Sitam Seshanka Vs. Principal, College Pharmaceutical Sciences and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 1, the principal of the college has filed a counter-affidavit takingthe stand that as the petitioner does not have requisite basic qualification to join the course of pharmacy, his admission to the college is ab initio bad in law and therefore he is not entitled to any relief. emphasis has also been laid on the undertaking given by the petitioner that he would abide by the rules, regulations of the college as well as of the berhampur university. however, it has been admitted by the university to the effect that the principal had submitted the application of the petitioner on 14-9-95 for appearing in the 1st year examination and the university in good faith accepted the recommendations of the principal of the college and issued the admit card. mohonty, learned counsel for the petitioner has contended that the action of the opposite parties are absolutely illegal inasmuch as they have exploited the situation keeping the petitioner in darkness and the petitioner in good faith acted by taking admission, complying with all formalities in filling up the form and ultimately appearing in the examination. further correspondence was also made on 24-12-94 wherein it has been clearly mentioned that the application of students from outside orissa should be carefully scrutinised before allowing admission. we are not happy with regard to the stand of the principal that if any laches occurred it was because of the circumstances. better sense of responsibility is expected from the principal of these colleges who are required to build the future of our nation. it would be absolutely different if there is misrepresentation, fraud, production of false documents and the like, by the students.misra, j. ajnanatimirendhesyajnenenjana salakaya.cakeurnmilitam yenatasmai srigurave namah.1. 'shastras' put the 'guru' on a pedestal making him equivalent to god and treat him as one who enlightens, illumines, guides, paves the path of light, unfolds the bright horizon amidst the encircling gloom, expands his sura enigmatically reaching the true follower, and he is also the one who transfer his sense of originallity, duty of accountability and progressive creativity to the dutious decipleleaving his lively foot-prints on the sands of time. in turn, the deciple follows him with reverence, acts in veneration and obeys with abeicance.2. in the case at hand there has been perverse manifestation to the contrary by the opposite party no. 1, the principal of the college of pharmaceutical science, berham-pur at mohude. instead of showing guidence to the petitioner to put a step forward in real light, he kept him in complete darkness to mar his cereer and destroy his energy, defeat his youth and demolish his aspiration.3. unfortunate factual scenerio as depicted is thus:--the petitioner after passing his board of secondary education in sikkim, his native place, completed 2 years' diploma course in pharmaceutical science and thereafter to have a degree in the said subject, he appeared in the high school certificate examination in the national open school, new delhi and passed the said examination in 1994, finding scope of doing the degree course in the college of pharmaceutical science, berhampur at mohuda the he submitted his application, and ultimately was admitted for the academic session 1994-95, after completion of 1st year course he was issued admit card to sit in the examination. the result for the aforesaid course was published in the month of march, 1996 but the result of the petitioner was not published. on enquiry the petitioner found out that his result had been withheld as his qualification of passing the senior secondary school certificate examination could not be accepted as national open school was not recognised by the berhampur university, and his admission to the college was regarded as invalid, and therefore he was not entitled to get his result. being aggrieved the petitioner served a lawyer's notice, but the same did not bring any fruitful result. challenging the aforesaid action of the opposite parties the petitioner has visited this court for issuance of appropriate writs for declaration of his results.4. opposite party no. 1, the principal of the college has filed a counter-affidavit takingthe stand that as the petitioner does not have requisite basic qualification to join the course of pharmacy, his admission to the college is ab initio bad in law and therefore he is not entitled to any relief. in the affidavit, annexure-1 to the writ application has been referred to point out that a student desirous of joining the course should have passed higher secondary school certificate examination of the council or higher secondary education, orissa with physics, chemistry, biology and mathemmatics or should have passed i, pharma or diploma in pharmacy from berhampur university or any other examination recognised by the berhampur university as being equivalent to the aforesaid examinations. it has been highlighted that the prospectus filed relates to 1992-93 academic session and the petitioner has taken admission in respect of the session 1994-95 and the prospectus does not permit any qualification except + 2 sciences or equivalent qualification for becoming eligible to get admission. emphasis has also been laid on the undertaking given by the petitioner that he would abide by the rules, regulations of the college as well as of the berhampur university. the principal in paragraph 6 of the counter-affidavit has put the blame on the petitioner that as his certificate was not found equivalent as per the rules of the berhampur university there is justification for non-publication of the result. other denials in the counter-affidavit relate to payment of capitation fee.5. the university, opposite party no. 2, has filed its return controverting the claim of the petitioner and justifying its stand. it is putforth by the university that the college was aware of the minimum qualification essential for admission to the course in question and the college authorities were in know of the list of equivalence of the examination conducted by different councils and authorities as the said list was communicated by the university to the college on 26th june, 1995. the college was warned time and again to scrutinise the application forms, at the time of admission to the course of the students who come from outside the state to ascertain whether the examination passed by them was recognisedby the university. the same, as emphasised, was not done in the instant case and therefore the university was constrained, on verification, to withhold the results. however, it has been admitted by the university to the effect that the principal had submitted the application