Shankar, C.J.
1. In this petition under Articles 226 and 227 of the Constitution the petitioner, a student of M. P. C. College, Baripada, has prayed for a writ of mandamus directing the opposite party, Utkal University, to publish his results of the B. Sc. Examination.
2. The petitioner appeared in the Annual B. Sc. Examination of the College held in 1974 and secured pass marks in the total and compartmental marks in all subjects except in Chemistry and Mathematics, He was thereafter entitled to appear in these two subjects only and had the right to claim exemption frombeing examined in the other subjects in which he had passed according to Rule 31 of Chapter III of the University Regulations (extracted hereafter). Consequently for the next supplementary examination held in 1974 he filled up the form and deposited the fees etc. to take the papers in Chemistry and Mathematics. According to the petitioner he fell ill and did not appear in this examination. For the next Annual examination of 1975 he again filled up the form to appear compartmentally in the same two subjects, namely, Chemistry and Mathematics. This time he could pass in Chemistry only. For the third examination which was the supplementary examination of 1975, he again filled up the form for Mathematics alone and deposited the fees for the examination and was issued an admit card No. 2703. He took the examination, but later he was informed by the College authorities that his results had been withheld by the University. Representations yielded no result. Hence this petition with the prayer for the issuance of a writ of mandamus to the University as aforesaid.
3. The argument urged in support of the petition is that the University having permitted the petitioner to appear in the supplementary examination of 1975 in Mathematics and to deposit the fee for the same and having issued the admit card and having also allowed him to take the examination, was estopped from withholding his result.
4. In the counter-affidavit the relevant facts are substantially admitted. It is however urged that the annual B. Sc. examination of 1974 in which the petitioner appeared was governed by Rule 31 of Chapter III of the University Regulations as replaced by Correction Slip No. 76. This provision, it is urged, prohibited a candidate to appear compartmentally in the third examination after he had failed in the first two examinations held by the University and therefore as the petitioner admittedly appeared in the third examination in one subject only he was not entitled to the writ of mandamus as prayed.
5. We have heard the learned counsel for the parties. Normally a candidate has to appear at the annual examination in all the prescribed subjects that he takes and obtain pass marks in each one of them, but Rule 31 of Chapter III as replaced by correction slip No. 76 relied upon by the University provides an exception.
The relevant part of the rule reads asunder:--
'If a candidate for the Bachelor's Degree fails in such examination obtaining pass marks in any subject or group of subjects for which separate pass marks are required and passes in the aggregate, he shall be exempted from appearing again in that subject or group of subjects for the next two occasions when the examination is held by the University:
Provided:-- (a) that he shall not be allowed this exemption at any examination other than the two immediately following the exemption in which he originally failed but earned the exemption.'
There are other clauses to the Rule, but they are not relevant for purposes of this case.
6. Rule 31, it would thus be seen, confers a right on a candidate in Bachelor's Degree who has failed in the examination of a particular year, but has obtained pass marks in any subject or group of subjects to claim exemption from taking examination in the subject or group of subjects in which he has already passed for the next two occasions. But at the same time by Clause (a) of its proviso unambiguously provides that this exemption shall not be available to the candidates for any examination 'other than the two immediately following the examination in which he originally failed but earned the exemption'. In other words. Rule 31 entitles the candidate covered by Sub-clause (1) to appear in the next two examinations held by the University claiming this exemption, but not in any other examination beyond that.
7. In the case of the petitioner the first examination held by the University after the annual examination of 1974 in which the petitioner failed was the supplementary examination of 1974. The petitioner did not avail of this examination and did not appear. The second examination held by the University was the annual examination of 1975. In this examination he appeared but passed only in one of the two subjects, namely, Chemistry. He could not thereafter appear in the third examination which was the next supplementary examination of 1975 with the claim of exemption provided in Sub-clause (1) of Rule 31 by reason of the prohibition in Clause (a) of the proviso to this Rule. That being so, his appearance in the third examination in the subject of Mathematics alone waswholly in contravention of the Statute, Even if he had passed in this subject in this examination, he could not be declared to have passed the B. Sc. examination. In these circumstances there would be no justification for the court to issue a writ of mandamus to the University as prayed.
