Madras High Court
S.R.P.Venkatasubramani vs The Bharathiyar University on 7 May, 2014
Author: M.Venugopal
Bench: M.Venugopal
THE HIGH COURT OF JUDICATURE AT MADRAS Dated:07.05.2014 Coram THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.P.No.681 of 2012 and M.P.No.1 of 2012 S.R.P.Venkatasubramani Reg. No.0027H0025 S/o S.R.Pappu, 1300, Cote Vertu Boulevard, Apartment No.102, St. Laurent, QC-HAL1Y9, Canada. Rep. By his Power of Attorney, Ms.R.Sindhuja D/o K.Radhakrishnan, 272-B, Fisher Road, Railways Quarters, Ayanavaram, Chennai 23. ... Petitioner Vs. 1.The Bharathiyar University, Rep. By its Controller of Examinations, Coimbatore. 2.Ms.Ashwini G. M Reg. No.0027H0003 C/o. The Principal, Park College of Engineering & Technology, Coimbatore. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus calling for the records relating to the issue of the impugned 1st Respondent Bharathiar University Rank list dated April 2004 for the candidates for whom B.E. Aeronautical Engineering Examinations were held during April'2004 and quash the same and direct the 1st Respondent to prepare a fresh Rank List and consider the case of the Petitioner for inclusion in the rank list at appropriate place in accordance with the regulations of the 1st Respondent. For Petitioner : Mr.N.Subramaniyan For 1st Respondent : Mr.M.Naveenkumar For Mr.S.T.S.Murthy, Special Government Pleader For 2nd Respondent : Served No appearance ORDER
The Petitioner, represented by his Power of Attorney, has projected the instant Writ of Certiorarified Mandamus in calling for the records relating to the issue of impugned 1st Respondent/Bharathiyar University Rank List during April' 2004 for the candidates for whom B.E. Aeronautical Engineering Examinations were held during April' 2004 and to quash the same. Further, the Petitioner has sought for passing of an order in directing the 1st Respondent to prepare a fresh rank list and consider the case of the Petitioner for inclusion in the rank list at appropriate place in accordance with the Regulations of the 1st Respondent.
The Writ Factual Matrix:
(i)The Petitioner completed B.E. Degree in First Class with Distinction scoring 80.21% marks in Aeronautical Engineering during the year 2004 from the Park College, which was under the control of the 1st Respondent. After graduation, on employment, he went to Bangalore. Now, he is employed in Canada and residing there.
(ii)With an intention to proceed for his higher studies in USA, he approached the Universities therein for scholarship during the study, and came to know that the scholarship would be available to University Rank Holders. Thereafter, he approached the University for a copy of the rank list prepared by the 1st Respondent, through his friend and came to know that he was not in the University rankings. He was shocked to hear the same.
(iii)The Petitioner and the 2nd Respondent were classmates. He knew that the 2nd Respondent had not passed all the 8 semester examinations in first attempt and therefore, he expected that he would be given third ranking in the University Rank List. But the 1st Respondent conferred the third rank to the 2nd Respondent ignoring him.
(iv)The 2nd Respondent had not passed the Mathematics Examination [Subject Code 23B] held during the 2nd semester at first attempt and therefore, she was not at all eligible to be considered for any University ranking as per the Regulations of the 1st Respondent. As such, the conferment of the third University Rank on the 2nd Respondent by the 1st Respondent is illegal and affects his vested rights under the Regulations.
(v)To ascertain or what basis the 1st Respondent/University had prepared the Rank List, the Petitioner sought information under the Right to Information Act, 2005 from the 1st Respondent. The 1st Respondent had not furnished the information sought under the guise of secrecy. The 1st Respondent furnished the information on 21.01.2011 stating that a candidate having arrears in the first/second semester Examinations is not eligible for ranking. Then the Petitioner sought information about the basis of Rank certificate to the 2nd Respondent when she had failed in Subject Code 23B. The reply of the 1st Respondent, through its letter dated 21.03.2011, would show that it changed its mind and substantiated the ranking of 2nd Respondent by misinterpreting the relevant regulation and regretted for the earlier information. The acts of the 1st Respondent would reveal that the ranking was awarded to the 2nd Respondent with a mala fide intention to cause undue favour to the 2nd Respondent at the cost of the Petitioner.
(vi)As the Petitioner is qualified to get the third University Rank, he ought to have been placed at third position in the University ranking. However, the 1st Respondent abused its powers in favour of the 2nd Respondent and placed her at the third rank illegally in blatant violation of the relevant Regulations.
(vii)The Petitioner's RTI application to the 1st Respondent asking for copy of mark sheet of the 2nd Respondent was not considered properly and that the 1st Respondent had not furnished the information under the guise of secrecy. Therefore, he is unable to produce the copy of the mark sheet of the 2nd Respondent showing arrears to this Court.
