1. The petitioners seek the quashing of the order dated 14-1-1982 (Annexure-4) passed by the Dean of College of Agriculture of the Orissa University of Agriculture and Technology debarring them from taking the second semester final examination of Fourth Year B. Sc. (Ag.) class and issuance of a direction to the opposite parties to hold the examination in respect of the papers which they could not take onaccount of Annexure-4.
2. The four petitioners are students of the Final Year B. Sc. (Ag.) of the College of Agriculture of the Orissa University of Agriculture and Technology. By the notice (Annexure-1), the students were intimated that the hourly and practical examination of the 4th Year B. Sc. (Ag.) would be held from Jan. 11, 1982 to Jan. 13, 1982, and the final examination was to be held from Jan. 14, 1982 to Jan. 21, 1982. The examination was originally scheduled to commence from Jan. 4, 1982 but shifting was necessitated on account of the session of the 3rd Indian Agricultural Congress being held within the campus of the University. Shorn of unnecessary details, which are not relevant for the disposal of this case, the grievance of the petitioners is that they took the final examination of the 2nd Semester of the 4th Year B. Sc. (Ag.) Course which commenced from Jan. 11, 1982 but they were debarred from taking the examination in all the papers by Annexure-4 which was served on them on 15-1-1982. This Court by an order passed on Jan. 18, 1982 directed the University to permit the petitioners to take the examination and further directed that the results, however, would not be published. The petitioners submit that they, however, could not take the examination conducted on Jan. 18 and Jan. 19, 1982.
3. The order (Annexure-4) debarring the petitioners from appearing at the examination was founded on shortage of attendance at lectures as provided in Semester Regulation 21 of the Under-Graduate and post-Graduate Semester Regulations.
4. Regulation 21, which has statutory force, reads as follows:--
'21. (a) A student shall have to be regular in attending classes and shall be required to have a minimum of 85% attendance in each course in each Semester, failing which he shall be detained, subject to Regulation 21 (b).
(b) The Dean may on recommendation of the Instructor/Advisor concerned condone shortage in attendance up to fifteen per cent in a course (s) in exceptional circumstances and allow students with an attendance of seventy per cent or more to appear at the Final Examination on payment of a condonation fee of Rs. 5/- for each course. No condonation even on medical grounds can be granted below 70 per cent in a course (s).'
The petitioners submit that both the clauses of Regn. 21 are to be read together and the intention behind the provisions is that a student securing 85% of attendance or more has a right to take the examination and those securing below 85% but 70% or more could secure admission to the examination on condonation of shortage on certain grounds. They urge that the opposite parties having not detained them as required by Regn. 21 (a) and having allowed them to take the hourly and practical examination and a part of the final examination from Jan. 11 to Jan. 15, 1982, it was not open to the opposite parties to debar them from taking the entire examination. In substance, their plea is one of estoppel against the opposite parties.
5. We have advisedly ignored the allegations of mala fides in the writ petition. Learned counsel for the petitioners fairly and rightly did not press the point.
6. In the return the opposite parties state that the Regulations do not provide that the percentage of attendance is to be intimated prior to the holding of the examination. Percentage of attendance is calculated on the basis of classes held and the attendance of the students. As a matter of practice, percentage of attendance is being notified during the course of examination, inasmuch as it takes time to calculate the percentage and notify the same. They have annexed to the return a statement showing the dates of examinations and the dates of notifications of attendance during the years 1976-77 to 1980-81. They rely on the practice to bolster up their stand that having regard to the practice, i.e. the practice of notifying the percentage of attendance during the course of examination, there could be no estoppel against the opposite parties. In the further affidavit dated Aug. 2, 1982, it is urged that the processing in calculation of attendance by the concerned teacher takes some time whereafter the office of the Head of the Department prepares the tabulation and ultimately the statement is forwarded to the office of the Dean to publish the notification. A plea has been taken that in view of paucity of time, the notification is not made before the examination.
