M.C. Jain, J.
1. These two writ petitions raise common questions as they are based on identical facts, so they are being disposed of by this common order.
2. The petitioner appeared at the M. Com. (Pre.) examination held in the months of June & July, 1980 add their result was declared on August 29, 1980. They have failed on account of not haying obtained the minimum marks in Paper-I in the subject Advance Business Economics. The petitioner Shailendra Bhandari obtained 21 marks and the other petitioner Gyanmal Mehta obtained 22 marks. Shailendra Bhandari applied on 4-9-1980 and Gyanmal Mehta applied on 17-9-1980 for re-evaluation of their answer books of the said paper. The University took more than 7 months to declare the result of re-evaluation and their revised marks-sheet was, issued on 15-4-1981. On re-evaluation, the marks of the Shailendra Bhandari were increased from 21 to 32 and of Gyanmal Mehta from 22 to 41. Shri Shailendra (Bhandari obtained 71.2% in all whereas, Shri Gyanmal Mehta obtained 42% marks. The petitioners then sought admission in M. Com (Final) class, but they were refused admission. The petitioners by these writ petitions have sought relief that the University may be directed to grant admission to the petitioners and allow them to take examination of M. Com (Final) and then declare their result. In both the cases, by an interim order, the University was directed to give provisional admission to the petitioners in M. Com (Final) class. In Gyanmal Mehta's case, a further interim order was passed directing the University to allow him to appear at the M. Com (Final) examination. The petitioner Shailandra Bhandari too, has taken M. Com. (Final) examination, in view of the grant of the provisional admission to him in pursuance of the order of this Court.
3. It is common ground between, the parties that by the date of declaration of the re-revaluation, admissions in M. Com. (Final) were over, and according to the respondent University, there was a condition that in case admissions are over, by the time, the re-evaluation, result is declared, the applicants will not be given admission to the higher class. The University has submitted returns in both the writ petitions, in which the petitioner's claim has been refuted.
4. I have heard Mr. M. Mridul, learned Counsel for the petitioners and Mr. H.M. Parekh, learned Counsel for the University.
5. Mr. Parekh, at the out set raised two preliminary objections. He urged that the rules or conditions for re-evaluation are only administrative directions or instructions and they do not confer any legal right & unless there is infringement of any right, no writ of mandamus can be issued against the University. The rules or the conditions for the re-evaluation are not statutory in character and as such are in no way enforceable. Such being the nature of rules or the conditions, the petitioner cannot claim any right as such for the re-evaluation. Mr. Parekh, in support of his contention, placed reliance on a Bench decision of this Court, in Gir Raj Prasad Kaushik v. The State of Rajas than 1979 RLW 493 Mani Subrat Jain v. State of Haryana and Ors. : 2SCR361 Ramesh Prasad Singh v. State of Bihar and Ors. : (1978)ILLJ197SC and Smt. Swarnlata v. Union of India : (1979)ILLJ273SC .
6. Mr. Mridul, on the other hand submitted that the rules for re-evaluation have conferred a right on the examinees to get their answer books re-evaluated. Such rules may not be statutory in character but still when such rules have been framed by the University, the University cannot refuse re-evaluation on the ground that their nature is purely administrative or they are executive in character. If such rules are dis-regarded by the University the examinees can legitimately seek a prayer for their enforcement. Reliance was placed by Mr. Mridul on a decision of the Supreme Court in Union of India v. K.P. Joseph 1973 (1) SLR 910.
7. The first question that falls for consideration is as to what is the nature of the rules for re-revaluation In all academic matters, the advisory function is assigned to the academic council under Section 17 of the Jodhpur University Act (Act No. 17 of 1962). Section 17 provides that the Academic Council shall, subject to the provision of this Act, the statutes and the Ordinance, have the control and general supervision, and be responsible for the maintenance of standards of instruction, education and examination within the University and shall exercise such other powers and perform such other duties as may be conferred or imposed upon it by the Statutes It shall have the right to advise the Syndicate on ail academic matters. The Syndicate is the executive body of the University ar provided in Section 16 of the Act. Rules for re-evaluation were recommended by the Academic Council and were approved by the Syndicate. As regards rules 6, 7 and 9 printed over-leaf the application form for re-evaluation, it may be mentioned that the Academic Council recommended them on May 8, 1980 and the Syndicate approved them on September 12, 1980 vide Ex. Rule 3 Prior to these rules, there were different rules of which, I shall make reference, while dealing with the other contentions of the parties. Thus, from the provisions of Section 16 and 17 of the Act, it, would appear that the Syndicate being the executive body of the University is empowered to issue or frame rules for the re-evaluation, while exercising its executive power and function. The rules for re-evaluation therefore, are only executive or administrative in nature and are not statutory rules. It may also be stated that it is not in dispute between the parties that the rules are administrative in nature.