8. The learned counsel for the petitioner argued that the University is estopped from setting up the bar of Clause (a) of proviso after it has issued the Admit Card and allowed the petitioner to appear in the examination and to answer the paper. The submission is untenable. The bar of Clause (a) of the proviso to Rule 31 is statutory and goes to the root and operates to take away the eligibility or right or title of the petitioner to appear in the B. Sc. examination with the privilege of exemption under Rule 31.
9. Besides we find that on the facts of the case also the plea of estoppel cannot be accepted. There is nothing on the record to show that the University ever agreed to waive the bar of Clause (a) aforesaid or made any representation to the petitioner on the basis of which he was led to take the third examination in the subject of Mathematics alone. On the contrary it is clear that when the petitioner claimed the right to avail of the exemption at the time when he appeared in the first two examinations, he did so on the basis of the provision in Rule 31. It cannot therefore be denied that he was conscious of this provision and the right conferred thereby subject to the bar of Clause (a) of the proviso. In the premises therefore his appearance in the third examination in one subject only was a deliberate attempt to defraud the University and flout the Statute. Plea of estoppel would not be open to him in these circumstances. The plea, even if it could succeed, still will not help the petitioner because it would not operate to create a right in his favour to pass the first B. Sc. examination by appearing in one subject only.
10. Our conclusions aforesaid are adequately supported by law. While dealing with the general principle of estoppel Lord Chancellor in Cairncross v. Lorimer, (1860) 3 HLC 820 said:--
'The doctrine will apply which is to be found, I believe, in the laws of all civilised nations that if a man either by words or by conduct has intimated that he consents to an ad which has been done, and that he will offer no opposition to it, although it could not have been lawfully done without his consent, and he thereby induces others to do that from which they otherwise might have abstained, he cannot question the legality of the act he had so sanctioned, to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct......'
In Carr v. London and North Western Rly. Co., (1875) 10 CP 307 four propositions were laid down on the concept of estoppel, the third of which was in the following words:--
'If a man either in express terms or by conduct makes a representation to another of the existence of a certain state of facts which he intends to be acted upon in a certain way, and it be acted upon in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such a state of facts.'
These principles have found approval of the Supreme Court in Maddanappa v. Chandramma (AIR 1965 SC 1812). In this case Mudholkar, J. speaking for the court made a very relevant observation as to the purpose of incorporation of principle of estoppel in the Evidence Act (at p. 1815):--
'The object of estoppel is to prevent fraud and secure justice between the parties by promotion of honesty and good faith......'
11. In the absence of a positive representation therefore that the University would waive the bar of Clause (a) of Rule 31 for the petitioner (which as a matter of fact it could never do as no provision enabling it to do so was pointed out to us) there is no basis for the plea of estoppel. The plea cannot be availed by the petitioner in the circumstances of this case to perpetuate his own fraud and to flout the Statute.
12. In Maddanappa v. Chandramma (AIR 1965 SC 1812) it was observed that If the person concerned knew the true position relating to title in property in his possession, he cannot plead that he was induced to hold erroneous belief by reason of conduct of the real owner of that property.
13. As to the issuance of the admit card, in paras 8 and 9 of the counter-affidavit dated 19-10-76 sworn by the Controller of Examinations Shri Simachal Panda it is stated:
'8. That the petitioner filled up the form for 1975 Second (Supplementary)B. Sc. Examination in the subject i.e. Mathematics and paid fees for one subject only. This could not have been accepted by the University. No authority of the University had the power to accept the same as it is contrary to law. However, the applications not having disclosed the full particulars, the same was accepted and an admit card 'was issued to the petitioner. The petitioner not being eligible under the law to appear at the 1975 Second (Supplementary) Examination in B. Sc. in one subject in Mathematics only, the issue of the admit card did not make him eligible for the purpose.'
We have no reason to reject this explanation. The issuance of the Admit Card and the appearance of the petitioner in the subject of Mathematics alone is therefore of no consequence.
