1. The petitioner, Provash Chunder Roy, a candidate for the Pleadership examination, obtained this Rule calling on the Board of Examiners to show cause why they should not publish his name in the list of successful candidates of the last year's Pleadership examination or why he should not be allowed to appear for the next Pleadership examination, he having fulfilled the conditions necessary under the law qualifying him to appear at such examinations.
2. The facts that have led to this application appear to be these: The petitioner, after fulfilling the usual qualifying conditions, was permitted by the Board of Examiners to appear at their Pleadership examination, held in February 1912. After his answer papers had been submitted to the examiners of answers, he attempted to substitute with an examiner by means of a bribe fresh answer papers in place of those that had been originally written at the examination. Similar attempts were made by 29 other examinees. The examiner having reported the matter to the Board, an inquiry was made and the facts were found against the thirty candidates. After a correspondence with the Government of Bengal, the Board notified by publication in the Calcutta Gazette of the 27th November 1912, that the thirty examinees were debarred from taking part in the Pleadership and Muktearship examinations for a period of five years, namely, from 1913 to 1917, both inclusive. The petitioner, sometime prior to the Notification in the Gazette, applied to the Board for permission to sit at the next examination, but his application has not been entertained owing to the order excluding the offending candidates from examination for a period of five years.
3. The first part of the Rule, namely, why the petitioner's name should not be published in the list of the successful candidates of the last year's Pleadership examination, was based on the petitioner's statement contained in paragraph 14 of his petition. The Secretary to the Board, Mr. Graham, however denies the correctness of the petitioner's statement and definitely states that the petitioner has not secured the necessary pass marks. The statement of Mr. Graham is not challenged and that part of the Rule, therefore, must fail.
4. In respect of the second part of the Rule, the petitioner maintains his complaint that under the rules by which the Board are guided they have no power to stop him from appearing at an examination without entertaining his application and considering it. In the matter of permission to candidates to sit at a Pleardership examination, the powers of the Board are regulated by rules framed by the High Court under Section 6 of Act XVIII of 1879 and in the matter of conducting the examinations, their powers are governed by regulations made by the Lieutenant-Governor of Bengal under Section 37 of Act XVIII of 1879. The rule pertinent to the present case is contained in Rule 15 which runs thus: 'The examiners shall, on receipt of the applications from the District Judge, take the case of each candidate, with the report of the District Judge into their consideration, and shall determine whether or not the candidate is possessed of the necessary qualifications. If the candidate is found qualified, the examiners shall cause his name, name of his father, his age and place of residence and other needful particulars to be entered in a register of parsons permitted to appear at the examination.' The regulation framed under Section 37 that need be at all considered in connection with this case is regulation 13 which runs thus: 'No candidate will be allowed to enter the examination room with any books, private memoranda or paper of any description, and any one detected doing so will forfeit all fees paid by him and will not be permitted to undergo the examination. Any candidate detected in the act of using unfair means, such as communicating with another or copying from his neighbours or from private memoranda or books, etc. will be summarily ejected from the examination room and will forfeit all benefit to be derived from the previous portion of the examination, and all right to proceed further with it together with all fees paid by him.'
5. Neither the rules nor the regulations have provided for a case of such an unusual nature as the one under consideration. The reprobation of such misconduct as is admitted by the petitioner may be, and, in my opinion, is, necessary in the interests of the litigant public and society generally, but such reprobation must conform to the prescribed rules. The order prohibiting the offending candidates from appearance at the examinations for a period of five years is one of rustication for which there is no legal sanction. Whatever moral warrant there may be for such an order, an insistence on the Board acting within their powers has to receive attention. In this connection aptly may be quoted the words of Lord Chancellor Cottenham in Frewin v. Lewis 4 My. & Cr. 254; 48 R.R. 88 who said: 'The limits within which the Court interferes with the acts of public functionaries are clear and unambiguous. So long as they have confined themselves within the exercise of those duties which are confided to them by law, the Court will not interfere. The Court will not interfere to see whether any alteration or regulation they may direct is good or bad; but if they are departing from that power which the law has vested in them, if they are assuming to themselves a power over property which the law does not give them, the Court will no longer consider them as acting under the authority of their commission, but treat them, whether they be a corporation or individuals, merely as people dealing with property without legal authority.'
6. My attention has been drawn to a case similar to this reported as In the matter of Rudra Narain Roy 28 C. 479, which in principle applies here though the circumstances are different.
7. Mr. Graham in paragraph 7 of his affidavit states thus: 'I, on behalf of the Board, according to paragraph 15 of the rules of the Board, considered it (the application) and determined that the candidate was not duly qualified and accordingly I refused to allow him to appear as he had no moral character,' This is all that has been said on behalf of the Board in respect of their satisfying the provisions of Rule 15 and it seems to me that it is not enough. The language of that rule is perceptive and makes it obligatory on the Board themselves to consider the application of each candidate and to determine whether or not the candidate is possessed of the necessary qualifications. It is quite clear from the statement of Mr. Graham that the Board have not done so, but he did it on their behalf. There is no provision either in the rules or the regulations to enable the Board to delegate their powers to the Secretary of the Board or to any single member. Had the Board themselves in the present instance considered the fitness of the candidate and decided whichever way their discretion led them, it would not have been open to this Court to entertain an application against their decision.
8. On behalf of the Board, objection is taken to the form of the rule but I hold that it is comprehensive enough for the order that I make in the case.
9. The order is that the Board of Examiners do entertain and consider the petitioner's application and determine his fitness according to their discretion.
10. In the circumstances of this case, I make no order as to costs.