P.K. Asha vs Bangalore University

Hanumanthappa, J.—The petitioner who is a student of Bachelor of Dental Surgery Course in the 2nd respondent/College which is within the jurisdiction of the 1st respondent/University has filed this Writ Petition seeking the following reliefs:

"Wherefore, it is prayed that this Hon''ble Court may be pleased to:

(a) call for the records from the respondent-1 which ultimately caused in issuing of Communication dated 21-6-1991 made in No. ACAI/R1/BDS/APPLADM/90-91/1242 and communication dated 30-7-1991 made in No. ACA.1/R1/ADM/BDS/VSDC/ 1988-89, annexures A and B respectively;

(b) declare that the Communication dated 21-6-1991 made in No.ACAI/RI/BDS/APPL ADM/90-91/1242 and Communication dated 30-7- 91 made in No.ACA.1/RI/ADM/BDS/VSDC/1988-89, annexure A and B respectively, passed by the first respondent, as illegal and void in law;

(c) issue writ in the nature of mandamus directing the respondents 1 and 2 to permit the petitioner to pursue her studies in Bachelor of Dental Surgery Course in the second respondent-College;

(d) and issue such other relief/s as this Hon''ble Court may deem fit to grant in the facts and circumstances of the case, in the ends of justice."

A few facts are: The petitioner is a native of Andhra Pradesh. She studied in Madras. She passed her Senior School Certificate Examination conducted by Central Board of Secondary Education, Madras, securing 64, 52, 35 and 45 marks in Physics, Chemistry, Mathematics and Biology respectively. It is not in dispute that Senior School Certificate Examination has been treated as equivalent to 2nd Year Pre-University Course by the Bangalore University. After completing the Senior School Certificate Examination with Physics, Chemistry, Mathematics and Biology she sought for admission to BDS. Course in the 2nd Respondent/College by giving donation. The duration of the said course is 4 years. At the time of admission, she submitted Marks Card of SSCE, Nativity Certificate and other relevant documents. While she was thus prosecuting her studies, the objection taken by the 1st Respondent/University was that the admission of the petitioner and 19 others made by the 2nd respondent/College was more than the intake fixed. Therefore, the admission can not be approved This was communicated to the 2nd respondent/College on 17-3-1989. It is produced as Annexure G to the Writ Petition. This was challenged in Writ Petition No. 5405/89 which was subsequently withdrawn as the so-called intake including the admission of the petitioner was approved by the Government Order dated 29-4-1991. While the petitioner was thus prosecuting her studies, the order at Annexure A dated 21-6-1991 came to be passed. Annexure A reads as follows:

BANGALORE UNIVERSITY

No. ACAI/R1/BDS/ Jnana Bharathi, APPL. ADM/90-91 Bangalore-560 056 Date: 21-6-1991

To

The Principal, Vokkaligara Sangha Dental College, K.R. Road, V.V. Puram, Bangalore.

"Sir,

Sub: Admission of students to I Year BDS Degree course during 1988-89 non-approval of admission -regarding.

Ref: This Office letter No. ACAI/R1/BDS/APPL ADM/VSDC/114/88-89 dated 17-3-1989 directing to discharge the candidates from the course.

I am to inform you that Smt. P.K.Asha, Sl.No. 56 in the admission statement has been admitted by you for the I Year BDS Course for the year 1988-89 under the excess admission. She has failed in Biology Theory paper in AH India Senior School Certificate examination conducted by the Central Board of Secondary Education during May 1988 and as such she is not eligible for admission to BDS course and therefore the question of approval of her admission to BDS course does not arise.

Yours faithfully,

Sd/-REGISTRAR."

This was followed by another letter of the University which is produced as Annexure B to the Writ Petition. It is extracted hereunder:

BANGALORE VISWAVIDHYALAYA

No.ACA.I/RVADM/BDS/ Jnana Bharathi, VSDC/1988-89. Bangalore - 560 056. Date: 30-7-1991

To

The Principal Vokkaligara Sangha Dental College, K.R. Road, V.V. Puram, Bangalore - 560 004.

Sir,

Sub : Approval of admission during 1988-89 - regarding.

Ref: Your letter No. VSDC/336/91-92 dated 3-7-1991.

In continuation of this Office letter of even number dated 21-6-1991, on the subject, I am directed to inform you that Smt. P.K.Asha, SI.No.56 in the admission statement is not eligible to I BDS course as she has failed in Biology paper in All India Senior School Certificate Examination conducted by the C.B.S.E. which has already been informed to you. Please make it a point that in future no such admissions are made.

Yours faithfully,

Sd/-REGISTRAR."

Aggrieved by the orders at Annexures A and B, the petitioner filed this Writ Petition.

