S.J Vazifdar, J.:— The petitioner is a student of architecture pursuing the B Arch course in the second respondent college. Respondent No. 2 is the Vivekananda Institution of Technology's Padmabhushan Dr. Vasantdada Patil College of Architecture. Respondent No. 2 is affiliated to respondent No. 1
2. The petitioner seeks a Writ of Mandamus directing respondent No. 1 to withdraw its letter cancelling his admission to the 4th year of the B Arch course for the academic year 2000–2001 and cancelling his examination forms for the 4th and 5th years of that course to forthwith declare his results for the 4th year (seventh semester) and for the 5th year (eight semester) and to withdraw its letter dated 4th May 2001.
3. The petitioner finds himself in a predicament caused by the inadvertence of respondent No. 1 and respondent No. 2. Respondent No. 2 went unrepresented before us. Respondent No. 1 admits that at least two acts on its part were incorrect but claims that they were through inadvertence if the construction of the 1st respondent of the rules and requirements are correct and if they were to be enforced strictly despite the “inadvertence” on the part of the respondents, the petitioner stands to lose three to four years for no fault of his and despite the fact that he has now fulfilled all the requirements necessary to have his results declared.
4. In 1997 and 1998 the petitioner was admitted to and successfully completed the first and second years of the B Arch course. In 1999–2000 he was admitted to the 3rd year. He appeared for 3rd year exams in April/May 2000. His results were declared on 22nd June 2000. He failed in four theory subjects. He applied for revaluation immediately. He was granted provisional admission by respondent No. 2 to the 4th year as he had applied for revaluation. The revaluation result was not declared even by November 2000 when the next round of exams were to be held. Understandably therefore the petitioner out of abundant caution, in the event of his being declared unsuccessful even after revaluation at the third-year examination, once again appeared for the 3rd year examination. In November 2000 the petitioner was therefore permitted by respondent No. 2 to appear for 3rd year and the 4th year examinations. He was so permitted as he had successfully completed the 4th year course which consisted of only practical's and a single semester. On 4th December 2000 the revaluation results were declared. There was no change in the petitioner's marks for the third-year. However on 21st January 2001 the result of the third-year examination held in November 2000 were declared. The petitioner passed the examination, his results were declared by respondent No. 1 who also issued and forwarded to respondent No. 2 the marks-sheet.
5. On 23rd January 2001 respondent No. 1 declared the 4th year exam results. There is some dispute here between the parties regarding the declaration of the petitioner's results by respondent No. 1. Mr. Kulkarni, the learned counsel appearing for respondent No. 1 submitted that respondent No. 1 had not declared the petitioner's results, as the petitioner having failed in the third-year examination in his initial attempt was not eligible to appear for the 4th year examination held in November 2000. In fact, he submitted that the petitioner's provisional admission in June 2000 to the 4th year stood cancelled automatically upon the result of the revaluation having shown no change in the petitioner's case. He based this submission on the rules under which the admission being provisional stood cancelled as a result of the petitioner not having passed the third-year in the revaluation. We will presume that the rules so provide.
6. Mr. Kulkarni however admitted that respondent No. 1 did forward to respondent No. 2 its ledger containing details of the marks of all the students including those of the petitioner. Respondent No. 2 admittedly furnished the petitioner a copy of the printout/extract from the ledger relating to his marks which showed that the petitioner had passed the 4th year exam. He did so obtaining a first-class with distinction. Mr. Kulkarni contended that this was done by respondent No. 1 purely through oversight and inadvertently. He further submitted that respondent No. 2 ought not to have furnished the petitioner the extract from the ledger and contended that the same was also done wrongly. It is important to note at this stage that Mr. Kulkarni fairly did not allege any mala fides on the part of the petitioner. Nor did he allege any mala fides on the part of respondent No. 2 or any of the officers of respondent No. 1. Respondent No. 2 remained absent during the hearing before us. It has however at no stage during the course of this petition contended that there was any impropriety on the part of the petitioner in any manner. The fact remains therefore that rightly or wrongly the petitioner was given to believe thereby that he had been validly permitted to sit for the 4th year examination and that he had successfully and validly completed the 4th year examination.
7. Respondent No. 1 by its letter dated 12th September 2001 addressed only to respondent No. 2 stated that the petitioner cannot be permitted to keep terms at the 4th and 5th year. The principal of respondent No. 2 was requested to inform the petitioner accordingly. There is nothing to suggest that the petitioner was so informed.