(viii)The denial of University third rank by the 1st Respondent had caused grave injury to the Petitioner, by not only affecting his status and pride, but also making him ineligible to get financial assistance for doing his higher studies. As the representations to the 1st Respondent made by the Petitioner on various dates had not yielded any results, he was left with no other alternate remedy but to file the present Writ Petition.
3.The Counter Averments of the 1st Respondent:
(i)At the outset, the Writ Petition filed by the Petitioner is devoid of merits. The Petitioner had filed the present Writ Petition with a delay of more than 8 years. He sought to modify the rank list issued for the academic year 2003-2004. Any modification at this stage would not only affect the prospects and interests of the other students, but also set a wrong precedent in this regard. Therefore, the Writ Petition is not maintainable, since the same is hit by delay and laches.
(ii)In para 3 of the affidavit in the Writ Petition, the Petitioner claimed that he was shocked to see that his name did not find a place in the University rankings. This would mean that he was fully aware of not just his marks, but also whether or not he was not entitled to be Rank Holder. If he was under the impression that he was entitled to be a Rank Holder viz., third University Rank, he should have at the earliest possible opportunity, challenged the University Rank List for B.E. Aeronautical Engineering Course for the academic year 2003-2004, which was published long ago by the University. He had not taken any steps in 8 long years to verify his University Rank position. On this ground alone, the Writ Petition is liable to be dismissed.
(iii)As per Regulations for B.E. Aeronautical Engineering, the Clause relating to 'Ranking of Candidates' reads as under:
10.Ranking of Candidates -
The candidates who are eligible to get the B.E./B.Tech. Degree and those who have passed all the examinations in the first attempt and secured the degree in First Class will be ranked together on the basis of the average percentage of marks obtained by them in all the subjects from third to eighth semesters.
(iv)On the basis of the aforesaid Regulations, the University prepared its rank list for the aforesaid course for the academic year 2003-2004. The total number of candidates in B.E. Aeronautical Engineering in April' 2004 were 29 and as such, the ranks in respect of the same were restricted to three, viz., on the basis of the principle of ranking only 10% of the total students' strength in a particular course. The Rank Holder, the 2nd Respondent [Aswini G.M. - 0027H0003] had scored 3851 marks and secured 81.94%, while the Petitioner secured 80.21%. Applying the aforesaid Regulation of taking the average of the marks secured by the candidates in the third to eighth semesters, she was ranked third in the University Rank List. As such, there was no intention or effort to favour anyone or act against the Regulations.
(v)In regard to the information furnished by the University on 21.01.2011 and 21.03.2011, it is submitted that as the University had followed the principle of taking the average of the marks secured by the candidates for the subjects in third to eighth semester, there was minor discrepancy in the interpretation of the Regulations as regards passing of all subjects in the first attempt. The passing of all subjects in the first attempt was not taken into consideration while ranking the candidates and the rank positions were determined only on the basis of marks secured by them in the third to eighth semester. As such, the plea of the Petitioner that the ranking was done with a mala fide favour to the 2nd Respondent is a false and frivolous as well as malicious one.
(vi)In regard to para 8 of the affidavit in the Writ Petition to the effect that the RTI application of the Petitioner seeking a copy of the mark sheet of the 2nd Respondent was not considered, as the details sought for related to the 2nd Respondent alone and as such, the information could not be furnished to him.
4.The Petitioner's Rejoinder Contents:
(i)The 1st Respondent had not published the rank list or the marks of all candidates. Only the marks of the individuals alone known were communicated and that of others were not at all made known to others. No one except the persons ranked first to three in the rank list could know the rank list. As such, he had no occasion to know the rank and hence, no chance to question the same. When he approached the University in USA for higher studies during October' 2010, he came to know that the University Rank Holders are being financially assisted with scholarships. So with good intention to help the Rank Holders of the 1st Respondent/University, he asked his friends at Coimbatore to inform those who got University rankings under the 1st Respondent.
(ii)However, during November, 2011 he sought various information under the Right to Information Act from the Respondent in respect of assigning ranks. The 1st Respondent refused to divulge the marks of other candidates. During the process, he came to know that the 2nd Respondent was assigned the third rank and he was shocked with the information as she, being the Petitioner's classmate, failed in one subject and not eligible for ranking. In the meanwhile, he went to Canada and pursued to get the information and came to know that no other students except himself is eligible for third rank. Thereafter, the Petitioner gave Power of Attorney to her and she filed this Writ petition on behalf of the Petitioner. Hence, there was no delay or laches. The moment she came to know about the illegality and obtained the relevant information, she took immediate action and completed the formalities in filing the Writ Petition.
