Judgment:
F.I. Rebello, J.
1. Rule, heard forthwith.
2. The petitioner is studying in second year of four year degree course of Pharmacy. The petitioner had passed Diploma of Pharmacy having secured 603 marks out of 1000. The petitioner had earlier secured 60% marks in S.S.C. and 52.83% marks in H.S.C. All these facts have been disclosed in the application form for admission to second year of four year degree course in Pharmacy. The petitioners name at the time of admission was shown at Serial No. 37 in the merit list and was given admission after due scrutiny for academic year 2007-2008. The petitioner paid tuition fees of Rs. 25,000/- on 17-08-2007. The petitioner appeared for the second year B. Pharmacy examination held in November 2007. The results were declared on 12-02-2008.
According to the petitioner, the Principal of respondent No. 3 College called on the petitioner on 25-02-2008 and was asked to give him in writing that his admission would be subject to approval by the North Maharashtra University, Jalgaon, and Director of Technical Education as a condition to continue his admission. The petitioner, as per direction on 25-02-2008, gave the same in writing. On the same day, according to the petitioner, the Principal of the College (respondent No. 3) handed over a copy of order dated 15-02-2008, cancelling his admission, issued by the Incharge Deputy Director, Technical Education, Maharashtra State, Mumbai. On asking reasons for cancellation, he was informed that the Joint Director, Technical Education, Nasik, on scrutinizing the merit list and the documents, found that there was deficiency in his admission.
3. Admission, according to the petitioner, to the second year of four year degree course in Pharmacy is governed by the Rules for direct admission to the second year of four year degree course in Pharmacy for the academic year 2007-2008 framed by the Higher and Technical Education Department of the Government of Maharashtra. Rule requires the candidates should have passed in first class/first class with condonation, post H.S.C. diploma course in Pharmacy from an institution approved by AICTE. Rules further provide that the admission of any candidate in an institution is provisional and subject to acceptance/production of eligibility certificate from the concerned University and the final approval to the merit list of second year Degree Course in Pharmacy by the Director of Technical Education, Maharashtra State. Rules further provide that if the candidate fails to get eligibility, his admission may be cancelled at any stage. The petitioner took two attempts to pass Diploma in Pharmacy, having secured more than 60% marks and therefore, not in first class. According to the petitioner, rules for direct admission to second year of four year degree course in Pharmacy does not require that the candidate must have passed Diploma in Pharmacy in one attempt and that to in first class. According to the petitioner, nowhere in the rules for admission is there a condition, much less a condition of eligibility that the candidate must have passed Diploma in Pharmacy in first attempt. For the non approval of the petitioners admission by the Director of Technical Education, it is submitted that it is contrary to law. According to the petitioner, there are several students who have been admitted in Pharmacy Colleges affiliated to Pune University, who have passed Diploma in Pharmacy in more than one attempt and still, their admissions are not cancelled. The petitioner has therefore filed the present petition.
4. In the grounds raised, it is the submission of the petitioner that at the time of admission, the petitioner submitted a statement of marks showing that the petitioner had failed once in the second year of Diploma in Pharmacy. In spite of that, the petitioner was given admission after due scrutiny of the documents. Pursuant to which, the petitioner paid fees and attended classes and appeared in third semester examination of second year degree course in Pharmacy. Cancellation of admission of the petitioner therefore, according to the petitioner, is contrary to the principles of estoppel. Moreso, the Joint Director of Technical Education, Nashik had scrutinized the documents and found the petitioner eligible. The petitioner after taking admission, paying the fees, and applying for the examination cannot be put in a disadvantageous position.
On 14-03-2008 this Court was pleased to grant ad interim relief in terms of prayer Clause B which was interim stay to the operation, execution and implementation of the impugned order dated 15-02-2008, cancelling admission of the petitioner, issued by respondent No. 2.
