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Naba Kishore Gadapalla Vs. the Utkal University - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 895 of 1976
Judge
Reported inAIR1978Ori65
ActsEvidence Act, 1872 - Sections 115
AppellantNaba Kishore Gadapalla
RespondentThe Utkal University
Appellant AdvocateS.C. Das and ;M.S. Panda, Advs.
Respondent AdvocateS.C. Mohapatra and ;Sankarsan Rath, Advs.
DispositionApplication allowed
Cases ReferredR. S. Maddanappa v. Chandramma
Excerpt:
.....secured 30 and in paper ii, 14. at the time of tabulation, it was found that internal assessment marks in chemistry were wanting. the candidate does not fail in the chemistry paper when his internal marks are added. moha-patra, on the other hand, relying on the two answer papers which have been produced contends that the petitioner had actually secured 44 marks and had thus failed. mohapatra to have reminded us during argument, that robert bruce had made seven attempts to get success, but that certainly is no example for the contention that if petitioner is asked to take a fresh examination, it would not prejudice him. ' this decision has been accepted as lay-ing down good law in r. the only plea raised by the university in support of its stand of withholding the results was that the..........absence of the internal assessment marks, it was not competent for the university to enhance the marks secured in the written papers out of a total of 160 in a proportionate manner to make the marks equal out of 200. the opposite party does not dispute petitioner's contention that petitioner as also the principal of the college from where the petitioner appeared were not aware of the escalation of marks in chemistry as pleaded by the university in the return to this court. there is absolutely no dispute that if the petitioner is deemed to have secured 56 marks in the written papers and 22 marks in internal assessment in the subject of chemistry, he must be taken to have passed. peti-tioner's stand is that everybody proceeded on the footing that the petitioner had secured 56 marks in.....
Judgment:

R.N. Misra, J.

1. Petitioner took the B. Sc. Hons. Examination, 1973, held by the Utkal University as a regular student from Angul Science College. He had Chemistry as his Honours subject and the other subjects of the combination were Mathematics and Physics. He failed to secure Honours in Chemistry and did not pass in Physios and Mathematics. He took the second examination of that year on cormpartmental basis in Physics and Mathematics but while passing in Physics still failed in Mathematics. He appeared at the annual B. Sc. Examination of 1974 on compartmental basis but again failed in Mathematics. As two consecutive chances were allow-ed for compartmental appearance, petitioner appeared in all the subjects in B. Sc. Examination of 1975 in the Pass Course only. He again failed in Mathematics and took compartmental examination in Mathematics in the Annual Examination of 1976. The authorities of the University withheld the results of the petitioner on the ground . that he failed in Chemistry too in the Annual B. Sc. Examination of 1975 and even if he passed in Mathematics on compartmental basis, he should not be declared to have passed the B. Sc. Examination. Petitioner has filed this application for a writ of mandamus to the University to publish petitioner's results.

2. In the counter-affidavit given on behalf of the opposite party, the Controller of Examinations has pleaded that the petitioner had actually failed in Chemistry in the Annual Examination of 1975. It is stated that in Paper I, petitioner had secured 30 and in Paper II, 14. At the time of tabulation, it was found that Internal Assessment Marks in Chemistry were wanting. Under the Regulations, the two written papers in Chemistry carry 160 marks and 40 marks are earmarked for Internal Assessment. As Internal Assessment Marks were not available, the Tabulators enhanced the marks of 30 and 14 secured by the petitioner in the written papers in the Chemistry subject from 30 and 14 to 38 and 18 treating the full marks as 200. There is no dispute that in respect of an Honours student, the Internal Assessment Marks are not sent to the University. There is also no dispute that petitioner had secured 22 marks in Internal Assessment Examinations in Chemistry. According to the opposite .party, unless petitioner secured 48 marks out of 160 in the two written papers of Chemistry, he cannot pass. It is claimed that as petitioner had actually secured 44 in the two papers of Chemistry, even if he is given benefit of 22 marks relating to the Internal Assessment, he cannot be declared to have passed in Chemistry in the Annual Examination of 1975. Petitioner was, therefore, obliged to take compartmental examination in Chemistry and Mathematics when he sat at the Annual Examination of 1976. The University is, therefore, justified in not declaring the petitioner to have passed the Examination.

3. For the B. Sc. pass examination, a candidate has to be examined in anythree of the subjects indicated in Regulation 22 (1). In the Pass Course, there are two theory papers and a practical paper in all the subjects indicated ex-cepting Mathematics. In order to pass in a subject in the Pass Course for the Degree Examination, a collegiate candidate must obtain (except in Mathematics) thirty per cent of the maximum marks in the theory papers subject to a minimum of thirty per cent of the University Examination Marks and thirty per cent of the College Internal Assessment Marks and forty per cent of the maximum marks in the practical papers.

