1. The petitioners are all students of the 2nd year M.B.B.S., Class of Shri Ramachandra Bhanj, Medical College, Cuttack. They appeared for the 1st M.B.B.S., examination of the Utkal University in Anatomy and Physiology in April 1951. The examination in Anatomy consisted of three parts, namely, (1) written (2) oral and (3) viva voce. The written examination consisted of two papers and it was held on the 9th and 10th April 1951. The practical examination was held on the 19th April, 1951 and the viva was held on the 28th April. The examinations were conducted by a Board of examiners which submitted the results to the Sydicate on the 21st April 1951. The Syndicate, instead of approving and publishing the results, passed the following resolution on that date.
'Resolution No. 336: Considered the information received from the Vice-chancellor in connection with the First M.B.B.S., examination in Anatomy held on the 9th April, 1951 and on subsequent days and in this connection examined (1) Sri Bhairab Chandra Mohanty (2) Dr. R.K. Mohanty and (3) Dr. S.M. Banerji.
Resolved -- That after inquiry, the Syndicate is satisfied that there has been leakage of questions in Anatomy and that the result in Anatomy Examination be cancelled and that another examination in the subject be held commencing from the 7th May 1951.'
(This resolution will be referred to as the impugned resolution hereinafter in this judgment.)
2. The decision of the Syndicate was immediately notified to the students who thereupon filed a representation before the same Body for a reconsideration of the previous decision. The Syndicate considered this representation in another meeting held on the 28th April 1951 and passed the following resolution.
'Resolution No. 343 : Considered an application dated nil from the examinees of the First M.B.B.S. examination held in April 1951 forwarded by the Principal, S. C. B. Medical College, Cuttack, with his Memo. No. 1200, dated the 26th April, requesting not to hold a fresh examination in Anatomy and to publish the results. Resolved -- That the earlier decision of the Syndicate be not altered and that only the date of the examination be fixed for the 4th June 1951 at 8 a.m.'
The petitioners felt aggrieved by the said decision of the Syndicate and have applied to this Court for the exercise of its powers under Article 226 of the Constitution praying for the issue of writ of mandamus directing the Syndicate to publish the results of the 1st M.B.B.S., examination as reported by the Board of Examiners. The Syndicate, through its Vice-Chancellor, has entered appearance and urged that it exercised its powers 'bona fide' in conformity with the legal provisions relating to the control of examinations and that consequently this Court had no jurisdiction to grant the prayer of the petitioners.
3. The Utkal University is a corporate Body created by an Act of Orissa Legislature known as the Utkal University Act, 1943 (Orissa Act XIII of 1943). Under that Act (See Section 8) the supreme governing body of the University is the Senate which consists of elected and nominated Fellows. The chief Administrative Body of the University is however the Syndicate (consisting partly of persons elected by the Senate and partly of officials) which is entrusted with the responsibility for controlling all examinations of the University (See Section 9 (6)). Provision is also made (See Section 7) for the post of a Vice-Chancellor with well defined statutory powers. He is required to preside at the meeting of the Senate and the Syndicate. The Governor of Orissa is appointed ex-officio the Chancellor of the University and he is given the power of annulling any proceeding of the University which is not in conformity with the Act or the Statutes framed thereunder (See Section 5 (6)). The Act empowers the Senate (subject to the approval of the Government) to frame Statutes for carrying out the provisions of the Act. Chapter IX of the Statutes describes in detail the constitution and the powers of the Syndicate. In Law 2 (2) of that Chapter the responsibility of the Syndicate to control the examinations of the University is reiterated and in Clause (e) it is expressly mentioned that the Syndicate shall have power.
'to conduct the University examinations and publish the results thereof.'
Chapter XXII of the Statutes deals with the appointment of Examiners and papers setters by by the Syndicate for conducting the various examinations of the University and in Chapter XXIII is laid down the procedure for the conduct of such examinations. Law 8 of Chapter XXIII runs thus:
'The examinations shall be conducted by duly constituted Boards of Examiners appointed for the purpose by the Syndicate, which shall have power to publish the results of such examinations as and when received from the Boards of Examiners.'
4. Before discussing the various questions involved in this case, I may briefly narrate certain incidents which preceded the passing of the impugned resolution by the Syndicate on the 21st April 1951. A meeting of the Senate was held on the 28th and 29th of March 1951 in which one Sri Bhairab Chandra Mohanty, an M.L.A., and a prominent public worker of Cuttack town, alleged that just before the holding of the M.B.B.S., practical examination in Anatomy on the 10th October, 1950 many of the questions had leaked out. He pleaded for the holding of a thorough enquiry into the question of leakage and for punishing the persons found guilty of corrupt practices. The Vice-Chancellor then informed the Senate that at about 9 a.m. on the 10th October, 1950 just before the holding of the practical M.B.B.S., examination, he received a slip of paper from a gentleman which contained certain hints for the practical examination. He immediately sent that slip to the Principal of the Medical College, Lt.-Col. Papatla, who after comparing the hints contained in that slip with the questions that were actually set, was of the opinion that the hints did not amount to leakage of questions. Col. Papatla told the Senate that the hints related only to about 7 questions out of the total of 12 that were set for the examinations, that the hints were very broad and that further 3 or 4 of the 14 students who appeared in the practical examination had failed He thought that if the questions had leaked out all the students would have known them and that the existence of so many failures was one of the circumstances to Indicate that there was no leakage. Two other medical Professors, namely, Dr. Bana Behari Patnaik and Dr. S.N. Acharya supportedCol. Papatla and stated that any medical person could easily predict what questions would be set in Anatomy and that such a prediction did notnecessarily indicate leakage. Dr. Bana BehariPatnaik went so far as to say that it would be possible for him to predict questions in Anatomy which may be set for the next three years in succession. The Senate however was not satisfied and resolved to appoint a committee to make a through enquiry into the matter. One of the members of the Syndicate, namely, Bai Bahadur B.V. Roy drew the attention of the Senate to Sub-section (6) of Section 9 under which it was the primary responsibility of the Syndicate to control the examination and suggested that the question should be referred to the Syndicate. The Senate however by a majority of 18 against 17 decided that the matter should be enquired into by a committee of the Senate and not by the Syndicate. Hon'ble Mr. Jagannadhadas, a Judge of this Court was elected one of the members of that Committee. It is but natural for the syndicate to feel somewhat annoyed that on a matter which is primarily their responsibility the Senate should have decided to appoint a separate Committee to go into the whole question. In para 8 of the affidavit of the Vice-Chancellor it is admitted that in view of the aforesaid decisions of the Senate, the Syndicate thought that it should make careful enquiries before publishing the results of the 1st M.B.B.S., examination held in April 1951. Apparently the Syndicate thought that it was acting promptly -- but (as I shall show presently) they acted precipitately.
