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2007 DIGILAW 687 (GAU)

Gupendu Bikash Kar v. Tripura University

2007-10-08

UTPALENDU BIKAS SAHA

body2007
JUDGMENT U.B. Saha, J. 1. The Petitioner, an honours Graduate Teacher in a Government Aided School, enrolled himself for appearing Bachelor of Education ('B.Ed.') examination under distant education recognized by NCTE, filed the present writ petition for a direction to the Respondents, Tripura University and Others for publishing the result of Paper-III of Part-I of B.Ed. held on 21.1.2006 as well as for publication of the result of all the papers, of B.Ed. Part-II examination held in the year 2005. 2. The moot questions arise before this Court for decision are whether this Court has the power to direct the educational institution like the University to publish the result of a candidate, who was allowed to sit for examination without authority, while no admit card was issued for his appearance and to sit in the said examination and also for directing the Respondent University to allow the Petitioner for appearing again in paper-III of Part-I of the said examination violating its own rules and regulations. 3. Heard Mr. A.K. Bhowmik, learned senior Counsel assisted by Mr. S. Ghosh, Advocate, appearing for the Petitioner and Mr. P.K. Biswas, learned Counsel for the Respondent University and others. 4. The facts, in a nutshell, are that the Petitioner being a graduate teacher working in a Government Aided School, enrolled himself for appearing in the B.Ed. examination under distant Education recognized by NCTE on 7.4.2002 and he appeared in the Part-I examination of the B.Ed. in the year 2003, but, he could not succeed. However, he again appeared in 2004 for the said Part-I examination and he could pass two out of four subjects. In such a situation, the Petitioner again opted to sit for both B.Ed. (Distant) Part -I of 2004, along with back paper, namely paper-III and Paper II of the Part-I of 2003 as a combined candidate. But, he did not appear Paper-III of Part-I examination and he appeared only in B.ED. Part-II examination as well as Paper-II of Part-I examination of the said course in the year, 2005 with the hope that the said paper-III would be cleared on the basis of his pending review application. As he did not succeed in paper-III of part-I, the result of B.Ed. Part-II examination held in 2005 had been withheld from publication of its result. As he did not succeed in paper-III of part-I, the result of B.Ed. Part-II examination held in 2005 had been withheld from publication of its result. At this juncture the Petitioner prays for allowing him to appear in part-I examination of the said course to be held in 2006 for paper III as a supplementary candidate by way of filing an application on 24.9.2005 and he was also allowed to appear in the said examination by the authority after issuing examination forms on 28.10.2005 and accordingly Petitioner submitted examination form duly filled in along with examination fees by way of bank draft and the Respondents duly received the said fees and the form and the authority issued receipt acknowledging the same and allowed the Petitioner to appear in the part-I examination of the said course for paper-III which was held on 21.1.2006. Though the result of B.Ed. Part-I examination was published by the authority of the University, the result of the Petitioner in respect of his examination in paper-III of Part-I B.Ed. course as well as the result of all his subjects for B.Ed. Part-II examination held in the year, 2005 were withheld. Being aggrieved by the action of the Respondent, University, he sought for justice by issuing notice dated 18.8.2006 for publication of his result, but the Respondents did not publish the same though they were under obligation to do that, hence, the instant writ petition for a direction as indicated supra. 5. The Respondent No. 1/Tripura University and other Respondents resisted the prayer of the Petitioner by way of filing a detailed counter affidavit stating, inter alia, that the Respondents have not infringed any of the legal or constitutional right of the Petitioner as protected by Article 14 of the Constitution. Petitioner, being enrolled under the Distant Education for prosecuting the course of B.Ed. (distant) appeared in Part-I examination of 2002 for the first time and he failed in the said examination. The Petitioner, however, suppressed these facts in his writ petition. Not only that, the Petitioner was allowed by the Respondents to appear in the examination since 2002, 2003 and 2004 for completing Part-I subjects including paper-III as he could not qualify in all the four papers of Part-I during those three years. 6. The Petitioner, however, suppressed these facts in his writ petition. Not only that, the Petitioner was allowed by the Respondents to appear in the examination since 2002, 2003 and 2004 for completing Part-I subjects including paper-III as he could not qualify in all the four papers of Part-I during those three years. 6. It is also contended in the counter that in reply to the application of the Petitioner dated 24.9.2005, the authority informed him, inter alia, as under: On scrutiny it has been found that you are not eligible to appear at the part-I and Part-II examination, 2005 which will be held in 2006 as you have already exhausted all three chances offered by the University to complete the B.Ed. Part-I and Part-II course. In, the said counter affidavit, it is also stated that no permission was issued to the Petitioner by the Respondent No. 3 for re-appearing in the paper-III of the examination of Part-I in 2003 and no Admit Card was issued for the said examination and as such question of appearing in the said examination by the Petitioner bears no meaning. 