Hansaria, C.J.
1. The point for decision in these references is about the applicability of the principle of promissory estoppel debarring the Universities to declare that the petitioners had failed in the examinations in question, after having declared them to have passed.
2. To understand the scope of reference, we have to find out why the references were made and what was the point of reference. The first referring order is dated 27-11-1990 and was passed in O. J. C. No. 3345 of 1988. We shall presently note the facts of that case, but the reference was made because the Bench hearing that case felt the necessity of having a 'second look on the question as to whether, when a mistake of the present nature is detected within a short period and the only step which the concerned person has taken is either to apply for higher study or for job, estoppel would stand in the way', A need for second look was felt because the petitioner in support of his submission pressed into service a Bench decision of this Court in Rajkishore Senapati v. Utkal University, AIR 1982 Orissa 189. We shall note the facts of that case a little later and the reason as to why promissory estoppel was held applicable.
3. O. J. C. No. 2440 of 1985 came up for hearing on 15-3-1991 and as the learned counsel for the petitioner in support of his case of promissory estoppel placed reliance on Pratima Das v. State of Orissa, AIR 1975 Ori 155, as against which the learned counsel appearing for the University referred to large number of decisions rendered by this Court as well as other High Courts of the country, the Bench felt that as reference had been made to larger Bench to examine this question in O. J. C. No. 3345 of 1989, this case would also be placed before a larger Bench for hearing on the question relating to estoppel.
4. For answering the reference, we shall have, therefore, first to see what was held in Rajkishore's case. In that case, the petitioners had appeared in the annual B. A, Examination and were initially declared successful by the University on the basis of marks added by applying 'hard case rule'. Subsequently, on finding that the hard case rules were wrongly applied, the University by subsequent notification declared the petitioners to have failed in the examination. In that case, it was first urged by the University that as there can be no estoppel against law, and if hard case rules were wrongly applied, the University cannot be prevented from correcting the mistake as in that case the University would be compelled to act against the statute. The Bench rejected this argument by stating that hard case rules are not statutory and have been evolved as an administrative process to meet hard cases, a mistake in relation to the application of the rules, therefore, did not involve any statutory rule (see paragraph 5). As in the case of the petitioner in O.J.C. No. 3345/88 also the result had been subsequently cancelled because of wrong application of hard case rules, Shri Mohanty contends that the view taken in Rajkishore's case that the hard case rules have no sttutory force needs re-examination. As, however, this is not the question which has been referred to us, as would appear from what has been quoted above from the referring order, we do not, indeed cannot, examine this question in this reference. That the referring Bench did not feel necessary to get this point re-examined is apparent from the further observations made in the referring order which are to the effect that 'if too rigid a view is taken in this regard, it seems to us that it would deny the authority the right to correct an apparent mistake in any case inasmuch as some time-lag is bound to occur between the commission of the mistake and the detection of the same, during which period the candidate who had been announced to have passed would have taken one innocuous step or the other on the basis of the declared result. This aspect of the matter, therefore, merits examination, according to us, by a larger Bench.' It is thus apparent that the Division Bench referred for examination of the question relating to applicability of promissory estoppel only to the facts of that case.
5. In so far as the promissory estoppel is concerned, in Rajkishore's case, the same was held applicable by stating at page 191 that 'the University having represented to the petitioner that they had passed and the petitioners having changed their position on the basis of such representation, the University is precluded by the rules of estoppel from acting otherwise in derogation to the representation made earlier'. Though a submission was advanced on behalf of the University that the time-lag between the two notifications was small inasmuch as the cancellation came within about a fortnight, it was held that that by itself did not take the matter out of the ambit of application of the rule of estoppel, particularly when even within that period the petitioners had taken steps on the basis of representation that they had passed. Now, the steps the petitioners had taken in Rajkishore's case were that some of the petitioners had after obtaining their mark-sheets applied for admission for higher study while other had registered themselves with the employment exchange in search of service. These steps taken within a short period of a fortnight after the publication of the result were held sufficient to attract the principle of promissory estoppel. The Bench making the reference felt that if too rigid a view is taken in this regard, the same would deny the University to correct an apparant mistake in any case and, therefore, the matter was referred to larger Bench.
O. J.C. No. 3345 of 1988 :--
6. We shall first take this case, as it was in this case that need of reference was first felt. In support of the view taken in Rajkishore's case, the learned counsel for the petitioner refers us to Delhi Cloth and General Mills v. Union of India, AIR 1987 SC 2414, in paragraph 18 of which it was stated that for application of the doctrine of promissory estoppel all that is required is that the party asserting the estoppel must have relied upon representation made to him and must have 'changed or altered the position' by relying on that representation. It is not necessary to prove further any detriment or prejudice to the party asserting the estoppel. Before deciding whether in the present case there was change or alteration in the position, let us see what action the petitioner had taken on the basis of his having been declared to have passed. All that the petitioner had done was to have applied to different institutions for job and his case is that pursuant to these applications, he had received two call letters --One from Banking Service Recruitment Board, Bombay and the other from the same Board in Delhi. The point for determination, therefore, is whether because of taking up the aforesaid steps followed by the two call letters it can be said that the petitioner had 'changed or altered his position.'
