Orissa High Court
Smt. Geeta Mishra vs Utkal University Represented By The ... on 8 September, 1970
Equivalent citations: AIR 1971 ORISSA 276, ILR (1971) CUT 242
JUDGMENT G.K. Misra, C.J.
1. The facts referred to in the writ application and the application for stay may be stated in short in chronological order. The petitioner was a student of the 1st year Degree Class (Arts) in Shailabala Women's College during 1969-70. Having been duly sent up, she was admitted by the Utkal University to the final examination of the 1st Year Degree which was held in April, 1970. Her roll number was 5747. She appeared in English. M.I.L. and General Studies which were compulsory subicets and in Sanskrit. Logic and Home Science as optional subjects. On 26th of June, 1970 the result of the University examination was published and her name was found amongst the successful candidates. She got her Provisional Certificate (annexure '2') from the University on 3-7-70. The Provisional Certificate runs thus:
"Utkal University Provisional Certificate No. 1526 This is to certify that Geeta Mishra has passed the First B. A. Roll No. 5747 examination held in the month of April, 1970 from S. B. Women's College. Cuttack and was placed in Third Division. Her subjects were English, M. I. L. (Oriya), General Studies. Home Science. Logic and Sanskrit. University Office, Vani Vihar, Bhubaneswar. Dated the 3-7-70.
Sd/Illegible 3-7-70 Deputy Registrar."
On 6-7-70 the Principal Shailbala Women's College, furnished to the petitioner her mark-sheet (Annexure '3') as supplied by the University. Annexure '3' may be extracted in toto:
"Office of the Principal.
Shailabala Women's College, Cuttack.
To, Geet Misra The following marks were awarded to her at Annual 1st Year Examination of 1970.
Roll No. 5747 Regd. 7932/68 Subject Mark + awarded Maximum marks.
English ....80 100
M. I. L. (0) ....18 50
General knowledge ....14 50
Classical subjects (3) ....30 100
Economics/Logics/Philosophy/History ....62 100
....63 100
XX XX XX XX Total 197 800 Sd/- Illegible Principal.
Shailabala Women's College, Cuttack."
The last date for filling up forms for the Second Examination (Supplementary) of the 1st Year Degree was 6-7-70. That was also the last date for filing application in the S. B. Women's College for admission into the 2nd year B. A. Degree Course. The petitioner filed an application for admission into the 2nd Year Degree (Arts) Class on the basis of the mark-sheet and the Provisional Certificate. When the authorities of the S. B. Women's College found from the mark-sheet that the petitioner had secured 14 out of 50 in General Knowledge (same as General Studies) and was thus short of one mark from the pass mark, she was advised by way of abundant caution to fill up forms for the Supplementary Examination of the 1st Year Degree (Arts). 1970 scheduled to be held on 28th August. 1970. To be on the safe side, the petitioner filled up forms for the Supplementary Examination on Payment of Rs. 15/- which is prescribed as the fee for a single subject (see Utkal University Statute (hereinafter to be referred to as Statute) 206 in Chapter XXIII). The examination fee for the Second Examination of the 1st Year Degree is Rs. 35/- if the candidate is to appear in more than one subject.
On 14-7-70 the Principal, Shailabala Women's College (opposite party No. 4) intimated the petitioner that she was required to take admission into the 2nd Year Degree Class on 21-7-70.
On 17-7-70 the petitioner received an intimation from opposite party No. 4 that no seat was available to her to take admission into the 2nd Year Degree Class as the result of her success in the 1st Year Degree University Examination had been cancelled by the University by Notification No. 6112 dated 7-7-1970 (hereinafter to be referred to as the impugned notification).
The petitioner accordingly filed O. J. C. No. 753 of 1970 to cancel the impugned notification and for a declaration that the petitioner had passed the 1st Year Degree (Arts) Examination, as originally announced by the University.
On 7-8-1970 counter was filed by the Vice-Chancellor (O.P. No. 1). Registrar (O.P. No. 2), and Deputy Registrar (O.P. No. 3). For the first time it was disclosed therein that the petitioner initially secured 25 marks in English out of 100, the pass mark being 30, and that by inadvertence her case was referred to the Board of Conducting Examiners (hereinafter to be referred to as the Board) which awarded 30 marks to her in English and that the reference so made was contrary to Rules I and II (b) of the Hard Case Rules (Annexure '6'). It would thus be seen that for the first time the petitioner came to know on 7-8-70, more than a month after 6-7-70 which was the last date for filling up forms for appearing in the Supplementary Examination, that she had failed in English by 5 marks. If the petitioner had known that she was again to appear in English in the Supplementary Examination, she would have filled up the form for English on 6-7-70 on payment of an additional examination fee of Rupees 20/-.
