J.P. Mishra, J.
1. In this writ application the petitioner has sought for a direction to consider his admission in Synergy Institute of Engineering & Technology, Dhenkanal to be valid admission and to allow him to appear in the semester examinations, in the alternative, he has prayed for direction for payment of Rs. 20 lakhs from the Opp. Parties. 2 & 3.
2. The facts giving rise to the Writ Application that the petitioner passed CHSE examination in the year 2000 with the subjects : Physics, Chemistry and Botany as 1st, 2nd and 3rd optional respectively and he had Mathematics as 4th optional. According to the averments, as he secured more than 50% marks in Physics, Chemistry and Mathematics in a single sitting, he took admission in the college of Opp. Party No. 3 with the approval of the Director of Technical Education & Training (O.P. 2). He appeared in the 1st and 2nd semester examinations of Engineering under the Utkal University (O.P. 1.) and could not appear in the 3rd semester because of his illness. But, now he is continuing as 4th semester student in the college of opp. Party No. 3. When the matter stood thus, the D.T.E. & T. (O.P. 2). issued a circular dated 4.12.2001 (Annexure-2) requiring 45% mark in PCM group in a single sitting at +2 Science level for admission in private Engineering colleges in respect of non-Joint Entrance Examination candidates. The petitioner being a non-JEE candidate was not allowed to appear in 3rd semester examination on the ground that his forms were not accepted by the Utkal University for the aforesaid Annexure-2. Therefore, he approached the extraordinary jurisdiction of this Court for indulgence.
3. In spite of notice the Opp. Party Nos. 2 & 3 have not filed any counter. It is only the Opp. Party No. 1, the Utkal University took the stand by filing counter affidavit that the petitioner had passed CHSE examination in +2 Science stream with Physics, Chemistry and Biology and had failed in 4th optional Mathematics securing 12 out of 200. Since he has failed in Mathematics, he cannot be considered to have secured 45% in Physics, Chemistry and Mathematics in one sitting having Mathematics as 4th optional. It has been further averred that merely because the petitioner has appeared in two semesters, the same per se would not improve his case and he should be thrown out of the college and he should not be allowed prosecute his further study in the Engineering college by appearing in the remaining semesters under the University (O.P. 1).
4. It is not disputed that the petitioner took admission in the college of O.P. 3 and the petitioner is a student of 4th semester in the college of Opp. Party No. 3 and has already appeared at 1st, 2nd semesters.
5. Shri U. K. Samal, Learned Counsel for the petitioner advanced his argument on the ground that in absence of violation of regulation the petitioner's admission should be considered as valid as he secured more than 50% mark in one sitting in Physics, Chemistry and Mathematics even excluding the subject Biology. It is next contended that the petitioner should be allowed to continue in the college by appearing in the subsequent semesters with the protection of promissory estoppel.
6. Shri A. K. Rath, Learned Counsel for the University has contended that since the admission is contrary to the circular/regulation, the petitioner should be dislodged from the Engineering College for not securing the required marks. According to him, the admission itself is void ab initio and, therefore, protection of promissory estoppel is not available to the petitioner. He has also contended that appearing in two semesters per se cannot give any right to the petitioner for continuing his studies further in the college relying on the decision in Smt. Ravinder Sharma and Anr. v. State of Punjab and Ors., AIR 1995 SC 277.
7. The following two questions fall for consideration :-
(a) Whether the petitioner being a non-JEE student his admission is invalid for not securing 45% marks as per the requirement under Annexure-2; and
(b) Whether the petitioner can be protected by promissory estoppel.
The marks secured by the petitioner in Physics, Chemistry, Biology and 4th subject Mathematics is given below :-
Subjects PAP1 PAP2 PAP1 PAP2English 100 100 52 47Alt. English 100 66Physics 75 75 47 59Physics (Prac) 50 47 Chemistry 75 75 53 48Chemistry (Prac) 50 47 Botany 75 39Botany (Prac) 25 21Zoology 75 49Zoology (Prac) 25 17 Maths (ECP) 100 100 07 05Work Experience = C Grand Total 583
Admittedly, the petitioner secured only 12 marks in Mathematics having his 4th subject out of 200. The circular issued by the D.T.E.&T.;, Orissa dated 4.12.2001 requiring 45% in P.C.M. group in single sitting at +2 Science level for filling up seats in Engineering Colleges in respect of non-JEE candidates is in Clause (6) of Annexure-2. The petitioner being a non-JEE student applied and took admission in the college of opp. Party No. 3. Learned Counsel for the petitioner submits the at petitioner's admission to be valid as he secured more than 50% mark in Physics Chemistry and Mathematics excluding total marks secured in Botany. We are unable to persuade ourselves to the above contention of the Learned Counsel for the petitioner for the reasons that the HSE Regulation 116 prescribes the calculation of pass mark which is quoted below :-
'116. Pass mark : (i) The pass mark in written and practical shall be 30 per cent and 40 per cent of the maximum marks, respectively, in that subject or group of subjects. The pass mark in the aggregate shall be 35 per cent.
