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Miss Nirupama Mohanty Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J. Cs. Nos. 2246 of 1975 and 74 of 1976
Judge
Reported inAIR1977Ori128a
ActsConstitution of India - Article 226; Evidence Act, 1872 - Sections 115
AppellantMiss Nirupama Mohanty
RespondentState of Orissa and ors.
Appellant AdvocateS. Misra, Adv. No. 1
Respondent AdvocateGovt. Adv., ;S.C. Mohapatra and ;A.K. Patnaik, Advs.
DispositionPetition allowed
Cases ReferredMetcalfe v. Cox
Excerpt:
.....at all, she could have taken the other examinations in the supplementary chance, but she was deprived of it in view of the declaration of the results by the faculty resolution......of homoeopathic medicine and the orissa state medical faculty of homoeopathy from implementing the faculty resolution of november, 1975 (annexure 5), canceling the results. in the second application, petitioner has asked for a direction to the very same opposite parties as also the registrar of orissa state board of homoeopathic medicine and the principal-cum-superintendent of the government homoeopathic medical college and hospital at bhubaneswar to allow her to undergo housemanship training unaffectedby annexure 5 of the earlier writ application.2. under the orissa homoeopathic act, the orissa state board of homoeopathic medicine has been set up. in may, 1974, the act was amended authorising government to vest the powers of the board in the president alone and on 17-5-1974, government.....
Judgment:

R.N. Misra, J.

1. Both these writ applications are by the same petitioner. In the first case, she has asked for a writ of mandamus restraining the State Government, the Orissa State Board of Homoeopathic Medicine and the Orissa State Medical Faculty of Homoeopathy from implementing the Faculty Resolution of November, 1975 (Annexure 5), canceling the results. In the second application, petitioner has asked for a direction to the very same opposite parties as also the Registrar of Orissa State Board of Homoeopathic Medicine and the Principal-Cum-Superintendent of the Government Homoeopathic Medical College and Hospital at Bhubaneswar to allow her to undergo housemanship training unaffectedby Annexure 5 of the earlier writ application.

2. Under the Orissa Homoeopathic Act, the Orissa State Board of Homoeopathic Medicine has been set up. In May, 1974, the Act was amended authorising Government to vest the powers of the Board in the President alone and on 17-5-1974, Government appointed Sri Chintamoni Mohapatra as the President of the Board and authorised him to exercise all the powers of the Board. The Government Homoeopathic Medical College at Bhubaneswar is affiliated to the Homoeopathic Board which conducts examinations and awards Degrees and Diplomas. Petitioner took admission in the said College at Bhubaneswar for the 4 year D. H. M. S. Course in 1969 and she was one of the first batch of students to be admitted for the course in the College, The final examination was due in 1973. The said examination was, however, not held when due by the Board and petitioner and others studying with her were obliged to take the examination in the year 1974 along with the batch of students who got admitted in 1970. Results were published in November, 1974, and petitioner was not shown to have come out successful. Regulations framed under Section 53 of the Homoeopathic Act provide for the setting up of the Medical Faculty of Homoeopathy and under the Regulations in cases of extreme hardship, the Faculty (which is responsible for the holding of examinations) has power to allow grace marks not exceeding twenty per cent of the total marks on the recommendation of the Examination Sub-Committee. As the result of the 1969 batch of students was bad, petitioner and several others who had not been successful represented that they had already lost one year; on account of lack of facilities for proper teaching and being the first batch of students they had suffered a lot of hardship; the discontinuance of one year of regular study was a set back in their continuous preparation for their examination et cetera. In January, 1975, the President moved Government to clarify if the Faculty could consider the result afresh and Government wrote back saying :--

'... ... ... ... I am directed to say thatthe Faculty is constituted by the Homoeopathic Board with the approval of Government and the Board is the authority to empower the Faculty with certain powers. As the regulations issued by the Orissa State Board of Homoeopathic Medicine are clear on the subject, the reference to Government to give a ruling if the Faculty can reconsider the results already declared is not warranted as there is no provision in the regulations for issue of any such direction.'

