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2004 DIGILAW 120 (HP)

VARUN SEHGAL v. H. P. UNIVERSITY

2004-06-08

M.R.VERMA, V.K.GUPTA

body2004
JUDGMENT M.R. Verma, J.—Both these petitions, which raise common questions of law and fact were taken up for hearing with the consent of the learned Counsel for the parties without formal admission and are being disposed of by this common judgment. 2. Brief facts leading to the filing of these two petitions as averred in the petitions are that respondent No.3 is running three degree courses, i.e., Computer Science & Engineering, Electronics & Communication Engineering and Electrical Engineering with the approval of AICTE and has been accorded affiliation by respondent No.1. On issue of prospectus by the State for admission to 1st year of the Engineering Degree Courses for the year 2002-2003, the petitioners applied for admission and were admitted in the B-Tech, course by respondent No. 3 in August, 2002. The decree course was of four years duration having 3 semesters and examinations were to be held at the end of each academic semester in the months of November - December and May - June on such dates as might be notified by the Controller of Examinations of respondent No.1. Respondent No. 3 did not possess adequate infrastructure facilities and proper education was not provided to the petitioners but they pursued their studies diligently and appeared in the 1st Semester Examination held in December, 2002 in all the papers and were permitted to join classes of 2nd Semester in January, 2003 for which the prescribed fee etc. amounting to Rs. 65,000/ - per semester in the case of payment seats and Rs. 30,000/- per semester in the case of free seats were charged. When the result of 1st Semester was declared in April, 2003, the petitioners were found to have failed in more than three subjects. Respondent No.1 issued a notice in May, 2003 that examination forms of 2nd Semester of those students who had failed in the 1st Semester would not be accepted. However on a representation of the students and orders passed by this Court in a Writ Petition, the students including the petitioners were permitted to appear in the examination of 2nd Semester. In August, 2003, the petitioners were granted admission to 3rd Semester and the requisite admission fee etc. was accepted from them and they were permitted to attend the classes of 3rd Semester. In August, 2003, the petitioners were granted admission to 3rd Semester and the requisite admission fee etc. was accepted from them and they were permitted to attend the classes of 3rd Semester. Their admission forms for 3rd Semester examination were also accepted by the respondents and roll numbers for the examination of 3rd Semester and supplementary examinations of 1st and 2nd Semesters were also issued to them to enable them to sit in such examinations to be held in December-January, 2004. However, on 23.12.2003, the petitioners were informed by the authorities of respondent No.3 that as per the telephonic message from respondent No.1 only those students who had passed the 1st Semester would be permitted to sit in the examination of 2nd and 3rd Semesters and the students who had not passed the 2nd Semester would not be permitted to sit in the examination of the 3rd Semester. Despite requests by the petitioners, such orders/directions were not conveyed to them in writing nor were notified on the notice board. Pursuant to the protest by the petitioners respondent No. 3 agreed to permit the petitioners and the similarly situate students to sit in the examinations for which they had been issued the roll numbers subject to the undertaking that the petitioners would not lodge any claim/protest or press for declaration of their result in case respondent No.1 declined the permission for such examinations. Having no other alternative, the petitioners gave such undertaking on 24.12.2003 because the examination for the 3rd Semester was to commence from 29.12.2003. The petitioners also came to know that the respondent No.1 had issued the instructions on 8.5.2003 that a carry over system would not be applicable and fresh admissions will be governed by University Ordinances and such instructions were made applicable even to the admissions having been made in August 2002 whereas in December, 2003 respondent No. 2 allowed an additional special change to the students of 1st and 4th Semesters of respondent No. 3. Such powers of giving special chances to the students having become ineligible are being exercised by respondent No.2 by waiving the disqualification and by permitting the students to sit in the examination. Such powers of giving special chances to the students having become ineligible are being exercised by respondent No.2 by waiving the disqualification and by permitting the students to sit in the examination. It is also case of the petitioners that neither at the time of admission to the classes of the next semesters and at the time of appearing in the Semester Examinations nor at the time of receiving the admission fee for 3rd Semester and permitting the petitioners to attend the classes of 3rd Semester they were informed that they would not be permitted to sit in the 2nd Semester Examination and so on in case they did not clear the 1st Semester Examination. The, petitioners have the legitimate expectations that the procedure and practice as followed in the past would continue to be followed and could not be changed unless a prior notice was given to them. Their admission fees to 2nd and 3rd Semesters were accepted, even examination fees were accepted and roll numbers were issued therefore, the respondents now could not deny the opportunity to the petitioners to appear in the examinations and declare their results because if there was any objection those stood waived off because of the acceptance of fees, issue of roll numbers etc. Therefore, the denial of the permission to the petitioners to sit in the 3rd Semester Examination as well as supplementary examinations is unfair and unreasonable and the undertaking taken from the petitioners by respondent No. 3 is illegal. 