(ii) If a candidate has passed in the compulsory and optional subjects and also in the aggregate, the marks, if any, which he obtains in excess of the minimum pass mark in the extra optional subject shall be added to his aggregate and the aggregate so obtained shall determine his division and his place in the pass list.'
8. In the present case, the petitioner has opted for 4th optional/Extra optional as Mathematics and has failed by securing 12 marks in both the papers out of 200. The procedure prescribed in the above Regulation 116 is that excess of the minimum pass mark in the extra optional subject shall be added to the aggregate of the student and the aggregate so obtained shall determine his division and place in the pass list. Therefore, the restriction imposed by Annexure-2 is definitely intended for securing 45% in each of the subjects separately. Further, it is well known that a student shall be eligible to read Engineering only with the subject of Mathematics along with other subjects, i.e., Physics and Chemistry. So, it can never be said that petitioner secured more than 50% mark in P.C.M. group in single sitting at +2 Science level. Therefore, the petitioner's admission into the college of Opp. Party No. 3 is invalid.
9. Learned Counsel for the petitioner has relied on a decision in Sanatan Gauda v. Berhampur University and Ors., 1990 (I) OLR (SC) 541. In the cited case, the appellant took admission in Law College by submitting his mark sheet and appeared in Pre and Intermediate Law, subsequent to which, he took admission in Final Law. His results of Pre and Intermediate Law were withheld by the Berhampur University. The Apex Court after discussing the Regulation 1 of Chapter VIII ruled that it was not applicable to the students who have obtained Master Degree. Further reliance has been placed on a Full Bench decision of this Court reported in AIR 1993 Orissa 27 Miss Reeta v. Berhampur University and Anr., wherein, the reference was answered in favour of the petitioner-Reeta by protecting her as she has already obtained diploma in Pharmacy from VSS College, Berhampur considering her to have already changed her position substantially to her prejudice on the representation of the selection committee, as it was not possible to restore the status quo.
10. The principles of law enumerated in the aforesaid decisions cited by the learned counsel for the petitioner are certainly binding, but the facts in the present case are quite different for application of the aforesaid decisions.
11. In the case in hands, the petitioner has simply appeared in two semester examinations after taking admission into the college of Opp. Party No. 3. In Sanatan Gauda's case (supra), protection of promissory estoppel was extended as the restriction of Regulation 1 of Chapter VIII was not applicable to Shri Gauda and by then he was validly admitted into law College. Similarly, the petitioner-Reeta had already altered her position substantially to her prejudice by obtaining diploma in Pharmacy from VSS College on the representation of the selection committee.
12. The present Opp. Party No. 1 cannot be considered as a promiser as there was no representation from the side of the University to attract the principle of promissory estoppel. Secondly, when the admission itself is void from the beginning, promissory estoppel has got no application. Learned Counsel Shri Rath has relied on a decision reported in AIR 1995 SC 277, Smt. Ravinder Sherma & Anr. v. State of Punjab and Ors.. In the said case, one Smt. Ravinder Sharma was appointed a as clerk in the Punjab Public Service Commission on regular basis on 28.8.1968 and was also promoted as an Assistant on 1.2.1974 though she had passed Matriculation in III division. After her appointment, the Government of Punjab was requested to relax the requirement of initial qualification, which was turned down as she had not passed Matriculation in 1st division as per the requirement of Regulation 7 of the Punjab Public Service Commission (State Service Class III) Regulations, 1967. Her appeal was also turned down by the Apex Court even after earning promotion as she had no required qualification at the time of her appointment. Likewise, the present petitioner was not qualified to be admitted in the college of Opp. Party No. 3 for not securing 45% mark in Physics, Chemistry and Mathematics in single sitting at +2 Science level. Therefore, the question of protection under promissory estoppel does not arise.
13. Adverting to the plea of compensation, I may mention here that both the Opp. Party Nos. 2 & 3 have abstained from filing counter in spite of notice. Clause (3) of Annexure-2 requires intimation to the representatives of D.T.E.&T.; much before the counselling so that they will remain present on such date and time. So, at the time of counselling both the Principal and the representatives of D.T.E.&T.; were very much present and were aware of the marks of the petitioner who had failed in Mathematics, but, he was given admission. The very absence of their counter to the writ application tells a tale. In the meantime, the petitioner has already deposited Rs. 23,000/- (Annexure-3) and Rs. 16,000/- (Annexure-5) which shall be returned by the Principal of the Engineering College (O.P. 3). within two months from the date of receipt of our order. In addition, we direct Opp. Party Nos. 2 & 3 (who admitted the petitioner) to pay Rs. 5,000/- (Rupees five thousand) each to the petitioner as compensation within the aforesaid stipulated time.
In the result, the Writ Application is allowed to the above extent only.
P.K. Mohanty, J.
I agree.