Satish Chandra, J.:— The petitioner is employed as an Overseer in the Public Works Department of the State. He was to become eligible for promotion to the post of the Assistant Engineer (Junior Scale) after passing the departmental qualifying examination. The petitioner appeared in the examination in December 1962, but was declared to have failed. He applied for scrutiny after depositing the requisite fee. On 1-10-1963 the Chief Engineer informed the petitioner that all the totals had been rechecked by the official scrutiniser, Prof. R.S Chaturvedi and had been found to be correct. The petitioner on receiving the mark-sheet found that he has failed in the paper of Theory of Structure in which subject in the 1961 examination he had secured 89 per cent marks. Feeling-confident that there was some error in marking the answer book, he applied for re-scrutiny on 8-10-1963. Hearing no response he on April 18, 1964, sent a reminder to the Chief Engineer. On 16th June, 1964, the petitioner received a reply from the Chief Engineer stating that the petitioner's application for scrutiny had been considered and rejected.

2. It appears that before rejecting the application the Chief Engineer had referred the matter to another official scrutiniser Prof. S.R Singh, who was then Dean in the Roorkee University. Prof. Singh checked up the answer book and found that there were two, mistakes. One mistake was made in the totalling up of the marks of the various answer books in group III. The mark-sheet showed that total was 222, whereas on a correct calculation the total came to 213. He recommended that the mistake be rectified. The second mistake found by him was in relation to question No. 7 in the paper for Theory of Structure. He held that this question has been answered on a graph paper, but had unfortunately remained undetected and unmarked. He evaluated it and awarded 16 marks out of 20 to the petitioner for this question. The petitioner had obtained a total of 36 marks in this paper and adding 16 his total came to 52. Prof. Singh was of the opinion that the graph paper containing the solution of question No. 7 must have escaped the eye of the examiner as the way in which it had been placed inside the answer book at the end of the book, it could very easily get unnoticed. He recommended that the candidate must be given the benefit of this oversight and he should be declared successful as he cleared all the three groups. This report of Prof. Singh was placed before the Examinations Committee on 30th December, 1963. The Examinations Committee did not agree with Prof. Singh that the petitioner should be given the benefit of the marks awarded on question No. 7. In its report the Committee observed that the graph paper containing the solution to question No. 7 was folded and placed in the answer book in such a manner that it was possible to leave out marking of that question. Prof. R.S Chaturvedi, who was the first scrutiniser, was consulted by the Committee. He stated that “although he cannot say on oath, he had a feeling that he would have detected that graph paper, if it was there in the answer book at the time of scrutiny.” The Committee expressed an opinion that “in the way in which the graph paper had been attached at the end of the answer book, after leaving six blank pages, and the neat draughtsmanship of this particular question gives rise to a suspicion that it was probably placed afterwards. The award of the marks on this question subsequently given, should not be taken into account. The candidate will, therefore, be entitled to 36 marks as originally given in the mark-sheet.” It appears that the petitioner had in the meantime made a representation to the State Government. Whereupon, the State Government asked the Chief Engineer to make a detailed inquiry. As a result, these, proceedings appeared to have taken place. The petitioner's application for rescrutiny was not accepted. He was informed of the rejection of his representation on 13th June, 1968. On 2nd July, 1968, the petitioner was informed that he had been censured for having used unfair means at the examination and that an entry to this effect was made in his character roll.

3. The petitioner's grievance is that he has been held guilty of the charge of misconduct of using unfair means at the examination, without having been heard in the process. By now it is well settled that an authority cannot unilaterally take any action which is based upon an objection determination of facts and which adversely affects the right of the another. Such an action can be taken only after following the principles of natural justice.

4. As far back as 1962 in Board of High School and Intermediate Education, U.P Allahabad v. Ghanshyam A.I.R 1962 S.C 1110. the Supreme Court held that an action to penalise persons appearing at an examination for using unfair means should be taken consistently with the principles of natural justice and not unilaterly. They proceeded on the view that such an action involved a quasi-judicial determination of the allegations. Since then the Supreme Court has done away with the importance of the distinction between administrative and quasi-judicial functions. In State of Orissa v. Dr. (Miss) Binapani Devi A.I.R 1967 S.C 1269. it was ruled that even an administrative decision, which adversely affects rights of an individual, can be taken only consistently with the principles of natural justice, if the executive decision was dependent on an objective determination of facts. In other words, it was ruled that except in cases where the legislature has entrusted power on the executive to take action to its subjective satisfaction, it must act consistently with the principles of natural justice, if its actions are going to adversely affect the rights of others. The same view was reiterated by the Supreme Court in Dr. Bool Chand v. Chancellor, Kurukshetra University A.I.R 1968 S.C 292.. It was held that the power to appoint carried with it the power to determine the employment, but the power was coupled with a duty, and the duty was not to act arbitrarily. The power of termination could be exercised for good cause, that is to say, in the interest of the institution and only when it is found after due inquiry held in a manner consistent with the rules of natural justice that the holder of the office was unfit to continue. The court reiterated its view expressed in Binapani's case.

