Orissa High Court
Dr.(Smt.) Pranaya Ballari Mohanty vs Utkal University And Others ......... ... on 18 December, 2013
Equivalent citations: AIR 2014 ORISSA 26, (2014) 134 ALLINDCAS 19 (ORI) 2014 (134) ALLINDCAS 19 SOC, 2014 (134) ALLINDCAS 19 SOC
Author: B.R.Sarangi
Bench: B.R.Sarangi
ORISSA HIGH COURT: CUTTACK
WRIT PETITION (CIVIL) No. 18138 of 2013
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Dr.(Smt.) Pranaya Ballari Mohanty ......... Petitioner
-versus-
Utkal University and others ......... Opposite Parties
For petitioner : M/s.Sameer Kumar Das & S.K.Mishra
For opp. parties : M/s.T.N.Pattnayak & S.Pattnaik
(for O.Ps. 1 & 2)
M/s.K.K.Swain, S.C.D.Dash, & R.P.Das
(for intervenor)
PRESENT:
THE HONOURABLE DR. JUSTICE B.R.SARANGI
Date of hearing: 02.12.2013 | Date of judgment : 18.12.2013
Dr. B.R.Sarangi, J.The petitioner has approached this Court seeking to quash the decision of the Examination Committee of the Utkal University dated 21.8.2012 in cancelling her result of M.A. (Odia) Non-Collegiate Examination, 1991 under Annexure-3 and the consequential resolution of the Syndicate dated 24.7.2013 and the notification dated 4.1.2013.
2. The petitioner's case in nutshell is that after passing the Matriculation Examination, she got herself admitted in I.A. course in Christ College, Cuttack under the Utkal University and was enrolled as a student of Utkal University vide Registration No.28628/80. As per the University 2 Regulation, once a student is allotted a registration number, the same is to be continued as his/ her identity till he/ she continues study under the University or takes migration certificate from the University. The petitioner appeared I.A., B.A. and M.A. Examinations with the said registration number. She secured 48.875% of marks in M.A. Examination, 1986 from Revenshaw College, Cuttack. But in order to enhance her percentage of marks in M.A. Examination, she applied to the Utkal University to appear the M.A.(Odia) Examination as a private candidate in the year 1991 with the same registration No.28628/80. On proper verification/ scrutiny of the records and the application form, the University had issued admit card to the petitioner and she was allowed to appear the M.A. Examination, 1991 and also in the year 1992 as a private candidate with Roll No. 2199P115 with registration No.28628/80 and passed the said examination securing 58.5% of marks vide Annexure-2 series. Considering her percentage of marks secured, she joined as a Lecturer in Odia as against 1st post in Lakheswar Womens' College, Phulnakhara on 3.7.1995 and has been continuing as such in the said college. With the said percentage of marks in M.A. Examination, the petitioner was also allowed to complete her Ph.D Degree in the year 2001. The dispute arose when one Dr. Gitanjali Panda, who was appointed as a Lecturer in Odia against the 2nd post of the college, filed G.I.A. Case No. 809 of 2012 claiming seniority over the petitioner and block grant against the 1st post of Lecturer in Odia on the ground that the petitioner has not been validly appointed in the college and her result in M.A. (Odia) Non-Collegiate Examination, 1991 has been cancelled by the University referring to the letter dated 21.8.2012 under Annexure-3. The fact of such cancellation of the result only came to the knowledge of the 3 petitioner on the basis of the counter filed by the University in G.I.A. Case No. 809 of 2012. Therefore, the present writ petition has been filed challenging such decision of the Examination Committee of the University dated 21.8.2012 under Annnexure-3 and the consequential resolution of the Syndicate dated 24.7.2013 and the notification dated 4.11.2013 under Annexure-3A.
3. Opposite parties 1 and 2 filed their counter affidavit admitting the fact that the petitioner had appeared M.A. Examination as a regular candidate from Revenshaw College in the year 1986 and passed the said examination securing 48.87% of marks and she had also appeared the M.A. (Odia) Non-Collegiate Examination, 1991 having Roll No. 2199P115 securing 433 marks out of 800 and repeat examination as a private candidate in the year 1992 securing 466 marks out of 800. It is stated that as per Clause 2 (A) (b) of the instruction issued by the Utkal University any registered student of the Utkal University who has passed M.A. Examination from Utkal University or some other University recognized by the Academic Council as equivalent thereto may be permitted to appear at the Part-I Examination of Master of Arts as Non-Collegiate (Private) candidate in any branch other than that in which he/she was previously examined. It is stated that the petitioner having suppressed the fact of her passing M.A. Examination previously as a regular candidate from Revenshaw College, she appeared as a Non-Collegiate Private Candidate in the year 1991 and thereafter repeat examination in 1992. Her appearance as private candidate in the subsequent examination has been made due to misrepresentation/ suppression of the fact. Hence, the authorities have rightly taken a decision 4 for cancellation of the degree when the said fact has been brought to the notice of the authorities. In view of such position, the action taken by the University authorities is wholly and fully justified and this Court should not interfere with the said decision.
