Kumari Leena Gupta v. Ruhailkhand University, Bareilly
1988-05-11
KAMALESHWAR NATH, S.C.MATHUR
body1988
DigiLaw.ai
JUDGMENT S.C. Mathur, J. - This petition is directed against the ouster of the petitioner from the B.D.S. 1st year class at the King Georges Medical College Lucknow, to which she had been admitted on October 27, 1987 after appearing at the Combined Pre-Medical Test, for short C.P.M.T., held in the same year. The ouster was communicated to the petitioner by the Principal of the College through his letter dated 17th November, 1987 which refers to Government Order dated 7th November, 1987 as the basis of the ouster. A few facts necessary for the disposal of the petition may be noticed. 2. Admission to various courses in different Medical Colleges of the State is made on the basis of C.P.M.T. Each year the test is held by a University in accordance with the order issued by the State Government under Section 28(5) of the U.P. State Universities Act, 1973, for short Act. In the year 1987 this test was conducted by the Ruhailkhand University, Bareilly, opposite party No. 1. The test was held in June, 1987 and the result was declared on 5th September, 1987 through various newspapers. The petitioner was also a candidate at the test. Through letter dated 20th October, 1987, Annexure-2, the Principal of the King Georges Medical Colleges for short K.G.M.C., informed the petitioner that she was eligible for admission to the 1st Year B.D.S. class at K.G.M.C. She was required to submit certain papers and deposit the fee which she did and thereafter she was formally admitted to the class on 27th October, 1987. After she had started attending the classes she received the impugned order of the Principal, Annexure-4. According to the petitioner she had obtained a total of 71.2 marks in Botany, Zoology, Chemistry and Physics besides 72 marks in Hindi. The petitioner has described the order as arbitrary, unconstitutional, illegal, mala fide and contrary to the principles of natural justice. She had invoked Article 14 of the Constitution and the principle of estoppel also. 3. On behalf of the Ruhailkhand University counter-affidavit and supplementary counter-affidavit have been filed to explain and justify the petitioner's ouster. It has been stated that the checking of the answer-sheets was done through computer by feeding the key answers therein.
She had invoked Article 14 of the Constitution and the principle of estoppel also. 3. On behalf of the Ruhailkhand University counter-affidavit and supplementary counter-affidavit have been filed to explain and justify the petitioner's ouster. It has been stated that the checking of the answer-sheets was done through computer by feeding the key answers therein. General code numbers were given and while operating the computer break was given at the time of checking the answer papers to Botany, while decoding, mistake was committed which resulted in petitioner being allotted higher marks in the subject as a result of which the petitioner was allowed admission to the class in question. However, manual checking was done of the result of about 3000 candidates, including the petitioner, who were at the margin. At this manual checking the error committed in decoding the roll number was detected and the petitioner was found to have obtained lesser marks in the subject of Botany. The marks obtained by the petitioner in each subject have been mentioned in paragraph 12 of the counter-affidavit dated 20th January, 1988. These marks tally with the marks given by the petitioner in paragraph 12 of the writ petition except in the subject of -Botany. The petitioner has mentioned the marks as 222 while in the counter-affidavit the marks mentioned are 196. Of course these 196 marks were allotted after the manual checking. As a result of the manual checking the total marks obtained by the petitioner stand reduced from 712 to 686. It appears that the result of this manual checking was communicated to the State Government which issued the order dated 7th November, 19c 6 referred to in the order of the Principal. 4. The learned counsel for the petitioner has submitted that after admission to the course in question the petitioner had acquired a right and she could not be deprived of that right without giving her opportunity of hearing which admittedly was not given. It has also been submitted that the opposite parties are estopped from ousting the petitioner from the class in question after having admitted her thereto. It has been stated that if the petitioner had not been admitted to the class in question, she would have sought admission to some other class. 5.