5. Jagdish Pandey v. Chancellor, Bihar University A.I.R 1968 S.C 353. is also a case very much in point. There the Bihar State Universities Act, 1962, did not lay down any specific procedure before the commission could make recommendation about the termination of the service of the teachers for charges of misconduct. Under Sec. 4 of the Act the Commission made recommendations, on which the Chancellor was to pass necessary orders. The Supreme Court held that the commission before making a recommendation, should hear the teacher concerned according to the rules of natural justice, because that was implicit in the provision. In the present case, the Examination Committee may not be strictly a statutory body, but it has power to take a decision which would adversely affect the chances of an overseer to become eligible for promotion to the next higher post. The right of the overseer to become so eligible for promotion, after passing the examination was being adversely affected by the decision of the Examination Committee. The Examination Committee acted upon a determination of the allegations of misconduct against the petitioner, objectively. There is nothing to indicate that it had to decide the matter to its subjective satisfaction. In this situation, it was incumbent upon the Examination Committee to have acted in accordance with the principles of natural justice and to have associated the petitioner in the inquiry into the allegations against him before reaching any conclusion. This was never done. The recommendation was, therefore, void.

6. Normally, I would have been content by quashing the impugned order and leaving the matter to the Examination Committee for a fresh investigation but the respondents have in paragraph 16 of the counter affidavit stated that the petitioner's answer book had been lost. Learned counsel for the parties state that now it will be very difficult for the examination Committee to re-examine the matter. In this situation, it is worthwhile to see whether the finding of the Examination Committee was, apart from the fact that it was made in violation of the rules of natural justice, sustainable.

7. The Examination Committee acted upon two circumstances. It relied upon the statement of the first scrutinizer Sri R.S Chaturvedi. He had stated before the Examination Committee that he was not prepared to say so on oath hut he had a feeling that he would have detected that graph paper, if it was there in the answer book at the time of scrutiny. There was no other material before the Examination Committee relating to the question whether the graph paper had been inserted in the answer book subsequently. The statement of Prof. Chaturvedi is neither categorical, nor unambiguous. He was not prepared to say on oath that the graph paper was not there when he had scrutinised the answer book, which means that he was not sure of himself. He had only a lingering feeling in the matter. In this respect, it will be seen that Prof. Chaturvedi had given a report that the totalling of the various marks in the mark-sheet was correct. Prof. Singh had pointed out that the totalling of the various papers in the group III was incorrect. The total had been mentioned as 222. Actually it should have been 213. It is evident that Prof. Chaturvedi's scrutiny had been faulty. He had failed to detect the mistake in the totalling of group III. His statement that he had a feeling about this graph paper could, therefore, not be given much weight. The charge against the petitioner was of a quasi-criminal nature. Normally, it should have required proof beyond reasonable doubt. Here we find that there was no material worth the name in support of the allegation that the graph paper was inserted in the answer book subsequent to the first scrutiny. It will be noticeable that Prof. Singh who did the second scrutiny did not express any suspension in this regard. He held that the examiner by an oversight failed to notice the graph paper and recommended that the candidate be given benefit of marks awarded by him. On this material it is difficult to hold that any reasonable man would have come to the conclusion that the graph paper was put in the answer book subsequent to the first scrutiny and, therefore, the marks awarded on it could not be taken under consideration. I he examination committee did not record a finding that the graph paper was put in subsequently. It recorded a finding that the facts gave rise to a suspicion in that behalf. On suspicions, penal action could not possibly be taken. It is apparent that the finding was without any evidence and was perverse.

8. The other point of view, which appealed to the Examination Committee, was that the solution given in the graph paper exhibited neat draughtsmanship. I fail to see what assistance could this circumstance give to the conclusion that the petitioner was not entitled to the benefit of marks on that question. There is nothing to indicate that the Committee examined the petitioner's hand-writing or draughtsmanship by comparing the same in question No. 7 with the rest of the answer books or with the answers in the same answer book. A mere look at the graph paper could not give rise to any suspicion whatsoever in this matter. Both the points of view which influenced the Examination Committee are without any material. The Examination Committee acted not only in violation of the principles of natural justice, but also without any evidence to deprive the petitioner of the marks legitimately awarded to him on question No. 7. If the marks on this question had been taken into consideration, the petitioner was bound to have been declared to have passed the examination. The declaration of the petitioner's result was, therefore, bad.

9. It is not necessary to interfere with the entry in the petitioner's character roll, because the petitioner has a right to make a representation against it. The petition succeeds and is allowed. The report of the Examination Committee and the action of the respondents in declaring the petitioner to have failed at the departmental examination held in 1962 are quashed. The respondents are directed to proceed on the basis that the petitioner had duly passed the said examination. The petitioner would get his costs.

10. Petition allowed.