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JAI PRAKASH SINGH versus REGISTRAR, VEER BHADUR SINGH, POORVANCHAL UNI. JAUNPUR & ORS

High Court of Judicature at Allahabad

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Jai Prakash Singh v. Registrar, Veer Bhadur Singh, Poorvanchal Uni. Jaunpur & Ors - SPECIAL APPEAL No. 494 of 2006 [2006] RD-AH 9604 (16 May 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 34

Special Appeal No. 494 of 2006

Jai Prakash Singh

Vs.

Registrar, Veer Bahadur Singh, Poorvanchal University, Jaunpur & Ors,.

*********

Hon. Dr. B.S. Chauhan, J.

Hon. Dilip Gupta, J.

This Special Appeal is directed against the judgment and order dated 17th April, 2006 passed by a learned Judge of this Court in Writ Petition No. 4434 of 2005.

The petition had been filed for issuance of B.Sc. certificate declaring the petitioner/appellant as having passed the said examination. The petitioner was admitted to the B.Sc. 1st Year in 1994 in the Town Degree College, Jaunpur (hereinafter referred to as the ''College') which is affiliated to the Veer Bahadur, Poorvanchal University, Jaunpur (hereinafter referred to as the ''University'). The petitioner-appellant appeared at the examination but was declared failed by the University. However, a mark-sheet was issued to the petitioner-appellant by the College showing him as having passed the B.Sc. Part I Examination by making interpolations in the cross-list sent by the University. The petitioner-appellant then sought admission to the B.Sc. II year in the College and he also appeared at IInd Year examination. The result was, however, not declared by the University. However, interpolations were again made in the cross-list sent to the College by the University and a mark-sheet was issued by the College showing the petitioner/appellant as having passed the B.Sc. IInd year Examination. It is on the basis of this mark-sheet that the petitioner-appellant sought admission to the IIIrd year in the College and he again managed to appear at the examination but this time also the University did not declare his result. The College, however, by making interpolations in the cross-list issued a mark-sheet to the petitioner-appellant showing him as having passed the B.Sc. Examination. The learned Judge dismissed the petition holding that fraud vitiates every action and if the petitioner had actually not passed the B.Sc. Part I Examination there was no occasion for him to appear at the B.Sc. IInd year Examination or the B.Sc. IIIrd year Examination.

We have heard learned counsel for the appellant and the learned Standing Counsel appearing for the University and have perused the materials available on record.

Learned counsel for the appellant submitted that once the College had issued mark-sheets to the petitioner-appellant showing him as having passed the B.Sc. Part I, Part II and Part III Examinations, it was estopped in law from taking a stand that it would not issue the B.Sc. pass certificate. Learned counsel further submitted that on the basis of the mark-sheet issued by the College, the petitioner-appellant had subsequently taken admission in higher classes and, therefore, it would wholly unjust on the part of the College Authorities not to issue the certificate and Degree to the petitioner-appellant.

Learned Standing Counsel appearing for the University, however, submitted that the University had at no point of time declared the petitioner-appellant as having passed the B.Sc. Part I, Part II and Part III Examinations and, in fact, the cross-list sent to the College clearly declared the petitioner-appellant as having failed at the Examinations but manipulations were done in the cross-list sent to the College and it was wholly on account of these manipulations that the mark-sheets were issued by the College Authorities to the petitioner-appellant. He, therefore, submitted that no benefit can accrue to the petitioner-appellant on the basis of these forged and fabricated mark-sheets and the plea of estoppel set up by the petitioner-appellant cannot be accepted as there can be no estoppel against law since the petitioner-appellant was patently disentitled to be declared successful. He further submitted that this Court should not issue any directions to the University to declare the petitioner-appellant as having passed the B.Sc. Examination and where fraud is practiced, sympathy should not shown.

We have carefully considered the submissions advanced by the learned counsel for the parties.

The facts of this case clearly reveal that manipulations were made at the level of the College in the cross-list sent by the University to the College Authorities and it is because of these manipulations that the College Authorities issued the mark-sheets to the petitioner-appellant declaring him as having passed the B.Sc. Part I, Part II and Part III Examinations. The petitioner-appellant has claimed relief on the basis of these forged mark-sheets. The question, therefore, that arises for our consideration is whether any relief should be granted to the petitioner-appellant in such a situation.

