Zahida Khatoon Abdul Kaiyoom vs The Principal Anjuman I Islam ...
2021 Latest Caselaw 2562 Bom

                     R.V.Patil                                                  WP(L) No. 5977.2020 OS.doc
Aarti G.
Palkar                                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           ORDINARY ORIGINAL CIVIL JURISDICTION
Digitally signed
by Aarti G. Palkar
Date: 2021.03.11                            WRIT PETITION (L) NO. 5977 OF 2020
11:59:07 +0530
                     Zahida Khatoon Abdul Kaiyoom                            ...Petitioner
                                 vs.
                     The Principal
                     Anjuman I Islam/s Begum Jamila Haji
                     Abdul Haq College of Home Science & Ors.                ...Respondents
                                                               ......
                     Mr. Sushil Shukla for the Petitioner.
                     Mr. A. G. Kothari for Respondent No. 1.
                     Mr. Kiran Gandhi i/b Little & Co. for Respondent No. 2
                     Mr. Milind More, Addl. G.P. for Respondent No. 3.

                     CORAM               : S. C. GUPTE AND SURENDRA P. TAVADE, JJ.

                     DATE ON WHICH JUDGMENT IS RESERVED: FEBRUARY 8, 2021
                     DATE ON WHICH JUDGMENT IS PRONOUNCED: FEBRUARY 9, 2021

                     JUDGMENT (PER SURENDRA P. TAVADE, J.) :

. Rule. Rule taken up for hearing forthwith by consent of both the

parties.

2. The Petitioner challenges the cancellation of her result of class 12 th

(Science) examination held in the month of February 2020 by Respondent

No. 2- Board.

3. In the month of March 2018, the Petitioner appeared for her class 12 th

(Science) examination, for the frst time; she did not score requisite marks

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for pursuing Medical Education Course. The Maharashtra Secondary and

Higher Secondary Education Boards Regulation, 1977, permits students to

attempt improvement of marks secured at previous examination by making

two further attempts. The Petitioner appeared for class improvement in 12 th

examination held in February 2019 but she did not succeed in securing the

necessary marks to pursue the Medical Education Course. It is further

contended that the Petitioner appeared for the second time to improve her

marks in the 12th examination held in February 2020. This time she secured

the necessary marks for pursuing Medical Education Course. The result was

declared in the month of July 2020. Respondent No. 2 declared such result

and marks obtained by the Petitioner were displayed on internet.

4. It is contended that the Petitioner was admitted to 12 th examination

held in February 2020. She had been issued a hall ticket and appeared for

the same and was declared successful by Respondent No. 2. Respondent

No. 2 refused to hand over original / physical marksheet and withheld the

result. The Petitioner met ofcers of Respondent Nos. 1 and 2 on several

occasions but nobody gave any response. As the matter was crucial and as

the Petitioner's entire education and career was at stake, the Petitioner's

father along with the Petitioner has been running from pillar to post to get the

physical/original marksheet of the result of the Petitioner declared by

Respondent No. 2. The registration for counseling round for securing a seat

for medical education at All India Level, had started from 26 October 2020

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and the same was in process till 2 November 2020. The physical marksheet

of the Petitioner in respect of the results declared by Respondent No. 2 was

necessary for registration for the medical course, failing which the Petitioner

would have been disqualifed. Hence, the Petitioner approached this Court

by fling Writ Petition No. 5333 of 2020 seeking reliefs as more particularly

prayed therein. The said petition was heard and on the date of hearing of

the above writ petition, Respondent No. 2 had circulated a compilation of

documents to be relied upon by the Respondent. In the said compilation,

Respondent No. 2 had circulated a letter dated 4 September 2020

contending that the Respondent had cancelled the result of the Petitioner.

The letter dated 4 September 2020 is a show cause notice issued by

Respondent No. 2 to Respondent No. 1 and the same had never been

communicated to the Petitioner. Hence, the Petitioner withdrew Writ

Petition No. 5333 of 2020 with the leave of the Court to fle a fresh petition,

impugning the illegal cancellation of her result and / or the examination of the

Petitioner for February 2020. The Petitioner thereupon fled the present

petition, wherein this Court by an interim order allowed the Petitioner to

participate in the counseling round subject to the decision of this petition.

5. It is contended that Respondent Nos. 1 and 2 have thoroughly and

miserably failed to perform their respective duties and for the said reason,

the Petitioner was being subjected to undue and uncalled for harassment

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and admonishment. It is submitted that the action by Respondent No. 2

allegedly cancelling result of the Petitioner in respect of examination

conducted by it for class 12th is illegal, void, high handed, malicious, and not

binding upon the Petitioner.

