Calcutta High Court
University Of Calcutta vs Soumit Chakraborty And Ors. on 7 April, 1995
Equivalent citations: (1995)2CALLT27(HC)
JUDGMENT Mukul Gopal Mukherji, J.
1. This appeal has been preferred by the University of Calcutta, its Vice-Chancellor, its Controller of Examinations and its Assistant Controller of Examinations impugning a judgment and order dated 13th January, 1995 passed by a learned Single Judge of this Court in Matter No. 1908 of 1995 (Soumit Chakraborty v. University of Calcutta and Ors.) whereby the learned Single Judge directed the University of Calcutta Authorities to examine the answer scripts of the writ petitioner respondent No. 1 within a period of 4 weeks from the date of the communication of the order and also publish his results within a period of 6 weeks from the date of communication of the said order.
2. In order to understand the facts of the case it would be necessary to traverse the background. The writ petitioner respondent No. 1 did not have the requisite qualification to get himself admitted in B.Com (Hons.) Course as per the University regulations promulgated under notification No. CSR/20/94 The requisite qualifications are to the effect that the candidate must have secured either (I) at least 45%, in mathematics in the School Final or Secondary Examination (Madhymik Pariksha) or its equivalent or (II) must have passed in mathematics in the Higher Secondary Examination or its equivalent or (III) must have passed at least in two commerce papers one of which must be either Business Economics including Business Mathmatics or Accountancy or both in the Higher Secondary Examination or in its equivalent examination.
The petitioner sought his admission in Dum Dum Matijhil College of Commerce on 1.9.92. Under the regulations aforesaid it was clearly given out by the University that the College has to undertake the, responsiblity for admission to the Honours Course on the basis of aforesaid regulations.
The writ petitioner respondent No. 1 immediately after his admission in the Honours Course obtained his University registration number and prosecuted the course for two yeans and as and when he was to sent up for the B.Com (Hons.) Part I Examination, it was detected that the writ; petitioner respondent No. 1 did not have the requisite qualifications. On refusal on the Part of the University to accept his examination form the writ petitioner respondent No. 1 approached the University authorities and the controller of Examinations issued a letter to the Principal of Dum Dum Motijhil Evening College of Commerce that the application form of the writ petitioner respondent No. 1 could not be entertained inasmuch as the marks obtained by him in the Higher Secondary (10+2) was not clearly furnished. The writ petitioner respondent No. 1 thereafter moved this Hon'ble Court before a Single Judge and on 7.3.94 another learned Single Judge of this Court was pleased to pass the following order :
"The writ application is disposed of by directing the petitioner to furnish a xerox copy of the Higher Secondary marksheet obtained by the petitioner for passing Higher Secondary Examination in 1992 with the College Authority positively by tomorrow and the College Authority is to forward the same to the University authorities by Wednesday next. The petitioner will also be at liberty to furnish a xerox copy of such marksheet to the University authorities himself by Wednesday next and the University authorities are also directed to issue necessary Admit Card to the petitioner positively by Thursday next provided University gets xerox copy of the marksheet as aforesaid either from the college authority or from the petitioner himself by Wednesday next. This order is passed as a special case and is not to be treated as precedent.
All parties to act on a signed copy of the minutes of this order on the usual undertaking."
3. Thereafter the learned Advocate for the writ petitioner respondent No. 1 having forwarded the xerox copy of the marksheet to the University it was found that the writ petitioner respondent No. 1 secured a total number of 17 in Mathematics, 14 in Paper I and 3 in Paper II. It is the contention of the University that according to the regulations which are prevalent on the date of admission of the writ petitioner in the College i.e. 1.9.92, he ought to have secured at least 45% marks in mathematics in the School Final or Secondary Examination (Madhyamik Pariksha) or its equivalent or must have passed in mathematics in the Higher Secondary Examination or its equivalent or must have passed at least in two commerce papers, one of which must be either Business Economics including Business Mathematics or Accountancy or both in the Higher Secondary or its equivalent examination. Since the writ petitioner did not have any one of those qualifications the University moved before the learned Single Judge again and on 11.3.94 the said learned Single Judge passed an order directing the parties do put in their affidavits but in the mean time directed the University to issue admit card to the writ petitioner respondent No. 1 so as to enable him to appear in the ensuing B.Com (Hons.) Part I examination. The learned Single Judge however, made it clear that the answer scripts of the writ petitioner respondent No. 1 would not be examined without the leave of the Court and the said answer scripts would be kept separately in the safe custody. There was a further direction that the admit card should be issued by the University directly to the writ petitioner respondent No. 1, no matter whether the College authorities forward and/or send the name of the writ petitioner respondent No. 1 to the University in the mean time.