As opposite party Nos. 1 to 3 foisted a surprise by advancing a new case in the counter-affidavit in O.J.C. No. 753 of 1970 which was contrary to the mark-sheet supplied to the petitioner by the University, she sought permission for withdrawing the writ application. On 14-8-70 O.J.C. No. 753 of 1970 was permitted to be withdrawn and on the same day the present writ application was filed.
On 22-8-70 the petitioner was informed by opposite Party No. 3 through opposite party No. 4 that she would have to appear both in English and General Studies in the Supplementary Examination to be held on 28-8-70. Opposite party Nos. 1 to 3 did not intimate the petitioner that she would have to appear in the Supplementary Examination in English though she had not filled up the form for that subject.
On 24-8-70 the petitioner filed an application for an interim direction from this Court that she should be allowed to sit for the Supplementary Examination only in General Knowledge for which she had filled up the form and not in English for which she had not filled up the form; nor had Paid the additional examination fee of Rs. 20/-.
On 25-8-1970 this Court passed the following order after hearing the learned Advocate for the parties:
"Opposite parties Nos. 1 to 3 are directed to permit the petitioner, Smt. Geeta Misra, to appear in the Supplementary Examination in the subject General Studies only. Whether she shall have to appear in one subject or in both the subjects or will be declared to have passed in the final examination of 1st Year Degree, will be considered in the writ application itself".
2. The aforesaid facts are not disputed in the counter-affidavit. The essence of the averment in the counter is that the petitioner initially failed in two subjects--English and General knowledge -- and her case could not have been referred to the Board under the Hard Case Rules. Rules I and II (b) which are relevant may be Quoted:
"Utkal University.
Hard Case Rules for the First Year Degree and Pre-professional Examination.
I. The Board of Conducting Examiners shall re-examine the following cases:
Candidates failing in one subject only in written pacers not considering aggregate as a subject for 5% or less marks. This will not be applicable to extra optional subjects. II. The following cases shall be considered by the Board of Conducting Examiners.
(a) xx xx xx
(b) Candidates failing in two subjects only (considering aggregate as a subject) for 10 marks or less in written papers provided the deficiency in each of these subjects is 4% or less".
Thus the stand of opposite party Nos. 1 to 3 that even though the Board on re-valuation assigned 30 marks to the petitioner in English, the same is to be ignored as the reference itself was contrary to rules and the petitioner shall be taken to have secured 25 marks in English as was intially awarded, and that as she has failed in two subjects and the deficiency in English is 5%. Hard Case Rule II(b) has no application and that the petitioner shall have to appear both in English and General Studies in the Supplementary Examination.
3. Though the prayer in the writ application was to declare illegal the order of the University withdrawing the result of the petitioner as published in Annexure '1', in the course of hearing Mr. Palit fairly conceded that the petitioner cannot be declared to have passed the 1st Year Degree Examination on account of her failure in General Studies and that she shall have to appear at the Supplementary Examination in General Studies. The concession is well founded. Initially the petitioner failed in two subjects. In English and General Knowledge she failed for a shortage of 5 per cent, and 2 per cent, respectively. Rule II (b) of the Hard Case Rules has no application. The petitioner's case could not be considered by the Board either in English or in General Studies. The petitioner cannot be declared to have passed in General Studies and rightly she filled up the form for General Studies for the Supplementary Examination.
4. The real controversy centres round the question whether the University is justified in insisting upon the petitioner to appear in English again despite her securing the pass mark of 30 in the hand of the Board.
5. Mr. Palit advances three contentions:
(i) The Board under Statute 203 conducts the examination and has power to publish the results even though under the Hard Case Rules the petitioner's paper in English could not have been referred to the Board; re-valuation by the Board does not affect its inherent jurisdiction but is merely an irregular exercise of jurisdiction. In that view of the matter the mark assigned by the Board would be operative and it is not open to opposite party Nos. 1 to 3 to insist upon the petitioner to again appear in English.
(ii) Even assuming that the mark assigned by the Board is to be ignored as the reference was without jurisdiction, opposite party Nos. 1 to 3 are estopped from disputing that the petitioner has secured 30 marks in English.
