Andhra HC (Pre-Telangana)
N. Vanajakshi (Miss) vs Principal, University College For ... on 17 April, 1999
Equivalent citations: 1999(3)ALD617, 1999(3)ALT572, AIR 1999 ANDHRA PRADESH 323, (1999) 3 ANDH LT 572 (1999) 3 ANDHLD 617, (1999) 3 ANDHLD 617
Author: B.S. Raikote
Bench: B.S. Raikote
JUDGMENT
1. Heard.
2. This writ petition is filed for a writ of mandamus or any other appropriate writ declaring the action of the 1st respondent in correcting the results of the petitioner's First Year Chemistry paper supplementaty examination, 1996 (Roll No.951328) as failed and consequent withholding the results of B.Sc., Education Degree Examination as illegal, void and violative of Articles 14, 19(1)(g) and 21 of the Constitution of India and for further declaration that she has passed the First Year Chemistry Paper Supplementary Examination, 1995 with Roll No.951328 and consequently declare her B.Sc., results.
3. In the affidavit filed in support of the writ petitioner the petitioner stated that she joined 4 years B.Sc., course in the year 1994, after completing her Intermediate and in the First Year she has opted Botany, Zoology, Chemistry and Education. She further stated that the College has introduced B.Sc., Education with a view to create a special cadre for the qualified teachers in the faculties of Mathematics and Sciences and therefore she has appeared for the first year examination in all the above optionals besides language papers in English and Telugu in the month of March-April-1995. In the said examination the petitioner was declared to have failed in Chemistry theory paper. Therefore the petitioner has appeared for supplementary examination in September-October-1995 in Chemistry paper, wherein" she secured 38 marks out of 100. Thereafter she appeared for the second year Chemistry paper in the year 1996. In that examination she was declared to have passed Chemistry paper. The petitioner contended that likewise in the 3rd year she was declared to have passed in Chemistry paper in the year 1997 and accordingly she was promoted to the fourth year. In the fourth year she appeared for all the papers and her results were withheld by the 1st respondent on the ground that she has failed in the first year. The officials of the 1st respondent asked the petitioner to submit her first year Chemistry marks list of the year 1995. The petitioner submitted it. But the same was returned to her with an endorsement on the said marks list in the column of results to the effect "F-incorrect memo corrected" dated 15-5-1998. It is further stated in the affidavit that when the petitioner asked the respondent authorities about the correction in the marks list, they told her that she has not secured minimum Marks in supplementary Chemistry examination of 1995. The petitioner has secured 38 out of 100 marks in Theory paper and 43 out of 50 in practical examinations. She has secured 81 marks out of 150 in Chemistry and in those circumstances the University declaring her results in first year Chemistry as failed is incorrect and withholding the results of fourth year was wrong. In these circumstances the petitioner made a representation to the 3rd respondent in the year 1998 slating all these facts and subsequently she got issued a legal notice, dated 26-5-1998 requesting the University either for waiver of the minimum marks or for conducting an instant examination. But the respondent University did not take any action in that behalf. In these circumstances the petitioner has filed this writ petition.
4. By filing counter the respondents denied the allegations made by the petitioner. They contended that the petitioner was fully aware of the fact that she has failed in the Chemistry as seen from the representations made by heron 26-5-1998 and 18-5-1998. In those representations she has requested to waive the minimum marks condition and pass the petitioner. But in fact, there is no rule wherein the respondent can pass a failed . candidate. There is not provision for waiving such a minimum marks also. They further stated that as per the University Rules, a candidate must score minimum marks of 36 in every subject and a person should also secure aggregate marks of 40% after adding up the marks of internal assessment an annual examination and this rule has been in force from the year 1991. But the petitioner has secured 38% in the Chemistry subject in the supplementary examination of I995. Therefore she was correctly declared to have failed in Chemistry. They further stated that in the memorandum of marks 'P' is typed due to clerical error. If a person has secured 38 marks, 'P' should not have been indicated in the memorandum of marks, and 'P' as found in the memo of marks is a typographical mistake. When the University has noticed the same, the same was corrected and accordingly corrected marks were issued to the petitioner declaring the results as failed. It is further stated in the counter that the rules governing the examinations of the Osmania University provide for adjustment of some marks and grace marks so as to enable the student to pass any subject and accordingly there was an adjustment in the marks of the petitioner so as to enable the petitioner to pass the Chemistry III, (of the 3rd year) they have given the adjustment as follows :
Zoology III 27 +26/22-4 53/594 Chemistry III 22 17+4+ 18/22 44P.