4. Mr.Sameer Kumar Das, learned counsel for the petitioner urged that the petitioner after having passed M.A.(Odia) Examination in 1992, was awarded with Ph.D degree in Odia by the same University by virtue of which she is continuing as a Lecturer, as a result the petitioner has changed her position basing upon the very same result and cancellation of the same after twenty years without giving any opportunity of hearing is absolutely illegal, arbitrary and violative of the principles of natural justice. Above all such drastic action of the University is hit by the doctrine of promissory estoppel. Therefore, this Court in exercise of the powers under Articles 226 and 227 of the Constitution of India should quash Annexure-3 and 3A, which have been passed by the authorities. In order to substantiate his contention, learned counsel for the petitioner has placed reliance on Delhi Cloth & General Mills Ltd. v. Union of India, AIR 1987 SC 2414, B.L.Sreedhar and others v. K.M.Munireddy, AIR 2003 SC 578, Miss.Reeta Lenka v. Berhampur University and another, 1992(II) OLR 341, David C.Jhan v. Principal Ispat College, Rourkela and others, 1984(I) OLR 564 and Ambika Prasad Mohanty v. Orissa Engineering College and another, 1989(I) OLR 440.
5. Mr.T.N.Pattnayak, learned counsel appearing for the University vehemently opposed the contention of the petitioner and stated that when the petitioner appeared at the M.A.(Odia) Examination held in the 5 year 1991 and repeat examination in 1992 as a private candidate, she had suppressed the material facts that she had passed M.A. (Odia) Examination as a regular candidate in the year 1986 from Revenshaw College and this amounts to misrepresentation and playing fraud on the Court and therefore, no right accrues in favour of the petitioner. Apart from the same, Mr.Pattnayak submits that in the case of fraud and misrepresentation, there is no necessity of following the principles of natural justice. Therefore, the decision taken for cancellation of the result is well within the domain of the University authorities. He further submitted that even assuming for the sake of argument that the petitioner has been allowed to appear at the M.A. (Odia) Non-Collegiate Examination, 1991 and repeat examination 1992, it may be a bona fide mistake on the part of the authorities and that does not confer any right to claim the benefits on such mistake. In support of his contention, he has placed reliance on 2012(II) OLR 721 (Umesh Chandra Chinera v. Chairman and Managing Director, Bharat Petroleum Corporation and others), 2010(Supp.II) OLR 847 (Surendranath Ghosh Trust Estate, Kolkata v. State of Orissa and others), JT 2005(7) 530 (Bhaurao Dagdu Paralkar v. State of Maharashtra and others), 2010 AIR SCW 5281 (Meghamala and others v. V.G.Narasimha Reddy and others), (2008) 2 SCC (L & S) 1047 (Videsh Sanchar Nigam Ltd. and another Vrs. Ajit Kumar Kar and others), (2005 SCC (L & S) 785 (Vice-Chairman, Kendriya Vidyala Sanghathan and another v. Girdharilal Yadav), J.T. 2005(4) SC 40 (Canara Bank v. V.K.Awasthy), M.A.T.No. 2712 of 2007, A.S.T.A.No. 970 of 2007 and F.M.A.No. 725 of 2005 (Prabir Kumar Moitra and another v. Smt.Maitraiee Rooj).