During the pendency of this Writ Petition, on the request made by the petitioner, this Court granted an Interim Order permitting her to continue her studies. The Interim Order reads as follows:

"Issue Emergent Notice re, rule returnable in 2 weeks. In the meanwhile, the Respondent No. 2 is directed to permit the petitioner to attend the classes subject to the result of the Writ Petition."

Of course, it was made clear that her attending classes was subject to the result of the Writ Petition.

In support of the case, Sri Vishwanatha Shetty, learned Counsel for the petitioner, submits as follows:

The orders at Annexures A and B are quite arbitrary and against the principles of natural justice.

Cancellation of the petitioner''s admission to BDS Course is not in accordance with any of the provisions of the Karnataka State Universities Act, Ordinance or Regulations. It is not in dispute that SSCE is equivalent to II Year P.U.C. as recognised by the Collegiate Education so also the University of Bangalore. When she has passed SSCE, it is not proper on the part of the University to hold that the same is not equivalent.

When the University has treated SSCE as equivalent to II Year P.U.C., the candidates who have possessed SSCE and fulfilled other requirements shall be admitted to the course. It is clear from Annexure C that the petitioner has secured 64 marks in Physics, 52 marks in Chemistry, 35 marks in Mathematics and 45 marks (16 marks in theory and 29 marks in practical) in Biology. Even if the petitioner has failed in Biology theory which resulted in her failure in Biology, she has passed by securing more marks in other subjects. According to the SSCE Regulations, to declare a student passed he/she must have passed in 3 subjects out of 4. In the instant case, out of 4 electives, except Biology she has passed in 3 subjects. If these are counted independently or aggregate, the result is that she has passed. It was rightly declared by the Central Board of Education in Annexure D that to pass the All India Senior School Certificate Examination it is essential to pass one compulsory language, three electives and subject(s) of Internal assessment as per the CBSE curriculum. According to Sri Shetty, learned Counsel for the petitioner, at the time of admission everything was made clear including her possessing the requisite qualification which entitled her to seek admission to I Year BDS. Merely because she had not secured pass marks in Biology, it cannot be said that she failed in SSCE. According to him, neither the Act, Ordinance nor the Regulations said that fail in one subject out of 4 electives of SSCE conducted by CBSE disentitles a candidate to seek admission for technical or medical course in the State of Karnataka. In support of his contentions Sri Shetty also made references to the Regulations issued by the 1st respondent/University relating to admission to BDS Course. The relevant portions will be dealt with a little later. For these reasons, he submits that there is neither arbitrariness nor illegality in the admission of the petitioner to I Year BDS Course. His further contention is that, when once a candidate is admitted on the basis of the Marks card produced that too in the absence of any fraud or misrepresentation on the part of the candidate, it is not proper either on the part of the College or on the part of the University to open its eyes at a later stage and find out that the student is not entitled for admission that too when he/she has prosecuted studies for several years and to cancel the admission. To put it in other words, his contention is that the University or the College is estopped from cancelling the admission of the petitioner to Year BDS Course at a later stage when she has been prosecuting her studies for several years, except on grounds of fraud and misrepresentation on her part. In support of this contentions, Sri Shetty relies on the following authorities:

(1) Sanatan Gauda Vs. Berhampur University and others, wherein the Supreme Court has held thus:

"In the instant case the candidate appellant while securing his admission in the Law College had admittedly submitted his marksheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-law and Intermediate Law examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law course. The University is, therefore, clearly estopped from refusing to declare the results of the appellant''s examination or from preventing him from pursuing his final year course. Decision of Orissa High Court, D/-30.7.1987."

(2) REGISTRAR, UNIVERSITY OF MADRAS v. SUNDARA SHETTI AND ORS AIR 1956 Mad 309 wherein it is stated thus:

"The petitioner sat for the Secondary School Leaving Certificate examination held by the Board of Secondary Education Government of Madras, in March, 1952. In due course, the SSLC book was dispatched to him with the marks obtained by him at the public examination entered in it, with a rubber stamp certificate, which ran as follows:

"Certificate completed"

Eligible for admission to University course of studies, Andhra, Madras or Annamalai Universities.

At the bottom of the page on which the marks were entered and the certificate was stamped it bore the signature of the Secretary to the Board of Secondary Education and the date. On the strength of this certificate, the petitioner sought and obtained admission to the Intermediate class, of the college course of the Madras University in Thiagaraja College, Madurai. In March, 1953, he sat for the examination held by the college at the end of the first year of the Intermediate course, and on 7th April, 1953, he was promoted to the Senior Intermediate class. While he was thus studying in the Senior Intermediate class on or about 22nd December, 1953, he was served with a letter from the Principal of the college to the following effect:

''In the list of SSLC holders of Madras, 1952 declared eligible for University course of study published in the Fort St.George Gazette dated 24.9.1952, your name was not found and the matter was under correspondence with the Registrar, University of Madras.