(iii)It is well settled law that delay, if explained properly, will not non-suit a person in maintaining Writ Petition. Further, technical rule of delay cannot be taken to a level of perpetuating the illegality. Also, 'Fraud' is an exception to the rule of delay and if any order is obtained from any authority by committing fraud, it can be challenged before any forum.
(iv)The 1st Respondent, by not publishing the rank list to all the candidates or in their website, suppressed the same from the Petitioner and like others, which is nothing but a fraud on the Petitioner and like persons. Since fraud was committed by the 1st Respondent, the Petitioner can challenge the rank list at any time and before any forum. Added further, the 1st Respondent/University, being guilty of committing fraud on the Petitioner, has no right to raise the plea of delay or laches to sustain their illegality.
(v)The 1st Respondent having known the marks of the 2nd Respondent and inspite of the specific pleading by the Petitioner in para 5 of the affidavit that the 2nd Respondent did not pass the mathematics subject in the second semester in the first attempt, the 1st Respondent is silent in spite of having her marks under their control and hence, the conduct of the 1st Respondent in not disclosing the truth, is nothing but an attempt to commit fraud on this Court.
(vi)The Petitioner came to know about his eligibility only after he came to know about the inclusion of the 2nd Respondent who is ineligible as aforesaid and there were no other students who passed all the examinations except himself between the marks 81.94% and 80.21%.
(vii)This Court in the decision Pooja Bagri V. Registrar, University of Madras, University Buildings, Chennai, 2011 (5) CTC 421, held that treating the attempted candidates and other candidates who passed at first attempt equally violates rule of equality and hence the contention of the 1st Respondent is against the rule of equality.
The Petitioner's Contentions:
5.The Learned Counsel for the Petitioner submits that the impugned ranking issued by the 1st Respondent placing the 2nd Respondent had third position who failed to pass all the 8 semester examinations at first attempt is violative of the Regulations of the 1st Respondent, besides the same is illegal one.
6.According to the Learned Counsel for the Petitioner, the Petitioner had passed all the 8 semester examinations in first attempt and comes as 'Third Rank Holder' in the University ranking, failure to rank him at third position as per Regulations by the 1st Respondent is an illegal one. Consequently, the 1st Respondent is liable to be directed to include the Petitioner in the rank list at third position.
7.The Learned Counsel for the Petitioner cites the decision of this Court in Pooja Bagri V. Register, University of Madras, University Buildings, Chennai, 2011-5-C.T.C.-421, wherein in paragraph 19 and 20, it is observed and held as follows:
19.Ranking awarded by the University is based on the performance of all the candidates in a particular course, as per the time schedule and if the contentions of the Petitioner are to be accepted, then it would amount to treating unequals as equals. A candidate, who appears for the examination in the first instance, cannot be compared with those, who appear in the supplemental examination. For instance, even a candidate, who is not permitted to take up the examination for want of attendance or for any misconduct, can avail the benefit of the period between regular examination conducted for all the students and the supplemental examination.
20.Reading of Clauses 4 and 6 together makes it abundantly clear that for University ranking, the meritorious performance, among the candidates, who have taken up the examination at the end of the year, in the first instance alone can be taken into consideration and not among the candidates in the first attempt. If the interpretation of the writ petitioner has to be accepted, then the candidates, who failed to take up the examination in the first instance, on account of misconduct, lack of attendance, but availed the second opportunity, i.e., supplemental examination, have to be treated as equals. There may be even cases in many colleges, where the student may prefer to take up the examinations at the end of the course, taking his own time for preparation or due to some other reason. Therefore, the assessment of inter-se merit between that class of candidates with others, who take up the examination, as per the Schedule, i.e., in the month and year of the examination, i.e., in the first instance cannot be made at the same time. Thus, they form two different classes and therefore, they cannot be treated on part with each other.
8.The Learned Counsel for the Petitioner relies on the decision of the Hon'ble Supreme Court in M/s.Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur and others, (1992) 2 Supreme Court Cases 598 at special page 602 & 603, wherein in paragraph 13, it is held as follows:
13.The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. The decision in Tilokchand case, (1969) 1 SCC 110 relied on is distinguishable on the facts of the present case. The levy if based on the net profits of the railway undertaking was beyond the authority and the illegal nature of the same has been questioned though belatedly in the pending proceedings after the pronouncement of the High Court in the matter relating to the subsequent years. That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for. We however agree that the suit has been rightly dismissed.