6. It is contended that Rule 92(6) of the Regulations of the Board states

that the examinee can appear for class improvement examination twice as

per amended rules, within the next academic year, however, the rules are

silent on the aspect of the student appearing for the class improvement

examination beyond the period of one academic year. It is contended that

Boards Rules do not provide for cancellation of the declared results. It is

further contended that once the student is allowed to appear for the

examination and the result with respect to the same is declared by

Respondent No. 2, it is not open for Respondent No. 2 to cancel the said

declared result. It is contended that the forms for appearing in the

examination have been flled in the month of October 2019 and the

examinations were held in the month of February 2020 and Respondent No.

2 had ample time to scrutinize the examination form and fnd out if the same

was in order.

7. It is submitted that equally, it was the duty of Respondent No. 1 before

submitting the form to Respondent No. 2 to see that the form complied with

all the requirements of law. It is contended that neither Respondent No. 1

nor Respondent No. 2 took care to scrutinize the examination form of the

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Petitioner. The Petitioner did not commit any fraud or misrepresentation.

8. It is contended that Respondent No. 2 had granted the Petitioner's

Admit Card / Hall ticket and thereafter published her result in respect of the

examination on their ofcial website. It is only at the stage of procuring a

physical copy of her result of the said examination that Respondent No. 2

raised the objection of her so-called ineligibility to appear in the said

examination; Respondent No. 2 is, therefore, clearly estopped from

cancelling the Petitioner's result and refusing to hand over the physical copy

of marksheet of the Petitioner. It is contended that Respondent No. 2 has

not followed proper procedure. Hence, it is prayed that directions may be

given to Respondent No. 2 to issue physical marksheet / result to the

Petitioner in respect of the examination conducted by it in the month of

February 2020 of class 12th forthwith as a special case.

9. Notice of this application was served upon the Respondents.

Respondent No. 1 has fled its reply. It is admitted by Respondent No. 1 that

the Petitioner appeared for her class 12 th examination in the month of

February 2018 as a regular candidate and thereafter, again appeared under

Class Improvement Scheme (CIS) in the month of February 2019. She

could not succeed in getting the requisite marks to pursue and apply for

Medical Education Course. It is further contended that the Petitioner along

with her father approached the College on 1 November 2019 and expressed

the desire of the Petitioner to once again appear for the H.S.C examination

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to be held in February 2020 under Class Improvement Scheme. It is

contended that the Principal of Respondent No. 1 informed the Petitioner

and her father that Respondent No.1 was required to ascertain the eligibility

of the Petitioner in this regard, to which the Petitioner and her father

informed that they had been to H.S.C Board ofce, at Vashi and they were

verbally informed that the Petitioner could appear for class improvement

twice after the initial appearance in the H.S.C examination and accordingly,

they insisted on flling H.S.C examination form, whereas Respondent No.1

did not immediately commence the process of flling H.S.C examination form.

Respondent No.1 was trying to ascertain the Petitioner's eligibility to appear

for H.S.C examination to be held in February 2020 from Respondent No. 2. It

is contended that the Petitioner's father warned that if the school did not fll

the H.S.C examination form of the Petitioner, they would approach the H. S.

C Board and media with complaints. It is contended that after a clerk from

the ofce of Respondent No. 1, Ms. Shabana Shaikh, made an inquiry in the

ofce of Respondent No. 2, she was told by a lady ofcer, Mrs. Tara Narkar,

that the Petitioner could appear for class improvement twice after the initial

appearance in the H.S.C examination. Thereafter, Respondent No. 1

obtained a printed form from the ofcer of Respondent No. 2, wherein it was

stated that the candidate could appear for class improvement twice after

initial appearance in the H.S.C examination. On being satisfed that the

Petitioner could appear for class improvement twice after initial appearance

in the H.S.C examination and being under tremendous pressure,

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Respondent No. 1 directed the concerned clerk to fll the online examination

form of the Petitioner for February, 2020 H.S.C examination. It is admitted

that after flling the form, the Petitioner received Hall Ticket and accordingly,

she appeared for the examination.

10. It is contended that Respondent No. 1 did not receive any circular or

communication regarding the newly added Rule 92(6) in the Maharashtra

Secondary and Higher Secondary Education Boards Regulations, 1977. It is

contended that the said Rules are not in public domain nor was there any

other way by which such Rules could have been discovered by Respondent

No. 1. The allegations made against Respondent No. 1 are denied. It is

contended that Respondent No. 1 has not indulged in any wrong or illegal

activity.

