IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.831 of 2010 1. ANUBHAV CHAMARIA S/O SRI BAL KRISHNA CHAMARIA R/O MOH- HARE KRISHNA COLONY, FAZALGANJ, P.O & P.S- SASARAM, DISTT- ROHTAS AT SASARAM Versus 1. VEER KUNWAR SINGH UNIVERSITY ARA THROUGH THE VICE CHANCELLOR 2. THE VICE CHANCELLOR, VEER KUNWAR SINGH UNIVERSITY, ARA 3. THE RGISTRAR, VEER KUNWAR SINGH UNIVERSITY, ARA 4. THE EXAMINATION CONTROLLER, VEER KUNWAR SINGH UNIVERSITY, ARA 5. THE PRINCIPAL, S.P. JAIN COLLEGE, SASARAM, DISTT- ROHTAS AT SASARAM ----------- For the Petitioner: Mr S.B.K.Mangalam,Advocate Ms Anamika Dubey, Advocate For the University: Mr Vinay Kirti Singh,Advocate -------- 2. 16.02.2010 Heard learned Counsel for the petitioner and the learned Counsel for the respondent University. The petitioner came to this Court earlier in CWJC No. 13642 of 2009 with a prayer for declaration of his third year result of the degree examination in Accounts (Honours). The order dated 28.10.2009 of this Court specifically notices that the petitioner had cleared all main and subsidiary papers of the first and second year of the course. He was permitted to appear in the third year also but the result was not being published. It was further noticed that his first and second year result had also been published. This Court relied upon two judgments of the Supreme Court to hold that once the candidate had been allowed by the University to appear at the examination, the results were bound to be published except in what may be a case of fraud. The writ petition was disposed with a direction to the Vice Chancellor to examine the matters appropriately and dispose by a reasoned and speaking order. In pursuance thereto the impugned order dated 15.12.2009 has been passed. It states that contrary to procedure the petitioner did not appear at the subsidiary papers along with the main examination in the 2 second year. He appeared in the subsidiary papers at the main examination of the third year. This was contrary to the regulations when the petitioner was guilty of fraud by not filling up his examination form for the third year making adequate declaration in this regard. Learned Counsel for the University prays for time to file counter affidavit. He submits that the University shall explain the matter appropriately in the counter affidavit when the University may take additional ground also to support the impugned order. The respondents have passed a reasoned and speaking order in pursuance of an earlier order of this Court. The justification for the order has to be found in the recitals contained in the order itself. The respondents cannot support the impugned order from the materials outside the recitals contained in the impugned order. This Court is therefore not satisfied to adjourn the matter for a counter affidavit. This Court would have expected that when an order was passed by the high officials/functionary of the University and this Court gave adequate indication of the matter to be considered by them more particularly two judgments of the Apex Court the University authoritative would have taken the matter more seriously and unless fully satisfied after consideration of the two judgments that the matter did not fall within the ambit thereof would have given adequate reasoning for the conclusion to forestall any further frivolous litigation. In AIR 1976 SC 376 (Shri Krishan Vrs The Kurukshetra University, Kurukshetra) the appellant was a student of the 3 three year Evening Law course. The student was given option to clear certain subjects in which he may have failed at one of the examination before completing the three years course. The appellant appeared in the annual Part I examination but failed in three papers. He was promoted to Part II. He applied for his Roll Number to reappear in the in the subjects in which he had failed but was refused permission. At the annual examination to be held subsequently he approached the University again for provisional permission to appear. In the interregnum he had been prosecuted for certain penal action and was suspended during the period when case was going on against him. He was ultimately acquitted and therefore on the day that he applied for permission to appear the stigma of criminal case had been removed. He gave an undertaking that that because of the criminal case he was unable to obtain requisite permission from his employer and he would abide by any order that the University may pass. On this undertaking he was allowed to appear at the second year examination. He subsequently wrote to the university that the permission of his employer was not necessary and his result may be announced. His candidature came to be cancelled. He was declined interference by the High Court. The university took the stand that the appellant had been involved in a criminal case and therefore there was no certification of his good moral character and that he was short of attendance and could not claim right to appear at Part II and lastly that since he did not have approval of his employer for 4 appearing