BIRENDRA NATH MONDAL v. VIDYASAGAR UNIVERSITY — 1999 DIGILAW 15 (CAL)

M. H. S. ANSARI, J. ( 1 ) THE petitioner after passing B. Com. Part I (3 years Hons.) Examination in Accountancy in the year 1996, the petitioner appeared for B. Com. Part-I examination in 1996 in Accountancy. The results were published in the month of May, 1996. The petitioner was furnished the mark sheet and upon receipt of the same, it was found that the petitioner was awarded the following marks in the four papers concerned;"acncmarks obtainedpaper-1190paper-1249paper-1350paper-14 52part-IITotal-241total Hons. Marks=394. ( 2 ) THE petitioner being dissatisfied with the marks awarded to him with respect to paper No. 12 and Paper No. 14, submitted an application for review/re-examination of the said two papers in the prescribed form on 15th July, 1996. . ( 3 ) THE petitioner was, thereafter, informed by the Vice Principal of the College that the review has been received from the University and the petitioner was asked to submit his original mark sheet for obtaining fresh mark sheet. The petitioner submitted the original mark sheet on 2nd July, 1997. as per receipt, annexure 'd' to the application. . ( 4 ) THE petition was issued a fresh mark sheet on 9-7-1997 and a perusal of the same showed that the petitioner was awarded marks as under :quot;acncmarks obtainedpaper-1137paper-1249paper-1350paper-1463total- 1995. The grievance of the petitioner is that the re-examination was sought for by the petitioner in respect of Paper Nos. 12 and 14. . ( 5 ) IN the impugned mark sheet in so far as Paper No. 12 is concerned, the marks are the same 49 as in the original mark sheet. . ( 6 ) IN so far as Paper No. 14 is concerned, the petitioner had been awarded 52 marks in the original mark sheet which have been raised to 63 marks. . ( 7 ) HOWEVER, in so far as total marks are concerned, the petitioner have been awarded 241 marks in part-II whereas by the impugned mark sheet, the total marks have been reduced to 199. . ( 8 ) THE reduction in the total marks is on account of Paper No. 11 wherein the petitioner was awarded 90 marks in the original mark sheet which has been reduced to 37 marks in the impugned mark sheet. . . ( 8 ) THE reduction in the total marks is on account of Paper No. 11 wherein the petitioner was awarded 90 marks in the original mark sheet which has been reduced to 37 marks in the impugned mark sheet. . ( 9 ) IT is the contention of the petitioner that the University has no jurisdiction or authority to review the marks in so far as Paper No. 11 is concerned as the petitioner had not sought for any review in respect thereof and the unilateral action taken by the University is without authority of law, illegal and void. . ( 10 ) IT is further submitted that the reduction of marks in so far as Paper No. 11 is concerned, the same have been affected without notice to the petitioner and in utter violation of principles of natural justice. . ( 11 ) THE petitioner has also raised plea of estoppel. It is the contention of the petitioner that the petitioner having been furnished the original mark sheet, the reduction in marks cannot be effected, as the petitioner has acted upon the same by submitting the said mark sheet to various 5 authorities for the purposes of seeking employment and the petitioner cannot be compelled to alter his position to his detriment. . ( 12 ) THE learned counsel for the petitioner has relied upon the judgment of the Supreme Court in Sanatan Gauda v. Berhampur University, AIR 1990 SC 1075 and also upon a judgment of the Allahabad High Court in Anil Kumar Srivastava v. University of Allahabad, AIR 1973 All 442 . . ( 13 ) ON behalf of the respondent No. 1, an affidavit-in-opposition has been filed by the Controller of Examination. In the said affidavit-in-opposition, it is admitted that the petitioner applied for re-examination in Paper Nos. 12 and 14 and his answer scripts were properly revaluated by accredited examiners and marks were increased in Paper No. 14 where the candidate deserved improved marks. In so far as Paper No. 12 for which revaluation was also sought, it was found that the candidate did not deserve any increased marks and as such, the result in Paper No. 12 was not changed. . In so far as Paper No. 12 for which revaluation was also sought, it was found that the candidate did not deserve any increased marks and as such, the result in Paper No. 12 was not changed. . ( 14 ) WITH regard to Paper No. 11, it is stated that the candidate was awarded 37 marks in his answer script but somehow by mistake he was shown as awarded 90 marks in the first mark sheet released in his favour. When it was found that 90 marks were wrongly shown in Paper No. 11 as the candidate actually secured 37 marks, in the new mark sheet changed marks were duly incorporated. ( 15 ) IT is the submission of Miss Debjani Sengupta, learned counsel for the respondent University that the authority to rectify the mistake in printing the marks on the mark sheet, cannot be disputed. The change in so far as Paper No. 11 is concerned is on account of a mistake which cropped up in the mark sheet by showing 90 marks in Paper No. 11 when in fact originally only 37 marks were awarded. No person can take advantage of the mistake, it was urged and the University was justified in rectifying its mistake. ( 16 ) IT was further submitted that no principles of natural justice have been violated. The case is one of rectification of mistake and not one of review. No useful purpose would be served, it was contended by giving notice to the petitioner with regard to the rectification of the mistake as no change in the result