RAM PREETI YADAVversusU.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCATION AND ORS.

A                       RAM PREETI YADAV
                                v.
          U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE
                       EDUCATION AND ORS.

                             SEPTEMBER 3, 2003
B
                   [V.N. KHARE, CJ. AND S.B. SINHA, J.]

         Education:

         Intermediate Examinations-Candidate using unfair means-
C Provisional mark-sheet-Effect of-Result of a private candidate withheld
  as being a suspected case of using unfair means-Provisional mark sheet
   issued without showing "W.B." (i.e. res1.-lt withheld)-Admission to B.A.
  course obtained by candidate-Board of High School and Intermediate
  Examinations cancelled examination of candidate-Thereafter another
D provisional mark sheet issued by the Principal of the College to the
  candidate showing the words "W.B." therein-Later, Principal of the
  College informing the candidate that his result was cancelled-Writ
  petition of candidate allowed by High Court-Held, when the Principal of
   the College was made known by the Board about cancelling the examination
E of the candidate, issuance of another mark sheet in his favour with the
   words "W.B." is a matter of great suspicion-It is evident that a fraud was
  committed-The candidate is the sole beneficiary to the said fraud and it,
   as such, must be presumed that he was a party theretcr--The letter issued
   by Principal of the College at a belated stage informing the candidate
F about cancellation of his examination, in the circumstances, is stated to
   have given rise to a fresh cause of action as earlier writ petition of the
  candidate seeking declaration of his result had been dismissed-The plea
   of the candidate that the Board be directed to give an opportunity of
   hearing to him at this stage cannot be acceded tcr--There is no equity in
  favour of the candidate inasmuch as he knew that his result had been
G withheld because of the a/legation of having used unfair means in the
  examination-Suppressing this fact he took admission and studiedfurther-
  Fraud-Presumption as regards party theretcr--Equity.

         Derry v. Peek, (1889114 AC 337and Lazarua Estate v. Berly, (1956)
H   1 All ER 341, referred to.
                                      352
      R. P. YADAV "· U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCTION   353

      SP. Chengalvaraya Naidu v. Jagannath, [1994) l SCC I, referred             A
to.

      Administrative Law:

       Natural justice-Opportunity ofhearing-Intermediate examination-
Mass copying-Result of the candidate withheld and later his examination          B
cancelled-Candidate obtained provisional mark sheet without any
indication ofwithholding result-Obtained admission to B.A. course on the
basis thereofand studiedfurther-Later challenged the order ofcancellation
of his examination on the ground that he was not communicated the order
!ilnd that he was not given an opportunity ofhearing-Held, it is the positive    C
case of the Board that an opportunity of hearing had been given to him-
Besides, in a case ofmass copying the principles ofnatural justice need not
be strictly complied with-Furthermore, it is the admitted case ofthe parties
that the records have been weeded out-High Court was not correct in
proceeding on the basis that candidate was not communicated with the
result-It is expected that a student who has taken admission on the basis        D
of a provisional mark-sheet would keep a watch over the entire situation
and would make repeated enquiries as to what actions have been taken by
the authority concerned in the matter and why final mark-sheet has not been
issued-A presumption against him must be raised particularly having regard
to the fact that he had not been able to produce any material to show as to
why no attempt was made by him to obtain a final marks sheet and/or              E
certificate for passing the examination.

     Madhyamic Shiksha Manda!, MP. v. Abhilash Shiksha Prasar Samiti
and Ors., (1998) 9 SCC 236, relied on.

     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4034 of                     p
2001.

     From the Judgm.ent and Order dated 7.12.99 of the Allahabad High
Court in S.A. No. 450 of 1998.

     Y.P. Singh, Chatanya Siddharth, Mukesh K. Sharma and Debasis                G
Misra for the Appellant.

      Dinesh Dwivedi, S. Bhatnagar, Navin Prakash and Kamlendra Mishra
for the Respondents.