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6. On the basis of the aforesaid facts and circumstances of the case and the contentions raised on behalf of the learned counsel for the parties, it is made clear that admittedly the petitioner was a student of Utkal University having registration No.28628/80 and on the basis of such registration number, she appeared at the I.A., B.A. and M.A. Examinations from the same University. It is the admitted case of the petitioner that she passed M.A.(Odia) Examination in 1986 securing 48.87% of marks. But in order to enhance her marks in M.A. Examination, she appeared as a Non- Collegiate (Private) candidate in M.A. (Odia) in 1991 having Roll No. 21999P115 and she passed the said examination in the year 1992 and on the basis of the marks secured in the said examination, she was appointed as a Lecturer in Odia as against 1st post in Lakheswar Womens' College, Phulnakhara on 3.7.1995 and thereafter she had acquired Ph.D from Utkal University in the year 2001 and as such, she is continuing as Lecturer in Odia in Lakheswar Womens' College, Phulnakhara. After expiry of more than 20 years of her service, one Gitanjali Panda, who was appointed as Lecturer in Odia against 2nd post filed G.I.A.Case No. 809 of 2012 claiming seniority over the petitioner and block grant against the 1st post of Lecturer in Odia on the ground that the petitioner has not been validly appointed in the college and her result in M.A.(Odia) Examination, 1991 has been cancelled by the University pursuant to the letter dated 21.8.2012 under Annexure-3. Thereafter, by passing a resolution on 24.7.2013, the Syndicate accepted the cancellation of result basing upon which notification was issued on 4.11.2013. The contention raised by Mr.T.N.Pattnayak, learned counsel appearing for the University that due to suppression of fact and misrepresentation and by playing fraud, the petitioner appeared at the 7 examination in 1991 and repeat examination in 1992 as a Non-Collegiate (Private) candidate in violation of clause 2 (A) (b) of the instruction issued by the Utkal University. Therefore, when the mistake was brought to the notice of the University, action was taken and result was cancelled and thus, the University is wholly and fully justified in taking such drastic action against the petitioner.
7. In Umesh Chandra Chinera (supra), referred to by Mr.Pattnayak, learned counsel appearing for the University, this Court has held that fraud is a conduct either by letter or words, which induce the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter and misrepresentation itself amounts to fraud. It is further held that fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. The said decision has come in the context of the fact with regard to selection of opposite party as a retail dealer for Petrol/Diesel of Bharat Petroleum Corporation Ltd. at Saatmile Chhak in the district of Dhenkanal. The fact of the said case is not similar to the facts of the case in hand. However, there is no dispute with regard to the proposition of law laid down by this Court in the said judgment.
8. Similarly in the judgment in Surendranath Ghosh Trust Estate, Kolkata (supra) this Court has held that the Court cannot be a party to a case founded on massive frauds, illegalities and irregularities and the Court has a solemn duty to lift the veil to arrive at the truth and every action of the State and its instrumentality should be fair, legitimate and 8 above board and without any affection or aversion. Such finding has been recorded on the basis of a proceeding under the Orissa Government Land Settlement Act with regard to settlement of land in question on permanent pattadar status under the said O.G.L.S. Act and Rules.
9. Similarly in Bhaurao Dagdu Paralkar (supra), the apex Court while dealing with grant of pensionary benefits to the freedom fighters has taken into consideration the meaning of 'fraud' in the context of allegation of the claim of freedom fighter pension by large number of ineligible persons by playing fraud.
10. In Meghmala (supra) the apex Court decided the concept of fraud and while answering the same, the apex Court held that fraud is an act of deliberate deception with a design to secure something, which is otherwise not due and fraud of an egregious nature would vitiate most solemn proceedings of Courts of Justice and detection/ discovery of constructive fraud at belated stage however may not be sufficient to set aside judgment procured by perjury.
11. On consideration of the judgments referred to above, which have been relied upon by Mr.Pattnayak, I find that the aforesaid cases have been decided on the question of fraud in the context of the fact and situation governing the field and none of the cases has dealt with the situation like that of the case in hand. In view of such position, all the cases are distinguishable and more specifically may not be applicable to the present facts of the case. Once an allegation of fraud and misrepresentation is not established against the petitioner, the consequential judgment relied 9 upon by the learned counsel for the University for noncompliance of the principle of natural justice in case of fraud has no legs to stand. Therefore, the judgments in Vice-Chairman, Kendriya Vidyala Sanghathan (supra), Canara Bank (supra) and Prabir Kumar Moitra and another (supra) also cannot have any application to the facts of the present case. Relying on the decision in Videsh Sanchar Nigam(supra), it is contended that bona fide mistake does not confer any right on any party and it can be corrected. This proposition of law also cannot have any application to the present context. In this case the opposite parties have proceeded in a manner as if the petitioner has played fraud with the University and obtained a certificate by misrepresentation. That apart, the University has got no power to cancel the same without following due procedure of law even after expiry of more than 20 years of publication of the result.