11. Respondent No. 2 fled its reply through one Sandeep Sanghave,

Divisional Secretary of Respondent No. 2. It is contended that Respondent

No. 2 is constituted under the provisions of Maharashtra Secondary and

Higher Secondary Education Board Act, 1965; it is also governed by

regulations known as Maharashtra Secondary and Higher Secondary

Education Board Regulations, 1977. The said regulations have been framed

under the provisions of the Act and have come into force on 15 June 1977.

It is contended that the State Board, in consultation with the Standing

Committee and the State government, issued Notifcation No. 4218 dated 5

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June 2008 and implemented the Class Improvement Scheme. Under the

said scheme, an option to S.S.C and H.S.C students was provided for

reappearing in any one of the next continuous examinations held by the

Board (in the next academic year) for improvement of their score at the

examination.

12. It is contended that on the request of parents and students, the State

Board, in consultation with the Standing Committee and the State

Government, modifed Regulation 92(6) whereby under the Class

Improvement Scheme an option provided for reappearing in two continuous

next examinations held by the Board (in the next academic year), i.e

October and March examinations. Under the said scheme, the student has a

choice to select either of the examination marksheets. The notifcation to

that efect was issued on 27 December 2012. It is contended that the

student is accordingly eligible to opt for Class Improvement Scheme twice in

continuous next two examinations conducted by the Board, i.e October and

March; thereafter, the student is not eligible to reappear for the examination.

It is contended that considering the academic career of the students from the

year 2016, the Board is taking continuous examinations in the month of July

and March. It is contended that the Standing Committee of the Board has

power to cancel the results of the examinations under Regulation No.102 (3)

which reads as under:

"102(3)-In any case, where results of the examination has been ascertained and declared and it is found that such

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result has been afected by any malpractice, fraud or any other improper conduct whereby a candidate has, in the opinion of the standing committee, shall have power that any time, notwithstanding the issue of the Higher Secondary Certificate or the award of a prize of scholarship, to amend the result of such examination and to make such declaration as it may consider necessary in that behalf."

13. It is contended that each and every Rule and Regulation of the Board

has been communicated to concerned Education Institutions at the time of

afliation granted by the Board. Any amendments to the Rules and

Regulations are intimated by the Board, through, its ofcial website to all

Authorities and Institutions. It is contended that all amendments to the

Rules and Regulations of the Board are widely published by the Board

through the State Government in media.

14. It is admitted that the Petitioner is a student of Respondent No. 1-

College and appeared for H.S.C examination for Science stream on

February / March 2018. Respondent No. 2 declared the results of H.S.C

examination sometime in the month of June, 2018, in which the Petitioner

scored 368 marks out of 650, i.e 56.62%. The Petitioner applied for

reexamination under the Class Improvement Scheme and accordingly,

appeared for the examination held in the month of February / March 2019.

The result of the Petitioner was declared in the month of June, 2019. The

Petitioner scored 338 marks out of 650 i.e 52%. As per the Rules, the

Petitioner submitted an option form duly certifed by Respondent No. 1 and

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accepted the results of the February / March 2018. It is contended that the

Petitioner was entitled to appear for examination under Class Improvement

Scheme in continuous two examinations, namely, July 2018 and March

2019 and her eligibility to appear for examinations under the said scheme

came to end in March 2019 as per Regulation 92(6). It is contended that the

Petitioner applied for an option under the said scheme in February / March

2020 under Class Improvement Scheme. It is contended that the results of

February / March 2020 were declared in the month of July 2020 and the

same were uploaded on the website of the Board. The Petitioner scored 403

marks out of 650 i.e 62%. As per the Board's Rule, physical marksheet of

the student who appeared under Class Improvement Scheme is not issued

to the Institution. As per Regulations, students are required to opt their

choice. On or about August 2020, the Petitioner submitted the option form

duly certifed by Respondent No. 1 under the said scheme and accepted the

result of February / March 2020; at that point of time the Board has come to

know the improper conduct of the Petitioner that despite being ineligible

under the scheme, she appeared for H.S.C examination in February / March

2020. It is contended that the Board does not have the power to release the

improved marksheet of February / March 2020 examination to the Petitioner,

and therefore, the Board has not issued the marksheet to the Petitioner.

15. It is contended that on inquiry, Respondent No. 1 intimated

Respondent No. 2-Board by letter dated 18 August 2020 that Respondent

No. 1 was not fling the application form but the parents of the student

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threatened them, and therefore, they flled up the form. It is contended that

by letter dated 4 September 2020 the Board intimated Respondent No. 1

that the result of the Petitioner for February / March 2020 was cancelled and

also issued a show cause notice to Respondent No. 1 as to why the afliation

and index number given by the Board should not be cancelled.