3. Against the aforesaid background, the petitions have claimed the following reliefs in these petitions : 1. That the respondents be directed to permit the petitioners to appear in the Examinations of IIIrd Semester of the Bachelor of Technology Course to be in December 2003/2004. 2. That the respondents be directed to permit the petitioners to sit for their supplementary examinations of 1st and 2nd Semesters of the Bachelors of technology course being held in December 2003/January 2004. 3. That the result of these examinations be declared after the completion of the exams and the undertaking taken from the petitioners be declared to be non-est and of no consequence. 4. Any other or further orders which are deemed fit, in the facts and circumstances of the case may be passed in favour of the petitioners and against the respondents. 4. 4. Any other or further orders which are deemed fit, in the facts and circumstances of the case may be passed in favour of the petitioners and against the respondents. 4. Respondents No.1 and 2 in their reply affidavit raised the preliminary objection that as per the Ordinance 13. 3(d), (e) and (f) of H.P. University Ordinance, Volume I, the petitioners do not fulfil the conditions to appear in the 3rd Semester unless they reappear and clear 1st and 2nd Semesters Examinations. Even on merits, the emphasis for denying permission to the petitioners to sit in the supplementary examinations and 3rd Semester Examination has been laid on the aforesaid University Ordinance and it has been claimed that having failed in each of the 1st and 2nd Semesters in more than three subjects, the petitioners were not eligible to proceed to the 3rd Semester and, hence, not eligible for the 3rd Semester Examination. It is also claimed that the petitioners were not eligible even to appear in the 2nd Semester Examination but were permitted to so appear because of the judgment of this Court in CWP Nos. 434 to 444 of 2003 but it cannot be treated as a precedence. The allegations about the want of infrastructure and inadequacy of proper education provided by respondent No.3 have not been admitted or denied on the ground that such allegations are against respondent No.3. 5. Respondent No.3 did not file any reply and adopted the reply filed by respondents No. 1 and 2. The allegations of want of proper infrastructure and inadequacy of imparting proper education to the petitioners by respondent No. 3 thus remained unrebutted. 6. We have heard the learned Counsel for the parties and have also perused the records. 7. The relevant extract of Chapter 13 of the Himachal Pradesh University Ordinance (Annexure-B) reads as under:— "13.3(d) The existing sub-clause (d) of Ord. 13.3 be substituted and new sub-clauses (e), (f), (g), (h) and (i) be added:— (d) A candidate who has failed to pass or has failed to appear in the main semester examination shall be eligible to appear in the following main examination when it is held next for that semester, if he/she otherwise, fulfils all other conditions. He/she will have to clear the 1st year in 3 consecutive years failing which his/her candidature shall stand cancelled. He/she will have to clear the 1st year in 3 consecutive years failing which his/her candidature shall stand cancelled. (e) A candidate who has failed to complete the main semester examination shall be eligible to appear in the supplementary examination for odd or even semester(s) Provided he/she fulfils all other conditions and that the number of carry-over subjects in each semester is not more than 3 (including theory practicals and the projects reports). Such a candidate shall also be allowed to proceed to the next semester. (f) A re-appear candidate shall not be allowed to take examination in more than 10 subjects/courses (including the carry over subject) at a time. (g) Maximum consecutive chances to clear/pass the re-appear subject shall be four including the first attempt, otherwise candidate shall have to repeat the concerned semester in full. (h) A candidate who has got re-appear in a subject(s) and also allowed to proceed to the next semester shall not be allowed to attend classes and appear in semester examination(s) mentioned in column (a) below, unless he has passed completely the semester exams, mentioned in column (b) below:— (a) 5th Semester onwards (b) 1st Semester 6th Semester onwards 2nd Semester 7th Semester onwards 3rd Semester 8th Semester onwards 4th Semester (i) The maximum time to complete the B. Tech. B. Arch. degree shall be 7 years from the date of admission to the college.” 8. It is evident from the contents of Annexure-B quoted hereinabove that it enables the failed candidates to sit in the following main examination and supplementary examinations to clear first academic year in three consecutive years subject to certain conditions and provides consecutive chances to clear/pass the subject in four attempts. It further provides that student who has not cleared first semester will not be permitted to sit in the examination of the fifth semester and so on and the maximum time to complete the course is seven years from the date of admission to the college. It is not disputed by respondents that respondent No.2 has discretionary powers to extend special chances to such candidates who could not pass the examination or clear the subjects within the prescribed maximum chances. Thus the Ordinance itself is not only liberal, but flexible also in view of the said discretionary powers of respondent No.2. 9. It is not disputed by respondents that respondent No.2 has discretionary powers to extend special chances to such candidates who could not pass the examination or clear the subjects within the prescribed maximum chances. Thus the Ordinance itself is not only liberal, but flexible also in view of the said discretionary powers of respondent No.2. 