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Pratima Das Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 1060 of 1974
Judge
Reported inAIR1975Ori155
ActsEvidence Act, 1872 - Sections 115
AppellantPratima Das
RespondentState of Orissa and ors.
Appellant AdvocateS.C. Mahapatra, Adv.
Respondent AdvocateAddl. Govt. Adv.
DispositionApplication allowed
Cases ReferredK. R. Shivadatta v. Government Medical College
Excerpt:
.....raised by the opposite parties in support of the order of cancellation cannot be permitted to stand as a bar against the petitioner continuing in the medical college......in the prescribed form for admission into the 1st year m. b. b. s. class of any of the three medical colleges of orissa during the 1974-75 session. the petitioner made an application and was assigned index no. 1448. she appeared at the entrance examination. on 21st of september, 1974, a list of successful candidates was published in the local newspapers. she was communicated in writing on 21st of september, 1974 (vide annexure 5), that she had been selected and was required to take admission in m. k. c. g. medical college at berhampur by 30th of september, 1974, failing which her name would be expunged from the selection list and she would not be entitled to take admission. on receipt of the communication, she procured the necessary documents as indicated in annexure 5, obtained.....
Judgment:

R.N. Misra, J.

1. This is an application for a writ of certiorari to quash the order dated 7-10-1974 (Annexure 7) issued by the Principal of the M. K. C. G. Medical College at Berhampur (opposite party No. 5) cancelling the admission of the petitioner into the 1st Year M. B. B. S. Class and for a writ of mandamus to allow the petitioner to continue as student of the 1st year M. B. B. S. Class of the said College on the footing that she has been validly selected as per the intimation given to her on 21st of September, 1974 under Annexure 5.

2. The petitioner passed the 1st year Degree (Science) Examination of the Utkal University with Physics, Chemistry and Biology as group subjects and during the 1974-75 session was studying in the 4th year B.Sc. Honours Class of the S. B. Women's College at Cuttack. In July, 1974, a notice was published calling upon eligible candidates to submit applications in the prescribed form for admission into the 1st year M. B. B. S. Class of any of the three Medical Colleges of Orissa during the 1974-75 session. The petitioner made an application and was assigned Index No. 1448. She appeared at the entrance examination. On 21st of September, 1974, a list of successful candidates was published in the local newspapers. She was communicated in writing on 21st of September, 1974 (Vide Annexure 5), that she had been selected and was required to take admission in M. K. C. G. Medical College at Berhampur by 30th of September, 1974, failing which her name would be expunged from the selection list and she would not be entitled to take admission. On receipt of the communication, she procured the necessary documents as indicated in Annexure 5, obtained transfer from the Wormen's College at the Utkal University to which that college was affiliated as she was now to join in the M. K. C. G. Medical College under the Berhampur University and finally took admission on 27-9-1974 and became a student of the 1st year M. B. B. S. Class of that College. She was obliged to make payments on obtaining transfer from the College at Cuttack and in obtaining admission into the Medical College at Berhampur. She also became a boarder in the hostel attached to the Medical College. Lectures started from 7th October, 1974 and she duly attended the same. On the 8th of October, 1974, in the afternoon, she came to learn that her admission had been cancelled and on the following day she received the communication to that effect under Annexure 7, which was to the following effect:

'The name of Smt. Pratima Das, Roll No. 39, 1st year M. B. B. S. class who took admission on 27-9-1974 is hereby removed from the' College Rolls from the date of issue of this notice as she was selected by mistake due to error in decoding. Her admission was cancelled as per proceedings of the Selection Board meeting held on 2-10-1974.'

She challenges this cancellation as opposed to rules of natural justice, being an act without authority and raises the plea of estoppel so far as the opposite parties are concerned.

3. The selection for admission into the three Medical Colleges of the State, namely, the S. C. N. Medical College at Cuttack, the V. S. S. Medical College at Burla and the M. K. C. G. Medical College at Berhampur, is done by one Selection Board consisting of the Principals of the three Colleges being opposite parties 3, 4 and 5. The Principal of the Medical College at Burla was the Convenor of the Selection Board for the year 1974-75. A counter affidavit on behalf of the opposite parties has been given by the said Principal. The procedure of holding the entrance examination has been described thus:--