16. It is contended that in February / March 2020, at the H.S.C

examination in Mumbai Division approximately 3,14,449 students flled up

application forms through their respective Institutions / Colleges and it is

impossible for Respondent No.2-Board to scrutinize each and every

application form received by it. It is the responsibility of the Institutions /

Colleges to certify all details flled up in the examination forms including

eligibility criteria of candidates. It is contended that the Petitioner claimed

that, she was unaware of the Regulation 92(6) but it is well settled law that

no one can justify that she was unaware of the law; ignorance of any law

cannot constitute an excuse. It is contended that the Petitioner has failed to

make out any case. Hence, it is prayed that the petition be dismissed.

17. Heard learned Counsel for the Petitioner and the Respondent.

Admittedly, when the Petitioner appeared for class 12 th (Science)

examination held in month of March / February 2018 for the frst time, she

could not secure good marks and hence, she decided to reappear for 12 th

examination again under the Class Improvement Scheme as per Rule 92(6)

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of the Maharashtra Secondary and Higher Secondary Education Board

Regulations. Students are permitted to appear for Class Improvement

Scheme by making two attempts in the next academic year. The Petitioner

appeared for 12th class examination frst time in the month of February /

March 2018, as she was desirous of pursuing a career in medicine, and was

unable to secure adequate marks for pursuing the medical course, she

opted for Class Improvement Scheme under the said Regulations. She

made the frst attempt in February 2019 but again did not secure the

requisite marks. Under the scheme, two consecutive attempts are

permissible after the initial examination.

18. The Class Improvement Scheme was frst time introduced in the year

2010 by amending original Regulations, wherein only one attempt was given

to the students to appear for Class Improvement Scheme . Thereafter, the

said Regulation was amended in the year 2013-2014. As per the said

amendment, the option is available twice, and that too within the next

academic year. Students appearing in March examination can, under the

scheme, opt for re-examinations in July and March of the following academic

year. In the present case, the Petitioner appeared for 12 th examination for

the frst time in March 2018; so she was eligible to avail of the Class

Improvement Scheme in the examinations to be held in July 2018 and March

2019. She made her frst attempt under the scheme in February 2019 and

thereafter, she appeared for examination in February / March 2020.

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 R.V.Patil                                              WP(L) No. 5977.2020 OS.doc

Obviously, the Petitioner was not entitled to appear for 12 th examination held

in February / March 2020 under the Class Improvement Scheme.

19. It is the case of the Petitioner that she was not aware of the

Regulations and was completely dependent on the information given by

Respondent No. 1. The Respondent, however, has come up with the story

that due to pressure from the Petitioner's parents, it allowed the Petitioner to

fll up the form for 12th examination to be held in February / March 2020.

Respondent No. 2 has also issued notice to Respondent No. 1, calling upon

it to show cause how it had allowed the Petitioner to fll up the examination

form. Respondent No. 1 has given a detailed reply to this notice, wherein

this assertion has been made. It also appears from the reply of Respondent

No. 1 that it had the knowledge that only two attempts within the next

academic year were allowed under the Class Improvement Scheme. No

doubt, Respondent No. 1 has taken a stand that the amendment in the

Regulation was not communicated to the institution but we are unable to

accept that stand, because the amendment was duly published on the

website of Respondent No. 2 Board and even otherwise vide publicity was

given to it on 1 January 2014. It was the duty of Respondent No. 1 to verify

the eligibility of the Petitioner and only upon such verifcation, it should have

allowed her to appear for the examination.

20. In the event, the amended regulations are a piece of subordinate

legislation, duly published in public domain and it is not permissible for

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anyone to cite its ignorance with a view to get out of its rigours.

21. The results of students appearing under the Class Improvement

Scheme are ordinarily declared along with the results of other students

appearing at the particular examination. However, these former students do

not get their marksheets on the date of the result. On announcement of the

result, they have to give an option (in option form), disclosing which

particular marksheet, whether of the earlier examination or of the new

examination, is to be accepted, before asking the Board to issue marksheet

of the examination given under this scheme. After declaration of the result, it

was mandatory for the concerned School /Junior College to, thus, submit the

Petitioner's option form regarding acceptance marksheet under the Class

Improvement Scheme within one month. (If such demand is made within

one month, marksheet is issued free of costs.) If she was to take a decision

to accept the later result, it would be necessary for her to deposit her original

marksheet (of earlier examination) along with her option form to the Board.