is either permissible or possible, even if any opportunity of hearing is afforded to be petitioner. ( 17 ) MISS Debjani Sengupta, learned counsel for the respondent University relied upon several judgments, reference to which will be made shortly. ( 18 ) IT must be stated here that on an earlier occasion i. e. on 27-10-98, this Court had recorded in the Minutes that the answer script in question of the petitioner was produced for perusal of this Court. This Court upon perusal of the same observed as under :"a perusal thereof shows that no review has been made by the authorities and the marks allotted in respect of each answer have been tabulated on the first sheet and total aggregate of marks have been recorded as 37. This Court upon perusal of the same observed as under :"a perusal thereof shows that no review has been made by the authorities and the marks allotted in respect of each answer have been tabulated on the first sheet and total aggregate of marks have been recorded as 37. " ( 19 ) THE controversy thus lies in a narrow compass. There has been no review of the marks by the University with respect to Paper No. 11. The petitioner has been awarded 37 marks in the said Paper No. 11 but the same was recorded as 90 in the original mark sheet issued to the petitioner. Subsequently, by the impugned mark sheet, in respect of Paper No. 11, the marks as awarded on the answer script i. e. 37 were incorporated. ( 20 ) THE petitioner had not asked for the review of Paper No. 11. The University states that it is not a case of review but rectification of a mistake which crept in while incorporating the marks from the answer scripts to the mark sheet. ( 21 ) IT is now fairly well settled that no one can take advantage of any mistake. It is also a well established principle of law that an authority committing a mistake is entitled to correct the same. ( 22 ) THE authority and power of the University, in the circumstances, cannot be disputed that where a mistake has been committed by it in incorporating the marks from the answer scripts to the mark sheet the same can be rectified by it. ( 23 ) THE principle of estoppel is not attracted in every case where a mistake is sought to be rectified. In the instant case, a mark sheet was erroneously issued incorporating incorrect marks in so far as Paper No. 11 is concerned. By a subsequent mark sheet the mistake was rectified incorporating the correct marks awarded to the petitioner-candidate in the said Paper No. 11 after it was detected. ( 24 ) HOWEVER, according to the petitioner, 6 the respondent University is estopped from rectifying the alleged mistake. The foundation for this plea of estoppel is based upon the fact that the petitioner has acted on the original mark sheet by submitting the same to various persons/authorities for seeking employment. ( 24 ) HOWEVER, according to the petitioner, 6 the respondent University is estopped from rectifying the alleged mistake. The foundation for this plea of estoppel is based upon the fact that the petitioner has acted on the original mark sheet by submitting the same to various persons/authorities for seeking employment. ( 25 ) IN the instant case, therefore, it is to be considered whether in the light of the action taken by the petitioner i. e. in altering his position in acting upon the earlier mark sheet i. e. the representation made by the University, the principles of estoppel are attracted. ( 26 ) THE soul of estoppel is equity and not facility for inequity. The rule of estoppel is normally applied where statute rule bestows a discretion upon the authority. In my judgment, the plea of estoppel on the facts and circumstances of the present case is not attracted for the reason that the petitioner had not accepted the correctness of the original mark sheet issued to him by the University, he had in fact questioned the correctness of the same and sought revaluation of two papers. Even before the results of his review application have been intimated to the petitioner, if he has chosen to submit the said mark sheet for purpose of employment, he has done so on his own and not on the representation of the University. Having chosen to dispute the correctness of the mark sheet and having availed of the right for revaluation of the answer scripts, it is not open to the petitioner to plead the estoppel before the results of his own review application are declared. The petitioner cannot in one breath rely upon the mark sheet as originally issued to him by the University and in the same breath dispute the correctness of the same. ( 27 ) THE judgments referred to supra and relied upon by the learned counsel for the petitioner are distinguishable of the facts of the case. ( 28 ) IN Anil Kumar' case ( AIR 1973 All 442 ) (cited supra), the learned single Judge of the Allahabad High Court upheld the plea of estoppel on the ground that the petitioner in that case had been declared passed by the University in B. Sc. ( 28 ) IN Anil Kumar' case ( AIR 1973 All 442 ) (cited supra), the learned single Judge of the Allahabad High Court upheld the plea of estoppel on the ground that the petitioner in that case had been declared passed by the University in B. Sc. previous examination and the petitioner had acted upon that declaration and altered his position by pursuing the regular course of study for appearing in the M. Sc. final examination. Since, the petitioner pursued, the regular course of study for appearing in the M. Sc. final examination, the University, it was held, was estopped from taking the stand or from showing that the mark sheet issued to the petitioner in which he was shown to have passed the