Judgment:
Mathur, J.
1. This special appeal is directed against the judgment dated8.4.1985 dismissing the writ petition.
2. The facts of the instant case lies within a very narrow compass. The petitioner passed the M.Com. (Previous) Examination in July, 1982. He was not satisfied with the valuation of marks in third paper i.e., Industrial Relation and Personnel Management wherein he had secured only 32 marks out of 100. Thus, he applied for re-evaluation. The result of the re-evaluation was declared on 4.11.1982 and marks of the petitioner were reduced from 32 to 21 and as such he failed in the third paper in M.Com. (Previous). The scheduled last date for submitting the examination form for M.Com. (Final) Examination, 1983 was 5.11.1982. He submitted the application and also deposited the examination fee on 5.11.1982. The petitioner also applied for permission to appear at the left out paper of M.Com. (Previous) simultaneously with the M.Com. (Final) Examination, 1983. The petitioner deposited the examination fee for appearing in third paper of M.Com. (Previous) Examination, 1983 on 9.11.1982. The University permitted the petitioner to appear in the M.Com. (Final) Examination 1983 as well a for the left out paper of Industrial Relation and p--Management of M.Com. (Previous) Examination, 1983. The petitioner was declared passed for M.Com. (Final) Examination, 1983 he also secured 40 marks in the third left out paper of M.Com. (Previous) Examination. However, a notice dated 28.7.1983 was issued to him to show cause as to why his M.Com. (Final) Examination, 1983 be not cancelled as he had appeared in examination in a deceitful manner knowing fully well that he had failed in M.Com. (Previous) Examination. The petitioner submitted a letter dated 28.7.1983 stating inter alia that he had appeared at the M.Com. (Final) Examination with the permission of the University. He also denied the allegation of appearing in the M.Com. (Final) Examination by deceitful means. The petitioner also took up the plea that University was estopped from going back from his representation and to play with his career. Petitioner also asked for the personal hearing. However, the University in the meeting of Syndicate dated 22.11.1983 resolved to cancel the M.Com. (Final) Examination of the petitioner. The petitioner was informed of the said decision under the communication dated 2.2.1984.
3. In reply to the writ petition, the University took the stand that petitioner was permitted to appear in M.Com. (Final) Examination, 1983 in ignorance of the fact that on re-evaluation his marks were reduced and as such he had failed in M.Com. (Previous) Examination. It was submitted that as the petitioner failed in M.Com. (Previous) Examination, he was not eligible to appear in M.Com. (Final) Examination. Thus, his result of M.Com. (Final) Examination, 1983 was rightly canceled. It was also submitted that in the circumstances of the case the doctrine of equitable estopped cannot be resorted to the petitioner.
4. The learned Single Judge was of the view that irrespective of the fact that the petitioner was permitted to appear in M.Com. (Final) Examination, the decision of the University to cancel his M.Com. (Final) Examination was right as he failed in M.Com. (Previous) Examination. The learned Single Judge observed that there is no rule permitting a failure to appear at the Higher Examination. The learned Single Judge though realised that it was a hard case but refused to grant any relief to the petitioner on the ground that circumstances of the case does not warrant any relief as by his own conduct of getting his third paper re- evaluated, he got failed.
5. The question falls for consideration is as to whether in the facts and circumstances, any relief can be granted to the petitioner? We get clue from some of the decisions of the Apex Court. In Shri Krishan v. The Kurukshetra University (1), the petitioner was allowed to appear in LL.B. Part II Examination but subsequently his candidature was withdrawn in view of mandatory provisions of Clause 2(b) of the Kurukshetra University Calender Vol. I, Ordinance X under which the candidature could be withdrawn before the candidate took the examination. According to the University, the petitioner played a fraud by suppressing the fact that his percentage was short. The decision of the University was upheld by the High Court while dismissing the writ petition. The letter's patent appeal was also dismissed. The Apex Court reversed the decision and found that neither the Head of the Department nor the University authorities took care to scrutinise the petitioner's application. In the opinion of the Apex Court the question of the candidate committing a fraud did not arise as it was for the Head of the Department or the University authorities to take care and scrutinise the application property. The Court observed thus:-
'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.'
The court held that once a candidate is allowed to take his examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the candidate cannot be refused admission subsequently for any infirmity which should have been looked into before giving the candidate permission to appear. The court further observed that the Head of the Department of Law was also guilty of dereliction of duty in not scrutinising the admission form of the appellant before he forwarded the same to the University.
