Nitin Kumar Gupta vs State of U.P. and Others

Arun Tandon, J.—Heard Sri. Shashi Kant Gupta on behalf of the Petitioner, learned standing counsel on behalf of Respondent No. 1 and Sri. Neeraj Tiwari on behalf of Respondent Nos. 2 and 4.

Petitioner Sri. Nitin Kumar Gupta was admitted to the B. Sc. Three Years Degree Course in D.A.V. Post Graduate College, Kanpur, which is an institution affiliated to Chhatrapati Shahu Ji Maharaj University, Kanpur in the year, 2002.

It is contended that the Petitioner appeared in the B. Sc. Part-I Examination conducted by the Kanpur University in the year, 2001 and was successful. He was, therefore, admitted to B. Sc. Part-II Course in the said institution and undertook the examination in respect of the B. Sc. Part-II, conducted by the Kanpur University in the year, 2002 with Roll No. 206000.

It is admitted to the Petitioner that he did not appear in the Practical Examination of Physics and Chemistry subjects in the aforesaid B. Sc. Part-II Examination.

The Petitioner for the purposes of appearing in the back paper of Physics and Chemistry (both) Practical Examination of 2002 (Back Papers whereof took place in the year, 2003), applied to the Kanpur University. The University granted permission to the Petitioner to appear in the back papers of Physics and Chemistry Practicals and in that regard Petitioner has brought on record copy of the permission granted to him by the Kanpur University in respect of back papers in Physics and Chemistry Practical for the Examination of 2003 as Annexures-1 and 2 to the writ petition (the genuineness of the said documents has not been disputed by the Kanpur University). In accordance with the permission so granted by the Kanpur University, the Petitioner appeared in Batch No. II in respect of back paper of Physics Practical on 5th March, 2003 and in Batch No. I in respect of Chemistry Practical on 10th March, 2003.

Without disclosing as to on which date the Petitioner was admitted in B. Sc. Part-III, it has been stated in paragraph 10 of the writ petition that the Petitioner had given an application before the University for declaring the result of B. Sc. Part-III, in which it has been claimed that the Petitioner has appeared with Roll No. 613635 and in support of the said contention, the Petitioner has enclosed a copy of the fee receipt and clearance slip issued to the Petitioner by the D.A.V. College, Kanpur, which are enclosed as Annexures-8 and 9 to the writ petition. The fee deposit receipt bears the date as 30th July, 2002, while the clearance slip issued by the college in respect of University Examination, 2003, bears the date as 10th March, 2003.

On the basis of the aforesaid documents, the Petitioner has filed an application before the Kanpur University to declare his result of B. Sc. Part-III Examination, which he has undertaken with Roll No. 613635 as also for declaration of his B. Sc. Part-II result on the basis of the back paper given by the Petitioner in respect of his Practical Examination of the year, 2002. Since the application of the Petitioner was not considered and his result of B. Sc. Part-II was not declared, the Petitioner has filed present writ petition with the prayer that the Respondent may be directed to declare the result of the Petitioner of B. Sc. Part II as well as result of the Petitioner of B. Sc. Part-III.

A counter-affidavit has been filed by the University and it has been stated that the Petitioner had obtained permission to appear in two back papers, which is not permissible and for the said purpose the Petitioner had misled the authorities and obtained certificate from two different authority of the same institution. In respect of back paper of Physics Practical Examination, the certificate was singed by the Principal of the college, while in respect of back paper of Chemistry Practical Examination, the certificate has been signed by the Head of the Chemistry Department. It has been further pointed out that under the rules framed by the back paper Examination Committee, which is a Sub-Committee of the Examination Committee, dated 22nd September, 2000, the facility to appear in the back paper was conferred upon the students with specific condition that a student of Part-I and Part-II Examination shall be permitted back paper only in respect of one subject of Practical Examination. It is further pointed out that under the rules, which provides for back paper itself, there is a provision that no candidate shall be permitted to undertake back paper Examination in more than one Practical paper.

The recommendation of the Sub-Committee of the Examination Committee was accepted and approved by the Examination Committee of the Kanpur University on 1.10.2002. The recommendation, as such, has acquired statutory force and is binding between the parties. It is, therefore, submitted that the Petitioner is not entitled to the relief prayed for in the present writ petition.

On behalf of the Petitioner reliance has been placed upon the judgment of the Hon''ble Supreme Court in the case of Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, .

On behalf of the Respondent-University reliance has been placed upon the Division Bench judgment of this Court in Km. Radha v. Vice Chancellor, Chhatrapati Shahuji Maharaj University, Kanpur and Ors. 2003 (6) AWC 221 : 2004 (II) ESC 59, as also upon the Division Bench judgment of this Court in U.P. Technical University Vs. Kumar Gandharva and Others, , as also upon the judgment of the Hon''ble Supreme Court in Sanatan Gauda Vs. Berhampur University and others, .

