1. Petitioner in each of these five writ applications appeared at the Annual B. A. Examination of the Utkal University of the year 1979 from the Nimapara College. The Utkal University has framed a set of hard case rules in terms of which if a candidate fails in any two subjects for a total of 15 marks or less in written papers, he could be made to pass in both the subjects in case the deficiency in each subject was five per cent or less. As indicated by a Bench of this Court in the case of Smt. Gita Mishra v. Utkal University ILR (1971) Cut 242 : (AIR 1971 Orissa 276) these Rules have been in vogue for many years and have been treated to be valid. The five petitioners had failed in English and Modern Indian Language. During the year in question instead of the Board of Examiners scrutinizing the cases of such candidates as the petitioners, the Tabulators were authorised to give effect to the hard case rules. On the basis of the addition of marks given by the Tabulators each of the petitioners was declared to have passed the Annual B. A. Examination. The Principal of the Nimapara College as agent of the University issued the certificates and mark-sheets. On the basis of such certificates each of the petitioners took further steps for securing seats for higher study and/or registering himself for employment. Within about a little more than two weeks from the date of publication of the results by a fresh notification each of the petitioners was declared to have failed. These writ applications have been filed challenging the subsequent notification that petitioners have failed to pass the Annual B. A. Examination.
2. Given below is a statement showing case-wise the marks actually added in respect of each of the petitioners and the total permissible addition:--
Case NumberMarks actually added
Total permissible limit
OJC 1077/7968148412OJC 1078/7988148412OJC 1079/791898412OJC 1080/7978158412OJC 1081/7996158412
Dr. Das on behalf of the petitioners in a common argument contends that under the Statutes it is the Board of Examiners who was to look into these cases and apply the hard case rules. In the year 1979, the work was not assigned to the Board of Examiners as required by the Statutes and the Tabulators were asked to do the job. Even if a mistake had occurred to the extent that more than five per cent marks have been added, since the results had been duly published and the petitioners had already taken further steps on the basis of the published results, the University authorities were estopped from recalling the publication and declaring the petitioners to have failed.
3. Two separate affidavits have been filed-- one by the Utkal University (Opposite Party No. 1) and the other by the Principal of the College from where petitioners took the examination. In the counter-affidavit, it has been conceded that though the Statute required that the Board of Examiners should have scrutinized the results for the purpose of application of the hard case rules, contrary to the statutory mandate in the year in question, the work has been handled by the Tabulators. The Controller of Examinations who has given the counter-affidavit in paragraph 18 thereof has pleaded:
'That the statement in paragraph 6 of the writ application is not correct. The matters relating to hard case rules are no more being sent to the Board of Conducting Examiners. This step has been taken by the University to expedite the publication of the results as the candidates were suffering a lot on account of delay in publication of their results. If the matter would have been sent to the Board of Conducting Examiners, there would not have been any scope for any mistake and the mistake would have been detected by competent examiners who are thorough in the statutory provisions. The matters not having been submitted to the Board of Conducting Examiners and the Tabulators themselves having made the mistake, this mistake has been reflected in the tabulation register and accordingly a mistaken result was published. The University would have no objection if the entire publication of the result is cancelled as the same has not been referred to the Board of Conducting Examiners. In that case the result of the petitioner would also be cancelled and the correct position would come in the subsequent notification. It is a correct submission by the petitioner that the Tabulators are unknown to the statute relating to publication of the results by the University............'
We are surprised by the stand taken by the University. If the law required that the matter had to be handled by the Board of Conducting Examiners and if the Tabulators were unknown to the statutes, it is beyond comprehension that a statutory authority like the University dealing with cases of thousands of students would take to a procedure not approved by law and when confronted with certain difficulties would come forward to plead that it had no objection to have the entire publication of results of one year to be cancelled. It is difficult for us to accede to such a stand as all those who passed in the year 1979 are not before us and to declare their results to have been cancelled at this stage might put them in a very embarrassing situation to their prejudice. The conceded position, however, remains that the Board of Conducting Examiners which is the prescribed authority did not scrutinize the answer papers and the work had been handled by Tabulators who were not authorised under the Statutes.
