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2004 DIGILAW 959 (PAT)

Chairman, Bseb, Patna v. Neha,Kundan Kumar,Rashmi Singh,Gopal Kumar

2004-09-14

NAGENDRA RAI, S.N.HUSSAIN

body2004
Judgment 1. The point involved in all the four letters patent appeals are same and as such they have been heard together and are being disposed of by this common order. The grievance of the appellants in all the four cases is that though they have appeared in the matriculation examination as private students through different schools, their results are not being published. 2. The learned single judge has allowed the prayer made by the writ petitioners-respondents on the ground that once the Bihar School Examination Board (hereinafter referred to as the Board) has allowed them to appear in the matriculation examination and they appeared, now it cannot enquire about the genuineness of the students and accordingly directed the Board for issuance of results within the time mentioned in the order. 3. The question for consideration is as to whether the Board under the Act or the Regulation possesses the power to enquire about the genuineness of the candidates and the matters regarding the necessary requisite preliminary examination, residential certificate, affidavit with regard to the age etc., after conclusion of the examination and publication of the result. 4. Admitted position is that the conduct of the examination is governed by the provision of the Bihar School Examination Board Act, 1952 and the regulations framed therein. Section 6 of Chapter II of the Act reads as follows: "The Board shall admit candidates to its examination and may disqualify any candidates to its examinations and may disqualify any candidates for presenting themselves for such examination for any reason which the Board considers to be adequate." 5. Regulation 3 under Chapter IV of the Boards Regulation 1964 speaks about the private candidates which runs as follows: "a) A candidate who has not attended any recognized secondary school as pupil at any time during one year immediately preceding the examination in which he wants to appear may be admitted to the Boards Secondary School Examination as a private candidate. b) Such private candidates as have not been resident in the State for at least one year immediately prior to the Secondary School Examination will not be permitted to appear at the Boards Examination, unless they are the sons or wards of Government servant transferred from another State within that period. b) Such private candidates as have not been resident in the State for at least one year immediately prior to the Secondary School Examination will not be permitted to appear at the Boards Examination, unless they are the sons or wards of Government servant transferred from another State within that period. c) In order to be eligible for appearing at the Secondary School Examination, such private candidates shall have to pass a preliminary test examination held at any Government secondary school or other secondary school appointed by the Director of Public Instruction for the purpose. d) Such candidates shall also have to produce a certificate of good conduct from a respectable person of the locality to the satisfaction of the head of the institution concerned. e) The private candidate shall have to register himself in the Board under article 22 of Chapter IV of this regulation." 6. Regulation 19 under Chapter V of the Boards Regulation 1964 reads as follows: "In any case where the result of the examination has been ascertained and published and it is found that such result has been affected by error, malpractice, fraud, or any other cause whereby an examinee has in the opinion of the Board been party to or privy to or connived at such mal-practice, fraud or improper conduct the Board shall have power at any time, notwithstanding the issue of the certificate to amend the result of such examinee and to make such declaration as it may consider necessary in that behalf." 7. The conjoint reading of the aforesaid regulations show that the regulations vest power in the Board that even after examination or after certificate being issued the Board has power to make an inquiry in case it is found that such result has been affected by mal-practice, fraud or any other cause as mentioned in the regulation 19 and take a decision. No doubt it is not mentioned that the decision is to be taken by the Board after giving an opportunity of hearing. But it is too late to argue now-a-days that the order can be passed by the Board behind the back of the candidates. It has to be read in the said regulation that the right of hearing is to be provided to the candidates before an adverse order is proposed to be passed against them. 8. But it is too late to argue now-a-days that the order can be passed by the Board behind the back of the candidates. It has to be read in the said regulation that the right of hearing is to be provided to the candidates before an adverse order is proposed to be passed against them. 8. Thus, it is held that the Board has power to make an inquiry even after examination in case misrepresentation or fraud as mentioned in the regulation 19 is found. 9. Accordingly, we are not agreed with the view taken by the learned single judge that the Board has no power to enquire into the matter after the examination is held. As such the order of the learned single judge is set aside. 10. Now coming to the facts of the present case, the writ petitioners-respondents were allowed to appear in the examination and it is said that they have been successful in the examination. Thereafter the Board received certain informations from the district headquarters and on that basis cancelled the examination. 11. In our view, such a cancellation is not possible for the simple reason that once the Board has allowed the candidates to appear in the examination and they appeared, their examination cannot be cancelled without giving them an opportunity of hearing. Accordingly, we dispose of these appeals with the following directions: Notice should be served upon the candidates concerned indicating the grounds for cancellation of the result within a period of 10 days through advocates appearing for the writ petitioners-respondents and thereafter they will file a show cause alongwith documents within 10 days and thereafter the Board will decide the matter within 10 days thereafter. It is for the Board to decide as to how it will dispose of the matter. For that we are not expressing our opinion. In case the petitioners-respondents do not file their show cause within the time granted as mentioned above, the Board is free to decide on the basis of the materials available on the record. In case it is not decided by the Board within the aforesaid time, it will be open for the writ petitioners-respondents to file a petition in these appeals for passing an appropriate order. 12. With the aforesaid directions these letters patent appeals stand disposed of.