7. The opposite parties strenuously urge two points. The first one is as to the maintainability of a joint writ petition by four petitioners and the second one is as to the merit of the writ petition.
8. The opposite parties have contended that in view of the amendment of Section 141 of the Civil P. C. by Central Act 104 of 1976 by inserting the Explanation, Order 1, Rule 1 of the Civil P. C. has no application to a proceeding under Article 226 of the Constitution. The Explanation inserted is as follows :--
'Explanation--In this section the expression 'proceedings' includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.'
The opposite parties urge that whatever may have been the position in law prior to the amendment, the Explanation precluded a joint petition.
In support of their contention, the opposite parties rely upon the case of Chandmal Naurat Mal v. State of Rajas than, AIR 1968 Raj 20. The decision proceeded on a specific rule, namely, Rule 375 of the Rajasthan High Court Rules, 1952, and is hardly apposite. It was held therein on an interpretation of the specific provision contained in the rule that each of the petitioners bad a distinct cause of action by reason of infraction of his individual right, and 'relief claimed' was not 'founded on the same cause of action'. The decision, therefore, is not an authority for the Deposition advanced. To the same effect is the decision in the case of Sheo Karan v. State of Rajasthan, AIR 1979 Raj 58, which turned on an interpretation of Rule 375 and followed the Bench decision of that Court in Chandmal's case (supra). In the case of Bhagaban Das v. State of Orissa, (1972) 1 Cut WR 646: (1972 Lab IC 1402), this Court held the joint petition to be incompetent finding that each individual case deserved separate treatment and the petitioners were not entitled to joint relief. Each one of the petitioners had 'a wholly separate and distinct interest'.
Controverting the aforesaid contention advanced by the opposite parties. Dr. Dash, the learned counsel for the petitioners, submits that the question should not be viewed in a pedantic manner. The approach of the Court should be functional. He has relied upon the following authorities which have held that joint petition is maintainable: N.C. Upadhya v. State of U. p., AIR 1965 All 356; Khem Karan v. State of U. P., AIR 1966 All 255; Mrs. J.K. Pritam Singh v. State of Punjab, 1967 Serv LR 251 (Punj); Sewa Singh v. State of Punjab, 1968 Serv LR 204; Heavy Electricals Employees' Union v. State Industrial Court, M. P., Indore, AIR 1976 Madh Pra 66; Hans Raj Sood v. State of H. P., AIR 1978 Him Pra 63; L. Kashi Nath Seth v. Collector, Central Excise. Allahabad, AIR 1979 All 128; Krishnatosh Dass Gupta v. Union of India, (1979) 3 Serv LR 681 : (1979 Lab IC 1154) (Cal); Badan Singh Sangwan v. State of Haryana, (1980) 1 Serv LR 528 (Punj & Har); Rama Chandra Pradhan v. Union of India, (1980) 49 Cut LT 266 and Harish Chandra Tewari v. Board of High School and Intermediate Education, U. P., AIR 1981 All 144.
In its exercise of extraordinary jurisdiction this Court does not countenance hyper-technical approach. Rules of procedure are handmaid of justice and devised with a view to subserving the goal. This Court has not framed rules to specifically regulate the procedure as to 'who may be joined as petitioners'. In the absence of a specific rule, the provision contained in Order 1, Rule 1 of the Civil P. C. is being applied to proceedings for certiorari and mandamus.
Since the High Court Rules do not provide for the various contingencies that arise in the matter of determining as to who should be parties to the application we may fall back on such rule as accord with equity, justice and good conscience, the object being to advance justice. The English practice is that all persons who have joint interest or a common interest can file a joint petition but not if they have entirely separate and distinct cause of action. The position in America can be gleaned from 'Extraordinary Legal Remedies' by Ferris. He says 'the rule is that persons having a common and joint interest in the subject-matter in controversy may be joined as relator, while those having separate and distinct rights may not'.
