Bidisa Chakraborty vs Indira Gandhi National Open ...
2014 Latest Caselaw 3457 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 1st August, 2014.

+     LPA No.473/2014 & CM No.11258/2014 (for filing of additional
      documents).

       BIDISA CHAKRABORTY                                ..... Appellant
                   Through:             Mr. Jayant K. Mehta with Mr.
                                        Indranil Ghosh & Mr. Biswajit
                                        Choudhury, Advs.

                                     Versus

    INDIRA GANDHI NATIONAL
    OPEN UNIVERSITY (IGNOU) & ORS.    ..... Respondents
                 Through: None.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This intra-court appeal impugns the order dated 30th April, 2014 of

dismissal of W.P.(C) No.8097/2012 preferred by the appellant.

2. The facts, not in dispute, are as under:-

(i) The appellant / writ petitioner, in January, 2004 admission cycle,

was admitted to the Distance Learning Programme in Management

Studies of the respondent University and took her first end

semester examination in June, 2004;

(ii) the span period for completing the aforesaid course is eight years

and which expired in January, 2012;

(iii) the appellant / writ petitioner however had not completed her

course and was yet to clear the examination in the subject of MS-8

(Quantitative Analysis for Managerial Applications);

(iv) the appellant / writ petitioner on 9th June, 2012 appeared in the

examination conducted by the respondent University in the said

subject; and,

(v) the respondent University however did not declare the result of the

appellant / writ petitioner of the said examination, for the reason of

the maximum span period provided for completing the course

having lapsed in January, 2012 i.e. prior to the date when the

appellant / writ petitioner took the examination.

Aggrieved from the same, the writ petition from which this appeal arises

was filed.

3. The case of the appellant / writ petitioner before the learned Single Judge

was that the appellant / writ petitioner, prior to appearing in the examination on

9th June, 2012 had checked her admission status on the website of the

respondent University and which was showing her admission year as July, 2004

and her admission as valid up to June, 2012. It was further the case of the

appellant / writ petitioner that she had prior to appearing in the examination on

9th June, 2012 also met the Assistant Regional Director of the respondent

University in the month of December, 2011 and in which meeting also she was

assured that since her registration was valid till June, 2012 she could appear in

the examination in the said subject in June, 2012. It was yet further the case of

the appellant / writ petitioner that upon the appellant having filled up her

examination form online on 11th March, 2012, she was issued an admit card and

allowed to take the examination. The appellant/writ petitioner thus contended

that the respondent University in these facts was bound to declare her result.

4. The learned Single Judge dismissed the writ petition observing/holding

(i) that according to the respondent University it had a window of 21 days to

issue all admit cards and the same are issued on the basis of self certification by

the candidates of their being eligible to take the examination; (ii) that the admit

card is thus issued only on a provisional basis and the complete scrutiny of

particulars is done before declaration of results and not before issuance of

admit card; (iii) that oral assurance or issuance of admit card or estoppel shall

not apply to a written stipulation restricting the maximum duration of the

course to eight years; and, (iv) that since the span period of eight years for

completion of MBA course had expired in December, 2011, the respondent

University was justified in not declaring the appellant's/writ petitioner's result.

5. The appeal came up first before this Bench on 18th July, 2014 when we

invited the attention of the counsel for the appellant / writ petitioner to the dicta

of the Supreme Court in Maharishi Dayanand University Vs. Surjeet Kaur

(2010) 11 SCC 159 laying down that principle of estoppel does not apply in

such matters and that the Court neither has competence to issue a direction

contrary to law, nor can direct an authority to act in contravention of statutory

provision and a student even if wrongfully admitted without being eligible,

should not be permitted to continue with the course and misplaced sympathy

should not be shown in total breach of rules. Attention of the counsel for the

appellant / writ petitioner was also drawn to the recent dicta of this Bench in

Shri Birender Singh Vs. Union of India MANU/DE/1101/2014. On request of

the counsel for the appellant / writ petitioner for time to study the said

judgments, the matter was adjourned to 22nd July, 2014.

6. On 22nd July, 2014 the counsel for the appellant / writ petitioner was

heard in extenso and judgment reserved. The counsel, besides attempting to

distinguish the two judgments to which his attention was invited, also referred

to:-

(a) Shri Krishnan Vs. The Kurukshetra University, Kurukshetra

(1976) 1 SCC 311;

(b) Rajendra Prasad Mathur Vs. Karnataka University 1986 (Supp)

SCC 740;

(c) A. Sudha Vs. University of Mysore (1987) 4 SCC 537;

(d) Sanatan Gauda Vs. Berhampur University (1990) 3 SCC 23;

(e) Arshdeep d/o Gurudeo Singh Puri Vs. Maharashtra State Board

of Secondary & Higher Secondary Education, Nagpur Divisional

Board (1990) SCC Online Bom. 167;

(f) Bal Krishna Tiwari Vs. Registrar of Awadhesh Pratap Singh,

University, Rewa MANU/MP/0023/1978;

(g) Board of Technical Education Vs. Anupama Goyal (1999) SCC

Online Raj. 86;

(h) Arvind Kumar Das Vs. Ranchi University (2005) SCC Online

Jhar. 328; and,

(i) Smt. Chandra Kanti Singh Vs. University of Kanpur

MANU/UP/0733/1991.

all on the proposition that candidate's result cannot be withheld in

case when the University / Institution fails to exercise due care and

diligence in scrutinizing the necessary details;

(j) Monika Ranka Vs. Medical Council of India (2010) 10 SCC 233;

(k) Deepa Thomas Vs. Medical Council of India (2012) 3 SCC 430;

and,

(l) Rajan Purohit Vs. Rajasthan University of Health Sciences

(2012) 10 SCC 770.

all on the proposition that equities are in favour of the appellant

and sympathy should be shown to the appellant and,

(m) Archana Vs. University of Mysore ILR 1990 KAR 522 - on the

proposition that the High Courts in exercise of jurisdiction under

Article 226 can also do equity.