5. Explaining this aspect the learned Counsel for the respondent stated that some adjustment is made whenever a student fails by few marks in a particular paper, some marks may be added to a particular paper by deducting equal number of marks from some other paper where the petitioner has passed with surplus marks. In the instant case she passed Chemistry III by adjusting the marks in such a manner that her four marks in two papers in Zoology were taken out and they were added to the Chemistry so as to see that the petitioner passes in Chemistry-III. When I asked the rule, enabling such adjustment the learned Counsel for the petitioner brought to my notice some rules which prima facie do not enable such adjustment at all. It is the case of the respondents that in the case of the petitioner there was a typographical error and the same was corrected in her marks card and she did not pass in the Chemistry of the first year. Infact, the final results are declared only after verification of the records of the first, second, third and fourth year. In the cross checking of manual records in the register with the computerized records of each candidate they found that the petitioner in fact, failed in Chemistry I in supplementary examination 1995 and she has not appeared in the said examination subsequently. Therefore the results of the petitioner were withheld. In those circumstances correcting her memorandum of marks as 'F' is only correcting the typographical mistake. They further contended that the case of the petitioner that both the marks of theory and practical examinations should added so as to arrive at minimum passing marks is not correct and it is not statutorily permissible. Moreover, after receiving the representation from the petitioner, the same was placed before the University-College for Women Advisory Committee and the said Advisory Committee requested for waiver of minimum marks but the same was not accepted. On these grounds the respondents submitted that absolutely there are no grounds in the writ petition and the same is liable to be dismissed.
6. The learned Counsel for the petitioner strenuously contended that when the petitioner was declared to have passed in the Chemistry-I by issuing memorandum of marks, the respondents are estopped to putforth any other contention. He further contended that the petitioner relied upon the memorandum of marks of the first year, noting as 'P' and appeared for the subsequent examinations and she has passed all the examinations in the annual examination or in the supplementary examination, and at the end of fourth year the respondent University could not have corrected her memorandum of marks as 'F' so as to declare that she has failed in the first year Chcmistry-I. This action of the respondent University is contrary to the principle of estoppel. On the other hand the learned Counsel appearing for the respondent University contended that while issuing memorandum of marks it was wrongly typed as 'P' instead of 'F' and as per the said memorandum of marks the petitioner has not Secured minimum marks required in the Chemistry-I and under such circumstances the principle of estoppel does not apply. He further submitted that whenever that is a typographical error, the University is entitled to correct it. In the instant case before declaring the results of the fourth year, when the computer marks were compared with the original marks, it was found that there was a mistake and the same has been corrected. The fact remains that the petitioner has failed in Chemistry-I for not scoring minimum marks required.
7. When I noticed that the University has adopted a method of taking out certain marks from other subjects in which the candidate has passed and adding the same to the paper in which such candidate has failed and make such an adjustment so that ultimately the candidate has passes, prima facie as not correct, I directed both the University and the College to furnish the rules regarding the annual and internal assessment examinations. Rasing on these rules it is the case of the respondent University that for passing any paper one should score minimum 36% in each paper and the candidate should also score aggregate at 40% after adding the marks of internal assessment and annual examinations. He further submitted that the petitioner has scored only 27 marks in the internal test and 11 marks in the theory paper and in aggregate the pelitioner has secured 38 marks. By relying upon the memorandum of marks filed in the material papers he submitted that the petitioner has secured 36% in the paper but she has not secured 40% in aggregate as required. In order to appreciate this aspect I think it appropriate to extract Rule III as under:
Rules of Passing:-
"a) To be eligible for a pass in a subject a candidate must score a paper minimum 36% in annual examination.
b) Must also score a combined paper aggregate of 40% after adding up the marks of internal assessment and annual examination. This rule will be implemented form the year 1990-91."
