Calcutta High Court (Appellete Side)
Prabir Kumar Moitra & Anr vs Smt. Maitraiee Rooj on 19 December, 2008
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
(APPELLATE SIDE)
Present:
The Hon'ble Justice Pratap Kumar Ray
And
The Hon'ble Justice Prasenjit Mandal.
M.A.T. No. 2712 of 2007
A.S.T.A. No. 979 of 2007
+
F.M.A. No. 725 of 2005.
Prabir Kumar Moitra & Anr.
Versus
Smt. Maitraiee Rooj.
For Appellants : Mr. Bikash Ranjan Bhattacharya
Mr. Debraj Bhattacharya
Ms. Krishna Ray.
For Respondent : Mr. D.N. Roy
Mr. Asim Hati
Ms. Munmun Tewary.
Heard On :
Judgment On : 19TH DECEMBER, 2008.
Pratap Kumar Ray,J.
Challenging the judgment and order dated 2nd September, 2004 passed by learned trial Judge in W.P. No. 295 (W) of 2003 whereby and where under learned trial Judge allowed the writ application directing the Council of Homeopathic Medicine to issue Internship and/or Apprenticeship Certificate and all other Certificates, which the petitioner was entitled to get after successful completion of DHMS Course (Diploma in Homeopathic Medicine & Surgery) to the petitioner positively within a period of 8 weeks from the date of communication of the order without creating any precedence in this regard, this appeal has been preferred by the Council of Homeopathic Medicine, West Bengal, a body corporate established under the West Bengal Homeopathic System of Medicine Act, 1963 and the Registrar-Principal Officer, Council of Homeopathic Medicine, West Bengal, which was registered as MAT 858 of 2005 subsequently renumbered as FMA 725 of 2005.
In connection with the said appeal, a stay application was filed by the appellants registered as CAN 2428 of 2005, which was disposed of on 17th May, 2005 by the appeal Court directing to issue the Certificates in pursuance of the direction of learned trial Judge subject to the result of the appeal.
A contempt application was filed in the meantime before the learned trial Judge registered as CPAN 317 of 2005, wherein a rule was issued subsequently, numbered as WPCRC 6066 (W) of 2005. In the said contempt rule on 7th September, 2007, a direction was passed directing to comply with the order passed by the learned trial Judge on 2nd September, 2004 within 23rd November, 2007 with a rider to suffer punishment in default and matter was fixed on 23rd November, 2007 for further order. Challenging the said order in contempt rule dated 7th September, 2007 another appeal has been preferred registered as ASTA 979 of 2007 now renumbered as MAT 2712 of 2007. A stay application was filed in connection with the said order passed in the contempt rule, wherein the Court passed an order of stay. This appeal also has been heard along with the main appeal assailing the judgment and order passed by the learned trial Judge in the writ application.
The factual matrix of the writ application registered as W.P. No. 295 (W) of 2003 is very short. Writ petitioner had set up a case that despite passing of the 1st, 2nd and 3rd DHMS Examination, the Principal of B.V. Homeopathic Medical College, Sainthia, a college wherefrom she appeared in the said examinations as a student, did not issue Internship/Apprenticeship Certificate to continue her next phase of study as an Internee/Apprentice in accordance with the Rules and Regulations framed by the Council. It was contended that verbally the Principal of said college refused to grant it on the ground that her admission in DHMS Course was illegal due to lack of minimum academic qualification required for admission in the Course, namely, pass of Intermediate Science or equivalent with Physics, Chemistry and Biology. It was the further case of the writ petitioner that when she approached the Council of Homeopathic Medicine, West Bengal, hereinafter for brevity referred to as "said Council", seeking justice to grant Certificate, the said authority had asked her to appear along with documents of original mark-sheet and student registration certificate for verification. She appeared and produced the mark-sheet issued by the West Bengal Council of Higher Secondary Education declaring her as passed candidate of Higher Secondary Examination with Physics, Biology and Philosophy, but the Council echoed the same view of the Principal that she did not satisfy the minimum eligibility qualification for admission in said DHMS Course as she did not pass the Higher Secondary Examination with Physics, Chemistry and Biology and more particularly, as she failed in the subject Chemistry in the said Higher Secondary Examination, which was her 3rd subject, which got a shift to 4th subject for inclusion of Philosophy as a 3rd subject to declare her a pass candidate of Higher Secondary Examination, as per her volition.
In the writ application petitioner accordingly prayed for writ of mandamus and necessary orders/directions in terms of prayer (a) to (d) with an interim order in terms of prayer (e) along with other prayers of appropriate direction. The prayers of the writ application read such:
"(a) Writ of and/or in the nature of Mandamus commanding thereby the respondent authorities particularly the respondent nos. 4 and 5 in the instant writ application to promptly release the petitioner appernship/apprenticeship certificates and all other certificates she is entitled to get after successful completion of her DHMS Course without any further delay.
(b) A Writ of and/or in the nature of Mandamus commanding thereby the respondent authorities to grant the petitioner a compensation for the permanent anxiety caused to her since 1999 she has been made to suffer by the council as well as the college.
(c) A Writ of and/or in the nature of Certiorari directing thereby the respondent authorities particularly the respondent Nos. 4 and 5 herein to transmit unto this Hon'ble Court and all other records relating to the case of the petitioner, so that after perusal of such records and after hearing all the parties conscionable justice may be administered to the petitioner.
(d) Rule NISI in terms of prayers (a) to (c) above.
(e) An interim order commanding thereby the respondent authorities including their men, agents and subordinates to allow the petitioner to start her private practice as a doctor during pendency of the instant writ application.
(f) Rule NISI in terms of prayer (e) above.
(g) Any other appropriate Order/Orders, Direction/Directions as this Hon'ble Court may deem fit and proper to secure the ends of justice."
The Registrar of Council of Homeopathic Medicine, West Bengal, respondent no. 4, opposed the writ application by filing affidavit-in-opposition on behalf of respondent nos. 1 to 4, namely, the Council of Homeopathic Medicine; the Secretary of the said Council; the Chairman of the said Council and for himself. A legal question was taken that there was no question of applicability of doctrine of estoppel in view of the very fact that the writ petitioner did not satisfy the minimum eligibility qualification for admission in the said Course in terms of Regulation 4 of Homeopathy (Diploma Course) Regulation, 1983, hereinafter referred to for brevity as "Homeopathy Regulation, 1983", framed and constituted in exercise of the powers conferred by Clauses (i), (j), (k) of Section 33 and Sub- section (1) of Section 20 of the Homeopathy Central Council Act, 1973 by the Central Council of Homeopathy with the previous sanction of the Central Government, which provides that no candidate should be admitted in the said Course unless he or she passed the Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his or her subjects. In the opposition it was further contended that writ application was not maintainable relating to the prayers made as there was no scope to grant any diploma to the writ petitioner as admittedly she did not complete the Internship Course of 6 months duration after passing the final Diploma Examination by attaching herself at the hospital or dispensary run by the Central Government or State Government or local bodies in terms of Regulation 3 of said Homeopathy Regulation, 1983. In the said opposition further point was taken that writ application should be dismissed as non-maintainable.
The College Authority, namely, the respondent no. 5, filed an opposition to oppose the writ application, which was affirmed by Principal of Birbhum Vivekananda Homeopathic Medical College and Hospital, Sainthia, Birbhum. In the opposition, it was averted that writ petitioner did not qualify with requisite minimum educational qualification for admission in the said Diploma Course in terms of said Homeopathy Regulation, 1983. It was contended that she exercised fraud and misrepresentation by disclosing the fact that she passed the Higher Secondary Examination in the Bio-Science stream with the subjects Physics, Chemistry and Biology. It has been further contended therein that in connivance with the Clerk who was entrusted to check-up the application form and the relevant papers annexed thereto, she got her admission and as such, the concerned Clerk responsible for checking was subsequently removed from service. The Principal took the said stand similar to the Council about her eligibility to continue the Course in view of basic lack of admission qualification in terms of the Regulation 4 aforesaid.
