Orissa High Court
Suresh Chandra Choudhury vs The Berhampur University And Ors. on 25 August, 1986
Equivalent citations: AIR1987ORI38, AIR 1987 ORISSA 38
Author: D.P. Mohapatra
Bench: D.P. Mohapatra
JUDGMENT D.P. Mohapatra, J.
1. The core question that arises for consideration in this case is whether the action of the opposite parties in cancelling the examination result of the petitioner is hit by the principle of estoppel.
2. The gist of the facts set out in the writ application may be shortly stated thus : ---
The petitioner, a student of Rayagada College appeared at the Annual B.Sc. (Honours) Examination held under the Berhampur University (opposite party 1) in 1981 with Chemistry as honours subject and Physics and Mathematics as pass subjects. On 27-7-81 the result of the said Examination was declared by the University and the petitioner was declared to have passed without honours. After publication of his result, the petitioner took the College Leaving Certificate from the Principal of the College (opp. party 2) and got himself admitted into the Law College, Cuttack, and was prosecuting his studies in the said institution when he came to know of a notification issued on 11-5-1982 by the Deputy Registrar, Berhampur University (Annexure 4) notifying that the petitioner was declared to have failed in the aforementioned Examination. On his representation to the Vice Chancellor of the University, the petitioner was intimated on 22-7-82 (Annexure 5) that he would be given two chances to appear compartmentally in Physics only, in the Supplementary B.Sc. Examination, 1982 and the Annual B.Sc. Examination, 1983. The petitioner has averred in the writ application that on enquiry he learnt that he secured 30 marks in Physics Practical. The minimum percentage to pass in the subject was 40. It is the case of the petitioner that from the mark sheet issued to him by the University on 3-8-1981 he was led to believe that he secured 132 marks out of 300 in the three papers in Physics, that is, two theory papers and one practical. On the aforesaid averments the petitioner contended that since the authorities of the Berhampur University by their representation led him to believe that he had passed the B.Sc. Annual Examination held in 1981 and acting on such representation he had taken further action in getting himself admitted to the Law College and prosecuting his studies for several months thereby spending money and time, the authorities were estopped from cancelling his result subsequently.
3. The opposite party 1 in its counter affidavit has alleged, inter alia, that release of the petitioner's result declaring him to have passed in the Annual B.Sc. Examination was an outcome of mistake since the petitioner secured only 30 per cent marks in Physics practical whereas the minimum marks to be secured in order to enable him to pass in the said paper was 40. Therefore he should have been declared to have failed in the Examination. This mistake having been detected subsequently, the order cancelling the declaration that the petitioner had passed the examination was issued. The opposite party further alleged that the petitioner has not disclosed all the relevant facts in the writ application. The actual marks secured by the petitioner had been communicated to the Rayagada College before the petitioner took the College Leaving Certificate from that institution. Indeed the mark sheet is issued to every student seeking College Leaving Certificate with the certificates. Admission to any other institution is made on the basis of the College Leaving Certificate and the mark sheet accompanying the certificate. Therefore the submission of the petitioner that on the basis of the marks list under Annexure 2 he took admission into the Law College is not correct. It is further stated by the opp. party that the petitioner knowing fully well that he failed to secure the requisite percentage of marks in Physics Practical, to enable him to pass in that subject, applied to the University for a subject-wise mark list by paying Rs. 5/- instead of obtaining a paper-wise marks list on payment of Rs. 8/-. The latter would have shown the marks secured in each theory and practical paper separately. It is the contention of the opp. party that the petitioner was aware of the position that he could not be declared to have passed in the Examination having failed to secure the minimum percentage of marks in the Physics Practical Examination and therefore there was no question of the petitioner being misled by the representation held out by the authorities of the University and further to have acted to his detriment on the basis of such representation. In short, the contention is that on the facts and in the circumstances of the case the principle of estoppel has no application. Regarding the opportunity to appear in two compartmental examinations in Physics, the opp. party has stated in the counter that on the representation made by the petitioner to the Vice Chancellor which was received on 5-6-1982, requesting for permission to appear compartmentally in the Supplementary B.Sc. Examination of 1982, he was permitted to appear in Physics compartmentally in the Supplementary Examination, 1982 and in the Annual Examination 1983.
