in the case of Ashok Kumar v. The Bihar Secondary School Examination Board (C.W.J.C No. 1192 of 1975 disposed of on 12-9-1975 (Pat). It is true that the facts of that case were very much similar to the instant case. The learned Judge relying on the decision of the Supreme Court in the case of Board of High School and Intermediate Education (AIR 1962 SC 1110) (supra) ordered an enquiry by the Examination Board into the matter and for passing a fresh order after giving the petitioner a reasonable opportunity of being heard. With utmost respect to the learned judge, I do not read the decision of the Supreme Court in AIR 1962 SC 1110 (Supra) as laying down the proposition that in all such cases the rule of natural justice has to be applied. As I have said it has to be found on the facts of each case whether the principle of natural justice is applicable and this has to be found from the rules and regulations as well as whether they admit the application of principle of natural justice. I am, therefore, unable to rely on the Supreme Court decision for the purpose for which it was relied on by the learned judge. Again I say, with utmost respect, that regulation 10 which I have referred to earlier does not seem to have been placed before him for consideration. The decision in (1970) 1 SCC 648 : AIR 1970 SC 1269 (Supra) was referred to before the learned judge but he distinguished it on the ground that in the case before him, the petitioners bad been picked out as individual examinee on the charge of adopting unfair means.
12. There is another regulation which has not been referred to by me yet and that is regulation 18 of the aforesaid Regulations which provides that in any case where it is found that the examination has been violated by error, improper conduct, or other causes or where mal-practice, fraud, or act of indiscipline or use of unfair means are reported to have been resorted to, the Board shall have the power to cancel the examination or to withhold or amend the result in such case and to take such other action as it may deem fit. Reading, the two regulations, Regulations 10 and 18, it becomes obvious that Regulation 10 is a remedy to be resorted to immediately when the examinee is found to be using unfair means. That is the reason why the Superintendent of the examination has been given that power and it has certain result, namely, debarring the candidate from appearing in subsequent papers at the examination. On the other hand, Regulation 18 applies to a case where no action is taken immediately by way of expelling the candidate but after the examination is held, it is detected that the examination was violated by any of the reasons mentioned in the Regulation. In the latter case, of course, the determination of the question or of the allegation is done at a date subsequent to the examination and this order has got to be passed after considering materials. In such a case, it would be fair to hear the examinee in defence and in all the decisions on which reliance has been placed by the petitioner - decision of the Supreme Court in AIR 1962 SC 1110 (Supra) and the decision in AIR 1964 Pat 291, actions were taken subsequent to the examination. None of the cases except that of Ashok Kumar referred to earlier is a case where expulsion of the examinee had been ordered. Reading both the regulations it is easy to find out in which case principle of natural justice would apply and in which case not. As I have said earlier Regulation 10 does not permit by its very nature application of the principle of natural justice where as a case covered by Regulation 18 may admit the application of the principle.
13. For the reasons aforesaid in my considered view, the petitioner was not entitled to any hearing before the order of expulsion was passed at the time he was found using unfair means in the examination and the order cannot be quashed on that ground.
14. The second argument of learned counsel with regard to the Examination Board being estopped by the principle of estoppel is equally untenable. It is said that the Board had allowed the petitioner to appear at the re-examination of advanced mathematics. A telegram has been produced in support thereof. On behalf of the Board, it is said that the telegram was sent by mistake to the petitioner. It is said that only those persons who had not been caught red-handed and expelled on that ground had been allowed to appear at the re-examination in the same subject but those who were expelled were naturally not allowed to sit at any re-examination in the same paper or examination in other papers. It has also been alleged by the petitioner that he paid the examination fee and thereafter appeared at the re-examination. This fact is controverted by the Examination Board and it is said that he had never deposited the fee and had some how managed to sit at the examination. If the petitioner knew the fact, as he did, that he had been expelled from the examination along with several others, he is only trying to take advantage of a telegram sent to him by mistake. I have no hesitation in accepting the affidavit on behalf of the Board that it was by mistake.
15. As it appears, the examination as a whole had been cancelled and hundreds of telegrams must have been sent to different examinees to appear at re-examination. Perhaps, someone sending the telegram did not know that this petitioner was one of those who had been expelled and could not appear at the re-examination. There is no estoppel where some representation is made in a mistaken view of fact. Besides, it is equally well settled that a person knowing the true facts cannot take advantage of the principle of estoppel (See AIR 1965 SC 1812). This argument also must, therefore, be rejected.
16. In the result, I find that there is no merit in this application and it is accordingly dismissed. In the circumstances of this case, however, I would not make any order as to costs.
17. Petition dismissed.