Order 1, Rule 1 of the Civil P. C. requires, that the right to relief must arise out of the same act or transaction, or series of acts or transactions and the matter must be such that, if separate suits are filed, any common question of law and fact would arise. In the old Code of 1882, several persons could not join as plaintiffs in one suit unless their causes of action were identical even though they were injured by the same act of the defendant. Order 1, Rule 1 is an improvement on the old Code of 1882 with a view to advancing the cause of justice and is based upon the English rule as modified in October, 1896.
Order 1, Rule 1 of the Civil P. C. embodies a principle which by method of trial and error based upon experience has come to be what it is today. The principle under-tying the provision can, in the absence of a specific rule on the subject framed by this Court, be applied to a writ proceeding unless its application causes prejudice to the other side. The object of the principle is avoidance of multiplicity of proceedings, waste of time and needless expenses to the parties.
Amendment of Section 141 of the Civil P. C. by insertion of the Explanation was necessitated to prevent an indiscriminate recourse to the provision contained in the Civil P. C. in writ proceedings. The amendment had not the object of putting an embargo on the application of certain salutary principles embodied in the Code. We may now refer to a few of the decisions cited by the learned counsel for the petitioners.
In the case of Harish Chandra Tewari v. Board of High School and Intermediate Education, U. P., (AIR 1981 All 144) (supra) (an apposite case to the facts on hand), the Division Bench observed (para 1):--
'... ... ... Where the action taken against several petitioners is identical and is embodied in a single order, all of them can legitimately combine together and file a single writ petition. A hyper-technical view with regard to the joinder of parties for filing a writ petition in such circumstances has not been judicially approved.... ... ......'
In the case of Hans Raj Sood v. State of H.P. (AIR 1978 Him Pra 63) (supra) (a case arising out of restoration of a writ petition dismissed for default), the Division Bench referring to the 'Explanation' inserted by Central Act 104 of 1976 held (at p. 64):--
'It is obvious that what the above Explanation says is merely that the proceedings under Article 226 of the Constitution do not amount to 'proceedings' within the meaning of Section 141. In other words, it would mean that so far as the proceedings under Article 226 of the Constitution are concerned, the procedure provided in the Code in regard to the suits would not apply. However, that does not run counter to the exercise of this Court's extraordinary jurisdiction under Article 226 of the Constitution. It may be noticed here that for the purpose of exercise of its jurisdiction under Article 226 of the Constitution, the High Court does not depend on the provisions of the Civil P. C. The procedure prescribed by the Civil P. C. is followed by the High Court in the exercise of its inherent jurisdiction under Article 226 of the Constitution not because of any legal compulsion to do so but because that procedure complies with the rules of natural justice.. ...'
In the case of Heavy Electricals Employees' Union v. State Industrial Court, M. P., Indore (AIR 1976 Madh Pra 66 at p. 68) (supra), it has been held :--
'... ... ... Even though the provisions of Civil P. C. are not applicable to the petitions under Article 226 of the Constitution, the principles underlying them are applicable........'
In the case of L. Kashi Nath Seth v. Collector, Central Excise, Allahabad (AIR 1979 All 128) (supra), a lucid statement of the law has been made by the Division Bench thus (at p. 132):--
'.. .. .. The effect of that amendment (insertion of the Explanation in Section 141 by the Civil Procedure Code (Amendment) Act, 1976) is that the procedure prescribed by the Code does not apply of its own force to proceedings under Article 226 of the Constitution. It does not, however, lay down that some of the salutary principles enshrined in the Civil P. C. governing the trial of civil writs may not be applied even where it enshrines a general principle of law, to the trial of civil proceedings other than, suits, like a writ petition under Article 226 of the Constitution of India.... ...'
The aforesaid rule has our respectful concurrence.
The gist of the decisions appears to be that a joint petition is maintainable: where common and joint interests are involved, where the impugned order is the same, where same relief is asked for on the same ground, a common cause of action, where the right is joint, or where question of fact and law is identical. Of course, it is to be seen that the joinder does not create confusion and prejudice to the other side by requiring him to fight on different fronts, et cetera.