Only thereafter, she could be issued the marksheet of the examination form

under the said scheme. The above procedure has been laid down in the

Regulations of the Board. On going through the said procedure, it cannot be

said that Board had wrongly or illegally withheld the marksheet of the

Petitioner.

22. In the present case, the Petitioner has fled on record a copy of her

Option Form under Class Improvement Scheme. The said form was

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submitted after the declaration of the result of 12 th examination held in

March, 2019. In the said option form, marks secured by her for frst

examination namely March 2018 and second examination March 2019 are

mentioned. The Petitioner has categorically accepted the marks obtained by

her in the 12th examination held in March 2018. It has also been mentioned

in her option form that she scored less marks in her frst attempt of Class

Improvement Scheme, and therefore, requested for treating the examination

in her attempt at Class Improvement as cancelled and she accepted the

marksheet of class 12th examination held in March 2018. So as per the

Regulations, the Petitioner could be said to have accepted the marksheet of

February / March 2018 after appearing the Class Improvement Scheme in

the month of February / March 2019. Thereafter, she has no further option

to appear for the Class Improvement Scheme. As per the applicable Rules,

the Petitioner could have made only two attempts to appear for Class

Improvement Examination, in the immediately following academic year after

passing of her original examination.

23. Learned Counsel for the Petitioner submits that Respondent Nos. 1

and 2 have not taken due care in scrutinizing the application form of the

Petitioner, and therefore, her result cannot be cancelled after its declaration.

It is also submitted that the Petitioner was not at fault but it was Respondent

No. 1 who failed to perform its duty, and for which the Petitioner should not

sufer. Learned Counsel relies on following Judgment ratio laid down in the

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case of Ms. Syeda Aufya Ahmad V/s. The Rashtrasant Tukadoji

Maharaj & Ors. {WP. No. 4863 of 2012}. On the other hand, Respondent

No. 2 submits that it was incumbent upon Respondent No.1 to verify the

eligibility of the Petitioner before submitting her form for Class Improvement

examination. The Rules of Class Improvement Scheme are put on the

website of Respondent No.2; similarly those were circulated to all institutions

afliated to Respondent No. 2. So Respondent No. 1 cannot say that it had

no knowledge of the Rules of Class Improvement Scheme. He also submits

that lakhs of students appear for the 12 th class examination every year, and

it is difcult for Respondent No. 2 to verify each and every form submitted by

the students. Learned Counsel also submits that the information submitted

by Institutions / Colleges regarding students is accepted by Respondent No.

2 before examination. As far as Class Improvement Scheme is concerned, it

is only when candidates fll up forms to opt for the marksheet at any

particular attempt, does the Board make scrutiny of the said forms. It is

contended that in the present case, the Petitioner submitted her option form,

opting for marks of the examination of March 2020; at that point of time, on

scrutiny, it was revealed that the Petitioner was ineligible. It is submitted that

Respondent No. 2 has not, accordingly, committed any wrong or illegality.

He also submits that the Petitioner had the requisite knowledge about the

scheme but concealed the real facts of the earlier examinations given by her;

therefore, the conduct of the Petitioner as well as Respondent No. 1 is

improper, and no fault can be found with respect to the action of Respondent

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No. 2. He relies on the ratio laid down in the cases of (i) A. P. Christians

Medical Education Society V/s. Government of Andhra Pradesh and

Anr. {(1986) 2 SCC 667} and (ii) Regional Ofcer, CBSE V/s. Ku.

Sheena Peethambaran and Ors. {(2003) 7 SCC 719}.

24. On going through the admitted facts and the Class Improvement

Scheme, it is clear that the Petitioner was not eligible to appear for the

examination held in the month of February / March 2020. The blame is put

on Respondent No. 2, in view of the fact that the Petitioner was allowed to

appear at the March 2020 examination by Respondent No. 2, who also

declared her result. The judgments cited by the Petitioner's Counsel do not

support his case as we shall presently point out.