The Registrar, has now sent me the orders of the Board of Secondary Education, Madras, in the matter which says that you are not eligible for a course of study of the University of Madras. Your name is therefore removed from the rolls of the college with the immediate effect which please note.: In the SSLC Book the portion of the stamped certificate which declared his eligibility was scored out.

Held that the rubber stamp endorsement of eligibility of the SSLC book of the petitioner was at best a prima facie proof of the declaration of the eligibility of the petitioner for admission to a University course of study, That by itself would not preclude the University from alleging and proving that the petitioner was not declared eligible and therefore he could not be deemed to have been validly admitted to a university course of study.

But in view of the inconvenience to all concerned in the matter of admissions to the college courses by waiting for the publication of the list of eligible candidates in the gazette months hence, a practice approved by the University was in vogue of endorsing the declaration of eligibility on the SSLC book of the candidate by the Secretary, Secondary Education Board. This function must be understood, as being exercised by the Secretary of the Board on behalf of the University and not in his capacity as the Secretary of the Board.

The University did hold out that the eligibility endorsement on the certificate was prima facie proof of the declaration of the eligibility of the candidate concerned. It is on the strength of the endorsement that the Principal could proceed to make admissions. Otherwise, at the time of admission, there would be no other data to help the Principal to decide whether a candidate was or was not eligible.

This was a case of legal or equitable estoppel which satisfied practically all the conditions embodied in Section 115 of the Evidence Act. A mandamus should issue both to the University of Madras and to the Principal of the Thiagaraja College to forbear from preventing the petitioner to complete his Intermediate course and appear for the intermediate examination in due course."

(3) Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, this Court held as follows:

"The Selection Committee was also required to be very careful in the matter while allotting the students to various Universities. They were required to find out as to whether under the Regulations of a particular University, the applicant allotted to that University was eligible. In the State of Karnataka, each University is having its own Regulations. Apart from the Rules framed by the State Government for selection to I MBBS Course, each University has framed its own Regulations for admission to First Year M.B.B.S. Therefore, the applicant admitted to a particular University is also required to satisfy the Regulations of that University. That being the position, the Selection Committee after selecting the Candidates under the Rules, while allotting them to each colleges under different Universities is required to verify as to whether the candidate is eligible under the . Regulations of that University. If only the Selection Committee had been careful and verified the Regulations of Mysore University Governing admissions, to First Year MBBS, the situation of the nature which has arisen in the instant case, would not have arisen and the petitioner would not have been put to hardship. Under these circumstances, when it was the responsibility of the Selection Committee to allot the candidates, to such of the Universities the Regulations of which permitted admission of such candidates to 1st Year MBBS. The candidate, who is selected for admission to 1st MBBS by the Selection Committee and it is the Selection Committee which allots him to a particular college, and pursuant to it, he joins that college, cannot be told after he/she has undergone studies for several months that he/she is eligible for continuing his/her studies in the University to which the College is affiliated. In addition to this, in the instant case 3 years have elapsed. The petitioner has been permitted to appear for the 1st year examination. She has also appeared for the 1st year MBBS the results of which are not yet announced. If at this stage, she is told that her allotment to the Mysore University is not in accordance with the Regulations of the Mysore University, and therefore, she has to be allotted to another University, it would cause great hardship to her and she would lose 3 years. Not only she loses 3 years, she will be required to undergo another 1 1/2 years to complete the I MBBS Course in another University. The petitioner is not responsible for this situation. It is the Selection Committee, which failed to verity these facts and allotted the petitioner to the University of Mysore without due verification of the Regulations of that University governing admission to I MBBS. Therefore, I am of the view that the observations made in Rajendra Prasad v. Karnataka University and also the observations made in A. Sudha v. University of Mysore are attached to this case also."

(4) SHRI KRISHAN v. THE KURUKSHETRA UNIVERSITY, KURUKSHETRA, wherein the Supreme Court held as under

Once the candidate is 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 candidate cannot be refused admission subsequently for any infirmity which should have been looked - into before giving the candidate permission to appear.

Before issuing the admission card to a student to appear at Part I Law Examination in April 1972 it was the duty of the University authorities to scrutinise the admission form filled by the student 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. If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then in not disclosing the shortage of percentage in attendance the question of the candidate committing a fraud did not arise.

Similarly, when the candidate was allowed to appear at the Part II Law Examination in May 1973, the University authorities had no jurisdiction to cancel his candidature for that examination. If the University authorities acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the Examination, then by force of the University Statute the University had no power to withdraw the candidature of the candidate."