9.Also, he seeks in aid of the decision of the Hon'ble Supreme Court in Salonath Tea Company Limited and others v. Superintendent of Taxes, Nowgong and others, (1988) 1 Supreme Court Cases 401, at special pages 410 to 412, wherein in paragraph Nos.14 to 16, it is held as follows:
14.The High Court in the instant case after analysing the various decisions came to the conclusion that where a petitioner approached the High Court with the sole prayer of claiming refund of money by writ of mandamus, the same was normally not granted but where the refund was prayed as a consequential relief the same was normally entertained if there was no obstruction or if there was no triable issue like that of limitation. We agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Article 226 of the Constitution the Court has power to direct the refund unless there had been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to respondent or any third party. It is true that in some case the period of three years is normally taken as a period beyond which the Court should not grant relief but that is not an inflexible rule. It depends upon the facts of each case. In this case, however, the High Court refused to grant the relief on the ground that when the section was declared ultra vires originally that was the time when refund should have been claimed. But it appears to us, it is only when the Loong Soong case was decided by the High Court in 1973 that the appellant became aware of his crystal right of having the assessment declared ultra vires and in that view of the matter in October, 1973 when the judgment was delivered in July, 1973 the appellant came to know that there is mistake in paying the tax and the appellant was entitled to refund of the amount paid. That was the time when the appellant came to know of it. Within a month in November 1973 the present petition was filed. There was no unexplained delay. There was no fact indicated to the High Court from which it could be inferred that the appellant had either abandoned his claims or the respondent had changed his position in such a way that granting relief of refund would cause either injury to the respondent or anybody else. On the other hand, refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. We are, therefore of the view that the view of the High Court in this matter cannot be sustained.
15.Chandra Bhushan & Anr. v. Deputy Director of Consolidation (Regional), U.P. & ors., [1967l 2 S.C.R. 286 was a case where this Court observed that the High Court erred in exalting a rule of practice into a rule of limitation and rejecting the petition of the appellant for refund without considering whether the appellant was guilty of laches and undue delay. Shah, J. delivering the judgment of the Court observed that the primary question in each case is whether the applicant had been guilty of laches or undue delay.
16.Reference may be made in this connection to R.L. Kapur v. State of Madras, [1972] 3 S.C.R. 417. There the question arose about punishing for contempt. The jurisdiction conferred on the High Court under Article 215 of the Constitution to punish for contempt of itself was a special one, not arising or derived from the Contempt of Courts Act, 1952, and therefore, not within the purview of the Penal Code. Such a position is also clear from the provisions of the Contempt of Courts Act. The effect of section 5 of that Act was only to widen the scope of the existing jurisdiction of a special kind and not conferring a new jurisdiction. So far as contempt of the High Court itself is concerned, as distinguished from that of court subordinate to it, the Constitution vested these rights in every High Court, and so no Act of a legislature could take away that jurisdiction and confer it afresh by virtue of its own authority. That being the position, this Court held that section 25 of the General Clauses Act would not apply.
10.The Learned Counsel for the Petitioner invites the attention of this Court to the decision of the Hon'ble Supreme Court in Dhan Kumar and another V. Iqbal Hussain and others, (2004) 13 Supreme Court Cases 696, wherein in paragraph Nos.4 & 5, it is held as follows:
4.Learned counsel for the appellants submitted that all that was possible to be done, had, in fact, been done in the courts below. The photostat copy of the letter on the basis of which subsequent action was taken, was filed. It was came to know about the pendency of the appeal. Learned counsel for the respondent submitted that two courts have come to the conclusion that the plea set up by the appellants is not tenable and these being findings of fact, should not be interfered with.
5.We find that the plea taken by the appellants and the materials placed were not really inadequate to support their stand. That being so, the technical view, as adopted, should not have been taken about the non-production of the original letter. The courts below should have accepted prayer of the appellants. Be that as it may, the respondents have been put to unnecessary expenses by fighting litigation. The costs of Rs.5000 would meet the ends of justice. The amount of Rs.5000 as costs shall be paid within four weeks from today. On the amount being paid, the appeal shall be restored by the District Court and the application in terms of Order 22 Rule 9 read with Section 5 of the Limitation Act shall be allowed and the proper parties shall be impleaded in terms of the application.
11.Per contra, it is the submission of the Learned Counsel for the 1st Respondent that the Petitioner for nearly 7 years had not whispered about the rank list and in fact, the Petitioner has approached this Court by filing the present Writ of Certiorarified Mandamus with an inordinate delay of 7 years and on the ground of delay alone, the Writ Petition is liable to be thrown out.
12.The Learned Counsel for the 1st Respondent contends that the Petitioner had slept over the matter for 7 years and he could not wake up after remaining quite for long time.
13.The Learned Counsel for the 1st Respondent projects an argument that the Petitioner by filing the present Writ of Certiorarified Mandamus had abused the jurisdiction of this Court without any reasonable or justifiable cause.