7. Mr. Bhowmik, learned senior Counsel for the Petitioner submits that the Petitioner by an application dated 22.1.2006 (Annexure-A/5 to the writ petition) requested the Controller of Examination, Tripura University to issue post examination-admit card for the paper-III of Part-I of B.Ed. examination to be held in 2006. Mr. Bhowmik, further, submits that while the Petitioner was allowed to sit in the examination for paper-III of Part-I of the B.Ed. course by the Centre in-charge/Principal, Institute of Advance studies in Kunjaban, Agartala and the authority also received the prescribed fees for the said examination and hence they were under obligation to publish the result as they allowed the Petitioner to appear in the said examination under the principle of promissory estoppels as the authority had already declared the result in respect of the other candidates who appeared in the said examination of part-I held in 2006 as well as Part-II examination held in 2005. Non issuance of post examination admit card as well as non publication of the result of the Petitioner relating to paper-III of Part-I and of Part-II examination by the Respondents are wholly unwarranted, unreasonable and unfair. Hence, it is violative of the Article 14 of the Constitution. Therefore, according to him a writ of mandamus as prayed for is called for. Hence, it is violative of the Article 14 of the Constitution. Therefore, according to him a writ of mandamus as prayed for is called for. 8. Per contra, Mr. P.K. Biswas, learned Counsel for the Respondents submits that the instant writ petition is not maintainable on the sole ground of non impleadment of necessary party like the Principal, Institute of Advance studies in Kunjaban, Agartala, who allegedly permitted the Petitioner to sit in the examination for paper-III of Part-I held in 2006 without obtaining permission from the Director, Distant Education and without any proper admit card and also for the reasons that the Petitioner failed to complete each part of the examination, i.e., Part-I of B.Ed. examination within three consecutive years of his first entry into the course of study as required under Rule 5.10(a) of the rules and regulations. In the instant case, however, the Petitioner has not challenged the said provisions of the regulations. It is open for the Petitioner to enroll himself for B.Ed. Part-I afresh as per rules. Mr. Biswas again urges that it would be clear from the letter of the Principal, Institute of Advance studies in Education that the Petitioner deposited examination fees through distant Education Centre for permitting him to sit in the examination and the authority sent the same to the Director of Distant Education, Tripura University. The said fees were received through oversight as the Petitioner suppressed these material facts. It also appears from the said letter that the Petitioner appeared unlawfully in the examination without admit card with an appeal that he would produce the same on the next day as the same was not received by him in time. Mr. Biswas finally submits that it was not proper for the Centre in-charge of examination hall Principal to allow the Petitioner to appear in the examination on his false appeal and pretext. Even if he was allowed to sit in the examination, that is a conditional one as he assured the in-charge that he would produce the admit card on the next day. Such alleged permission by the hall in-charge/Principal cannot be treated as permission as he had no power/authority to allow an unauthorized person/candidate to appear in the examination without valid permission from the appropriate authority like the admit card. Such alleged permission by the hall in-charge/Principal cannot be treated as permission as he had no power/authority to allow an unauthorized person/candidate to appear in the examination without valid permission from the appropriate authority like the admit card. It is the University, which has the authority to evolve its own procedures for examination system, which they did by way of enacting rules and regulations and court cannot ask the Respondents to violate its own regulations and also to direct them to publish the result as prayed for. 9. Reacting to the submission as advanced by Mr. Biswas, Mr. A.K. Bhowmik, learned Counsel for the Petitioner submits that the Regulation 5 does not indicate that one has to complete each part of examination within three years, rather if the entire Regulation 5.10(a) is taken up together, then it would be clear that both Part-I and Part-II of B.Ed. examination has to be completed within six years and the Petitioner being enrolled in 2004, he is entitled to sit in 2006 examination for paper-III of Part-I. If there is any doubt or difficulties regarding interpretation of the statute then same has to be referred to the Vice-Chancellor of the University in view of the Regulations 19 and 21 and for that matter this Court may direct the Vice-Chancellor of the University for the interest of justice. While closing his argument, he again urges that court may direct the Respondents to publish the result of B.Ed. Part II examination and also to allow the Petitioner to sit in Paper-III of Part-I examination of the said course. 10. This Court has carefully gone through the relevant records including the writ petition and the counter affidavit available before it. It is admitted position that the Petitioner was allowed by the Respondents to appear in Part-I examination for three consecutive years from 2002 to 2004, but the Petitioner failed to complete his course successfully within the stipulated period as enumerated in the regulations framed by the University. 