For the above reasons Sri Shetty submits that there is neither fraud nor misrepresentation on the part of the petitioner. When the University itself has treated SSCE as equivalent to II year PUC, the present action of the University at annexures A and B is arbitrary and illegal and as such, the same be quashed.

As an answer to the above contentions Sri N.K. Patil, Counsel for the University, submits that there is no merit in any one of the contentions raised by the petitioner''s Counsel. According to him, the admission of any student to any College affiliated to an University is governed by the Act, Ordinance and Regulations. Further Section 57 of the Act, Ordinance Nos. 8 and 14 of the Bangalore University Ordinance and Regulations 1(a) and (c) of the Regulations dated 17-10-1984 deal with admission and eligibility for admission to BDS Course. They are extracted hereunder:

"Section 57 : Eligibility for admissions of Students:

No student shall be eligible for admission to a course of study for a degree or diploma unless he possesses such qualifications as may be prescribed."

Ordinance 8 & 14:

"8. No college shall make admissions under any circumstances for any course, without a sanctioned intake approved by the University.

The University will consider the approval of admissions from Sl.No. 1 to the extent of sanctioned intake in the statement of admission and within the prescribed date for closing admissions and other conditions have been followed by the Principal. The admission of such candidates as are outside the procedure prescribed will automatically stands rejected."

"Regulation 1(a) & (c);

Admissions : Eligibility;

(i) A person shall be eligible for admission -

a) If he has passed the two year PUC Examination conducted by the Pre-University Education Board of the State of Karnataka with Physics, Chemistry and Biology as Optional subjects or an equivalent examination wherein he has studied Physics, Chemistry and Biology as Optional subjects in the XII Standard or class."

c) If he/she has obtained not 45% of the marks in the optional subjects referred to in Clauses (a) or (b) of the qualifying Examination, if he/she belongs to any of the Scheduled Castes or Scheduled Tribes and 50% of such marks in the case of others."

Sri Patil submits that if Section 57 and the Ordinance and the Regulations are understood properly, the admission of the petitioner was quite arbitrary and illegal as she was not eligible for admission,

According to him, the marks card produced by the petitioner at Annexure-C disclosed that she had passed only in Chemistry, Physics and Mathematics and in other elective subject i.e., Biology, she had failed.

Merely because securing pass marks in other subjects and getting a ''pass'' certificate in SSCE shall not be understood as she has passed in ail the electives.

He desires to interpret Regulation 1(a) which says that admission to 1 year BDS Course:- the student shall have passed PUC with Physics, Chemistry and Biology. Regulation 1(c) prescribes that the student belonging to Scheduled Caste or Scheduled Tribe shall get at least 45% marks in the optional subjects and 50% in case of other students. Regulation 1(c) has to be read as the marks to be obtained by the candidate shall be 50% in each elective subject. According to him ''aggregate'' means both in theory and practical separately and not the aggregate as explained by the petitioner''s Counsel.

Merely because SSCE is treated as equivalent to PUC by the Bangalore University that does not mean that the student who has failed in any one elective subject is entitled for admission.

Further the admission of the petitioner was not on the basis of competitive test, but she secured admission by giving donation.

Marks card was not produced by her well in time.

Moreover, her admission was in excess than the quota allotted. The illegality was on the part of the College in making admission and as soon as it was noticed by the University, the same was made known to the College and action was taken as per Annexure G informing that the admission of the petitioner and others who were admitted in excess as cancelled.

In addition to this, time and again the 2nd respondent/College and other Colleges situated within the jurisdiction of the University were cautioned by issuing notifications that, contrary to the provisions of the Act, Ordinances and Regulations, if any admissions are made, such admissions will not be approved. Ignoring such cautioning, if students are admitted, it is the students and such Colleges to be blamed and it is not for the University to approve such illegal admission.

He further submits that Writ Petition Nos.5405/89 filed challenging the decision of the University at Annexure-G was subsequently withdrawn. As the petitioner''s admission was in excess, the University felt that it is sufficient if her admission is withdrawn without going into other aspects whether she was eligible for admission or otherwise and that was the reason for the University not to choose to cancel the petitioner''s admission on the ground of ineligibility.

Moreover, the records of the admission, marks card, etc., were not verified as there was no necessity.

He also submits that the contention of the petitioner''s Counsel that the University having allowed the petitioner to prosecute her studies for a period of more than 3 years, now the University is estopped from cancelling her admission, has no force in the eye of law.

Moreover, the delay if any in taking action well within time was on account of the Interim Order in W.P.No. 5405 of 1989 wherein the petitioner was permitted to continue her studies, as such, it cannot be said that the delay caused in taking action was on the part of the University, Further, as soon as the intake which was the subject matter in W.P.No. 5405 of 1989 and other connected Writ Petitions was rectified and approved by the Government by its order dated 29-4-1991, action was taken in the month of June, 1991. As such, it cannot be said that the action of the University suffers from any laches as negligence.

