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2009 DIGILAW 104 (CAL)

Swapan Kumar Kamila v. STATE OF WEST BENGAL

2009-02-16

DIPANKAR DATTA

body2009
Judgment : DIPANKAR DATTA, J. (1) The petitioner is a student of Dum Dum Motijheel Rabindra Maha Vidyalaya (hereafter the College) which is affiliated to the University of Calcutta (hereafter the University). He has been pursuing studies in the B.Com Honours course (3 years under New Regulations, 1+1+1 system) of the University. It is not in dispute that the petitioner appeared at the B.Com Honours, Part-I Examination, 2007. The petitioner obtained 90 marks out of 200 marks in Group-3A, being the Honours subject. His status was G which denotes "qualified in general course". Since the petitioner failed to succeed in subjects comprising Groups - I and II, his status thereagainst was shown as F which denotes "failed in subject/group of subjects". Overall, the petitioners result was shown as QX1 which denotes "Part-I examination cleared partly and eligible to appear in Part-II". He was eligible to re-appear in Groups -I and II subjects. The petitioner had duly filled up the form for appearance in the B.Com Part-II (Honours) Examination, 2008. In the application form, he was required to disclose necessary particulars regarding his result in the Part-I Examination of 2007. Against Group-3A, the petitioner disclosed the status as H instead of G. (2) The petitioner had signed a printed declaration in the application form which reads as under:- "If any of the statement made in the application be found to be not true or if it appears that, in the opinion of the University, I have in any way contravened the provisions of the University Rules and Regulations relating to the examination to which I now seek admission, my candidature to the examination shall be liable to be cancelled by the University." (3) It further appears from the application form that the Principal of the College had certified that the statements made therein by the candidate are correct and that he had fulfilled other requirements as contained in the University Regulations for appearance in such examination. The University did not detect that the petitioner had shown his status in respect of Group3A subject as H instead of G. It proceeded on the understanding that the statement made by the petitioner in the application form, since certified by the Principal of the College, is true and issued admit card in favour of the petitioner to enable him appear in the Part-II Honours Examination, 2008. The admit card reflects that the petitioner was permitted to appear in the subject/group of subjects mentioned therein, including the Honours subject/group of subjects for Part-II. According to him, he was simultaneously permitted to appear in the subjects comprising Groups -I and II in which he had failed to succeed in the Part-I Examination, 2007. While results of other examinees have been published, the petitioners result in respect of the Part-II Examination was not declared. (4) Although the petitioner had in the meantime attended classes for taking the Part-III Examination, he was not allowed to appear in the selection test preceding such examination to be held on and from 21st January, 2009. He had accordingly represented to the Principal of the College to permit him take the selection test. Such permission was not granted. Feeling aggrieved thereby, the petitioner invoked the writ jurisdiction of this Court praying for, inter alia, the following relief:-"A writ in the nature of Mandamus commanding the respondents to allow the petitioner to appear for B.Com Part-III (three year Honours) Examination, 2009 under New Regulation 1+1+1 system in terms of the notification and guidelines as has been formulated by the University of Calcutta and to declare that the action on part of the respondents in preventing the petitioner to appear for the said Examination is unwarranted and bad in law." (5) This Court while admitting the writ petition had allowed the petitioner to appear in the selection test without prejudice to the rights and contentions of the respondents in the petition. However, it was directed that his result should not be published without leave of the Court. Subsequently, by filing a supplementary affidavit, the petitioner sought to introduce certain additional prayers. (6) The petition has since been heard finally on affidavits. At the hearing Mr. Bhattacharya, learned counsel appearing for the University had been called upon to address first since the Court was prima facie convinced that the petitioners claim had merit. By referring to the affidavit-in-opposition filed by the University and in particular to the application form filled up by the petitioner prior to appearing in the Part-II Examination (Annexure R-2/1), he contended that the petitioner had practiced fraud on the University by denoting his status, in respect of Group3A subject as H although his status was G. According to Mr. By referring to the affidavit-in-opposition filed by the University and in particular to the application form filled up by