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2009 DIGILAW 655 (GUJ)

GUJARAT UNIVERSITY v. ARUN SHUSHIL KUMAR BHAKKAD

2009-10-08

AKIL KURESHI, K.S.RADHAKRISHNAN

body2009
K. S. RADHAKRISHNAN, C.J. Shri Dahyabhai Ravchand Medal, Late Shri Mojilal Purshottamdas M. Pandya and Shrimati Jayalaxmi M. Pandya Medal, The Bank of India Prize are the three medals instituted for awarding to the student, who pass in first attempt first class and score the highest marks in the University Examination of 3rd year B.Com. In the convocation held on 19-2-2009, the above mentioned medals were awarded to the second respondent. Writ petition was preferred by the first respondent herein staking claim for the above-medals stating that he had obtained more marks than the second respondent on reassessment of his answer-sheets, and he is the legitimate person to get those medals. 2. University took up the stand that Rules for Reassessment specifically provided that a student, whose result is revised after reassessment, shall not have any claim to any medal/scholarship/prize, etc. on the basis of such revision. 3. Learned Single Judge interpreting the Rules for reassessment allowed the writ petition holding that since first respondent had obtained more marks than the second respondent, first respondent is the legitimate person to get the medals. Consequently, University was directed to award the medals to the first respondent on the basis of marks obtained on reassessment, and also to issue necessary certificate showing the final result of the first respondent on that basis. 4. University aggrieved by that direction has approached this Court in this' appeal. Mr. S. N. Shelat, learned Senior Counsel appearing for the University, submitted that the learned Single Judge has committed an error in directing the University to award the medals to the first respondent on the ground that the first respondent had obtained more marks than the second respondent on reassessment. Learned Senior Counsel submitted that Rule 12 of Rules for Reassessment specifically provided that if there is any change in marks or result due to reassessment, the student shall not be eligible to receive any medal/scholarship/prize on the basis of that changed result. Learned Senior Counsel submitted that first respondent has agreed to this condition specified in Rule 12 of the Rules for Reassessment, and hence, he is estopped from claiming that he is entitled to receive the medals/scholarship/prize on the basis of marks obtained on reassessment. Learned Senior Counsel submitted that first respondent has agreed to this condition specified in Rule 12 of the Rules for Reassessment, and hence, he is estopped from claiming that he is entitled to receive the medals/scholarship/prize on the basis of marks obtained on reassessment. Learned Senior Counsel submitted that University is willing to give the first respondent a certificate certifying that the University could not offer the medals under such circumstances, though he has obtained first rank on reassessment. Learned Senior Counsel submitted that the University will give a certificate stating that as per Rules for Reassessment a student cannot be awarded such medal/scholarship/price, though he was otherwise entitled to gold medals which were awarded to the second respondent. 5. Learned Senior Counsel for the University referred to a judgment of the Supreme Court in the case of Malwrashtra State Board of Secondary and Higher Secondary Education & Anr. v. Paritosh Bhupesh Kumar Sheth. AIR 1984 SC 1543 and submitted that a student cannot demand reassessment of his answer-papers as a matter of right. Learned Senior Counsel also referred to the judgment of the Apex Court in the case of Indu Shekhar Singh & Ors. v. State of U.P. & Ors., AIR 2006 SC 2432 , and contended that the University had undertaken the task of reassessment on the first respondent agreeing that he would not claim any medal/scholarship/prize if he gets more marks on reassessment. Having agreed to such condition, learned Senior Counsel submitted that first respondent cannot now contend that said condition is illegal. 6. Mr. Kamal Trivedi, learned Advocate General appearing for the first respondent submitted that learned Single Judge was justified in holding that the first respondent is entitled to get the medals, since he got more marks than the second respondent on reassessment. Learned Advocate General submitted that the purpose and object of awarding medals would be frustrated, if those medals are awarded to a less meritorious student than the first respondent. Learned Advocate General submitted that it was not due to the fault of the first respondent that he had got lesser marks in the original assessment, but due to improper evaluation by the original examiner. 7. Learned Advocate General also submitted that the result of reassessment was declared even before holding the Convocation, and hence, University has committed a grave error in awarding the medals to the second respondent. 