5. Reply has been filed on behalf of respondent Nos. 1 and 2. Some technical objections were raised on account of non joinder of some parties. It is submitted that as per Brochure of admission to the B.Pharmacy of second year course, a candidate needs to have passed in first class in D. Pharmacy course. As per ER-91 of the Pharmacy Council of India Act, in order to obtain first class, a candidate needs to secure 60% marks in single attempt. It is submitted that from the mark sheet submitted by the petitioner alongwith the petition, it appears that the petitioner had passed D.Pharmacy course in examination conducted in winter session, meaning thereby that the petitioner had passed in the supplementary examination and in absence of any information it could be said that the petitioner appeared for the examination in winter session in second attempt. As the petitioner has taken one more attempt to clear final year D.Pharmacy, the petitioner would not be entitled for first class, to be admitted directly to second year B.Pharmacy course.
An additional affidavit was filed on 30-07-2008. This Court had asked the respondents to explain the meaning of the expression; 'First Class with condonation', in Rule No. 2.1 of Brochure. Insofar as condonation is concerned, it is explained that a candidate who fails to pass an examination by not more than 10 marks in aggregate in not more than two heads, theory and/or practical including oral is covering not more than two subjects, such deficiency in marks, would be condoned provided the candidate has secured at least 50% marks in aggregate and has not availed of exemption mentioned in RG5. A candidate whose failure is thus condoned, would be eligible to be awarded class on par with other successful candidate. The total number of marks secured by such candidate would, however, remain unaltered and 'CON (meaning condonation) would be shown against his result in the certificate of marks. However, 'CON' will not be mentioned in the Diploma certificate. It is also pointed out by placing reliance on RP 10(B) that the candidate securing 60% marks or above but less than 75% marks in a single attempt at the Diploma in Pharmacy (Part-1) or Diploma in Pharmacy (Part-2) examination, shall be declared to have passed the related examination in first class. It was secondly clarified as to expression cancelled in Para. 2.3 of the Brochure. The relevant portion of Para. 2.3 of the Brochure reads as under:
Admission of any candidate made at the institution shall be provisional, subject to the acceptance / production of eligibility certificate from the concerned University and the final approval to the merit list of second year Degree Pharmacy course by the Director of Technical Education, Maharashtra State, Mumbai. If candidate fails to get eligibility, his admission may be cancelled at any stage.
It is explained that admission of any candidate made at the institution is provisional, subject to the acceptance/production of eligibility certificate from the concerned university and the final approval to the merit list of second year degree pharmacy course by the Director of Technical Education, Maharashtra State, Mumbai. If a candidate fails to get eligibility, his admission may be cancelled at any stage. The eligibility has to be obtained from the concerned University.
6. Considering the regulations and Brochure, the question for consideration is whether the respondents were right in cancelling the admission of the petitioner to the second year degree course in Pharmacy.
7. To understand the controversy, we may refer to the Regulations framed by the Pharmacy Council of India which are known as Education Regulations of the Pharmacy Council of India. Regulation No. 15 reads as under:
Minimum marks for passing the examination: A student shall not be declared to have passed Diploma in Pharmacy examination unless he/she secures at least 50% marks in each of the subject separately in the theory examinations, including sessional marks and at least 50% marks in each of the practical examination including sessional marks. The candidates securing 60% marks or above in aggregate in all subjects in a single attempt at the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II) examinations shall be declared to have passed in first class the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II) examinations, as the case may be. Candidates securing 75% marks or above in any subject or subjects shall be declared to have passed with distinction in the subject or those subjects provided he/she passes in all the subjects in a single attempt.
A perusal, therefore, of this Regulation would require that only in the event, a candidate secures 60% marks or above in aggregate in all subjects in a single attempt, shall such candidate be declared to have passed in first class the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II) examinations, as the case may be.