Apart from this, Sri Patil submits that the act of the petitioner is an intelligent way of securing admission and asking for condoning the ineligibility on the ground of equity. This action cannot be sustained as law, ordinances or regulations do not permit.

His further case is that, the petitioner is not entitled to seek condonation in the matter of admission, as she was not qualified, as such if any concession is shown now, it becomes a very bad precedent and it will have a very bad effect in maintaining academic discipline. According to him, maintenance of equivalence, standard, discipline, etc., are policy matters and the best judge to, decide the same is the University and ft is not open to the Court to substitute its opinion.

To substantiate his contention, Sri Patil relies on the following Authorities:

(1) Rajendra Prasad Mathur Ors. Vs. Karnataka University and Another, wherein it has been stated thus:

"The appellants did not contend before us that the condition of eligibility laid down by the Karnataka University was not valid and binding. Indeed they could not possibly raise this contention because the condition of eligibility was laid down by the Vice Chancellor in exercise of his emergency powers u/s 12(5) of the Karnataka Universities Act and his action had been confirmed both by the Academic Council and the Syndicate. The appellants also did not rely on the plea of equitable estoppel since it was obvious that the Karnataka University had not made any representation to the appellants that passing of Higher Secondary examination in the State of Rajasthan or of 1st year B.Sc., examination of the University of Rajasthan or Udaipur would be sufficient to make them eligible for admission to the Engineering Degree Course of the Karnataka University and it was not possible to say that the appellants had altered that position relying on any such representation, The only contention urged on behalf of the appellants was that the Higher Secondary examination of the Board of Secondary Education, Rajasthan or in any event 1st year B.Sc., examination of a University of Rajasthan or Udaipur should be regarded as equivalent to the Pre-University examination of the Pre-University Education Board, Bangalore and the appellants who had passed the Higher Secondary examination of the Secondary Education Board, Rajasthan and in any event such of the appellants who had passed the 1st year B.Sc. examination of the Universities of Rajasthan and Udaipur satisfied the condition of eligibility prescribed by the Karnataka University and were therefore eligible for admission to the Engineering Degree Course of the Karnataka University. This contention is in our opinion, wholly unsustainable and cannot be accepted. In the first place, it may be noted that what the condition of eligibility laid down by the Karnataka University requires is that the students seeking admission should have passed the two year Pre-University examination of the Pre-University Education Board, Bangalore or an examination held by any other Board or University which has been passed by the candidate must be recognised by the Karnataka University as equivalent to the two year Pre-University examination of the Pre-University Education Board, Bangalore. The equivalence has to be decided by the Karnataka University and it is not a matter of objective assessment or evaluation by the Court. It is for each University to decide the question of equivalence of an examination held by any other Board or University with the examination which primarily constitutes the basis of eligibility. Here in the present case, the Karnataka University did not recognize the Higher Secondary Examination held by the Secondary Education Board, Rajasthan as equivalent to the Pre-University examination of the Pre-University Education Board, Bangalore. And rightly so, because the Higher Secondary examination of the Secondary Education Board, Rajasthan followed only eleven years schooling while the Pre-University Examination of the Pre-University Education Board, Bangalore came at the end of 10+2 Course that is 12 years study. The Karnataka University also did not recognise the 1st year B.Sc, examination of the Universities "of Rajasthan and Udaipur as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore, in fact, the Academic Council took the view that 1st year B.Sc. examination of any University outside the State of Karnataka could not be recognised as equivalent to the 1st year B.Sc., examination of the Karnataka University and it would therefore, seem to follow a fortiori that the first year B.Sc., examination of the Rajasthan or Udaipur University was not regarded by the Karnataka University as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore. It is also evident from the second part of the condition of eligibility prescribed by the Karnataka University that if a student did not fall in the first part he could be eligible under the second part only if he had passed B.Sc. examination with Physics. Chemistry and Mathematics and that mere passing of first year B.Sc, examination would not be enough. There can therefore be no doubt that the appellants were not eligible for admission to the Engineering Degree Course of the Karnataka University and their admission was contrary to the ordinance prescribing the condition of eligibility.