It has also been submitted that the opposite parties are estopped from ousting the petitioner from the class in question after having admitted her thereto. It has been stated that if the petitioner had not been admitted to the class in question, she would have sought admission to some other class. 5. Learned counsel for the University on the other hand submits that the error, which resulted in petitioner being offered admission to the class in question, was purely clerical and such an error can always be corrected unilaterally without giving an opportunity of hearing. As such, he submits that neither the principles of natural justice are attracted nor of estoppel. According to him, opportunity of hearing may be required where there is scope for debate ; there is no such scope, he contends, in correcting a clerical error. The correction has been applied to all affected candidates informally and no discrimination has been practised and, therefore, Article 14 of the Constitution is not attracted. He has offered to satisfy the petitioner personally that the marks allotted to her after manual checking are correct for which she may contact the Vice-Chancellor of the University. It has been pointed out that the seats in professional Colleges are limited and the number of seats is fixed in accordance with the norms laid down by the Indian Medical Council. If the petitioners admission is to be continued by applying the principle of estoppel, some meritorious student, who is entitled to be admitted as a result of the manual checking will have to remain out of the class. This will cause undeserved prejudice to him. In support of the plea that clerical errors can be corrected without attracting the principle of estoppel, he has placed reliance upon : (1) Kedar Lal v. Secretary Board of High School and Intermediate Education and another, AIR 1980 All 32, and (2) Km. Vandana Srivastava v. Principal, M.L.N. Medical College, Allahabad and others, 1986 UPLBEC 435. 6. In Kedar Lal case (supra) a candidate who had appeared at the High School Examination conducted by the Board of High School and Intermediate Education, was issued marks-sheet containing marks less than those required for passing the Examination but in the column where it was required to be indicated whether the candidate had passed the Examination or failed thereat, he was shown to have passed the examination.
On the basis of the marks-sheet supplied to the candidate he obtained admission to the Intermediate class. The original marks-sheet supplied to the candidate was lost whereupon he applied for a duplicate thereof. The duplicate supplied to him showed that he had failed at the Examination. Then the candidate filed writ petition in this Court and invoked the principle of estoppel. It was urged on his behalf that if the latter position had been communicated to the petitioner earlier, he would not have waisted money and time in getting himself admitted to the intermediate class. Rejecting the plea of estoppel the Bench observed in paragraph 6 of the report as follows : "The submission is not acceptable to us. It would not be possible to enforce the representation against the Board because the Board cannot be compelled to act contrary to the statute. The Board did not confer the power to declare that the petitioner had passed the examination. The declaration made was thus against the power conferred upon it." (Underlined portion as in the Report). Again in paragraph 7 it has been observed : - " But where the candidate is patently dis entitled to be declared successful, the authorities may not be dis entitled to correct the mistake. As a general thing, an act or representation made through innocent mistake is not a ground for estoppel................." 7. In Vandana Srivastava's case (supra) the petitioner before this Court was granted admission to the M.B.B.S. 1st Year class on the basis of the result of C.P.M.T. treating her to be a Scheduled Caste candidate in whose favour there was reservation. The petitioner in fact did not belong to the Schedule Caste and could be admitted only as a general category candidate but as a general category candidate her merit was lower and was, therefore, not entitled to be admitted. A few days later her admission was cancelled because of the mistake stated herein. In the writ petition filed by her it was urged that the mistake was that of the respondents and that the petitioner had no hand therein, and she was misled and had to leave her studies and come to Allahabad to join M.B.B.S. 1st year course and, therefore, she could not be made to suffer for the mistake of the respondents.
Rejecting the plea the Bench observed in paragraphs of the report: "Estoppel, which was invoked in the instant case, is a principle of equity. The petitioner could not get the benefit of this principle on the facts of the present case. One of the main things which have to be stated in negativing her claim of estoppel is that she knew that she was given admission under a mistake. She knew and can be presumed to have known that she could not be admitted as a general candidate because her marks were much less than the last candidate of the general category on the basis of the marks obtained. In the case of unilateral mistake it is clear that if one party to the knowledge of the other is mistaken as to the fundamental character of the offer if he did not intend, as the other will know, there would be no need for any equitable relief. Such a representation would be a nullity and the person who has acted on it is not entitled to the benefit. The principle of estoppel in this case cannot be applied as soon after the mistake was detected, the petitioners result was cancelled. The cancellation of the result is not mala fide or due to the picking out of the petitioner from the men. It appears from the telegram itself that apart from the petitioner some other candidates of the general category had also been admitted treating them to be that of Scheduled Caste. When it was detected that they were not of Scheduled Caste, their admissions were cancelled immediately." Earlier the Bench observed in paragraph 4 of the report thus : "The petitioner could be presumed, in the circumstances of the present case, to have knowledge of the fact that she had been admitted in the M.B.B.S. Course on the wrong basis that she was a Scheduled Caste." 8.