7. Learned Advocate General also submitted that the result of reassessment was declared even before holding the Convocation, and hence, University has committed a grave error in awarding the medals to the second respondent. Learned Advocate General equated Rule 12 of Rules for Reassessment with Henry VIII clause. Learned Advocate General submitted that first respondent was aware that there was a mistake in the original evaluation of the answer-paper in the subject "Business Organization and Management - Part III", and under such circumstances, first respondent-student has applied for reassessment, and upon reassessment, he had got 13 more marks, which would indicate that there was a mistake in the original evaluation of the answer-sheets of the above subject, and the student shall not suffer due to the mistake committed by the University in the matter of evaluation of his answer-sheets. First respondent-student, was therefore, compelled to submit his application for reassessment in the prescribed form, and hence, Rule 12 be not enforced against him. Learned Advocate General also referred to a judgment of the Supreme Court in the case of Tata Iron and Steel Co. Ltd. v. Union of India & Ors., AIR 2000 SC 3706 , and submitted that under such circumstances, University has to act fairly and the doctrine of unreasonableness is opposed to doctrine of fairness and reasonableness, and therefore, Rule 12 shall not be applied in the case of a student, who has secured more marks on reassessment. 8. Learned Counsel for the second respondent supported the arguments of the University. 9. Law is well settled that a candidate who has taken an examination and subjected to a system of evaluation of his answer sheets cannot claim reassessment/revaluation of his answer sheets as a matter of right. Assessment or valuation is the rule and reassessment or revaluation is an exception to the rule. Answers given by a student in a subject like 'Business Organization and Management may be appreciated by an examiner in a way different from another. There is always an element of subjectivity in the matter of evaluation of answer-papers in subjects like 'Business Organization and Management. Such subjectivity may be less in subjects like Mathematics or Science. If the answer-papers like 'Business Organization and Management - Part III' is given to a third examiner, possibly the marks assigned by that examiner may be different from the marks given by the previous examiners. Such subjectivity may be less in subjects like Mathematics or Science. If the answer-papers like 'Business Organization and Management - Part III' is given to a third examiner, possibly the marks assigned by that examiner may be different from the marks given by the previous examiners. That does not mean that the other two examiners are incompetent. Possibly, bearing this principle in mind, Rule 12 was introduced in the Rules for Reassessment, which reads as follows : 12. If there is any change in marks or result due to re-assessment, the student shall not be eligible to receive any medal/scholarship/prize on the basis of changed result." Admittedly, first respondent-student has agreed to the above-mentioned clause, and it is on the basis of his consent that he will not claim any medal/ scholarship/price on the basis of changed result, the University has reassessed his answer-papers. The question is after having availed of the benefit of reassessment, to which otherwise he is not entitled, as a matter of right, can a student stake claim other benefits, to which he is not entitled to as per the Rules for Reassessment. An objection was raised by the first respondent that under University statutes only Executive Council has the power to frame Rules for Reassessment and since Executive Council has not framed the Rules for Reassessment, University is estopped from awarding the medals/scholarships/prize on the second respondent. University also could not produce any material to show that the Rules for Reassessment were in fact framed by the Executive Council. Affidavit filed by the University indicates that they have made sincere efforts to find out as to whether the form containing amended Rules for Reassessment were issued by the Executive Council. Further, it is stated that it bears that the Vice-Chancellor has approved the forms, which amended the Rules for Reassessment under Sec. 11(4) of the Act. 10. We may indicate so far as this case is concerned that both parties acted on the basis of the Rules for Reassessment attached with the application for reassessment. The first respondent could not produce any statutory Rule or Regulation to show that he is entitled to reassessment or review of his answer papers as a matter of right. Therefore, first respondent can stake his claim only on the basis of Rules for Reassessment attached with the application for reassessment, on which both the parties placed reliance. The first respondent could not produce any statutory Rule or Regulation to show that he is entitled to reassessment or review of his answer papers as a matter of right. Therefore, first respondent can stake his claim only on the basis of Rules for Reassessment attached with the application for reassessment, on which both the parties placed reliance. Admittedly, first respondent has made his request for Reassessment in the prescribed application for reassessment, which stipulated a clause that he would not be eligible to receive any medal/scholarship/prize on the basis of marks obtained on reassessment of his answer-sheets. 