8. From the reading of the above rule it is clear that a person should secure in a paper minimum of 36% in that annual examination and 40% aggregate of the internal assessment and annual examination. From the marks fist filed before this Court I find that the petitioner has scored only 27 marks in the internal assessment and 11 in the annual examination. From this it follows that the petitioner has not scored 36% marks in the annual examination in theory paper.
9. Even taking the internal assessment at 27 an the annual examination at 11, total marks come to 38, which is less than aggregate of 40% required under Rule HI (b). Having regard to these circumstances, according to the rules, the petitioner has failed in Chemistry-I. Therefore, 'P' shown in the memorandum of marks is a typographical mistake. Unfortunately the same was noticed when the verification was done for the purpose of declaring the final examination results in the fourth year. On the basis of this fact I have to see whether the doctrine of estoppel applies to this case or not.
10. The contentions of the learned Counsel for the petitioner relying upon number of judgments of the Supreme Court is that since the petitioner relying upon the memorandum of marks of the 1st year showing 'P' the petitioner has appeared for subsequent examinations without any objections from the University and at the end of the fourth year, the respondent University cannot contend that the pelitioner has failed in Chemistry of the first year and the Respondent-University is estopped to do so. Earlier I had occasion to consider similar question in writ petition No. 18389 of 1997. By relying upon the judgments of the apex Court now cited by the learned Counsel for the petitioner and also some other judgments 1 held that the rule of promissory estoppel cannot be invoked perpetuate the violation of provision of law and the rule of estoppel is not available in respect of ultra vires acts of the statutory body/authority, nor can it be invoked to compel the Government or public authority to carry out a promise, which is contrary to law or ultra vires of its powers.
11. I think it appropriate to extract the relevant part of the judgment dated 12-03-1998:-
"The above case also was a case relating to the students and in this case, the Hon'ble Supreme Court clearly laid down the law that rule of promissory estoppel cannot be invoked to perpetuate the violation of provision of law and the rule of estoppel is not available in respect of ultra vires acts of the statutory body/ authority, nor can it be invoked to compel the Government or a public authority to carry out a promise, which is contrary to law or ultra vires of its powers".
12. The law declared in the said judgment equally applies to the facts of this case. In fact, in a recent judgment dated 13-2-1998 the Supreme Court in S.L.P.No.18S53 of 1997 laid down certain guidelines with a direction to all the High Courts, which I am also extracting in this Case for immediate reference:
"Occasional aberrations such as these, whereby ineligible students are permitted, under Court orders, to undertake Board and/or University examinations, have caught the attention of this Court many a time. To add to it further, the Courts have almost always observed that the instance of such aberrations should not be treated as a precedent in future. Such casual discretions by the Court is nothing but an abuse of the process; more so when the High Court at its level itself become conscious that the decision was wrong and was not worth repeating as a precedent. And yet it is repeated time and again. Having said this much, we hope and trust that unless the High Court can justify its decision on principle and precept, it should better desist from passing such orders, for it puts the 'Rule of Law' to a mockery, and promotes rather the 'Rule of Man'.
All the same, found hopes were raised in the minds of the students herein. Therefore, we decline to interfere under Article 136 of the Constitution. The S.L.Ps. are, accordingly, dismissed."
13. From the above observations of the Supreme Court it is clear that any observations made earlier may not be repeated unless the High Court can justify its decision on the basis of the principle and precept. It is an established principle of law that there cannot be an estoppel against the statute. The statute requires that the students shall secure minimum percentage of marks. If there is any clerical or typographical mistake, such a mistake comes in the way of such statutory requirement. There may be a case in which a person might have been declared as failed wrongly due to certain typographical mistakes and in such a case it is always open for the University to correct its results suo/motu or when such a mistake is brought to its notice and declare the student as passed. The instant case is reverse case in which the result of the petitioner was declared as passed but on the basis of the results found in the record the petitioner infact has failed and the same was due to the typographical mistake. In these circumstances I am of the opinion that the petitioner is not entitled to the benefit of the doctrine o estoppel.