Discussions and Conclusions:
14.At the outset, it is to be pointed out that the 1st Respondent/ University's Regulation Nos.8 & 9 of the Regulations for B.E. Aeronautical Engineering [For students admitted in 1998-99 and subsequently] run as follows:
8.PASSING RULES
i) 80% of the marks are allotted for external evaluation and 20% marks are allotted for internal evaluation in each of the theory and practical subject.
ii) A candidate is deemed to have passed in a subject if he/she gets a minimum 50% of the total marks taking the university marks and the sessional marks together, with a minimum of 35 out of 80 in the university examination.
9. CLASSIFICATION OF RESULTS:
i) Results will be declared after every university examination in each semester and the marks obtain by the candidates will be forwarded to them through the head of the Institution.
ii) A candidate who has passed all the subjects of examination as prescribed in rule 7 from third to eighth semester shall be declared to have passed in first class if he/she secures not less than 60% in the aggregate of all the subjects put together taking both the university and the sessional marks and if he/she completes the course within eight semesters from the date of admission. However on more additional attempt for eighth semester subjects alone is permitted in the immediate next examinations for the awarded of first class provided he/she satisfies other conditions.
iii) A candidate who has passed all the subjects of the examination as prescribed in rule 7 from third to eighth semester shall be declared to have passed in first class in with distinction if he/she secures not less than 75% in the aggregate of all the subjects put together taking both the university and the sessional marks and if he/ she passes all the examinations from third to eighth semester in the first attempt.
iv) All the other candidates who have passed all the examinations as per rule 8(ii) shall be declared to have passed in second class.
15.The Regulation No.10 under the caption 'Ranking of Candidates' runs as follows:
The candidates who are eligible to get the B.E./B.Tech. degree and those who have passed all the examinations in the first attempt and secured the degree in first class will be ranged together on the basis of the average percentage of marks obtain by them in all the subjects from third to eighth semester.
16.The Regulation No.11 under the caption 'Procedure for Completing the Course' is mentioned as under:
a) A candidate will be permitted go to the next semester course if he/she has satisfactorily completed the course of study in the current semester and has registered for all the subjects in that semester.
b) One has to complete the course and earn a pass in all the subject in a total of 7 years from the year of joining.
17.The Petitioner, in his letter dated 29.11.2010, addressed to the Public Information Office of the 1st Respondent/University, has sought the following particulars:
1.Please let me know the criteria to be satisfied for university rank, by a student who has done the Bachelor of Engineering from year 2000-2004 in a college affiliated to Bharathiar University?
2.Also, let me know, if the same student (as mentioned in Question No. 1), has arrears in his/her first year exam, will he/she be eligible for a Rank student and First Class with Distinction?
18.The 1st Respondent/University, in Ref. No.COE/2011/151, dated 21.01.2011, addressed to the Petitioner has sent the following reply [to the questions sought for by the Petitioner]:
Question 1: Please let me know the criteria to be satisfied for University rank, by a student who has done the Bachelor of Engineering from year 2000-2004 in a college affiliated to Bharathiyar University?
A candidate who qualifies for the Degree course passing all the examinations in the first attempt shall be eligible for ranking.
Question 2: Also, let me know, if the same student (as mentioned in Question No.1 has arrears in his/her first year exam, will he/she eligible for Rank student and First Class with Distinction?
Not eligible for Ranking.
19.That apart, the Petitioner, in his letter dated 03.03.2011, [Application submitted under Right to Information Act, 2005 for obtaining information] addressed to the Public Information Officer of the 1st Respondent/ University had sought for the following Question Nos.1 and 2:
1.On what basis is Ms. Ashwini (Register No.0027H0003), a student in B.E. Aeronautical Engineering from Bharathiar University from year 2000-04, was given the Rank Certificate for III rd Rank when she had arrears in her First year examination conducted in April 2001?
2.Please provide me a copy of the document stating the eligibility for Rank Student and First Class with Distinction for Bachelor of Engineering Degree in Aeronautical Engineering for the year 2000-04.
20.The Controller of Examinations of the 1st Respondent/ University furnished a reply in Ref. No.COE/2011 dated 21.03.2011 which runs as follows:
Question 1 & 2:
On what basis is Ms. Ashwini (Register No.0027H0003), a student in B.E. Aeronautical Engineering from Bharathiar University from year 2000-04, was given the Rank Certificate for IIIrd Rank when she had arrears in her First Year examination conducted in April 2001? and Please provide me a copy of the document stating the eligibility for Rank Student and First Class with Distinction: for Bachelor of Engineering Degree in Aeronautical Engineering for the year 2000 2004.
As per the regulations of BE/B.Tech Aeronautical Engineering degree course.
10.Ranking of Candidates 'The candidates who are eligible to get the B.E./B.Tech. degree and those who have passed all the examinations in the first attempt and secured the degree in first class will be ranged together on the basis of the average percentage of marks obtain by them in all the subjects from third to eighth semesters.' A copy of the regulations is enclosed.