of the petitioner on 14-9-95 for appearing in the 1st year examination and the university in good faith accepted the recommendations of the principal of the college and issued the admit card. the university has referred to the statutes of the university, the concept of equivalence, the recognition of by the council of higher secondary education, orissa subject to certain riders and the inadequacies as far as the case of the petitioner is concerned inasmuch as his qualification was not equivalent even by the standard stipulated by council of higher secondary education, orissa. on these assertions the action of the university is sought to be justified.6. shri g. p. mohonty, learned counsel for the petitioner has contended that the action of the opposite parties are absolutely illegal inasmuch as they have exploited the situation keeping the petitioner in darkness and the petitioner in good faith acted by taking admission, complying with all formalities in filling up the form and ultimately appearing in the examination. it is strenuously urged by sri mohanty that the principal of the college had scrutinised his papers and had treated his qualification equivalent as declared by the university and the university having accepted the recommendation of the principal cannot turn back and act against the petitioner as the said action is not only detrimental to him but would cause immense and incurable harassment. in essence, sri mohanty relies on the principles of equitable estoppel and waiver.7. sri s. s. rao, learned counsel appearing for the principal justifies the action of the principal by indicating that the principal remained unguided because of clause 3.1 of the regulations and further it was not within his knowledge with regard to the decision of the academic council about equivalence of the senior secondary certificate examination of the national open school. in his written noteof submissions sri rao has referred to the norms prescribed by all india council of technical education which has fixed the eligibility criteria to join b. pharma course. the said guide lines do not prescribe passing in two languages. the last submission of sri rao is that if there were any laches in admitting the petitioner to the course the same was circumstantial and there was no deliberate intention in the same.8. sri b. s. mishra appearing for the university has submitted that the principal was aware of the minimum qualification and should not have admitted the petitioner, and the university having rectified its mistake being entitled to do so under the law, the question of estoppel does not arise. sri mishra has referred to statute 219 and 220 to substantiate his submission that a student who has passed higher secondary examination of the council or higher secondary examination, orissa or an examination recognised equivalent thereto would be permitted to have his name in the register of students, and as the petitioner had passed from senior secondary school examination from the national open school which was not recognised by the university to be equivalent to that of council of higher secondary education, orissa, he was not entitled to be so registered. sri mishra has also submitted with vehemence that the council or higher secondary education, orissa has treated the senior secondary school examination conducted by the national open school, new delhi to be equivalent to + 2 examination conducted by the council of higher secondary education provided that the candidate had passed the said examination with two language subjects and three optional subjects. but as the petitioner had passed only one language subject the same could not be regarded as equivalent and therefore he was ineligible to be admitted and the mistake having been rectified there is no illegality or impropriety in the action of the university.9. the contentions raised by the learned counsel for the parties require careful, cautious and anxious consideration.on perusal of the documents filed by the university annexed to its counter-affidavit we find, as early as 26th june, 1993 the deputy registrar of the university had communicated to the principals of all affiliated colleges indicating the list of boards/councils and universities whose examination had been recognised as equivalent by the university. further correspondence was also made on 24-12-94 wherein it has been clearly mentioned that the application of students from outside orissa should be carefully scrutinised before allowing admission. it has been further emphasised in the said letter that utmost care should be taken at the time of admission of other boards/universities students in regard to the qualifying examination and it should be ascertained whether the degrees of the same board/university are recognised or not recognised by the university. on perusal of the aforesaid documents it is luminously clear that the university had communicated with earnest lucidity its specific stand, positive policy and the anxious attitude to the principal of the institutions. there is no doubt that the petitioner had not passed an examination which has been regarded as equivalent by the university. true it is, the university accepted the recommendations of the principal of the college and taking into consideration that the petitioner was a collegiate candidate issued the admit card in his favour and permitted him to appear in the examination. but on further scrutiny of other documents when the university found that the petitioner's admission to the college was not valid, it was considered appropriate to withhold the results of the petitioner. the stand of the university, as observed earlier, is a rectification of a mistake. the question arises whether the university can rectify this kind of mistake. there is no doubt that the university can rectify the mistakes of the present nature. in this regard we may refer to a decision rendered in the case of rajendra prasad mathur v. karnataka university, air 1986 sc 1448 wherein the apex court while dealing with admission to b.e. degree course of karnataka university came to hold that examinations passed by students from rajasthan not being equivalent toexamination passing of which constituted the basis of admission they were ineligible for admission. in the aforesaid case the apex court approved the finding of the high court that the plea of equitable estoppel was not entertainable as there was no representation by the 'university by which the students altered their position. there is no iota of doubt that the concept of equitable estoppel is not attracted. the action of the university cannot be faulted in rectifying its mistake. we need not detain outselves for long to deliberate on this aspect. we must expressly state here that we do not find any fault with the action of the authorities of the