S.K. Katriar, J.
1. Heard Mr. Vaidehi Raman Prasad Singh for the petitioner, learned junior counsel to Government Pleader No. VIII for respondent No. 1 (The State of Bihar), and Mr. J.P. Shukla for respondent Nos. 2 and 3 (Bihar School Examination Board and its functionaries).
2. Two petitioners have joined this writ petition to set aside letter No. 5415, dated 7.11.2001 (Annexure 12 series) to the extent it concerns the petitioners and for a further direction to the Bihar School Examination Board (hereinafter referred to as the 'Board') to issue marks-sheets and the certificates of the petitioners, results whereof have already been published.
3. According to the writ petition, the petitioners had appeared at the Matriculation Examination of 1999 held by the Board as a private candidates of N.K. High School, Brahampur, Masaurhi, district Patna. Petitioner No. 1 (Ajit Kumar) was allotted Roll No. 938, and petitioner No. 2 (Dip Himanshu Dip) was allotted Roll No. 937. Their Admit-cards are marked Annexure-3 series. Whereafter results were published and the names of the petitioners figured amongst the successful candidates. However, by the impugned order dated 7.11.2001, the Board has cancelled the result of all the private candidates of the school in question on the ground that they had not appeared at the pre-test examination. Hence this writ petition.
4. While assailing the validity of the impugned action, learned counsel for the petitioners submits that the Board could have raised this objection at the time of scrutiny of their applications forms forwarded by the school and registration of the candidates. He relies on the judgment of a learned Single Judge of this Court dated 29.7.2002 (Annexure-13), passed on CWJC No. 5857 of 2002 Manoj Kumar Sinha and Ors. v. State of Bihar and Ors., analogous to CWJC No. 6197 of 2002 Ojasvi Nandan and Anr. v. Bihar School Examination Board and Ors..
5. Learned counsel for the Board has relied Regulation 3(c) of the Bihar School Examination Board Regulation 1964 (hereinafter referred to as the 'Regulation') which, it is submitted, mandates that in order to be eligible to appear at the Secondary School Examination, he must pass the preliminary test examination held by the school in question. He submits that this has been framed under Section 17 of the Bihar School Examination Board Act 1952 (hereinafter referred to as the 'Act'). Learned counsel for the Board has contended that he relies on the judgment reported in AIR 1986 SC 1490, A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr..
6. I have perused the materials on record and considered the submissions of learned counsel for the parties. Section 17 of the Act provides as follows :
'17. Power of Board to make regulations.--The Board may, after previous publication and subject to confirmation by the State Government, make regulations consistent with this Act and the rules made thereunder to provide for all or any of the following matters, namely :--
(a) the procedure to be followed in regulating the conduct of business at meetings of the Board and committees constituted by it under the Act;
(b) the conditions under which students shall be admitted to the examinations of the Board;
(c) the fees to be charged for admission to the examinations of the Board;
(d) the conditions and mode of appointment and duties of examiners and the conduct of examinations;
(e) the powers to be exercised by the Secretary under Sub-section (4) of Section 10; and
(f) all other matters which by this Act or the rules made thereunder are to be or may be provided by regulations.
It is thus manifest that the Board is empowered to frame Regulation under Section 17 of the Act wherein provisions can be made for admission to the examinations of the Board. In other words, the Regulations have been framed under the provisions of Section 17 of the Act.
Regulation-3 reads as follows :
'3. Eligibility of private candidate for Secondary School examination--
(a) A candidate who has not attended any recognised 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 Board's 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 Board's 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.
6.1. It is manifest that Regulation 3 is exclusively devoted to private candidates, Regulation 3(c) whereof lays down to the effect that in order to be eligible to appear 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.
6.2. The admitted position in the present case is that the entire batch of private candidates of the school in question were not required to appear at a preliminary test examination contemplated by Regulation 3(c), their applications were forwarded by the school to the Board, and the latter issued the Admit-cards to the petitioners who were allowed to appear at the examination. It is equally the admitted position that the result was finally published in which the names of the petitioners appeared as successful candidates. It is nobody's case that any fraud, mis-representation or the like is attributable to the petitioners. After publication of the results, the petitioners appeared at the Intermediate Science Examination held by the Bihar State Intermediate Council and have successfully completed the same, whereafter they were called for a test by Central Airmen Selection Board. In that view of the matter, I agree with the contention advanced by learned counsel for the petitioners that the present case is squarely covered by the aforesaid judgment of a learned Single Judge of this Court; the relevant portion of which is set out hereinbelow for the facility of quick reference :
'Admittedly in the present case after declaration of the result of the petitioners their mark-sheets have been issued, they have utilised those marks-sheets to get admitted in the Intermediate course which they have successfully completed, they are pursuing their Graduation, some of them have applied and are waiting to join service, now at this stage if one comes to the conclusion whether they had cleared the preliminary examination before sitting in the final examination as they were private candidates and if so, their result has been cancelled, to my mind may be technically correct but such order cannot be allowed to be passed, as equity weighs in favour of these petitioners. There is nothing on the record to show .that they had played fraud or had not appeared in the examination or those marks were not genuine and in view of the subsequent development when they had completed their Intermediate course and are doing Graduation, they cannot be thrown out on a technical ground. It was the duty of the Board to put its house in order first to see that such students are screened at the very threshold, their fees and forms are not accepted, they are not issued Admit-cards and are not allowed to appear in the Examination before they comply with the entire provisions as are required by the Regulation of the Board, which is mandatory in nature.'
6.3. The petitioners cannot be allowed to be punished for the mistakes attributable to the school, particularly the respondent Board. The Board is trying to cover up its own mistake by trying to punish the petitioners and, on the face of it does not appear to be a bona fide act. No explanation has come from the Board as to how and why they were registered for the Matriculation examination. No fault has been found with the examination that the petitioners took, nor with the answer-books. We are mindful of the position that the regulations are meant to be obeyed, but the Board by its own conduct has created a situation where the young petitioners are sought to be punished for no fault of theirs. The duty cast by Regulation 3(c) is entirely on the Board to scrutinise the applications and allow only appropriate candidates for registration. The judgment in A.P. Christians Medical Educational Society v. Government of Andhra Pradesh (supra) was rendered on an entirely different factual matrix and are inapplicable to the facts and circumstances of the present case.
7. In the result, this writ petition is allowed. The impugned order dated 7.11.2001 (Annexure-12 series), in so far as it concerns the two petitioners, is set aside. Respondent Nos. 2 to 4 are hereby directed to treat the petitioners as successful candidates of the examination in question, issue the marks-sheets, and the certificates on that basis. Let it not be taken as a precedent in future cases.
8. Let a copy of this judgment be handed over to learned counsel for the petitioners forthwith.