11. Before going into the matter in depth, it would be profitable for the court to reproduce the provisions of Regulation 5 to show the prohibition imposed by the University, particularly in Regulation 5.10(a). Hence, the same is reproduced below: 5. EXAMINATION PATTERN. 5.1. The examination for the B.Ed. 11. Before going into the matter in depth, it would be profitable for the court to reproduce the provisions of Regulation 5 to show the prohibition imposed by the University, particularly in Regulation 5.10(a). Hence, the same is reproduced below: 5. EXAMINATION PATTERN. 5.1. The examination for the B.Ed. Degree through Distance Education mode shall be held annually in Agartala, and such other places as shall be notified from time to time by the University and shall commence in the month of June-August in each year if not otherwise specified. The detail Examination schedule shall be announced in due course every year by the University. 5.2 The examination shall be held in the following areas separately until otherwise determined by the university consistent with Acts and Ordinance: (i) Theoretical Papers, (ii) Teaching practicals (iii) Laboratory practicals. 5.3 B.Ed. Part-I examination shall be held in the following papers at the end of the First year of study: (i) Paper I, (ii) Paper II, (iii) Paper III, (iv) Paper IV. 5.4 B.Ed. Part-II Examination shall be held in the following papers at the end of the second year of study: (i) Paper V, (ii) Paper VI, (iii) Paper VII, (iv) Paper VIII, (v) Paper IX. 5.5 Paper X is not a subject to any examination. It shall consist of marks obtained through internal evaluation of various Academic and professional activities performed during two years of the course. 5.6(a) ELIGIBILITYFOR PART-I EXAMINATION. Any candidate may be admitted to Part-I examination provided that, after passing B.A./B.Com./B.Sc. Examinations, and after having completed 3 years of teaching experience as mentioned above, he has prosecuted not less than one Academic year of Distance Education Course conducted by the University, and in addition, submitted all worked out assignments in each papers within the stipulated dates and has maintained required percentage of attendance at the lectures as indicated in para 5.9 and has fulfilled the conditions laid down in para 5.8 of the regulations. 5.6(b) ELIGIBILITYFOR PART-II EXAMINATION: Any candidate may be admitted to Part-II examination provided that (i) he has fulfilled all the conditions laid down in para 5.6(a) above, (ii) has prosecuted not less than one Academic year of Distance Education Course for B.Ed. 5.6(b) ELIGIBILITYFOR PART-II EXAMINATION: Any candidate may be admitted to Part-II examination provided that (i) he has fulfilled all the conditions laid down in para 5.6(a) above, (ii) has prosecuted not less than one Academic year of Distance Education Course for B.Ed. Part-II conducted by the University, (iii) has, in addition, submitted all worked out assignments in each paper within the stipulated dates, (iv) has maintained required percentage of attendance at lectures as laid down in para 5.6, (vi) has completed the course of teaching practicals as indicated in para 7 and (vii) must qualify in Part-I examination to he conducted by the University. 5.6(c) No candidate will be allowed to appear any two University examinations simultaneously. 5.7 Every candidate for the B.Ed. Examination shall send to the Controller of examination, Tripura University, his/her application for Part-I and Part-II examinations separately, through the Coordinator, DEC (Bed) with certificates in the forms prescribed by the University within the dates notified by the Controller of examinations. 5.8. Every candidate shall produce a certificate by the Coordinator of the Centre in respect of (i) Good conduct, (ii) Regular diligent study, (iii) Satisfactorily submitting assignments in each paper by scheduled dates and (iv) Probability of passing the examination. 5.9. Every candidate to be eligible to appear in the examination, shall have to secure 80% of attendance at lectures delivered during each personal contact programme. The percentage of attendance at lectures shall be calculated from the date of commencement of lectures in the personal contact programme at the centre and not from the date of attending the PCP by a candidate. 5.10(a) One has to complete each Part of examination within three consecutive years of his/her first entry into that course of study. If a candidate fails to obtain the final degree within this stipulated period of 6 years, he/she has to take fresh admission as per para 2. 5.10(b).... 5.10(c).... 5.10(d) If a candidate fails to pass in one or two papers in Part-I examination, he/she shall have to appear and pass in the paper(s) concerned as per para 5.10(a) before appearing to Part-II. 5.10(e).... 5.11(a).... 5.11(b).... 5.11(c).... (emphasis supplied) 12. This Court is unable to accept the argument of the learned senior Counsel, Mr. A.K. Bhowmik, appearing for the Petitioner whereas the points raised by Mr. Biswas, in his arguments, have some force. 5.10(e).... 5.11(a).... 5.11(b).... 5.11(c).... (emphasis supplied) 12. This Court is unable to accept the argument of the learned senior Counsel, Mr. A.K. Bhowmik, appearing for the Petitioner whereas the points raised by Mr. Biswas, in his arguments, have some force. Therefore, in my considered opinion mere depositing the examination fees by the Petitioner and alleged permission granted by the Principal would not create a right enabling him to appear in the said examination, while Regulation 5.10(a) (supra) imposes prohibition for appearance on the ground of failing to complete the Part-I examination within three consecutive years from the date of enrolment in the said course. 