In the affidavit-in-reply of the affidavit-in-opposition of respondent nos. 1 to 4 that is of the Council, in paragraph 5 the writ petitioner submitted categorically by affirming the same as true to her knowledge by contending that she possessed the requisite qualification as per Regulation 4 because she passed with Physics, Chemistry and Biology in Plus Two Course. It was further contended that there was no whisper that Chemistry was not her main subject but an optional subject. In the reply, a point of legitimate expectation for grant of Internship Certificate due to completion of theory examinations of said Diploma Course, was asserted.
On hearing the case of respective parties learned trial Judge on 2nd September, 2004 passed a long judgment, which reads such:
"The petitioner was admitted in D.H.M.S. Course at B.V. Homeopathic Medical College, Sainthia, an institution affiliated with the Council of Homeopathic Medicine, West Bengal, in 1994.
The duration of D.H.M.S. Course is of four years which is divided by three parts and each part consists of a period of one and half year.
The name of the petitioner was registered as a student of the Council of Homeopathic Medicine, West Bengal and certificate was also issued by the said Council accordingly. The registration Certificate issued by the Council being Annexure 'P-2' to this writ petition shows that the name of the petitioner was registered as a student of the said Council as back as on 22nd May, 1995.
Admittedly, the petitioner appeared in the first D.H.M.S. Examination held in December, 1995 and came out successfully in first chance. The petitioner also appeared in the second D.H..M.S. Examination held in July 1997 and came out successfully. The petitioner also passed the third D.H.M.S. Examination held in November, 1999.
The trouble started when the concerned Council refused to issue the internship and/or apprenticeship certificate to the petitioner after completion of the D.H.M.S. Course by the petitioner successfully. Since the respondent Council illegally withheld the issuance of the internship and/or apprenticeship certificate even after successful completion of the said course, the petitioner through its Advocate's letter dated 24th July, 2002 demanded justice from the Chairman of the said Council as well as from the other officials of the said Council, so that the internship and/or apprenticeship certificate is issued by the Council after due consideration of the petitioner's grievance.
Since the respondent concerned, in spite of receipt of the said demand of justice did not redress the grievance of the petitioner, the petitioner has filed this writ petition, inter alia, seeking for a direction upon the concerned respondent for issuance of the internship and/or apprenticeship certificate in favour of the petitioner for the said D.H.M.S. Course.
The Council as well as the College authority contested this writ petition by filing their respective affidavits in connection therewith.
The stand which was taken by both the respondents in their respective affidavits in support of their action for withholding the issuance of the internship and/or apprenticeship certificate, is as follows:
(a) Since the petitioner does not possess the minimum qualification for admission in the said Course as prescribed under Regulation 4 of Part III of Homeopathy (Diploma) Course, D.H.M.S. Regulations, 1983, the admission of the petitioner to the said Course is liable to be cancelled.
(b) The minimum qualification of a candidate for admission in the said post as prescribed in Regulation 4 of the said Regulations is as follows:
"4. Minimum qualifications: No candidate shall be admitted to D.H.M.S. (Diploma) Course unless he has,
(a) Passed the Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his subjects;
(b) Attained the age of 17 years on or before 31st December of the year of his admission to the first year of the Course."
(c) According to the said respondents, the petitioner did not have Chemistry as compulsory elective subject at her Higher Secondary Examination. As such, the petitioner was not eligible for admission in the said Course.
(d) Moreover, since the petitioner obtained admission in the said Course by committing fraud upon the authority concerned, her admission in the said Course is liable to be cancelled. Accordingly, the petitioner is not entitled to get the internship and/or apprenticeship certificate even after completion of the said Course successfully.
Mr. Asim Hati, learned Advocate, appearing for the petitioner, by referring to the admit card issued to the petitioner by the West Bengal Council of Higher Secondary Education being Annexure 'P-1' at page 12 of this writ petition submitted that the petitioner appeared at the Higher Secondary Examination as a regular student in 1994 with Physics, Chemistry and Biology as her compulsory elective subjects. Mr. Hati further pointed out from the said admit card that Philosophy was the optional subject of the petitioner in the said Examination.
By referring to the mark sheet issued to the petitioner by the said Council being Annexure 'P-1' at page 13 to this writ petition, Mr. Hati pointed out that the petitioner passed the Higher Secondary Examination in 2nd Division. Mr. Hati further pointed out that though the petitioner obtained 76 marks in Chemistry, which is much higher than the qualifying marks, but still then since 8 marks were in deficit in the theory paper, the petitioner ultimately could not be declared as passed in the particular subject Chemistry. However, after interchange of the said subject Chemistry with the subject Philosophy, the petitioner was found to be successful and the petitioner was declared as passed in the said Examination.
Mr. Hati submitted that no fraud was ever committed by the petitioner in the process of taking admission in the said Course. The petitioner submitted all the original documents in support of his eligibility for the said Course before the authorities concerned and the authorities concerned after considering the said certificates of the petitioner, offered admission to the petitioner and as such the respondents cannot withhold the issuance of internship and/or apprenticeship certificate of the petitioner after successful completion of the said Course.
It was also contended by Mr. Hati that not only the admission was given to the petitioner in the said Course by the college authorities but also the same was regularized by the Council is the manner as aforesaid.
Mr. Hati further submitted that the matter does not end there. The Council also after due verification of the eligibility of the petitioner, allowed the petitioner to appear in all the first, second and third D.H.M.S. Examinations without raising any objection at any point of time. Thus, when the petitioner came out successfully in all the said Examinations, the Council, at this stage cannot withhold the issuance of the internship and/or apprenticeship certificate to the petitioner.
In support of his said contention, Mr. Hati relied upon a decision of the Hon'ble Supreme Court in the case of Shri Krishan vs. Kurukshetra University reported in AIR 1976 SC 376. By relying upon the said decision, Mr. Hati submitted that once the candidate was allowed to appear in the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the candidate has worked itself out and thus the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear.
Thus, by relying upon the said decision, Mr. Hati submitted that even if any infirmity is found subsequently by the University authorities in the process of giving admission to the petitioner in the said Course, but still then since the Council acquiesced in such infirmities by not raising any objection even to appear in the examination at different stages under the said Course, then by force of the Regulation, the Council had no power to withdraw the candidature of the petitioner at this stage.
Thus, relying upon the said decision, Mr. Hati strongly submitted that the Council should be directed to issue the internship and/or apprenticeship certificate to the petitioner immediately.
Mr. Bhattacharya, learned Advocate, appearing on behalf of the Council, refuted the said submissions of the petitioner by submitted that once it is found that the petitioner is ineligible for admission in the said Course, the internship and/or apprenticeship certificate cannot be issued to the petitioner even after successful completion of the said Course by the petitioner. According to Mr. Bhattacharya, the stage at which such irregularity in the process of admission is detected, is immaterial. What is material, according to Mr. Bhattacharya is, if a candidate is found to be ineligible for admission in the said Course, he cannot claim internship and/or apprenticeship certificate. In support of his such submission Mr. Bhattacharya relied upon the following decisions:
(i) AIR 1980 All. 32 (Kedar Lal Verma vs. The Secretary, Board of High School and Intermediate Education & Anr.),
(ii) 1992 (1) CLJ 412 (In re: Anindya Kumar),
(iii) (1986) 2 SCC 667 (A.P. Christians Medical Educational Society vs. Government of Andhra Pradesh & Anr.) and
(iv) (1993) 4 SCC 401 (Guru Nank Dev University vs. Parminder Kr. Bansal & Ors.).