On the above basis Ms. Ashwini was given the Rank Certificate.
In this office letter No.COE/2011/ 151 dt: 21.01.2011 the reply given was based on the regulations of other degree courses and we regret for the same.
21.The Petitioner's Power of Attorney [viz, R.Sindhuja, Advocate, High Court], in her communication dated 03.09.2011, addressed to the Principal Information Officer of the 1st Respondent/University had sought the following Required Information:
1.Whether Ms. Ashwini (Register No.0027H0003) had passed all subjects in all the University Examinations in the FIRST ATTEMPT? Please give the details of all the marks obtained by her.
2.Whether Ms.Ashwini is qualified to be given the Rank? If yes, under what basis is she qualified for ranking?
3.Is she fulfilling THREE CONDITIONS as per Rule 10 of the Regulations for B.E., Aeronautical Engineering (University Ranking guidelines)? If yes, how?
4.Please give the Rank List of all the qualified candidates as per the Rule 10 (not only the first three) in 2000-2004 batch of B.E. Aeronautical Engineering in your esteemed University.
5.Is there any obligation on the part of your University to inform all the qualified candidates the details of the University rank holders? If yes, what is the time duration?
6.Did your University publish the details of the rank holders of 2000-2004 Aeronautical Engineering Batch? If yes, in what way did the University publish the same and when was it published?
22.The 1st Respondent/University's Controller of Examinations, in Ref.No.COE/ENGG/2011 dated 21.09.2011, had furnished the following answers to Question Nos.1 to 6:
Q.No. Answer 1. Since the mark statements are confidential in nature this cannot be disclosed to others. 2. Yes. As per the University regulations already communicatedt to you. 3. Yes. As per the University regulations. 4. List enclosed. 5. No. But, this University will inform the college concerned. 6. The University is not publishing the details of rank holders.
23.In regard to the plea of 'Fraud' committed on the Petitioner by the 1st Respondent/University, it is to be pointed out that the salient features of 'Fraud' are specified as under:
(a) There ought to be a suggestion as to a fact;
(b) The act suggested must not be true;
(c)The suggestion should have been made by an individual who does not believe it to be true; and
(d)The suggestion must have been made with intent either to deceive or to induce the other side to enter into contract in question.
24.No wonder, the plea of 'Fraud' relates to a Civil Jurisdiction. In a civil case to prove Fraud, the Plaintiff has to establish that the Defendant made a false representation of a fact which may be by word or conduct. The term 'Fraud' is also defined as a concealment or false representation through a statement or conduct that injures another who relies on it in acting. Any conduct involving deceit resulting in injury, loss or damage to someone is fraud, as opined by this Court. In Fraud, there must be an intention an deceive, use of unfair means, deliberate concealment of material facts, or abuse of position of confidence.
25.Further, in order to constitute fraud, the individual making the statement must be aware of the falsity of the statement. To constitute the falsity of a representation, it ought to be found false in substance as well as in facts. As a matter of fact, the motive of an individual making false representation is irrelevant while deciding whether he committed fraud within the meaning of the ingredients of Section 17 of the Indian Contract Act, 1872.
26.In the decision Shivkumar Radhakishindas V. North British Mercantile Insurance Company, AIR 1939 Sind 254, where the insured in reply to questions of the company on special conditions and deliberately gives false replies, such withholding of material information is wilful and is in the nature of fraud. Also, in the English decision Derry V. Peek, (1886-90) All ER Rep 1, the term 'Fraud' is described as follows:
Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false.
27.Also, the term 'Fraud and Justice' never dwell together. After all, Fraud is a conduct, either by letter or words, which induces the other person or authority to take a definite determinative stand in regard to the conduct of the former either by word or letter. It is also well settled by now that misrepresentation itself amounts to fraud. Ordinarily, an act of Fraud on Court is always viewed seriously. However, if a person making a statement knows to be untrue and such a statement was made with a view to make the other party to enter into a contract and he succeeds in the endeavour, there is clearly a sufficient basis for an action on receipt. But if the party making the statement did not know that it was not true, then, he/it cannot be deemed dishonest and no case of fraud would arise as per decision Union M. Finance Co. V. Addison, 41 CWN 482 (PC).
28.That apart, in the decision A.L.N. Narayanan Chettyar V. Official Assignee, AIR 1941 PC 93, it is held that 'Fraud like any other charge of a criminal offence whether made in a civil or criminal proceedings must be established beyond reasonable doubt. A finding as to fraud cannot be based on suspicion and conjecture'.