5. On the 9th April 1951, at about 7 a.m. Sri Bhairab Chandra Mohanty handed over a slip of paper containing typewritten hints to Hon'ble Mr. Justice Jagannadhadas, saying that he was informed that those hints have been given to the examinees of the 1st year M.B.B.S., examination in Anatomy to be held that day at 10.30 a.m. Apparently he chose Justice Jagannadhadas for this purpose mainly because the latter was a member of the committee elected by the Senate in their meeting of the 28th and 29 March to enquire into leakage in the examination of October 1950. Justice Das advised him to inform the Vice-Chancellor about it and did not take any further action. Sri B. C. Mohanty gave a copy of the same type-written hints to Hon'ble Sri Lingaraj Misra, Minister of Education, and to Sri M.C. Pradhan, the Director of Public Instruction on the same day. Sri Pradhan is a member of the Syndicate also but neither he nor the Minister for Education cared to take any action on the slip. Thus none of the three gentlemen to whom the reported hints were given by Sri Bhairab Chandra Mohanty nor Sri B. C. Mohanty himself informed the Vice-Chancellor or the Principal of the Medical College on the 9th April about the reported hints. Consequently, the examination in written papers was held on the 9th and 10 as usual and practical examination was also held on the 19th. On the 19th April evening Hon'ble Justice Das happened to meet the Vice-chancellor in connection with some other meeting and then casually mentioned about the hints given to him on the 9th. The Vice-Chancellor took prompt action and directed the Principal of the Medical College to obtain a copy of those hints from Justice Das, to compare the same with the printed questions actually set in Anatomy and then to report the matter for the consideration of the Syndicate on the 21st April. The Principal of the Medical College Lt.-Col. Papatla made a true copy of the slip given to Justice Das, by telephonic conversation with him and on the 20th April morning compared the copy with the questions actually set. No steps for cancelling the 'viva voce' examination was taken that day though according to the Principal's own affidavit (See para. 7) the written, practical and 'viva voce' examinations in Anatomy were all closely inter-linked and consequently if there wasto be a re-examination in written paper there should be re-examination in viva voce also. The Syndicate met as usual on the 21st April for considering various other subjects which are not relevant for the present case. Before it took up those subjects for consideration the Vice-chancellor drew the attention of the members of the Syndicate to his conversation with Justice Das on the 19th and Col. Papatla also informed them about the results of his comparison of the printed questions with the reported hints given to Justice Das. He went through the questions in great detail with the members of the Syndicate and explained to them the points of similarity between the subjects covered by the hints and the questions actually set. The syndicate also examined Sri Bhairab Chandra Mohanty and Dr. E.K. Mohanty and Dr. S.M. Banerji. The last person was the President of the Board of Examiners appointed by the Syndicate for conducting the M.B.B.S examination. Dr. R.K. Mohanty was the internal examiner for M.B.B.S., Anatomy papers. Then the Syndicate passed the resolution whose validity has been called in question before us.
6. I may now dispose of some preliminary points of law that arise in this case.
7. First comes the question as to whether a statutory body like the Syndicate is amenable to a mandate in the nature of Mandamus from this Court in exercise of its special jurisdiction under Article 226 of the Constitution. It has not been seriously questioned that a writ of mandamus can issue against public bodies compelling them to carry out their duties. ('Halsbury 2nd Edition. Vol. 9 p. 752'.) There can also be no dispute that the Syndicate of a University is a public body. In the case of 'G. A. Natesan In re 40 Mad 125 at p. 142' Coutts-Trotter, J., observed:
'The Syndicate is a creature of statute with certain duties imposed upon it by statute and those duties are to be carried out for the benefit of the public at large and especially for that portion of the public which decides to utilise the educational advantages of the University..... II am therefore of opinion that the Syndicate is a body amenable to the jurisdiction of Section 45 of the Specific Relief Act, if the other conditions for that relief are present.'
It is true that this Court had no jurisdiction under Section 45 of the Specific Relief Act. But Article 226 covers a much wider field than Section 45 of the Specific Belief Act and the observations of Couttts-Trotter, J., would therefore apply with greater force. In England also the jurisdiction of the High Court to issue a writ of mandamus against University authorities in appropriate cases has not been seriously challenged. In the case of the 'King v. The Chancellor, Masters and Scholars of the University of Cambridge', (1716-49) 93 E R 698, a writ of mandamus was issued against the Cambridge University and when an objection was taken on behalf of the University to the jurisdiction of the Court to issue such a writ the Court observed:
'It is the glory and happiness of our excellent constitution, that to prevent any injustice to man is to be concluded by the first judgment; but that if he apprehends himself to be aggrieved, he has another Court to which he can resort for relief; for this purpose the law furnishes him with appeals, with writs of error and false judgment : and lest in this particular case the party should be remediless it was become absolutely necessary for this Court to require the University to lay the state of their proceedings before us; that if they have erred, the party may have right done him, or if they have acted according to the rules of law, that their acts may be confirmed.'
8. Secondly, the right of the petitioners to apply for such a direction was challenged on the ground that they have no enforceable right. It is true that mandamus would not issue against public bodies exercising their statutory duties unless the fights of private persons are in any way affected thereby. It was urged that until the results of the M.B.B.S., examination were published by the Syndicate, the petitioners did no acquire any right, for a declaration that they have passed the 1st year M.B.B.S., examination and that consequently prior to the publication of the results they acquired no right at all. I am however unable to accept this contention. It is true that till the actual publication of the results by the Syndicate under Law 8 of Chapter XXIII of the Statutes the petitioners cannot claim any right to have passed the M.B.B.S., examination. But the report of the Board of Examiners who conducted the examination was before the Syndicate and the Syndicate's duty was either to approve the report and publish the results or to take any other action authorised by Law. The rights of the petitioners would be completed after publication and all that can be reasonably urged is that their right remained incomplete when the report of the Board of Examiner's was submitted to the Syndicate. There is ample authority for the view that an incomplete right may itself suffice for invoking the mandamus jurisdiction of this Court. I may refer to a very old decision of 'Rex v. Askew', (1768) 98 E R 139, which is somewhat similar to the present case. There the question for consideration was whether one Dr. Askew should be admitted as a member of the College of Physicians. The usage prevalent then was to refer any candidate for such membership to a smaller body known as 'comitia minora' for examination. The comitia minora had no power to admit a candidate as member. Their power was to examine the candidate and to approve his election. Even after their approval his name must be proposed before the comitia majora for election and his right to be a member arises only after he has been so proposed and elected by the comitia majora. Dr. Askew's name had been approved by comitia minora but comitia majora refused to elect him. Thereupon he applied to the High Court for issue of a writ of mandamus and the contention raised on his behalf was that 'having been returned sufficient by the comitia minora he had thereby acquired an inchoate right to admission which the Court would enforce the completion of, by mandamus.' The right of Dr. Askew to apply for such a writ was recognised by the Court and the jurisdiction of the Court to interfere in appropriate cases was admitted by the Counsel for the College of Physicians. Lord Mansfield however refused to issue a writ in that particular case because he was satisfied that the comitia majora had acted with candour and caution. Thus though in that particular case mandamus was refused, the jurisdiction of the Court, on the application of a person with incomplete rights, to consider whether a particular corporate body exercised their discretion with candour and caution and not arbitrarily or capriciously was taken for granted. In 'The Queen v. Church Wardens of All Saints, Wigan', (1876) 1 A C 611 at p. 620. Lord Chelmsford went so far as to say:
'So in cases where the right, in respect of which a rule for a mandamus had been granted, upon shewing cause appears to be doubtful, the Court frequently grants a mandamus in order that the right may be tried upon the return; this also is a matter of discretion.'