Relying upon the aforesaid decisions, Mr. Bhattacharya submitted that when apparently it is found that the petitioner does not posses the requisite qualification for admission in the said Course in terms of Regulation 4 of the said Regulations, the petitioner cannot claim the issuance of the internship and/or apprenticeship certificate after completion of the said Course on the very admission of the petitioner to this Course, being illegal, is liable to be recalled and/or cancelled.
Thus, on the basis of the aforesaid submissions Mr. Bhattacharya prayed for dismissal of the said writ petition.
Let me now consider the submissions of the respective parties in the light of the facts of the instant case.
It appears from Annexure 'P-1' to this writ petition that the petitioner had Physics, Chemistry and Biology as her elective subjects at her Higher Secondary Examination. It is no doubt true that since the petitioner could not secure qualifying marks in the theory paper of one of the elective subjects, viz., Chemistry, the said paper was interchanged with her optional elective subject, i.e., Philosophy, in which she obtained qualifying marks. In any event, it is undisputed that the petitioner after all passed Higher Secondary examination in 2nd Division with Physics, Biology and Philosophy as her compulsory elective subjects and Chemistry as her optional elective subject.
It is also undisputed that the original mark sheet of the Higher Secondary Examination of the petitioner was also produced by the petitioner before the college authorities and the college authorities after due consideration of the said mark sheet, offered admission to the petitioner in the said Course. That apart, the Council also after considering the eligibility of the petitioner, registered the name of the petitioner as a student of the said Council Undisputedly, the petitioner was allowed to appear in all the first, second and third D.H.M.S. Examinations by the Council. Thus, the Council had enough opportunity to consider the eligibility of the petitioner for admission in the said Course at different stages right from the time of her admission in the said Course in 1994 upto the date of completion of the said Course by the petitioner in 1999.
Since the respondent authorities, in spite of having opportunity to verify the petitioner's eligibility at different stages during the said period, did never object to the petitioner's admission in the said Course, the University authorities are estopped from challenging the eligibility of the petitioner for admission in the said course after the petitioner completed the said Course successfully. In this regard I find support from the decision relied upon by the petitioner in the case of Shri Krishan vs. Kurukshetra University (supra), wherein it was held that "It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and thus the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the appellant permission to appear". It was further held in the said decision that "It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April, 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant".
I find that the principle as laid down in the said decision is squarely applicable in the facts of the instant case. Accordingly, by following the principles, as laid down in the said decision, I hold that the admission of the petitioner cannot be cancelled at this stage even if it is found, that the petitioner does not possess the minimum qualification for admission in the said Course.
I have considered the decision cited by Mr. Bhattacharya in support of his contention that if the admission itself is irregular, such admission can be cancelled and/or recalled at any stage even after successful completion of the Course by any candidate.
I have also considered the decisions cited by Mr. Bhattacharya, but I find that excepting the decision in the case of Anindya Kumar reported in 1992 (1) CLJ 412, the other decisions have no application in the facts of the instant case, as those decisions were delivered in a completely different set of facts. In my view, the principle which has been laid down even in the case of Anindya Kumar (supra) cannot hold the field in view of the decision of the Hon'ble Supreme Court which was relied upon by the petitioner in the case of Shri Krishan vs. Kurukshetra University (supra).
Even assuming that the petitioner does not possess the requisite qualification for admission in the said Course, but still then will it be fair on the part of the Council to cancel the admission of the petitioner after expiry of ten years from the date of his admission? This Court cannot be unmindful about the lapses and/or negligence on the part of the College authority and the Council as indicated above. The Council, in its affidavit has made the College authority responsible for such a situation, but till date no step has been taken by the Council against the College authority in this regard.
That apart, when I find that no fraud was practised by the petitioner upon the College authority and the Council in the process of taking admission in the said Course, I feel that it will not be wise to cancel the admission of the petitioner after completion of the Course successfully. On the contrary, if the Council is allowed to cancel the admission of the petitioner at this stage, then it is none but the petitioner alone will have to suffer irreparable losses due to the negligence on the part of the College authority and the Council.
Thus, if this Court has to swallow the submission of Mr. Bhattacharya, then this Court will have to consider as to how loss of the petitioner who spend so many valuable years of his life for prosecuting the said Course, can be compensated. Since at this age, the petitioner cannot think of any other alternative, the loss which the petitioner will have to suffer in case of cancellation of his admission at this stage, cannot be sufficiently compensated by money value because grant of compensation in terms of money value cannot restore the values of the life of petitioner.
In the aforesaid circumstances, I find substance in the submission of the learned Advocate for the petitioner. Accordingly, I hold that the application must succeed.
The Council of Homeopathic Medicine, being the respondent no. 1 herein, is thus directed to issue the internship and/or apprenticeship Certificate and all other Certificates which the petitioner are entitled to get after successful completion of her D.H.M.S. Course to the petitioner positively within a period of eight weeks from the date of communication of this order without, however, creating any precedence in this regard.
The application, thus, stands allowed.
There will be, however, no order as to costs."
Against that judgment, this present appeal.
The same point has been reiterated as was urged before the learned trial Judge by the appellants that there was a total breach of Regulation 4 of Homeopathy Regulation, 1983 due to lack of fulfillment of academic qualifications, namely, pass of Intermediate Science with Physics, Chemistry and Biology subjects, which is an admitted fact as the writ petitioner did not pass the Higher Secondary, Bio-Science course with Physics, Chemistry and Biology as major subjects, which could be considered as equivalent of Intermediate Science Course with Physics, Chemistry and Biology subjects due to the reason that though petitioner originally was a student of Higher Secondary Course with major elective subjects of Physics, Chemistry and Biology, which is termed as major 1st, 2nd and 3rd subject with optional 4th subject Philosophy but as she failed in one major subject Chemistry in terms of West Bengal Council of Higher Secondary Education being Examination Regulation, 1982, she agreed to have an inter change of the Chemistry subject, a compulsory subject where she failed with the optional Philosophy subject by conversion of optional Philosophy subject as compulsory major subject and placement of compulsory Chemistry subject as optional subject and thereby got a pass certificate of Higher Secondary Examination. It is contended that in view of such peculiar position of change of subjects, she passed the Higher Secondary Examination with subjects Physics, Biology and Philosophy as major subjects and not with Physics, Biology and Chemistry, which is equivalent to pass of Intermediate Science with Physics, Biology and Chemistry. It has been further urged that there was no scope to pass any writ of mandamus directing to issue the Internship Certificate and the Diploma Certificate to the petitioner to practice in Homeopathic Medicine by the appellant, the Council for the other reason of non-compliance of Regulation 3 of the said Homeopathy Regulation, 1983 as she did not complete the 6 months Internship Training Course, which is a basic requisite qualification for grant of diploma by the Council. It is contended that the Diploma Course is of 4 years duration, wherein 3 and ½ years is for theory papers to pass the 1st year, 2nd year and 3rd year examinations of DHMS Course and thereafter 6 months practical course of Internship Training. It is contended that on completion of theory course and the training course successfully, a candidate is entitled for Diploma Certificate of DHMS Course, which is issued by the Council. It has been urged that there is a total breach of statutory regulation and the learned trial Judge directed to issue the Certificate despite the statutory breach as aforesaid. It has been contended by the appellant by referring the judgments Keder Lal Verma vs. The Secretary, Board of High School and Intermediate Education & Anr., reported in AIR 1980 Allahabad 32, A.P. Christian Medical Educational Society vs. Government of A.P., reported in (1986) 2 SCC 667, Guru Nank Dev University vs. Parminder Kr. Bansal & Ors., reported in (1993) 4 SCC 401, Central Board of Secondary Education vs. Nikhil Gulati & Anr., reported in (1998) 3 SCC 5, CBSE & Anr. Vs. Sunil Kumar & Ors., reported in (1998) 5 SCC 377, In Re: Anindya Kumar, reported in (1992) 1 CLJ 412, W.B. Council of Higher Secondary Education vs. Subhabrata Dutta, reported in AIR 1999 Calcutta 296, Ashoke Saha vs. State of West Bengal, reported in 1999 (2) CLT (HC) 1, Director Medical Education, Lunknow & Ors. Vs. Dr. Swapnil Chauhan, reported in (2000) 1 SCC 585, State of Punjab vs. Dayanand Medical College And Hospital & Ors., reported in (2001) 8 SCC 664, K.S. Bhoir vs. State of Maharashtra, reported in (2001) 10 SCC 264 and Regional Officer, CBSE vs. Ku. Sheena Peethambaran & Ors., reported in (2003) 7 SCC 719 that when there is a clear breach of admission regulation in terms of Regulation 4 of Homeopathy Regulation, 1983, there is no scope to grant any relief. It is contended further that the petitioner exercised fraud upon the College Authority directly and indirectly with the Council by disclosing the false fact in her application seeking admission that she passed Higher Secondary (Bio Science) Examination conducted by West Bengal Council of Higher Secondary Education, an equivalent qualification of pass in Intermediate Science. It is contended that inadvertently the Collage failed to identify the mistake and admitted her and when the admission papers were send to the Council, Council issued the Registration Certificate, which does not mean that despite detection of fraud subsequently on scrutiny of the papers, Council would be compelled to allow the student to continue the Internship Training of 6 months and thereby to issue the diploma of DHMS Course.