4. That the matters relating to the petitioners had not been handled by the prescribed authority, but the Tabulators had dealt with the same, was within the special knowledge of the University and was not known to the petitioners. The Tabulators while applying the hard case rules to the petitioners kept in view the fact that failure was in two subjects and the total deficiency was within the range of 15. They, however, overlooked the limitation that deficiency should be within the ambit of five per cent. The addition in the M.I.L. paper in every case and in the English paper in O.J.C. No. 1081 of 1979 has been beyond the permissible limit with reference to the five per cent limit.
5. The question for consideration now is as to whether the rule of estoppel is applicable against the University and in the facts and circumstances indicated the University should have been held to have been estopped from changing the declaration of petitioners' results as initially done. Whatever has been done in the matter of application of the hard case rules leading to the declaration of the initial result was within the knowledge of the University and petitioners cannot be held to have been aware of anything relating to it. The mistake, if any, was, therefore, not mutual but only within the knowledge of the University and its officers. Though the extent of change on the basis of representation may not be substantial, there is clear material that each of the petitioners had changed his position to some extent, Some of the petitioners had after obtaining their mark sheets applied for admission for higher study while others had registered themselves with the employment exchange in search of service. We shall not, therefore, be wrong in saying that on the basis of the representation made by the University to the petitioners, they have taken steps on the footing that they have become graduates of the Utkal University. The only other aspect to consider for the application of the rule of estoppel is whether by extending the rule, we cover the field of Statutes. The Hard Case Rules are not statutory and have been evolved as an administrative process to meet hard cases. A mistake in relation to the application of the rules, therefore, does not involve any statutory rule. As we have already indicated, of the three aspects relating to the application of the hard case rules, mistake was committed in respect of only one, namely the upper limit of five per cent had been lost sight of while addition was confined to total marks of 15 and to cases where failure was in two subjects. In our view, a situation of this type is clearly covered by the rule indicated by a Division Bench of this Court in the case of Naba Kishore Gadapalla v. Utkal University, AIR 1978 Orissa 65. In a later decision in the case of Haripada Das v. Utkal University, AIR 1978 Orissa 68, the learned Chief Justice while referring to the earlier case stated:--
'.........This again was not a case where the plea of estoppel against statute was accepted. The petitioner succeeded on the basis of commission and omission of the University. In para 4 of the judgment the court has said (at p. 67 of AIR):-- '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 had secured only 44 marks and not 56 as disclosed contemporaneously by the University'.'
We are inclined to think that on the facts of this case, the rule of estoppel has full application. The principle followed by the Allahabad High Court in the case of Anil Kumar Srivastava v. University of Allahabad, AIR 1973 All 442 is also applicable and estoppel in this case is not against statute. By its own conduct, the University having represented to the petitioners that they had passed and the petitioners having changed their position on the basis of such representation, the University is precluded by the rules of estoppel from acting otherwise in derogation to the representation made earlier. Mr. Mohapatra for the University emphasizes upon the feature that the time-lag between the two notifications was small. We are aware of the position that the cancellation came within about a fortnight. But that by itself does not take the matter out of the ambit of the application of the rules of estoppel particularly when even within that period. petitioners had taken steps on the basis of representation that they had passed. On the analysis indicated above, each of these writ applications must succeed and the initial notification holding that the petitioners had been successful at the Annual B. A. Examination of 1979 must be sustained and the impugned notification under Annexure-5 declaring each of the petitioners to have failed is quashed. As in our view, the action of the University was not mala fide, we do not award costs.
6. Before we part with these cases, we must again reiterate what we have been saying on several occasions. The University is an institution which must function appropriately in order that it may continue to serve the purpose for which it has been set up. To err is human, but there must be a limit to errors and a statutory public body like the University must conduct itself in such a way that confidence of the public in its activities may not be shaken and representations made by the University in the shape of its decisions and notifications should be foolproof so that people at large can act upon such representations. This can be possible if errors are ruled out to the point of the minimum. It pains us to find that the past conduct of the University spread over years has been far below the expectation and repeated warnings held out by Us have not brought about any positive change.
J.K. Mohanty, J.