11. Law is well settled that estoppel by conduct is a principle which is being applied in all situations in modern times. Rule was susceptibly explained in Pickard v. Sears, 1837 (6) A&E 469 - 474 as follows : "Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter his own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time." 12. The doctrine by which a person may be precluded by his act or conduct, or silence when it is his duty to speak, from asserting a right, which he otherwise would have had. In P.K. A.B. Co-operative Society v. Government of Palestine, AIR 1948 PC 207 at page 207 the Privy Council held that it is one of the essential elements of estoppel by conduct that the party against who it is pleaded should have made some representation intended to induce a course of conduct by the party to whom it was made. The above principle is also raised on the maxim 'allegans contra ria non-est audiendus', which means he shall not be heard who says things contradictory to each other. First exposition of the above principle is obtained from Halsbury's Laws of England, 3rd Ed., Vol. The above principle is also raised on the maxim 'allegans contra ria non-est audiendus', which means he shall not be heard who says things contradictory to each other. First exposition of the above principle is obtained from Halsbury's Laws of England, 3rd Ed., Vol. 15, page 171, Para 340 : "The principle that a person may not approbate and reprobate expresses two propositions, first, that the person in question, having a choke between two courses of conduct, is to be treated as having made an election from which he cannot resile, and second, that he will not be regarded, in general at any rate, as having so elected unless he has taken a benefit under or arising out of the course of conduct which he has first pursued and with which his subsequent conduct is inconsistent. " The doctrine of approbate and reprobate is only a species of estoppel; it applies only to the conduct of parties and as the case of estoppel it cannot operate against the provisions of a statute. Lord Justice Scrutton in Vercnures Creameries Ltd. v. Hull and Netherlands Steamship Co. Ltd., 1921 (2) KB 608, stated that a person cannot say at one time that a transaction is valid, and thereby, obtain some advantage to which he could only be entitled on the footing that it is valid and then turn round and say it is void for the purpose of securing some other advantage. In Ambu Nair v. Kelu Nair, AIR 1933 PC 167 at page 169 Privy Council has opined that it is a well accepted principle that a party cannot both approbate and reprobate. He cannot, to use the words of Honeyman, J. in Smith v. Baker, at the same time blow hot and cold. He cannot say at one time that the transaction is valid, and thereby, obtain some advantage to which he could only be entitled on the footing that it is valid, and at another say it is void for the purpose of securing some further advantage. It is also well settled principle of law that when the order shows plainly that it is intended to take effect entirely and that several parties of it depend upon each other, a person cannot adopt one part and repudiate another. The beneficiary of such an order or rule cannot demand benefit under it from free from burdens imposed. It is also well settled principle of law that when the order shows plainly that it is intended to take effect entirely and that several parties of it depend upon each other, a person cannot adopt one part and repudiate another. The beneficiary of such an order or rule cannot demand benefit under it from free from burdens imposed. A party cannot approbate and reprobate already having obtained a benefit under one decision cannot be allowed to assume a different and contradictory position while retaining the advantage gained. 13. First respondent gained an advantage, which he is otherwise not entitled to, as a matter of right. He has got his answer-papers revalued or reassessed subject to a condition that he will not claim any benefit out of that reassessment or re-evaluation and later he cannot turn round and claim a benefit which he was otherwise not entitled to. First respondent could not have staked a claim for reassessment of his answer-papers as a matter of right in absence of any statutory Rules or Regulations. He has staked his claim for reassessment on the basis of Rules for Reassessment attached with application for reassessment. But for his request on the basis of the above-mentioned Rules for Reassessment, University would not have ventured to reassess his answer-papers. University has agreed for the reassessment subject to condition that if there is any change in marks or result due to the reassessment, he shall not stake any claim for any medals/scholarships/prize on the basis of the changed result based on the said reassessment. Having got the advantage by way of reassessment, he cannot now claim any other benefits to which he is not entitled to as per the Rules for Reassessment, apart from the enhanced marks he had obtained. 14. Above being the factual and legal basis, we are of the view that the learned Single Judge was not justified in directing University to give the medals to first respondent, which have already been awarded to the second respondent in the Convocation. If the University follows the judgment of the learned Single Judge, medals already awarded to the second respondent have to be re-possessed and to be awarded to the first respondent, contrary to the undertaking given by the first respondent in the application for reassessment. 15. If the University follows the judgment of the learned Single Judge, medals already awarded to the second respondent have to be re-possessed and to be awarded to the first respondent, contrary to the undertaking given by the first respondent in the application for reassessment. 15. We, therefore, set aside the impugned judgment and order of the learned Single Judge and allow the .Letters Patent Appeal. (SBS) Appeal allowed.