12. The factual position as it stands on record itself clearly indicates that the petitioner having been registered under the University vide Registration No. 28628/80, appeared at the I.A., B.A. & M.A. examinations as a regular candidate and also as a Non-Collegiate (Private) candidate by producing the said registration number. A duty is cast on the University to make proper verification of the application and in the event it was found that the petitioner was not eligible to make application, then the same could have been rejected at the threshold. On the other hand, the University on scrutiny of the application form permitted the petitioner to appear at the examination in 1991 and repeat examination in 1992 and on the basis of the marks secured in the said examination, she joined in service in 1995 and completed her Ph.D degree from the University in the year 10 2001 and while continuing in service, due to some allegation made by some outsider without giving opportunity to the petitioner her result in the repeat examination was cancelled after a lapse of 20 years which is absolutely illegal, arbitrary and unreasonable exercise of power and is violative of Articles 14 and 16 of the Constitution. Apart from the same, the action taken at belated stage by the University after lapse of 20 years of publication of the result is hit by the principle of estoppel, waiver and acquiescence.
13. The reliance is placed by the learned counsel for the petitioner on the judgment in Miss.Reeta Lenka (supra). The fact of the said case is akin to the facts of the present case. In the said case one Miss.Reeta Lenka after having been admitted to Rama Devi Women's College in 1985, completed her B.Sc. from that college and thereafter obtained Diploma in Pharmacy from V.S.S.Medical College, Burla. But thereafter due to cancellation of her result because of mass copying, she approached this Court. This Court in the said case observed that in cases of mass copying, natural justice is not required to be complied with and as such, it is apparent that the candidate in question does not get an opportunity to have his say in the matter. Therefore, after thorough discussion on the principle of promissory estoppels under Section 115 of the Evidence Act, the Division Bench of this Court has held that the present is a fit case where the petitioner should be protected by applying the principle of promissory estoppel. Similar view has also been taken in the case of David C.Jhan (supra) where the petitioner in the said case was admitted to the college after being declared to have passed the High School Certificate Examination 11 conducted by the Board of Secondary Education, but subsequently the Board notified that the candidate was wrongly declared to have passed and on the basis of such notification, the college authorities cancelled the admission of the petitioner. However, due to interference of this Court, referring to the judgment of this Court in Gita Mishra v. Utkal University, reported in I.L.R. 1971 Cuttack 24, the said notification was quashed and the petitioner in the said case was permitted to continue his studies. In Ambika Prasad Mohanty (supra) this Court applying the principle of estoppel observed that once a student is admitted after satisfying all the qualifications, subsequent cancellation of admission cannot be made since he would be deprived of pursuing his studies in any other institution.
14. The principle of promissory estoppel has been considered by the apex Court in Union of India and others v. M/s.Anglo Afghan Agencies etc., AIR 1968 SC 718, Chowgule & Company (Hind) Pvt. Ltd. v. Union of India and others, AIR 1971 SC 2021, M/s.Motilal Padampat Sugar Mills Co. Ltd. v. The State of Uttar Pradesh and others, AIR 1979 SC 621, Union of India and others v. Godfrey Philips India Ltd., AIR 1986 SC 806, Delhi Cloth & General Mills Ltd. v. Union of India and others, AIR 1987 SC 2414, Bharat Singh and others v. State of Haryana and others, AIR 1988 SC 2181 and many other subsequent decisions also.
15. In view of the aforesaid authoritative pronouncement, applying the same principle in the present case, the authorities after lapse of 20 years cannot unsettle the settled position by arbitrary and unreasonable exercise of power and alter the position. That apart, in the 12 present case, before taking any decision pursuant to Annexures-3 and 3A, no opportunity whatsoever was given to the petitioner. Hence, the cancellation of result of the petitioner in M.A.Odia Non-Collegiate Examination, 1991 is vitiated. The allegation made that the petitioner has suppressed material fact and misrepresented the University, is absolutely baseless in view of the fact that in all the applications, she furnished her registration number and on consideration of the same, she was permitted to appear at the examination. Therefore, the question of fraud or misrepresentation on the part of the petitioner is absolutely misconceived. When application was filed indicating the registration number of the candidate, it is the duty of University to verify the same before allowing her to appear at the examination in question and merely on the basis of the allegation at the behest of third party, cancellation of the result of the petitioner after 20 years without giving any opportunity of hearing, is illegal and unjustified.
16. For the foregoing reasons and in view of the law laid down by this Court and the apex Court, the impugned notifications cancelling the result of the petitioner in M.A. (Odia) Non-Collegiate Examination, 1991 under Annexures-3 and 3A cannot be sustained and the same are quashed. The writ petition is allowed. No cost.
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Dr.B.R.Sarangi, J.
Orissa High Court, Cuttack The 18th December, 2013/PKSahoo