8. The question then arises whether such rules confer any right and a re justiciable and whether a writ of mandamus can issue for the enforcement of such rules. My answer to this question is in the affirmative, in Union of India's case (supra), a contention was advanced on behalf of the Union of India that the order being an administrative direction conferred no justiciable right upon the first respondent, which could be enforced in a Court by a writ or order in the nature of mandamus. It was submitted on behalf of the Union of India that the very foundation for the issue of a writ or an order in nature of mandamus is the existence of a legal right and as an administrative order could confer no justiciable right, the High Court was wrong in issuing the order to fix the pay of the first respondent in accordance with the order. Methew, J., speaking for the Court negatived the above contention and held that the order in question conferred upon the first respondent, the right to have his pay fixed in the manner specified in the order and that was part of the conditions of his service there was no reason why the Court should not enforce that right. His Lordship referred to the decisions in Santram Sharma v. State of Rajasthan : (1968)IILLJ830SC and Union of India v. Indo-Afghan Agencies Ltd. : 2SCR366 and also quoted a passage from Johan Chipman Gray on 'The Nature and Sources of the law.' His Lordship observed that generally speaking, as administrative order confers no justiciable right, but this rule like all other general rules, is subject to exceptions.
9. It is true that the general rule is what is laid down in the decision cited by M. Parekh. In Mani Svbrat's case (supra), their Lordship of the Supreme Court observed that it is elementry, though it is to be re-stated that no one can ask for a mandamus without a legal right. There must be a judicially enforceable right as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when a person is denied a legal right by some one who has a legal duty to do something or to abstain from doing something. In that case, the appellants asked for a mandamus directing the respondents No. 1 and 2 to appoint the appellants to the posts of Additional District Sessions Judge and they also sought an appropriate writ for quashing the order of respondents No. 1 and 2, whereby, the High Court was informed that the Government was not prepared to appoint the appellants as such. The High Court rejected the writ petition on the ground that the appellants had no locus standi as they had no right to be appointed on the posts. It is in the context of these facts, the above rule, relating to issue of a mandamus was laid down.
10. I need not discuss the other authorities cited by M. Parekh. It would all depend on the nature of the administrative order or direction, whether die same confers justiciable right or not. If the University has framed the rules for re-evaluation in exercise of its executive powers, then it is not open to the University to say that it can refuse re-evaluation at its sweet will or to say that it would not abide by the rules for re-evaluation Breach of rules for re-evaluation, whereby, any candidate or examinee suffers from any grievance, then the examinee or candidate cannot be denied the remedy to set the rules enforced. Thus, the rules regarding re-evaluation being exceptional in nature, in my opinion, are justiciable and the general rule relating to the issuance of writ of mandamus or order or direction in the nature of mandamus will have no application, as regards the rules for re-evaluation.
11. The second preliminary objection for Mr. Parekh is that the petitioners cannot be allowed to approbate or reprobate. He referred to the contents of the application (Anx. Rule 1). According to the notes 1 and 2 the candidates are required to read the rules carefully and they are further required to proceed treating the result as unchanged for all purposes until declaration of result of re-evaluation. It is further stated in the application form at the end, whereby, the applicants agree that the conditions set out for re-evaluation are acceptable to them and they shall abide by them Mr. Parekh referred to the condition No. 7 which reads as under:
If a result of re-evaluation a candidate becomes eligible for admission to higher class, (continuing course) he shall be so admitted provided the last date considering pending applications for admission to any course in the University as decided by Admission Board is not over. If this last date is over, lie shall be admitted to the higher class (continuing course) only next year.
According to the above condition, the candidate can be given admission to a higher class only when the last date for admission to that class is not over if the candidate becomes eligible for admission to a higher class as a result of re-evaluation. Having accepted the above condition, it is now not open to the petitioners to claim admission to the M. Com. (final) class and the petitioners are estopped from doing so. Reliance has been placed by Mr. Parekh on the decision of the Supreme Court in Br. G. Sarana v. University of Lucknow and Ors. : (1977)ILLJ68SC and Smt. Swam Lata's case (supra).