On the point of fraud it has been urged that the College Authority and the Council both were deceived by the fraudulent action of the student/writ petitioner in view of filing of the application declaring herself as passed candidate of Higher Secondary (Bio Science) Examination of West Bengal Council of Higher Secondary Education, though, in fact, she did not pass such examination as she failed in the Chemistry subject, which required to cleared by securing pass marks for grant of Pass Certificate of Higher Secondary Examination in Bio Science Course, an equivalent course of Intermediate Science with Physics, Biology and Chemistry subjects, a minimum eligibility criteria for admission of DHMS Course. It is contended that the judgment as relied upon by the learned trial Judge, namely, the Kurukshetra University (supra) has no applicability in the instant case for the sole reason that the writ petitioner herself in the instant case by her application misrepresented the fact disclosing herself as a qualified candidate though she had the knowledge that it was not the fact and as such, even if, the Council and the College did not verify the same properly, estoppel principle or acquiescence principle has no applicability.
The respondent-writ petitioner has reiterated the same argument as advanced before the learned trial Judge by contending, inter alia, that she passed the eligibility qualification, namely, equivalent of Intermediate Science Examination with Physics, Chemistry and Biology. It has been further contended that as Chemistry was her subject though she did not pass in this paper in the Higher Secondary Examination, the Regulation 4 was satisfied. It has been contended further that after completion of theory examinations of DHMS Course, there is no scope before the Council to refuse grant of certificate for completion of Internship Course. The writ petitioner-respondent has relied upon the following judgments to grant an equitable relief in favour of the writ petitioner, namely, Dr. M.S. Mudhol & Anr. Vs. S.D. Halegkar & Ors., reported in (1993) 3 SCC 591, Buddhi Nath Chaudhary & Ors. Vs. Abahi Kumar & Ors., reported in (2001) 3 SCC 328, Manjula Sircar & Ors. Vs. Harendra Bahadur Singh & Ors., reported in (2007) 7 SCC 488 and Gujarat State Dy. Executive Engineers' Association vs. State of Gujarat & Ors., reported in (1994) Suppl. 2 SCC 591.
After hearing the rival contention of the parties, the points emerge for decision in this appeal are to this effect:
(1) the qualification of the writ petitioner, namely, pass of Higher Secondary Examination with major subjects Physics, Biology and Philosophy whether could be considered as equivalent qualification of pass of Intermediate Science with Physics, Chemistry and Biology, which was the minimum academic qualification for admission under Regulation 4 of Homeopathy Regulation, 1983.
(2) Whether writ petitioner committed any fraud for her admission by misrepresentation of her academic status.
(3) Whether estoppel and acquiescence principle will be applicable for direction to the Council to issue the certificate, which is the direction of the learned trial Judge in terms of the prayer made. (4) Whether at all prayer of the writ application could be allowed on analysis of the judgment under appeal.
So far as the point no. (1) about the equivalency of Intermediate Science Examination with Physics, Chemistry and Biology subjects, the point is being dealt with on discussing the Regulations of the Council.
Homeopathy (Diploma Course) Regulation, 1983 was framed and constituted by the Central Council of Homeopathy with previous sanction of the Central Government in exercise of the powers conferred by Clauses (i), (j) and (k) of Section 33 and Sub-section (1) of Section 20 of Homeopathy Central Council Act, 1973. The Regulation 4 under part 3 relates to the regulation for admission to DHMS (Diploma) Course for which we are concerned herein. Regulation 4 reads such:
"4. Minimum qualifications: No candidate shall be admitted to D.H.M.S. (Diploma) Course unless he has,
(a) Passed in the Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his subjects;
(b) Attained the age of 17 years on or before 31st December of the year of his admission to the first year of the Course."
From the Regulation 4 it appears that it starts with a negative word "no", which means that the provision is mandatory and imperative. It is a settled legal principle that when in a statute the negative word is used at the beginning, it is imperative. It is settled principle of law that negative, prohibitory and exclusive words are indicative of the legislative intend when the statute is mandatory. Negative words are clearly prohibitory and are originally used as a legislative device to make a statutory provision imperative. Non-compliance of provisions, even if does not provide any offence, the provision on such test cannot be said as directory one. Reliance may placed to the judgment passed in the case Mannalal Khetan etc. etc. vs. Kedar Nath Khetan & Ors., reported in AIR 1977 SC 536, a judgment of three Judges Bench, wherein the Apex Court relied the earlier views expressed in the cases State of Bihar vs. Sir Kameshwar Singh of Darbhanga, reported in AIR 1952 SC 252 and K. Pentiah vs. Muddala Veeramallappa, reported in AIR 1961 SC 1107. In the case K. Pentiah (supra) it is held that "negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative".
To identify a provision whether mandatory or directory it is settled law that mere "shall" is inconclusive and similarly mere absence of imperative is not conclusive either. The real test depends upon on the basis of specific provision, the purpose for which the requirement has been enacted. The test of mandatory provision has been discussed in details by a Constitution Bench judgment passed in the case Collector of Monghyr vs. Keshav Prasad Goenka & Ors., reported in AIR 1962 SC 1694, wherein in paragraph 12 and 13, the Apex Court answered the issue in the following language:
"12. We feel unable to accept the submission of learned Counsel that in the context in which the words "for the reasons to be recorded by him" occur in S. 5A and considering the scheme of Ch.II of the Act, the requirement of these words could be held to be otherwise than mandatory. It is needless to add that the employment of the auxiliary verb "shall" is inconclusive and similarly the mere absence of the imperative is not conclusive either. The question whether any requirement is mandatory or directory has to be decided not merely on the basis of any specific provision which, for instance, sets out the consequences of the omission to observe the requirement, but on the purpose for which the requirement has been enacted, particularly in the context of the other provisions of the Act and the general scheme thereof. It would, inter alia, depend on whether the requirement is insisted on as a protection for the safeguarding of the right of liberty of person or of property which the action might involve.