      The following Order of the Court was delivered :                           H
    354                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A         In the year 1984, respondent No. 3 herein Mahendra Pratap Yadav
    appeared as a private candidate in the Intermediate Examination conducted
    by U.P. Board of High School & Intermediate Education from Janta Inter
    College, Azamgarh (U.P.). When the results of Intermediate Examination
    of the year 1984 were declared, the result of respondent No. 3 was shown
B   as withheld as a suspected case of using unfair means. He was issued a
    provisional mark-sheet without showing that his result for Intermediate
    Examination has been withheld. It is really surprising that such a mark-
    sheet was issued to the respondent No. 3 by the Principal of the College
    inasmuch as his result was admittedly directed to be withheld by respondent
C   No. I. Curiously enough, in another provisional marks-sheet which was
    issued on or about 1.9.1986 by the Principal of the College the word
    "W.B." i.e. result withheld finds place. It also stands admitted that the
    respondent No. 3 did not apply for nor was given any final marks-sheet
    nor any certificate of passing the examination. It appears that on the basis
    of the provisional marks-sheet respondent No. 3 took his admission in B.A.
D   without disclosing the fact that his result has been withheld and passed the
    B.A. Examination as well as M.A. Examination. Subsequently, he also got
    employment as a Teacher in Mathura Inter College, Naharpur, Distt.
    Azamgarh. It appears that in the year 1993 some inquiry was made as
    regards the passing of the Intermediate Examination by respondent No. 3.
E   The inquiry continued for some time and it is under such circumstances
    the Principal of Janata Inter College informed respondent No. 3 on
    16.10.1996 that his result of Intermediate Examination of the year 1984
    was cancelled.

           It is at this stage respondent No. 3 filed a petition under Article 226
F   of the Constitution challenging cancellation of his result of Intermediate
    Examination of the year 1984, inter a/ia, on the ground (i) that he was not
    afforded any opportunity of hearing before cancellation of his Examination;
    (ii) that the cancellation after more than 10 years was wholly arbitrary and
    illegal; and (iii) that he having passed the B.A. and M.A. Examinations had
G   secured appointment as a Teacher in the College and as such equity
    demands that the order cancelling the result of his Intermidiate Examination
    of the year 1984 be set aside. A learned Single Judge of the Allahabad High
    Court was of the view that in the instant case if the result of respondent
    No. 3 herein of Intermediate Examination is allowed to be shown as
H   cancelled his career would be ruined and since he had passed the High
     R. P. YADAV '" U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCTION   355

School Examination in First Division, B.A. Examination in Second                A
Division and M.A. examination in First Division and by and large his
academic career is brilliant, the cancellation of his result is unreasonable.
Consequently, the writ petition was allowed and order of cancellation of
result of Intermediate Examination was set aside. Aggrieved, the appellant
who is a colleague of respondent No. 3 and is working in the same               B
Institution wherein respondent No. 3 is working as well as the Board of
High School and Intermediate Education filed special appeals before a
Division Bench of the High Court. The Division Bench summarily
dismissed the appeals. It is against the said judgment and order, the
appellant is in appeal before us.
                                                                                c
     The learned counsel appearing on behalf of the appellant would
submit that having regard to the admitted fact that the respondent No. 3
did not pass his Intermediate Examination, he could not have been
appointed and consequently the question of considering his case for
promotion does not arise. The learned counsel would submit that in a case       D
of mass copying, it may not be possible to comply with the principles of
natural justice.

      Mr. Dinesh Dwivedi, the learned senior counsel appearing on behalf
of the first respondent, supported the case of the appellant and would
further draw our attention to the statements made in the counter-affidavit      E
filed by the Board of High School & Intermediate Education to the effect
that result of respondent No. 3 of Intermediate Examination of the year
1984 was cancelled on 6.1.1985 after giving an opportunity of hearing to
him.
                                                                                F
     It was urged that the said information was given as per practice to
the Centre for its communication to respondent No. 3 and further the Board
was not required to inform each candidate individually about the cancellation
of the result.

       The learned counsel appearing on behalf of respondent No. 3,             G
however, on the other hand, would submit that keeping in view the peculiar
facts and circumstances of this case, the ends of justice will be met if the
first respondent is hereby directed to give a post-decisional. The learned
counsel would contend that it is a fit case wherein equities should be
adjusted keeping in view the fact that respondent No. 3 has now passed          H
    356                   SUPREME COURT REPORTS [2003] SUPP. 3 S.C.R.

A his B.A. and M.A. Examinations. In the alternative, it was urged, this Court
    may direct the first respondent to allow the respondent No. 3 to appear at
    the Intermediate Examination afresh.

          Having heard the learned counsel for the parties, we are of the opinion
B   that the impugned judgment cannot be sustained.

         Respondent No. 3 himself in his counter-affidavit has drawn this
    Court's attention to a judgment of the Allahabad High Court dated 19th
    September, 1983 relating to withholding of result by the first respondent,
    wherein it was directed :
c
             "In cases of mass copying the Board will pass the final order
             within 15 days from today and where the charge is of being caught
             red-handed the Board will pass final orders within six weeks from
             the date of the candidate give his explanation. In any case, in
             which the Board is unable to pass final orders within the aforesaid
D
             period, it will forth with give to the respective candidates their
             marks sheets provisionally. In each case where the marks sheet
             is given provisionally, the Board may make the requisite
             endorsement. "
                                                           (emphasis supplied)
E
        Not only respondent No. 3 was aware of the said judgment, it is also
  implicit that the provisional mark-sheet was given to him on the basis
  thereof. We, therefore, in this situation fail to understand as to how a mark-
  sheet without the words "W.B." could be handed over to respondent
F No. 3 by the Principal of the College. Respondent No. 3 presumably was
  aware of the entire fact situation. In that view of the matter, he now cannot,
  in our opinion, plead his ignorance about the entire fact. It is expected that
  a student who has taken admission on the basis of a provisional mark-sheet
  would keep a watch over the entire situation and would make repeated
G enquiries as to what actions have been taken by the first respondent herein
  in the matter and why final marks-sheet has not been issued.

