Case: Board of High School &amp; Intermediate Education, U.P. &amp; Others Vs. Kumari Chittra Srivastava &amp; Others

from appearing at the examination on account of her absence from lectures in a subject in which the required lectures were not held.I got the student admitted to the examination as I was confident that the officers of the Board will agree with my view."4. The substance of the letter was that the shortage in lectures wad due to the lecturer taking leave.5. The Board was, however, impatient. It is not clear whether this letter was received by the Board because no reference to it is made in the letter dated July 6, 1961. The Board wrote :"In continuation of this office letter No. E. I./617, dated 24th May, 1961 and telegram dated 24th May, 1961 I have the honour to inform that you have not furnished the desired information about the student Km. Chitra Srivastava, Roll No. 50452. From your previous letter No. 143/E dated 6th May, 1961, it is learnt that the admission of the student by you to the examination by condoning her absence from seven lectures on the subject of Home Science was contrary to rules. Hence the students Inter Examination of 1961 is cancelled. Kindly communicate this to the student under intimation to this office."6. The Principal replied on July 11, 1961, giving details of the lectures attended and requested that the order be cancelled and the severe punishment be not awarded to the petitioner.7. On October 6, 1961, the petitioner filed a petition under Article 226 of the Constitution challenging the impugned order dated July 6, 1961, Mathur, J. dismissed it summarily. On appeal, Srivastava and Katju, JJ., allowed the petition as mentioned earlier. They were of the view that the Board, while cancelling the examination, acted in a quasi-judicial capacity. The Board was "by cancelling the examination inflicting a penalty" and if opportunity had been given to the petitioner to present her case she might have persuaded the Board not to cancel the examination.8. The learned counsel for the appellant, Mr. C. B. Aggarwal, contends that the facts are not in dispute and it is further clear that no useful purpose would have been served if the Board had served a show cause notice on the petitioner. He says that in view of these circumstances it was not necessary for the Board to have issued a show cause notice. We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.9. We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned, with this question and say nothing about it.10. The learned counsel invites us to hold that the decision of the Board was on the facts correct and that the Board had no power to condone the shortage of 2 lectures. But we decline to go into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide.11. The learned counsel further invites us to say that the possible courses which the petitioners counsel had outlined before the High Court will not be legal or justified. The petitioners counsel had pointed out that the Board could have been persuaded to adopt some of the following courses :"(1) To accept the explanation of the principal as valid.(2) To condone the shortage of two lectures which the Principal could not condone. The question whether the Board had power to condone shortage was raised in the Board of High School and Intermediate Education Uttar Pradesh Allahabad and others v. G. Vishwanath Nayar but was not decided and was left open. It is urged on behalf of the appellant that the power to admit a candidate to an examination vests in the Board. The Regulations only provide the extent to which shortage in attendance can be condoned by the heads of institutions. There is nothing in the Regulations to limit the power of the Board itself to admit a candidate to an examination after condoning shortage which could not be condoned by the head of the institution.(3) After noting that a technical breach of rules had been committed the Board of the Chairman may have decided not to take any action.(4) The Board may have framed a new regulation with retrospective effect either permitting the head of the institution to condone a shortage in a case like that of the appellant or permitting the Board itself to make the necessary condonation in such cases.(5) The Board could have given an authoritative interpretation of the words "lectures given" in Clause (iii) of regulation 5 of chapter XII and decided whether "the words covered such cases where the students were present to attend the lecture but it could not be arranged because of some unavoidable reason."But, like the High Court, we are not called upon to pronounce on their legality or appropriateness at this stage.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We are unable to accept this contention. Whether a duty arises in a particular case to issue a show cause notice before inflicting a penalty does not depend on the authoritys satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed.We agree with the High Court that the impugned order imposed a penalty. The petitioner had appeared in the examination and answered all the question papers. According to her she had passed. To deny her the fruits of her labour cannot but be called a penalty. We are unable to appreciate the contention that the Board in "cancelling her examination" was not exercising quasi-judicial functions. The learned counsel urges that this would be casting a heavy burden on the Board. Principles of natural justice are to some minds burdensome but this price a small price indeed - has to be paid if we desire a society governed by the rule of law. We should not be taken to have decided that this rule will also apply when a candidate is refused admission to an examination. We are not concerned, with this question and say nothing aboutwe decline to go into these questions. We are not sitting as a court of appeal and it is for the Board to decide after giving an opportunity to the petitioner and pass such orders as it thinks fit. Whether it has the power to condone the shortage of lectures is for it, at least in the first instance, to decide.