university. they are absolutely justified in their action. the fault lies with the principal. we are presuaded to hold that the principal was aware with regard to the essential qualification for admission and the declaration of equivalence. we are not going to probe into the basis on which the principal ignored the guidelines of the university and admitted the petitioner. the fact remains he took admission because of the positive action by the principal. it is true that the petitioner was not eligible for admission to the d. phanna course nor he has a legitimate claim to the same. but he cannot be blamed for the same. the blame in its entirety has to be shouldered by the principal. we think the 'guru' who was required to enlighten a student in pointing out his shortcomings, inadequacies, in-eligibilities and incapacities should have exposed him to the real situation and should not have kept him in dark arid kindled a sense of hope and feel of bright future by granting him admission. we are not happy with regard to the stand of the principal that if any laches occurred it was because of the circumstances. better sense of responsibility is expected from the principal of these colleges who are required to build the future of our nation. we may give a note of caution to the present principal that in future he should be more careful and cautious and would not create a situation of the present nature. men lives to learn and we hope the 'guru' will learn to become a real 'guru'.10. this being the situation we have to address ourselves with regard to the relief that can be granted to the petitioner. with hortative hopes and sparkle spirit the petitioner had taken admission to the course. he has successfully completed one year and has appeared in the examination. his youth should not witness the frustration and despair of the present nature. in the case of rajendra prasad (air 1986 sc 1448) (supra) the apex court while accepting the stand of the university and taking into consideration the plight of young students expressed thus (at p. 1455 of air) :'the fault lies with the engineering colleges which admitted the appellants because the principals of these engineering colleges must have known that the appellants were not eligible for admission and yet for the sake of capitation fee in some of the cases they granted admission to the appellants. we do not see why the appellants should suffer for the sins of the managements of these engineering colleges. we would therefore, notwithstanding the view taken by us in this judgment allow the appellants to continue their studies in the respective engineering colleges in which they were granted admission.'in this connection, we may refer to the decision in the case of punjab engineering college, chandigarh v. sanjay gulati reported in air 1983 sc 580 wherein the apex court did not appreciate the wrong entry of educational institutions and the action of the admitting authorities who violate the norms and flout the rules. the apex court took the view that the students who are wrongly admitted should be removed from the roll of the institution but did not direct for removal in that case and observed as follows (at p. 582 of air) :--'..... some day, not distant, if admissions are quashed for the reason that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. we might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step. we have decided, regretfully to allow the aforesaid sixteen students to continue their studies.....'in the aforesaid case admissions were struck down by the punjab and haryana high court, but the apex court allowed the students to continue by giving a note of warning.in this regard we may refer to a recent decision of the calcutta high court rendered in the case of pratiksha bhatia v. university of calcutta reported in air 1996 cal 237 wherein the said court permitted the students to continue to prosecute their studies as they had taken admission to a college under the calcutta university, in that case the students had passed class 10 + 2 senior school certificate examination through 'patrachar' which was not recognised by the university of calcutta as equivalent to senior school certificate examination. the only distinction in the said case is that the principal of the college was not aware of the university's decision as the same was not circulated. the calcutta high court took exception to the same and directed continuance of the students. in spite of distinction we can take aid from that to the effect that the cancellation of admission at a belated stage on the ground of non-equivalence would be cruel and harsh. we have referred to the aforesaid judgments solely for the purpose to indicate that a student should not be put to unnecessary harassment by cancellation of his admission if he is not at fault in getting the admission. it would be absolutely different if there is misrepresentation, fraud, production of false documents and the like, by the students. no sympathy or discretion should be shown to the students. we are not also laying down as a rule that if the fault is with the authorities of the institution the admission would be permitted to stand. the authorities in charge of admission have to take effective steps to avoid indiscipline of this nature in educational institutions. they are not to be permitted to foster the idea that their illegal admission would not be struck off because of sympathetic consideration for a student. in the present case, we would have denied the relief to the petitioner, but we are persuaded to grant the relief because there is no material on record that the petitioner had made any mis-representation; there is no iota of proof thatthe petitioner was aware of non-equivalence; and the principal has submitted in his written note of submissions that he had an erroneous notion with regard to the equivalence and there is no other allegation against the petitioner. thus, while not appreciating the action of the principal and not finding any fault with the university we would direct continuance of the petitioner in the institution with a further direction to the university to publish his results within a period of six weeks from today.before we part with the case, we must express our concern with regard to the matters of admission. it should be borne in mind by the authorities in charge of admission that when an ineligible candidate takes admission, an eligible candidate is deprived of the opportunity to prosecute his studies. heads of the educational institutions have to act with a sanguine sense of responsibility, genuine keenness for objectivity, real concern for transparency and above all unquestionable effort for earning acceptability.with the aforesaid observations and directions the writ application is disposed of.s. chatterji, j. 11. i agree.