Thus in England mandamus may issue on the application of persons with incomplete or inchoate oreven doubtful rights. Though American decisions do not go so far as to Justify the issue of mandamus where the rights of the applicant are inchoate or doubtful. (See Corpus Juris 38, page 585, para 57) yet.
'Where the act, the doing of which is sought to be compelled by mandamus, is the final thing, and if done gives to the relator all that he seeks proximately or ultimately, then the question whether he is entitled to have that act done may be enquired into by the officer or person to whom the mandamus is sought, and is also to be considered by the tribunal which is moved to grant the mandamus.'
(See 38 Corpus Juris para. 56, page 585.)
The present case is fully covered by this observation inasmuch as the approval of the Syndicate is the final act which complete the right of the petitioners to a declaration that they have passed the 1st M.B.B.S., examination.
9. Thirdly, it was urged that the petitioners had an alternative equally convenient and effective remedy by way of a petition to the Chancellor to exercise his powers under Sub-section (6) of Section 5 and that consequently this Court should not exercise its extraordinary powers, it is true the Chancellor has ample powers under Section 5 (6) of the Utkal University Act to annul the impugned resolution if he thought that it was not in conformity with the Act and the Statutes. It is however a debatable question whether he will have power to annul any proceeding which though in strict conformity with the Act and the Statutes, betrays improper exercise of discretion by the authority concerned. It is however, unnecessary to discuss this point in this judgment because from the affidavit filed by the petitioners I am satisfied that they approached the Chancellor also for redress; but that nothing was done. In their affidavit dated the 28th May, 1951, they stated that apart from filing a petition before the Chancellor on the 27th April 1951 they also approached for an interview; but that they did not receive any communication from the Chancellor's office. No counter-affidavit has been filed challenging the correctness of these statements. It seems therefore clear that the petitioners came to this Court only as a last resort. They first of all requested the Syndicate to reconsider its previous decisions. They also approached the Chancellor and sought an interview. They had therefore no other alternative but to request this Court to exercise its powers under Article 226.
10. Fourthly, it was urged that under Law 8 of Chapter XXIII, the only power reserved to the Syndicate was to publish the results of such examinations reported by the Board of Examiners and that it had no power to direct the holding of a fresh examination. I am however unable to accept this contention. It is true that if Law 8 of Chapter XXIII was construed independent of the other provisions in the Statutes such a contention may have some force but as already pointed out, in the last para, of Law 2 of Chapter XXII it is expressly stated that the results when passed by the Board of Examiners shall be submitted for the 'approval' and publication by the Syndicate, The Syndicate's power of approving the results is thus declared in the Statutes and the power of approval must necessarily include the power of disapproval also, if for any sufficient reason it holds that the examination has not been conducted in a fair manner. Moreover, the Syndicate's paramount power of controlling and conducting all the examinations of the University is specially emphasised in Law 2 (2) (e) of Chapter IX. Therefore the provisions of Chapter XXIII dealing with the conduct of examinations must be held to be supplementary to the general powers of the Syndicate and not over-riding the same. But this does not mean that the syndicate can arbitrarily throw out the report of the Board of Examiners. The Statutes themselves attach great iimportance to the reports of the Examiners and in Chapter XVII, Law 10, the formula to be used for each grace at the time of the Convocation is expressly stated to be as follows:
'Mr. Chancellor/Mr. Pro-Chancellor/Mr. Vice-Chancellor : I move that a grace of the Senate be passed that those persons whom the Syndicate on 'the reports of the examiners' has certified to be qualified for the degrees of..... beadmitted to that degree.'
This shows that the Board of Examiners have an important statutory functions assigned to them and when they report to the Syndicate about the results of the examinations an incomplete right accrues to those students who are reported to have passed the examinations; that right being completed by the publication of the results by the Syndicate after approval.
11. The petitioners' main contentions against the validity of the impugned resolution are twofold :
(1) the resolution is invalid and inoperative because due notice of the consideration of the subject was not given to all the members of the Syndicate as required by the Standing order No. 4 of the Rules of Business of the Syndicate itself and (2) in any case the Syndicate as a responsible body exercising statutory powers acted arbitrarily and without due care in passing such a resolution on wholly inadequate materials available before it.
12. Both these contentions appear to be justified.
13. Law 3 of Chapter IX of the Statutes pre-cribes the procedure at the meetings of the Syndicate. Clause (2) of that Law empowers the Syndicate to frame such Standing Orders as it may consider necessary for the conduct of its business. In exercise of this power the Syndicate framed Standing Orders, a printed copy of which was furnished to us. Under those Standing Orders the business of the Syndicate could be transacted either by meetings or circulation. Clause (j) of Standing Order No. 3 authorises the Vice-chancellor to dispose of urgent matters by circulation amongst the members of the Syndicate. The Vice-Chancellor rightly did not adopt this procedure in the present case chiefly because the members of the Syndicate had to make some sort of enquiry from Sri Bhairab Chandra Mohanty, Dr. R.K. Mohanty and Dr. Banerji before holding that there was really leakage in the question papers. But he should then have strictly complied with the provisions of Standing Order No. 4 which run thus:
'Matters other than those specified in Rule 3 above shall be placed before a meeting of the Syndicate. Not less than seven days' notice of a meeting of the Syndicate shall be given by the Registrar, except in the case of an urgent meeting convened by the Vice-chancellor when not less than three days' notice of meeting shall be deemed sufficient. A copy of the agenda shall be issued along with the notice of each meeting, and any member of the Syndicate desirous of moving a resolution or of placing any matter not included in the circulated agenda before the Syndicate for discussion shall give not less than five days' notice of his intention so to do and the nature of the item.'