But it was then contended on behalf of the appellants as a last alternative that the action of the Karnataka University in not recognising the Higher Secondary Examination held by the Secondary Education Board, Rajasthan and in any event the first year B.Sc. examination of the Rajasthan and Udaipur Universities as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore, was arbitrary and unreasonable. We cannot accede to this contention. It is difficult to appreciate how the Higher Secondary Examination held by the Secondary Education Board, Rajasthan after only eleven years schooling could be regarded as equivalent to the Pre-University examination of the Pre-University Education Board, Bangalore which came as the culmination of a full 12 years course of study, So also, it is difficult to understand how the decision of the Karnataka University not to recognise the first year B.Sc. examination of the Rajasthan and Udaipur Universities as equivalent to the Pre-University Examination of the Pre-University Education Board, Bangalore could be regarded as arbitrary or fanciful. It is for each University to decide the question of equivalence and it would not be right for the Court to sit in judgment over the decision of the University because it is not a matter on which the Court possesses any expertise. The University is best fitted to decide whether any examination held by a University outside the State is equivalent to an examination held within the State having regard to the courses, syllabus, the quality of teaching or, instruction and the standard of examination. It is an academic question in which the Court should not disturb the decision taken by the University. Here we find that no material has been placed before the Court on the basis of which the Court could say that the decision of the Karnataka University not to recognize the Higher Secondary Examination of the State of Rajasthan or the first year B.Sc. examination of the Universities of Rajasthan and Udaipur as equivalent to the Pre-University examination of the Pre-University Education Board, Bangalore was arbitrary or not based on reasons. We must, therefore, reject this contention urged on behalf of the appellants."

(2) S. Harinatha Reddy Vs. Bangalore University, wherein it is stated thus:

"It is not the case of the petitioner that the Regulations governing the prescription of equivalence are unconstitutional and illegal. In fact, the petitioner has not challenged the validity of any of the Regulations. The Committee of the Academic Council was within its power to make recommendation of the equivalent to the Intermediate Examination conducted by the Board of Intermediate Education, Hyderabad, which it did at its meeting held on 19-11-1985. The Academic Council of the Bangalore University was also within its power in accepting the recommendation of the Committee of the Academic Council at its meeting held on 27-12-1985. The equivalence, obviously, was determined by exercise of the power conferred on the University under Regulation 1(a). Under the Act, it is the Academic Council which is empowered to make Regulations prescribing equivalence of examinations and schemes of examinations and conditions on which the students are admitted to the examinations under the provisions of Section 27(c) and (k) of the Act. In addition, the provisions of Section 39(1) and (2) of the Act reinforce the statutory position that the Regulations framed by the Academic Council by exercise of all or any of the powers enumerated u/s 27 of the Act may provide for recognition of examinations and degrees of other Universities as equivalent to the examinations and degrees of the University. In these circumstances the fixation of 50% of marks in the qualifying examination in order to be eligible for admission to the B.E. degree course has to be upheld. Since the petitioner had secured only 46% marks in the qualifying examination, there can be hardly any doubt that he was ineligible for admission to the B.E. degree course. There is no merit in the argument that the decision taken by the 1st respondent and the impugned orders deserve to be quashed. On the other hand, I am of the view that the respondents have acted with jurisdiction and they have exercised powers which are conferred on them by statute. The petitioner has not made out any case of misfeasance or malfeasance or nonfeasance.

It is a settled principle of law that there can be no estoppel against statute and a candidate who seeks admission to an academic course is deemed to be aware of the prescribed qualification and even if he is not aware, it may be said that either he ought to be aware of it or that he is presumed to be aware of it.

In the circumstances and on the facts of the case, I am not convinced that there is any violation of principles of natural justice in the light of undisputed questions of fact that the petitioner did not possess the eligibility qualification for admission to the B.E. degree course and, either in law or otherwise, the petitioner is not entitled to an opportunity of hearing before he is discharged from the course. The inherent lack of qualification manifesting the ineligibility of the petitioner does not warrant a hearing before discharge. In fact, if the petitioner was aggrieved, it was always open to him to make representation against the impugned orders on receipt of annexures C and D. The said Annexures themselves could have been treated as show cause notices of discharge. At any rate, the fact is beyond dispute that the petitioner had secured only 46% marks in the qualifying examination and, therefore, was ineligible for admission to the B.E. degree course.

The learned Counsel for the 1st respondent invited my attention to the decision of Court in ASGAR HUSSAIN v. UNIVERSITY OF BANGALORE wherein a similar contention was raised relying upon a decision of the Supreme Court in PUNJAB ENGINEERING COLLEGE v. SANJAY GULATI. It was held by this Court as follows:

