ORDER
1. The Bihar School Examination Board (for short ‘the Board’) and its officers are appellants in this appeal and are aggrieved by order of the learned single Judge dated 27-11-2000: (2001(1) Bihar LJ 203). passed in C.W.J.C. No. 10978 of 2000, whereby he has cancelled the communication dated 12-9-2000, issued under the signature of the Assistant Secretary of the Board, informing the Principal of M.A.A. High School, Patna city (respondent herein), that the Project Schools, Minority Schools, and Proprietary Schools have no right to sponsor the candidature of the private students for appearing in the ensuing secondary school examination (for short ‘the examination’) conducted by the Board and further directing that they may forward registration forms/applications of the aforesaid students to appear in the examination through Government High School or Nationalised High School as private candidates. The learned single Judge has also directed that the registration forms/applications of the eligible students of the respondent-school should be accepted so as to allow them to appear in the examination to be conducted in 2001.
2. The controversy in this case is as to whether the private students should be allowed to appear in the examination conducted by the Board through the Government School or Nationalised School, or their candidature can also be sponsored by the Minority Schools, Project Schools, Proprietary Schools or the schools having been granted permission for establishment.
3. The State Government enacted Bihar School Examination Board Act, 1952 (for short ‘the Act’) with a view to establish a School Examination Board for holding and conducting examination at the end of the secondary school education stage, for prescribing course of studies for such examination and generally for carrying out such other objects or duties as may be considered necessary. Section 3 of the Act provides for establishment and incorporation of the Board and Section 6 deals with the functions of the Board. Second 17 empowers the Board to make regulations with regard to the matters enumerated therein. The relevant regulation for the purpose of this appeal is 17(b), which provides that the Board may make regulation with regard to condition under which the students shall be admitted to the examination of the Board. The Board, in exercise of the aforesaid power, framed Regulations in the year 1967, which have been confirmed by the Government as provided under the Act. Chapter IV of the Regulations deals with the conditions under which students shall be admitted to the Secondary School Examinations of the Board. Article 1 of the said Regulations provides, inter alia, that subject to such conditions as may be specified by the Board from time to time, every recognised secondary School in the State of Bihar shall be eligible to send up candidates for the Board’s Secondary or Higher Secondary School Examination as the case may be and regarding private candidates, Article 3 of the said Chapter provides that 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 on fulfilment of the conditions mentioned in the said regulations. Articles 1 and 3 of the said regulations are relevant for this appeal and as such they are re-produced below:–
“1. Eligibility of School :– (i) Subject to such conditions as may be specified by the Board from time to time, every recognised Secondary School in the State of Bihar shall be eligible to send up candidates for the Board’s Secondary or Higher Secondary School Examination as the case may be.
(ii) Every Secondary School shall
(a) Supply to the Board on or before such dates as may be fixed by the Board such returns and information as may be required by the Board from time to time.
(b) maintain such registers and records of the students sent up by the School as may be required by the Board from time to time.
(c) carry out and observe such instructions in connection with the Board’s examination as may be issued by the Board from time to time and shall give necessary facilities for the conduct of the Board’s examination.
(iii) The Board may recommend to the Board of Secondary Education or other appropriate authorities the withdrawal, cancelling or suspension of recognition of any high school on one or more of the following grounds :–
(a) That the standard of teaching in the school has considerably deteriorated or is not up to the mark.
(b) That the school authorities have failed to carry out the instructions issued by the Board from time to time.
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.”
4. Section’ 10A of the Act vests power in the State Government to supersede the Board. In exercise of that power, the Board has been superseded and an Administrator has been appointed. According to the provision of Sub-section 2(b) of Section 10A of the Act, during the period of supersession, all the powers and duties, which were to be exercised or performed by or on behalf of the Board, shall be exercised or performed by a person appointed by the State Government. Thus, the Administrator appointed by the State Government has to exercise all the powers and perform all the duties vested in the Board under the provisions of the Act.
5. The State Government in the Department of Secondary, Primary and Adult Education, look a decision on 2-6-2000 that the schools, which have been given permission for establishment, may forward or sponsor their students to appear in the examination as private students through Government School or Nationalised School, a copy of which was appended as Annexure ‘A’ to the counter-affidavit filed in the writ application, The meeting of the Administrator and other officials of the Board was held and the Board also took a decision on 25-8-2000 that the Project Girls High Schools and Minority High Schools have no authority to send up private students for appearing in the examination conducted by the Board and, accordingly, a decision was taken to return all the registration forms/applications to the concerned Project Girls High Schools and Minority High Schools with a direction that such students may be registered with any Government or Nationalised High School and they should be permitted to appear in the examination on being sent up by the aforesaid two categories of schools. A copy of the said decision was appended as Annexure ‘B’ to the counter-affidavit filed in the writ application, in pursuance of the aforesaid decision taken by the Board, the order dated 12-9-2000 (Annexure 2 to the writ application) was issued by the Assistant Secretary of the Board to the Principal of the School (respondent herein).
6. It is not in dispute that the respondent-school is a recognised minority school, which can impart education to its regular students and the regular students can appear in the examination conducted by the Board. The case of the writ petitioner-respondent is that the school in question is an old school and it has forwarded the registration forms and the prescribed fees of registration of 60 private students for appearing in the examination to be held in the year 2001, but the Board has refused their registration forms etc. arbitrarily on the basis of the order issued on 12-9-2000. According to his stand, no decision has been taken by the Board to refuse registration forms etc. for the private students whose candidature is sponsored by a recognised minority school.