4. Against the order dated 11.3. 94 passed by a learned Single Judge, an appeal was taken by the University before a division Bench but the said appeal was dismissed by a Division Bench of this Court.
5. The writ petitioner respondent No. 1 however, sat for the Part I Examination but his answer script were not examined but kept separately by the University Authorities as per the direction of the Single Judge. It was only thereafter that by an order dated 13.1.95 another learned Single Judge directed the Calcutta University Authorities to examine the said answer scripts within a period of 4 weeks and also to publish his result within a period of 6 weeks, against which the present appeal has been preferred.
6. It has been contended by the University, that the learned Single Judge directed himself in passing the order impugned. The learned Single Judge ought to have held the writ application to be not maintainable at all. The learned Single Judge had no authority whatsoever to ignore the eligibility criterion as fixed by the University as an essential pre-requisite to the admission, for the B.Com (Hons.) Course which the writ petitioner failed to satisfy. That apart the learned, Single Judge had no authority to ignore an erroneous or irregular admission by the College concerned which could not confer any right upon the writ petitioner to appear in the examination conducted by the University. It was further contended by the University that just because the writ petitioner has continued studies in B. Com (Hons.) Course for two years it did not confer on him any criterion of eligibility so as to by-pass the Regulations which laid down essential pre-requitise for admission in the B.Com (Hons.) Course. The writ petitioner respondent No. 1 passed the Higher Secondary Examination in Science not having secured pass mark in Mathematics. He did not also obtain 45% marks in Mathematics in the Secondary Examination (Madhyamik Pariksha) or its equivalent. The question of his securing pass marks in two commerce papers in the Higher Secondary Examination also did not arise, since he passed Higher Secondery in the Science Stream.
7. Further contention raised by the University is to the effect that the issuance of registration certificate by the University had no relevance on the question of eligibility of the petitioner as a candidate for B. Com (Hons.) Part-I Examination Degree, registration certificate of the University is being issued as a token of registration of a student to the University but not to a particular course. Further contention raised by the University is that in such matters there cannot be any estopel and/or acquiesence against any erroneous/irregular admission. The learned Single Judge had no auhority whatsoever in allowing the writ petitioner to enjoy the benefit of the declaration of his result in the Part-I B.Com (Hons.) Examination without first declaring the Regulations as framed by the University of Calcutta to be ultra vires.
8. Last but not least, it was contended that even thought it was assumeend that College is an agent of the University, in view of the expert terms incorporated in the Rules, as erroneous act of the part of the College in granting admission to the writ petitioner respondent No. 1 did not binding the Universty.
9. On behalf of the Unversity authorities reliance was placed upon the decision in Guru Nanak Dev University and Ors.v. Parminder Kr. Bansal and Anr, reported for the proposition that admission to educational institutions should not be granted by means of interim directions without regard to elgibility of candidate and interim orders should not be passed without adjudication of basic issues. The Supreme Court indeed deprecated the practice of passing loose inconceived interlocutory orders which expose judicial discretion to the crticism of "degenerating into private benevolence". The Supreme Court condemned this practice as subversive of academic discipline or whatever is left of it leading to serious impasse in academic life and held that admission cannot be ordered with regard to eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later on when serious complications might ensue from the interim order was not allowed to stand. Here by virtue of interim order being passed there has been a grave situation leading to serious complications and a Division Bench on an appeal from the interim order taken, by the University has already given its stamp of finality to the same, which we cannot reopen or readjudicate at this stage. What is merely open to us at this stage is whether having appeared in the B. Com Part-I (Hons.) examination, the candidates answer papers are to be examined an his results are to be declared at all.
10. On behalf of the writ petitioner respondent No. 1 by citing the decision in Shri Krishan v. The Kurukshetra University it was contended that once a candidate is allowed to take the examination, rightly or wrongly, then the statute which empowered the University to withdraw the candidature of the applicant, has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear in the examination.
