CIVIL APPELLATE JURISDICTION: Civil-Appeal No. 947 of 1975.
Appeal by Special Leave from the Judgment and order dated the 2nd April, 1971 of the Punjab and Haryana High Court in Civil Writ No. 1039 of 1974.
Kapil Sibal and S. K. Gambhir for the appellant.
S. K. Nandy for the respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. What appears to have been a clear case of refusal of admission to the appellant or the cancellation of his candidature at the proper time has been completely bungled and destroyed by the inherent inconsistency and seemingly contradictory stand taken by the respondent and lack of proper vigilance on the part of the Head of the Department of Law. The facts of the present case lie within a very narrow compass and only two short points of law have been raised before us by Mr. Kapil Sibbal learned counsel for the appellant.
The appellant was a teacher in the Government High School, Dumarkha in the District of Jind (Haryana). The University of Kurukshetra was running law classes for three years Course and had extended the facility to persons who were in service to attend the evening classes and complete the three-years course in that manner. The appellant decided to take the benefit of the facility given by the Kurukshetra University and joined the LL.B. Part I classes some time in the year 1971. According to the University statute a student of the Faculty of Law was given the option to clear certain subjects in which he may have failed at one of the examinations before completing the three years course. The students were to appear in six papers each year. In April 1972 the petitioner appeared in the annual examination of Part I but failed in three subjects, namely, Legal Theory, Comparative Law and Constitutional Law of India Subsequently he was promoted to Part II which he joined in the year 1972. Under the University Statute the appellant was to appear in part II Examination in April 1973. On April 26, 1973 the appellant applied for his Roll number to the University in order to reappear in the subjects in which he had failed and to clear them but he was refused permission and according to the appellant without any reasons. The annual examination for Part II was to be held on May 19, 1973 and the appellant approached the University for granting him provisional permission to appear subject to his getting the permission from his employer to attend the Law Faculty. In between it appears that the appellant had been prosecuted for offence under ss. 376, 366 and 363 I.P.C. and was suspended during the period when the case was going on against him. The appellant was, however, acquitted and was reinstated by his employer on August 22, 1972. It would thus appear that on May 18, 1973 as also on April 25, 1973 when he had applied for his Roll Number to clear the subjects, the stigma of criminal case had been completely removed.
To start the thread the appellant as mentioned already approached the University on May 18, 1973 and wrote a letter to the University authorities giving an undertaking that if he was not able to get the requisite permission from his employer to join the Law Classes, he would abide by any order that the University may pass. It appears that on the basis of this undertaking he was allowed to appear at the Part II Examination on May 19, 1973. On June 20, 1973 the appellant wrote to the University authorities that the condition on which he was to get the permission was not at all necessary and that his results may now be announced. On June 26, 1973 the respondent informed the appellant that since his percentage was short in Part I his candidature stood cancelled. Thereafter there were series of correspondence between the appellant and the University authorities but the appellant was refused admission to LL.B. Part III Class. The appellant then filed an appeal to the Vice Chancellor of the University on September 26, 1973 which was also rejected on November 3, 1973. Thereafter the appellant approached the High Court of Punjab and Haryana for a writ of certiorari to quash the order of the respondent canceling the candidature of the appellant but the High Court after issuing notice to the other side and persuing the application form rejected the petition in limine. Hence this appeal by the appellant by special leave to this Court.
The sheet-anchor of the case of the respondent was that the appellant had been involved in a criminal case‘ and therefore the Head of Institution could not give the certificate in the prescribed form that the appellant bore a good moral character. Subsequently it was said that as the appellant was short of the requisite percentage in LL.B. Part I he could not insist on his being admitted to the Part II Examination; and lastly the stand taken by the respondent was that the Evening Law Classes were held to benefit the members of the Services and it was incumbent on the appellant to have obtained permission of his superior officers and as he did not do so, the University was well within its rights in refusing him permission to appear at the Part II Examination or in admitting him to Part III Law course.
A long counter-affidavit has been filed by the respondent of which some paragraphs are extracted below :
4. Para 4 of the writ petition is rebutted. The
petitioner was involved in a case under sections 363
and 366 of the Indian Penal Code. As a result, he was
suspended. He remained under suspension till August 23,
1972, when he
was reinstated. Consequently, he attended the lectures
in Part I. So far as Part II is concerned, the
petitioner didn’t attend the requisite number of
lectures. According to the notice displayed on the
notice board of the Department of Laws on January 24,
1973, the petitioner was falling short of attendance by
48 lectures upto December, 1972. There after, another
notice was displayed on the notice board on r April 16,
1973, according to which the petitioner was falling
short of attendance by 46 lectures. As such, the
averment in the writ petition that he attended his
lectures according to the rules is absolutely false.
Vide letter dated November 17, 1972, the
Headmaster, Government High School, Dumarkha (District
Jind) made an inquiry from the University regarding the
petitioner’s result in the LL.B. Part I Examination.