8. The Director of Technical Education had issued a Brochure for direct admission to second year of four year degree course in Pharmacy for the academic year 2007-2008. Insofar as the eligibility, same is covered by Para. 2.1. The relevant portion which reads as under:
The candidate must be Indian National and should have passed HSC examination with Physics, Chemistry and Biology/Mathematics (or both) from Board of Higher Secondary Examination, Maharashtra State. Candidate who have not offered either Mathematics or Biology at XII std examination shall have to appear and pass in the particular subject at the examination of XII std conducted by the Higher Secondary Board in Maharashtra State.
AND
The candidate should have passed in first class/first class with condonation, post HSC diploma course in Pharmacy (as per ER-91 regulations of PCI) from an institution approved by AICTE and of the Maharashtra State Board of Technical Education (MSBTE).
In Para. 2.2 which is a criteria for eligibility, for Maharashtra State candidates. Apart from passing HSC, the candidate from College in Maharashtra candidate shall also have passed Diploma Course in Pharmacy examination as specified in Para. 2.1 from a recognized institution in Maharashtra State. Relevant portion of Para. 2.3 further sets out as under:
f the University has prescribed any additional conditions for eligibility of First Class Diploma Holders Degree course in Pharmacy, the same also shall be applicable for admission to a college affiliated to that University Admission of a candidate made at the institution shall be provisional subject to acceptance / production of eligibility certificate from the concerned University and the final approval to the merit list of second year Degree Pharmacy Course by the Director of Technical Education, Maharashtra State, Mumbai. If candidate fails to get eligibility, his admission may be cancelled at any stage.
The Brochure thereafter sets out various stages of Centralised Allotment Process including reporting after allotment.
9. On a perusal of Regulation No. 15 of the Pharmacy Council of India, a candidate appearing for Diploma in Pharmacy (Part-I) and or (Part-II), in order to be declared as passed in the first class must secure 60% marks or above in aggregate in all subjects in a single attempt at the Diploma in Pharmacy (Part-I) or Diploma in Pharmacy (Part-II) examinations. Admittedly, the petitioner in terms of this regulation had not passed in the first class. In terms of Brochure for admission, the candidate should have passed in first class/first class with condonation. The Brocure are administrative instructions. We are not considering here a case of first class with condonation. The petitioner however has admittedly obtained more than 60% marks considering the results of the second attempt.
10. In the light of this, what is to be examined is whether the petitioner having placed all material before the concerned authorities, having not practised fraud and the petitioner after having been allotted a seat for the second year of the B. Pharm. Degree course, is entitled to continue to prosecute the course considering the doctrine of promissory estoppel.
11. To understand the controversy, we may consider the judgment of the Supreme Court in Shri. Krishnan v. The Kurukshetra University, Kurukshetra : AIR1976SC376 In that case, a government servant, was pursing the course of LL.B. as an evening student. He failed in three subjects at the Part I examination but was promoted to Part II with option to clear those subjects. He was however refused permission for Part II examination which was ultimately given, on his giving an undertaking to secure his employers permission. After the examination he demanded that his results be declared as the permission was not necessary. He was informed that since his percentage in attendance in Part I was short his candidature stood cancelled. The relevant University Ordinance empowered the authorities to withdraw the certificate regarding attendance before the examination if the candidate fails to reach the prescribed minimum. But this could be done only before the examination. The question was, where once the appellant was allowed to take the examination, whether the power to withdraw the candidature of the applicant could be exercised. The Supreme Court held that once the appellant was allowed to take the examination, then the Statute which empowers the University to withdraw the candidature of the applicant had worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear. On facts, though notice regarding shortage of attendance was twice put up on the notice board and the appellant was aware of it, the court held that the candidate in these circumstances, cannot be said to have committed a fraud by not drawing the attention of the university authorities to this fact. The court observed that if neither the Head of the Department nor the university authorities took care to scrutinize the admission form, then the question of the appellant committing a fraud did not arise and further observed that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. If the university acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in the examination then by force of the university statute the university had no power to withdraw the candidature of the appellant. While answering the issue the court observed as under:
It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppressio veri. The appellant never wrote to the university authorities that he had attended the prescribed number of lectures. There was ample time and opportunity and opportunity for the university authorities to have found out the defect. In these circumstances, therefore, if the university authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I examination in April, 1972, then by force of the university statute the university had no power to withdraw the candidature of the appellant.