29.Moreover, the purported allegation of fraud is to be established by adducing cogent, coherent and reliable evidence, in the considered opinion of this Court. Just because, the pleadings are strongly/harshly worded, the same cannot be a substitute for proof of Fraud. Unless sufficient material and evidence is placed on record, duly proved, the Courts will not sustain the allegation of Fraud, as per decision Svenska Handlesbanken V. Indian Charge Chrom, AIR 1994 SC 626.
30.A mere ambiguous statement cannot ipso facto make the representer guilty of fraud. The onus of proof required in regard to fraud/representation made which was false to the knowledge of a litigant is very high. In assessing a plea of Fraud, one has to be circumspect and also to adopt a very cautious approach. A preponderance of probabilities retains the measuring rod albeit with a slightly heavier onus on the seemingly guilty party, as per decision Harsud Co-operative Marketing Society Limited, Khandwa M.P. V. United India Fire and General Insurance Company Limited, AIR 1992 Bom 341.
31.The market difference between fraud and misrepresentation is that in case of fraud the individual making the suggestion does not believe it to be true while in the case of misrepresentation he believes it to be true. Where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. In fact, fraud is secret in its origin and inception and the means adopted for its success and the fraudulent motive and design cannot be proved to the very hilt and it must be proved from the circumstances placed before the Court, as per the Division Bench decision Thangachi Nachial V. Ahmed Hussain Malumair, (1957) 1 MLJ 300.
32.Dealing with the aspect of 'Mandamus', it is to be pertinently pointed out that a relief of Mandamus in writ proceedings can be refused by a Court of law on the ground of laches or unexplained delay. Ordinarily, in the absence of an enforceable legal right no mandamus can be asked for. The condition precedent to the issue of mandamus is that it must be a ministerial duty as distinguished from a discretion as per decision Sharif Ahmad and others etc. V. The Regional Transport Authority, Meerut and others etc., AIR 1978 Supreme Court 209.
33.It cannot be gainsaid that an affected/aggrieved individual may approach the competent statutory authority to draw the attention that inspite of statutory provisions, the statutory authority is failing or neglects to react or reacts wrongly, by filing a Writ of Mandamus.
34.At this stage, this Court aptly points out the decision of the Hon'ble Supreme Court in Mercantile Industrial Development Co. (P) Ltd., V. Whaid Chauhan, (2003) 10 Supreme Court Cases 282, at page 283, wherein, in paragraph No.3, it is held as follows:
3.We find that the order of the High Court is not correct. First of all, it appears to us that the exercise of moving this application for treating Issue 2 as a preliminary issue is clearly mala fide and has been done so with a view to prolong the litigation. This application was filed after ten years of the issues being framed. The only desire can be to somehow or the other prolong the dispute. Furthermore, with two courts having rejected the prayer for framing the preliminary issue the High Court was not correctly advised to exercise its writ jurisdiction and set aside the said orders. There was no error of jurisdiction exercised by the courts below and in any event the issue in question cannot be decided without recording evidence. It was not a pure issue of law which may have been regarded as a preliminary issue.
35.It is to be noted that a relief of Mandamus would be refused by a Court of Law where it would be meaningless by lapse of time. Ordinarily, the disputed facts/issues cannot be gone into in writ proceedings, which are summary in character under Article 226 of the Constitution of India, because it requires an in depth/detail examination of the issues involved. It cannot be lost sight of that the relief of Mandamus is a discretionary remedy and the same cannot be claimed as a matter of right, in the considered opinion of this Court.
36.As regards the RTI application of the Petitioner seeking for a copy of the mark sheet of the 2nd Respondent which was not furnished to the Petitioner, the 1st Respondent/University, in its counter, had taken a stand that the details sought for pertained to the 2nd Respondent alone and as such, it was not furnished.
37.In this connection, this Court very relevantly points out the ingredients of Section 11 of the Right to Information Act, 2005 under the caption 'Third Party Information' in and by which, it is quite clear that when the Chief Information Officer seeks to disclose information relating to third party such information cannot be furnished/disclosed that complying with the mandatory requirement enunciated therein. Further, it is to be borne in mind that any order passed by a quasi-judicial authority affecting the rights of third party could not have been passed without such third party in proceedings and/or party in the proceedings without being given notice or even if not strictly a formal party without providing a reasonable opportunity.
38.From a reading of the tenor and spirit of Section 11 of the Right to Information Act, it follows, as a logical corollary, that any individual who seeks information of a third party in the event the original authority rejects the application will have to add such a third party. No appeal without such party can be proceeded with. Also, such third party, if aggrieved, could challenge the order in terms of Section 19(4) of the Right to Information Act, 2005. That apart, if the information relating to third party is directed to be furnished without hearing, the said third party is losing his/her right to file an Appeal under Section 19 of the Right to Information Act and also, there is a possibility of losing a right to prefer Second Appeal. As such, the third party should necessarily be joined as a party to the concerned proceedings, as opined by this Court.