It is admitted that the meeting held on the 21st April, 1951 was an ordinary meeting. The question about the publication of the 1st year M.B.B.S., results, was admittedly not one of the subjects to be taken up in that meeting and no notice ofthat subject was given to any member. The results were available before the Vice-Chancellor only on the 21st morning. Similarly the question as to whether there was leakage in Anatomy and whether re-examination in that subject should be held was also not one of the subjects on the agenda. This was taken up for consideration as a matter of grave urgency on the suggestion of the Vice-Chancellor. Mr. M.C. Pradhan, the Director of Public Instruction, who was one of the members of the Syndicate was absent from that meeting. There can be no doubt that Standing Order No. 4 has been clearly contravened in this case. If the Vice-Chancellor thought that the matter was of an urgent nature he ought to have called a special meeting for that purpose after giving three days' clear notice. In the alternative if he wanted to move for the consideration of a matter that was not in the circulated agenda in the ordinary meeting he ought to have given not less than five days' notice of his intention to do so and the nature of the item. Admittedly neither three days' notice for an urgent meeting nor five days' notice for consideration of a matter that was not on the agenda was given to any of the members of the Syndicate. Doubtless if 'all' the members of the Syndicate had been present in the meeting on the 21st the question of waiver of the notice might arise. (See page 52 of the Law of Meetings by Shaw and Wilson.) But as one of the most important members of the Syndicate, namely, the Director of Public Instruction, was absent from the meeting of the 21st it would be academic to discuss the question of waiver.
14. It was however urged that the failure to comply strictly with the provisions of Standing Order No. 4 may at best amount to an irregularity which was cured by the ratification of the impugned resolution No. 343 passed by the Syndicate at its next meeting held on the 28th April 1951. But I think the weight of authorities is definitely against the view that the failure to give notice is a mere irregularity. As early as 1817 it was held in 'Nixon v. Burt', (1817) 129 E R 271, that failure to comply with any prescribed rules as to notice will invalidate the meeting and the business transacted thereat unless it is not reasonably practicable to summon a particular person by reason of his address being unknown or his being out of reach. In the present case it is not contended on behalf of the University that the address of Sri M.C. Pradhan, the Director of Public Instruction was not known to them or else that he was out of reach. In 'Rex v. Langhorn', (1836) 111 ER 889, it was pointed out that where the meeting is called not for any personal benefit but for the purpose of public duty it is not competent for any person to waive it.
'The notice is served not for his personal benefit, but as an admonition to him to perform a public duty. He cannot exempt himself from these admonitions.'
This principle has been stretched to any meeting, the function of which is to discharge legal duty whether of a public or of private nature. In 'Young v. Ladies Imperial Club, Ltd.', (1920) 89 LJ KB 563, Scrutton, L. J. observed :
'Every member of the committee ought, in my view, to be summoned to every meeting of the committee except in the case where summoning can have no possible result, as where the member is at such a distance that the summons cannot effectively reach the absent member in time to allow him or her to communicate with the committee.'
Similarlythe duration of the notice as required in Standing Order No. 4 also has to be strictly construed. That Standing Order says that not lessthan three days' notice shall be given of an urgent meeting and not less than five days' notice of moving a subject placing any matter not included in the circulated agenda for an ordinary meeting In 're Hector Whaling, (1936) 1 Ch D 208, a resolution passed at an extraordinary general meeting of a company without giving 21 days' clear notice as required by statute was not given effect to and the company was required to call for a fresh meeting. Mr. Dasgupta however relied on 'La Compagnie de Mayville v. Whitley', (1896) 1 Ch D 788, & urged that the omission to give due notice to all the members of the Syndicate about the subject-matter of the impugned resolution would not by itself render that resolution invalid, especially as the notice of the ordinary meeting of the 21st April 1951 had been duly given to all the members. That case is clearly distinguishable. There was a registered company with a Board of Directors who were paid by salary. In the Articles express provision was made for the issue of due notice of the meetings of the share-holders of the company. But no provision was made regarding the meeting of the Directors. The Court held that as the Directors were paid by salary it was their duty to attend every meeting of the Directors whatever business may come up before them for disposal and that it cannot be held as a matter of law that a business conducted at a Director's meeting is invalid if the Directors have had. no notice of the kind of business which is to come before them. In the present case however the members of the Syndicate are not paid by salary and consequently it cannot be held that they are bound to attend every meeting of the Syndicate. Moreover, in their Standing Order which have statutory force they themselves expressly provided for giving due notice of subjects that may come up for discussion. If their own Standing Order is thus contravened and 'all' the members of the Syndicate have not waived the notice it is difficult to say how the impugned resolution can be held to be valid. I would therefore hold that Resolution No. 4 is invalid and inoperative.
15. Resolution No. 343, dated the 28th April 1951 suffers from the same defect. In that meeting the Director of Public Instruction Sri M.C. Pradhan was present but another member of the Syndicate namely, Dr. M. Mansingh was absent. The subject was taken up in that meeting also suddenly without previous notice to any of the members in direct contravention of Standing Order No. 4. Therefore that resolution is invalid and it cannot confirm or ratify the previous resolution of the 21st which itself is invalid for the same reason.
16. This conclusion alone is sufficient to grant the relief asked for by the petitioners but as the second contention was also argued at great length I think it desirable to give my decision on it also.
17. In the application of the petitioners it was alleged that the Syndicate acted maliciously in ordering the holding of a re-examination in Anatomy. One of the important grounds for attributing malice to the Syndicate was that the Vice-Chancellor knew as early as the 9th April, 1951 about the hints given by Sri Bhairab Chandra Mohanty and that he deliberately took no action till the publication of the results. This ground is, however, baseless, because I am satisfied from the affidavits filed by the Vice-Chancellor, the Hon'ble Minister for Education, the Director of Public Instruction, Sri Bhairab Chandra Mohanty and the letter of Hon'ble Mr. Justice Das that the Vice-Chancellor was not aware of those hints till his discussion with Justice Das on the 19th April evening. As soon as he came to know of the suspected leakage he acted with great promptness in directing the Principal of the Medical College, Lt.-Col. papatla to compare the reported hints with the questionsactually set and to give his report to the members of the Syndicate on the 21st. One of the students who appeared at the 1st M.B.B.S., examination is Sri Dhirendra Narayan Acharya. It is admitted that he is the son of Dr. S.N. Acharya who is a member of the Syndicate. An attempt Was made to show that the Vice-chancellor of the University and Col. Papatla were both aware of the relationship of Sri D.N. Acharya with Dr. S.N. Acharya when the Syndicate considered the question of leakage on the 21st. But the Vice-Chancellor and Col. Papatla have sworn affidavits to the effect that on that day they were wholly unaware of this relationship. I have no hesitation in accepting their affidavits on this point and holding that they had no motive of helping Dr S.N. Acharya's son when they and other members of the Syndicate passed the impugned resolution. On the papers placed before me I am satisfied that the members of the Syndicate acted without malice when they passed the impugned resolution on the 21st and that they were actuated by a laudable motive of maintaining a high standard of purity in conducting the examinations of the University. But a Body exercising statutory powers cannot rely on good faith alone for escaping the jurisdiction of this Court under Article 226, however arbitrary or capricious its actions may be. If want of good faith be held to be the only ground for interferingwith the exercise of statutory powers, the primary object of the writ of mandamus namely to supply defects of justice -- would be frustrated. The field an which the question of bad faith arises is 'such that the reservation for the case of bad faith is hardly more than a formality' Per Lord Radcliffe 'Nakkuda Ali v. M.F. De S. Jayaratne', (1951) 1 A C 66 at p. 77. It must further be shown that the statutory powers were exercised reasonably and with due care (See'Halsbury, 2nd Edition, Vol. 31, p. 533.') As early as 1864 in 'Galloway v. Corporation of London', (1864) 46 E R 356 L.J., Turner observed :
'Powers, such as those which are given to the corporation by this Act of Parliament, are at all times to be exercised 'bona fide' and with judgment and discretion.'
