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1998 DIGILAW 212 (HP)

BIRI SINGH v. H. P. UNIVERSITY

1998-11-17

body1998
JUDGMENT D. Raju, C.J.—The above writ petition has been filed seeking for the issue of a direction in the nature of writ of mandamus to the respondents to issue the consolidated detailed marks card to the petitioner. The petitioner claims to have done his graduation in the year 1992 from the Government Degree College, Bilaspur. Thereafter, he was said to have got admission to the Himachal Pradesh University and did his Master Degree in Geography in the year 1994. Since the petitioner could not secure first Division he applied for improvement of division in Urban Geography Course-XIII. In the first improvement attempted he could not secure marks to his expectation. The same was the fate in the second improvement attempted and it appears that he has even gone down. Thereafter, the petitioner appeared once again for the third time for improvement of division in the same subject in December 1997 and was said to hive obtained 56 marks. When the petitioner who has been issued with the detailed marks card for the said examination in December 1997 applied for the issuance of a consolidated marks card for M.A. Geography, the authorities of the respondent-University came to know that since the petitioner has already availed two chances in that very course earlier and could not have availed a third chance, his request could not be complied with and he was called upon to surrender detailed marks card issued to him. Hence, the above writ petition. 2. The learned Counsel for the petitioner while reiterating the stand taken in the writ petition contended that the petitioner having been allowed to take the improvement examination for the third time and having been issued the marks card in respect of the same could not be denied the consolidated marks card of MA Geography and that the respondents-authorities are estopped from denying the benefits secured by undertaking the improvement examination in the third attempt. It is also stated that the petitioner has not concealed any fact from the authorities and therefore, he could not be penalised for the "wrongs committed by the respondents." 3. It is also stated that the petitioner has not concealed any fact from the authorities and therefore, he could not be penalised for the "wrongs committed by the respondents." 3. The learned Counsel in support of this claim sought to place reliance upon three decisions of the apex Court reported in Shri Krishan v. The Kurukshetra, AIR 1976 SC 376; Rajendra Prasad Mathur v. Karnataka University and another, AIR 1986 SC 1448 and Ashok Chand Singhvi v. University of Jodhpur and others, AIR 1989 SC 823. In AIR 1976 SC 376, it is seen that a person who fell short of the required attendance was allowed admission to appear and take the examination and thereafter noticing about the shortages in attendance the University sought to withdraw the candidature of the candidate concerned therein. The apex Court expressed the view that once permitting a candidate to take the examination by force of the University statute governing the said case, the University has no power to withdraw the candidature of the candidates concerned. In AIR 1986 SC 1448, which was a case relating to the admission of a candidate to B.E. Degree Course of Karnataka University, the apex Court in spite of coming to the conclusion that students ineligible for admission were admitted erroneously for the sake of capitation fee, such students pursuing the course for about 4 years under orders of High Court and Supreme Court, their Lordships considered it appropriate to allow them to continue their studies. In AIR 1989 SC 823, it was held that in a case where the Vice-Chancellor after considering certain objections specifically directed admission of a candidate such admission could not be said to have been made through mistake and even assuming the student was admitted through mistake the students not being at fault, the admission ordered cannot be withheld subsequently. 4. We have carefully considered the submissions of the learned Counsel for the petitioner in the light of the above decisions of the apex Court. So far as the case on hand is concerned, the First Ordinances of Himachal Pradesh University, 1973 particularly Ordinance No. 6.23 dealt with the question of permission to reappear in an examination to improve candidates score in the particular course of courses. So far as the case on hand is concerned, the First Ordinances of Himachal Pradesh University, 1973 particularly Ordinance No. 6.23 dealt with the question of permission to reappear in an examination to improve candidates score in the particular course of courses. The proviso to Ordinance No. 6.23(b) reads as follows: "Provided further that a candidate permitted to reappear in the examination for the purpose of improving his division shall be allowed two attempts in each paper within a maximum period of 5 years after he has qualified for the award of degree." The permission granted under the said Ordinance itself is in the form of a concession and there is no right in any candidate to appear for more than one time or reappear in respect of the same subject in which he has already secured pass marks. While granting such a concession and enumerating the circumstances in which the candidate can also avail himself of such concession further imposed a restriction or ceiling on the number of attempts a candidate can appear in the examination for the purpose of improving his division and as could be seen from the proviso extracted above a maximum of two attempts only has been allowed. The petitioner who has contravened a specific mandate in the Ordinance cannot afford to accuse the respondent-authorities only of lapse and default to gain undue benefits from out of his own wrong. It is futile for the petitioner to pretend ignorance of the maximum number of times for which he can reappear to improve his position. A person who is aware of the provision to reappear to improve his prospects in a division must equally had been aware of the limitations on such concession which has been specifically granted and which is normally not available. Therefore, the petitioner cannot claim to be totally innocent to exculpate himself and seek a benefit out of a serious error committed in flagrant violation of the Statutes of the University and seek assistance of this Court for protection of such undeserved benefit which if granted would be opposed to law. 5. The decisions relied upon for the petitioner in our view do not help the petitioner in any way in this case to get the benefits out of wrongful act. 5. The decisions relied upon for the petitioner in our view do not help the petitioner in any way in this case to get the benefits out of wrongful act. The shortage in attendance which is otherwise condonable or mistakes which have been condoned in the judgments of the apex Court cannot be equated to the one committed in this case which is contrary to a specific mandate of law. When the law which granted a concession carried with it an in-built condition de hors the condition and candidate concern cannot said to have any right whatsoever. That apart it is by now well settled by more than one pronouncements of the apex Court that a plea based on the principles of estoppel or legitimate expectation cannot be pressed into service to seek any benefit by disabling the Government or Public authorities from contesting the claim when the benefit sought to be claimed by a person coming before a Court is in direct contravention of law or public policy. In this case, the prohibition contained in ordinance No. 6.23(b) first proviso is specific and admits of no deviation or exception and the Courts exercising jurisdiction under Article 226 of the Constitution of India also are to apply the law and can issue a mandamus only when there is any statutory or legally protected right has been flouted or disobeyed by Government or Public authorities and it is not expected to grant relief which is not only impermissible but would be, if granted, opposed to a specific mandate of law. Consequently if at all if the petitioner is to blame any one, he is to blame himself and the authorities of the respondent-University cannot be said to be only at fault. 6. For all the reasons stated above, we see no merit or justice in the claim made by the peitioner and the writ petition therefore, fails and shall stand dismissed. Petition dismissed.