Pankaj Kumar vs H.P. Board of School Education at Dharamshala

Rajiv Sharma, J.—The petitioner appeared in 10 + 2 examination in March, 2013 and secured 258 marks out of 500 marks. Thereafter, in March 2014 he again appeared in 10 + 2 examination for improvement and improved his score to 273 out of 500. He again applied for improvement in the subject of Mathematics and scored 68 marks. The result of the petitioner was declared but the mark sheet was not supplied to him. The ground for denying the issuance of the certificate/mark sheet to the petitioner is that the petitioner was not eligible to reappear in improvement of performance examination, as per Rule 4.18.2(b) of the H.P. Board of School Education Examination Regulations, 1994.

Since the petitioner was permitted to reappear in the examination of improvement and in fact he has improved his marks and thus the respondents are estopped from denying the issuance of mark-sheet to the petitioner on the basis of the above said rules. It is not the case of the respondent that the petitioner has concealed any facts while filling up the application forms for improving his marks.

Their Lordships in Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, AIR 1976 SC 376 : (1976) 1 SCC 311 : (1976) 8 UJ 15 have held that when the candidate is permitted to appear in the examination his candidature cannot be withdrawn subsequently. Their Lordships have held as under:-

"6. 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once the appellant was allowed to appear at LL.B. Part II Examination held on May 19, 1973 his candidature could not be withdrawn for any reason whatsoever, in view of the mandatory provisions of Clause 2(b) of the Kurukshetra University Calendar Vol. I, Ordinance X under which the candidature could be withdrawn before the candidate took the examination.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 University was mala fide because the real reason for canceling 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 appellant 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 counter-affidavit 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 scrutinize 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 scrutinize 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 one 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 Vs. Vice Chancellor, Ravishankar University and Others, AIR 1967 MP 194 : (1970) ILR (MP) 401 : (1967) JLJ 464 where a Division Bench of the High Court of Madhya Pradesh observed as follows:

"From the provisions of Ordinances 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 fulfillment 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-fulfillment 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 therefore would not have stood in the way of the University authorities in cancelling the candidature of the appellant."

Accordingly, the writ petition is allowed and the respondent is directed to issue mark sheet to the petitioner within one week from today.