IN THE HIGH COURT OF JUDICATURE AT PATNA L.P.A.No.1900 of 2010 1. Veer Kunwar Singh, University, Ara through the Vice- Chancellor. 2. The Vice-Chancellor, Veer Kunwar Singh University Ara. 3. The Registrar, Veer Kunwar Singh University, Ara 4. The Examination Controller, Veer Kunwar Singh University, Ara ---- Respondents/Appellants. Versus 1. Anubhav Chamria, son of Sri Bal Krishna Chamaria, resident of Mohalla-Hare Krishna Colony, P.S. Fazalganj, P.O. + P.S. Sasaram, District Rothas at Sasaram ----- Petitioner/Respondent. 2. The Principal, S. P. Jain College, Sasaram, District- Rohtas at Sasaram ---- Respondent/Respondent. ----------- For the Appellants: Mr. Vinay Kirti Singh, Advocate. For the Respondents: Mr. S.B.K.Manglam,Advocate. ---------- 4. 11.1.2011 This appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna raises a grievance with respect to the order dated 16.2.2010, passed by a learned Single Judge of this Court in C.W. J.C. No. 831 of 2010 (Anubhav Chamaria Vrs. Veer Kunwar Singh University Ara & others), whereby the appellant University has been directed to publish the result of respondent no.1 herein of the third year Honours Course in Accounts forthwith. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. Respondent no.1 was admitted to three-years Accounts Honours Course in S.P. 2 Jain College, Sasaram. He appeared at Part I examination held in April 2005, and was declared passed in August 2005. In February 2006, he appeared only in Honours papers of Part II examination, and omitted to appear at the subsidiary papers of Part II, notwithstanding which he was promoted to the third year. His result for the third year was held-up because he had not passed Part II examination. He was, however, permitted to appear at Part II examination in 2009, and wrote all the papers of Honours as well as subsidiary papers and was declared passed. A photo-copy of the marks for the second year examination held in 2009, is marked Annexure-10 to the writ proceedings. The University held up the result for the third year, and did not publish it on the ground that, having passed the second year examination later on, he will have to appear Part III examination again, leading to the writ petition. The same has been allowed by the impugned order leading to the present appeal. 3. While assailing the validity of the order of the learned Single Judge, learned counsel for the appellants submits that respondent no.1 was duty-bound to disclose in his application form for permission to appear at Part III examination, that he had not cleared the subsidiary papers 3 of Part II, failing which it becomes a case of fraud. He next submits that such a course as has been permitted by the learned Single Judge is in the teeth of the provisions contained in regulation 7(1) of the “Regulation for Three Years Degree Examination in Arts, Science and Commerce”. 4. Learned counsel for respondent no.1 has supported the order of the learned Single Judge. 5. We have perused the materials on record and considered the submissions of learned counsel for the parties. There is no dispute at all in so far successful completion of Part II examination is concerned. The question which arises for consideration is whether or not the petitioner’s examination for the third year can be treated to be valid in a situation where he cleared the examination for Part II later on. The admitted position is that respondent no.1 had appeared only at Honours papers in the examination held in February 2006, and had omitted to appear in all the subsidiary papers. He had surely committed an act of discretion. However, in spite of this position, he was promoted to the third year, and he was equally permitted to appear at the third year examination. The College as well as the University had more than 4 adequate opportunity and time to verify whether or not respondent no.1 had cleared Part II examination. To that extent, the University and its functionaries are responsible. Furthermore, when respondent no.1 was permitted to appear at Part II examination in 2009, he was not informed by the authorities that he shall have to appear at Part III examination later on. It is equally admitted position that respondent no.1 has successfully cleared Part II examination. Learned counsel for the appellants on the alleged conduct of respondent no.1 that he had failed to disclose while filling up the application form for Part III examination that he had not cleared Part II examination, to be an act of fraud. The issue fell for the consideration of the Supreme Court in the case of Shri Krishan Vrs. The Kurukshetra University, Kurukshetra, A.I.R. 1976 SC 376. It has been held therein that “if the University had adequate opportunity and time to verify about the factual situation, or the alleged acts of omission and commission on the part of the students, the same can not be treated to be an act of fraud.” The relevant portion of paragraph 7 of the said judgment is reproduced hereinbelow: “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 5 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 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 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 suggestio falsi, or suppressio veri. The appellant never wrote to the University authorities that he had attended the prescribed number of lectures. There was ample time and opportunity for the University authorities to have found out the defect.” 6. Applying the legal position to the facts and circumstances of the present case, it was indeed a matter of regret that in spite of the position that respondent no.1 had appeared only at Honours papers of Part II in February 2006, and omitted to appear in the subsidiary papers, he was promoted to the third year and was in due course permitted to appear at examination thereof, a position entirely attributable to the authorities. A photocopy of the application dated 9.2.2007 in the hand writing of respondent no.1 for permission to appear Part III examination does not incorporate any clause obliging the candidate to disclose whether or not he had cleared all the papers of Part II. It is also relevant to state that, while permitting to respondent no.1 to appear at Part II 6 examination in 2009, the University and its functionaries had not conveyed the condition to respondent no.1 that he shall have to write the examination for Part III afresh. It is no body’s case that respondent no.1 had engaged himself in any act of forgery or falsification of record or the like. We are convinced that the University had adequate opportunity and time to verify the position which they had completely failed to do. We think it will be inappropriate to punish respondent no.1 for the faults attributable to the appellants. We must also put emphasis on the factual position that, though respondent no.1 had omitted to appear only in the subsidiary papers of Part II in February 2006, he appeared in all the Honours papers and subsidiary papers in 2009. 7. The judgment of the Supreme Court in the case of Guru Nanak Dev University Vrs. Sanjay Kumar Katwal and another, (2009) 1 SCC 610, may also be noticed. That was a case where the first respondent therein was admitted to L.L.B. (three years professional course) in pursuance of a common entrance test. After he had completed the course, doubts were raised about his basic eligibility to appear at the entrance test held for the purpose of admission. Relying on the judgment of the Supreme Court 7 in the case of Shri Krishan (supra), the Supreme Court observed as follows in paragraph nos. 18 and 19 of the judgment: “18. However, on the peculiar facts of the case, the first respondent is entitled to relief. The first respondent was admitted through a common entrance test process during 2004- 2005. He was permitted to take the first semester examinations by the University. He is not guilty of any suppression or misrepresentation of facts. Apparently, there was some confusion in the appellant University itself as to whether the distance education course attended by the first respondent was the same as the correspondence course which was recognized. 19. The first respondent was informed that he was not eligible only after he took the first semester examination. He has, however, also been permitted to continue the course and has completed the course in 2007. He has succeeded before the High Court. Now after four years, if it is to be held that he is not entitled to admission, four years of his career will be irretrievably lost. In the circumstances, it will be unfair and unjust to deny the first respondent the benefit of admission which was initially accepted and recognized by the appellant University.” 7.1. These observations support the case of respondent no.1. If we do not direct publication of the result for the third year in view of the factual position as it stands today a number of valuable years of respondent no.1 would be irretrievably lost in a situation where we do not find any act of fraud or misrepresentation attributable to him. It 8 appears to us that the resistance on the part of the appellants is only an act to cover up their own fault. 8. In the result, we do not find any merit in this appeal. It is accordingly dismissed. Vinay/ ( S. K. Katriar,J. ) ( S. P. Singh, J.)