"11. It appears to me that the said consideration given by the Supreme Court in favour of the students who had been admitted by conducting a spot-test in violation of the rules and who had completed one or two semesters cannot be applied to cases where the students have been admitted to the course even though they were ineligible for admission. In other words, if certain students, who were eligible for admission to a course were admitted in preference to better merited candidates and if such selection remains undisturbed for considerable time, the Court would decline to set aside their selection for the reasons that though their selection can be said to be contrary to rules of admission, it cannot be said that they were ineligible, for admission. This is because, in the absence of a challenge to such selection before the Court by better merited candidates, the selection of the admission less merited candidates would remain valid and there would be no basis for cancelling the admission of such students. Even in a case where better merited candidates challenged the selection of candidates with lesser merit, it would be open for the Court to decline to interfere on grounds of delay, laches, acquiescence on the part of the petitioning candidate or on other equitable grounds such as lapse of time and the like. But the cases of ineligible candidates whose selection is cancelled by the University stand entirely on a different footing for, the Court is requested to set aside a valid cancellation of invalid admission and it is not open for the Court to do so. The cases of the four petitioners, who are ineligible and still admitted are of this category and, therefore, there is no basis or justification to set aside the orders of the University (See Order made in W.P.No.8782/83 and connected cases dated 5-10-1983,"

There is no substance in the contention of the petitioner that on account of passage of time, equity should be bestowed on the petitioner."

(3) Writ Petition No. 17146 of 85 disposed of on 15-7-1985, it has been stated thus;

"4. The petitioner has, however tried to make out that he had secured more marks than what is entered in the marks card, in support of this, the petitioner has produced a letter dated 15-6-1985 issued by the said Board of School Education, Jammu and Kashmir in respect of some other person. It reads:

''Parvez Ahmad Khanday S/o Gulam Ahmad Khanday R/o Ashipor, Sopore, Kashmir

Ref: His application dated 15-6-1985.

He is informed that the grades secured by him in practical Part of Science subjects of the Higher Secondary Examination Part II at the Biannual session 1983(April) under Roll No: 120 have been shown separately in the marks certificate as the grades/marks secured in practical Part of Science subjects are shown separately in the marks certified list and are neither included with the marks secured in theory part of Science subjects not in the total aggregate, since March 1982.

Sd/- (H.U. LAHARWAL) Assistant Secretary Academic

In the said letter the Board has stated that since March, 1982, the grades secured in practical part of Science subjects are not shown in the marks card and they are shown separately. The petitioner has also produced a certificate to show that the grade secured by him in the Science practical of Physics and Chemistry works out to 29 marks for 50 and 36 marks for" 50 respectively. The said conversion certificate has been issued by

R.A. Rathat v. Islamiah Institute of Technology the Board of School Education, Srinagar. The heading of the certificate reads "NOT MEANT FOR USE IN THE J & K STATE". Even this document does not improve the case of the petitioner. Firstly, as stated in the letter of the said Board of School Education (Annexure L) giving the marks for the practical in the marks card had been discontinued since March, 1982. As far as Bangalore University is concerned what is relevant is the marks entered in the marks card. Therefore, when under the scheme of the examination of the Board of School Education Jammu & Kashmir State the marks obtained in the practicals are not to be included in the marks card, they cannot be taken as the basis to find out the percentage of marks secured by any candidate in the Science subjects in the final examination. Further, it is difficult to appreciate as to how the certificate regarding marks secured by the petitioner in the practical, which cannot be used in the Jammu & Kashmir State becomes useful in other States in India. If the said marks does not constitute the basis for computing percentage of marks in the Higher Secondary Certificate examination in the State of Jammu & Kashmir it cannot also be used in other States. Further, as stated by the petitioner himself, at para 7 of the petition, even including the said marks the percentage of the marks secured by the petitioner works out only 49.7% Therefore, having regard to the language of the Regulation to the effect no candidate, who has secured less than 50% marks is eligible for admission, the petitioner would be ineligible even on the basis that the marks secured by him works out to 49.7%, [See Sobhana Kumar S. and Others Vs. The Mangalore University and Others, The petitioner has stated that there are rules framed by the University that if the marks secured is more than 49.7%, it should be rounded of to 50%. There is no such rule framed by the University. The admission of the petitioner by the 1st respondent to the 1st year B.E. degree course was in contravention of the regulations which the first respondent was fully aware of.

The petitioner pleads that he had spent considerable money in securing admission and prosecuting studies and had also spent considerable time and therefore, his admission should not be disturbed. If this plea were to be accepted the rule of law have no meaning. All that would be necessary to reap the fruits of admission of ineligible candidates is to ensure that it is not brought to the notice of the University for sometime, which is being done in every such case, as is evident from number of such cases coming before this Court. When an ineligible admission is cancelled by the University, it is the duty of this Court to uphold the decision of the University. I should further add that as such instances are many in respect of private engineering colleges in the area of the University that it is not merely sufficient for the University to disapprove such admissions. But to take such actions as are open to it in law against the colleges who are indulging in such malpractices and causing injury to public interest. If the first respondent has collected capitation fee it is open for the petitioner to take action for the recovery of the said amount from the first respondent if he is so advised."