at the examination the impugned order of cancellation of his candidature required no interference. The Supreme Court held that the University could withdraw the certificate if the applicant had failed to attend the prescribed course of lectures. But this could be done only before the examination. It was observed “It is therefore manifest that once the appellant was allowed to take the examination, rightly or wrongly, then the statute which empowers the University to withdraw the candidature of the applicant has worked itself out and the applicant cannot be refused admission subsequently for any infirmity which should have been looked into before giving the applicant permission to appear”.. The contention of the University that names of those candidates falling short of attendance were displayed on the Notice Board making the applicant fully aware of his handicap, when he did not draw the attention of the University authorities to the same and obtained permission for appearance in the examination was a „fraud‟, was negatived at Para 7 and 9 as follows:- “7….. It is obvious that during this period of four to five months it was the duty of the University authorities to scrutinize the form in order to find out whether it was in order. Equally it was the duty of the Head of the Department of Law before submitting the form to the University to see that the form complied with all the requirements of law. If neither of the Head of the Department nor the University authorities took care to scrutinize the admission form, then the question of the appellant committing a fraud did not arise. It is 5 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. It was neither a case of seuggestio falsi, or suppression veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lecture. There was ample time and opportunity to the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April 1972 then by force of the University Statute the University had no power to withdraw the candidature of the appellant………” “9…………If only the University authorities would have exercised power diligence and care by scrutinizing the admission form when it was sent by the Head of the Department to the University as far back as December 1971 they could have detected the defect or infirmity from which the form suffered according to the University Statute. The Head of the Department of Law was also guilty of dereliction of duty in not scrutinizing the admission form of the appellant before he forwarded the same to the University.” In (2009) 1 SCC 610 (Guru Nanak Dev University Versus Sanjay Kumar Katwal & another) the University questioned the order of the High Court allowing his admission to the three years LL.B. course. The issue related to the degree by the candidate from an University through distance education on which his admission to the LL.B. Course was founded. The Apex Court held at Para 20 and 21 as follows:- 6 “20. This Court in Shri Krishnan v. Kurukshetra University1 has observed that before issuing the admission card top a student to appear in Part I Law examination, it was the duty of the university authorities to scrutinize the papers; and equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that it complied with all requirements; and if they did not take care to scrutinize the papers, the candidature for the examination cannot be cancelled subsequently on the ground of non-fulfilment of requirements.” “21. In Sanatan Gauda v. Berhampur University2, this Court held where the candidate was admitted to the Law course by the Law College and the University also permitted him to appear for Pre-Law and Intermediate Law examinations, the college and the university were estopped from withholding his result on the ground that he was ineligible to take admission in the Law course.” What has been discussed in the present order with regard to the law laid down by the Apex Court is what was required to be discussed by the University in the impugned order and then to record reason why it did not apply to the petitioner. The ground of „fraud‟ negatived by the Supreme Court in the case of Shri Krishan (Supra) is the very ground urged on behalf of the University in the present case. Perhaps a little application of mind by the officials of the University would have prevented this litigation which is nothing but generated at the behest of the University authority in not exercising their powers in accordance with law despite directions of this Court and adopting an attitude of what may be described as “Let the Court decide”. 7 The issue of spurt in litigation and pendency of cases is every body‟s concern today. Efforts are being made to review all available ways and means to curtail litigation specially frivolous and unwanted litigations. The University seems to be believing otherwise. The impugned order dated 15.12.2009 is wholly unsustainable. It is accordingly set aside. Let the result of the petitioner of his third year (Honours) Course in Accounts be declared forthwith. The application is allowed. Snkumar/- (Navin Sinha,J.)