M. Sc. (Previous) examination was wrong and the petitioner had in fact failed the M. Sc. (Previous) Examination. No such action, in the instant case, has been taken by the University. The University has in the instant case sought to rectify the mistake by issuing a corrected copy of the mark sheet. It is a well established principle of law that an authority committing a mistake is entitled to rectify the same. It is equally well settled that no one can be allowed to take advantage of any mistake. ( 29 ) SANATAN Gouda' case AIR 1990 SC 1075 has no application in the facts of the present case as in that case, the petitioner was found to be qualified for the post graduate course and the University had also permitted the petitioner to appear in the examination. It was only at the stage of declaration of the results that the University raised the objection to the petitioner' so called ineligibility to be admitted in the law course. The University, it was held, was, therefore, clearly estopped from refusing the declaration of the results of the petitioner in that case or from preventing him from pursuing his final year course. Sharma, J. , in his concurring but separate judgment observed as under :"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. Sharma, J. , in his concurring but separate judgment observed as under :"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 scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results. " ( 30 ) LASTLY, it was contended that the University could not have amended the mark sheet in so far as Paper No. 11 is concerned without complying with the rule as to principles of natural justice. It is not in dispute that the petitioner has been issued no prior notice as to the intention of the University before rectifying the marks in so 7 far Paper No. 11 is concerned. ( 31 ) PRINCIPLES of natural justice, it is well established, ensure fair decision where the function is quasi judicial, the doctrine of fairness is evolved to ensure fair action where the function is administrative. ( 32 ) MISS Debjani Sengupta, learned counsel for the respondent University, on the question of necessity of giving opportunity of hearing before rectifying the mistake in the mark sheet submitted that as the mistake was obvious, no investigation was required to be made after hearing the petitioner and that there was no question of any opportunity being given to the petitioner for rectifying the mistake which was committed by the University in the preparation of the original mark sheet as issued to the petitioner. ( 33 ) MISS Debjani Sengupta referred to and relied upon the following judgments in support of her aforesaid contentions. ( 34 ) IN Wasudeo Laxman Nandanwar v. The Union of India, 1974 Lab IC 141, (Bombay), wherein it was held that the rule of audi alteram partem is not applicable in cases where no change in result is possible even by hearing party affected. ( 34 ) IN Wasudeo Laxman Nandanwar v. The Union of India, 1974 Lab IC 141, (Bombay), wherein it was held that the rule of audi alteram partem is not applicable in cases where no change in result is possible even by hearing party affected. ( 35 ) IN R. N. Shenoy v. Central Bank of India, 1984 Lab IC 1493 (Kerala ). In paragraph 30 of the judgment, the learned Division Bench of the Kerala High Court held that even if it is assumed that there was violation of natural justice, the question that was to be considered and decided is whether any useful purpose would be served by directing notice to be issued and inviting the objection of the affected parties. The Division Bench held as under :". . . . Writs would issue if there was violation of natural justice only on being satisfied that by subsequent proceedings conforming to the principles of natural justice the aggrieved party could get effective reliefs from the offending party. If even after conforming to the principles of natural justice, the same results would follow as the one that the Court had to consider before quashing the orders, the Court would normally stay its hands from interfering with the orders which in its opinion would be an exercise in futility. . . . " ( 36 ) IN Anil Kumar Biswas v. State of West Bengal, (1985) 1 Cal LJ 15, wherein it was held that the authority committing a mistake is entitled to correct the same, opportunity of hearing before such correction is not necessary. ( 37 ) IN District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram v. M. Tripura Sundari Devi, (1990) 3 SCC 655 , wherein it was held that where mistake was disclosed and corrected, respondent was not permitted to resume his duties even after being selected, there was nothing wrong in it. It was further observed that it is not only a matter between the authority committing mistake and person concerned. The aggrieved are all those who had similar or even better qualification than the person concerned. It was further observed that, it amounts to a fraud on public to appoint person with inferior qualification. It was further observed that it is not only a matter between the authority committing mistake and person concerned. The aggrieved are all those who had similar or even better qualification than the person concerned. It was further observed that, it amounts to a fraud on public to appoint person with inferior qualification. ( 38 ) IT was the submission of Miss Debjani Sengupta that no useful purpose would be served in the instant case by affording an opportunity of hearing to the petitioner as the case is one of rectification of mistake committed in the preparation of the original mark sheet and even if any such opportunity is afforded to the petitioner