8. The petitioner sought for admission and was admitted by respondent No. 2 to the 5th year. On 12 February 2001 respondent No. 2 in fact even accepted the fees from the petitioner. Much was sought to be made of the fact that the petitioner paid the fees for the 5th year exam on 8th February 2001 i.e even before he paid the fees for the admission to the 5th year. We do not think that the same is of any significance. Nothing to this effect is mentioned in the affidavit in reply filed by respondent No. 1. As rightly explained by Mr. Patwardhan, colleges often permit their students, on compassionate grounds or even otherwise, to pay their admission fees later. However the examination fees are charged by the University for which colleges are not entitled to grant any indulgence. The college is bound to forward the fees and the forms to the University by a particular date. The college did so as the petitioner was a student who had passed the 4th year examination and thereafter collected the admission fees from him. Hence not much can be made on this count.
9. In April/May 2001 the petitioner appeared for the 8th semester which is the first of the three semesters of the 5th year. It is the admitted position that respondent No. 1 issued a hall ticket to the petitioner for the said examination. Mr. Kulkarni submitted that this too was done by respondent No. 1 through inadvertence. Here as before, Mr. Kulkarni admitted fairly that there was no impropriety or dishonesty involved on the part of the petitioner, respondent No. 2 or any of the officers of respondent No. 1.
10. In the midst of the 8th semester examination respondent No. 1 by its impugned letter dated 4th May 2001 addressed to the principal of respondent No. 2 stated that the admission of the petitioner to the 4th year had already been cancelled and that the examination forms for the 4th year for October/November 2000 and the 5th year for April/May 2001 are treated as cancelled.
11. It appears that respondent No. 2 took a sympathetic view towards the petitioner's case and requested respondent No. 1 in the facts and circumstances of the case to permit the petitioner to appear for the remaining papers in the examination. Respondent No. 1 did not communicate any refusal of this request. The petitioner was allowed to complete the examination which he did on 22nd May 2001. Though the results for the first semester of the 5th year (i.e the 8th semester of the course) were declared on 2nd July 2001 the petitioner's results have been withheld. The petitioner's representations through various persons to respondent No. 1 to declare his results were rejected. It is in these circumstances that this petition was filed. Thereafter pursuant to the interim orders passed by this Court, which we shall refer to shortly, the petitioner appeared for the 9th and 10th semester examinations. The results and however not been declared as a result of the same order.
12. To sum up therefore, the petitioner had successfully completed the course upto the 8th semester. He was permitted to appear for the 3rd and 4th year examinations by both the respondents in November 2000. He was declared as having passed the 3rd year examination on his second attempt in November 2000. He was furnished the extract from the ledger of respondent No. 1 which admittedly respondent No. 1 forwarded to respondent No. 2 albeit allegedly through inadvertence. The same indicated that the petitioner had passed the 4th year examination with a first-class with distinction. The petitioner as well as respondent No. 2 requested respondent No. 1 to allow him to keep terms for the 4th year. Respondent No. 1 communicated its refusal to do so to respondent No. 2. However the petitioner was not informed of the same. Even thereafter respondent No. 2 admitted the petitioner to the 5th year of the said course. The petitioner paid and respondent No. 2 accepted from him, the fees for admission as well as for the examination of the 8th semester i.e the first of the three semesters of the 5th year. Respondent No. 1 even issued a hall ticket permitting the petitioner to appear at this examination albeit allegedly again through inadvertence. In the midst of the examination respondent No. 1 by its letter dated 4th May 2001 informed respondent No. 2 that the provisional admission of the petitioner for the 4th year had been cancelled and that the forms of the petitioner for the 4th and 5th year examinations are treated as cancelled. Even thereafter the petitioner was permitted to complete the examination which he did on 22nd May 2001. In this regard it appears that respondent No. 2 by its letter dated 16th May 2001 requested respondent No. 1 to permit the petitioner to complete the remaining papers. Respondent No. 1 did not communicate its refusal of this request.