13. Let us now examine the provision with reference to the several relevant matters we have just set out. Firstly, on the main scheme of the Act and what one might term the normal procedure is that indicated by Ss. 3 to 5 where there is ample opportunity afforded to persons affected to put forward their objections and prove them before any pecuniary liability is fastened upon them. Section 5A constitutes a departure from this norm. It is obviously designed to make provision for cases where owing to an emergency it is not possible to comply with the requirements of Ss. 3 to 5 of affording an opportunity to affected persons to make out a case that there is no justification for burdening them with any pecuniary obligation or pecuniary obligation beyond a particular extent. It is in the context of this consideration that the Court has to consider whether the requirement that reasons should be recorded by the Collector is mandatory or not. If the question whether the circumstances recited in S. 5A(1) exist or not is entirely for the Collector to decide in his discretion, it will be seen that the recording of the reasons is the only protection which is afforded to the persons affected to ensure that the reasons which impelled the Collector were those germane to the content and scope of the power vested in him. It could not be disputed that if the reasons recorded by him were totally irrelevant as a justification for considering that an emergency had arisen or for dispensing with notice and enquiry under Ss. 3 to 5, the exercise of the power under S. 5A would be void as not justified by the statute. So much learned Counsel for the appellant had to concede. But if in those circumstances the section requires what might be termed a "speaking order" before persons are saddled with liability, we consider that the object with which the provision was inserted would be wholly defeated and the protection afforded nullified, if it were held that the requirement was anything but mandatory."
On a reading of the Regulation 4 of Homeopathy Regulation, 1983 as quoted above it appears that it starts with the word "no" with subsequent word "shall" so far as admission rule is concerned in the said Course. Hence, the said provision under Regulation 4, in our view, is a mandatory provision irrespective of the fact that there is no such clause by which an admission could be cancelled in the event of non-compliance of Regulation 4 aforesaid.
Further from Sub-clause (a) of Regulation 4 it appears that for admission to the said Diploma Course of Homeopathy Medicine, a candidate must have passed Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as subjects. Said Regulation accordingly speaks that even if for equivalent examination a candidate must have passed in the subjects Physics, Chemistry and Biology, which is mandatory provision. In general, in the science stream subjects right from Higher Secondary to Graduation level there are different types of courses, which are called as Pure Science course, wherein the main subjects are Physics, Chemistry and Mathematics, Bio Science course wherein the major compulsory subjects are Physics, Chemistry and Biology (in Higher Secondary level) and in Graduation level, the Bio Science course is Chemistry, Botany and Zoology or Chemistry, Physiology and Botany or Chemistry, Physiology and Zoology etc. West Bengal Council of Higher Secondary Education has set up the different courses of Higher Secondary Examination, wherein in the Pure Science group, a candidate is required to pass with three major Science subjects, namely, Physics, Chemistry and Mathematics. There is other course in Higher Secondary Science stream, which is not termed as Bio Science stream as such by termed as General stream, wherein the major compulsory Science subjects as are required to be cleared by securing pass marks are Physics, Chemistry and Biology. In the Higher Secondary course in terms of the Examination Regulation, a candidate is required to pass in the three major compulsory elective subjects of any particular stream along with the compulsory subjects of language groups, namely, English and Bengali. A candidate may take one additional subject/optional subject as per his/her choice either from the Science stream or from Arts stream and/or from the Commerce stream. The marks of optional subject as secured above pass marks of that subject is added for gradation Division.
West Bengal Council of Higher Secondary Education (Examination) Regulations, 1982, which is being followed by certain amendments time to time provides a scope to a candidate to avail the benefit of interchange of optional subject with one of the compulsory subjects in the event the candidate fails to secure pass marks in compulsory subject to seek declaration as a pass candidate. This is an automatic process and mark-sheet is issued by the Council by interchanging it. However, a candidate has a right not to accept such interchange by writing within 30 days of the issue of mark-sheet and in that case he/she will not be declared as a pass candidate of Higher Secondary Examination by withdrawing the mark-sheet. The relevant provision under Regulation 11(b) reads such:
"11(a).......................
(b) If a candidate fails to obtain the minimum pass marks in any one compulsory elective subject and if he/she offers an optional elective subject at the said examination and secures pass marks in that subject, he/she shall be given the benefit of the marks obtained in the said optional elective subject by the interchange of the relevant compulsory elective subject and the said optional elective subject for passing the examination:
Provided that this benefit will not be applicable in case of Special or External Special Candidates appearing in one or two compulsory subjects only:
Provided further that, if a candidate does not intend, for reasons whatsoever, to pass the examination under the conditions prescribed above, he/she should intimate the Council accordingly in writing within thirty days of the issue of the mark-sheet and also surrender the mark-sheet for necessary correction."
Having regard to such when the said Regulation 4(a) specifically mandates that the academic qualification for admission to said Diploma Course is pass of Intermediate Science or equivalent examination with Physics, Chemistry and Biology, a mandatory provision, there was no scope for admission of any candidate who did not pass Higher Secondary Examination with Physics, Chemistry and Biology, an equivalent examination on Intermediate Science.
In the instant case it is an admitted position that the petitioner passed Higher Secondary Examination conducted by said Higher Secondary Council with three major elective subjects, namely, Physics, Biology and Philosophy by inter changing the major Chemistry subject in which she failed to secure pass marks with the Philosophy subject, which was her optional 4th subject. As such, by any stretch of imagination it could be considered that writ petitioner passed Higher Secondary Examination with Physics, Chemistry and Biology subjects, which is only equivalent to eligibility criteria of pass in Intermediate Science. Hence, we are holding that petitioner did not satisfy Regulation 4(a) for admission to said Diploma Course of Homeopathy Medicine in terms of the Regulation.
So far as the 2nd point of the fraud as framed, for its adjudication we directed the appellants to produce the application form filed by the writ petitioner, the document was produced. Copies served to the learned advocate for the writ petitioner-respondent. No objection raised by the writ petitioner- respondent about this document. On the contrary, learned advocate admitted it as the application form filed by her client, the writ petitioner. From the application form for registration of students it appears that the petitioner disclosed in column 12 under the heading "Academic Qualification" as follows:
"12. Academic Qualification:
(a) Examination Passed H.S. (Bio) (Attested copy of certificate/Mark sheet to be attached)
(b) Under the University/Board H.S. Council in the year 1994
(c) Name of the School/College Last studied Mallerpur High School
(d) With the Subjects: Bng, Eng, Phy, Che, Bio, Phi.
(e) If passed with Science, fill up the cage given below:
Subject Full Marks Pass Marks
Mark obtained
On bare reading of the said application form, which bears the serial number HC/ST 9358 for the session 1994-95 relating to the said DHMS Course it appears that under column 12(a) she categorically contended that she passed H.S. (Bio), in column 12(d) she mentioned the subjects in short form, namely, Bng. (means Bengali), Eng. (means English), Phy. (means Physics), Che. (means Chemistry), Bio. (means Biology) and Phi. (means Philosophy). Very purposely writ petitioner did not fill up the column 12(e), which provides that if any candidate passed with Science then to fill up the said column giving subject particulars, full marks of the subjects, pass marks of the subjects and the marks obtained. This column was left blank. This application was filed on 20th March, 1995. On a bare perusal of the application form it is explicitly clear that the writ petitioner concealed her academic status and she misrepresented her qualification as pass in H.S. (Bio) by mentioning the subjects of such examination, wherein she secured pass marks along with Chemistry Subject, though she failed to secure pass marks in it and she did not fill up the column 12(e), which was more specific to give details about the Science subjects, marks obtained, full marks, pass marks etc., purposely to deceive.