9. The grievance of the petitioners is that they had been admitted to the third semester and have completed the classes of the third semester, their examination fee to appear in the examination for the third semester and supplementary examinations of semesters 1 and 2 have been accepted and roll numbers issued, therefore, they could not be declared ineligible and debarred from sitting in the examination(s). 10. The contention of the respondents is that the petitioners were permitted to appear in the examinations only on the basis of the undertaking given by them and the orders passed by the Court not that they were eligible. On the contrary they were ineligible to sit in the examination, therefore, they were rightly debarred from taking the examination and cannot claim that their results should be declared. 11. It is not the case of the respondents that the petitioners ever made any mis-representation or used unfair means to get admission to third semester or while submitting their forms of admission to appear in the third semester examination and the supplementary examination(s). They were given admission to third semester by respondent No.3, who charged the fee and other dues payable by them and were permitted to attend the classes of the third semester for the full term. Their forms for admission to sit in the examination/supplementary examination(s) were accepted by the respondents and roll numbers were issued. Finally they were permitted to sit in the examination subject to the undertaking that they will not lodge any claim/protest or press for declaration of their result in case the permission to sit in the examination was declined. Respondent No.1 vide Annexure R-1/B held the petitioners ineligible to sit in the examination only a couple of days before the commencement of the examination. Even the contents of Annexure R-1/B were not conveyed to the petitioners individually or collectively nor Annexure R-1/B is shown to have reached the principal of respondent No.3 before commencement of the examination. Respondent No.1 vide Annexure R-1/B held the petitioners ineligible to sit in the examination only a couple of days before the commencement of the examination. Even the contents of Annexure R-1/B were not conveyed to the petitioners individually or collectively nor Annexure R-1/B is shown to have reached the principal of respondent No.3 before commencement of the examination. Moreover, Annexure R-1/B does not disclose the reasons for holding the petitioners ineligible to sit in the examination. The action of respondent No.3 in taking the undertaking as aforesaid is stated to be based on some telephonic message from respondent No.1 the precise contents whereof are neither spelt out by the respondents in their reply were made known to the petitioners. What respondent No.3 perhaps did on the basis of the telephonic message is that it took the so called undertaking from the petitioners not to lodge any claim or protest if the University did not persist them to sit in the examination. As per the unrebutted version of the petitioners they were not informed of the precise telephonic message and the contents of Annexure R-1/B at any point of time. 12. It is not in dispute that the respondents were in possession of the records on the basis of which they could detect the defects in the forms or the eligibility of the petitioners to sit in the examination on proper scrutiny of the examination forms submitted by them. The respondents failed to do so. Thus in so far as petitioners sitting in the examinations is concerned, they did not manipulate it by any misrepresentation or fraud. Therefore, they cannot be faulted with and made to suffer for remissness, negligence and callousness on the part of respondent Nos.1 to 3. Thus the action of the respondents declaring the petitioners ineligible to sit in the examination(s) and after the petitioners having been permitted to sit in the examination, to withhold their result in the aforesaid background is unfair, unjust, inequitable, opposed to good conscious and thus unsustainable. 13. Thus the action of the respondents declaring the petitioners ineligible to sit in the examination(s) and after the petitioners having been permitted to sit in the examination, to withhold their result in the aforesaid background is unfair, unjust, inequitable, opposed to good conscious and thus unsustainable. 13. In Shri Krishan v. The Kurukshetra University, Kurukshetra (AIR 1976 SC 376), the Apex Court held as follows:— "It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear." It was further held as follows :— "In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May, 1972. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinise the form in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri the appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April, 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant." 14. In Ashok Chand Singhvi v. University of Jodhpur and others (AIR 1989 SC 823) the Apex Court held as under:— "17. In Ashok Chand Singhvi v. University of Jodhpur and others (AIR 1989 SC 823) the Apex Court held as under:— "17. It is submitted on behalf of the University that it was through mistake that the appellant was admitted. We are unable to accept the contention. It has been already noticed that both the Dean and the Vice-Chancellor considered the objections raised by the Officer-in-Charge, Admissions, and thereafter direction for admitting the appellant was made. When after considering all facts and circumstances and also the objections by the office to the Admission of a candidate, the Vice-Chancellor directs the admission of such a candidate, such admission could not be said to have been made through mistake. Assuming that the appellant was admitted through mistake the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appellant. In this connection, we may refer to a decision of this Court in Rajendra Prasad Mathur v. Karnataka University, 1986 (Suppl.) SCC 740 : AIR 1986 3C 1448. In that case, the appellants were admitted to certain private