7. The stand of the Board, on the other hand, is that in terms of the provisions of the Act and Regulations, the Board has to make a provision with regard to the conditions. under which the students shall be admitted to the examination conducted by the Board. The State Government took a decision on 2-6-2000 (Annexure ‘A’ to the counter-affidavit) that the private students shall not be allowed to appear in the examination except through the schools granted permission for establishment. The Board, thereafter has considered the matter and took a policy decision on 25-8-2000 as contained in Annexure ‘B’ to the counter-affidavit that the private students shall be allowed to appear in the examination through Government School or Nationalised School and they should be attached with the said schools and registration forms/applications have to be forwarded by them. The Project Girls High School and the Minority High Schools have no authority to forward the registration forms/applications of the private students for appearing in the examination conducted by the Board and in terms of said decision, the registration forms/applications etc. were returned to the respondent-school with a direction to take steps. The said decision was taken by the Board with an intention to maintain higher standard of examination.
8. The learned single Judge has quashed Annexure 2 to the writ application, which has been issued on the basis of the decision taken by the Board as contained in Annexure ‘B’ to the counter-affidavit on the ground that the same cannot be legally issued on the basis of the policy decision of the State Government dated 2-6-2000 as contained in Annexure ‘A’ to the counter-affidavit, wherein only the schools having been granted permission to establish have been restrained from sending up and sponsoring the private students for appearing in the ensuing examination conducted by the Board.
9. Learned counsel for the appellant-Board submitted that the Board is competent to lay down conditions, under which a student shall be admitted to the examination conducted by the Board and once the Board has taken a decision that the private students shall be allowed to appear only through the Government School or Nationalised School and not through other categories of schools as mentioned in the said decision (Annexure ‘B’ to the counter-affidavit), the said decision cannot be faulted on the ground that it is not supported by a decision of the State Government, wherein restriction was put only with regard to the institutions, to whom permission for establishment was granted. The decision of the State Government was taken on its own with regard to one category of school but that in no way prevents the Board to take a decision of its own having been authorised to do so by the power vested under the Act and the Regulations.
10. Learned counsel appearing for the Respondent, on the other hand, submitted that the learned single Judge has rightly held that the Board cannot act contrary to the policy decision of the State Government. Elaborating his submission, he submitted that Chapter IV of the Regulations, which deals with the conditions under which students shall be admitted to the Secondary School Examinations of the Board, does not put any such restriction as decided by the Administrator in the meeting. If the Administrator wanted to restrict the admission of the private students in the examination through the Minority High Schools etc., in that case the same should have been done after amending the Regulation under Chapter IV and approval of the same by the State Government. In other words, his submission is that the Board has no power that unless the Regulation is amended and approved by the State Government, no such restriction can be put by the Board. He also submitted that the Board cannot act contrary to the policy decision of the State Government, wherein only one category of school was excluded from sponsoring and sending up the private students for appearing in the examination of the Board.
11. As stated above. Chapter IV of the Regulations deals with the conditions under which students shall be admitted to the Secondary School Examination of the Board. Article 1 thereof, as extracted above, provides that subject to such conditions as may be specified by the Board from time to lime, every recognised Secondary School in the State of Bihar shall be eligible to send up candidates for the Board’s Secondary or Higher Secondary School Examination as the case may be. Article 3 thereof provides that the private students may be admitted to appear in the examination of the Board as private candidates on fulfilment of certain conditions. However, one of such conditions is that such 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. Thus, Chapter IV of the said Regulations itself provides that the students, including private students may be allowed to appear in the examination subject to such terms and conditions as may be specified by the Board from time to time.
12. According to the learned Counsel for the respondent, if the Board lays down other condition then in that case such condition can be laid down only by framing a regulation and getting it approved by the Government. This submission is fallacious. Regulation, as already been framed, itself contains a provision empowering the Board to lay down conditions from time to time. So, the power of laying down condition has been delegated to the Board by statutory provision and when the Board lays down any condition, apart from the conditions laid down under the Articles of the aforesaid Chapter, there is no requirement of amendment of the Regulation or its approval by the State Government.
13. In exercise of the aforesaid power, the Board has taken a decision that the private students should be attached with the Government School or Nationalised School and their registration forms/applications etc. should be sent through such schools and not through other categories of schools, including the Minority High School etc. Such decision cannot be said to be either arbitrary or irrational. On the other hand, it achieves a very laudable object. A large number of candidates are appearing in the examination of the Board as private students and as such to ensure that they are not allowed to appear without fulfilling other requirements as provided under Article 3 of Chapter IV of the Regulations, the Board has decided that the aforesaid students should appear through the Government School or Nationalised School so that the entry of the ineligible private students for appearing in the examination of the Board may be controlled.
14. As stated above, the Board itself is competent to take a decision in such matters and in that view of the matter, there was no question of the decision being contrary to the policy of the State Government as held by the learned single Judge. The decision of the State Government is with regard to only one category of school, whereas, the Board in exercise of the statutory power took a decision as contained in Annexure ‘B’ and restricted the entry of the private students through the Government School or Nationalised School only. In our view, the learned single Judge was not justified in holding that the decision of the Board is contrary to the decision of the State Government.
15. In the result, this appeal is allowed and the impugned order passed by the learned single Judge is set aside. However, the Board is directed to give an opportunity by prescribing a time-frame to the private students sponsored by the respondent-School and other similarly situated schools to get them attached with the Government School or Nationalised School so that their names may be sponsored or sent up by the said schools for admitting the private students to appear in the ensuing examination to be conducted by the Board in the year 2001.