13. In Council of Civil Service Unions v. Minister for the Civil Services (1984) 4 All. ER 935 Lord Diplock said: Judicial review has, I think, developed to a stage today when, without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground I would call 'illegality' the second 'irrationality' and the third 'procedural impropriety' This is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of 'proportionality' which is recognized in the administrative law of several of our fellow members of the European Economic Community.... 14. The aforesaid principle had been followed by the Apex Court in various cases including the case of Union of India and Anr. v. G. Ganayutham (1997) 7 SCC 463 wherein the Apex Court reiterated what Lord Diplock explained regarding 'irrationality' as follows: By 'irrationality' I mean what can by now be succinctly referred to as 'Wednesbury unreasonableness'. It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. 15. The power of Judicial review in administrative action is not unlimited, as settled by this time that administrative action, unless palpably illegal, irrational and there being some procedural irregularities or impropriety, the court should not interfere with such administrative action. 15. The power of Judicial review in administrative action is not unlimited, as settled by this time that administrative action, unless palpably illegal, irrational and there being some procedural irregularities or impropriety, the court should not interfere with such administrative action. There is no doubt that the duty of court is to check the irregularity, illegality, Rationality and impropriety of the action of administrative authority so that in the name of administrative action authorities cannot do injustice to a citizen. In the instant case, the Respondents took decision following the regulations framed by it for B.Ed. examination under distance mode and in the said regulations the complete mechanism for admission as well as for examination and method of marking has been prescribed. Therefore, court cannot exercise its discretion asking them to change the policy for the interest of a particular individual like the Petitioner. When the educational institution puts some restrictions for appearing examination after a particular period, the institution does it for maintaining discipline in the institution, then it would not be proper to ask the authority to publish the result of a student like the Petitioner contrary to the provisions of its own regulation as prayed for and h would also not be proper to send the matter to the Vice-Chancellor the University as urged by the learned senior Counsel of the Petitioner. 16. For proper understanding provisions of Regulations 19 and 21 are quoted as under: 19. The University reserves the right of effecting any charges, and modify any rules in future. 21. In case of any doubt or difficulty as to the interpretation of these Regulations the matter shall be referred to the Vice-Chancellor and his decision thereon shall, subject to the provisions of the Act, be final. When the Petitioner fails to indicate any irregularity, irrationality and impropriety and procedural defect against the Respondent-University and others, Regulations 19 and 21 have no application so far the instant petition is concerned and the Regulation 5 of the said regulations is clear and covers the issue involved in the case at hand. Hence, prayer for referring the matter to the Vice-Chancellor is not called for. Hence, prayer for referring the matter to the Vice-Chancellor is not called for. Further more, it would not be proper for the court, to issue any mandamus as the same can be issued only when judicially enforceable right as well as legally protected right of the Petitioner is affected, which is absent in the instant case. It would also not be proper for the court to interfere with the internal administration including the examination system of an educational Institution by a court, as that would affect the internal discipline of an institution like University and educational system as a whole. On careful scrutiny of the records, this Court finds that no irrationality, illegality and procedural irregularity has been committed by the Respondents by not publishing Petitioner's result as per rules, and an educational Institution has the liberty to evolve their own rules and regulations of examination system and if the said system is a reasonable one, then the court should not interfere with the said system of the institution, unless a specific case is made out calling interference by a court. Though the Petitioner will suffer by the action of the Respondent, it would not be desirable for this Court to exercise its power of judicial review in the instant case, rather it would be better to impose self-restriction on it so that the administration of educational institution may not suffer from discharging its own function and it should have the scope to act in accordance with its own regulations, therefore, prayer of Mr. Bhowmik for granting relief on humanitarian ground cannot be accepted in view of the decision of the Apex Court in the case of State of Tamil Nadu v. St. Joseph Teachers Trg. Institute and Anr. (1991)3 SCC 87 , nor can relief be granted, basing on the doctrine of promissory estoppels, contrary to law keeping in mind the larger interest. 17. In the aforesaid facts and circumstances, the present writ petition is devoid of merit. In the result, the same is dismissed without any order of costs. Petition dismissed