This observation was quoted with approval in 'Mayor' & C. of Westminster v. L & N W Rly Co.', (1905) AC 426, where Lord MacNaghten said:
'It is well settled that a public body invested with statutory powers such as those conferred upon the corporation must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act in good faith. And it must act reasonably.'
To a similar effect is the observation in 'The Queen v. Church Wardens of All Saints, Wigan (1876) 1 A C 611at p. 624, of Lord Hatherley where he emphasised that statutory bodies should exercise their powers justly and fairly in a reasonable and proper manner. (See also the observations of Parwell, J., in 'Roberts v. Charing Cross Euston & Hampstead Rly. Co.', 42 Empire Digest p. 723, para. 1423.). In 'Sanitary Commissioners of Gibraltar v. Orfila', (1890) 15 A C 400, Lord Watson emphasised the same aspect by saying:
'It is an implied condition of statutory powers that when exercised at all, they shall be executed with due care.'
It is true that this Court will not interfere with or revise the opinion of an administrative body if there is anything on which that body could reasonably have come to its conclusion ('Halsbury 2nd Edition, Vol. 31, pp. 35-36.) But the discretion should be exercised in a Judicial spirit. Lord Reading, C. J., observed in 'Rex v. London County Council', (1915) 2 K B 466 at p. 475:
'The second and more serious contention is that the Council have not exercised their discretionin a Judicial spirit in the sense that they have allowed extraneous considerations to affect their decisions, if they have allowed themselves to take into consideration matters which had no bearing upon the merits of the case before them, but which nevertheless influenced their minds in arriving at their decision, they have not exercised their discretion properly and have not heard and determined the case according to law.'
Thus there is ample authority in English decisions to justify interference by this Court if on the materials placed before us it can be held that the Syndicate did not exercise its discretion reasonably and with due care even though it might have acted in good faith. I am fully aware that his Court cannot take upon itself the functions of an appellate Court of fact, scrutinise the materials that were available to the Syndicate and substitute its own discretion and judgment for that of the Syndicate. But the writ of mandamus being of the most extensive remedial nature and intended for supplying defects of justice its application should not be refused in cases where there is an abuse of discretion by a responsible statutory body. As Lord Mansfield pointed out in the case of Dr. Askew cited above:
'It is true that the Judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practice this profession is trusted to the College of Physicians and this Court will not take it from them, nor interrupt them in the due and proper exercise of it. But their conduct in the exercise of this trust thus committed to them ought to be fair, candid and unprejudiced;, not arbitrary, capricious, or biased; much less warped by resentment or personal dislike.'
the American authorities also support the same view.
'The great weight of authority is to the effect that an exception to the general rule that discretionary acts will not be reviewed or controlled exists when the discretion has been abused. The discretion must be exercised under the established rules of law, and it may be said to be abused within the foregoing rule where the action complained of has been arbitrary or capricious.....or therehas been a refusal to consider pertinent evidence ......' (38 'Corpus Juris', p. 598, para. 74.)
18. Can it be said on the materials that were available on the 21st April, 1951, that the members of the Syndicate acted with due care and reasonably in directing the holding of a fresh examination in Anatomy? The reasons which weighed with Syndicate in passing the said resolution have been given by the Vice-Chancellor in his affidavit which has been filed on behalf of all the members of the Syndicate. In paras 11 and 12 of his affidavit he has given the following three reasons in support of the decision of the Syndicate.
(1) On a comparison of the question set in papers 1 and 2 with the hints given to Justice Das by Sri B.C. Mohanty the Syndicate thought: 'that 80 per cent of the questions might have been known to the students before the examination.'
(2) Prom the statement of Sri Bhairab Chandra Mohanty it appeared to the syndicate that though originally 7 or 8 students of the M.B.B.S., class alone knew the hints, gradually by the 8th April most of the other students also came to know of them by threatening the said 7 or 8 students with violence. Therefore almost all the students of the M.B.B.S., class knew the hints before sitting for the examination on the 9th April.
(3) From the statements of the Chairman of the Board of Examiners Dr. S.M. Banerji and one of the examiners Dr. R.K. Mohanty it appeared thatthere was a possibility of leakage of questions due to negligence in destroying the original manuscript of one of the question papers and the opening of question papers 1 and 2 by one of the paper setters and a teacher on the subject.
19. The members of the Syndicate are all highly educated persons, some of them being leading members of the Bar and some others Professors of Colleges with wide experience of conducting examinations. If the printed questions actually set in Anatomy had leaked out there would be no doubt about the factum of leakage and the only point which the Syndicate would then have to decide is the amplitude of the leakage, that is to say, whether the question paper had reached a substantial number of students so as to justify the holding of a fresh examination. But in this case the Syndicate had before it a true copy of the hints said to have been given to the students. The hints refer to 18 items all dealing with various parts of the human body. The Syndicate was undoubtedly aware of the necessity of exercising some amount of caution in judging whether the hints would amount to substantial leakage because the possibility that thoae hints might after all be intelligent anticipations could not be ruled out. From the affidavit of Col. Papatla I am satisfied that the Syndicate was fully alive to this fact. Moreover, all the members of the Syndicate had attended the previous meeting of the Senate held on the 28th & 29th March, 1951. One can reasonably assume that they understood what Col. Papatla, Dr. Banabehari Patnaik and Dr. S.N. Acharya had spoken in that meeting. The special difficulty in considering whether the hints on the subject of Anatomy would amount to leakage had been pointed out to them by Dr. Banabehari Patnaik who went so far as to say that he could predict even then what questions would be asked in Anatomy for the next three years in succession. One can also reasonably assume that the Syndicate was aware of the three important tests which Col. Papatla applied in deciding whether the questions in Anatomy practical examination of October, 1950 had leaked. Those three tests are: (1) the number of subjects that were mentioned in the hints which actually appeared in the question paper: (2) whether the hints were broad and general or they clearly and specifically referred to the subjects that were actually set in the examination and (3) the percentage of failures in the examination. According to Col. Papatla if 3 or 4 students out of a total of 14 failed this percentage is one of the circumstances indicating no leakage.