4. The learned counsel for the petitioner raised two contentions : (i) That the action of the opp. parties cancelling his result and deciding him to have failed in the B.Sc. examination, 1981 is hit by the principle of estoppel and (ii) that the action has been taken without following principles of natural justice, inasmuch as the petitioner was not afforded any opportunity to have his say regarding the matter before the order was passed. The learned counsel appearing for the university (opp. party 1), on the other hand, contended that the action of the authorities is neither hit by the principle of estoppel nor is it vitiated on the ground of non-compliance with principles of natural justice.
5. There is no controversy between the parties that the petitioner having secured 30 per cent of marks in Physics Practical was not eligible to be declared as having passed in the subject since under Regulation 19(1) of the Berhampur University Regulations 40 per cent was the minimum mark to pass the examination. In course of hearing of the case Dr. S.C. Dash, learned counsel for the petitioner produced the original mark sheet issued by the Principal, Rayagada College (opp. party 2) on 29-7-81 which clearly shows that the petitioner secured 30 per cent marks in Physics practical. The learned counsel stated that this mark sheet came to the possession of the petitioner sometimes in January, 1982. But it is clear that on and from 29-7-1981 the mark list of the petitioner showing the percentage of marks secured by him in Physics practical was available with the college authorities and the petitioner could have obtained the same any time thereafter by approaching the authorities.
The question whether the principle of estoppel applies to a particular case depends on the facts of that case. It may be that on similar facts in two cases, in one, in the absence of any material to show that the petitioner claiming the benefit of estoppel had knowledge or means of knowledge to know the real state of affairs, the principle will apply, whereas in the other case, where materials to this effect are present, the doctrine of estoppel will not apply.
At this stage a few decisions relied upon by the learned counsel for the parties may be noticed :
The Supreme Court in the case of Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, AIR 1982 SC 121 dealing with the principle of estoppel observed as follows :
".....It is a also a well-known principle that there can be no estoppel against a statute......
To bring the case within the scope of estoppel as defined in Section 115, Evidence Act: (1) there must be a representation by a person or his authorised agent to another in any form a declaration, act or omission; (2) the representation must have been of the existence of a fact and not of promises de future or intention which might or might not be enforceable in contract; (3) the representation must have been meant to be relied upon; (4) there must have been belief on the part of the other party in its truth; (5) there must have been action on the faith of the declaration, act or omission, that is to say, the declaration, act or omission must have actually caused another to act on the faith of it, and to alter his former position to his prejudice or detriment; (6) the misrepresentation or conduct or omission must have been the proximate cause of leading the other party to act to his prejudice; (7) the person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge, there can be no estoppel; (8) only the person to whom representation was made or for whom it was designed can avail himself of it....."
In the case of Miss Swapna Rani Das v. Utkal University, (1984) 58 Cut LT 221 : (AIR 1985 Ori 37) in which the rule of estoppel was held to be applicable, there was no material to show that the petitioner had means of knowledge about the real state of affairs. On the other hand, repeatedly, the authorities held out that she had passed in the intermediate Examination. Thus, that case was clearly distinguishable from the present case on facts.
In the case of Haripada Das v. Utkal University, AIR 1978 Ori 68, a Division Bench of this Court considered the application-of the rule of estoppel to a case where a\ candidate appearing at Bachelor's degree examination failed in a subject was entitled to appear in that subject in two immediately following examinations under the Utkal University Regulations. The University under mistaken impression permitted him to appear at the third examination. It was held that the University was not estopped from withholding the result of the third examination. The Court observed that the fact that the University permitted the candidate to appear in the third examination in which he had failed in the previous two examinations by allowing him to deposit the fee for the same and issuing the Admit Card would not estop the University from withholding his result in view of the statutory provisions of Regulation 31.