(iii) Once the result of the 1st Year Degree Examination was published and the petitioner was declared to have passed, the cancellation of the result amounts to an exercise of a quasi judicial function adverse to the interest of the petitioner, and that the result cannot be cancelled without the petitioner being given a full opportunity of presenting her case: the cancellation of the result by the impugned notification was in violation of principles of natural justice.
Mr. Rath, on behalf of opposite party Nos. 1 to 3, challenges the correctness of each of the aforesaid propositions. The contentions require careful examination.
6. Section 10(4) of the Utkal University Act, 1966 (Orissa Act 20 of 1966) (hereinafter to be referred to as the Act) deals with the functions and powers of the Syndicate. It says:
"10 (4) Subject to the provisions of this Act and the Statutes the Syndicate shall perform the functions and exercise the powers as herein specified, namely:
X X XX (f) control of examination; "
The word 'control' carries the following meanings as given in the Chambers's Twentieth Century Dictionary:
"Restraint: authority; command; regulation; a check: a means of controlling or testing."
It is thus a word of wide connotation. This is however subject to the provisions of the Act and the Statutes. Though the case of the petitioner is not covered by the Hard Case Rules it is within the power of the Syndicate under Section 10(4)(f) of the Act to declare that the petitioner has passed in English after the Board assigned pass mark to her. It is to be remembered that the Board of Conducting Examiners is a high-power body. It consists of a number of examiners having expert knowledge and proficiency in a particular subject. Consequently, the marks given by the Board carry greater authority and weight than the marks awarded by an individual examiner. The Board does not lack inherent jurisdiction to revalue papers; only on fulfilment of certain conditions as prescribed in the Hard Case Rules the Board revalues the papers. Thus it is not a case of lack of inherent jurisdiction but is one of irregular exercise of jurisdiction. The distinction between the two expressions is well known. In the case of lack of inherent jurisdiction, the ultimate outcome of the exercise of the power is a nullity and void while in the case of irregular exercise of jurisdiction the result can be accepted as valid in certain circumstances. In this case, the petitioner's English paper should not have been referred to the Board. By mistake of the office it was however referred. The Board revalued the same by awarding pass mark. The Board does not lack inherent jurisdiction to examine such papers. In this particular case the exercise of jurisdiction is irregular inasmuch as the necessary conditions prescribed in the Hard Case Rules were not fulfilled. The matter was overlooked till the result was declared Bv the Syndicate. In such a state of affairs the Syndicate has got the power under Section 10 (4)(f) of the Act to accept the result despite the irregularity committed in making the reference. On the aforesaid analysis, we are of the opinion that the mark awarded by the Board cannot but be accepted as valid-It is to be noted that statute 203 prescribes that the examinations shall be conducted by duly constituted Boards of Examiners appointed for the purpose by the Syndicate, who shall have power to publish the results of such examinations as and when received from the Boards of Examiners. The power of the Board seems to be very wide. After a particular paper is examined by the Board, it is difficult to say that the result of such examination is void merely because the reference was irregular. On the other hand, the Statute seems to point to the conclusion that the Syndicate shall have power to publish the result of an examination conducted by the duly constituted Board.
7. The next question for consideration is whether opposite party Nos. 1 to 3 are estopped from questioning the success of the petitioner in English even assuming that the reference to the Board was contrary to the rules and the Board had no power to award the pass mark. The principle of estoppel is a rule of evidence and is embodied in Section 115 of the Indian Evidence Act. It runs thus:
"When one person has, by his declaration act, or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing."
There can be no dispute that opposite party Nos. 1 to 3 by their declaration in the mark-sheet that the petitioner secured 30 marks in English caused or permitted the petitioner to believe that she has passed in English. The last date for filling up the form for the Supplementary Examination was 6-7-70. By that date she knew that she had passed in English and accordingly did not fill up the form for English. Thus she acted upon the belief based upon the mark-sheet that she had passed in English. In terms of the section, opposite party Nos. 1 to 3 cannot be allowed to deny the truth of the fact that the petitioner secured pass mark in English provided the representation was intentionally caused. Mr. Rath contended that what was done by the University was purely by mistake and not by fraud or any other animus to establish that it was intentional. The meaning of the word "intentionally" as used in the section is no longer res integra. In the leading authority on the point in Sarat, Chunder Dev v. Gopal Chunder Laha, (1892) 19 Ind App 203 (PC) it was observed thus:
"A person who, by his declaration, act, or omission, had caused another to believe a thing to be true and to act upon that belief, must be held to have done so 'intentionally' within the meaning of the statute, if a reasonable man would take the representation to be true, and believe it was meant that he should act upon it"
This decision has been accepted as laving down good law in R. S. Maddanappa v. Chandramma, AIR 1965 SC 1812. The mark list given to the petitioner showed that she had secured pass mark in English. Any reasonable man would take this representation to be true and believe it was meant that he should act upon it. The representation was therefore intentionally made. All the ingredients of the section have thus been fulfilled and opposite party Nos. 1 to 3 are estopped from challenging the petitioner's mark in English being 30.
