Orissa High Court
Tripureshwar Mallik vs Council Of Higher Secondary Education ... on 16 January, 1990
Equivalent citations: AIR1990ORI228, AIR 1990 ORISSA 228, (1990) 69 CUT LT 489
Author: D.P. Mohapatra
Bench: D.P. Mohapatra, A. Pasayat
JUDGMENT D.P. Mohapatra, J.
1. The short question that arises for adjudication in this case is whether the petitioner is entitled to the protection under the principle of estoppel against the action of the opposite parties.
2. The petitioner filed this application under Article 226 of the Constitution seeking to quash the decision of the Council of Higher Secondary Education, Orissa (opposite party No. 1) communicated to him in the letter dated 14-9-1989 of the Principal of the Cuttack College (Annexure 4) and to direct the opposite parties to accept the position that he had passed the Annual Higher Secondary Examination of 1989 as a compartmental candidate.
3. The facts regarding which there is no dispute are stated hereunder :
The petitioner, a student of the Cuttack College, appeared as a regular collegiate candidate at the Annual Higher Secondary Examination, 1988 with Roll No. 116 C 096; he failed in the said examination securing 43 marks in English and 53 marks in Economics but secured pass marks in the remaining subjects and also the aggregate; being eligible to appear as a compartmental candidate in the two subjects in which he failed he appeared in the second Higher Secondary Examination, 1988 in English and Economics; he was assigned the Roll No. 116 C 100; he passed in Economics with 71 marks but failed in English securing only 26 marks. Thereafter the petitioner again appeared in the Annual Higher Secondary Examination, 1989 with Roll No. 116 C 158 in English only and passed in the subject securing 62 marks. He was issued the mark sheets (An-nexures2(a) and 2(b), the college leaving certificate dated 8-7-89, the conduct certificate of the same date (Annexures 3(a) and 3(b) indicating therein that he had passed the Higher Secondary Examination. Thereafter on 14-9-89 the Principal of the College (opposite party No. 2) intimated him of the impugned decision (Annexure 4) that the Council cancelled his result and he should surrender the college leaving certificate and the provisional mark-sheets issued to him. Though no specific reason was stated in the letter of the Principal as stated in the writ application, the petitioner, presumed that his result was cancelled since he had not passed in the two failed subjects, that is, Economics and English at a time, from the return filed by the Council the petitioner's presumption has been proved correct. The action of the Council cancelling the petitioner's result has been challenged as illegal, arbitrary, contrary to the principle of natural justice and hit by the principle of estoppel.
4. The opposite party No. 2, Principal, Cuttack College, in his return has fully supported the case of the petitioner. It is stated in his rerutn, inter alia, that when the petitioner applied for admission to the Annual Higher Secondary Examination, 1989 in English only the form was checked by the Principal who found nothing irregular therein. Indeed the Principal states that he was under the impression that in accord with the practice and procedure followed by the Utkal University and the Council, a candidate who failed in the Examination in more than one subjects could clear the failed subjects piecemeal. Accordingly he forwarded the application of the petitioner to the Council which in its turn issued the Admit Card permitting the petitioner to appear in the aforesaid Examination in English only. The provision in Regulation 120 of the Council which provides that a compartmental candidate shall have to clear all the failed subjects at a time is alleged to be unfair, unjust and unnecessarily harsh.
5. The Council in its return has taken refuge under the provisions of Regulation 120 of the Regulations framed by it. The further stand taken by it is that by oversight being presssurised by the task of checking up the large number of application forms the above position had escaped notice of its functionaries. The actions taken in issuing the admit card to the petitioner, declaring his results and other consequential steps were all outcome of the mistake. When the error was detected measures were taken to correct it; the result of the petitioner was cancelled and the decision was intimated to the Principal of the College with instruction to take appropriate follow up action in cancelling the provisional mark-sheets, college leaving certificate etc.
6. From the case of the parties as discussed above, it is clear that the answer to the question formulated earlier depends on the construction of the provision in Regn. 120 and the applicability of the principle of estoppel to the facts and circumstances of the case.
At the outset it will be convenient to quote the provision in Regulation 120.
"120. Exemption from appearing at a subject or subjects :-- If a candidate fails in one or more subjects in the Higher Secondary Examination but secures pass marks in the aggregate, he shall be exempted, on application from appearing again in the subject or group of subjects in which he passed, and the order of exemption shall remain valid for next two consecutive examinations conducted by the Council, following the Examination in which he originally failed.
Provided (i) that he shall have to clear all the failed subjects at a time and (ii) that he shall not be placed in any division."