In the case of Kedar Lal Verea v. Secy. Board of High School and Intermediate Education, AIR 1980 All 32, a Division Bench of the Court considering the question of applicability of the principle of promissory estoppel held that where the candidate is patently disentitled to be declared successful, the authorities may not be disentitled to correct the mistake. As a general thing, an act or representation made through innocent mistake is not a ground for estoppel. In that case the petitioner, a candidate who appeared in the High School Examination was granted a mark sheet showing that the marks got by him was less than that required for a pass, but in another column he was, by clerical mistake, mentioned as having 'passed' the examination. It was held that the Board of High School and Intermediate Examination was not estopped from declaring the candidate as 'failed' in the examination, as the candidate must have known from the marks in the mark sheet that his marks were less than pass marks. The Court further held that it would not be possible to enforce the representation against the Board because the Board cannot be compelled to act contrary to the statute. Indeed, the Board did not have the power to declare that the petitioner had passed the examination.
Applying the principles enunciated in the aforementioned decisions to the present case, the petitioner claiming the benefits of estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge of it, there can be ho estoppel. Therefore, the question is whether on the facts and in the circumstances of this case, it can be said that the petitioner had no means of knowledge to know the real state of affairs, that is, that he had failed to secure the minimum requisite percentage of marks in Physics Practical Examination and believing the representation of the authorities to be true he acted to his prejudice. From the facts noticed earlier, it is clear that before taking admission into the Law College the petitioner was aware of the real state of affairs or at least had means of knowledge about the same.
6. As noticed earlier, the petitioner was not entitled to be declared as 'passed' in view of the provisions under Regulation 19 of the Berhampur University Regulations requiring the candidate to secure minimum 40 per cent marks in practical examination to pass in that subject. Therefore, the declaration that the petitioner passed in the examination was clearly erroneous. The petitioner could not have been misled by the representation of the University authorities since the mark sheet sent to the College admittedly showed that he failed to secure the minimum requisite percentage in the Physics practical examination. Directing the University to comply with its declaration would be compelling the authority to act against the statute. On the aforesaid analysis, I am unable to persuade myself to accept the contention of the learned counsel for the petitioner that the action of the authorities declaring the petitioner to have failed in the examination is hit by the rule of estoppel.
The next submission made by the learned counsel for the petitioner relates to the non-compliance of the principles of natural justice. As noticed earlier, the case of the opp. party is that the declaration that the petitioner had passed Bachelor in Science Examination was due to a mistake. The petitioner admits the position that having secured only 30 per cent in Physics practical, he was not entitled to be declared to have passed in the subject under the Regulations of the University. In such circumstances, giving a show cause notice to the petitioner would not have improved matters at all. The insistence on grant of a hearing is on the footing that given an opportunity before the order was made, the petitioner could have shown the authorities that the facts were untrue or even if the allegations were true, the impugned order was not warranted. In the presentcase, since the facts were undisputed and the authorities were not competent to declare, the petitioner to have passed the examination in view of the provisions of the Regulation the order correcting the mistake cannot be said to have been vitiated for want of a notice or opportunity of hearing to the petitioner. The view taken by me gains support from the decision of this Court in the case of Prasant Pattajoshy v. Principal, Lingaraj Law College, (1977) 44 Cut LT Short Note No. 67. The contention raised by the learned counsel for the petitioner must, therefore, be negatived.
It is no doubt true that the Courts in many cases have leaned in favour of the examinees, but as the things stand, a line must be drawn between a case where there has been a bona fide error and that where the situation is being exploited.
In this case, as a result of my decision, the petitioner will have to lose some academic years and the studies he had made so far in the higher class. But the facts and circumstances, discussed above establish that the petitioner knowingly took undue advantage of an obvious error. The marks secured by him in the Practical examination in the subject in question should have created an anxiety for him to check up and verify the same by obtaining the mark sheet and to ascertain the correct position. This was within his easy reach and means. In view of the disproportionate rise in the number of examinees, the pressure of the applicants for taking admission in the schools and colleges, some such mistakes do take place. Encouragement without justifiable reasons, in my considered opinion, would not subserve the case of fair paly and equity.
In view of the discussions in the foregoing paras, both the contentions raised by the learned counsel for the petitioner having failed, the writ application is dismissed as devoid of merits. Parties would bear their respective costs of this proceeding.
Agrawal, C.J.
I agree.