'That after the applications were received and necessary scrutiny was made every applicant was given an Index Number and the said Index Number was communicated to the candidates. Thereafter, the applicants sat at the entrance examination in three different colleges. After the examination was over all the answer papers from the three different colleges were brought to the office of the Director of Health Services at Bhubaneswar. In the office of the Director of Health Services a code number was given to each of the papers and the portion containing the Index Number was torn away and kept in the office. The answer papers with the Code number and without the Index Number were sent to the office of the Convener at Burla. The papers were examined at Burla and marks were awarded and allthe answer papers were again sent back to the office of the Director of Health Services. The Director of Health Services, Orissa, decoded the list and sent the list consisting of marks to the Selection Board. The Selection Board in accordance with the mark list made the selection. The deponent respectfully submits that while decoding there was an error in case of the petitioner as a result of which the selection Board selected her for admission and she was provisionally admitted into the M. K. C. G. Medical College, Berhampur.

That soon after the torn piece of Index Number which was preserved in the office of the Director of Health was also sent to the, Convener and while affixing these torn pieces to the answer papers it was found that the petitioner having Index Number 1448 has actually obtained 25 marks. The last student who has been selected by the Selection Board has got 33.5. Therefore, by no stretch of imagination the petitioner could be selected for admission. Having found out the mistake in question, the selection board advised to cancel the admission which was provisionally given to the petitioner.'

4. Mr. Mohapatra for the petitioner contends that even if the plea of mistake as raised in the counter affidavit is correct, the mistake was confined to one side and was not mutual. The petitioner had the requisite qualification for admission into the Medical College as she satisfies the requirements of the Statutes prescribing the minimum requisite qualification for admission into the Medical Course. As the seats in the Medical College are limited and there are more applications than seats, the entrance examination has been prescribed to make the selection. The petitioner had taken the examination and was expecting to be selected. When the order of selection was duly communicated to her, she discontinued her studies in the 4th year Honours Class of the S. B. Women's College at Cuttack and took transfer from that college as also migration from the Utkal University and rushed to Berhampur for taking admission. She made all the payments prescribed, produced all the papers required and was admitted into the College and thus duly became a student of the Berhampur University. In this process about two months have been lost. A huge amount of money has been spent. There is no possibility for the petitioner to go back as a student of the Women's College at this point of time and even if she is re-admitted after spending all the money necessary, she runs the chance of falling short of prescribed attendance and on account of the dislocation of studies, she apprehends that she might fare badly in her Honours papers. According to Mr. Mohapatra, on the representation of the opposite parties, the petitioner has changed her position to her prejudice in such a way that it is difficult for her to be restored to the status quo ante. In that view of the matter, the opposite parties must be taken as estopped from disputing the petitioner's selection.

Reliance is placed by Mr. Mohapatra on a number of decisions in support of the plea of estoppel. In the case of Smt. Gita Mishra v. Utkal University, ILR (1971) Cut 242 = (AIR 1971 Ori 276) the Utkal University had declared the petitioner to have passed the Final Examination of the 1st year Degree (Arts) held in April 1970 and a provisional certificate was also issued to her. She applied for admission into 2nd Year Degree Class and was duly communicated by the Principal of the Women's College that she should take admission by 21st of July, 1970. In the meantime, the petitioner received an intimation that no seat was available to her in the 2nd Year Degree Class as the result of her 1st Year Degree Examination having been cancelled by the University. Dealing with the plea of estoppel, this court stated:--

'The next question for consideration is whether opposite parties Nos. 1 to 3 are estopped from questioning the success of the petitioner in English even assuming that the reference to the Board was contrary to the rules and the Board had no power to award the pass marks. The principle of estoppel is a rule of evidence and is embodied in Section 115 of the Indian Evidence Act. It runs thus:--

'When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.

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, opposite-parties Nos. 1 to 3 cannot be allowed to deny the truth of the fact that the petitioner secured pass marks 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 animus to 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 is Sarat Chunder Dey v. Gopal Chunder Laha, (19 IA 203) it was observed thus:

'A person who, by his declaration, act, or omission, had caused another to believea 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 laying 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 marks in English being 30.

The estoppel arose not only from the active representation made on the basis of mark list but also out of negligence on the part of the University.'

It is true that the facts of the above case are somewhat different, but the principle indicated therein, in our view, has application.

In the case of Registrar v. Sundara, AIR 1956 Mad 309, a bench of the Madras High Court was examining a plea of estoppel. The petitioner in that case had taken the Secondary School Leaving Certificate Examination held by the Board of Secondary Education, Government of Madras, in March, 1952. In due course, the S. S. L. C. Book was despatched to him with the marks obtained by him at the public examination entered in it with a rubber stamp certificate running to the following effect:

'Certificate completed.

