BASANTA KUMAR MOHANTY v. UTKAL UNIVERSITY — 1988 DIGILAW 304 (ORI)

G. B. PATNIK, J. ( 1 ) THE petitioner has prayed for issuance of a mandamus commanding the opposite party No. 1-University to issue the B. A. diploma and for a direction to opposite party No. 3 to reinstate the petitioner in service with all service benefits. The petitioner asserts that he appeared at the Annual B. A. Examination under the Utkal University in the year 1982 and having passed in the said examination joined as an Assistant Teacher on 19-7-1982 in Laxmi Narayan Krushak Sahajog High School, Sahapur. While he was continuing as a teacher of the said school, he joined B. Ed. Training in the Summer School-cum-Correspondence Course in Sitkhayak Mahasangha Institute of Education, Gurujang in 1986-87. To take the B. Ed. Examination, the petitioner was required to produce his original B. A. diploma and, therefore, he deposited the prescribed form and fee for the diploma in the University on 5-6-1987. Instead of giving him the required diploma, he was intimated that he was not eligible to get the same as in fact he had failed in the B. A. Examination. The School in which the petitioner was working as Assistant Teacher coming to know that the petitioner has not passed the B. A. examination, required him to produce his certificates in support of educational qualification, but as he could not produce the same, the School directed him to work as a Clerk and not as an Assistant Teacher. In these premises, the petitioner has filed the aforesaid writ application for the reliefs as indicated earlier. The petitioner, asserts that after the results were declared, he received the mark-sheet from the College as per Annexure-1, wherein he was shown to have passed and he also obtained the College Leaving Certificate as per Annexure-2 and he joined as a Teacher in Laxmi Narayan Krushak Sahajog High School, Sahapur, on the basis of those two documents. The University, according to the petitioner, is estopped from now putting-forth it case that the mark-sheet that was given to the petitioner was a mistake and in fact, he had failed in the B. A. examination. ( 2 ) IN the counter affidavit filed by the University, the stand taken is that the petitioner did not pass the B. A. examination in the year 1982 and the mark-sheet obtained by him as per Annexure-1 is incorrect. ( 2 ) IN the counter affidavit filed by the University, the stand taken is that the petitioner did not pass the B. A. examination in the year 1982 and the mark-sheet obtained by him as per Annexure-1 is incorrect. So far as the mark-sheet issued to the petitioner is concerned, the University has taken a stand in the counter affidavit that the results of one Bamadeb Mohanty bearing roll No. 1038043 had been withheld for malpractice. The petitioner's roll number was 1038044. While transcribing the marks, the petitioner's marks inadvertently were transcribed in place of said Bamadev Mohanty and the marks of Biswanath Mohanty having roll number 1038045 were transcribed as against the petitioner. According to the counter affidavit of the University, the College was sent with the provisional result-sheet, annexed as Annexure-A/2 and that did not contain the name of the petitioner and the petitioner must be presumed to have knowledge of the same. In that view of the matter, when factually under the University Regulations the petitioner has not passed, though an erroneous mark-sheet appears to have been issued in favour of the petitioner by the College, the petitioner cannot be declared to have passed and the rule of estoppel will not apply against the University. ( 3 ) THE College has also filed it counter affidavit, but there has been no averment in the said counter affidavit that the document (Annexurea-2) was in fact put up on the notice-board or that the petitioner's knowledge to the said fact can be imputed. It has been stated in the counter affidavit of the College that Annexure-1 was issued to the petitioner on account of a bona fide mistake in the entries in the statement of marks published by the University and that would not confer any right on the petitioner. ( 4 ) FROM the narration of facts as stated above, it is quite clear that though the petitioner had not really passed in the examination, but on account of callousnsess and negligence of the University authorities he was given a mark-sheet showing that he has passed and so also he was given the College Leaving Certificate, on the basis of which he was appointed as a Teacher and even continued his B. Ed. Course and in the process five years elapsed. Course and in the process five years elapsed. The short question for our consideration is whether the rule of estoppel would apply to the present case or not. ( 5 ) DR. Dash, the learned counsel for the petitioner, contends that the petitioner having been supplied with a mark-sheet wherein he was shown to have passed in the examination as well as the College Leaving Certificate showing that he has passed the examination and he having already spent five long years of his career, it is not open for the University or the College now to plead that the issuance of the mark-sheet was a mistake and the rule of estoppel squarely applies as against the University as well as the College. I n support of his aforesaid contention, strong reliance has been placed on the decisions of this Court in Sri Panchanan Bhuyan v. Utkal University, (O. J. C. No. 1793 of 1979, disposed of on 8-7-1987) and in Naba Kishore Gadapalla v. Utkal University, ILR (1978) I Cut 78. Reliance has also been placed on the decision of the Bombay High Court in the case of Mandavkar Narendra Shankar v. The Maharashtra State Board of Secondary and Higher Secondary Education, AIR 1988 Bom 234 . ( 6 ) MR. Mohanty, the learned counsel for the University, on the other hand, contends that under the University Statutes and Regulations, the petitioner having admittedly failed in the B. A. Examination, the Court cannot by its fiat direct the University to disobey the Statutes to which it owes its existence and the principle of estoppel has no application since there is no estoppel against a statute. In support of his aforesaid contention, he very much relies upon a recent Bench decision of this Court in the case of Suresh Chandra Choudhury v. The Berhampur University, AIR 1937 Orissa 38, and the observations of the Supreme Court in the case of A. P. Christiane Medical Educational Society v. Govt. of Andhra Pradesh, AIR 1986 SC 1490 . ( 7 ) THE question whether the principle of estoppel would apply to a particular case depends on the facts and circumstances of that case. One of the tests is whether the person who had received certain advantages on account of the so-called misrepresentation of the other really knew the correct state of affairs and yet