The intimation was sent by the University vide their
letter dated November 17, 1972. Thereafter, a letter
dated January 1, 1973, was received in the University
from the District Education officer stating inter alia
that "it may also be pointed out that Shri Siri
Krishan, Teacher was reinstated on 23-3-1972 and there
after he is attending his duties in School. I am amazed
to learn that he is declared by your Law Department to
be attending classes in LL.B. Part II simultaneously".
"A copy of this letter is appended as Annexure
’R.1’ to this affidavit. A perusal of this letter would
show that the petitioner had not been granted
permission by his employer to attend the law classes at
the University. Furthermore, the approximate distance
between his station of posting and the University is
more than’ fifty miles. Keeping m view the fact that he
was posted in the interior of District Jind, it is
impossible that the petitioner could have attended the
requisite number of lectures. Evidently, the petitioner
was himself aware of the fact that he had not attended
the re quisite number of lectures. It is also incorrect
to suggest that the petitioner’s name could be sent for
the examination only if he had completed and required
minimum attendance of lectures. The examination forms
are always sent in December. Rule 2(b) of Ordinance 10
of the Kurukshetra University Calendar, Volume I,
provides as under inter alia:-
"B. that he has attended regular course of study
for the prescribed number of academic years.
Certificate (b) will be provisional and can
be withdrawn at any time before. the
examination if the applicant fails to attend
the prescribed course of lectures before the
end of his term." 5-L159SCI/76
The petitioner’s examination form was, as such,
sent provisionally and could be withdrawn at any time
in case of his failure to attend the requisite
percentage of lectures."
23. (i) In reply to sub-para (i) of the writ
petition, it is submitted that the cancellation of the
candidature of the petitioner for LL.B. Part II was not
based on any extraneous considerations. Under the rules
of the University every student is required to attend
the prescribed course of lectures delivered to the
class in each of the subjects offered. , I Mr. Sri
Krishan was short of attendance which was duly notified
on the notice board of the Department of Law twice;
once on January 24, 1973 and again on April 16, 1973.
The admission of the petitioner to Law course in the
University was under dispute as a result of a complaint
from the District Education officer, Jind. The
petitioner came to the Magistrate on May 18, 1973, with
an application that pending final decision of his case,
he may be allowed to sit ‘‘ in the examination
provisionally at his own risk and responsibility. In
this application, the petitioner did not mention that
he was also falling short in lectures as notified by
the Head of the Department of Law. Since the office
was closed at that time and the examination was to
start at 8.00 a.m. On May 19, 1973, the candidate was
allowed to appear in the examination provisionally at
his own risk and responsibility.
(viii) In reply to sub-para (viii) of the writ
petition, it is submitted that in the admission notice
printed at page 75 in the Hand Book of Information for
the session 1971-72 to which the application for
admission to the Department forms a part, mentions that
LL.B. Classes in the evening were for employed persons
only. It was, therefore, implied that the applicant
while seeking admission in this class would obtain the
approval of his employers. This approval became
particularly necessary because of the constant
complaints of ill serious nature from the employers
(the Government) of the petitioner who insisted that he
must obtain such permission. It may be recalled that
the petitioner in his undertaking to the Registrar on
May 18, 1973 promised to produce the required
permission." It will be seen from the above affidavit that the stand taken by the respondent is by no means consistent. It may be mentioned that at one stage the University takes the stand that it was a case of shortage of , percentage and therefore the appellant was refused admission to appear at Part II Examination. Later on this stand is given up and the respondent averred that as the appellant did not get the permission of his superior officers and since the University was moved by the District Education Officer to cancel the candidature of the appellant the impugned order was passed by the University. It was also argued by Mr. S. K. Nandy counsel for the respondent that the appellant knew fully well that his percentage was short and in spite of that be fraudulently suppressed this fact from the University authorities when he was allowed to appear in the LL.B. Part I Examination in April 1972.
Mr. Sibbal learned counsel for the appellant submitted two points before us. In the first place it was argued that once the appellant was allowed to appear at L.L.B. Part II Examination held on May 19, 1973 his candidature could not be withdrawn for any reason whatsoever, in view of the mandatory provisions of clause 2(b) of the Kurukshetra University Calendar Vol. I, ordinance X under which the candidature could be withdrawn before the candidate took the examination. Secondly it was argued that the order of the University was mala fide because the real reason for cancelling the candidature of the appellant was the insistence of the District Education officer that the appellant should not have been admitted to the Law Faculty unless he had obtained the permission of his superior officers. In order to appreciate the first contention it may be necessary to extract the relevant portions of the statute contained in Kurukshetra University Calendar Volume I, ordinance X. Clause 2 of this ordinance runs as follows:
"2. The following certificates, signed by the
Principal of the College/Head of the Department
concerned, shall be required from each applicant:-
(a) that the candidate has satisfied him by the
production of the certificate of a competent
authority that he has passed the examinations
which qualified him for admission to the
examination; and
(b) that he has attended a regular course of
study for the prescribed number of academic
years.