25. The Apex Court in the case of A. Sudha V/s. University of Mysore

and another {(1987) 4 SCC 537} was concerned with a candidate, who

was not eligible for admission in the First Year MBBS Course of Mysore

University, but who, relying upon the information supplied to her by the

Principal of the Institute, had taken admission to the course. Though the

Court dismissed her special leave petition, it nevertheless directed that the

appellant should be allowed to prosecute her studies. Reference may be

made to paragraph 18 of the said judgment, which reads thus:

"18. The facts of the instant case are, more or less, similar to the Rajendra Prasad Mathur case. It has been already noticed that on the appellant's query, the Principal of the Institute by his letter dated

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February 26, 1986 informed her that she was eligible for admission in the First Year MBBS course. It was, inter alia, stated in the letter that the candidate should have obtained 50 percent marks in the optional subjects in the B.Sc. Examination. There is no dispute that the appellant had obtained 54 percent marks in those subjects in the B.Sc. Examination. The appellant was, therefore, quite innocent and she was quite justifed in relying upon the information supplied to her by none else than the Principal of the Institute in the said letter in regard to the eligibility of the admission in the First Year MBBS course. In the circumstances, we do not think that we shall be justifed in penalizing the appellant by not allowing her to continue her studies in the MBBS Course. Prima facie it was the fault of the Principal of the Institute but, in our view, the statement that was made by him in his said letter to the appellant as to the eligibility of the appellant for admission to the MBBS Course, was on a bona fde interpretation of the regulations framed by the Mysore University for admission to MBBS course for the academic year 1985-86, which to some extent sufer from ambiguity. The regulations should have been more clear and specifc. Be that as it may, following the decision of this Court in Rajendra Prasad Mathur case while we dismiss the appeal, we direct that the appellant shall be allowed to prosecute her studies in the MBBS and that her result for the First Year MBBS examination be declared within two weeks from date."

26. The Apex Court in the case of Sanatan Gauda V/s. Berhampur

University & Ors. {1990) 3 SCC 23}, was considering a similar situation.

In the said case, application by the student for appearing in the

examination was forwarded by the College. When the application by the

student for appearing in the examination was forwarded by the College,

the University asked the Principal of the College to send the student's

mark list for the purpose of verification, but the Principal did not comply.

However, the Principal sent a letter stating that the mark list of the student

would be sent in a few days to the University for "your kind reference and

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verification", but it was never sent. In spite of this, the University

Authorities had allowed the student to appear in the examination; but his

result was withheld; and, therefore, he approached the Orissa High Court

by filing a writ petition. The writ petition was dismissed. The student went

in appeal before the Apex Court. The Hon'ble Judges of the apex Court

delivered separate judgments, both, however, held that the action of the

University in withholding the result of the appellant was not justified. In the

judgment delivered by Hon'ble Shri Justice Savant, it is observed in para

15, as follows:

"15 This is apart from the fact that I find that in the present case the 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."

It is also relevant to refer to para 3 of the judgment delivered by Hon'ble Shri

Justice Sharma, which reads thus:

"3 Mr. P. N. Misra, the learned Counsel for the respondent, contended that the University had informed the Colleges about the necessary condition for admission to the Law Course which, it appears, was not respected by the College. When the applications

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by the candidates for sitting at the examination were forwarded by the College, the University asked the Principal to sent the marks of the candidates for the purpose of verifcation, but the Principal did not comply. The letters - Annexures 'F' and 'G' to the counter afdavit have been relied upon for the purpose. The learned Counsel pointed out that instead, the Principal sent a letter Annexure 'I' stating that the marks-list would be sent in a few days for "your kind reference and verifcation", which was never sent. The Principal wrongly assured the University authorities that he had verifed the position and that all the candidates were eligible. In these circumstances, the argument is, that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination. I am afraid, the stand of the Respondent cannot be accepted as correct. From the letters of the University, it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself. In that situation, it cannot punish the student for the negligence of the Principal or the University authorities. It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody. He had produced his marksheet before the College authority with his application for admission and cannot be accused of any fraud or misrepresentation. The interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as correct. In such a situation, even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question. It was the bounden duty of the University to have scrutinized the matter thoroughly before permitting the appellant to appear at the examination and not having done so, it cannot refuse to publish his results."

27. In the case of Shivanandam Vivekanand Babu and Anr. V/s.

State of Maharashtra and Ors. {(2005) 10 SCC 587}, minimum 50%

marks were required as eligibility for being admitted to M.B.A. Course and

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relaxation of 5% marks was provided for reserved category candidates

only from the State of Maharashtra. However, the Institute in the

prospectus and advertisement had stated that the relaxation shall be

granted to all reserved category candidates. The candidates who

belonged to reserved category were from the State of Andhra Pradesh.

They were possessing more than 45% marks, but less than 50% marks.

Admissions were given to them and their results till the third semester

were declared. However, their results of the fourth semester were not

declared. The writ petition filed by them was dismissed by this Court.