6. In Smita Johnbhai Master and Ors. v. The State of Gujarat and Ors. (2), the Apex Court applied the equity in the case of irreversible situation. In the said case, the question was of loss of one year which could not be compensated or restored by any process known to law. The court observed, thus;-
'These are some unavoidable consequences of the system which howsoever one may disapprove, cannot be wished away. Even if we do not grant any relief to the petitioners whose petition is being dismissed, [hose who could not secure admission would not be better off, because their loss of one year cannot be compensated or restored by any process know to law. Clock cannot be put back howsoever one may ardently desire,
The court with a view to mitigate the harshness of law blended by fairness of equity directed that all those who secured admissions under the orders of the Director of Education and have completed first year course and have also appeared at the examination held at the end of first academic year should be treated as admitted for the limited period of first year. It is a classic case in which the Apex Court considered the fact that irreversible situation has arisen (cannot be put back howsoever one may ardently desire). The court also considered the mitigating harshness of law blended by the fairness of equity and granted the relief to the petitioners.
7. In Anil Baipadithaya and Ors. v. State of Karnataka and Ors. (3), the petitioner had already studied upto two years of M.B.B.S. course. The court also found that members of S.S.C. though equally guilty, since promoted and in the circumstances of the case it was not justified and equitable to punish only party viz., the appellants for the fraud. The court observed thus ;-
'On the State counsel being asked by us as to whether the State is prepared to restore the status quo ante regarding the posts which the members concerned of the SSC were holding at that time, could shoulder is shown. Shri Nagaraja states that the officers at this stage cannot be punished without giving them opportunity. It is really not a question of punishment to them, but of taking back the reward given. As the State is not prepared to do so, we do not think if we would be justified in punishing only one party to the fraud. This would not be equitable. So, even though we strongly decry and condemn the fraud played by the appellants, the present is not an occasion where any punishment is deserved at the behest of one who is not prepared to punish the main culprit, as the members of the SSC have to be regarded, because, but for their active role, the appellants would not have succeeded in their highly pbjectionable and deplorable act. In not allowing the cancellation to take effect, we have also noted that the appellants have studied for about two years by now and their action had otherwise not deprived any other merited student of his legitimate seat.'
8. In Rajendra Prasad Mathur v. Karnataka University and Anr. (4), though the petitioners were found not eligible for admission in the Engineering Degree Course and they have no legitimate claim to such admission but the blame for their wrongful admission must lie more upon the engineering colleges which granted admission to them and in such circumstances the Apex Court directed to allowed the petitioners to their studies in the respective colleges in which they were granted admission.
9. Thus, the learned Single Judge was in error in refusing the relief inspite of the fact that in his opinion, it was a hard case, simply on the ground that he himself had applied for re- evaluation. The courts need not feel so helpless. It is no doubt that a judge has to do justice according to law but he is expected to shape his judgment taking note of common man's sense of justice and not merely be a slave of logic and the latter of law. Equity moulds the law to bring in conformity with justice while good conscience puts reason on the path of justice. Equity has, according to Maine, a kind of 'supplementary or residuary jurisdiction' without which law would have been fatally stunted. The petitioner has left the studies long back, he must be in service now. Thus, lapse of time, the fact that the situation has become irreversible and the fact that respondent authorities were also responsible for creating such a situation and the fact that it is not wise to allow to go wait the valuable years which he invested in persuing the studies and passed the examination are mitigating circumstances, which courts of justice have always considered and must consider to grant relief.
10. In the instant case, the petitioner before submitting the application for M.Com. (Final) Examination knew that he has failed for M.Com. (Previous) Examination, still it was the duty of the University authorities to scrutinise his application. There was definitely a serious lapse on the part of the University Authorities. The respondent University has failed to establish any fraud played by the petitioner. Further, irreversible situation has arisen inasmuch as the petitioner has passed the M.Com. (Final) Examination. He will have to again appear in the M.Com. (Previous) Examination after number of years. In these circumstances, it is just and proper to grant relief to the petitioner.
11. Consequently, we allow this special appeal ad set aside the judgment of the learned Single Judge and also set aside the decision of the University cancelling the petitioner's result of M.Com. (Final) Examination. The respondent University is directed to declare the petitioner's result having passed M.Com. (Final) Examination, 1983 within a period of six weeks. No order as to costs.