In the meantime, the Examination Sub-Committee recommended for addition of grace marks under the appropriate regulation and on 25-6-1975, the Faculty with the President of the Board as its Chairman approved the results on the basis of addition of grace marks and the Secretary of the Board declared the results of several students including the petitioner. Petitioner whose roll number was 211 was declared to have passed, in all, four subjects excepting Gynaecology and Obstetrics. Petitioner took the supplementary examination in the subject wherein she had failed in August, 1975, and on 23-11-1975, petitioner whose roll number was 66 was declared to have passed in the said subject, petitioner thereafter wanted to undertake the housemanship training but as in the meantime the republication of the results had been cancelled, she was not admitted by the Principal of the College for housemanship training. In the first case by an interim order dated 4-12-1975 the operation of the resolution cancelling her result was stayed and in the second case, petitioner was permitted to be admitted into the housemanship training. By now; the petitioner has already completed her training of six months and has obtained the requisite certificate.

After the results had been declared on 25-6-1975, the President of the Board wrote to Government asking for approval of the resolution of the Faculty dated 25-6-1975 and on 22-9-1975, Government informed the President to the following effect (vide Annexure 3):--

'Sub:-- Seeking Government approval of the resolution of the Faculty meeting held on 25-6-1975 regarding review of the results after publication.

Ref:-- Your Letter No. 2319 dated 1-9-1975.

Sir,

I am directed to say that in view ofwhat has been stated in the Government letters No 1128/H dated 13-1-1975, No. 1632/H, dated 10-6-1975. No. 22231/H, dated 2-8-1975 and No. 25127/H dated 25-8-1975 to your address on the above subject, it is considered that the above resolution is not required to be cancelled by the Government.'

On 11-11-1975, Government turned down the proposal for amendment of certain Regulations including one for conferring power to review results and informed the President to the following effect:--

'I am directed to say that according to the Orissa Homoeopathic Act, 1956, the State Board of Homoeopathic Medicine has no power to review the results of any examination conducted by it after publication of the results thereof.

As the matter has been inordinately delayed, the Board may therefore please take necessary action immediately and action taken be reported to Government by 22-11-1975 positively.'

In view of the aforesaid letter, the Faculty passed the following resolution on 21-11-1975 :--

'Reconsidered the resolution No. 2 of the last meeting of the Faculty held on 25-6-1975 where the result of the candidates of 1969-70 batch was reviewed in the circumstances noted in the said resolution and the result was always subject to the Government approval. The said resolution of the Faculty has not been approved by., the Government and they have further intimated that a review of the result after once it is published is beyond the jurisdiction of the Faculty or the Board. In the circumstances, the Faculty feels that as Government do not approve this particular result as required under Regulations 20 and 21, the same shall stand null and void.

Let a copy of the same be forwarded to the Principals also.'

It is this resolution of the Faculty which is assailed in the writ application.

3. Two counter affidavits have been filed -- one on behalf of the State of Orissa and the other on behalf of opposite parties 2 to 4. Government have taken the stand that they are not necessary party to the dispute and should not have been impleaded. In a dispute relating to the constitution of the Homoeopathic Board, this Court in its decision reported in ILR (1972) Cut 1419, (Mathesh Chandra Satapathy v. State of Orissa) declared the constitution of the State Homoeopathic Board to be invalid and as the powers of the Board are not vested In the President, no examination could be conducted in 1973. When Government were requested to decide as to whether the results of the 1974 examination could be reviewed, Government informed the Board that the Faculty was constituted by the Board with the approval of Gov-ernment and the Board was the authority to empower the Faculty with certain powers. As the regulations issued by the Board were clear, reference to Government was unwarranted. The Faculty in its meeting held on 25-6-1975 after reviewing the cases of failed candidates allowed a maximum grace of twenty per cent of the marks in each subject and by allowing such grace marks declared the petitioner to have passed in four subjects out of five. The Faculty did this in anticipation of amendment of Regulation 35 by Government. The President of the Faculty suggested to Government that a new clause be added in the Regulation to authorise review. Government did not accept the proposal, but instead of awaiting final decision of the Government for the proposed amendment to Regulation 35, the Board reconsidered the results of the failed candidates and declared the petitioner to have passed in the four subjects as stated above. The Faculty having recalled its resolution declaring the results, Government had nothing to do in the matter.

4. The other opposite parties in their joint counter affidavit through the Secretary of the Board (opposite party No. 4) have taken the stand that the Faculty was not entitled to publish the results as the appropriate regulation had been amended in July, 1974 and in place of the Faculty, the Board had been substituted as the competent authority for declaration of the results. In para. 29 of the counter affidavit, it has been stated:--

'That as regards the statement in paragraph 9 of the writ application, it is submitted as follows:--

(a) ............

(b) ............

(c) ............