7. The word 'change' has been very instructively defined in the Laxicon Webster Dictionary, 1978 printing, as below :--
'To cause to turn or pass from one state to another, to vary in form or essence, to alter or make different, to alter the site or route; to substitute another thing or things for; as, to change clothes, to shift; to give or procure another kind of money for; as, to change a dollar; to give away for a money equivalent of a different kind, to exchange; as, to change places with a person; to place fresh linen on; as, to change a bed or baby.'
In the new Oxford Illustrated Dictionary, Volume-I, page 274, the word 'change' as verb intransitive has been defined as below :--
'Take another instead of, resign, get rid of, for; give or get smaller or foreign coin for; put on different clothes; put fresh clothes or coverings on (exa. -- a baby, replacer used neppy with clean one) go from one to another; change trains; give and receive, exchange 2. Make or become different; -- one's mind, change one's purpose or opinion; (of moon) arrive at fresh phase, esp. become new moon. 3. -- Up, down, (in motor driving change to a higher, lower, gear.'
The word 'alter' is synonymous to 'change', as would appear from its definition in the aforesaid Dictionaries.
8. A mere application for job cannot, therefore, be said in any of the sense in which the word 'change' has been defined above, to, bring about change or alteration of the position of the petitioner, In the aforesaid view of the matter, it cannot be held that the principle of promissory estoppel has application to the facts of this case.
9. We may now express our opinion on the correctness of the view taken in Raj-kishore's case. The Bench deciding that case took a strict view against the University because the conduct of the University spread over the years was found to be far below the standard expected from a statutory public body like a University which despite repeated warnings by the Court had not seen any positive change (see paragraph 6). Though we share this feeling of the Bench, according to us, if errors are not allowed to be rectified even within a short time of the commission of the same, it would not be possible to correct any error; but, as observed by that Bench itself, 'to err is human'. No doubt the conduct of the University in such a matter of public importance and its failure to bring about any positive change despite repeated warnings by the court has its importance, equally important from the public point of view is that a student indulging in mal practice, which may be one of the causes of cancellation of result and which may come to the knowledge of the University subsequently, should not be allowed to reap the advantage of his having been declared successful by mistake. If we have to take a different view, the same would encourage recourse to mal practice in examination, which is becoming a social evil. In this connection, we may also refer to the views expressed in Bisweswar Behera v. Utkal University, AIR 1989 NOC 29 (Orissa), wherein on the principle of promissory estoppel being pressed in a case where the petitioner was declared to have failed after five months, it was said that acceding the prayer would result in diluting the standard of the University education and the damage caused would be far-reaching compared to the hardship of the petitioner.
10. Because of the above, we are of the view that public interest and equity demand that the dectrine of promissory estoppel should not be extended to that extent where cancellation of the result would not be permitted by the courts virtually in any case, which would he the effect if the ratio of Rajkishore's case is upheld. This apart, it may be remembered that principle of promissory estoppel is available only where the person concerned has changed or altered his position. Taking of steps like application for admission in higher course or seeking of job or registration with employment exchange would not amount to change or alteration of position. We, therefore, hold that Rajkishore's case was not correctly decided.
O. J. C. No. 2440 of 1985:--
11. Before answering the reference made in this case, it would be necessary to clear the deck. We have said so because Dr. Dash appearing for the petitioner took stand that he was relying not on promissory estoppel but on estoppel to prevent the University from cancelling the result. The learned counsel wants us to satisfy that the ingredients of Section 115 of the Evidence Act dealing with estoppel are not satisfied in the present case. In support of his contention, he refers us to a Bench decision of this Court in Gita Mishra v. Utkal University, ILR 1971 Cuttack 242.
12. Now, it is known that estoppel which is dealt by Section 115 of the Evidence Act is different from promissory estoppel, as would be evident from what has been stated by Bhagwati, J., as he then was, in paragraph 7 of Motilal Padampat Sugar Mills Co. Ltd, v. State of Uttar Pradesh, AIR 1979 SC 621 ; (1979 All LJ 368), which is a leading decision on promissory estoppel. While dealing with the pedigree of promissory estoppel in that paragraph, the learned Judge stated that it is neither in the realm of contract nor in the realm of estoppel. This being the position, we have to first decide as to what was the stand of the petitioner taken, before the Division Bench who has referred this case to the larger Bench. A perusal of paragraph 5 of Division Bench's order shows that while advancing the plea of estoppel, Dr. Dash had placed reliance on Pratima Das v. State of Orissa, AIR 1975 Ori 155. A reference to that case shows that it was not a case of estoppel dealt by Section 115 of the Evidence Act, but was one of promissory estoppel which would be clear from what has been stated in paragraph 5 of that judgment which is to the following effect (at page 158):--
'Undoubtedly the petitioner has changed her position substantially to her prejudice on the representation of the Selection Board and it would now be impossible to restore the status quo. Even if the heavy financial burden which has come to her on account of sheer negligence of the Selection Board is kept out of consideration, it is not possible for the petitioner to go back to her old college and pursue the course of studies from which she . had withdrawn half-way.....'