the petitioner prior to appearing in the Part-II Examination (Annexure R-2/1), he contended that the petitioner had practiced fraud on the University by denoting his status, in respect of Group3A subject as H although his status was G. According to Mr. Bhattacharya, the petitioner having declared that his examination would be liable to be cancelled by the University if any statement made in the application form is found to be not true and the University having detected that the petitioner had not made correct statement in the application form, decision taken not to publish his result in respect of Part-II examination is justified on facts and as such the Universitys action cannot be branded illegal or unreasonable. (7) Mr. Pal, learned counsel appearing for the petitioner countered the submission of Mr. Bhattacharya by submitting that the petitioner did not practice fraud on the University. According to him, insertion of the alphabet H against the status of Group-3A subject was the result of a confusion in the mind of the petitioner and the University having the means to detect the apparently incorrect statement made by the petitioner cannot now turn around and allege fraud when it is on the defaulting side. For this proposition he relied on the decision reported in AIR 1976 SC 376 : Shri Krishan vs. Kurukshetra University, Kurukshetra. The said decision was also relied on to contend that once the University has permitted the petitioner to appear in the Part-II Examination, 2008, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the examinee has worked itself out and he cannot be refused admission subsequently to the next examination for any infirmity which should have been looked into before giving him permission to appear. Alternatively, he submitted that the petitioner is agreeable to pursue the General Course of study instead of pursuing the Honours course to ensure that he does not lose a precious year and, therefore, the University ought to be directed to treat him as a candidate for the General Course and to accordingly allow him take the Part-III examination as a general candidate. (8) This Court has anxiously considered the submissions advanced on behalf of the respective parties. The submission of Mr. (8) This Court has anxiously considered the submissions advanced on behalf of the respective parties. The submission of Mr. Bhattacharya that the petitioner had practiced fraud cannot be accepted on the authority of the decision in Sri Krishan (supra) cited by the petitioner. By exercising due diligence, the mis-statement made by the petitioner could well have been detected. Fraud is therefore not proved. However, there cannot be any dispute that the petitioner is guilty of misrepresentation. Had he given a correct picture of his result in the preceding examination while filling up the application form, the University may not have allowed him to take the Honours Examination. The petitioner having agreed to abide by the Rules and Regulations of the University and having also declared that his examination would be liable to be cancelled if any incorrect statement is detected, he ought not to be allowed to resile from such declaration. Whether the incorrect statement in the application form was occasioned due to confusion in his mind or for achieving illegal gain cannot be decided in writ proceedings. However, having regard to the fact that a wrong had been committed by the petitioner in describing the status, a Court of Writ being also a Court of Equity cannot come to the rescue of a litigant who seeks to reap benefit out of a wrong committed by himself. Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches Court is settled law [see: (1993) 3 SCC 161 : Shiv Kumar Chadha vs. Municipal Corporation of Delhi]. (9) The decision in Shri Krishan (supra) lends no assistance to the petitioner. In that case the examinee had been allowed to appear in the examination not on the basis of any misrepresentation of facts. The principle of law laid down therein has to be understood in the context of the factual situation presented before the Court. No law has been laid down therein that the University would be divested of its power to publish the result of an examinee even though he may have obtained permission to appear in an examination by misrepresenting facts. For the aforesaid reasons, this Court is unable to grant any relief to the petitioner, as claimed. (10) The writ petition stands dismissed without any order as to costs. For the aforesaid reasons, this Court is unable to grant any relief to the petitioner, as claimed. (10) The writ petition stands dismissed without any order as to costs. Dismissal of the writ petition shall, however, not preclude the petitioner from approaching the Pro-Vice Chancellor (Academic) of the University to allow him pursue study in the general course and if such an approach is made, it is desirable that the Pro-Vice Chancellor considers and disposes of his prayer in accordance with law without being influenced by any observation made above. 10. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.