Admittedly, the University issued a mark-sheet to the petitioner indicating the result of the Annual B. Sc. Examination of 1975 (Annexure 2) which was to the following effect :--

'To

Naba Kishore Gadapalla.

The following marks were awarded to him/her at the B. Sc. Examination of April, 1975.

Roll No. 5586

SubjectMarks awardedMaximum Marks

Mathematics58 + 48106300PhysicsTheo.74 + 24 Pra.40138300ChemistryTheo.56 Pra.4096300

English. Comp.896

Total 346900

Mr. Mohapatra for the University agrees that the University was duty-bound to collect the Internal Assessment Marks of the petitioner in Chemistry when at the 1975 Examination, petitioner appeared for the B. Sc. Pass Course. It is conceded that in the absence of the Internal Assessment Marks, it was not competent for the University to enhance the marks secured in the written papers out of a total of 160 in a proportionate manner to make the marks equal out of 200. The opposite party does not dispute petitioner's contention that petitioner as also the Principal of the College from where the petitioner appeared were not aware of the escalation of marks in Chemistry as pleaded by the University in the return to this Court. There is absolutely no dispute that if the petitioner is deemed to have secured 56 marks in the written papers and 22 marks in Internal Assessment in the subject of Chemistry, he must be taken to have passed. Peti-tioner's stand is that everybody proceeded on the footing that the petitioner had secured 56 marks in the two written papers of Chemistry. It is supported by the letter of the Principal addressed to the University on 20th of July, 1976. This letter has in fact been produced by the opposite party and is marked as Annexure D. Therein, it has been stated :--

'..... The above candidate had appeared at the Annual B. Sc. Chemistry Hons. Examination, 1973, but got plucked. Again he appeared at the B. Sc. Examination in the year 1975 with Pass Course. As per University instructions, internal marks of Hons. subject are not sent to the University by the concerned college. So the internal marks in Chemistry of the above candidate have not yet been submitted by this College. The candidate does not fail in the Chemistry paper when his internal marks are added. So the above candidate has been allowed to appear in Compartmental in Mathematics only. The undertaking form given by the above candidate has been sent to your office vide this office letter No. 2619 at 12-6-76. The internal mark in Chemistry of the above candidate ia furnished below.

This is for your information and necessary action.

Chemistry ... 22/40.....'

Petitioner's assertion that everybody proceeded on the basis that petitioner's marks in the written papers in Chemistry were 56 is fortified by the Principal's letter and no direct denial by the opposite party. An additional feature to support this stand is that when the petitioner applied to sit at the Annual B. Sc. Examination of 1976 on compartmental basis and offered to appear in Mathematics only, the Principal as also the University accepted his request. Undoubtedly, both the Principal as also the University authorities must have examined the entitlement of the petitioner to take the examination. Mr. Mohapatra for the University concedes that the endorsement on the application form given by the petitioner for permission to sit at the Examination (Annexure C) has been made by the Principal following a check by him. A copy of the mark-sheet of 1975 issued by the Principal of Angul College has been given as Annexure B, Therein, as against Chemistry, it has been shown that the petitioner secured 38 plus 18 in the two written papers and a space has been left to indi-cate that internal Assessment Marks have not been noted.

There is no scope for dispute that the University authorities had represented to the petitioner as also to the Principal of the College that petitioner had secured pass marks in the written papers of Chemistry. It has not been disputed that the petitioner secured 22 marks in Internal Assessment out of 40 and had, therefore, passed. If credit of 22 marks be given to the petitioner, he having already secured 56 marks as noted in the mark-sheet, petitioner must be held to have passed in the Chemistry subject. Mr. Das for the petitioner in these circumstances contends that the University must be estopped from challenging the position that petitioner had secured 56 marks in the written papers. Mr. Moha-patra, on the other hand, relying on the two answer papers which have been produced contends that the petitioner had actually secured 44 marks and had thus failed. Since pro rata increase which has been given by the Tabulator is not permissible, there can be no estoppel and the University is still entitled to contend that the petitioner had actually secured 44 marks against 56 as shown in the 'mark-sheet.