In Lazarus Estates Ltd. V. Beasley, (1956) 1 ALL ER 341 the Court of Appeal stated the law thus:

"I cannot accede to this argument for a moment. No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved it vitiates judgments, contracts and all transactions whatsoever;"

In S.P. Chengalvaraya Naidu V. Jagannath (1994) 1 SCC 1 the Supreme Court stated that fraud avoids all judicial acts, ecclesiastical or temporal.

In Andhra Pradesh State Financial Corporation Vs. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151 the Supreme Court observed that a writ Court, while exercising   its equitable jurisdiction, should so act as to prevent perpetration of a legal fraud as the Courts are obliged to do justice by promotion of good faith. Equity is always known to prevent the law from the clefty evasions and new sub-telities invented to evade law.

In Union of India & ors.  Vs.  M.  Bhaskaran, 1995 Suppl.  (4) SCC 100, the Supreme Court, after placing reliance upon and approving its earlier judgment in the case of District Collector & Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram & Anr. Vs.   M.  Tripura Sundari Devi, (1990) 3 SCC 655, observed as under:-

"If by committing fraud any employment is obtained, the same cannot be permitted to be countenanced by a Court of Law as the employment secured by fraud renders it voidable at the option of the employer."

In United India Insurance Co.  Ltd. Vs.  Rajendra Singh & ors., (2000) 3 SCC 581, the Supreme Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is  a pristine maxim which has never lost its temper over all these centuries.

In the case of Ram Preeti Yadav Vs. U.P. Board of High School and Intermediate Education & Ors,. (2003) 8 SCC it was observed by the Supreme Court that fraud deprives a person of all the advantages or benefits obtained by him and delay in detection of or in taking action raises no equity in favour of the petitioner. The facts of the case were that the petitioner on the basis of a provisional mark-sheet issued in 1986 took admission in B.A. without disclosing the fact that his result had been withheld. He passed the B.A. and M.A. Examination and also got employment as a Teacher in an Intermediate College. In the year 1993 some inquiry was made about the passing of the Intermediate Examination and then the Principal was informed on 16th October, 1996 that the result of the petitioner of the Intermediate Examination of the year 1984 had been cancelled. The writ petition was filed in the High Court raising various grounds including the ground that the cancellation after more than 10 years was wholly arbitrary and once he had passed the B.A and M.A Examination and secured appointment as a Teacher, equity demanded that the order be set aside. A learned Single Judge of the Allahabad High Court allowed the writ petition and the Special Appeal was also dismissed. The Supreme Court, however, set aside the judgment and upheld the action of the Board in cancelling the result of the Intermediate Examination.

Thus in view of the proposition of law laid down in the aforementioned cases it has to be held that the petitioner/appellant is not entitled to any relief in view of the fact that he is claiming reliefs on the basis of forged mark-sheets.

Learned counsel for the appellant, however, submitted that no presumption can be raised that fraud was committed by the petitioner and in support of this contention he relied upon a decision of a Division Bench of this Court in the case of Tarkeshwar Lal & Ors., Vs. University of Gorakhpur & Ors,. 1984 UPLBEC 1437. In the said case, on the basis of the result of LL.B IInd Year the petitioners had been admitted to the LL.B IIIrd Year and though they had appeared at this examination also, later on the LL.B Part II examination was cancelled on the ground that the petitioners had committed fraud by conniving with the Dealing Assistant in interpolating the Tabulation Chart of LL.B IInd Year Examination. The Division Bench of the High Court held that not only it cannot be presumed that the petitioners themselves were responsible for such interpolation but the University was also estopped from cancelling the result of LL.B part II Examination. Reliance placed upon the aforesaid decision of the Allahabad High Court by the learned counsel for the petitioner is not justified since the Supreme Court in the appeal filed by the University against the aforesaid decision being Civil Appeal Nos. 692, 693, 719, 720 and 721 of 1980 (University of Gorakhpur & Ors,. Vs. Kanhaiya Prasad Tripathi & Anr,.), by its judgment and order dated 2nd August, 1991 set aside the judgment of the High Court and held as follows:-

"After hearing the learned counsel for the appellants, we are of the opinion that the view taken by the High Court is not correct as no question of estoppel could arise against the University if admission to examination was obtained on misrepresentation. In this view, we allow the appeals and set aside the orders of the High Court with no order as to costs."    