          It is also a matter of great suspicion as to how another marks-sheet
    was issued in his favour on 1.9.1986 with the words "W.B." particularly
    when the Principal of the College admittedly was made known about the
H   order dated 1.9.1985 passed by the first respondent cancelling the
     R. P. YADAV 1·. U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCTION   357

examination of respondent No. 3. Thus, it is evident that a fraud was            A
committed. Respondent No. 3 is the sole beneficiary to the said fraud and
it, as such, must be presumed that he was a party thereto.

     In its counter-affidavit, the first respondent inter a/ia stated :

                                                                                 B
        "It is stated that the respondent No. 3 i.e. Sri Mahendra Pratap
        Singh appeared in itermediate examination of the year 1984
        bearing Roll No. 575203, the result of the respondent No. 3 was
        withheld on account of mass copying under W.B. Category. The
        inquiry was made and the charges were framed against him. On C
        hearing the matter and given opportunity to explain the respondent,
        and Nistaran Samiti duly constituted by the Board took decision
        dated 6.1.1985 to cancel the result of Intermediate for the year
         1984. It was duly served to the principal concerned to convey with
        the decision taken by the Board. It was expected of the respondent D
        No. 3 to get aware the decision dated 6.1.1985 of mass copying
        at that time. He did not care to know the decision and he further
        studied and got through the higi)er education. He obtained service
        appointment fraudulently with Sri Mathura Inter College, Naharpur,
        Azamgarh ignoring the decision dated 6.1.1985. After a lapse of
         12 years with collusion of the principal Janta Inter Higher E
        Secondary School, Mahul Azamgarh, he received a letter dated
         16.10.1996 in which cancellation of the Intermediate examination
        of the year 1984 of the respondent No. 3 was informed."

      Apart from the fact that the marks-sheets issued by the Principal in       F
the years 1984 and 1986 speak differently, by no stretch of imagination
it can be presumed that even when the second marks-sheet in the year 1986
was issued, respondent No. 3 was not aware of the order dated 6.1.1985
passed by the first respondent.
                                                                                 G
     Fraud is a conduct either by letter or words, which induces the other
person, or authority to take a definite determinative stand as a response to
the conduct of former either by words or letter. Although negligence is not
fraud but it can be evidence on fraud. See Derry v. Peek, [1889] 14 AC
337.                                                                             II
    358                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A         In Lazarus Estate v. Berty, (1956) I All ER 341 the Court of Appeal
    stated the law thus :

             "I cannot accede to this argument for a moment "no Court in this
             land will allow a person to keep an advantage which he has
             obtained by fraud. No judgment of a Court, no order of a
B            Minister, can be allowed to stand if it has been obtained by fraud.
             Fraud unravels everything". The Court is careful not to find fraud
             unless it is distinctly pleaded and proved; but once it is proved
             it vitiates judgments, contracts and all transactions whatsoever."

C        In SP. Chengalvaraya Naidu v. Jagannath, [1994] 1 SCC I, this
    Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.

          Furthermore, it is surprising as to why the Principal of the College
    issued the letter dated 16-10-1996 in favour of Respondent No. 3
D   stating :

             "Your intermediate result which was W.B. and withheld. On your
             request several time I also write to the U.P. Board oflntermediate
             Education, Allahabad. When no reply was received then I sent the
             person to know the position.
E
                   I am sorry to inform you on the basis of information received
             from the U.P. Board of Intermediate Educational Allahabad that
             your W.B. result of intermediate examination withheld for year
             1984 with roll No. 575203 has been cancelled. Make note of it
p            that the temporary posting by me is hereby cancelled."

         The said letter was considered to have given rise to a fresh cause of
    action in favour of the respondent No. 3 in order to enable him to file the
    writ petition. Prior thereto, he admittedly had filed another writ petition
    before the Allahabad High Court being Writ Petition No. 35336 of 1995
G   wherein he inter alia prayed for the following reliefs :

             "(i) issue a writ, order or direction in the nature of mandamus
             directing the respondents to declare the result of the petitioner
             who has appeared in Intermediate Examination - 1984 bearing
H            Roll No. 575203.
     R. P. YADAV 1·. U.P. BOARD OF HIGH SCHOOL AND INTERMEDIATE EDUCTION    359

         (ii) issue and other suitable writ, order or direction as this Hon'ble    A
         Court may deem fit and proper under the facts and circumstances
         existing in the present case.