14. For the sake of arguments even if the plea of estoppel be assumed to be acceptable, it will still not operate to confer the eligibility or a right on the petitioner to appear in the 2nd Examination of 1975 in one subject only with the claim of exemption in the remaining subjects.
15. In Banwarilal v. Sukhdarshan Dayal (AIR 1973 SC 814) it was contended that a representation was made by the plaintiff to the purchasers by or on behalf of the co-owners that plot No. 19 would be reserved for a Dharmshala, and it was because of this that the purchasers paid high price for the plot. It was urged that for this reason the co-owners had no right to sell the plot. The contention was negatived, on the ground amongst others, that the estoppel could not create any interest in the property except as provided by Section 43 of the Transfer of Property Act.
16. On behalf of the petitioner reliance was placed on Shri Krishnan v. Kurukshetra University Kurukshetra (AIR 1976 SC 376) where it was held that once the appellant-candidate was allowed to take the examination, rightly or wrongly, then the statute which empowered the University to withdraw his candidature had worked itself out and the candidate could not be refused admission subsequently for the infirmity which should have been looked into before giving the candidate permission to appear. In this case a certificate in the form prescribed by the Statute and signed by the Principal of the College/Head of the Department had to be obtained byeach applicant before he could appear in the examination. This certificate was issued to the appellant in this case, but later it was withdrawn on the ground that it had been wrongly issued and for this reason the admission of the appellant was refused. The certificate was issued under the Statute of Kurukshetra University Calendar, Volume 1 Ordinance X. Clause 2 of this Ordinance read as follows:--
'2. The following certificates, signed by the Principal of the College/Head of the Department concerned shall be required from each applicant,
(a) that the candidate has satisfied him by the production of the certificate of a competent authority that he has passed the examinations which qualified him for admission to the examination; and
(b) that he has attended a regular course of study for the prescribed number of academic years.
Certificate (b) will be provisional andcan be withdrawn at any time before theexamination if the applicant fails to attend the prescribed course of lecturesbefore the end of his terms.'
The Court having regard to the last partof the Statute providing that the certificate could be 'withdrawn at any timebefore the examination' held that oncethe certificate was not withdrawn beforethe examination and the appellant wasallowed to take the examination, rightlyor wrongly, the statute which empowered the withdrawal of the candidaturehad worked itself out and the University was left with no power to refuse admission to the appellant. Relief was primarily granted on this basis. The authority, therefore, does not help the petitioner.
17. Reference was also made by the learned counsel to Smt. Gita Mishra v. Utkal University-Vani Vihar, ILR (1971) Cut 242 : (AIR 1971 Ori 276) where the principle of estoppel was successfully invoked to quash the order cancelling the results of the petitioner. The facts of this case were wholly different. University was held to be estopped from cancelling the result, because it was found on facts that a mark-sheet was supplied to the petitioner which showed that she had passed in English and which the court found in the facts of the case amounted to an 'intentional representation'. Believing this representation to be true the petitioner did not fill up the form for English in the second examination thatshe was otherwise entitled to take. After a lapse of thirty days, however, she was told that the marks shown in the mark-sheet were not correct and she had failed in English, in this situation the court on page 252 (ILR Cut) : (at pp. 279, 280 of AIR) of the Report said:--
'There can be no dispute that opposite parties Nos. 1 to 3 by their declaration in the mark-sheet that the petitioner secured 30 marks in English caused or permitted the petitioner to believe that she has passed in English. The last date for filling up the form for the Supplementary Examination was the 6th July 1970. By that date she knew that she had passed in English and accordingly did not fill up the form for English. Thus, she acted upon the belief based upon the mark-sheet that she had passed in English. In terms of the section, opposite parties Nos. 1 to 3 cannot be allowed to deny the truth of the fact that the petitioner secured pass mark in English provided the representation was intentionally caused.'
As stated earlier, the Court then found the supplying of the marks-sheet was an intentional representation and on this finding accepted the plea of estoppel. There is no such intentional representation in this case. Gita Mishra's case, therefore, does not help the petitioner.