While allowing their appeal, the Apex Court observed in paras 9 and 10 of

the judgment, as follows:

"9) From a conspectus of the facts of the case, it is clear that the appellants cannot be accused of having played any trick, much less any fraud on any of the respondents. They stated the facts correctly. If ineligible, it was for the College to have refused admission to the appellants. On the material forwarded by the College to the University, the University permitted the appellants to take not one, but four examinations in sequence spread over a period of two years. If the College has been guilty of any misdeed, it does not appear from the record that any action was taken by the University against the College. In such circumstance, we do not think that the appellants who come from a downtrodden class of community, can be made to suffer for no fault of theirs.

10) On the facts and circumstances of this case, we find that the appellants could not have been denied relief sought for from the High Court. The appeals are, therefore, allowed. The impugned judgment of the High Court is set aside. Respondent No. 2 University is directed to declare the result of two appellants forthwith. By way of abundant caution, we make it clear that we have proceeded to decide these appeals on the facts and

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circumstances of this case as stated hereinabove. We have not in any manner decided the question of eligibility of the appellants or validity of the rule enacted by the University."

28. In the case of Guru Nanak Dev University V/s. Sanjay Katwal and

Anr. {(2009) 1 SCC 610}, the qualification prescribed by the University

was Bachelor's degree with not less than 45% marks or Master's degree.

The candidate had appeared for competitive test for admission to L.L.B

Course. He was declared successful and was admitted to St. Soldier Law

College. After scrutinizing the record, the appellant University even

registered the candidate and examination roll number was also given to

him for the first semester. There was exchange of communications

between the University and the College regarding the eligibility of the

candidate, since he possessed M.A. Degree from Annamalai University

through distance education. The University did not agree with the

representation of the candidate and directed cancellation of his admission.

Being aggrieved, the candidate approached the High Court by way of a

writ petition. The Petition was allowed. Being aggrieved, the University

went in appeal before the Apex Court. In the appeal, though the Apex

Court found that the candidate was not eligible and as such, allowed the

appeal of the University, the Apex Court observed in paras 18 and 19 of

the judgment, which read thus:

"18) However, on the peculiar facts of the case, the first respondent is entitled to relief. The first Respondent was admitted through a common entrance test process during 2004-2005. He

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was permitted to take the first semester examinations by the University. He is not guilty of any suppression or misrepresentation of facts. Apparently, there was some confusion in the appellant University itself as to whether the distance education course attended by the first respondent was the same as the correspondence course, which was recognized.

19) The first respondent was informed that he was not eligible only after he took the first semester examination. He has, however, also been permitted to continue the course and has competed the course in 2007. He has succeeded before the High Court. Now after four years, if it is to be held that he is not entitled to admission, four years of his career will be irretrievably lost. In the circumstance, it will be unfair and unjust to deny the first respondent the benefit of admission, which was initially accepted and recognized by the appellant University."

29. Relying on the Judgments of the Apex Court, similar views have

been taken by Division Benches of this Court in various matters, including

in the case of Arshdeep Vs. Maharashtra State Board of Secondary and

Higher Secondary Education, Nagpur and others (1991 (1) Mh.L.J. 304),

Sunil s/o Gopalkrishna Tuvlare and another Vs. Principal, Sou. Vasudhatai

Deshmukh Krishi Vidyalaya, Akola and others (2004 (2) Mh.L.J. 99) and

Ganesh R. Baheti Vs. University of Pune and another (2003 (4) Mh.L.J.

140).

30. What we notice from the judgments referred to above is that in all

those cases, after admissions were wrongfully given to the concerned

students, they pursued their education for a number of years, in some

case having even completed the course. It was at that stage that the

concerned Universities sought to withhold their results. In none of the

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cases, the Supreme Court accepted the eligibility of the students to be

admitted to the courses undertaken by them. In fact, their SLPs or

Appeals, as the case may be, were dismissed. The reliefs given to them,

despite such dismissal and practically holding them to be ineligible, were

on account of peculiar facts of their individual cases. In the first place, the

students were not in the fault at all. Secondly, it was the Universities

which were actually at fault in admitting them to the courses. Thirdly, after

being admitted to the respective courses, the students had pursued the

same for a number of years, some, as noted above, even having

completed the courses. On these facts, the Supreme Court took the view

that the Universities were estopped from withholding the students' results.

In our case, the facts are entirely different. The student before us cannot

be said to be unaware of the regulation concerning class improvement.