13. Mr. Kulkarni submitted and it is alleged in the affidavit of the first respondent University, that it was the duty of the Principal of the 2nd respondent College to have cancelled the provisional admission of the petitioner and informed the University accordingly; that the provisional admission was wrongly not cancelled and he was wrongfully allowed to continue his further studies by the College; that there was thus a lapse on the part of the Principal of the College to have allowed the petitioner to continue his further studies and to send his examination forms for the 4th year and the 5th year of the said course. It is further stated in the affidavit that the petitioner was wrongly allowed by the College to continue his further studies and that therefore his examination results and admission were rightly cancelled by the University. It is also stated that the University was initiating disciplinary action against the principal of the College for the said lapse in wrongly allowing the petitioner to continue his further studies. Mr. Kulkarni however fairly admitted that thus far the University had taken no action whatsoever against the principal. When it was pointed out that a student similarly placed was permitted to proceed with the course the University responded by stating that action would be taken against him as well.
14. What is important to note is that there is not a whisper of any allegation against the petitioner himself. Even during the hearing before us there was no allegation of fraud or dishonesty on the part of the petitioner by the respondents. On the other hand it was admitted on behalf of respondent No. 1 that it acted inadvertently inter-alia by permitting the petitioner to appear for the 4th year examination in November 2000, forwarding the ledger containing his marks at the 4th year examination to respondent No. 1 and by issuing him a hall ticket permitting him to appear for the 5th year examination. It was also conceded that respondent No. 2 wrongly permitted the petitioner to appear for the 4th year examination, granted him admission to the 5th year and forwarded this form for the 5th year examination despite the petitioner having failed the third-year examination in the first attempt even after the revaluation. It was however contended that this conduct on the part of respondent No. 2 was illegal and the fact that respondent No. 1 had itself acted inadvertently would make no difference to the fate of the petitioner. Mr. Kulkarni submitted that the petitioner must seek admission all over again to the 4th year in June 2004 and continue from that stage. In other words despite the inadvertence of both the respondents, according to him, the petitioner would now be entitled, subject to his passing examinations at each stage, to complete his course only in December 2006 thereby losing four years.
15. It is in this background that the petition must be decided. Before we decide the questions that fall for consideration we may complete the narration of facts by stating that the petition was filed in September 2001. A Division Bench of this Court (Chief Justice B.P Singh - as His Lordship then was - and Dr. D.Y Chandrachud, J.) by an order dated 25 October 2001 restrained the respondents from preventing the petitioner from appearing for the 5th year examination for the 9th and 10th semesters but ordered the results not to be declared till further orders. We are unable to agree with Mr. Kulkarni that this order was passed only on grounds of sympathy and not because the Division Bench thought that the petitioner was legally entitled to it. The submission was obviously made in view of a judgment of the Supreme Court cited by him which we shall shortly refer to.
16. Mr. Patwardhan relied upon the judgment of the Supreme Court in Sanatan Gauda v. Berhampur University, (1990) 3 SCC 23, at page 29. The reliance is well founded. The Appellant having passed his M.A examination secured admission in a Law College affiliated to the respondent University. He had submitted his mark sheet and other documents. He completed the first year course and in 1984 was promoted to the second year course. In 1985 he appeared for both the examinations held by the respondent University. In the same year he was admitted to the final Law course in the same College. Despite this his results at the first two examinations were not declared. The respondent; refused to do so on the ground that under the rules the petitioner was not eligible to be admitted to the Law course at all. P.B Sawant J. (as he then was) held that the construction placed by the University on the rules was incorrect and that the petitioner was eligible to be admitted to the Law course. His Lordship however further held.
“15. This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law Examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law Course. The University is therefore, clearly estopped from refusing to declare the results of the appellant's examination or from preventing him from pursuing his final year course.”
17. In his concurring judgment I.M Sharma, J. noted the contention on behalf of the University that being informed of the conditions necessary for admission to the Law course the College did not respect the same. The University further alleged that the College did not even send the necessary material to it indicating the petitioners record (In that respect the case of the petitioner before us stands on a higher footing as in this case both the respondents were admittedly aware of all the facts. Nothing was kept back from respondent No. 1 either by the petitioner or by respondent No. 2). It was contended therefore that the University was justified in declaring his admission to the Law course as illegal refusing to declare his results at the previous examinations and from preventing him from pursuing his final year course. What is important to note is that his Lordship proceeded on the assumption that the construction of the rule as attempted by the University was correct. For the purpose of our judgment we shall also proceed on the same basis. If the construction of the rule as contended by the University before the Supreme Court was correct, the petitioner would have been technically ineligible to secure admission to the Law course. Despite this His Lordship held as under:—
“3. Mr. P.N Misra, the learned counsel for the respondent, contended that the University had informed the colleges about the necessary condition for admission to the Law Course which, it appears, was not respected by the College. When the applications by the candidates for sitting at the examination were forwarded by the College, the University asked the Principal to send the marks of the candidates for the purpose of verification, but the Principal did not comply. The letters Annexures ‘F’ and ‘G’ to the counter-affidavit have been relied upon for the purpose. The learned counsel pointed out that instead, the Principal sent a letter Annexure T stating that the marks-list would be sent in a few days for “your kind reference and verification” which was never sent. The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible. In these circumstances, the argument is, that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination. I am afraid, the stand of the respondent cannot be accepted as correct. From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself. In that situation it cannot punish the student for the negligence of the Principal or the University authorities. It is important to appreciate that the appellant cannot be accused of making any false statement suppressing any relevant fact before anybody. He had produced his marks sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation. The interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as correct. In such a situation even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question. It was the bounden duty of the University to have scrutinized the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.”