continued to receive the advantages in question or not. One of the tests is whether the person who had received certain advantages on account of the so-called misrepresentation of the other really knew the correct state of affairs and yet continued to receive the advantages in question or not. In other words, in the present case, it has to be found out whether there is any material to indicate that the petitioner had knowledge of the results-sheet that had been sent to the College as per Annexure-A/2 to the counter affidavit of the University and yet coming to know of the same continued to receive any advantage on the basis of the mark-sheet which he had received from the College as per Annexure-1 and the College Leaving Certificate as per Annexure-2. In the Bench decision on which Mr. Mohanty places reliance, AIR 1987 Orissa 38, this Court had held :-"applying the principles enunciated in the aforementioned decisions to the present case, the petitioner claiming the benefits of estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge of it, there can be no estoppel. Therefore, the question is whether on the facts and in the circumstances of this case, it can be said that the petitioner had no means of knowledge to know the real state of affairs, that is, that he had failed to secure the minimum requisite percentage of marks in Physics Practical Examination and believing the representation of the authorities to be true he acted to his prejudice. From the facts noticed earlier, it is clear that before taking admission into the Law College the petitioner was aware of the real state of affairs or at least had means of knowledge about the same. "in view of the aforesaid finding, the Court held that the principle of estoppel would have no application since under R. 19 of the University Regulations, the requirement that the candidate has to secure minimum 40 per cent marks in practical examination to pass in that subject had not been satisfied and the declaration that the petitioner had passed in the examination was clearly erroneous. In our opinion, even applying the tests laid down in the aforesaid case, the University must be held to be bound by the rule of estoppel. In our opinion, even applying the tests laid down in the aforesaid case, the University must be held to be bound by the rule of estoppel. In the present case, though by mistake the University sent the petitioner's mark-sheet as per Annexure-1 to the College, the College in its turn supplied the mark-sheet to the petitioner wherein the petitioner was shown to have passed. The College also gave the College Leaving Certificate to the petitioner wherein the petitioner was shown to have passed. The petitioner had no likelihood of coming to know about Annexure-A/2 which was alleged to have been sent to the College and even the College is absolutely silent as to whether the said document was put up on the notice board wherefrom at least it could have been said that the petitioner was presumed to have known the real state of affairs. The petitioner got himself appointed in the school on the basis of Annexure-1 and continued as a teacher for long five years and also pursued two more years in B. Ed. Course. Certainly, if now it is said that he has not passed, it would work out gross injustice, though we find from records that by mistake the mark-sheet was given to the petitioner. In our opinion; the aforesaid Bench decision will not apply to the present case where the petitioner had no knowledge of the fact that he has failed in the examination prior to 1987, when the University authorities did not supply him the diploma asked for. The observations of the Supreme Court in the decision reported in AIR 1986 SC 1490 were in relation to certain admissions into the M. B. B. S. Course. Those observations also will not apply to the present case since in that case, the students themselves sought and obtained admission into the college despite warnings issued by the University from time to time refraining the students from seeking admission to the institution on the ground that the institution had not received affiliation. Those observations also will not apply to the present case since in that case, the students themselves sought and obtained admission into the college despite warnings issued by the University from time to time refraining the students from seeking admission to the institution on the ground that the institution had not received affiliation. ( 8 ) THE facts and circumstances of the present case are very much similar to the case of Sri Panchanan Bhuyan (O. J. C. No. 1793 of 1979, disposed of on 8-7-1987) wherein this Court had held that where the petitioner was shown to have passed and mark-list as well as College Leaving Certificate had been issued on the basis of which he was appointed as a teacher, it would be indeed a case of irreparable injustice to suddenly declare him as to have not passed in B. Sc. examination, which would in effect mean gross reverses in his service career. In the case of Naba Kishore Gadapalla, ILR (1978) 1 Cut 78, this Court applied the rule of estoppel and issued a writ directing publication of the candidate's results, where the candidate had been supplied with marks showing him to be successful but later on the University wanted to prove facts to show that the candidate had really failed in some subject. The aforesaid decision, in our opinion, would apply with full force to the facts and circumstances of the present case. ( 9 ) IN the premises, as aforesaid, and in the peculiar facts and circumstances of the present case, when the petitioner had no means of knowing that he had failed in the B. A. examination and no material is forthcoming from which it can at least be said that he must have known about his failure, and when admittedly the University gave him the mark-sheet through the College as per Annexure-1, wherein he was shown to have passed, and the College also supplied him the College Leaving Certificate wherein he was shown to have passed, and more than five years elapsed during which period he has been treated to have passed the B. A. Examination, we cannot but hold that the rule of estoppel would apply and accordingly, we would conclude that the University is estopped from taking the plea that the petitioner has, in fact, failed. We would accordingly command the University to issue necessary diploma to the petitioner in respect of his B. A. examination showing him to have passed and the School (opposite party No. 3) will act in accordance with the same diploma. The diploma in question may be issued to the petitioner within four weeks from the receipt of our order. ( 10 ) THE writ application is accordingly allowed, but in the circumstances, without any order as to costs. ( 11 ) R. C. PATNAIK, J. :- I agree. Application allowed. .