For these reasons, he submits that the Writ Petition be dismissed.

Sri Gangi Reddy adopts the arguments of Sri Shetty. His further submission is that if the University was really serious, it would have definitely taken action against the College which admitted student knowing fully well that the candidate was not eligible and entitled for admission.

It is true that in a good number of cases it is seen Colleges admitting students flouting all Rules and norms and when illegality is pointed out and action is initiated to cancel such admissions, students or institutions plead estoppel or equity. In such cases, when the Act, Ordinances or Regulations do not permit such admission, it is for the University to take action to withdraw affiliation. If bold steps to withdraw recognition or cancel admission are not taken, such illegality will go on.

After hearing both sides and going through the records, I am of the view that everything was not well with the University and the College. It is nobody''s case that the petitioner got admission by playing fraud or misrepresentation. It is not in dispute that the certificate given by CBSE states that the petitioner has passed SSCE. SSCE has been treated as equivalent to II year PUC. It is also not in dispute that the petitioner did study 3 electives Physics, Chemistry and Biology which are required for admission to I year BDS Course. It is not in the University Regulation or the prospectus issued by the College that, to get admission to I year BDS the candidate should have passed all the 3 subjects securing more than 50%. Even otherwise, when the University treated pass in SSCE as equivalent to PUC, merely because a student failed in one subject but made good in other subjects and declared as pass is incorrect to say as not eligible. The ''aggregate'' as suggested by Sri N.K.Patil that 50% in each subject shall be the basis for eligibility is incorrect as, nowhere in the Regulation it is stated that aggregate shall be in each paper and that the candidate should have obtained 50% in each subject. That is why it is said that in case of General Category candidate, the candidate should have 50% of marks in aggregate. Aggregate shall be calculated by putting all the subjects together. For example, a candidate would have secured 40 marks in one subject and 60 marks in another subject. If those marks are put together, the aggregate will be 50%.

If the conduct of the University and the College in allowing the petitioner to prosecute her studies is taken into consideration, it has to be said that the University opened its eyes as far as the ineligibility of the petitioner is concerned only in the month of July, 1991. All the Colleges as per the Karnataka Universities Act, 1976, and the ordinance and the Regulations are required to submit their report about the admission of students, their eligibility, etc. well in time. If there is non-compliance, the University will have wide powers to take action against such College, if the University was really certain that the petitioner''s admission was not only in excess but also she was not qualified to seek admission, the University should have informed the petitioner immediately, so that the petitioner might have withdrawn voluntarily from prosecuting her studies at the earliest stage. Having not done so, it has to be inferred that the University did not notify the College the defect and the ineligibility of the petitioner and it was done only in the month of July, 1991 by which time the petitioner had already completed 2 years and was in 3rd Year BDS Course. It is not in dispute that the Course is of 4 years duration. It is also not in dispute that the petitioner studied Physics and Biology in SSCE and now completed 3 years course. Further, it is not in dispute that the admission of the petitioner was not on account of any fraud or misrepresentation. In such cases it is very harsh, unreasonable and quite incorrect to take a decision that the petitioner was not entitled for admission. In addition to this, in matters of this type authorities will have to be more practical and reasonable than to be prejudicial.

The Authorities relied upon the petitioner''s Counsel apply in all fours to the case on hand, while the Authorities relied upon by the respondents are not applicable to the case on hand as they are distinguishable on facts.

From the above discussion and on the perusal of the documents produced, it is clear that the petitioner, at the time of seeking admission for I Year BDS, had the requisite qualification. Marks obtained by her in the qualifying examination were the minimum prescribed by the University concerned. There was nothing to disentitle the petitioner to seek admission. Admission was sought by placing all the material about her eligibility and the same was accepted and acted upon by the College. Her admission was made known to the University within the prescribed period. If the University was of the opinion that petitioner''s admission was illegal as she did not possess the requisite qualification at the time of admission, it should have taken steps at the earliest stage itself to cancel her admission. On the other hand, it allowed the student to continue her studies, thus making both the petitioner and the College to feel that her admission a valid one. As such, it has to be said that it is not proper for the University to cancel the petitioner''s admission. Moreover, when fraud or misrepresentation on the part of the student or the College in seeking admission is neither pleaded nor established, it is not proper on the part of the University to say at the fag end of the student''s career that her admission deserves to be cancelled as, by its own conduct, University is clearly estopped from either cancelling the student''s admission or preventing the student to continue and complete her studies.

Hence, this Writ Petition is allowed. Orders at Annexure-A and B are quashed and a direction is given to the respondents to allow the petitioner to prosecute her studies in BDS Course in the second respondent-College and to declare her performance in the second year examination in BDS Course and also other examinations if any the petitioner had appeared forthwith.

No costs.