20. On the 21st April, 1951 the Syndicate had before it (1) a copy of the printed Questions that were actually set in papers 1 and 2: (2) a true copy of the hints delivered to Justice Das by Sri Bhairab Chandra Mohanty and (3) the expert advice of Col. Papatla and Dr. S.M. Banerji, the Chairman of the Board of Examiners. I am leaving out Dr. S.N. Acharya whose advice to the Syndicate may be open to challenge as his son was one of the students who appeared in the examination. It passes my comprehension as to how on the aforesaid materials available, any reasonable body of persons could hold that 80 per cent of the questions might have leaked out. Col. Papatla and Dr. Banerji have not stated in their affidavits that leakage was of such a high percentage. If the members of the Syndicate had even cursorily looked into the printed questions and compared them with the hints they would have at once been convinced that the leakage, if any, was not of such high percentage. For instance, paper No. 1 in Anatomy consists of five questions all carrying equal marks. Of these it is admitted that no hint was given in respect of questions 2, 3 and 4. It is true that questions 1 and 5 werecovered by items 1, 4, 8 and 11 in the hints. Evenif it be assumed that the hints were not very broad and that they directly referred to those questions the percentage of leakage in paper No. 1 is only two-fifths, i.e., 40 per cent. Paper No. 2 consists of five questions. But as the last question (Question No. 5) consists of two alternative questions we may assume that the total number of questions in paper No. 2 is six. It is admitted that question No. 3 was not indicated even in the remotest degree in the hints. As regards question No. 5 dealing with right Phrenic nerve a remote connection might be established with item 10 of the hints which refers to Diaphragm and its development. Phrenic nerve is one of the nerves of the Diaphragm. But to say that if a student is asked to study about Diaphragm it necessarily means that there is a leakage of question if the question is actually set on one of the nerves of the Diaphragm. It is quite unreasonable. Question No. 5 of Paper No. 2, therefore for all practical purposes may be said to be not covered by the hints. Question No. 1 on the other hand deals with a subject quite different from Item No. 5 of the hints. I am placing below the question as well as the hint for facility of comparison.
PAPER NO. 2.
Actual question. Hint. Item (1) What structures will you cut or avoid toremove the Thyriod Gland from the body after thegland has been exposed: indicate the positions ofsuch structures in a suitable diagram? Give theblood supply and development of the ThyroidGland.
Item (5) Steps of dissections to reach the thyroid gland and its development.
It will be noticed that while the substantial part of the question refers to the structures that will be cut or avoided for removing the thyroid gland 'after' it has been exposed the hint refers to the steps in the dissection up to the stage of 'reaching' the thyroid gland. Therefore any student who is given that item in the hint is bound to be misled and set on a wrong track. Therefore not only was there no substantial leakage of question No. 1 of Paper No. 2 but the hint was definitely misleading. The result is that three of the sis questions in paper No. 2 (questions 1, 3 and 5; first part) did not leak out at all and even if it be assumed that in respect of the remaining three questions there was full leakage the percentage would hardly be 50. Therefore, the average percentage of leakage in papers 1 and 2 would hardly be 45. If the Syndicate assumes that the percentage of leakage was 80 it is obvious that the members of the Syndicate completely shut their eyes to the papers before them,
21. So much is deducible even from a 'cursory' perusal of the papers. If the Syndicate had made a closer scrutiny it would have noticed that the percentage of leakage was much less than 45. The hints were broad and dealt with several parts of which one or two alone were found in the questions actually set. For instance Item No. 3 of the hints refers to the connections of the extracranial with the intracranial veins including the cavernous sinus: its emissaries and tributaries. Cavernous sinus is only one of the veins of the cranium. Similarly item No. 4 of the hints is as follows: 'Middle ear and its development.'
Question No. 5 (b) of Paper No. 1 is 'Auditory Tube.' Auditory tube may anatomically be a part of the middle ear. But it is after all only 'one' of the component parts of the middle ear. In this manner if the other items in the hints are scrutinised it will be noticed that in all cases except in respect of Item No. 14 of the hints (corresponding to the second part of question No. 5 of Paper No. 2) and Item No. 1 of the hint (corresponding to question No. 5 (b) of Paper No. 1) the remaining hints cover a very wide range of topic as compared with the relevant questions which were limited in scope. Col. Papatla says in his affidavit that he and Dr. S.N. Acharya
'pointed out at the request of other members to what extent some of the questions in the list were similar to those in the printed papers and helped the members to understand the similarity in so far as the questions involved technical terms and language.'
He has not however stated what according to his opinion was the percentage of leakage. But from the very broad and comprehensive nature of the hints it seems clear that if every hint is taken as a unit, the question that leaked out would be 1/2 or 1/4 part of that unit. Therefore the percentage of leakage, even in respect of questions 1 and 5 of paper 1 and questions 2, 4 and 5 (second part) of paper 2 would be somewhere between 1/2 to 1/4 of 45, i.e., 25 percent or even less. I fully realise that it will be unreasonable to expect a body of laymen, unaided by expert advice, to make such detailed calculations for the purpose of estimating the percentage of questions that leaked out. But the members of the Syndicate were not all laymen. They had the assistance of an expert (Col. Papatla) who explained to them in great detail the points of similarity, and they were fully aware of the necessity of going deep into the question, in view of the speeches made in the Senate about 25 days before and also in view of the onerous task cast upon them of deciding whether the said percentage indicated real leakage or an intelligent guess. Their blind assumption that there was 80 percentage leakage made them jump to the conclusion that the alternative theory of intelligent guess must be ruled out altogether. The same result is arrived at if the percentage is worked out from a scrutiny of the hints themselves. As already pointed out, the hints contained 16 items of which 8 did not appear in any of the questions. On the contrary, the students who studied those hints must have been completely misled on a wrong track. Of the remaining 8 items also only two items have substantially been reproduced in the questions. In respect of the remaining six, the questions are very limited whereas the hints are very broad and comprehensive. Thus when the Syndicate took upon itself the task of investigations and finding out the quantum of leakage and yet would assume it to be 80 percent the Court must hold that the members of the Syndicate acted without due care and in an irresponsible manner.