39.In the instant case on hand, it is not known as to whether the Petitioner has taken further steps in regard to the filing of an Appeal, if any, in regard to the 1st Respondent/University's reply dated 21.09.2011, rejecting his letter of request dated 03.09.2011 (but received on 15.09.2011) for obtaining the mark statements of the 2nd Respondent which are confidential in nature and admittedly which was not disclosed.
40.The main grievance of the Petitioner is that the 1st Respondent/University, through Controller of Examinations, sent a reply dated 21.01.2011 for his Question No.1 (which he sought for as per his letter of request of 29.11.2011) that 'A candidate who qualifies for the Degree course passing all the examinations in the first attempt shall be eligible for ranking' and also, in regard to the Question No.2, the answer furnished by the University is to the effect that 'Not eligible for Ranking'' and in the reply of the 1st Respondent/University dated 21.03.2011 (for his letter dated 03.03.2011), the University had stated that 'In this office letter No.COE/2011/151 dt:21.01.2011 the reply given was based on regulations of other degree courses' and they regretted for the same and therefore, it is quite clear that the 1st Respondent/University took a contradictory stand by resiling its reply dated 21.01.2011, which cannot be permitted, in the eye of law.
41.The Learned Counsel for the Petitioner refers to the Clause 10 of the Regulations for B.E. Aeronautical Engineering and submits that the candidates who were eligible to get the B.E./B.Tech. Degree and those who have passed all the examinations in the first attempt and secured the Degree in First Class will be ranked together on the basis of the average percentage of marks obtained by them in all the subjects from third to eighth semesters' and by virtue of the said Clause, the 2nd Respondent is not eligible for ranking. But the plea of the 1st Respondent, inter alia, is that the 2nd Respondent (Rank Holder) secured 38.51 marks viz., 81.94% and the Petitioner secured 80.21% and by pressing into service the Clause 10 of the Regulations, referred to supra, and taking into consideration the average mark secured by the candidates under the third to eighth semesters, the 2nd Respondent was ranked third in the University Rank List.
42.On going through the ingredients of Clause 10 of the Regulations for B.E. Aeronautical Engineering pertaining to the 1st Respondent/University, this Court is of the considered view that no doubt, the first limb of the Clause 10 of the Regulation in question speaks of 'The candidates who are eligible to get the B.E./B.Tech. Degree and those who have passed all the examinations in the first attempt'. But, it cannot be brushed aside that the second limb of the aforesaid Clause mentioned that 'secured the degree in First Class will be ranked together on the basis of the average percentage of marks obtained by them in all the subjects from third to eighth semesters'. As such, this Court is of the considered view that the entire spirit and content of Clause 10 of the Regulations relating to 'Ranking of Candidates' is to be read together in a combined fashion and not in an isolated or disjunctive way. To put it differently, the first limb and second limb of Clause 10 of the Regulations, as stated supra, will have to be read in entirety or as a whole. Therefore, reading the Clause 10 contents of the Regulations relating to 'Ranking of Candidates' as a whole unerringly points out that the average percentage of marks obtained by the candidates in all subjects from third to eighth semesters would be the yardstick for ranking the candidates who secured the Degree in first class. Resultantly, this Court comes to an inescapable conclusion that the average marks secured by a particular candidate outweighs the marks secured by the other candidate. Viewed in that perspective, it is not in doubt that the Petitioner secured only 80.21% whereas the 2nd Respondent secured 38.51 marks with an average of 81.94%. Resultantly, the 2nd Respondent was rightly ranked as 'third' in the University Rank List relating to third to eighth semesters. Added further, the 1st Respondent/University, by way of its reply dated 21.03.2011 [for the letter dated 03.03.2011 of the Petitioner], had clearly stated that the reply furnished by it dated 21.01.2011 was based on Regulations of other degree courses etc. and as such, the mist or shroud or cloud surrounding the subject matter in issue was cleared. Moreover, the Petitioner for 7 long years had not made any endeavour to verify his rank position. At the earliest point of time, the Petitioner had not challenged the ranking of the 2nd Respondent. There is an inordinate delay of laches of 7 years on the part of the Petitioner in approaching this Court, by filing the present Writ Petition. At this distance point of time, one cannot upset the 'Apple Cart' [settled things]. Looking at from any point of view, the Writ Petition fails. Before parting with the case, this Court significantly points out that the 1st Respondent/University is to act with great care, caution and circumspection, while furnishing replies to queries under Right to Information Act, 2005, in future.
43.In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected Miscellaneous Petition is closed.
07.05.2014 Index :Yes Internet :Yes Sgl To The Controller of Examinations, The Bharathiyar University, Coimbatore.
M.VENUGOPAL,J.
Sgl ORDER IN W.P.No.681 of 2012 07.05.2014