The Board Of Examiners v. Provas Chunder Roy

Jenkins, C.J:— This Appeal arises out of an application under Chap. VIII of the Specific Relief Act. Sec. 45 of that Act enables this Court to order public servants and others to do certain Specific Acts, and sec. 46 indicates how the application is to be made and the procedure thereon. The present applicant is one who was examined last year for the Pleadership Examination, and in connection with that examination he was found to have been guilty of grave misconduct. Notwithstanding this he now seeks to be admitted to this year's examination, and, his claim being disallowed, he has presented a petition under sec. 45 of the Act. He has succeeded in obtaining an order in these terms, “That the Board of Examiners do entertain and consider the application of Provas Chandra Roy and determine his fitness according to their discretion”. From that order what has been called the Board of Examiners—that, I presume, means the Examiners—have appealed: and at the outset it is urged that this application must fail as it is opposed to the terms of the Specific Relief Act, and as the order is at variance with that for which the applicant prayed and with the Rule that issued.

By his petition the applicant prays for an order that the Board of Examiners acted illegally in not publishing the Petitioner's name in the list of successful candidates, that is the list of the successful candidates at last year's examination: next, that it may be declared that the Petitioner has passed the Pleadership Examination in 1912, that his name should be gazetted as a successful candidate, or, it may be declared that the order of November 1912 appearing in the Calcutta Gazette of the 27th November, 1912 which was passed by the Board of Examiners of the Pleadership and Muktearship Examinations or by the Local Government is illegal and ultra vires: and finally that it may be declared that the Board of Examiners have acted illegally in not entertaining the Petitioner's application and his certificates of character and not allowing him to appear at the ensuing Examination for 1913. Not one of these prayers is justified by the terms of the Act, and this application must have been drawn up without reference to the relevant sections. They are clear in their terms: sec. 45 enables the Court to make an order requiring any specific act to be done or forborne and nothing else: sec. 46 provides that the application must be founded on an affidavit of the person injured stating his right, his demand of justice and the denial thereof. All this has been completely disregarded not only in form but in substance. But on these materials the applicant obtained a Rule in these terms:—“It is ordered that the Board of Examiners for Pleadership and Muktearship Examinations being served with this order on or before the eighteenth day of January instant do on Wednesday the twenty-second day of January instant at the hours of eleven o'clock in the forenoon show cause before this Court why they should not publish the name of Provas Chandra Roy in the list of successful candidates of the last year's Pleadership Examination or why the said Provas Chandra Roy should not be allowed to appear at the next Pleadership Examination, he having fulfilled the conditions necessary under the law qualifying him to appear at such Examinaiion”. At the hearing of the Rule an order was made in the terms I have stated. That order is at variance with the prayers in the petition and with the Rule that was granted. But in dealing with an application under Chap. VIII of the Specific Relief Act, the principles applicable to a writ of Mandamus should, generally speaking, be followed, and it was Laid down by the Privy Council in. The Bank of Bombay v. Suleman Somji that one of the principles is that the writ will not be allowed to issue unless the applicant shows clearly that he has the specific legal right to enforce which he asks for the interference of the Court, that he has claimed to exercise that right and none other, and that his claim has been refused. This is in substantial accord with sec. 46 of the Act. When it was put to the learned Counsel who appeared for the Petitioner whether he could point to the prescribed demand of justice, and the denial thereof, it was admitted, that it was only by a very liberal reading of certain passages in the petition that any suggestion of that demand and denial could be made. Even if we could, I do not think we should, overlook these defects. The present applicant is not a person in whose favour we ought to strain the jurisdiction that has been invoked. It is an inadequate description to say he does not come to the Court with clean hands; he admits his own turpitude and comes here with peculiarly dirty hands, so that I see no reason for making the slightest concession in his favour. In my opinion, it would be wrong to uphold the order that has been made, and I therefore hold that this Appeal must be allowed and the application dismissed with costs in both the Courts.

Hakington, J.:— I agree.

Mookerjee, J.:— I agree.

Mr. C.H Kesteven, Attorney for the Appellant.

Babu K.N Dey, Attorney for the Respondent.

Appeal allowed.