At this stage reference may also be made to a judgment of a Division Bench of the Allahabad High Court in the case of Satish Kumar Rao & Ors,. Vs. Gorakhpur University AIR 1981 All. 377 in which it was held:-

"In the instant case, we are satisfied that as the petitioners themselves were responsible for the fraud played upon the University, they are not entitled to any right having accrued to them on the basis of mark sheets issued subsequently.

It is true, as was argued by the petitioners' learned counsel, that the general rule is that he who pleads fraud must establish the same positively. Counsel urged that in the absence of any direct or circumstantial evidence to prove that the petitioners had a hand in the issuing of new mark sheets, no fraud could be presumed. The submission made by the learned counsel for the petitioners is not correct. The general rule is that he who alleges fraud has the burden of establishing it. But, the law equally settled is that inferences of fraud may be drawn from the circumstances inasmuch as production of direct evidence is not possible. It is for this reason that direct evidence is not insisted upon for proving it. Fraud is a transaction which may be proved by inferences reasonably drawn from an intrinsic evidence respecting the transaction itself. Elements of fraud are such as are not susceptible of proof by direct evidence, as it is not demonstrable physically. For that reasons it must of necessity be proved by circumstances shown to have been involved in the transaction in question."

We are, therefore, not inclined to accept the contention of the learned counsel for the appellant that no presumption should be drawn that the petitioner was responsible for the fraud.

We, however, propose to examine the matter in the alternative also assuming that the petitioner was not responsible for the fraud. In our opinion even in such a situation the contention of the petitioner-appellant cannot be accepted.

In the case of B.L. Sreedhar & Ors. V. K.M. Munireddy (dead) & Ors. JT 2002 (10) SC 363 the Supreme Court indicated what estoppel is by observing:-

" Estoppel is a rule of evidence and the general rule is enacted in Section 115 of the Indian Evidence Act, 1872 (in short ''Evidence Act') which lays down that when one person has by his declaration, act or omission caused or permitted another person to believe a thing to be true and to act upon that belief, neither he nor his representative shall be allowed in any suit or proceeding between himself and such person or his representative to deny the truth of that thing.

Estoppel is a product of an equitable doctrine as was held by the Supreme Court in the case of Commr. of Income Tax (Central) v. B.N. Bhattacharjee AIR 1979 SC 1725:

"What in essence, is estoppel? Estoppel is a rule of equity which forbids truth being pleaded or representation, on which faith, another has acted to his detriment being retracted. Even extending the rule into the newfangled empire of promissory estoppel, it cannot go beyond the limits of the Law Revision Committee in England which Lord Denning allowed to blossom in the High Trees case,  (1947) 1 MKB 130, also see "Discipline of Law by Lord Denning" P. 202.  

We therefore recommend that a promise which the promisor knows, or reasonably should know will be relied upon by promisee, shall be enforceable if the promisee has altered his position to his detriment in reliance on the promise."

Estoppel presupposes equity in the representee. The further requirement is that he who raises an equitable estoppel must do equity himself. In a New Zealand case Re Goile Ex. P Steelbuild Agencies Ltd. (1963) NZLR 66, (CA), a debtor arrived at an arrangement with his creditor whereby the creditor undertook to release him on payment forthwith of a sum smaller than due under the agreement. The debtor did not fulfill his part of the obligation despite persistent request of the creditor. Thereupon, the creditor issued bankruptcy proceedings founded upon the original debt. This was opposed by the judgment debtor and promissory estoppel was attempted to be set up in defence. The New Zealand Court held that the promise which was submitted as supporting the estoppel could not avail the judgment debtor who had failed to perform his part of the bargain. He who seeks equity must do equity. As the judgment debtor was found not to have acted in accordance with the promise, his defence was repelled.

It is also a settled proposition of law that estoppel cannot be raised to defeat the provisions of a Statute and nor do the Courts issue any direction contrary to law.

The Supreme Court in Dr. H.S. Rikhy & Ors,. Vs. The New Delhi Municipal Committee AIR 1962 SC 554 considered this aspect and laid down the law as follows:-

"In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed. The statement of the law in paragraph 427 of the same volume of Halsbury's Laws of England to the following effect settles the controversy against the appellants:

" Result must not be ultra vires-A party cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers, or to refrain from doing what it is its duty to do........."