Now that we have overruled that technical objection raised by the learned counsel for the opposite parties, the decks are clear for considering the question relating to merits.
9. The allegation is simple and clear. A student securing less than 85 per cent of attendance at lectures is to be detained provided, however, that condonation can be had if the percentage secured is 70 per cent or more but less than 85 per cent. The expression 'detained' in Clause (a) and the expression 'to appear at the final examination' in Clause (b) of Regulation 21 leave no manner of doubt that decision is required to be taken before the commencement of the examination. A student who has secured less than 85 per cent of attendance at lectures but 70 percent of more ought to know and be intimated of the position so as to be able to deposit the fee prescribed in Clause (b) of Regn. 21 and take such other steps as he may consider necessary in support of his plea for condonation of shortage. 'Detain' means 'to keep or restrain from proceeding' That read with the expression 'to appear at the final examination' indisputably means that the students shall be restrained from appearing at the final examination if there is shortage of percentage below what is prescribed. So, the occasion for detaining the students arises before the commencement and not after the commencement or in course of the examination. It is not possible to attribute any other meaning to the provisions having regard to the scheme thereof. Difficulties of the authorities are not germane and are irrelevant. In all fairness, a student ought to know the position about his attendance before he makes preparation for the examination and takes it Inaction or indifference of the authorities cannot alter the meaning of the provisions or their object.
The opposite parties have pleaded that in the past the position regarding attendance of the students was used to be notified in course of the examination. In fine, they seek to raise a practice followed by them for some time to the status of law. Factually their plea is unfounded and legally it is untenable. From the statement furnished by them as Annexure A/1, it would be seen that till the first semester examination of 1978-79, the position of the students used to be notified in due time, some days before the commencement of the examination. The deviation started from the second semester examination of 1978-79 and consistently since then the position of attendance was being notified after the commencement and in course of the examination. So, the practice is of recent origin and contrary to the requirement of Regn. 21. Inconvenience and difficulty have no place in the scheme of Regn, 21. A particular mode having been statutorily enjoined, deviation therefrom is impermissible and illegal and has to be deprecated. The requirement is wholesome in that the student ought to know whether he shall be detained or allowed to take the examination sufficiently ahead of its commencement. If he knows that he is detained, he should not unnecessarily prepare for the examination. If he knows that the parcentage secured by him is such as is condonable, he would take prompt steps for such condonation. To declare in course of the examination, that a student has secured less than the prescribed percentage and is, therefore, ineligible to take the examination, is highly disturbing and embarrassing to the student concerned. The inaction or indifference of the authorities to follow the rule breeds in his mind a sense of frustration and revolt, a tendency towards indiscipline. We fail to accept the plea of the opposite parties that the processing and tabulation could not be completed within the few days that would be available before the commencement of the examination. Propriety and the rule having enjoined a particular course of conduct, infringement thereof is illegal and untenable. The breach is due to inaction, indifference or lack of earnestness on the part of the opposite parries. In the matter of career of the students, we are reluctant to approve of the course followed.
The petitioners contend that the opposite parties knew of the position regarding their attendance at lectures or which they could have known with due diligence, and having not detained and restrained them from appearing at the final examination, allowing them to take the examination, the opposite parties are estopped from pleading shortage of requisite attendance at lectures. The petitioners plead equitable estoppel. They say that the opposite parties by their conduct of having allowed them to follow a course are not entitled to turn round and act to their detriment. They assert that they have not played any fraud on the opposite parties, nor did they feed any information which was mistaken. The thrust of their argument is that the opposite parties, being aware of or being in a position to be aware of the state of affairs, having allowed them to take the examination, it was impermissible to plead the bar of Regulation 21. We may now refer to a few authorities cited at the Bar. In the case of Board of High School and Intermediate Education, U. P. v. Kumari Chittra Srivastava, AIR 1970 SC 1039, the result of Kumari Chittra was not declared by the Board on the ground that she had not secured the requisite percentage at lectures. The short point urged before the Supreme Court was denial of natural justice to the student before the decision to withhold the result was taken. The Supreme Court without deciding whether the Board could at all withhold the result directed the Board to provide an opportunity to Kumari Chittra.