The thrust of the argument of the counsel for the Petitioner is that once the University has permitted the Petitioner to appear in Physics and Chemistry Practical back papers with open eyes, it is not open to the said University to now deny the declaration of result of the Petitioner in respect of the back papers on the ground that the Petitioner was wrongly permitted to undertake the back paper (Practical) of two subjects. The University has failed to perform its duty of scrutinizing the application filed by the Petitioner for appearing in back paper (practical) of two subjects. It is to be assumed that the University authorities have acquiesced to the infirmity with regards to permission granted in two subjects to the Petitioner for appearing in back paper and, therefore, the University has no power to withhold the result of the Petitioner. The Petitioner has supported the aforesaid contention with the help of paragraph 7 of the judgment of Hon''ble Supreme Court in the case of Shri Krishan as well as paragraph 10 of the judgment of the Hon''ble Supreme Court in the case of Sanatan Gauda (supra).

On behalf of the Respondent it is pleaded that there can be no estoppel against the rules framed by the Examination Committee, which are statutory in nature and reliance in that regard has been placed on paragraph 10 of the Division Bench judgment of this Court in 2004 (1) ESC 59.

I have heard counsel for the parties and have gone through the judgment relied upon by the respective parties.

It is an admitted position that the rules, which have been framed by the Examination Committee are the only rules which permits a candidate to appear in back paper. Under the aforesaid rules, which have been framed by the Examination Committee and which are statutory in nature as per the judgment of the Division Bench of this Court in the case of Km. Radha v. Kanpur University (supra), the Petitioner could not have been granted permission to undertake back paper in two subject in one academic year.

The Division Bench of this Court in the case of Km. Radha (supra) has noticed the judgment of the Hon''ble Supreme Court in the case of Sanatan Gauda (supra) and has held that the said judgment is clearly distinguishable. The Division Bench has further declared that there can be no estoppel against the statute. Reference in that regard may be had to the judgment of the Hon''ble Supreme Court in A.C. Jose Vs. Sivan Pillai and Others, .

Similarly, the judgment of the Hon''ble Supreme Court, in Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, is also clearly distinguishable in the facts of the present case. The Hon''ble Supreme Court in the said judgment has specifically held that permission to appear in the examination was withdrawn because the student failed to achieve the required attendance. The Hon''ble Supreme Court has noticed the provisions for withdrawing the aforesaid permission and recorded finding that under Ordinance X the said power to withdraw the candidature could be exercised before the end of the term and since the said power was not exercised and the candidate was permitted to appear, the power to withdraw stood exhausted. It was, therefore, held that the University authority acquiesced in the infirmities with the examination form and allowed the Appellant to appear in B.A. Part-I Examination.

Similarly, in the case of Sanatan Gauda, the Hon''ble Supreme Court had noticed that there was no requirement of any particular marks for post graduate students for being admitted to Law Course and, therefore, proceeded to hold that the University was not justified in refusing to declare the result of the Petitioner on the ground that he had not secured the requisite percentage of marks in his examination. The aforesaid judgments have been passed on the facts of the aforesaid case.

So far as the legal position with regards to estoppel against statute is concerned, the same has been explained by the Division Bench of this Court in the case of Km. Radha, referred to above, specifically paragraphs 5 and 8.

The Division Bench of this Court in the case of U.P. Technical University v. Kumar Gandharva, referred to above, in paragraph 5 has specifically laid down that the University or its authority have no jurisdiction whatsoever to bye-pass or ignore the mandate of statutory provisions and the candidate has to satisfy the minimum requisite conditions which is to be complied with before he becomes eligible for appearing at the final examination.

Even otherwise this Court fails to see as to how, in the facts of the case, Petitioner was permitted to appear in B. Sc. Part-III by the college and was permitted to undertake the B. Sc. Part-III Examination of year, 2003. It is an admitted position that the Petitioner had appeared in the back papers of Physics and Chemistry on 5th March, 2003 and 10th March, 2003. It is further admitted to the Petitioner that the result of the aforesaid back papers had not been declared and, therefore, the Petitioner cannot claim to have passed the B. Sc. Part-II Examination. Unless and until the Petitioner had passed the B. Sc. Part-II Examination the question of his being admitted in B. Sc. Part-III does not arise nor any other provisions have been brought to the notice of the Court by the counsel for the Petitioner on the basis whereof the Petitioner can claim admission in B. Sc. Part-III. Only one mark-sheet of B. Sc. Part-II has been enclosed by the Petitioner alongwith the writ petition as Annexure-III. In the said mark-sheet the Petitioner has been shown failed in B. Sc. Part-II Examination. It is, therefore, an admitted position that the Petitioner has not passed his B. Sc. Part-II Examination till date and consequently his being admitted in B. Sc. Part-III and having appeared in B. Sc. Part-III Examination of the Kanpur University of the year, 2003 is only a case of clear misrepresentation and wrongful admission in the said B. Sc. Part-III. It is, therefore, apparent that the Petitioner has suppressed the material fact with regards to the manner in which he was admitted in the institution in B. Sc. Part-III deliberately. The writ petition is completely silent about the said fact. The Petitioner as such is not entitled to any relief under Article 226 of the Constitution of India.

The writ petition is, accordingly, dismissed with cost.