The above clearly shows that it was promissory estoppel which was being dealt in Pratima Das's case. This apart, the Division Bench mentioned about its reference made in O. J. C. No. 3345/88 because of which this case was also referred to larger Bench. That O. J. C. was referred to a larger Bench because that Bench did not feel inclined to agree with Rajkishore's case which was a clear case of promissory estoppel. For these reasons, we are satisfied that what was sought to be pressed into service before the Division Bench was the doctrine of promissory estoppel, and not estoppel, and so, we shall deal with the question of promissory estoppel only.
13. Dr. Dash states that he would rely on equitable estoppel also. As to this, it may be pointed out that 'equitable estoppel' is nothing but 'promissory estoppel', as observed in paragraph 7 of Motilal Padampat's case (supra).
14. Now, let us note the facts of this case. The same broadly stated are that the petitioner was a student of Polasara Science College and was declared to have passed the annual Intermediate Science Examination by a communication of the Controller of Examinations dated 12-8-1985. The petitioner thereafter obtained her mark-sheet on the same day and College Leaving Certificate on 13-8-1985. Then, she took steps to get herself admitted in Rama Devi Women's College, Bhubaneswar, and was so admitted on 26-8-1985. Her case is that thereafter she went to her father's house at Polasara in the first week of September, 1985 to get her personal belongings. Reaching Polasara she was surprised to receive a letter dated 19-8-1985 (Annexure-5) from the Principal of the Polasara Science College informing her that her result had been cancelled by the Controller of Examinations vide his letter of even number dated 13-8-1985, and so, she was required to surrender her College Leaving Certificate, mark-sheet and conduct certificate received from the office of the college.
15. We may state that Dr. Dash presented a new case. According to him, after the petitioner received Annexure-5, she was not satisfied about the authenticity of the same, and so, again approached the University to know the correct state of affairs, when as late as 28-9-1985 a provisional certificate was issued by the Controller of Examinations stating that the petitioner had passed the I.Sc. Examination. It is, therefore, urged that the petitioner believed that the cancellation of her result, about which Annexure-5 spoke, was not an authenticated communication to her. We feel no difficulty in rejecting this part of the petitioner's case as put forward by Dr. Dash as there is no whisper about the same in the writ petition. A petitioner cannot be allowed to depart materially from his/her case as put forward in his/her application which is duly supported by an affidavit. We would, therefore, not accept that the petitioner believed that the information conveyed by Annexure-5 was not an authenticated communication.
16. We would rather hold that she knew at least by the first week of September, 1985 that her result had been cancelled, if not earlier, as is the case of the University, which we may now note. According to it, after the result was cancelled on 13-8-1985 vide Annexure-A/1, the same was published for the information of all concerned in the notice board of the University on 13th itself. Thereafter, a notification was issued on 17-8-1985 bringing to the notice of all concerned that the petitioner's result had been cancelled. A copy of this was sent to the Principal of the College as well as to the petitioner. The Principal on receipt of this notification published the purport of the same on the notice board of the College. This apart, the petitioner herself received this communication and thinking that as she would not be able to seek admission in any college of Berhampur University, to which Polasara College is affiliated, she took admission in Rama Devi Women's College, which is affiliated to Utkal University. So, the University's case is that the petitioner had due knowledge about the cancellation even before she had taken admission, and so, the principle of promissory estoppel would not apply.
17. In support of the legal position that if the concerned person has knowledge about the true state of affairs, principle of promissory estoppel would not apply, our attention is invited to a number of Bench decisions of this Court, the first of which is Suresh Chandra Choudhury v. Berhampur University, AIR 1987 Ori 38. In that case, the Bench principally relied on the decision of the Supreme Court in Chhaganlal Keshvlal Mehta v. Patel Narandas Haribhai, AIR 1962 SC 121, in which one of the requirements of estoppel was said to be that the person concerned must show that he was not aware of the true state of things or that he had no means to know the same. In Suresh Chandra, the applicability of the doctrine of estoppel was rejected because the petitioner could have known on the basis of the mark-sheet supplied to him relying on which admission to higher class was taken that he had failed in the examination in question. Therefore, as the petitioner had means of knowing that he had not succeeded in examination, and had indeed failed, it was held that the University was not estopped from declaring subsequently that the petitioner had failed. The ratio of this decision has been applied in Gajandra Patra v. Utkal University, 68 (1989) CLT 694; Bisweswar Behera v. Utkal University, 1989 NOC 29 (Orissa), Reetanjali Pati v. Board of Secondary Education, AIR 1990 Orissa 90, and Prabhat Kishor Sahu v. Sambalpur University, AIR 1992 Orissa 83.