In the case of Krishan v. Kurukshetra University, Kurukshetra, AIR 1976 SC 376, it was observed (at pp. 380-381):--
'... ... ... once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear.... ... ...'
The case of Shri Krishan was governed by Clause 2 of Ordinance X of the Kurukshetra University Calendar, Volume I. There was a clause to the effect that the certificate that the student attended a regular course of study would be provisional and could be withdrawn at any time before the examination if the student failed to attend the prescribed course of lectures before the end of his term. The Supreme Court observed that the certificate could be withdrawn if the student had failed to attend the prescribed course of lectures but this could be done only before the examination, and once the student was allowed to take the examination, the student could not be refused admission subsequently for an infirmity which should have been looked into before giving the applicant permission to appear. They observed that the student was not guilty of suggestion falsi or suppressio veri. If the University authorities had opportunity to find out the defect, they had no power to withdraw the candidature. Though, no doubt, the Ordinance contained a provision for withdrawal of the certificate and prohibited the University authorities from withdrawing the same after the commencement of the examination, the principle that can be culled from the decision is that if a student was allowed to adopt a course of conduct, the University authorities could not be permitted to take a stand which would be detrimental to the interest of the student. The provision regarding certificate may be a specific provision in that case. But stress was on the equitable principle which applied against the University authorities. An important observation made in that case may be taken note of (at p. 381).
'... ... ... This was not a case where on the undertaking given by a candidate for fulfilment of a specified condition a provisional admission was given by the University to appear at the examination which could be withdrawn at any moment on the non-fulfilment of the aforesaid condition. It this was the situation then the candidate himself would have contracted out of the statute which was for his benefit and the statute therefore, would not have stood in the way of the University authorities in cancelling the candidature of the appellant.'
Applying the principle to the facts of the present case, we hold that the candidates could have been detained before the commencement of the examination, but they having been allowed to take the examination could not be restrained nor can the provisions contained in Regn. 21 be utilised to their prejudice.
In the case of Smt. Geeta Mishra v. Utkal University, AIR 1971 Orissa 276, the question was if it was open to the University to question the marks shown in the mark-sheet to have been secured by the candidate if the candidate had already acted thereon. It was contended on behalf of the University that the case was one of sheer mistake and the University could act on the correct position. The observation made is worth extracting:--
'The estoppel arose not only from the active representation made on the basis of the mark list but also out of negligence on the part of the University.'
In the ease of Naba Kishore Gadapalla v. Utkal University, AIR 1978 Orissa 65, the University withheld the result of the petitioner on the ground that the student was not entitled to take the compartmental examination in Mathematics only as he had also failed in Chemistry in the previous examination. The University pleaded that the mark-sheet was erroneous. This Court, however, did not permit the University to alter the position which the candidate had taken by acting on the mark-sheet, erroneous though it was found to be. This Court observed (Para 4):--
'... .. .. Where, however, the mistake was within the knowledge of only one of the parties and the other on the basis of the representation acted and shifted his position to his prejudice, estoppel is certainly available. The University cannot be permitted to plead by disclosing facts within its special knowledge that the mark-sheet was erroneous and petitioner as a fact has secured only 44 marks and not 56 as disclosed contemporaneously by the University... ... ..'
A mandamus was issued to the University directing it to publish the result.