11. Perhaps, we would not have ourselves allowed the writ petitioner to appear in the examination, if our individual opinion is taken into consideration, but then this Hon'ble High Court having allowed the candidate to appear in the examination and the candidate having appeared in the examination, it would be manifestly unjust to withhold the result of the candidate concerned. We do not choose to interfere with the ultimate decision as arrived at. by the learned Single Judge without going into the question as to whether on the basis of the specific rules as framed by the University as essential pre-requisitcs in having admission in the B.Com (Hons.) Course, the College is an agent of the University or not. If the agent mis-directed himself and transcend the limits of his authority as given by the principal, the actions of the agent cannot certainly bind down the principal. The Principal of the College concerned ought to have been vigilant enough in checking whether the candidate had the pre-requisite essential qualifications for securing his admission in the B. Com (Hons.) Part-I Course and he not. having so done and having gone against the specific direction of the University, we cannot ignore the lapses on the part of the principal of the college by holding inter alia that the action of the agent would bind down the principal, that is, the University. We cannot hold that in every action taken by a College Principal even though erreoneous and contrary to the rules, the same would bind down the University.
12. We do not think that the principles of law propounded in the decision of the Division Bench of Bombay High Court in Dr. Ajay Gambhir and Anr. v. Dean, Mahatma Gandhi Institute of Medical Science, Sevagram and Ors. and of the Bombay High Court Single Judge in Kumar Mandavkar Narendra Slwnkar and Ors. v. the Maharashtra State Board of Secondary & Higher Secondary Education and Ors. fit in exactly with the background of the present case since the facts are somewhat distinguishable from the present one. In Dr. Ajay Gambhir and Anr. v. Dean Mahatma Gandhi Institute of Medical Sciences, Sevagram and Ors. was a case where the petitioners despite merit were refused admission and the Division Bench of the Bombay High Court thought that a writ of Mandamus directing Dean, to admit the petitioners would be meet and proper and holding further that the Society which ran the Institution, the Dean of the Institute and the local Managing Committee were all amenable to the writ jurisdiction of the High Court under Article 226.
13. In Kumar Mandavkar Narendra Shankar and Ors.v. the Maharashtra State Board of Secondary & Higher Secondary Education and Ors. was a case where the clerk mis-appropriated the examination fees and did not deliver applications to the Maharashtra Secondary Education and Higher Secondary Board even though the Head Master of the recognised School recieved the applications and fees from students and deposited the same to the Board through a clerk of the School. It was held by a learned Single Judge of the Bombay High Court that misdeeds of clerk are misdeeds of the Board and students cannot be penalised because in the peculiar facts of the said case the Head Master and the School was functioning as an agents of the Board. Therefore the Board was asked to declare the results of the students and accordingly directed by the Bombay High Court under Article 226 to do so. The other feature of the case was that as and when the misappropriation of the school fees by the clerk was reported to the governmental authorities, the Education Minister gave a direction to the Board to accept the delayed applications of candidates but still the Board refused to act according to the direction of the Hon'ble Minister on the plea that acceptance of delayed applications would result in violation of regulations which was not permissible. On the interim direction issued by the High Court in an application under Article 226, the students were permitted by the Board to appear at the examination but their results were withheld by the Board and ultimately the High Court allowing the writ application directed the Board to declare the results of the students.
14. The guiding principle on account of which we allow the examination of the results of the writ petitioner respondent No. 1 is on the basis of the judgment in State of M.P. and Anr. v. Kumari Nivedita Jain and Ors. which prompts us to hold that the regulations are directory and not mandatory. That apart the ratio propounded in the decision of the Supreme Court in Sri Krishan v. The KuruksHetra University prompts to hold that if either the Court allow the candidate concerned to sit for the examination or the University for its own lapses allows the candidate concerned to sit for the examination, the University should not withhold the results and deprive the candidate concerned of the fruits of his labours irrespective of the consideration whether the entry for the examination was legal or contrary to the Regulations. We are constrained to hold in the facts and circumstances of the present case that the Court has allowed in this case the writ petitioner respondent No. 1 to appear in the examination and he has appeared for the same and it would be unjust and illegal to deprive him of the results thereof.
15. We would, therefore, dismiss the appeal and direct the University authorities to treat this case as a special one which is not to be used as a precedent for ignoring the leapses of the College Principal in effecting admission for any course contary to the Regulations framed by the University, to treat the Regulations as directory but is not mandatory and to get the answer scripts examined within 4 weeks from this date and to have the same published within 6 weeks from this date, with no further right being conferred on the writ petitioner respondent No. 1 to reappear in the said B. Com Part-I examination for any subsequent year, in case he fails to pass out the examination or to secure admission for B. Com Part-II Course in case he comes out successful, unless he passed in Mathematics in Higher Secondary in a specially conducted examination, prior to his sitting for the Part-II B.Com examination or passed in two Commerce subjects in Higher Secondary Examination in Business Economics including Business Mathematics or Accountancy or both as a special candidate. There will be no order as to costs.
Vidya Nand, J.
16. I agree.