The same principle was reiterated by the Supreme Court in the case of Dr. Ashok Kumar Maheshwari Vs. State of U.P. & Anr., (1998) 2 SCC 502 in which it was clearly held that estoppel cannot be raised to defeat the provisions of a statute.  

In the case of M.I. Builders Pvt. Ltd. Vs. Radhey Shyam Sahu & Ors,. (1999) 6 SCC 464 the Supreme Court again observed as follows:-

"Action of the Mahapalika in agreeing to the construction of an underground shopping complex in contravention of the provisions of the Act and then entering into an agreement with the builder against settled norms was wholly illegal and has been held to be so by the High Court. No doubt the Mahapalika is a continuing body and it will be estopped from changing its stand in the given case. But when the Mahapalika finds that its action was contrary to the provisions of law by which it was constituted there could certainly be no impediment in its way to change its stand. There cannot be any estoppel operating against the Mahapalika."

Thus if the petitioner-appellant was not entitled to be declared successful at the B.Sc. Part I, Part II or Part III Examinations, then the plea of estoppel cannot be raised by the petitioner-appellant and nor can this Court direct the University to issue the B.Sc. pass certificate or Degree to him.

We are also not persuaded by the arguments advanced by the learned counsel for the appellant that in such circumstances a humanitarian approach should be adopted and a direction should be issued by this Court to the University to declare the petitioner-appellant as having passed the B.Sc. examination even though he had failed at the said examination.

In Regional Officer, CBSE Vs. Ku. Sheena Peethambaran & Ors,. (2003) 7 SCC 719 the Supreme Court considered the withholding of the Examination Form of a candidate for the High School Examination on the ground that she had not passed the Class IX Examination. The High Court initially by an interim order had permitted the candidate to appear at the Class X Examination and ultimately had allowed the writ petition also. It was held by the Supreme Court that the candidate did not fulfill the conditions for appearing at the Class X Examination and, therefore, it set aside the order of the High Court allowing the writ petition by observing as follows:-

"In the background of the law as laid down by this Court, we find that in the case in hand the fact situation was even worse as compared to the decision cited above. The student, namely, Respondent. 1 had failed to clear her Class IX examination which was a necessary requirement as provided under the bye-laws of the Board so as to be entitled to appear in Class X examination conducted by the Board. Despite notice, no one has put in appearance on behalf of Respondents 1 and 2 to indicate any fact or circumstance so as to take any different view. Condoning the lapses or overlooking the legal requirements in consideration of mere sympathy factor does not solve the problem, rather breeds more violations in the hope of being condoned. It disturbs the discipline of the system and ultimately, adversely affects the academic standards."

In A.P. Christians Medical Educational Society v. Govt. of A.P. (1986) 2 SCC 667, the Supreme Court observed:

"We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws."

In the case of Gurdeep Singh Vs. State of J.& K. & Ors,. AIR 1993 SC 2638 the Supreme Court examined the selection of a candidate who was ineligible to admitted. It quashed his selection and made the following observations in Paragraph 9 of the Judgment:-

"What remains to be considered is whether the selection of respondent No. 6 should be quashed. We are afraid, unduly lenient view of the courts on the basis of human consideration in regard to such excesses on the part of the authorities, has served to create an impression that even where an advantage is secured by stratagem and trickery, it could be rationalised in courts of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictate that a tendency of this kind where advantage gained by illegal means is permitted to be retained will jeopardize the purity of selection process itself; engender cynical disrespect towards the judicial process and in the last analyses embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the court. Such instances reduce the jurisdiction and discretion of courts into private benevolence. This tendency should be stopped. The selection of respondent No. 6 in the sports category was, on the material placed before us thoroughly unjustified. He was not eligible in the sports category. He would not be entitled on the basis of his marks, to a seat in general merit category. Attribution of eligibility long after the selection process was over, in our opinion is misuse of power. While we have sympathy for the predicament of respondent No. 6, it should not lose sight of the fact that the situation is the result of his own making. We think in order to uphold the purity of academic processes, we should quash the selection and admission of respondent No. 6. We do so though, however, reluctantly."      

We, therefore, do not find any merit in this Special Appeal. It is, accordingly, dismissed.

Date: 16.5.2006

NSC


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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