The principles deducible from the above decisions are - (1) Estoppel is a principle of equity ; (2) Equity is applied to do justice and not to perpetuate injustice ; (3) Equity cannot be invoked for preserving a benefit undeservedly obtained through mistake specially when the benefit is one which the petitioner knew or would have known with the ordinary diligence that he was not entitled to it; (4) When the correction of mistake is bona fide and is not tainted with mala fide, the correction cannot be nullified by invoking the principle of estoppel; and (5) An authority cannot be bound by a representation with the aid of estoppel which will result in violation of statutory provisions. 9. By applying the above principles the petitioner cannot be granted any relief. The petitioner has herself stated that C.P.M.T. was held under a statutory order issued by the State Government under Section 28(5) of the U.P. State Universities Act. The petitioner has not placed on record a complete copy of the State Governments order but an incomplete copy of the order is Annexure 1 to the writ petition, From paragraph 16 of Annexure 1 it is apparent that candidates are selected for admission on the basis of their inter se ranking. Thus the statutory requirement is that the candidate who is higher in merit will have preferential right of admission. Merit is determined on the basis of the marks obtained at the test; the higher the marks the higher the merit. Between a candidate obtaining higher marks and a candidate obtaining lesser marks the former has a preferential right of admission. If this principle is not followed, there will be breach of statutory provisions contained in the Government Order issued under Section 28(o). It is obvious from the facts brought on record that according to her correct ranking the petitioner could not be admitted to the class in question. If despite this fact this Court requires the opposite parties to continue the petitioner in the class in question, there will be breach of statutory provision. Not only this since the seats are limited, a more meritorious candidate will remain out of the class while the petitioner, a less meritorious candidate, will receive education in the class. This will cause undeserved prejudice to the candidate who is denied admission although actually his merit is higher.
Not only this since the seats are limited, a more meritorious candidate will remain out of the class while the petitioner, a less meritorious candidate, will receive education in the class. This will cause undeserved prejudice to the candidate who is denied admission although actually his merit is higher. In other words, the.injustice done to such candidate by wrong allotment of marks to the petitioner will be continued, rather perpetuated. Article 226 was incorporated in the Constitution for securing justice and not for perpetuating injustice. The provision is invokable for redress of injury of a substantial nature. Where there is no injury at all, there is no question of invoking the provision. Cancellation of an admission undeservedly obtained through mistake to an educational class is not an injury muchless an injury of a substantial nature so as to attract Article 226 of the Constitution. The mere fact that the petitioner was not responsible for the mistake does not alter the legal position discussed herein. 10. For submitting that the principle of estoppel is applicable to the case on hand, the learned counsel for the petitioner cites Pratima Das v. State of Orissa and others, AIR 1975 Ori 155 . In this case the principle of estoppel was indeed applied to protest admission of a candidate to the M.B.B.S. Course although the admission was made on account of clerical mistake in decoding of the Roll Number. However, it appears that the selection in this case was not held under any statutory provision and this is apparent from the observations contained in paragraph 5 of the report which are to the following effect : "We would agree with the learned Additional Government Advocate that if there had been a statutory prescription in regard to admission to the Medical College and the petitioner was wanting any of these requirements, there might have been some force in his submission that estoppel may not operate." Since the selection in the case on hand was held under statutory provision, this authority is of no assistance to the petitioner, rather it confirms the view that estoppel cannot be applied to nullify statutory provisions. 11. The petitioner has made allegation of mala fide by asserting in paragraph 23 of the petition that marks of the candidates have been arbitrarily reduced so as to provide admission to the kith and kins of the opposite parties.