In the case of Purshottam Das Dulichand Zargar v. Board of Secondary Education, Wright Town, Jabatpur, AIR 1962 Madh Pra 3. the petitioner was allowed to take the practical examination but was subsequently informed by the Board of Secondary Education that be was debarred from appearing at the theory examination due to deficiency in attendance. On behalf of the Board it was alleged that as a matter of course students were allowed to appear at practical examination and the scrutiny of their application forms was made subsequently. In allowing the petitioner to appear at the practical examination, there was no condonation of deficiency in the attendance. The question was subsequently considered by the Board and the petitioner was informed that he was not eligible to take the theory examination. Dixit, C.J., speaking for the Division Bench said fat p. 6):--
'It is clear from Regulation 9 that a candidate cannot be allowed to sit for the examination unless the Secretary has satisfied himself that he has fulfilled all the requirements for admission to the examination. There is thus no justification for the practice, if any be such existing, of permitting candidates to take practical examination as a matter of course. Such a wrong practice cannot displace the legal effect of Regulation 9 which is that if a candidate has been allowed to appear in any subject in the examination, it must be taken that he has fulfilled all the requirements for admission to the examination... .. ... ... ...'
It was argued in that case that under the new regulations which governed the case, the power of the Chairman to condone the deficiency in attendance was limited up to a particular period and the deficiency in the applicant's attendance far exceeded the limit which could be condoned. In repelling the said submission, the Court observed (at p. 6):--
'... ... ... It is immaterial whether the applicant was governed by the new regulations or by the old ones. The fact that the applicant was allowed to appear for practical examination and was allotted a roll number must be taken as having the necessary implication that the deficiency in the petitioner's attendance was such which could be condoned and was condoned under the regulations which were applicable to him. Therefore, if the new regulations applied to him, then it must be taken that the deficiency in the applicant's attendance was such which waswithin the power of the Chairman to condone.' (Emphasis, ours)
The aforesaid observation squarely answers the contention raised by the opposite parties. Applying the reasoning, we hold that the facts being within the special knowledge of the opposite parties, by allowing the petitioners to take the examination and by not defaming or restraining them, the opposite parties conveyed to the petitioners by necessary implication that there was no deficiencyin attendance.In the case of Miss Sangeeta Srivastava v.Prof. U.N. Singh, AIR 1980 Delhi 27, aDivision Bench held that where the candidatewas not guilty of fraud or misrepresentation,the principle of equitable estoppel operatednotwithstanding the fact that the studentwho was admitted to the post-graduate classwas not eligible. In the case of Uma Shanker Misra v. Board of High School and Intermediate Education, U. P., Allahabad,AIR 1974 All 290, it was held that the principle of equitable estoppel was applicable when the result of the intermediate examination was sought to be cancelled on theplea of mistake.
Mr. Rath, the learned counsel for the opposite parties, relied upon the case of Haripada Das v. Utkal University, AIR 1978Orissa 68, In that case it was found(para 9) :--
'In the premises therefore his appearance in the third examination in one subject only was a deliberate attempt to defraud the University and flout the Statute. Plea of estoppel would not be open to him in these circumstances. ............'
That being the case, the authority is net as analogue and is distinguishable.
Mr. Rath further relied upon the case of Principal, Patna College, Patna v. Kalyan Srinivas Raman, AIR 1966 SC 707, where it was held (para 20):--
'...... where the question involved is one of interpreting a regulation framed by the Academic Council of a University, the High Court should ordinarily be reluctant to issue a writ of certiorari where it is plain that the regulation in question is capable of two constructions, and it would generally not be expedient for the High Court to reverse a decision of the educational authorities on the ground that the construction placed by the said authorities on the relevant regulation appears to the High Court less reasonable than the alternative construction which it is pleased to accept. .......'
No such question of interpreting a regulation capable of two constructions does arise in the facts of the present case. As we have already said, the provisions contained in Regn. 21 are simple and clear.
10. For. the reasons aforesaid, we holdthat the opposite parties were estopped fromdebarring, the petitioners from going throughthe entire examination. We, therefore, quashAnnexure-4, and direct the opposite partiesto hold the examination in regard to those papers which the petitioners were not allowed to take and after holding the examination, declare the results.
11. In the result, the writ application is allowed but in the facts and circumstances of the case there would be no order as to costs.
J.K. Mohanty, J. :--I agree.