(d) On account of approaches by the candidates, the Minister of Health invited the President to have a discussion with him on the subject. The President went for the proposed discussion. He found that many of the unsuccessful candidates were with the Minister. However, there being no secrecy in the discussion, the President discussed the matter. In course of discussion the Minister declared that the President had ample powers to reopen the case and to revise their earlier decision to give adequate relief to the unsuccessful candidates and this he declared, in presence of so many unsuccessful candidates who were agitating for their success and were in the Minister's residential quarters.

(e) Under the aforesaid background, the matter was placed before the Faculty in its meeting held on 25-6-1975. The Faculty passed the following resolution;

The discussion on the examination results of the unsuccessful candidates continued and the resolution passed in as follows:--

Whereas the first batch of students of the Homoeopathic College who failed in their examination made a representation to further consider their cases in view of the abnormal situation they had to face and whereas earlier the Faculty doubted their power to reopen the case of the failed candidates and sought for a clarification of the Government who refused to express their opinion and whereas the Honourable Minister of Health reportedly declared to the President in presence of the failed candidates who were agitating that the President has full powers to reopen and reconsider the case and give relief, the Faculty on the authority of the declaration of the Health Minister and in anticipation to Government sanction for amending the regulations providing for review of the result of the examinations on the representation by unsuccessful candidates and subject to such sanction, considers that they can allow a maximum grace of 20 per cent of the aggregate marks to the unsuccessful candidates in each subject and adjust the same in papers which fall short of pass marks to allow them a mere pass. (f) ............'

Declaration of the results by the Faculty was beyond its jurisdiction and, therefore, petitioner cannot claim, any right on the basis of such a declaration.

5. Having read the papers of this case and on hearing learned counsel for parties, we have the least doubt in our mind that a state of confusion prevailed in the affairs of the Board of Homoeopathic Medicine during the relevant period. There is absolutely no justification for the Board to take the stand that the action of the Faculty in passing the results on a reconsideration was the outcome of any pressure imposed by the Minister of Health. An experienced and retired District and Sessions Judge is the President of the Board and all the powers of the Board have been vested by Government in 'him. There was no scope for the Board to feel confused about its own powers nor could there be any occasion for the Board to be pressurized by any outside agency. The resolution of the Facultydated 25-6-1975 was passed with President of the Board in the chair as he was also the President of the Faculty. It is wholly inappropriate for the Board to contend that the President of the Board is not bound by a resolution of the Faculty of which the President of the Board is also President. We agree that there are cases where a distinction has to be drawn between the actions of one body and another, but where the single-man Board is the President of the Faculty and with his concurrence the Faculty resolution is adopted, we are not prepared to draw the distinction canvassed before us at the Bar that there are two statutory bodies and the decision of the Faculty cannot be taken to have been ratified by the Board. We must, therefore, proceed on the footing that the declaration of the results on 25-6-1975 was indeed an action of the Board as such also.

6. Admittedly under the Regulations, Government have power to 'annul any resolution of the Faculty. Indisputably, the resolution dated 25-6-1975 has not been cancelled by Government in exercise of statutory powers under the Regulations. Government in their counter affidavit have clearly indicated that they had nothing to do with the cancellation of the resolution of 25-6-1575 by the Faculty in its subsequent meeting of November, 1975. When they were asked to change the Regulations in order that a specific power of review may be conferred on the Faculty, Government did not agree and left the matter to the Board with a direction that the situation may be attended to appropriately without delay, It is on that basis that Government have taken the stand in the writ application that they are not a necessary party, because the entire dispute is within the realm of the Board and the Faculty, which is admittedly a creature of the Board.

7. There was considerable amount of dispute as to whether the resolution dated 25-6-1975 really declared any results of examination. The State Government in para. 8 of their counter affidavit stated ;--

'... ... ... ... Instead of awaiting final decision of Government on the proposed amendment to Regulation No. 35, the Faculty reconsidered the results of the failed students and declared the petitioner to have passed in four subjects.

Since the resolution dated 25-6-1975 of the State Faculty of Homoeopathic Medicine declaring the petitioner to have passed in four subjects by giving grace markshas been subsequently cancelled by them in their resolution dated 21-11-1975, the petitioner cannot be treated to have passed in the said four subjects.'

This stand of the State Government puts the question beyond the region of doubt or dispute that the resolution in question actually declared the results of the candidates concerned. A reference to the resolution also makes that position clear. The various authorities associated with the Faculty and the Board took the resolution to be a declaration of the results and freely acted upon it. In the circumstances, we are not prepared to accept the stand of the Board that the resolution did not declare the results.