12. Reference is also placed on the judgment of the Supreme Court in Central Central Airmen Selection Board and Anr. v. Surender Kumar Das (2003) 111 Supreme Court Cases 152. In this case, a candidate though over-aged, got relaxation of upper age limit in terms of advertisement by stating in his application that he had higher secondary qualification. On this basis the authorities permitted him to participate in the recruitment process and ultimately selected him. When the petitioner reported at the selection centre, the authority detected from the marksheet that in fact the petitioner had failed in Higher Secondary Examination. The Supreme Court, therefore, held that considering that the principle of promissory estoppel is based on equitable principles, a person who has himself misled the authority by making a false statement, cannot invoke this principle, if his misrepresentation misled the authority into taking a decision which on discovery of the misrepresentation is sought to be cancelled. On the issue of ineligible candidate who did not misled on facts and was selected by mistake whether the principle of promissory estoppel would not bar the authorities to correct such mistake and recall the selection order, left the question open for consideration. The judgment in Kurukshetra University (Supra) - appears not to have been pointed at.
13. Reference is also placed to the judgment in the case of Ashok v. University of Jodhpur : [1989]1SCR230 On the facts there the appellant had applied for admission to Engineering Degree Course. He was diploma holder. The application made on the last date for admission in general seat. An objection was taken by officer in-charge that student had scored less than 60% marks in diploma examination. The application was accepted in spite of the objection. In these circumstances, the court held that assuming the appellant had been admitted through a mistake, the appellant had not been at fault, and as such it was difficult to sustain the order withholding admission of the appellant. Reference was made to the judgment of the Supreme Court in Rajendrakumar v. Karnataka University : [1986]2SCR912 to the similar effect.
14. In the case of Sanatan Gauda v. Berhampur University and Ors. : [1990]2SCR273 , the candidate was admitted to the law course. He was allowed to appear for the pre-law and intermediate law examinations and was also admitted to final year course. The university refused to declare his results on the ground of ineligibility to be admitted to law course. The Supreme Court was pleased to hold that considering the petitioner had disclosed all facts and had been admitted, the university was estopped in refusing to declare the result of the petitioner. In his concurring judgment, Sharma, J. observed that it was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.
15. We have considered the regulations and law pertaining to admission of ineligible students. Insofar as regulations are concerned, all that is set out is as to when a candidate, is said to have obtained first class and what is the minimum qualifying marks for the same. Coming to the Brochure which are in the nature of administrative instructions, it no doubt requires, that candidate should have passed first class/first class with condonation. The other aspect of the matter however is that the petitioner pursuant to his application, wherein he had disclosed all the facts including by producing his mark sheet which were available to the authorities, was selected, was allowed to pay fees and admitted. Not only that he was allowed to appear for the examination and his results were declared. The petitioner therefore acted to his prejudice based on the promises of the respondents. In the instant case, the petitioner had obtained more than 60% marks, but in terms of the Regulations of the Pharmacy Council, he could not be treated as passed in first class. However, in our opinion, once the petitioner was admitted after having disclosed all the facts and allowed to appear for the examination, there is no provision or power in respondents to cancel his admission. In the alternative, even if the admission could be cancelled, we are of the opinion that the authorities were estopped from cancelling the admission in the absence of any inequitable conduct by the petitioner. Therefore, considering the facts on record, we are clearly of the opinion that respondent No. 2 could not have directed the cancellation of the petitioners admission and as they were bound by the doctrine of promissory estoppel.
16. In the light of that Rule made absolute in terms of prayer Clause - A. The petitioner is permitted to prosecute the studies for B.Pharm. Course.