7. Maharishi Dayanand University and Birender Singh (supra) are sought

to be distinguished by contending that in both of them a fraud had been

practiced by the student concerned; on the contrary the appellant / writ

petitioner here is innocent and acted on the basis of the website of the

respondent University itself continuing to show the admission of the appellant /

writ petitioner as valid till July, 2012. It is further contended that the appellant /

writ petitioner is not inherently ineligible and has not indulged in any

suppression and was rather led by the conduct of the respondent University

itself to take the examination.

8. We are unimpressed. A judgment is a precedent on the ratio laid down

therein and not on the facts of the case before the Court. The Supreme Court in

Maharishi Dayanand University has unequivocally reiterated that promissory

estoppel does not apply against the statute and the government / authorities

cannot be barred from enforcing a statutory prohibition. It was further held that

promissory estoppel being an equitable doctrine must yield when the equity so

requires. It was observed that the conduct of the University in allowing the

student to pursue a course even though the student had no statutory or vested

right to pursue the same cannot by any logic be treated to be a conduct which

can confer any such right on the student. The Supreme Court further held that

the rules and regulations cannot be allowed to be defeated merely because the

student was mistakenly allowed to appear in the examination. Following the

said and other judgments, we in Birender Singh also held that the conduct of

the University in that case of admitting the student who was not eligible and

even allowing the student to appear in the examination did not confer any right

on the student to continue in the course, for admission whereto the student was

not eligible.

9. The aforesaid ratio decidendi of the judgments supra clearly applies to

the matter in controversy before us and the factual differences highlighted by

the counsel for the appellant / writ petitioner do not make the same

inapplicable.

10. Of the plethora of other referred judgments, the counsel for the appellant

/ writ petitioner has read only paras 6 & 7 of Shri Krishnan supra. However

Shri Krishnan was concerned with a candidate being allowed to take

examination notwithstanding not having the requisite attendance and

notwithstanding having not submitted the NOC from his employer for pursuing

the course. It was in this context that it was held that the power to stop a

candidate from taking examination cannot be exercised after the candidate had

appeared in the examination. It cannot also be lost sight of that Shri Krishnan

is a judgment of an era when the Courts were very liberal in condoning the

criteria of attendance laid down by educational institutions. Moreover the

reasoning which prevailed with the Supreme Court in Shri Krishnan was in

view of the Ordinance of University in that case and the language of which

Ordinance was interpreted as empowering the University to withdraw the

candidature of the student only before the student took the examination and not

after having taken the examination. One of us (Rajiv Sahai Endlaw, J.) in Rohit

Rakesh Vs. Indira Gandhi National Open University MANU/DE/0325/2011

has in fact distinguished Shri Krishnan on the said basis; no appeal is found to

have been preferred thereagainst.

11. In Rajendra Prasad Mathur and A. Sudha (supra), the students even

after the ineligibility was discovered, were allowed to continue their studies by

the University and under the interim orders of High Court respectively and it is

in these circumstances that the Supreme Court allowed the students therein to

continue. Similarly, in Sanatan Gauda (supra), the University raised the

objection to the ineligibility of the appellant therein after the appellant had

pursued his studies for two years and was in his final year of the course. The

said judgments are not found laying down anything contrary to Maharishi

Dayanand University supra and are rather on their own peculiar facts, which

were different from the case before us. We do not feel the need to deal with the

bunch of other judgments aforesaid handed over to us.

12. We may add that the appellant / writ petitioner herein has not disputed

that she took admission in January, 2004 and it is not her case that the rule

regarding maximum period in which she could complete the course was not

known to her and as per which the period in which she could complete the

course expired in December 2011 / January 2012. The appellant / writ

petitioner still filled up the form for taking the exam on a date after the expiry

of the said period. The appellant / writ petitioner clearly acted in violation of

the rule of the respondent University which was known to her and is thus

equally guilty. The object of the principle of estoppel which is sought to be

invoked is to prevent fraud and secure justice between the parties by promotion

of honesty and good faith. The appellant / writ petitioner was fully in the know

of the rule and cannot herself be said to have acted honestly.

13. As far as the argument of the counsel for the appellant / writ petitioner of

the need for this Court showing sympathy to the appellant / writ petitioner is

concerned, the Supreme Court has repeatedly held that the Courts cannot,

showing misplaced sympathy issue directions contrary to the rules and

regulations particularly of educational institutions. Reference in this regard can

be made to Mahatama Gandhi University Vs. Gis Jose (2008) 17 SCC 611 and

Director (Studies) Vs. Vaibhav Singh Chauhan (2009) 1 SCC 59.

14. We therefore do not find any merit in the appeal which is dismissed.

No costs.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE AUGUST 01, 2014 pp..