4. If the petitioner had been told thathe was not entitled to sit at the B. Sc. Examination of 1976 only in Mathematics, he would have offered himself to be examined in Chemistry also. Mr. Mohapatra concedes that if the petitioner was to take the examination in two subjects on compartmental basis, he could not be permitted to sit at the examination in one subject. The mistake is entirely of the University and this mistake is grounded upon the mark-sheet supplied by the University to the College as also to the petitioner in respect of the 1975 Examination. The fact of escalation of marks in Chemistry was within the special knowledge of the University and was not known to the Principal of the College and the petitioner. If both sides had laboured under e mistake however bona fide or genuine it may be, the plea of estoppel may not have been available. 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 know-ledge 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. Mr, Mohapatra for the University contended that the petitioner has taken several opportunities to sit at the Examination and since the facts are known and petitioner has not actually passed, we should not proceed on the basis of estoppel but should require the petitioner to sit at a further examination and it would not be prejudicial to him. This contention of Mr. Mohapatra does not at all appeal to us. It is true, and we remember Mr. Mohapatra to have reminded us during argument, that Robert Bruce had made seven attempts to get success, but that certainly is no example for the contention that if petitioner is asked to take a fresh examination, it would not prejudice him. What petitioner could have done in April, 1976, he would now be required to do in 1978. If loss of two years would not be prejudicial to the petitioner, we cannot imagine what would be a greater loss. Life is short and ordinarily a part of it which is almost one-third is spent in the preparatory stage. If two more years are added to the preparatory stage, it would certainly be a great loss for which there may not be scope for compensation.

5. Mr. Das for the petitioner relied upon two decisions in support of the plea of estoppel. In the case of (Smt.) Gita Mishra v. Utkal Univeristy ILR (1971) Cut 242 : (AIR 1971 Orissa 276), this Court observed fat pp. 279, 280 of AIR) :--

'There can be no dispute that opposite parties Nos. 1 to 3 by their declaration in the mark-sheet that the petitioner secured 30 marks in English caused or permitted the petitioner to believe that she has passed in English. The last date for filling up the form for the Supplementary Examination was the 6th July, 1970. By that date she knew that she had passed in English and accordingly did not fill up the form for English. Thus, she acted upon the belief based upon the mark-sheet that she had passed in English. In terms of the Section (115 of the Evidence Act), opposite parties Nos. 1 to 3 cannot be allowed to deny the truth of the fact that the petitioner secured pass mark In English provided the representation was intentionally caused. Mr. Rath contended that what was done by the University was purely by mistake and not by fraud or any other animusto establish that it was intentional. The meaning of the word 'intentionally' as used in the section is no longer res Integra. In the leading authority on the point in Sarat Chunder Dey v. Gqpal Chunder Laha, ((1892) 19 Jnd App 203) it was observed thus :--

'A person who, by his declaration, act, or omission, had caused another to believe a thing to be true and to act upon that belief, must be held to have done so intentionally within the meaning of the statute, if a reasonable man would take the representation to be true, and believe it was meant that he should act upon it.' This decision has been accepted as lay-ing down good law in R. S. Maddanappa v. Chandramma (AIR 1965 SC 1812). The mark list given to the petitioner showed that she had secured pass marks in English. Any reasonable man would take this representation to be true and believe it was meant that he should act upon it. The representation was, therefore, intentionally made. All the ingredients of the section have, thus, been fulfilled and opposite parties Nos. 1 to 3 are estopped from challenging the petitioner's mark in English being 30.'

The 'decision of the Allahabad High Court in the case of Anil Kumar Srivas-tava v. University of Allahabad, AIR 1973 All 442, also takes the same view. We must accordingly hold that the opposite party is estopped from raising the plea that the petitioner had not secured pass marks in the two written papers of Chemistry. On the admitted case that petitioner had secured 22 marks in Internal Assessment, petitioner must now be held to have passed in Chemistry. The only plea raised by the University in support of its stand of withholding the results was that the petitioner had failed in another subject in which he had not appeared again.

6. Counsel for the University had taken three preliminary objections to which we may now advert to. According to him, this application should be rejected, inasmuch as it does not come within the purview of Article 226(1) of the Constitution. It is next contended that the application is directed against an interlocutory stage in the matter, inasmuch as the University has only withheld the petitioner's results and has not passed any final order. The last preliminary objection is that under the University Act, the Chancellor has powers to look intothe grievance and petitioner should not have come to Court.

None of the objections raised by Mr, Mohapatra for the University appears to be tenable Petitioner is entitled to publication of his results if he has passed in the Chemistry subject and University is not entitled to withhold the same. Admittedly, the results of all candidates who had taken the 1976 Annual Examination have been long published and the University has not published the results of the petitioner on the footing that he was not competent to sit at the examination in one subject. Withholding of the results of the examination on our finding that petitioner had already passed in the Chemistry subject is contrary to the Regulations and the University acts contrary to the Statute and the Re-gulations by withholding the petitioner's results. The application is not against an interlocutory proceeding or order, inasmuch as the results of the Examination have already been published so far as others are concerned and petitioner's re-sults have been withheld. The question of interlocutory stage does not arise in a matter of this type. It is true that the Chancellor is entitled to supervise the actions of the statutory authorities of the University and if approached he could have looked into the petitioner's case. That, however, is not a remedy prescribed by law, so far as the petitioner's case is concerned.

7. The application succeeds but without costs. We direct the University to publish the results within two weeks of communication of the order.

Das, J.

I agree.


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