High Court
Case Details
WP(C) 3212/2009 BEFORE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. R. Islam, learned counsel for the petitioner as well as Mr. L.P. Sarma along with Mr. S. Chakraborty, learned counsel, representing the Gauhati Univer sity. I have also heard Mr. S.M.T. Cheiste, learned Standing Counsel, Education Department. By means of this writ petition, the petitioner has prayed for a direction to the University authority to declare the withheld results of the petitioner pertaini ng to BA Part-III examination held in 2008. The ground on which, such a course o f action has been adopted by the Gauhati University is that the petitioner surre ptitiously appeared in BA Part-II examination availing chances beyond the permis sible limit. The petitioner was a student of the respondent No. 4 college. He got himself adm itted to the three years BA course (1+1+1 pattern) in the year 2003-04 and to be precise on 21.7.2013. He appeared in the BA Part-I examination in 2004, but cou ld not clear the same. He again appeared in 2005. He also simultaneously appeare d in the BA Part-II examination held in 2005, but could not come out successful. He again appeared in 2006, 2007, 2008 and 2009. When he appeared in 2009 BA Par t-II examination, he had no chance to his credit. It is in such circumstances, a lthough he appeared in BA Part-III examination of 2008, results thereof having b een withheld, he has filed the instant writ petition. In the counter affidavit filed by the Gauhati University, it has been stated tha t the petitioner took recourse to falsehood by not declaring the real facts in t he application form for the examination. In paragraph-8 of the counter affidavit , it has been stated that the petitioner was a non-collegiate student for the ye ar 2008, but the Principal of the college allowed him to appear in 2008-09 exami nation. It is the categorical stand of the University that the appearance of the petitioner in BA Part-II examination in 2008-09 was in collusion with the respo ndent No. 4. It has been specifically stated that the respondent No. 4 although knew it well that the petitioner did not have any chance to appear in the BA Par t-II examination, but forwarded the examination form for 2008-09 concealing the fact that the petitioner had already exhausted all the chances. For a ready reference, the stand of the Gauhati University as reflected in parag raphs-8, 10, 12, 13 and 14 of the counter affidavit is quoted below: (cid:28)8. That it was the duty of the Pragjyotish College to check their Register befo re sending Examination form of the petitioner in 2008 - 2009 to the University. From the records it appears that the petitioner was a non collegiate student for the year 2008 and it is not known how the Principal, Pragjotish College allowed him to appear in 2008 and 2009. The appearance of Examination in B.A Part- II i n the year 2008 and 2009 was in collusion of the Respondent No. 4 and Respondent No. 4 knowing fully well that the petitioner had no chance to appear in BA Part - II Examination intentionally forwarded the form of BA Part- III Examination fo r 2008 and 2009 concealing the fact that the petitioner has already exhausted al l the chances for appearing in B.A Part- II Examination in 2007. The Respondent No. 4 send the examination form to the Respondent University with some misrepres entation of facts and falsely issued the certificate that are required to be fil led up by him in Examination form itself. Similarly the petitioner also misrepre sented the Respondent University and the petitioner also given false declaration in the application form for T. D. C. Part-II 1+1+1 pattern and as such the Exam ination of the petitioner from 2008 have become infructuous. 10. That I most respectfully submit that the examination of 2008 and 2009 of B. A. Part-II of the petitioner as per Regulation 12 (h) the said examination has b ecome infructuous as the petitioner has exhausted all the chances available to h im as per said Regulation 12 (h) in 2007. The appearance of the petitioner in B . A. Part-II Examination in the year 2008 and 2009 is not in accordance with the Regulation of the University as mentioned above and as such passing Part-II exa mination in the year 2008 which is beyond the permissible limit could not be tak en into consideration for declaration of the result of Part-III examination of 2 006. 12. That I most respectfully submit that the Principal of Pragjyotish College an d the petitioner himself very well knew that the petitioner is not entitled to a ppear in B. A. Part-II examination in 2008 and 2009 and in order to deceive the University the Principal of Pragjyotish College and the petitioner collusively m isled the University. It was the duty of the Principal, Pragjyotish College not to send up the form of the petitioner for B. A. Part-II examination for 2008 and 2009.