Certificate (b) will be provisional and can be
withdrawn at any time before the examination if the
applicant fails to attend the prescribed course of
lectures before the end of his term." The last part of this statute clearly shows that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It is, therefore, manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear. It was, however, submitted by Mr. Nandy learned counsel for the respondent that the names of the candidates who were short of percentage were displayed on the Notice Board of the College and the appellant was fully aware of the same and yet he did not draw the attention of the University authorities when he applied for admission to appear in LL.B. Part II Examination. Thus the appellant was guilty of committing serious fraud and was not entitled to any indulgence from this Court.
It appears from the averments made in the counteraffidavit that according to the procedure prevalent in the College the admission forms are forwarded by the Head of the Department in December preceding the year when the Examination is held. In the instant case the admission form of the appellant must have been forwarded in December 1971 whereas the examination was to take place in April/May 1972. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinise the form in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April 1972, then by force of the University Statute the University had no power to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice-Chancellor, Ravishankar University, Raipur and others(ii) where a Division Bench of the High Court of Madhya Pradesh observed as follows:
"From the provisions of ordinance Nos. 19 and 48
it is clear that the scrutiny as to the requisite
attendance of the candidates is required to be made
before the admission cards are issued. Once the
admission cards are issued permitting the candidates to
take their examination, there is no provision in
Ordinance No. 19 or ordinance No. 48 which would enable
the Vice-Chancellor to withdraw the permission. The
discretion having been clearly exercised in favour of
the petitioner by permitting him to appear at the
examination, it was not open to the Vice-Chancellor to
withdraw that permission subsequently and to withhold
his result." We find ourselves in complete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges. In these circumstances, therefore, once the appellant was allowed to appear at the Examination in May 1973, the respondent had no jurisdiction to cancel his candidature for that examination. This was not a case where on the undertaking given by a candidate for fulfilment of a specified condition a provisional admission was given by the University to appear at the examination which could be withdrawn at any moment on the non-fulfilment of the aforesaid condition. If this was the situation then the candidate himself would have contracted out of the statute which was for his benefit and the statute
(1) A.T.R. 1967 M. P. 194,197. therefore would not have stood in the way of the University authorities in cancelling the candidature of the appellant.
As regards the second point that the order was passed mala fide, it is difficult to find any evidence of mala fide in this case. The order suffers from yet another infirmity. The annexures filed by the appellant and the respondent as also the allegations made in the counter affidavit clearly show that there were series of parleys and correspondence between the District Education officer and the respondent in the course of which the respondent was being persuaded, to the extent of compulsion, to withdraw the candidature of the appellant because he had not obtained the permission of his superior officers. Mr. Nandy appearing for the respondent has not been able to show any provision in the statutes of the University which required that the candidates attending the evening law classes who are in service should first get the prior permission of their superior officers. We have also perused the University Statute placed before us by counsel for the appellant and we do not find any provision which could have afforded justification for the respondent to cancel the candidature of the appellant on the ground that he had not obtained the previous permission of his superior officers.
Mr. Nandy counsel for the respondent placed great reliance on the letter written by the appellant to the respondent wherein he undertook to file the requisite permission or to abide by any other order that may be passed by the University authorities. This letter was obviously written because the appellant was very anxious to appeal in Part II Examination and the letter was written in terrorem and in complete ignorance of his legal rights. The appellant did not know that there was any provision in the University Statute which required that he should obtain the permission of his superior officers. But as the respondent was bent on prohibiting him from taking the examination he had no alternative but to write a letter per force. It is well settled that any admission made in ignorance of legal rights or under duress cannot bind the maker of the admission. In these circumstances we are clearly of the opinion that the letter written by the appellant does not put him out of court. If only the University authorities would have exercised proper diligence and care by scrutinising the admission form when it was sent by the Head of the Department to the University as Ear back as December 1971 they could have detected the defects or infirmities from which the form suffered according to the University Statute. The Head of the Department of Law was also guilty of dereliction of duty in not scrutinising the admission form of the appellant before he forwarded the same to the University.
Moreover, the stand taken by the respondent that as the appellant did not get the requisite permission from his superior officers, therefore he was not allowed to appear at the examination, does not merit consideration, because the impugned order does not mention this ground at all and it was not open to the respondent to have refused admission to the appellant to LL.B. Part III or for that matter to refuse permission to appear at the examination on a ground which was not mentioned in the impugned order.
Having gone into the circumstances mentioned above, we are of the view that the impugned order suffers from errors of law patent on the face of the record, and in any event this was not a case which should have been dismissed by the High Court in limine.
The appeal is accordingly allowed and the order of the University dated June 26, 1973, is hereby quashed by a writ of certiorari. The respondent is directed to declare the result of LL.B. Part II Examination in which the appellant had appeared on May 19, 1973 and also to give him an opportunity to appear in the three subjects in which he had failed in LL.B. Part I Examination, at the next examination which may be held by the University.
In the peculiar circumstances of this case, however, we leave the parties to bear their own costs. P.B.R. Appeal allowed.