From the above provisions it is clear -- that a candidate who failed in one or more subjects in the Higher Secondary Examination and seeks permission to appear in the failed subjects only, such permission can be granted if the candidate has secured pass marks in the aggregate. The order apparently will exempt the candidate from appearing in the subjects in which he had already passed. The other conditions of such order are that the exemption shall be valid for the next two consecutive examinations conducted by the Council following the Examination in which the candidate originally failed. Under the proviso, two other conditions are sought to be added, that is, the candidate shall have to clear all the failed subjects at a time and he shall not be placed in any division. In the present case, though there is no dispute that the exemption contemplated under Regulation 120 was granted to the petitioner, no material has been placed before us by the Council to show that in the order of exemption the condition's mentioned in the proviso were incorporated If it had been so done, then it could be reasonably presumed that the petitioner was aware that he has to clear both the failed subjects at a time and not piecemeal. Further the petitioner's application to be admitted 19 the Annual Higher Secondary Examination, 1989 and for permission to appear in English only was duly scrutinised both at the level of the Principal and in the office of the Council and the admit card permitting the petitioner to appear in the Examination in English was issued to him. In view of the said document the petitioner could not have taken the examination in any subject other than English. Indeed, as noticed earlier, the Principal has candidly stated in his return that he was under the impression that a compartmental candidate is entitled to clear the failed subjects piecemeal and on checking the application form submitted by the petitioner he found no irregularity in it. Of course the action of the Principal, as it appears now, was clearly erroneous and his taking shelter under the aforementioned impression clearly shows his lamentable ignorance of the provisions of the Regulation of the Council which cannot be excused. Being the authority in charge of the College preparing candidate for the Higher Secondary Examination held by the Council he should be thoroughly acquainted with the provisions of the Regulations and instructions issued by the Council. However, the fact remains that the petitioner's application on being duly checked the admit card was issued at all relevant stages permitting him to appear in English only. If the mistake had been detected at the stage of the Principal or even in the office of the Council, then the petitioner could have taken the Examination in both the subjects, that is, Economics and English and as the Council has stated in its return such facility was available to him under the Regulation. Due to the action of the opposite parties the petitioner has now lost the chance of passing the Higher Secondary Examination as a compartmental candidate since he has exhausted both the chances as provided in Regulation 120. On the foregoing analysis the net result will be that though the petitioner was initially permitted to appear as a compartmental candidate in the failed subjects, now due to the acts of omission and commission of the opposite parties he will find himself in the position as if no exemption was granted in his favour at all. It is significant to stress here that there is neither any allegation nor is it contended on behalf of the Council that the petitioner had taken any action which would indicate lack of bona fides on his part or that he had deliberately avoided to get any information which was readily available to him. In these circumstances it has got to be held that the petitioner was not responsible for the unenviable situation in which he finds himself now. Considering the peculiar facts and circumstances of the case as discussed and analysed above, I have no hesitation to hold that the petitioner is entitled to the protection against the impugned action of the opposite parties relying on the principle of estoppel.
7. To prop up our conclusion we may refer to a few decisions. This Court in the case of Miss Swapna Rani Das v. Utkal University, reported in (1984) 58 Cut LT 221 : AIR 1985 Orissa 37, considering a case where the petitioner was declared to have passed in the I. A. Examination, had obtained mark-list from the College and provisional certificate from the University and had got admitted to B. A. degree course subsequently the University took the plea that the hard case rule was erroneously applied to her case, it was held that the rule of estoppel applied to the case. The Court relied on the earlier decisions in the case of Smt. Gita Mishra v. Utkal University, ILR (1971) Cut 242 : (AIR 1971 Orissa 276), and in the case of Naba Kishore Gadapalla v. The Utkal University, ILR (1978) 1 Cut 78 : (AIR 1978 Orissa 65). Another decision on which much reliance was placed by the learned counsel appearing for opposite party No. 1 is the case of Suresh Chandra Choudhury v. The Berhampur University, reported in AIR 1987 Orissa 38. Relying on the principle laid down in that case it was contended on behalf of the Council that there could be no estoppel against the provision of the Regulation which is clear and unambiguous and directing the Council to comply with its earlier declaration would be compelling the authority to act against the Regulation. We have perused the decision. In our considered view it is clearly distinguishable from the present case. It was clearly observed in that decision that the question whether the principle of estoppel applies to a particular case depends on the facts of that case; it may be that on similar facts in two cases, in one, in the absence of any material to show that the petitioner claiming the benefit of estoppel had knowledge or means of knowledge to know the real state of affairs, the principle will apply, whereas in the other case, where materials to this effect are present, the doctrine of estoppel will not apply. The admitted factual position in that case was that the petitioner having secured 30 per cent of marks in physics practical was not eligible to be declared as having passed in the subject since under Regulation 19(1) of the Berhampur University Regulations, 40 per cent was the minimum mark to pass the Examination. From the original marksheet issued by the Principal of the College to the petitioner, it was clear that he had secured 30 per cent marks in Physics practical. Thus there was no scope for doubt that the petitioner could have known the real position had he taken the original mark-sheet from the College. In such facts and circumstances the principle of estoppel was held to be inapplicable to the case. The facts of the present case as discussed above are very different. There was no scope for the petitioner to know that the exemption granted in his favour was conditioned by the clause in the proviso that he shall have to clear both the failed subjects at a time. He bona fide believed the representation held out by the Council and its functionaries permitting him to take the second chance to clear English as a compartmental candidate and he cleared the subject in that chance. Therefore the ratio in Suresh Chandra Choudhury's case (supra) has no application to the present case.
8. In the result, the writ application is allowed, the action of the Council of Higher Secondary Education, Orissa (opposite party No. 1) in cancelling the petitioner's result in 1989 Annual Higher Secondary Examination as communicated in the letter of the Principal (Aimexure 4) is quashed; the petitioner shall be deemed to have passed the Higher Secondary Examination, 1989 as a compartmental candidate. There will however be no order for costs of this proceeding.
A. Pasayat, J.
9. I agree.