of being heard in the matter, the result would be the same, this Court in the light of the judgments cited supra may not interfere in the instant case as it would be an exercise in futility. ( 39 ) THE submissions made by Miss Debjani Sengupta are not only attractive but are even plausible besides being supported by the precedents relied upon by the learned counsel. However, in the instant case, it cannot be said with any amount of certainty that even after conforming to the principles of natural justice, the same results would follow. If the learned counsel for the petitioner, this Court would have stayed its hands from interfering with or issuing any directions to the respondent authority in respect of the matter on hand. It must not be forgotten that the rules of the respondent University permit the candidate to apply for revaluation of the answer scripts. In fact, the petitioner herein upon being furnished with the original mark sheet applied for revaluation/re-examination of two answer papers No. 12 and 14, wherein he had been awarded marks 49 and 52. There is no reason to believe that in the 8 light of the said rule which permitted if he was awarded 37 marks in paper No. 11 (on rectification, originally the marks awarded in the said paper No. 11 were shown as 90), the petitioner would certainly have availed of the opportunity of applying for revaluation of the answer scripts in so far as the paper No. 11 with which we are in the present concerned. The petitioner has been deprived of the said right of seeking revaluation in respect of paper No. 11. The petitioner has been deprived of the said right of seeking revaluation in respect of paper No. 11. ( 40 ) THAT was the only right the petitioner had, of which he has been deprived and the petitioner has thereby been prejudiced by the impugned action of the respondent University. The petitioner however, cannot insist that the marks not awarded but which by mistake were incorporated in the original mark sheet cannot be rectified nor can the petitioner insist upon awarding of any marks other than those to which he is entitled to, based upon evaluation of his answer scripts. ( 41 ) IN State Bank of Patiala v. S. K. Sharma, (1996) 3 SCC 364 : ( AIR 1996 SC 1669 ) while holding that invalidating an action/order/decision on ground of mere technical violation of principles of natural justice which would amount to negation of justice instead of doing justice between the parties would not be justified. It was held that the complaint should be examined on the touch stone of prejudice. The object of the rule of audi alteram partem is to ensure that there should not be failure of justice. As to the applicability of the principles of natural justice, no inflexible rule can be laid down, it was further observed. ( 42 ) IN the light of the same, it cannot be denied that the petitioner has been prejudiced by the unilateral act of the respondent University in rectifying its mistake in the mark sheet as originally issued to the petitioner by changing the marks in respect of paper No. 11 wherein he had been originally shown to have been awarded 90 marks which were subsequently altered to read as 37 without complying with the principles of natural justice. The petitioner was not made aware of the reason as to why the marks were reduced when no review or revaluation was sought by him in respect of paper No. 11. The petitioner was thus deprived of the opportunity of availing of the right to seek revaluation which the rules of the respondent University do permit. ( 43 ) IT must, therefore, he held that there has been violation of principles of natural justice. The petitioner was thus deprived of the opportunity of availing of the right to seek revaluation which the rules of the respondent University do permit. ( 43 ) IT must, therefore, he held that there has been violation of principles of natural justice. However, in the light of the observation made by the Supreme Court in State Bank of Patiala' case ( AIR 1996 SC 1669 ) (cited supra), the petitioner is not entitled to the relief as prayed for by him as that would amount to negation of justice instead of doing justice between the parties. ( 44 ) IN my judgment, the petitioner should be afforded an opportunity of applying for revaluation of the answer scripts in so far as paper No. 11 is concerned to repair and remedy the prejudice, the petitioner has suffered on account of the unilateral action of the respondent University in rectifying the marks awarded in respect of that paper No. 11. Accordingly, the relief as prayed for in the above writ petition not being available to the petitioner, the same however has to be moulded to render justice to the petitioner. ( 45 ) FOR the reasons aforestated, the instant writ petition is allowed in part and a Mandamus shall issue to the respondent University directing it to revaluate the answer script in respect of aforesaid paper No. 11 of the petitioner by forwarding the same to any of its accredited examiners and based upon such revaluation to issue a fresh mark sheet to the petitioner depending upon the result of the said revaluation of paper No. 11. ( 46 ) THE aforesaid exercise shall be completed by the respondent University within a period of two months from date hereof. For that purpose, the impugned mark sheet issued to the petitioner be and is hereby set aside awaiting the issue of fresh mark sheet, as directed above. ( 47 ) THERE shall, however, be no order as to costs. ( 48 ) LET urgent xerox certified copy of this judgment be furnished to the learned advocates for the respective parties, if applied for within seven days. Order accordingly.