11. The petitioner has made allegation of mala fide by asserting in paragraph 23 of the petition that marks of the candidates have been arbitrarily reduced so as to provide admission to the kith and kins of the opposite parties. This allegation is too vague to merit consideration. There is no specification of the kith and kins who were intended to be accommodated nor of the officers of the opposite parties who wanted to accommodate their own kith and kins. In the absence of relevant facts reliance placed by the learned counsel on 1971 (1) SLR 746 (Paragraph 7), P.I.V. Jagannath v. State of Orissa, is of no avail to the petitioner. 12. In paragraphs 9 and 10 of the petition the petitioner has referred to mal paractices allegedly indulged in by the respondents. These allegations are also equally vague to merit consideration. 13. The test in question was objective type. The allotment of marks was by computer on the basis of key answers fed into it. In such a system there is hardly any scope for malpractice or bungling. Incorrect results may be obtained when the computer is defective, or wrong answers are fed in its or , mistake is committed in operating the computer or in decoding the numbers. The opposite parties have stated that wrong result was obtained earlier on account of the last fault. The petitioners assertion that the first result was correct and not the latter one is pure imagination and is not based on any material. The petitioner should accept the offer of the University counsel and obtain personal satisfaction by approaching the Vice-Chancellor. 14. We find substance in the submission of the learned counsel for the University that the question of affording of hearing where there is scope for debate. In correcting a purely clerical error there is no scope for debate and, therefore, there is no question of affording opportunity of hearing. Opportunity of hearing may be required where some allegation is made against the candidate and on the basis thereof his result is sought to be altered to his prejudice. The allegation creates scope for debate. In the case in hand, no allegation is made against the petitioner and accordingly the impugned action is not vitiated because of failure to give her opportunity of hearing. 15.
The allegation creates scope for debate. In the case in hand, no allegation is made against the petitioner and accordingly the impugned action is not vitiated because of failure to give her opportunity of hearing. 15. Learned counsel for the petitioner relies on The Board of High School and Intermediate Education, U.P. and others v. Kumari Chittar Srivastava, AIR 1970 SC 1039 for submitting that opportunity of hearing has to be afforded where the declared result of a candidate is sought to be cancelled. In this case their Lordships have held that while cancelling an examination, the examining body (The Board of High School and Intermediate Education in this Case) performs quasi judicial functions and, therefore, it is incumbent upon it to issue a show-cause notice to the candidate before inflicting upon him the penalty of cancellation. The examination of the respondent before their Lordships was cancelled on the allegation that her attendance was short. The allegation of shortage of attendance leaves scope for debate. When such an allegation is made it is possible for the candidate to show that the allegation is incorrect. This judgment is therefore, of no assistance to the petitioner. 16. From the same proposition the learned counsel has relied upon Dinkar Prabhaker Mahajan v. S.L. Agarwal and others, AIR 1976 MP 40 . In this case the impugned action of cancelling the admission of the candidate to M.B.B.S. class was taken under Rule 9 of the Rules for Pre-medical Examination Madhya Pradesh of 1970 which made it competent for the concerned authority to remove from the College a student who obtained admission by making false or incorrect statement. It has been observed by the learned Judge of the Madhya Pradesh High Court that if notice to show cause had been given to the student he could have shown that he had made no false or incorrect statement and, therefore, Rule 9 was not attracted. Thus this was also a case where there was scope for debate and has no application to the facts of the present case. 17. In Hari Daval and another v. State of Jammu and Kashmir, AIR 1977 J and K 1 also the cancellation of admission to M.B.B.S. Course was not based on any clerical mistake but was based on the allegation that the candidate had obtained admission by concealing ;certain material facts and by giving false information.
17. In Hari Daval and another v. State of Jammu and Kashmir, AIR 1977 J and K 1 also the cancellation of admission to M.B.B.S. Course was not based on any clerical mistake but was based on the allegation that the candidate had obtained admission by concealing ;certain material facts and by giving false information. This also was, therefore, a case which left scope for debate and has no application to the facts of the present case. 18. The following authorities have been cited by the petitioners learned counsel for submitting that if a thing is required to be done in a particular manner it must be done in that manner alone or not at all: (1) Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295 (Paragraph 34-A); and (2) Gaon Sabha v. Dy. Director of Consolidation, Gyanpur and others, 1983 R.D. 73 (77). There can be no quarrel with the legal preposition propounded by the learned counsel but we fail to see how it is applicable to the present case. The impugned order of the State Government and the Principal ensure compliance of the statutory order issued under Section 28 (5). It cannot, therefore, be said that the opposite parties have acted in a manner which is not contemplated by law. 19. Our attention has been drawn by the learned counsel for the petitioner to paragraph 54 of the judgment of their Lordships in State of Gujarat v. Shanti Lal Mangal Das and others, AIR 1969 SC 634 . There is nothing in this judgment which may assist the petitioner. 20. In view of the above the petition fails and is hereby dismissed but without any order as to costs. Interim order, if any, shall stand discharged.