Decision
13. That I most respectfully state that the Respondent University at the time of filling up of examination form by a candidate taken an undertaking from his/her that University may cancel his/her examination any time before, during or after examination if the candidate is found not eligible to appear in the said examin ation and as such the allegation levelled against the Respondent University in p ara-11 and 14 of the writ petition are not correct. 14. That it is pertinent to mention here that as per application form the concer ned colleges used to obtain the blank admit card, form from the Respondent Unive rsity and these are countersigned by the concerned officer-in-charge of the coll ege. The Respondent University scrutinized the forms of examination after comple tion of the examination of the candidates and till that period the respondent Un iversity has to believe the statement/ examination form etc filled up by the can didate and the concerned college and after examination these forms and statement s are scrutinized by the Respondent University and only after scrutiny the alleg ed mistake are detected by the University and actions accordingly taken by them. Mr. Islam, learned counsel for the petitioner referring to the decisions of the Apex Court reported in 2008 (71) AIC 107 (SC) (Guru Nanak Dev University Vs. San jay Kumar Katwal) and AIR 1990 SC 1075 (Sanatan Gauda Vs. Berhampur University) has submitted that since the petitioner was allowed to appear in the BA Part-II examination beyond the permissible limit, the University is now estopped from ra ising the plea of appearance in the examination by the petitioner beyond the per missible limit. On the other hand, Mr. Sarma, learned counsel, representing the Gauhati University submits that ratio of the decisions referred to above will ha ve to be understood in the back ground of the fact situation of those cases. He submits that when in the instant case there was suppression of material facts on the part of the petitioner, he is not entitled to raising the principle relatin g to estoppel. In paragraph-8 of the counter affidavit, the University has speci fically stated that the petitioner had misrepresented the University authority a nd he also gave false declaration in the application form for TDC Part-III. Repl ying to the said paragraph, the petitioner in his affidavit-in-reply has blamed the University authority and the college authority with the statement that it wa s the duty of the University authority to scrutinize the papers and if they did not take care to do so, the candidature of the petitioner could not have been ca nceled. For a ready reference, the stand of the petitioner in his affidavit-in-r eply towards blaming the respondents are indicated below: ’5. That while denying the correctness of the statements made in paragraph 7 of the Affidavit- in - Opposition, the deponent begs to state that the respondents should have scrutinize the papers of the deponent under Regulation 12 (h) for B. A., T. D. C. Course (2003-2004). If the University Authorities would have exerc ise proper diligence and care by scrutinizing the admission form when it was sen t by the Principal, Pragjyotish College for the year 2008 and 2009, they could have detected the defects or infirmities from which the form suffered according to the university statue. Hence now the University Authority is estopped from cl aiming that as per University Regulation the examination for the year 2008-2009 for B. A. Part-II examination have become infructuous. 6. That while denying the correctness of the statements made in paragraph 8 of t he Affidavit-in- Opposition, the deponent begs to state and reiterate that it wa s the duty of the Principal, Pragjyotish College before submitting the examinati on form to the University to see that it complied with all requirements and it w as equally the duty of the University Authorities to scrutinize the papers and i f they did not take care to scrutinize the papers, the candidature for the exami nations cannot be cancelled subsequently on the ground of non-fulfilment of requ irements. If neither the Principal of Pragjyotish college nor the University Aut horities scrutinize the examination form before issuing Admit Card to the depone nt, the question of misrepresentation by the Writ petitioner does not arise and as such the examination of the petitioner from 2008 cannot be said to have becom e infructuous. (cid:29) From the above stand of the petitioner, what is seen is that while not denying a bout misrepresentation including he being a non-collegiate student, but has blam ed the University authority for allowing him to appear in the BA Part-II examina tion unmindful of the fact that it is the definite stand of the University that there was collusion between the petitioner and the respondent college authority. Mr. Sarma, learned counsel representing the University has placed reliance on t he Division Bench judgment of this Court reported in (2009) 5 GLR 144 (Monmi Sar ma Vs. Gauhati University), in which it has been held that the University author ity cannot be directed to violate its own regulation. The decisions on which, learned counsel for the petitioner has placed reliance a re on the principles of estoppel. Dealing with the particular plea of estoppel, it was held in the given fact and circumstances that the University authority wa s estopped from taking the plea of irregularity in the particular admission of t he student. However, unlike the present case, there was no misrepresentation on the part of the candidate. In view of the above, no direction can be issued to the University authority to declare the results of the petitioner pertaining to BA Part-III examination that was held in 2008. Irrespective of this order, it will be open for the petitione r to approach the Gauhati University for consideration of his case, if so advise d. The writ petition is dismissed.