engineering colleges for the B.E. Degree Course, although they were not eligible for admission. In that cases, this Court dismissed the appeals preferred by the students whose admissions were subsequently cancelled and the order of cancellation was upheld by the High Court. At the same time, this Court took the view that the fault lay with the engineering colleges which admitted the appellants and that there was no reason why the appellants should suffer for the sins of the management of these engineering colleges. Accordingly, this Court allowed the appellants to continue their studies in the respective engineering colleges in which they were granted admission. The same principle which weighed with this Court in that case should also be applied in the instant case. The appellant was not at fault and we do not see why he should suffer for the mistake committed by the Vice-Chancellor and the Dean of the Faculty of Engineering.” 15. The above legal position was reitered by the Apex Court in Sanatan Gauda v. Berhampur University and others, (1990) 3 SCC 23. The appellant was not at fault and we do not see why he should suffer for the mistake committed by the Vice-Chancellor and the Dean of the Faculty of Engineering.” 15. The above legal position was reitered by the Apex Court in Sanatan Gauda v. Berhampur University and others, (1990) 3 SCC 23. In this case ineligible candidate was admitted to the law college and after having perused his studies for two years, the University raised the objection of so called ineligibility and refused to declare his result and prevented him from pursuing his final year course. Against this background the Apex Court held as follows:— "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 alongwith 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 appellants examination or from preventing him from pursuing his final year course." 16. The view we have taken hereinabove is fully supportable on the basis of the legal position referred to hereinabove. 17. The contention that the petitioners were permitted to sit in the examination on their giving the undertaking that they would not lodge any claim/protest or press for declaration of their result in case the University declined permission to them to sit in the examination, therefore, they cannot lay the present claim is also untenable. In this regard case of the petitioners is that no other alternative was left with them except to give such an undertaking under duress on 24.12.2003 because the next examination of the third semester was to commence on 29.12.2003. In this regard case of the petitioners is that no other alternative was left with them except to give such an undertaking under duress on 24.12.2003 because the next examination of the third semester was to commence on 29.12.2003. 17-A. Primarily such an undertaking is violative of the right of a person to claim adequate relief as and when he feels aggrieved by an act of a person which is contrary to law. Therefore, claim of the petitioners cannot be denied on the basis of the alleged undertaking. Secondly the examination was to commence within a week of the giving of the undertaking, therefore, the only reason for the petitioners to give such an undertaking was to ensure that they could sit in the examination and was thus given in the compelling circumstances and cannot be said a free and voluntary undertaking. Thus, the undertaking given from the petitioners to the effect that in the event of University refusing their candidature they will not stake any claim is not only an outcome of a compelling situation, but is also illegal. 18. While dealing with almost similar situation in Shri Krishans case (supra) the Honble Supreme Court held as follows:— "Mr. Nandy, Counsel for the respondent placed great reliance on the letter written by the appellant to the respondent wherein he undertook to file the requisite permission or to abide by any other order that may be passed by the University authorities. This letter was obviously written because the appellant was very anxious to appear in Part II Examination and the letter was written in terrorem and in complete ignorance of his legal rights. The appellant did not know that there was any provision in the University Statute which required that he should obtain the permission of his superior officers. But as the respondent was bent on prohibiting him from taking the examination he had no alternative but to write a letter per force. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinioin that the letter written by the appellant does not put him out of Court. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinioin that the letter written by the appellant does not put him out of Court. If only the University authorities would have exercised proper diligence and care by scrutinising the admission form when it was sent by the Head of the Department to the University as far back as December, 1971 they could have detected the defects or infirmities from which the form suffered according to the University Statute. The Head of the Department of Law was also guilty of dereliction of duty in not scrutinising the admission form of the appellant before he forwarded the same to the University." 19. In view of the above position in law and the facts and circumstances of the case the respondents, particularly respondent No.1 have acquiesced the infirmities in the admission of the petitioners to the examination by issuing their roll numbers and permitting them to take the examination. Therefore, the action of the respondents in not declaring the result of the petitioners is illegal and unsustainable. 20. As a result, both these petitions are allowed and the respondents are directed to declare the petitioners result of the examination of third semester and supplementary examination(s) of first and second semesters of the Bachelor of Technology Course held in December, 2003 and January, 2004. In the facts and circumstances of the case there is no order as to costs. -