Even in the affidavit-in-reply of the opposition of the respondent nos. 1 to 4, in paragraph 5 by affirming the same as true to her knowledge she submitted the following:
"With reference to paragraph 3(a) and (b) of the said affidavit of respondent no. 5 I deny and dispute everything contained therein save and except what are matters of record. I further state that I possess the requisite qualification as per Regulation 4 of Homeopathy (Diploma) Course regulation of 1983 because I passed in Physics, Chemistry and Biology in plus two course. I further state that there is no whisper in the Rules that Chemistry should not be an optional subject."
It is the contention of the petitioner in that affidavit that she passed in Physics, Chemistry and Biology in Plus Two Course that means 10+2 Course, which is the Higher Secondary Course, though in fact, she did not. Even in the writ Court she submitted a false statement by averting the same as true to her knowledge, which the learned trial Judge failed to notice.
On perusal of the application form it appears that petitioner purposely knowing it very well that she did not pass the Higher Secondary Examination in Science with Physics, Chemistry and Biology subjects but she passed simply Higher Secondary Examination with Physics, Biology and Philosophy, which cannot be termed as either Higher Secondary Science Examination or Higher Secondary Bio Science Examination as Philosophy is not within the Science stream subject but it is within the Arts stream subject, disclosed her academic qualification status as passed in Higher Secondary (Bio Science) Examination. So the petitioner herself misrepresented her academic qualification by not disclosing that she did not pass the equivalent examination of Intermediate Science with Physics, Chemistry and Biology. She practically intended to believe the College Authorities that she passed the Higher Secondary (Bio Science) Examination, which means she passed the examination with Physics, Chemistry and Biology subjects by securing the pass marks in said three subjects. Mere taking a subject in a Course without securing pass marks therein in final examination will not lead to conclude that the candidate has passed the particular examination with that subject as has been urged by the learned Advocate for the writ petitioner- respondent by contending that writ petitioner satisfied the mandatory regulation being Regulation 4(a) of Homeopathy Regulation, 1983, as she studied the Chemistry subject in Higher Secondary level.
To disprove fraud, onus shifts to the person concerned against whom an allegation of fraud is made based on facts proved by documents submitted by him/her. In the instant case the petitioner in her said application form misrepresented the fact and irrespective of the fact that she annexed the Higher Secondary Mark-sheet that would not improve her case to come out from the charge of fraud as has been urged by the appellant very strongly. It is a settled legal position that when somebody deceives someone by misrepresentation of the fact, irrespective of the fact that the person, who has opportunity to verify it, does not exempt the person concerned, who intended to deceive, from the charge of committing fraud applying principle of "suggestio falsi or suppressio veri".
The ratio of the judgment on the point of fraud as discussed in the case Kurukshetra University (supra), which has been strongly relied upon by the learned trial Judge by quoting a paragraph from the said report, namely, "it is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi or suppressio veri", was in view of the very particular fact of that case that the examinee of LL.B. Course never wrote the University Authorities that he attended prescribed number of lectures. For that reason in the said judgment the Court held "the University had the ample time and opportunity to find out the defect" and on that score the Court held that fraud was not proved. But in the instant case it appears that the writ petitioner herself in her application form seeking admission to the said Diploma Course in Homeopathy Medicine submitted her qualification as Higher Secondary (Bio Science), which is nothing but misrepresentation of the fact and as such, it is a case of "suggestio falsi or suppressio veri" as the writ petitioner suppressed the material facts by not disclosing and submitted a false statement to misrepresent her eligibility qualification status as pass of equivalent examination of Intermediate Science. The detection of such has been done after long period by the Council as well as the College Authorities but that does not mean that the fraud has not been proved. Even before us, in the writ proceeding, the petitioner in paragraph 5 of the affidavit-in-reply boldly submitted that she was qualified with the qualification "pass in Intermediate Science/equivalent examination with Physics, Chemistry and Biology" by contending in the language as already quoted, namely, "I passed in Physics, Chemistry and Biology in Plus Two Course".
Having regard to that we are of the view that petitioner committed a fraud and deceived the College Authorities so far as admission criteria is concerned, deliberately and purposely to seek admission. The petitioner cannot be protected by application of judgment Kurukshetra University (supra) in view of change of factual matrix of this case. It is a settled legal position that a judgment is a binding precedent if and only if the points of law discussed on the factual matrix considered are identical. It is also a settled legal position that even a change of word or a factual matrix of a particular case even on application of the identical question of law will not produce the identical result. On the presidential value of any judgment and applicability of the same we will discuss the point later on in our concluding paragraph when we will analyze the judgment under appeal. Hence, we are of the view that petitioner committed fraud to seek admission in the said Course.
The 3rd point, namely, estoppel and acquiescence, we are now discussing. From the answer of the aforesaid two points it is a clear case of fraud committed by the student-writ petitioner while filing her application seeking admission to the Course. It is a settled legal position that fraud vitiates all action, reliance may be placed to the judgment passed in the case Smith vs. East Elloe Rural District Council & Ors., reported in (1956) 1 All. E.R. 855. "No judgment of a Court no order of a Minister can be allowed to stand if it has been obtained by fraud. Fraud unravels everything" as observed in the case by Lord Denning,LJ. in Lazarus Estates Ltd. Vs. Beasley, reported in (1956) 1 All. E.R. 341, in the said case Lord Parker,CJ. observed "fraud vitiates all transactions known to the law of however high a degree of solemnity". Similar view echoed by Apex Court in the case Ram Chandra Singh vs. Savitri Devi & Ors., reported in (2003) 8 SCC 319 in paragraph 15-18 and 23-25, Vijay Shekhar & Anr. Vs. Union of India & Ors., reported in (2004) 4 SCC 666, a judgment of three Judges Bench. It is also a settled legal position that any judgment/order obtained by fraud is a nullity and all subsequent proceeding also will be nullity. Reliance may be placed to the judgment passed in the case T. Vijendradas & Anr. Vs. M. Subramanian & Ors., reported in (2007) 8 SCC 751.
Even the principle of natural justice is not required to be followed in the case of a fraud by hearing the party whose position is under challenge in the writ jurisdiction.
It is a case of "suggestio falsi or suppressio veri" in view of disclosure of academic status by the writ petitioner in her application form seeking admission in the Diploma Course of Homeopathy Medicine by mentioning that she passed Higher Secondary (Bio Science), though in fact, she never passed Higher Secondary Science Examination equivalent to Intermediate Science with Physics, Chemistry and Biology due to her failure in the major subject Chemistry. In such type of case Kurukshetra University (supra) has no applicability as has been strongly relied by the learned Advocate for the writ petitioner-respondent. There is no estoppel on statute, is also a basic legal position. As there is a breach of statutory provision, which is a mandatory provision being Regulation 4 of Homeopathy Regulation, 1983, the estoppel principle also has no applicability. Even the equitable principle of law as has been considered in the case Kurukshetra University (supra) referred to by the writ petitioner-respondent to rescue the situation is not possible to be applied here, in view of the settled legal position that in the event of conflict between law and equity, the law will prevail. It is a Latin Maxim "dura lex sed lex", which means "the law is hard but it is the law". Equity can only supplement the law but it cannot suppliant or override it. In the case Madamanchi Ramappa & Anr. Vs. Muthaluru Bojjappa, reported in AIR 1963 SC 1633, the Court held "what is administered in Courts is justice according to law and consideration of fair play and equity however important they may be, must yield to clear and express provisions of the law".