         (iii) award costs of this petition in favour of the petitioner."

The said writ petition was dismissed.                                              B

      Having found that he did not get any relief in the said writ petition
No. 35336 of 1995 he filed the Writ Petition No. 39905 of 1996
questioning the aforementioned order dated 16.10.1996. It is stated that the
said letter dated 16.10.1996 gave rise to a fresh cause of action.                 C
     It is relevant to note that the Principal of the College even in its letter
dated 16.10.1996 does not state that an order dated 6.1.1985 was issued
against him by the first respondent cancelling his examination. Even in the
said letter dated 16.10.1996 the copy of the said order has not been               D
annexed. It is also pertinent to note that the Principal of the College not
only had issued the aforementioned mark-sheets in the year 1984 and 1986
and also the said letter dated 16.10.1996 but from the tenor of the letter
it appears that he also made temporary posting of responding No. 3.
Curiously enough, respondent No. 3 in his counter-affidavit states that the        E
Principal, Janta Inter College, Mahul has nothing to do with his appointment.
Under what circumstances therefore the third respondent's posting was
cancelled is anybody's guess.

       As regard the submission of the learned counsel to the effect that the
first respondent should be directed to give an opportunity of hearing to the       F
respondent No. 3 at this stage cannot be acceded to. As noticed hereinbefore,
it is the positive case of the first respondent that an opportunity of hearing
had been given to him by the first respondent. Secondly, in a case of mass
copying the principles of natural justice need not be strictly complied with.
                                                                                   G
     In Madhyamic Shiksha Manda/, MP. v. Abhilash Shiksha Prasar
Samity and Others, [I 998] 9 SCC 236 this Court observed :

         "In the face of this material, we do not see any justification in the
         High Court having interfered with the decision taken by the Board         H
    360                   SUPREME COURT REPORTS (2003] SUPP. 3 S.C.R.

A            to treat the examination as cancelled. It is unfortunate that the
             student community resorts to such methods to succeed in
             examinations and then some of them come forward to contend that
             innocent students become victims of such misbehaviour of their
             companions. That cannot be helped. In such a situation the Board
             is left with no alternative but to cancel the examination. It is
B
             extremely difficult for the Board to identify the innocent students
             but one has to appreciate the situation in which the Board was
             placed and the alternatives that were available to it so far as this
             examination was concerned. It had no alternative but to cancel the
             results and we think, in the circumstances, they were justified in
c            doing so. This should serve as a lesson to the students that such
             malpractices will not help them succeed in the examination and
             they may have to go through the drill once again. We also think
             that those in charge of the examinations should also take action
             against their Supervisors/Invigilators, etc., who either permit such
D            activity or b~ome silent spectators thereto. If they feel insecure
             because of the strong-arm tactics of those who indulge in
             malpractices, the remedy is to secure the services of the Uniformed
             Personnel, if need be, and ensure that students do not indulge in
             such malpractices."
E
         Furthermore, it is the admitted case of the parties that the records have
    been weeded out. The first respondent in its counter-affidavit before the
    High Court not only stated so but also filed weeding schedules with a
    supplementary counter-affidavit.

F        hi that view of the matter, affording an opportunity of hearing to
    respondent No. 3 at this stage would end in a futile exercise.

          The learned Single Judge in the aforementioned situation was not
    correct in proceeding on the basis that the respondent No. 3 was not
G   communicated with the result. A presumption against him must be raised
    particularly having regard to the fact that he had not been able to produce
    any material to show as to why no attempt was made by him to obtain a
    final marks-sheet and/or certificate for passing the examination.

H         We are also unable to issue any direction to the first respondent to
       R. P. YADAY "· U.P. BOARD OF HIGH SCHOOL AND !NlERMEDIA TE EDUCTION   36 J

allow the third respondent to sit at the Intermediate Examination at this           A
stage; having regard to the fact that the relevant rules in this regard have
not been placed. We may, however, observe that if he is entitled to take
the said Examination in law, he may be permitted.

      Further, we find that there is no equity in favour of respondent No.          B
3, inasmuch as he knew that his result has been withheld because of the
allegation of having used unfair means in the Examination. Suppressing
this fact, he took admission in B.A. and studied further.

      We are, therefore, of the view that the High Court committed error
in allowing the writ petition filed by respondent. No. 3. Consequently, the         C
order under challenge and that of the learned Single Judge, are set aside.
The appeal is allowed. There shall be no order as to costs.

R.P.                                                          Appeal allowed.