18. Learned counsel then referred to Bireswar Mohapatra v. Principal Radha-nath Training College, Cuttack, 1977-43 Cut LT 149 : (AIR 1977 NOC 62). Here the principle of estoppel was held to apply to the facts because of conduct of the Principal in recommending the application of the petitioner to appear in the University examination. Briefly the facts were that the petitioner was admitted in the Radhanath Training College, Cuttack, for Bachelor in Education Course. In February 1975, according to the petitioner, he submitted his application for being allowed to take the University examination. He was declared eligible and he paid the requisite fee for the examination. The courses of study according to the regulation of the Utkal University extended over one academic year and comprised of five papers. Papers I to IV related to theory while Paper V covered practical test in teaching. The practical examination began on 17th of March and continued till 24th of April, 1975 Examination in the theory papers was scheduled to begin on 5-5-75. On 3-5-75 a notice was pasted on thenotice board notifying that the petitioner was not entitled to take further examination as he had not the requisite attendance. It appears that this shortage in percentage was calculated on the assumption that the extra classes held by the College after the application of the petitioner had been forwarded to the University were also to be taken into account as regular classes. The Court held that Statute 226 prescribed the qualifications for admission to the University examinations and Clause 3 of the Statute laid down that a candidate should, amongst others, also produce a certificate of attendance required by the Regulations in the form prescribed by the Syndicate. It further found that while forwarding the application of the petitioner the Principal had issued a certificate in the manner required by Statute 227 except clearly mentioning about the attendance of the petitioner. In this background it was held that in case the candidate-petitioner had not qualified it was not open to the Principal to recommend his application, but after the Principal had recommended his application and thereby represented to the candidate that he was qualified for the examination on the basis of which the candidate took the examination, the Principal was estopped from urging the plea that the petitioner was not qualified because of lack of percentage in attendance. The court also held that there was no warrant for the assumption that the qualifying percentage had to be determined with reference to the extra classes held by the College after the form had been forwarded to the University. The above narration would show that the facts were wholly different and estoppel was not applied to set at naught any mandatory provision of the Statute or the Regulations.
19. Our attention was also drawn to the decision in O. J. C. No. 895 of 1976 derided on 22-7-77 : (reported in AIR 1978 Orissa 65) (Naba Kishore Gadepalla v. Utkal University). This again was not a case where the plea of estoppel against Statute was accepted. The petitioner succeeded on the basis of commission and omission of the University. In para 4 of the judgment the court has said (at p. 67 of AIR) :--
The University cannot be permitted to plead by disclosing facts within its special knowledge that the mark-sheet was erroneous and petitioner as a fact hadsecured only 44 marks and not 56 as disclosed contemporaneously by the University.'
20. Reliance was placed by the learned counsel on AIR 1973 Ori 186 (M. K. Raghavan v. Jharsuguda Municipality), to contend that in appropriate cases estoppel can be viewed as creating right by its operation. In this case the service of the petitioner was terminated on the ground that he was not qualified to hold the post. The court found that the petitioner was appointed by the Municipal Committee and his conditions of service were subject to approval of Government on its satisfaction that the appointee possessed the requisite qualification. The court further found that the Government official in his inspection report had found the petitioner to be holding the required qualification and further that the petitioner had been retained thereafter in service for a long time upto an age when finding alternative appointment by him was not possible. In these circumstances the court held that he could not possess the requisite diploma especially when persons of his like were in Govt. employment. Reference was also made by the learned counsel to AIR 1951 Mad 403 (Veeraraghava v. Kamalamma) where it was held that estoppel though a branch of the law of evidence could also be viewed as a substantive rule of law, but only in so far as it helped to create or defeat rights which would not exist or be taken away but for that doctrine. These observations were made in the context of appreciation of evidence that the court had to approve. In neither of these cases it was held that estoppel operated to create a right in derogation of the Statute.
21. In fact in view of our finding that the plea of estoppel could not at all be accepted in this case for reasons already stated the question of estoppel creating a right did not at all arise, but since the contention was raised and pressed during arguments we thought it proper to record it.
22. In the result, therefore, we are of the view that the petitioner is not entitled to the writ prayed for by him. The petition is consequently dismissed, but having regard to all the circumstances of the case, we leave the parties to bear their own costs.
Acharya, J.
I agree.