(emphasis supplied)
18. The judgment supports the petitioners case entirely. Even before us the petitioner had admittedly disclosed all the facts to the College as well as to the University. In fact in the case before us, the College had in turn informed the University of all the facts. There is nothing to suggest that there was any dishonesty on the part of the petitioner. Thus even assuming that the College or its principal had illegally permitted the petitioner to sit for the 4th year examination in November 2000 admitted him to the 5th year and forwarded his examination form for the 5th year examination the petitioner cannot be faulted for the same. Indeed in the present case even the respondent No. 1 University had added to the petitioners predicament in the manner we have already discussed. The University and the College are clearly estopped from refusing to declare the petitioners results and permitting him to pursue the said course.
19. Mr. Kulkarni was unable to distinguish the judgment. He was unable to demonstrate how the ratio of this judgment was inapplicable to the facts of the present case.
20. In Arshdeep v. Board of Secondary and Higher Secondary Education, 1991 Mh. L.J 304 a Division Bench of this Court repelled the contention that the rule relating to compulsory attendance in the class by a regular student is unconstitutional. The division bench however upheld the petitioners case that having been handed over an admission card for the examination and having further been allowed to appear for the practical examination the board was estopped from prohibiting her participation in the rest of the examination. It is important to note here that the condition regarding compulsory attendance was a term of eligibility for appearing for the Higher Secondary Certificate Examination. The petitioner submitted her application form for appearing at the examination to the Divisional Board through her College. The first respondent Board issued an admission card to the petitioner through the College and pursuant thereto the petitioner appeared for the practical examinations held by the board in certain subjects. Before the petitioner appeared for the theory examination respondent No. 1 informed the petitioner through the College that her application for appearing for the examination was rejected due to shortage of attendance. The Division Bench finding that the petitioner was not guilty of any fraud or misrepresentation allowed the petitioner holding inter-alia as under:—
“………..But in the instant case what has happened is that the admission card was handed over to the student and on that basis she was allowed to take part in the practical examination held by the Board. In our view, under the circumstances the decision of the Board to reject the application for admission to the examination of the ground of deficiency of attendance in the manner in which it was done was most improper. The petitioner was not guilty of any fraud or misrepresentation in making the application and hence she could not be prohibited in the midst of the examination from appearing for the rest of (the) examination. Why should she be allowed to suffer for the delay on the part of the Board in noticing the deficiency? Permitting such a course is to ignore the well established principle of equitable estoppel which must operate against the Board under the circumstances.”
21. The judgment is clearly applicable to the facts of this case and Mr. Patwardhan's reliance upon it is well founded Mr. Kulkarni's submission that the judgment would not assist the petitioner as in that case the court was concerned merely with a student not having the requisite amount of attendance is not well founded. As we have observed earlier, the requirement of a minimum amount of attendance was not a mere formality but was a term of eligibility as much as the rules relied upon respondent No. 1 in this case are.
22. The judgment of the Supreme Court in Shri Krishnan v. Kurukshetra University, Kurukshetra, (1976) 1 SCC 311 may not be of much assistance to Mr. Patwardhan as it appears essentially to have turned on the interpretation and in view of the rules of the respondent University therein. In view of the aforesaid judgments it is not necessary for us to express any final view based on the judgment. The judgments of the Supreme Court and of this court in Sanatan Gauda v. Berhampur University and Arshdeep v. Board of Secondary and Higher Secondary Education (supra) clearly support the petitioners case entitling him to the reliefs claimed in the petition.