14. From the counter filed by the respondents it appears that the both the University and respondent-College are making certain adjustments of marks in such a way that some amount of marks are taken away from the paper in which a person scored surplus marks and that amount of marks were added to the Paper in which a person has failed. Prima facie finding that such a method is contrary to the accepted norm in India and other foreign Universities. I asked the learned Counsel appearing for the University and also the College to produce relevant rules. Having gone through those rules I find that Rule No.VI is the only rule for providing adjustment of marks which reads as follows:
"Adjustment of Marks:
a) where a Candidate is failing in any examination for want of a few marks in one or more papers, adjustment of marks shall be made as follows, provided such adjustment or adjustment together with grace marks permissible under rules ( ) enables the candidate to pass/complete/ get promoted in the examination.
b) the adjustment of marks shall be confined to the papers where at the candidate has appeared, whether backlog or regular, without disturbing the marks in any examination conducted earlier where the results have already been declared.
c) The total marks to be adjustment shall not exceed 1% of the aggregate marks of the papers of the examinations in which the candidate has appeared, subject to the condition that the total marks to be adjusted, shall not exceed five (5). The adjustment of marks in individual papers will be subject to the following:
3 marks where the paper maximum is 50 and below.
4 marks where the paper maximum is between 51-75-60.
5 marks where the paper maximum is 76 and above.
Adjustment of marks and/or grace marks can be awarded for reduction of backlogs also."
15. From the reading of the above rule, which is relied upon by the learned Counsel for the University, 1 find that this rule does not provide for any such adjustment of the type pleaded in this case. From the reading of this rule it appears that 5 marks could be added by way of an adjustment as a sort of grace marks subject to Rule VII which reads as follows:
Grace Marks:-
If a candidate is likely to be promoted/ completed/pass/or improve her division by adding 1 and 2 marks, grace marks be added upto a maximum of 2 marks. In this context, division includes pass to 2nd class/2nd class to 1st class/lst class to distinction. Further, wherever the aggregate required for a pass works out to be a fraction, the fraction has to be rounded off to the next lower integer. If necessary, the benefit of adjustment and grace marks together may be extended to a candidate".
16. From the reading of the Rules VI and VII it cannot be said that these rules enable the University or the College to substract some marks from one subject in which a person has secured surplus marks and add those marks to the paper in which such a candidate has failed. However, the learned Counsel for the University contended that this has been the practice. 1 do not think that there can be any practice contrary to the rules and if there is any such practice, it can be described as wrong practice. This practice also appears to have been adopted even in the case of this petitioner in the earlier examination when she failed in Chemistry-11. However, I do not think that it is an appropriate case for reopening the entire matter. It is enough for me to say that having regard to the fact even in the earlier occasion the petitioner was declared to have passed in the Chemistry Examination following the above said wrong or illegal practice only. I do not think that the petitioner is entitled for any reliefs sought before this Court. At the same time I think that it would not be in the interest of justice and equity to upset the results of the earlier examination of the petitioner. But, I propose to direct the respondent University and also the College not to continue this practice which is prohibited by these rules and if there is any rule providing for such an adjustment, such rules would be illegal and contrary to the provisions of the University Act and the rules and also contrary to Article 14 of the Constitution of India, since such a rule if any would enable the authorities to exercise the power arbitrarily and in a discriminatory manner.
17. It is now brought to my notice that after the impugned proceedings the petitioner has taken up supplementary examination in Chemistry-I of the first year and she has also passed in the said examination.
18. For the above reasons I do not find any merits in the writ petition. Accordingly the same is dismissed. At the same time I direct the respondents including the Osmania University not to follow and continue the practice of adjusting the marks so as to take out certain marks from the paper in which candidate has scored surplus marks and add the same to the paper in which the candidate has failed in order to pass the candidate. If there is any rule providing for that, the same is declared as illegal. No costs.