22. One important piece of evidence which was available before the Syndicate and which has a direct bearing on the fact of leakage does not appear to have been considered at all. I refer to the results of the 1st M.B.B.S., examination that was submitted to the Syndicate by the Board of Examiners and that was on the table when the members sat to consider the impugned resolution. A copy of that result was produced before us and on scrutinising the same we find that 10 out of 37 students failed in Anatomy written examination and 11 failed in Anatomy as a whole (including practical and viva voce.) The percentage of failure is thus about 27. Col. Papatla himself told the Syndicate about 25 days before that if 3 or 4 students out of 14 failed in the practical examination that itself is one of the circumstances indicating no leakage. The Vice-Chancellor does not say in his affidavit that the percentage of failures was taken into consideration by the Syndicate in coming to its conclusion. On the contrary in para. 11 he makes it clear that from a mere comparison of the hints with the printed questions with the help of Col. Papatla and Dr. Acharya the Syndicate thought that 80 per cent of the questions hadleaked out. Similarly neither in the affidavit of Dr. S.M. Banerji nor in that of Col. Papatla is there any mention of the fact that the results of the examination were also taken into consideration before holding that there was leakage. Why did not the Syndicate pause to consider how there could be 27 per cent failures in Anatomy, if really 80 per cent of the questions had leaked out? It was urged by Mr. Dasgupta, on behalf of the Syndicate, that dull students may not benefit much even if there was leakage. But this argument overlooks the fact that in theory examination in Physiology-- where there was not even a suspicion of leakage-- only four out of the same batch of 37 students failed. This result alone is sufficient to show that the students were not of such dull intellect as to preclude the possibility of deriving benefit from the leakage of questions. The syndicate should have scrutinised the mark list that was on its table, compared the percentage of failures in Physiology, and then, bearing in mind Col. Patatla's own tests, judged whether the broad hints would, in effect, amount to leakage. I must, therefore, hold that an important piece of evidence which has a direct bearing on the question was ignored by the Syndicate. Such an omission must be attributed to lack of care.
23. Similarly the second reason given by the Vice-Chancellor seems to be based on no material available before the Syndicate. Even if there was leakage of questions the Syndicate must further be satisfied about the amplitude of the leakage before passing such a drastic order as the holding of a re-examination. If for instance leakage did not reach the students or had reached only a few of the students whose names could be ascertained by proper enquiry there may not be any justification for holding a fresh examination thereby causing unnecessary harassment and expenditure to a majority of innocent students. The Vice-Chancellor has however stated in his affidavit that from the statement of Sri B.C. Mohanty it appeared that though originally the hints were known to 7 or 8 students, graudally by the 8th April many other students also knew about those hints. But Sri B.C. Mohanty has not supported him on this point. His affidavit is to the effect that he learnt from some one (whose name he would not disclose) that 7 or 8 students came to know of the questions :
'Gradually by the 8th April some others (and not all) came to know of the possession of questions by the former 7 or 8 and insisted on them to disclose the questions.'
He has not stated categorically that by such insistence other students also came into possession of those questions. His affidavit is entirely silent on this point. His statement was not taken in writing by the Syndicate and consequently the impression which the Vice-Chancellor and the other members of the Syndicate formed about the leakage of questions to a large number of students not being supported by the affidavit of Sri B.C. Mohanty and not being corroborated by a contemporaneons document must be held to be mistaken, At any rate a responsible body like the Syndicate should have insisted on some material being supplied to it by Sri B.C. Mohanty from which it could reasonably hold that the leakage had exended to a large number of students. If Sri B.C. Mohanty, whose respectability is beyond question, had stated that he had personal knowledge of the fact that many students had come into possession of the hints (though he was not prepared to disclose the names of those students) the Syndicate may reasonably act on this information because there was no reason to doubt the truth of his statement, But Sri B.C. Mohanty admittedly had no personal knowledge and was making his statement on the information supplied to him by some person who till now hasremained incognite. If on hearsay statement of such a nature the Syndicate would form an impression that the majority of the students must have known the questions I cannot but hold that they did not consider the case with due care or in a reasonable manner. The possibility that Sri B.C. Mohanty himself might have been misled by his informant appears to have been completely overlooked.
24. There was an easy method of testing the correctness of Sri. B.C. Mohanty's statement which for some inexplicable reason the Syndicate did not adopt. Seven or 8 students were first reported to have come into the possession of the hints. The Syndicate could easily have asked Sri B.C. Mohanty to reveal the names of those students under promise of secrecy not for the purpose of taking disciplinary action against them but for ascertaining the marks which those students actually obtained in the examination and thus satisfying itself that there was in fact leakage. As already pointed out, ten students failed in Anatomy written examination. If the 7 or 8 students referred to by Sri B.C. Mohanty were to be found amongst those ten failed students the Syndicate would surely have gravely doubted the cvorrectness of the information given by Sri B.C. Mohanty. Unfortunately this was not done. Apparently the moment some superficial similarity was found between the reported hints and the printed questions, leakage was assumed as a matter of course.
25. The third reason given by the Vice-Chancellor does not help him very much. There might have been some reliable evidence before the Syndicate to hold that there was a possibility of leakage when the printed questions were handled by some of the examiners. The Vice-Chancellor's statement that the original manuscript of at least one of the Anatomy (theory) quesions papers was not completely destroyed after it was fair copied has not however been supported by the affidavit of Dr. S.M. Banerji. Nor has the Syndicate thought it fit to produce before the Court the statement of Dr. R.K. Mohanty, if any, on the subject. It is however, unnecessary to enter into further discussion on this question because even if I accept the statement of the Vice-Chancellor on this point there can be no justification for the Syndicate to pass such a drastic resolution in the absence of proof of the quantum and the amplitude of leakage.
26. To sum up: The Syndicate assumed that there was 80 per cent leakage though the papers placed before the members of the Syndicate and explained to them by Col. Papatla indicated that the leakage, if any, was for below 45 or 50 per cent. Though the Syndicate was fully aware that the number of failures is an important test for deciding whether such a percentage indicated real leakage of question or mere intelligent anticipation on the part of the students or their Lecturers, the members of the Syndicate did not care to scrutinise the results that were on their table to ascertain the number of failures in Anatomy. They acted on the hearsay statement of Sri B.C. Mohanty and assumed that most of the students must have known the questions though Sri B.C. Mohanty's statement did not go so far. There was an easy method of testing the truth of his statement but they would not apply the same. The subject was also hurriedly put up for discussion in direct contravention of their own Standing Orders regarding the giving of proper notice. There was no special urgency which compelled them to ignore their own Standing Orders, The results had already been reported and if the matter was urgent the Vice-Chancellor could easily have called for an urgent meeting on the 25th April after giving three day's notice.I cannot help observing that they acted with undue haste, assumed the existence of certain facts which did not exist, ignored certain papers that were before them and were carried away by the hearsay statement of Sri Bhairab Chandra Mohanty far beyond the limits to which he himself was prepared to go. The impunged resolution was passed under such circumstances unreasonably and with want of due care.
27. I would therefore direct the issue of a writ of mandamus on the Syndicate of the Utkal University requiring it to take immediate steps for the publication of the results of the 1st year M.B.B.S., examination held in April 1951, in exercise of the powers conferred on it by para. 2 of Law 2, Chapter XXII and Law 8 of Chapter XXIII. Both parties' will bear their own costs.