8. The next question for consideration is whether the resolution has been validly recalled by the subsequent resolution of the Faculty dated 21-11-1975. We have already extracted the entire text of the resolution. The justifications for the resolution as given therein are (i) the resolution has not been approved by the State Government; and (ii) Government (have intimated that a review of the results after the same were published is beyond the jurisdiction of the Faculty or the Board. We have already indicated that a resolution of the Faculty does not require approval of the Government to be operative though Government have power to annul ,any resolution of the Faculty. Learned Government Advocate for the State Government or Mr. Mohapatra for the Board could not indicate to us any positive provision to the effect that the Faculty or the Board has no power to review the results of an examination once the same had been declared. In the absence of any clear provision to the contrary, we are not prepared to accept the contention advanced by the opposite parties that the resolution dated 25th of June, 1975 of the Faculty was one without jurisdiction. Undoubtedly the results of an examination are not to be interfered with lightly, but a situation may arise where exceptional circumstances may warrant a reconsideration. In the absence of any prohibition and in view of what Government once thought of the situation as indicated in the counter affidavit of the Board, we do not think it would be appropriate to conclude, particularly in the absence of a clear provision in the Act or the Regulations that the Faculty or the Board, as may be competent, is not entitled to review the results of an examination once declaration has been made thereof

9. Petitioner has contended that the Faculty and the Board are estopped from disputing petitioner's success in terms of the resolution dated 25-6-1975. As already indicated, petitioner was due to take the examination in 1973. For no fault of her and on account of difficulties of the Board itself, the examination was held' one year after it was due, Admittedly, petitioner belonged to the first batch of regular students and the plea advanced in the writ application that there was no appropriate study and there was disruption thereof on account of delay in holding of the examination has not been disputed seriously. The Faculty as also the Board bona fide felt it necessary to review the position and after due deliberation, the Faculty with the President of the Board presiding declared the results not only of the petitioner but several others -as well. On the basis of the results as declared in the resolution of 25-6-1975, several candidates who turned out to be successful took admission for housemanship training and some have in the meantime turned out duly qualified; the State Government provided the appropriate expenses for the housemanship training; petitioner took the supplementary examination in the one subject where she had failed and cleared the paper in the August examination of 1975. If she had been told in good time that she had not passed at all, she could have taken the other examinations in the supplementary chance, but she was deprived of it in view of the declaration of the results by the Faculty resolution. Petitioner has subsequently undertaken housemanship training and by now she has also been duly qualified.

10. As already indicated by us, thesituation was quite chaotic and in confusion and not knowing what exactly the true position about the matter was, different decisions of contradictory nature have been taken by the Board. We have, however, no doubt at all in our mind that the petitioner is not a party to any of these aspects and, therefore, she should not be made to suffer. Time has rolled by and by now petitioner has already lost three valuable years of her life in the preparatory process and now to hold that petitioner has not passed the examination and, therefore, she should go back to the stage of 1973, would indeed be very much prejudicial to her and a situation would arise where she would find herself completely lost. It would bring a set back in her career which she may not be ableto revive from. That on the representation of the Board she has changed her position to her prejudice is manifest from the events indicated above and we do not think there is force in the contention of Mr. Mohapatra for the Board that in the facts of the case, the rule of estoppel would not apply. The series of decisions laying down the law of estoppel by the Supreme Court in recent years do support petitioner's stand. We may also refer to a decision of the House of Lords in the case of Metcalfe v. Cox, (1895) AC 328 (HL) which is a case to a considerable extent similar to the facts before us.

11. In the circumstances, we hold that the Faculty resolution dated 25-6-1975 declaring the petitioner to have passed the examination must be allowed to stand and the petitioner must be treated to have duly quailed for the D. H. M. S. Course. The application is allowed and a writ of mandamus shall issue directing opposite parties to treat the petitioner to have passed the examination held in 1974 as indicated above. If she has completed her housemanship training course, she must be dealt with as required by law. Ordinarily we, would not have awarded costs- against the Board, but the conduct of the Board seems to be unjust and we see no justification for relieving the Board of the liability of costs. We accordingly direct that the writ application shall succeed with costs. Hearing fee is assessed at rupees one hundred.

12. In view of what we have stated above, it is not necessary to give any direction in O. J. C. No. 74 of 1976. It is accordingly permitted to be withdrawn as requested by counsel for the petitioner during hearing of the application, but without costs.

Das, J.

13. I agree.


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