IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.13182 of 2007 Ram Dayal Singh, Son of Yadunandan Singh, Resident of Village-Dumari, P.S.-Kaira, District-Chapra (Saran) ………. Petitioner. VERSUS 1. The State of Bihar. 2. The Commissioner-cum-Secretary, Human Resources Department, Government of Bihar, Patna. 3. The Director, Primary Education, Bihar, Patna. 4. The Regional Deputy Director of Education, Saran Division, Chapra. 5. The Secretary, Bihar School Examination Board, Patna. ……… Respondents. ------------- Counsel for the Petitioner : Mr. Rajendra Pd. Singh, Sr. Adv. Mr. Nawal Kishor Singh, Adv. Counsel for the State : G.A.-3 Counsel for the Board : Mr. Sunil Kumar Mandal, Adv. ------------- 03 05.02.2009 The petitioner had appeared in the Primary Teachers Training Examination conducted by the Bihar School Examination Board for the Session 1988-89, which was held in the year 1991. Petitioner appeared in all the papers but his results were not published, his was not a solitary case. He made several attempts to get his result published but failed. He was disclosed that the results could not be published as marks for Hindi (National Language) was not available. Petitioner then came to this Court and filed a writ petition being CWJC No. 4483 of 2006. The said writ petition was disposed of on 22.05.2007, whereby the petitioner was directed to make a representation before the Bihar School Examination Board (hereinafter referred to as the Board) for declaration of his result. Subsequently, petitioner’s result was declared showing him to be absent in Hindi paper. Petitioner asserted that this result is wrong, inasmuch as, in fact petitioner marks were not available and Board took a decision on 02.05.2006 and decided that candidates who have appeared in Board examination 10 years or ago 2 and their results were incomplete that results will not be declared passing in the subject because marks were not available. A counter affidavit has been filed by the Board where this position is not denied. In fact, it is admitted case of parties now that petitioner had appeared but for a section of students the Hindi answer books were went a miss. In absence of Hindi answer books tabulation register, both original tabulation register and duplicate tabulation register did not award any mark in Hindi nor did it record student being passing. Board to over come this situation has now taken a decision that wherever the results are incomplete in the manner aforesaid the student should be shown passing. This stand of the Board or this decision of the Board is in challenge because the result of this decision is that being passing in one paper a student cannot be deemed to be passed the course and having not passed the course the certification does not inured to his benefit. It is submitted is most arbitrary. Board is a statutory body and bound by statute. It is a statutory duty to perform. If it fails in performing the statutory duty and discharging its obligation in a lawful manner, the question is can it shift burden to the student and that too to the detriment of the students. Unfortunately, this Court cannot subscribe to this view. In the case of All India Groundnut Syndicate Limited, Assessee Vs. Commissioner of Income Tax, Bombay City since reported in A.I.R. 1954 Bombay 232 Justice Chagla said thus : …..But the most surprising contention is put forward by the Department that because their own officer failed to discharge this statutory duty, the assessee is deprived of his right which the law has given to 3 him under sub-section (2) of Section 24. In other words, the department wants to benefit from and wants to take advantage of its own default. It is an elementary principle of law that no person-we take it that the Income-tax Department is included in that definition-can put forward his own default in defence to a right asserted by the other party. A person cannot say that the party claiming the right is deprived of that right because “I have committed a default and the right is lost because of that default”………. I do not think that the law has since changed. What Board is trying to do in the present case is exactly what was disapproved by the decision aforesaid. The question now is what is to be done and to what relief is the petitioner entitled. Petitioner has categorically stated in the writ petition that there were at least four other students of the same batch whose results were not published for the same very reason. It is categorically stated that subsequently their results were published giving them average marks. In the counter affidavit in reply to the said assertion first it is denied that they were given average marks but it is not denied that initially their results were also not published. A most curious stand is taken that though in the original tabulation register no marks were found awarded, in duplicate tabulation register some marks were found shown and they were put on the results and the results are declared. The matter does not end there. The counter affidavit further admits that then the original tabulation register is corrected by taking entries from duplicate tabulation register, scandal most scandalous. 4 In my view, Board cannot play with the future of students in this irresponsible manner. The results declared by Board in such circumstances lose all authenticity, which is shame for a statutory authority conducting examinations as a State organization. In my view, as the petitioner has passed individually in each individual subject, the matter not in dispute, equity would be served by directing the Board to award petitioner bare minimum pass marks in Hindi. This is so because even if petitioner is awarded bare minimum pass marks his purpose is served, his marks sheet is complete, he is not shown as fail on account of being wrongly show as passing, he gets his due pay and scale in service. In my view, it is the only just and equitable solution to which this Court can arrive in the facts aforesaid. Let a writ of mandamus accordingly issued to the Board to act accordingly, as noted above and issue a fresh marks sheet to the petitioner. The writ petition is accordingly disposed of. Trivedi/ (Navaniti Prasad Singh, J.)