The estoppel arose not only from the active representation made on the basis of the mark list but also out of negligence on the part of the University.
On 7-7-70 the impugned notification was issued cancelling the result. This fact was however intimated to the petitioner on 7-8-70. From the mere fact of cancellation the petitioner got no opportunity of knowing that she had failed in English. From the mark list she knew that she had failed in General Knowledge. The impugned notification was therefore consistent with her failure in General Knowledge. A duty had been cast on the University at the time of cancellation of the result to clearly intimate the petitioner that she had failed in English which was not indicated in the mark-sheet and the circumstances in which the University came to such a conclusion. The University should have further intimated the petitioner that as this matter was brought to the notice of the petitioner very late, the University was prepared to condone the delay in filling up the form for the Supplementary Examination. In other words, the University suo motu should have intimated the petitioner that as the fact of her failure was brought to her notice subsequent to the expiry of the date for filling up the form for Supplementary Examination, she was granted extension of time not only to fill up the form for English but in paying up the additional fee of Rs. 20/-. None of these things the University did until 22-8-70 when the petitioner was baldly intimated that she would appear in both the subjects. Even then also she was not granted the privilege of having extension of time for filling up the form for English and paving the additional fee. Even if that extension of time had been granted to her, it was too late for her to prepare for English as the Supplementary Examination was to take place hardly six days after on 28-8-70. Thus, there was gross negligence on the part of the University as a result of which there was a detriment to the interest of the petitioner in not being able to apply for the Supplementary Examination for English in time with the necessary examination fees. The detriment which the petitioner thus suffered was the proximate or the immediate cause of negligence of the University authorities. The principle of estoppel arising out of negligence of the University is thus fully applicable to this case. (See New Marine Coal Co. (Bengal) Private Ltd. v. Union of India, AIR 1964 SC 152).
This case is more or less analogous to the facts in University of Delhi v. Ashok Kumar Chopra, AIR 1968 Delhi 131.
8. On the aforesaid analysis we are clearly of opinion that opposite party Nos. 1 to 3 are estopped from denying that the petitioner secured 30 marks in English in the 1st Year Degree Examination.
Mr. Rath's contention that the principle of estoppel has no application to a representation made under mistake has no substance. In the very Privy Council case it was laid down that in such a case the result may be unfortunate but it would be unjust, even though a person acted under error to throw the consequences on the person who believed his statement and acted on it as it was intended he should do. Similarly a fraudulent intention is also not essential to create an estoppel.
9. The last contention of Mr. Palit is that in cancelling the result of the examination by the impugned notification the Syndicate was exercising a quasi judicial function. In such a case, before the result is cancelled the petitioner should have been given a full opportunity of presenting her stand and in the absence of issue of notice, principles of natural justice have been violated. Admittedly, no notice was served on the petitioner before the impugned notification cancelling the result was issued. In support of his contention reliance was placed on Board of High School and Intermediate Education U. P. v. Kumari Chittra Srivastava, AIR 1970 SC 1039. The decision fully supports Mr. Palit's contention. Their Lordships even went to the extent of saying that whether a show cause notice is necessary depends on the nature of the order proposed to be passed and not on the authority's satisfaction that the person to be penalised has no defence. In that particular case as no notice had been given, the cancellation of the result was quashed. Their Lordships however expressed the view that it was not for the Court to declare the result; but the competent authority on examination of the matter was to take its own final decision.
In view of our conclusion that opposite party Nos. 1 to 3 are estopped from questioning that the petitioner has passed in English, it is not necessary for us to express any final opinion on the third proposition.
10. In the result, the prayer of the petitioner for a declaration that she has passed in the final 1st Year Degree Examination is rejected. A writ of mandamus be issued to opposite party Nos. 1 to 3 directing them to treat the petitioner as having passed in English in the same examination. The writ application is allowed in part with costs as indicated above against opposite party Nos. 1 to 3. Hearing fee is assessed at Rs. 100/-.
B.C. Das, J.
11. I agree.