23. Mr. Kulkarni relied upon an order of a Division Bench of this court dated 16th April, 2002 in support of his contentions. We find the reliance upon this order rather unusual and would not have thought it necessary to deal with it except for the fact that it was strongly contended that we ought to consider this order as a precedent and pass a similar order in this petition. The order reads thus:—
“The petitioner is allowed to withdraw the petition with liberty to approach the University for condonation of the absence as the decision to cancel the admission of the petitioner of the third-year course was not implemented by the College immediately. If approached the University as to consider the representation immediately. Parties to act on the authenticated copy of this order.”
24. We do not think it necessary to enter into any detailed discussion while holding that such orders do not constitute ratio and cannot be considered precedents even in cases where the facts are similar. Such orders are not even findings of a court. They merely record the application of a petitioner/litigant to withdraw the case. While permitting such withdrawal of a case the court quite obviously does not consider the matter in any manner whatsoever on merits or on law. We have no hesitation therefore in rejecting Mr. Kulkarni's submission based on this order.
25. In CBSE v. P. Sunil Kumar, (1998) 5 SCC 377 : AIR 1998 SC 2235 the question that arose for consideration was whether students studying in institutions not affiliated to the Board of Secondary Education can be permitted by the High Court by an interim order to appear at the examination conducted by the Board and ultimately can the Board be compelled to issue certificates to those students who have appeared at the examination pursuant to the interim direction of the court notwithstanding the fact that the institutions where the students were prosecuting their studies have not yet received affiliation of the Central Board of Secondary Education. The Supreme Court deprecated the practice of allowing students to appear provisionally in examinations of the Board or the University and then ultimately regularising the same by taking a sympathetic view of the matter. The Supreme Court held that the Court will not be justified in issuing directions to the University to protect the interests of the students who had been admitted to the medical College in clear transgression of the provisions of the university act and the regulations of the University. It was further held that the Court cannot by its fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself as that would be destructive of the rule of law. The observations were made essentially in respect of matters where students of unauthorised educational institutions were permitted to appear at the examination.
26. It would be clear from the above discussion that we have not based our decision on grounds of sympathy. We have also observed that the interim order passed in this matter was not on any grounds of sympathy either. We have arrived at our decision on the legal principles enunciated above supported by the judgment of the Supreme Court and of a Division Bench of this Court. The factual conspectus of the case before us is different from that before the Supreme Court in the above judgment relied upon by Mr. Kulkarni.
27. The judgment of the Supreme Court in N. Ramanatha v. State of Kerala, (1973) 2 SCC 650 relied upon by Mr. Kulkarni is of no assistance to the respondents either. The Supreme Court held that no estoppel could arise against the State in regard to the abolition of posts. It was held that as a general rule the doctrine of estoppel will not be applied against the State in its governmental, public or sovereign capacity. The posts in that case was temporary. The situation in the case before us is entirely different. Moreover even in such cases the Supreme Court clarified that an exception however arises when it is necessary to prevent fraud or manifest injustice. The Supreme Court held as under:—
“37. The High Court was correct in holding that no estoppel could arise against the State in regard to abolition of post. The appellant Ramanatha Pillai knew that the past was temporary. In American Jurisprudence 2d at page 783 paragraph 123 it is stated “Generally, a state is not subject to an estoppel to the same extent as in an individual or a private corporation. Otherwise, it might be rendered helpless to assert it? Powers in government. Therefore as a general rule the doctrine of estoppel will not be applied against the State in its governmental, public or sovereign capacity. An exception however arises in the application of estoppel to the State where it is necessary to prevent fraud or manifest injustice”. The estoppel alleged by the appellant Ramanatha Pillai was on the ground that he entered ito an agreement and thereby changed his position to his detriment. The High Court rightly held that the Courts exclude the operation of the doctrine of estoppel, when it is found that the authority against whom estoppel is pleaded has owed a duty to the public against whom the estoppel cannot fairly operate.”
(emphasis supplied)
28. The exception, to our mind of manifest injustice clearly applies in the present case. If the first respondent's contention is upheld it would lead to manifest injustice to the petitioner, especially when we consider the fact that the situation has been caused not only due to no fault of his but inter alia due to the admitted inadvertence not only of respondent No. 2 but of respondent No. 1 itself.
29. In the circumstances the petition/rule is made absolute in terms of prayers (a), (b) and (c). The respondents shall declare the results within four weeks from the date of receipt of a copy of this order authenticated by the Court Stenographer/Court Sheristedar. There shall however be no order as to costs.
Order accordingly.
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