"Consideration of equity cannot prevail and do not permit the High Court to pass an order contrary to law" is the view expressed by Apex Court in the case Aligarh Muslim University & Ors. Vs. Mansoor Ali Khan, reported in 2000 (7) SCC 529. In the case P.M. Latha & Anr. Vs. State of Kerala & Ors., reported in (2003) 3 SCC 541, in para 13, the Apex Court held "equity and law are twin brothers and law should be applied and interpreted equitably but equity cannot override written or settled law". The case Laxminarayan R. Bhattad & Ors. Vs. State of Maharashtra & Anr., reported in (2003) 5 SCC 413, the Apex Court held in para 73 "it is now well settled that when there is a conflict between law and equity the former shall prevail". "Even for harsh consequences, if any, the Court will not allow it to breach any statutory provision" is the view expressed in the case Nasiruddin & Ors. Vs. Sita Ram Agarwal, reported in (2003) 2 SCC 577. It is also a settled legal position that equitable consideration has no place when the statute contained express provision, reliance is placed to the judgment passed in the case E. Palanisamy vs. Palanisamy (Dead) by Lrs. & Ors., reported in (2003) 1 SCC 123. The principle that in between the conflict of law and equity, law will prevail has reechoed by the Apex Court in the case Bharat Petroleum Corporation Ltd. Vs. Maddula Ratnavalli & Ors., reported in (2007) 6 SCC 81. As already discussed that effect of fraud would vitiate all acts and orders and also the actions in terms of the views expressed in the case Smith vs. East Elloe Rural District Council & Ors., reported in (1956) 1 All. E.R. 855. In view of those legal position settled and in view of the very fact, which is shocking that the writ petitioner herself misrepresented her qualification at the time of admission and thereby became successful to secure admission in the Course though she did not fulfil the mandatory statutory standard of academic qualification fixed under Regulation 4 of Homeopathy Regulation, 1983, we are of the view that no equitable principle should be applied to rescue her from the situation and from the harsh consequences. It is not a fit case to exercise the power of equitable principle on the face of mandatory statutory provision being Regulation 4 of Homeopathy Regulation, 1983 as referred to. We are also of the view that estoppel and acquiescence principle will not be applicable in the instant case.
So far as the judgment delivered in terms of the prayer made it appears that there was no scope even to allow the prayers of the writ application and the direction given by the learned trial Judge directing to grant Certificate/Diploma of the Course in view of the statutory provision being Regulation 3 of Homeopathy Regulation, 1983, which provides that Diploma to the successful candidates to be issued on successful completion of theory examinations being part 1, 2 and 3 and thereafter completion of six months Internship after passing the final Diploma Examination. Regulation 3 reads such:
"3.(i) A Diploma Course in Homeopathy shall comprise a course of study consisting of the Curriculum and Syllabus provided in these regulations spread over a period of four years including a compulsory Internship of six months' duration after passing the final Diploma examination.
(ii) The Internship shall be undertaken at the Hospital attached to the College and in cases where such Hospital cannot accommodate all of its students for Internship such students may undertake their Internship in a Hospital or dispensary run by the Central Government or State Government or local bodies.
(iii) At the completion of the Internship of the specified period and on the recommendation of the head of the Institution where Internship was undertaken, the concerned State Board or University, as the case may be, shall issue the Diploma to the successful candidate."
It is an admitted fact that writ petitioner was not allowed to complete her Internship after passing the final Diploma Examination and such fact is also admitted. Without seeking any relief to that effect that she should be allowed to complete the six months Internship Course, which is a condition precedent for issuance of Diploma to a successful candidate, petitioner straightway prayed for grant of Diploma of DHMS Course in her prayer, which was not possible to be granted by the writ Court on breach of Regulation 3(i) and 3(iii). On that score, the direction of the learned trial Judge to grant Certificate/Diploma of DHMS Course was in conflict with the statutory regulation for grant of a Diploma, which mandates successful completion of the Course, namely, theory course as well as the practical course, namely, Internship.
The last point as set up by us could be answered on analysis of the judgment under appeal. On a bare reading of the judgment it appears that the findings and observation of the learned trial Judge was not correct on the reflection of Regulation 3 and 4 of Homeopathy Regulation, 1983. The finding of learned trial Judge that due to the mistake on the part of the University Authority to verify the mark-sheet produced at the time of admission, estoppel principle would be applicable, is not the correct proposition of law on the factual scenario of this case where the candidate-writ petitioner herself disclosed her academic status as Higher Secondary (Bio Science) pass, though she did not pass the examination, which is equivalent to Intermediate Science with Physics, Chemistry and Biology due to her failure to secure pass marks in Chemistry paper, a major subject of the Course. The writ petitioner even before us submitted in affidavit-in-reply, which was placed before the learned trial Judge in paragraph 5 as already quoted that she passed with Physics, Chemistry and Biology, a false statement and a deliberate statement to misled the Court. The judgment of Kurukshetra University (supra) as applied by learned trial Judge was distinguishable on the factual scenario considered therein, where the appellant never asserted any wrong statement to the University Authority relating to his attendance of prescribed number of lectures. On that score, in the said judgment, the Apex Court applied the equitable principle. But here in this case, the writ petitioner herself informed the authorities in her application that she passed Intermediate Science equivalent examination with Physics, Chemistry and Biology by indicating her qualification in the application form as Higher Secondary (Bio Science). As observed that it is a case of "suggestio falsi or suppressio veri" to secure an admission, as such, we cannot subscribe our views expressed by the learned trial Judge relying the Apex Court judgment aforesaid.
What is "suggestio falsi or suppressio veri" has been considered in the case Dilip N. Shroff vs. Joint Commissioner of Income Tax, Mumbai & Anr., reported in (2007) 6 SCC 329, wherein the Court held "'suppressio veri' amounts to concealment and 'suggestio falsi' amounts to furnishing of inaccurate particulars". On the anvil of the said views it is proved that writ petitioner concealed her qualification that she did not pass Higher Secondary Examination with the subjects Physics, Chemistry and Biology and she suggested also false statement by furnishing her qualification in the application form as pass in Higher Secondary (Bio Science) Examination.
It is also a settled legal proposition of law that a judgment is a precedent so far as its ratio decidendi is concerned on the question of law as decided on reflection of the admitted facts therein. It is also a settled law that little variations on factual matrix will produce different result, even if identical point of law is applied to the facts. Reliance may be placed to the judgment on the principle of precedential value of a judgment in the case State of Punjab vs. Baldev Singh, reported in (1999) 6 SCC 172, a Constitution Bench judgment, wherein in para 43 the Court held "a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The Courts are obliged to employ an intelligent technique in the use of precedents bearing it in mind that a decision of the Court takes its colour from the questions involved in the case in which it was rendered". It is also a settled legal position that one additional or different fact can make a world of difference between the conclusions in two cases even when the same principles are applied in each case to similar facts. Reliance may be placed to the judgment passed in the case The Regional Manager & Anr. Vs. Pawan Kumar Dubey, reported in AIR 1976 SC 1766, a judgment of three Judges' Bench. In Quinn vs. Leathem, reported in 1901 AC 495, Lord Halsbury observed "Before discussing Allen vs. Flood [1898 AC 1] and what was decided therein, there are two observations of a general character which I wish to make; and one is to repeat what I have very often said before - that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all". The said view followed in the case Sarva Shramik Sanghatana (KV), Mumbai vs. State of Maharashtra & Ors., reported in (2008) 1 SCC 494 by the Apex Court. In the case Ambica Quarry Works vs. State of Gujarat & Ors., reported in (1987) 1 SCC 213, wherein in para 18, the Apex Court held "The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it". In the case Bhavnagar University vs. Palitana Sugar Mill (P) Ltd. & Ors., reported in (2003) 2 SCC 111, wherein at para 59, the Apex Court held "it is also well settled that a little difference in facts or additional facts may make a lot of difference in the presidential value of a decision". In the case Bharat Petroleum Corpn. Ltd. & Anr. Vs. N.R. Vairamani & Ors., reported in (2004) 8 SCC 579, at para 9 to 12 the Court discussed the point in the following language:
"9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid's theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. The interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (AC at p. 761) Lord MacDermott observed: (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes,J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge,....."