12. In the present cases, the above plea is untenable. The bar of condition No. 7 would not come in the way of the petitioners, if the University acts in an unreasonable and unfair manner. The candidates are required to submit the applications for re-evaluation within 21 days of the declaration of the result and it is expected that the re-evaluation shall be done by the University within a reasonable time. If the University does not declare the the result of re-evaluation within a reasonable time, the condition No. 7 can not be pressed into service by the University for refusing admission. The University cannot be given licence to prepetuate its wrong of neglect in discharging its duty to perform the re-evaluation. That would mean butting up premium on a dilatory conduct of the University. No explanation has been offered as to why seven months delay has been caused by the University in declaring the result of re-evaluation. It is implicit in condition No 7 that the last date of admission would be after lapse of some time beyond the last date for submission of the application for re-evaluation and it is expected that as far as possible, the result of re-evaluation may be declared before the admissions to the higher classes is over. A plea of estpopel or doctrine of approbate and reprobate will also not be available to the University in these cases, for the simple reason that the petitioners were not aware that the resolution of the Academic Council recommending conditions No. 6, 7 and 9 has been approved by the Syndicate. They were only given to understand that condition No. 7 has only been recommended by the Academic Council. It is true that the Syndicate approved the resolution on September 12, 1980, but Shri Shaileddra Bhandari had already submitted his application form on September 4, 1980 and Shri Gyanmal Mehta submitted his application form on September 17, 1980. But, it is not the case of the University that the petitioner Gyanmal Mehta was in the know that the Syndicate has approved the resolution of the Academic Council. When the knowledge of the Syndicate's resolution cannot be attributed to the petitioners, the bar of condition No. 7 for admission to the higher class cannot come in the way of the petitioners. Reference in this connection may be made to the decision of this Court in On Prakash v. University of Jodhpur (S.B. Civil Writ Petition No. 776 of 1981, decided on July 10, 1981), wherein, an elaborate discussion has been made on the question of estoppel. Estoppel in principle will not apply to the petitioner's case as the position of the University was not in any way altered by any act or omission on the part of the petitioners.
13. Besides that, in the present cases, the petitioners have come forward with a case that condition No. 7 is not applicable to them and their case would be governed by the earlier conditions, where under the candidate becomes eligible to seek admission the next higher class within a week of the communication of the result of re-evaluation and his attendence shall count from the date of admission.
14. Thus, this disposes the preliminary objections raised by Mr. Parekh.
15. Now, I proceed to consider the petitioners on merits.
16. In my opinion, the petitions can be disposed of on the short point that condition No. 7 cannot be made applicable to the petitioners, for the simple reason, that the right of re-evaluation had accrued to the petitioners on the date of declaration of the result, namely August 29, 1980 in accordance with the rules & conditions as were obtaining on that date. Admittedly, conditions No. 6, 7 and 9 as appearing in the application forms were not approved by the Syndicate till September 12, 1980, so these conditions could not be enforced by the University. As stated above, Shri Shailendra Bhandari submitted his application form before the approval of recommendation by the Syndicate, although Shri Gyanmal Mehta submitted his application form after the approval of the condition by the Syndicate. If the case of Shri Gyanmal Mehta is required to be governed by the condition as approved by the the Syndicate on September 12, 1980, then anomalous results would follow and the petitioners, who are similarly situated would be met out with the discriminatory treatment. Changes in the rules and conditions of re-evaluation can be brought about with effect from the date of declaration of the main result, so that all the candidates, who want to seek re-evaluation may be governed by the same act of rules. Although, the rules for re-evaluation can be charactrised as administrative, but still when they affect the rights of the candidates, then different rules cannot be allowed to govern the candidates, who are similarly circumstanced. The rule, which existed prior to 12th September, 1980 confer a right on the candidate to admission, if he becomes eligible for admission, after declaration of the result of re-evaluation, then that rule will apply to both the petitioners who became eligible for admission to the M. Com. (Final) class after declaration of the result of re-evaluation. Apart from that, both the petitioners have taken examination, it would be unjust to allow the University to with hold the result. Principles of justice and equity demanded, that if there has been unreasonable delay on the part of the University in the declaration of the result of re-evaluation, then the petitioners should be given admission to the higher class. Guided by the principles of justice and equity the court allowed provisional admission to the petitioners. The same considerations also persuade this Court for issuance of a direction for declaration of the result of the petitioners. In R.K. Khandelwal v. State of U.P. and Ors. : 1SCR283 the Court directed that if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage for the reason that he was not entitled initially to be admitted to the M.D. Course in Paediatrics. If he has failed, he should be permitted to take the examination again in accordance with the rules of the University. It was expressed that the result would be declared forthwith.
17. In the State of Madhya Pradesh v. Kr. Navedita Jain (Civil Appeals No. 554 and 555 of 1981, decided on 22-9-1981), the Supreme Court observed that justice requires that the respondent, who was already admitted in the Medical College on the basis of an interim order and has been prosecuting her studies, should be allowed to continue for studies. The cause of justice does not require that her studies should be interrupted and her career should be put into jeopardy and a direction was issued to treat her as a regular student. Thus, in my opinion, in the circumstances of these cases it would be just, proper and desirable that the direction may be given to declare the result.
18. In the above view of the matter, it is not necessary to consider the other contentions of Mr. Mridul that condition No. 7 is unreasonable and is dependent on the fortutuous circumstances and is discriminatory in character, on the ground that the result of re-evaluation of a candidate in the same class in one subject may be declared early and in the other subjects may be declared late resulting into admission and non-admission of the candidates to a higher class. Admissions in that way, would be dependent on an inglorious uncertainty of declaration of the result of re-evaluation.
19. In the result, the writ petitions are allowed and the University is directed to declare the result of the petitioners. There will no order as to costs.