18. We have no hasitation at all in accepted the aforesaid proposition of law, as, if a person knows or has means to know the correct state of affairs, there can be no question of his acting on anybody's representation that a particular state is correct, though it is not so. It may be said to the credit of Dr. Dash that he does not contest this position. The real point for determination is whether it can be said that the petitioner had known about the fact of cancellation of her result of examination before she had taken admission in Rama Devi Women's College, Dr. Dash strongly urges that issuance of Annexure 3/b on 28-9-1905 clinches the matter because if even as late as 28-9-1985 the University was representing the petitioner that she had passed I.Sc. Examination. On Shri Misra being asked as to how is it that the University officials had given provisional certificate in favour of the petitioner even as late as 26-9-1985 that she had passed the examination in question, submits that issuance of the provisional certificate was an act of 'oversight' as stated in paragraph 2 of the counter filed on behalf of the opposite parties. Even if it be conceded that it was oversight, the aforesaid submission of Dr. Dash cannot be rejected outright. What was, however, stood in our way of accepting it finally is that firstly we do not know as to what led the petitioner to approach the University to obtain any provisional certificate having obtained one earlier on 12-8-1985, a copy of which is at Annexure 3/a; and secondly, the statement made by the petitioner in the rejoinder, while meeting the averments made by the opposite parties in their counter that she had taken admission in Rama Devi Women's College under Utkal University because she could not have been admitted in any college under Berahampur University, that she had no knowledge about the cancellation of her result till October, 1985 when she want home during Puja holidays as stated in paragraph 8. It shows that she was trying to shift the date of her knowledge about the cancellation to October, 1985 because An-nexure3/b had been obtained on 28-9-1985, as if innoncently, without having any prior knowledge before that date about the cancellation of her result, communicated to her by Annexure 5 which as per statement in the writ petition had been received by her in the first week of September, 1985, when she had gone to Polasara to her father in whose address Annexure 5 had been sent. As doctrine of promissory estoppel has been evolved by equity to avoid injustice as stated in the aforesaid paragraph of Motilal Padampet, who demands equity must do equity and must come with clean hands. Suppression of facts and recourse to falsehood would disentitle a person to claim this equitable relief.
19. This is, however, not the end of the story. The further part of this is that having been admitted tb Rama Devi Women's College in 1985, the petitioner competed her B.Sc. from that college and thereafter obtained Diploma in Pharmacy from V. S.S. Medical College Burla. Further, the cancellation of her result was due to mass copying. In cases of mass copying, natural justice is not required to be complied with and as such it is apparent that the candidate in question does not get an opportunity to have his say in the matter. It cannot, however, be ruled out in case of mass copying that some innocent persons also get involved. Of course, that cannot be said to be a reason to undo the cancellation of examination/result based on mass copying, but that may be a factor to be borne in mind when called upon to decide whether in case of cancellation of result due to mass copying, benefit of promissory estoppel should be made available or not. The present seems to be a case of taking affirmative view in this regard. We have said so because here results of 12 candidates of the college in question were cancelled due to recourse to mal practice. This had, however, been done without following the requirement of natural justice. On objection being taken on this ground by Dr. Dash, who had argued the case before the Division Bench, by submitting that the present was not a case of mass copying, the Bench did not agree as in the concerned college there were only 12 candidates, and so, the present was registered as a case of mass copying, as results of all the 12 candidates had been cancelled. This view may be correct, but it cannot be denied that where number of candidates is small, it may not be difficult or impracticable on the part of authorities to give opportunity of hearing to every individual. May it be stated, the view taken in Subhas Chandra's case (AIR 1970 SC 1269), which was relied on by the Bench, that in cases of adoption of unfair means by vast majority of examinees detailed quasi-judicial enquiry in association with the examinees is not necessary was, inter alia, because 'such inquiries' would hold up the functioning of such autonomous bodies as Universities and School Board'. (See paragraph 14). This would, however, not be so if the number of examined be as small as 12.
20. Having duly considered all the relevant aspects of the matter, we would hold that the present is a fit case where the petitioner should be protected by applying the principle of promissory estoppel. This is our answer to the reference made in this case,
21. Let the records be now placed before the appropriate Division Bench to pass consequential orders and to dispose of the writ applications.
G.B. Patnaik, J.
22. I agree.
A.K. Padhi, J.
23. I agree.