Having actually applied for an opportunity to appear for re-examinations

under the particular scheme, she could be said to be aware of the

regulation or, in any event, could not feign ignorance of it. Neither the

college nor the University, in our case, could be said to have misled the

student in allowing her to submit her examination form at the examination

held in March 2020 or to appear at it. At the very first opportunity, when

the student submitted her option form, the Board scrutinized her case

and declined to issue her the marksheet. (The Board could not be

faulted for allowing her to appear, as there are lakhs of students appearing

every year and the Board might well rely on colleges for the students'

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eligibility to appear at the examination.) Lastly, the student in our case has

not prosecuted her further studies based on the Board's action in allowing

her to appear at the 12th Class examination. She wants the Court to allow

her to take advantage of her appearance at the examination for

prosecution of further studies. In other words, she wants this Court to

direct the authority to disregard its own regulation and that too without

there being any mitigating circumstance or equity in her favour. In fact, the

case of the present Petitioner can be likened more to the following cases

decided by the Supreme Court.

31. In A.P. Christians Medical Educational Society Vs. Government

of Andhra Pradesh and another {(1986) 2 SCC 667}, the College, in

spite of not having affiliation, had published a prospectus and

advertisement, inviting applications from students for being admitted to the

MBBS course. Noticing this, the University had published a notification

twice, informing the public in general and the student community in

particular that Osmania University had neither permitted nor granted

affiliation in the MBBS course of the above Institution, making it clear that

"whoever seeks admission in the above Institution will be doing so at

his/her own risk". In this factual background, the Apex Court observed the

following in para 10 of the judgment:

"10 Shri K. K. Venugopal, learned Counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed

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because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the medical college established by the Daru-Salam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri. Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri. Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statue to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws. The case of the medical college started by the Daru-Salam Trust appears to stand on a different footing as we find from the record placed before us that permission had been granted by the State Government to the Trust to start the medical college and on that account, the University had granted provisional affiliation. We also find that the Medical Council of India took strong and serious exception to the grant of provisional affiliation whereupon the University withdrew the affiliation granted to the college. We are unable to treat what the University did in the case of the Daru-Salam Medical College as a precedent in the present case to direct the University to do something which it is forbidden from doing by the University Act and the regulations of the University. We regret that the students who have been admitted into the college have not only lost the money which they must have spent to gain admission into the college, but have also lost one or two years of precious time virtually jeopardizing their future careers. But that is a situation which they have brought upon themselves as they sought and obtained admission in the college despite the warnings issued by the University from time to time. We are happy to note that the University acted watchfully and wakefully, issuing timely warnings to those seeking admission to the institution. We are sure many must have taken heed of the warnings issued by the University and

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refrained from seeking admission to the Institution. If some did not heed the warnings issued by the University, they are themselves to blame. Even so if they can be compensated in some manner, there is no reason why that may not be done. We are told that the assets of the institutions, which have sprung out of the funds collected from the students, have been frozen. It is up to the State Government to devise suitable ways, legislative and administrative, to compensate the students at least monetarily. The appeal filed by the society is dismissed with costs which we quantify at Rs. 10,000/-. The writ petition filed by the students is dismissed but, in the circumstances, without costs."

32. In the case of Regional Officer, CBSE vs. Ku. Sheena

Peethambaran and others {(2003) 7 SCC 719}, since the student had

failed to clear her Class IX examination, her form to appear for the X

Standard examination was withheld by the School itself. However, the

High Court by an interim order permitted the student to appear for the X

Standard examination and by a subsequent order, the High Court had

directed result to be declared. Subsequently, the petition came to be

allowed. In this background, the Apex Court deprecated the practice of

permitting an ineligible student to appear for an examination by an interim

order.

33. As in those cases, in our case the concerned student wants this

Court to permit her to undertake a particular course without being eligible

to do so. She wants this Court to direct the Board to do something which

is forbidden by its own regulation, namely, to allow the student to

improve her original marks by means of a result in a forbidden

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examination, and then, on that basis, prosecute her further studies. That

is clearly impermissible. In fact, if we were to direct the Board by our

interim order to issue the marksheet for March 2020 examination to the

student and allow her to prosecute her further studies on that basis, we

would be doing exactly that, which is deprecated by the Supreme Court in

Sheena Peethambaran's case.

34. There is, thus, no merit in the petition. The Petition is accordingly

dismissed.

35. We may add a note by way of a post script. We would expect the

respondent Board to be more diligent hereafter and ensure that Colleges

affiliated to it do not submit examination forms of ineligible students.

Instead of permitting the student to appear for the examination, without

ensuring his or her eligibility, it would be in the interest of students as well

as the respondent Board to prevent admission of such ineligible students

at the examination at the threshold and avoid such unwarranted and

unnecessary scenarios.

(SURENDRA P. TAVADE, J)                                (S.C. GUPTE, J.)




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