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1977 Supreme(Ori) 71
Orissa High Court
S. N. SHANKAR, C.J. AND S. ACHARYA, J.
Haripada Das - Appellant
Versus
Utkal University - Respondents
O. J. C. No. 686 of 1976
Decided On : 20 September 1977
Carr v. London and North Western Ry. Co. 10 (1860) 3 HLC 820 : 3 LT 130, Cairncross v. Lorimer 10
L. Rath, A.K. Misra, R.S. Misra and J.K. Rath, for Petitioner; S.C. Mohapatra and S. Rath, for Opposite Party.
Estoppel cannot operate to create a right in derogation of the Statute.
Headnote:
ESTOPPEL - UNIVERSITY REGULATIONS - EXEMPTION FROM APPEARING IN CERTAIN SUBJECTS - BAR OF APPEARING IN THIRD EXAMINATION - ESTOPPEL CANNOT OPERATE TO CREATE A RIGHT IN DEROGATION OF THE STATUTE.
Fact of the Case:
The petitioner, a student of M.P.C. College, Baripada, appeared in the Annual B.Sc. Examination of the College held in 1974 and secured pass marks in the total and compartmental marks in all subjects except Chemistry and Mathematics. He was thereafter entitled to appear in these two subjects only and had the right to claim exemption from being examined in the other subjects in which he had passed according to R. 31 of Chapter III of the University Regulations. He filled up the form and deposited the fees to take the papers in Chemistry and Mathematics for the next supplementary examination held in 1974 but fell ill and did not appear. For the next Annual examination of 1975, he again filled up the form to appear compartmentally in the same two subjects and passed only in Chemistry. For the third examination which was the supplementary examination of 1975, he again filled up the form for Mathematics alone, deposited the fees, and was issued an admit card. He took the examination, but later he was informed by the College authorities that his results had been withheld by the University.
Finding of the Court:
The court held that the petitioner was not entitled to the writ of mandamus as prayed for. The court found that R. 31 of Chapter III of the University Regulations, as replaced by Correction Slip No. 76, prohibited a candidate from appearing compartmentally in the third examination after he had failed in the first two examinations held by the University. The court further found that the petitioner had not availed of the first two examinations held by the University and that his appearance in the third examination in one subject only was in contravention of the Statute. The court also held that the plea of estoppel could not be accepted in this case as there was no positive representation by the University that it would waive the bar of cl. (a) of Rule 31 for the petitioner.
Issues: Whether the petitioner was entitled to the writ of mandamus directing the University to publish his results of the B.Sc. Examination.
Ratio Decidendi: The court held that the petitioner was not entitled to the writ of mandamus as prayed for because: * R. 31 of Chapter III of the University Regulations, as replaced by Correction Slip No. 76, prohibited a candidate from appearing compartmentally in the third examination after he had failed in the first two examinations held by the University. * The petitioner had not availed of the first two examinations held by the University. * The petitioner's appearance in the third examination in one subject only was in contravention of the Statute. * The plea of estoppel could not be accepted in this case as there was no positive representation by the University that it would waive the bar of cl. (a) of Rule 31 for the petitioner.
Final Decision: The petition was dismissed, but the parties were left to bear their own costs.
Judgement
SHANKAR, C.J. :- In this petition under Arts. 226 and 227 of the Constitution the petitioner, a student of M. P. C. College, Baripada, has prayed for a writ of mandamus directing the opposite party, Utkal University, to publish his results of the B. Sc. Examination.
2. The petitioner appeared in the Annual B. Sc. Examination of the College held in 1974 and secured pass marks in the total and compartmental marks in all subjects except in Chemistry and Mathematics. He was thereafter entitled to appear in these two subjects only and had the right to claim exemption from being examined in the other subjects in which he had passed according to R. 31 of Chapter III of the University Regulations (extracted hereafter). Consequently for the next supplementary examination held in 1974 he filled up the form and deposited the fees etc. to take the papers in Chemistry and Mathematics. According to the petitioner he fell ill and did not appear in this examination. For the next Annual examination of 1975 he again filled up the form to appear compartmentally in the same two subjects, namely, Chemistry and Mathematics. This time he could pass in Chemistry only. For the third examination which was the supplementary examination of 1975, he again filled up the form for Mathematics alone and deposited the fees for the examination and was issued an admit card No. 2703. He took the examination, but later he was informed by the College authorities that his results had been withheld by the University. Representations yielded no result. Hence this petition with the prayer for the issuance of a writ of mandamus to the University as aforesaid.
3. The argument urged in support of the petition is that the University having permitted the petitioner to appear in the supplementary examination of 1975 in Mathematics and to deposit the fee for the same and having issued the admit card and having also allowed him to take the examination, was estopped from withholding his result.
4. In the counter-affidavit the relevant facts are substantially admitted. It is however urged that the annual B. Sc. examination of 1974 in which the petitioner appeared was governed by R. 31 of Chapter III of the University Regulations as replaced by Correction Slip No. 76. This provision, it is urged, prohibited a candidate to appear compartmentally in the third examination after he had failed in the first two examinations held by the University and therefore as the petitioner admittedly appeared in the third examination in one subject only he was not entitled to the writ of mandamus as prayed.
5. We have heard the learned counsel for the parties. Normally a candidate has to appear at the annual examination in all the prescribed subjects that he takes and obtain pass marks in each one of them, but R. 31 of Chapter III as replaced by correction slip no. 76 relied upon by the University provides an exception.
The relevant part of the rule reads as under:-
"If a candidate for the Bachelor s Degree fails in such examination obtaining pass marks in any subject or group of subjects for which separate pass marks are required and passes in the aggregate, he shall be exempted from appearing again in that subject or group of subjects for the next two occasions when the examination is held by the University:
Provided:-
(a) that he shall not be allowed this exemption at any examination other than the two immediately following the exemption in which he originally failed but earned the exemption."
There are other clauses to the Rule, but they are not relevant for purposes of this case.
6. Rule 31, it would thus be seen, confers a right on a candidate in Bachelor s Degree who has failed in the examination of a particular year, but has obtained pass marks in any subject or group of subjects to claim exemption from taking examination in the subject or group of subjects in which he has already passed for the next two occasions. But at the same time by cl. (a) of its proviso unambiguously provides that