I have had the advantage of reading, the judgment prepared by my learned brother Narasimham with which I am in complete accord. The judgment is complete in Itself. I, however, wish to add a few words in consideration of the public importance of the question involved, particularly with reference to the contentions that were seriously pressed at the Bar on behalf of the opposite parties.
29. It has been strenuously contended that the Syndicate, as an autonomous body, while acting within the ambits of their jurisdiction, are not amendable to the Court's jurisdiction of taking extraordinary remedial measure of a writ of mandamus for the purpose of directing them to discharge their duties in a particular manner. Answer to this question depends upon the nature of the jurisdiction that the Syndicate have to exercise. It is no doubt correct to say that where the law enjoins upon public bodies or officers the performance of an act which it is discretionary with them either to do or not to do, mandamus will not He. Simply because some margin of discretion is left to the public authorities in the manner of the performance of a duty imposed upon them will not defeat its application. As my learned brother has poined out, the Syndicate, in this particular case, have to perform a statutory duty. This duty they cannot arbitrarily refuse to perform. Besides, it involves the performance of a judicial action. In performing it they may not be bound to follow the rules peculiar to a judicial tribunal but their manner of performance of the judicial action should not defy the principles of natural Justice. To ensure this end, the Court has the residuary and ultimate power of supervision. In short, a public officer or a public body may ordinarily be compelled to take some action, so far as to exercise his judgment and discretion in determining whether he ought to do or refrain from performing an act. One thing, however, that has to be guarded against is that mandamus may not lawfully issue to review, reverse, or correct an erroneous decision in such instances even though there be no other method of review or correction provided by law. In coming to our decision in this particular case, we have carefully avoided to exercise any jurisdiction as lies with a Court Of appeal or writ of error. If we have come to the decision that we have given, it is because the Syndicate have failed to perform the judicial action that they were called upon to do in complete disregard of the principles of natural justice. In my judgment, therefore, this is a nt case in which the Court should exercise its extraordinary jurisdiction of issuance of a writ of mandamus compelling the Syndicate to take action which law enjoins upon them to do by reasonable and careful exercise of judgment and discretion, that is, approving and publishing the results submitted to them by the Board of Examiners.
30. The next point that was very strenuously pressed by Mr. Dasgupta was that the petitionersearned no specific legal right which could be said to have been infringed by the Syndicate's refusal to publish the results of the examination. The contention is that until the results are published, no right can be said to have accrued to the examinees. The gravamen of the argument is that the right claimed is not one which is capable of being enforced in law. To me there seems to be some misconception behind this argument. It is said that until the results are published upon the approval by the syndicate the examinees have no right to fellowship or the degree, as the case may be. But the right claimed by the petitioners in this case can be well understood with reference to the duties that the Syndicate have to perform in the circumstances of the instant case. Rights and duties are always correlated. One in whose interest or for whose benefit a public duty is enjoined by law has always the right to enforce the performance of the duty. Right should not be confused with status. Status may be the result of a perfected right; but the facts that would constitute the status to be declared by the concerned public authority, when performed, create a title to the status. This title, it it is a recognisable one, creates a right though the same, until recognised, falls short of the status. To illustrate, it may be compared to a right to sue for declaration of a status which is as good a right as the right involved in the status itself for the purpose of enforceability. Whatever can be legally enforced is a specific legal right for the protection whereof a writ of mandamus may lawfully issue. Whosoever is interested in having a specific legal duty imposed upon a public functionary by law being performed has a right. An examinee who has achieved success in his examination by fair and lawful means has a right to see that his success matures into the status of a degree-holder or fellowship by the performance of the duty in a judicial manner by the public functionary. In a nut-shell, the position is where the action of a public functionary threatens to violate the plain and imperative duty cast upon them to the substantial prejudice of the rights of the parties, and where all other remedies are utterly inadequate, the speedy and the prompt relief of mandamus is undeniable. In this view of the matter I have no hesitation in holding that this contention has no force.
31. The only other important aspect to which I shall address myself briefly is whether we have trespassed into the jurisdiction peculiar to the Court of appeal or writ of error. As I have already said, mandamus cannot, in any event, be used as a substitute for an appeal or a writ of error to revise or correct the allgcd errors by a public body in the proper exercise of its lawful jurisdiction, however inequitable and insonsistent its decision may be. We should not interfere if the errors of law or wrongful conclusion of fact result from a mistaken judgment. A line of distinction, however, fine, should, however, always be drawn between a mistaken judgment and misguided judgment. Where a tribunal, whether administrative or judicial, allows its judgment to be vitiated by lack of reasonableness and care, the decision shall be subject to the superintendence and control by mandamus. In this case, the Syndicate might appear to have been influenced by the wisdom and advisability of taking a measure 'ex abundanti cautela'; but in condemning the examination they have not proceeded judiciously and with care. My learned brother Narasimham has taken great pains to deal with this aspect of the case in all material and substantial details and I do not Intend to add to it. Wrongful exclusion of evidence or wrongful conclusion of fact on evidence are not the factors to be taken into consideration by this Court, but if it is a case of no evidence, the judgment of thebody can, in no event, be maintained. The statement of Bhairab Charan Mohanty, which, according to Col. Papatla, the Expert, by whose opinion the Syndicate seem to have been guided, if not solely but to a very large extent, has contributed largely to the formation of their opinion, is based upon hearsay of the third degree, and, as my learned brother has pointed out very clearly, suffers from a lacuna consisting in suppression of facts and leaves no room for the concerned tribunal to test its correctness. As my learned brother has already dealt with elaborately, the corroboration of this evidence by the available expert opinions reduces itself, on closer examination, to microscopic thinness. In relying upon such evidence in coming to their decision and in not giving the cause sufficient time and opportunity for discussion by due notice insisted upon by the Standing Orders, the learned body of the Syndicate cannot certainly be said to have acted reasonably and with due care. They were no doubt obsessed with a consistent rumour coming down from previous year that there used to occur a leakage in Anatomy questions. This obsession led them to take a measure which they have taken in their zeal for maintaining purity of examination; but they should have remembered that their action amounted to interference with well-earned substantial rights of the examinees. This action of their may be compared to a police action of putting all the inhabitants of a locality in prison simply because offence of theft is rampant there. Apart from the expert opinion, the difference between the evidence before the Syndicate and what is usually known as rumour is merely formal. With these observations, I concur with the judgment of my learned brother.
32. Before closing, I should record our appreciation of the able and skilful manner in which the learned counsel of the parties (Messrs P.V.B. Rao and L.K. Dasgupta) piloted their respective cases. We are much obliged to them for the valuable assistance that they rendered to us in deciding this case which involves questions fraught with difficulties of no ordinary magnitude.