10. In Home Office v. Dorset Yacht Co. (All ER p. 297g-h) Lord Reid said, "Lord Atkins' speech ....is not to be treated as if it were a statutory definition. It will require qualification in new circumstances". Megarry,J. in Shepherd Homes Ltd. V. Sandham (No. 2) observed: "One must not, of course, construe even a reserved judgment of Russel,L.J., as if it were an Act of Parliament." And, in Herrington v. British Railways Board Lord Morris said: (All ER p. 761c) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."
11. Circumstantial flexibility, one additional or different fact may make a word of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
12. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the board resemblance to another case is not at all decisive.
* * * Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.""
Views expressed in Leathem (supra), Ambica Quarry Works (supra), Bhavnagar University (supra) and Bharat Petroleum Corpn. Ltd. & Anr. (supra) has been referred to and followed in the case Sarva Shramik Sanghatana (KV), Mumbai (supra). In the case U.P. State Electricity Board vs. Pooran Chandra Pandey & Ors., reported in (2007) 11 SCC 92, the Court reiterated the principle that "little difference in facts or even one additional fact may make a lot of difference in the presidential value of a decision".
Having regard to the aforesaid legal proposition as discussed about the precedential value of the judgment, we have noticed a basic fact difference in the factual contour of the case we are considering herein with reference to the case of Kurukshetra University (supra), namely, in the instant case writ petitioner herself intended to make the authority to believe and was successful thereof, that she passed Intermediate Science equivalent examination with Physics, Chemistry and Biology though it was not the real fact within the knowledge of the writ petitioner herself and thereby she secured admission, which was on direct breach of Regulation 4 of Homeopathy Regulation, 1983, a mandatory regulation for admission in Diploma Course.
Considering that factual difference and more particularly the repeatation of the same fact by the writ petitioner in her reply that she passed Intermediate Science equivalent examination with Physics, Chemistry and Biology, we are constrained to take the view that writ petitioner cannot be rescued from the situation applying the principle of law discussed and applied in Kurukshetra University (supra). The judgement Dr. M.S. Mudhol & Anr. (supra) as relied, was on the principle of acquisance and on equitable consideration. The Apex Court granted relief for the reason that there was default on the part of the establishment, which is not applicable in the instant case as here the student is on default and she suppressed the material facts as discussed. The judgement Buddhi Nath Chaudhary & Ors. (supra) as relied, was also on equitable principle, which cannot be applied here in view of the special facts of the case where fraud has been proved. The judgement Manjula Sircar & Ors. (supra)as relied, is the judgement on issue of reservation rule qua breach of quota wherein the Apex Court did not disturb the appointment given to a woman candidate exercising the power under Article 142 of the Constitution of India, as such, the same has no applicability herein. The judgement Gujarat State Dy. Executive Engineers' Association (supra) was dealt with by the Apex Court as the breach was irregular not illegal, which also has no applicability in this case in the angle of fraud, misrepresentation of fact and suppression of material facts as has been discussed.
Learned trial Judge considered the case of suffering of the writ petitioner and it got much weight to pass the order directing to this effect:
"The Council of Homeopathic Medicine, being the respondent no. 1 herein, is thus directed to issue the internship and/or apprenticeship Certificate and all other Certificates which the petitioner are entitled to get after successful completion of her D.H.M.S. Course to the petitioner positively within a period of eight weeks from the date of communication of this order without, however, creating any precedence in this regard."
Under Regulation 3(iii) as quoted above, there was no scope to issue the Internship Certificate and all other Certificates of DHMS Course as petitioner never completed the Course undergoing Internship Training and before such Training she was debarred to undergo the training course on detection of the fraud committed by writ petitioner by suppressing her qualification and by suggesting a false qualification as already discussed.
Hence, we are of the view that on analysis of the judgment under appeal and the factual matrix of the case, no relief could be granted to the petitioner as because that would be on breach of Regulation 3 and 4 both as quoted above, a statutory breach, which the writ Court surely will not do. It is a settled legal position that Court cannot direct statutory authority to act contrary to law/statutory provision. Reliance is made to the judgment passed in the case Union of India & Anr. Vs. Kirloskar Pneumatic Co. Ltd., reported in (1996) 4 SCC
453. Writ of Mandamus cannot be issued to violate law or to act in violation of law. Reliance is made to the case Vice Chancellor, University of Allahabad vs. Anand Prakash Mishra, reported in (1997) 10 SCC 264 and Life Insurance Corporation of India vs. Mrs. Asha Ramchandra Ambekar, reported in AIR 1994 SC 2148.
Before parting with the matter learned Advocate for the writ petitioner- respondent has urged for sympathetic consideration of the issue. Sympathy, as such, has no space in the legal world in its true sense. In the case Latham vs. Richard Johnson and Nephew Limited, reported in [1913] 1 KB 398, Farwell,LJ. observed "sentiment is a dangerous will o' the wisp to take as a guide in the search for legal principles". The said judgment has been followed in the case Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh & Ors., reported in (2004) 2 SCC 130 and subsequently in the case A. Umarani vs. Registrar, Cooperative Societies & Ors., reported in (2004) 7 SCC 112, Maruti Udyog Ltd. Vs. Ram Lal & Ors., reported in (2005) 2 SCC 638 and Ashok Kumar Sonkar vs. Union of India & Ors., reported in (2007) 4 SCC 54. On teeth of said legal proposition, we cannot decide the fate of writ petitioner-respondent on sympathetic ground as urged by the learned Advocate.
Considering all aspects of the matter and having regard to our findings and observations, the impugned judgment under appeal accordingly is not sustainable in law. Same stand set aside and quashed. The writ application also has no merit to grant the prayers. Writ application, accordingly, stands dismissed. Appeal is, thus, allowed.
Now the appeal MAT 2712 of 2007 is taken up for hearing.
In view of our aforesaid findings and observations, the appeal being MAT 2712 of 2007 arose out of the order dated 7th September, 2007 passed in contempt rule WPCRC 6066 (W) of 2006 whereby and where under learned trial Judge directed the alleged contemners to comply with the judgment and order dated 2nd September, 2004 passed in W.P. No. 295 (W) of 2003 on the pain of suffering of penal consequences in contempt jurisdiction on finding the alleged contemners as guilty of the charges, namely, deliberate and willful violation of the Court's order, also stand allowed and impugned order dated 7th September, 2007 stand set aside and quashed on the reason that the judgment and order dated 2nd September, 2004 passed in W.P. No. 295 (W) of 2003, which became the subject matter of contempt proceeding, wherein the said order was passed, now stand set aside and quashed by us. This appeal is also allowed on the findings and observations of the main appeal being MAT 855 of 2005 renumbered as FMA 725 of 2005.
(Pratap Kumar Ray,J.) I agree, (Prasenjit Mandal,J.) Later:
The application, being ASTA 979 of 2007, also stands disposed of on the aforesaid direction.
Before delivering the judgment the appellant today has filed a supplementary affidavit annexing the application form under serial no. HC/ST 9358 for the sessions 1994-95, being the form filled up by the writ petitioner in her own handwriting disclosing her qualification H.S. (Bio) and mentioning the subjects along with Chemistry.
This document earlier produced before us and we have mentioned it in our judgment.
Since an affidavit is a formal one, relating to a document produced earlier to the Court, we are accepting this. Copy of this supplementary affidavit has been served to the writ petitioner-respondent. Let it be kept with the record.
(Pratap Kumar Ray,J.) (Prasenjit Mandal,J.)