Eligible for admission to University course of studies, Andhra, Madras or Annamalai Universities.'

On the strength of the certificate, the petitioner sought and obtained admission to the Intermediate class of the college course of the Madras University in a college at Madurai. In March, 1953, he sat for the examination held by the College at the end of the 1st year of the Intermediate course and on 7th of April, 1953, he was promoted to the Senior Intermediate Class. While he was studying in that class, some time in December, 1953, he was served with a letter from the principal of the college to the effect that in the list of S. S. L. C. holders of Madras, 1952, published in the State Gazette, the name of the petitioner was not found and on further verification it transpired that the Board of Secondary Education had cancelled the certificate of eligibility. Therefore, the petitioner's name was struck off the rolls of the college. The court accepted the plea of estoppel and held that the University did hold out that the endorsement on the certificate was prima facie proof of declaration of eligibility of the candidate concerned. It is on the strength of the endorsement that thePrincipal could proceed to make admissions. The case was one of legal or equitable estoppel which satisfied practically almost all the conditions embodied in Section 115 of the Evidence Act. A mandamus was, therefore, ordered to issue to the University of Madras and to the Principal of the College to forbear from preventing the petitioner to complete his Intermediate course and appear for the Intermediate examination in due course.

In the case of K. R. Shivadatta v. Government Medical College, AIR 1972 Mys 135 the court was required to examine almost a case of this type. The petitioner there after passing the Pre-Univer.sity Examination of the Mysore University held in March-April, 1971, asked for admission into the Pre-Professional Course leading to M. B. B. S. in one of the Medical colleges in the State. He claimed one of the seats reserved for political sufferers under the appropriate rules. His claim for the reserved seat was admitted by the Selection Committee and the petitioner was duly intimated that he had been provisionally selected for admission. The petitioner was directed to join the college on or before a prescribed date. The petitioner had then joined the 1st Year B.Sc. Degree course in a College of Mysore. On receipt of the intimation, he obtained his discharge from the College after paying the full-term fee and on the same day he paid the requisite fee and obtained admission in the Medical College. Three days thereafter he was communicated cancellation of admission by the selection Committee on the ground that the marks obtained by the petitioner in the qualifying subjects were less than of one who had been left out of consideration. Accordingly the other candidate was given the seat and the petitioner's name was transferred to the waiting list for the political sufferers category. Thereupon, he approached the High Court. The Court repelled the contention that the provision of the General Clauses Act that one who makes a selection can unmake it did apply and held that the Selection Committee after having made the selection became functus offitcio. It had no power to cancel a selection. We are of the view that this principle has also equal application to the case in hand. We have not been shown any rules or instructions which authorise cancellation of a selection.

5. Undoubtedly the petitioner has changed her position substantially to her prejudice on the representation of the Selection Board and it would now be impossible to restore the status quo. Even if the heavy financial burden which has come to her on account of sheer negligence of the selection Board is kept out of consideration, it is not possible for the petitioner to go back to her' old college and pursue the course of studies from which she had withdrawn half-way. We would agree with learned Additional Government Advocate that if there had been a statutory prescription in regard to admissioninto the Medical College and the petitioner was wanting any of these requirements, there might have been some force in his submission that estoppel may not operate. Admittedly, petitioner has all the qualifications as laid down by the University. Examination has been prescribed for making a selection because there are more candidates than seats. In such a situation, there is no bar to attract the plea of estoppel. We are satisfied that the principle of estoppel directly applies and the defence raised by the opposite parties in support of the order of cancellation cannot be permitted to stand as a bar against the petitioner continuing in the Medical college. It is surprising that due care and attention were not bestowed in the matter of selection and such a mistake crept in. We have to hold that it is an act of sheer negligence which has led to such an unfortunate situation. The scheme evolved for the process of selection has been frustrated, yet we cannot in the facts of the case refuse relief to the petitioner.

6. We would accordingly allow the application, quash the impugned order of cancellation by issue of a writ of certiorari and direct issue of a writ of mandamus to the opposite parties to refrain from interfering with the petitioner's continuing as a student in the 1st Year M. B. B. S. Class of the M. K. C. G. Medical College at Berhampur. The opposite parties shall not act upon the order of cancellation and are directed to give effect to the order of the Selection Board on the basis of which the petitioner has been admitted into the college. The petitioner must have her costs of the proceeding. Hearing fee is assessed at rupees one hundred.

Mohanti, J.

7. I agree.


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