Decided on July 14,1978

Miss Umamoni Dash Appellant
Utkal University And Anr. Respondents


R.N.Misra, J. - (1.) PETITIONER appeared as a regular candidate in the B.A. Honours Examination of the Utkal University held in April, 1975 and obtained marks as indicated in Annexure -1. She failed in English having secured 61 marks out of 200. She also failed in Political Science, inasmuch as she secured only 78 marks as against the required pass mark of 80. The full marks in Political Science are 300. Under the appropriate Regulation of the University, there are three written papers and half of the marks out of 300 are assigned for internal assessment. Petitioner had secured a total of 105 out of 300 but had admittedly failed to secure the minimum pass marks of 80 in the written examinations in the three papers. According to her, she applied for being permitted to take the compartmental examination and had paid full fees. At the time of scrutiny of the application form, to College authorities found that Petitioner had passed in Political Science and was required to appear only in a single subject. Though she had deposited the full fee of Rs. 84/ -, it was noticed that as she was to take examination only in one subject, the concessional rate of Rs. 39/ - In all was applicable. She thereupon claimed refund of the excess payment of Rs. 45/ -. The University authorities granted the refund. In due course Petitioner took the examination in English only. The results were, however, not published as it was then noticed that Petitioner had failed in Political Science and had not re -appeared. By this writ application Petitioner has asked for a direction to the University to publish the results of the Petitioner in the Second B.A. Examination of 1975 declaring her to have passed, on the footing that she had passed in English in the second Examination.
(2.) AN affidavit in opposition has been filed by the Principal of the College where Petitioner's assertion that she had been sent for and told that she would be required to appear in a single subject and, therefore, she should claim refund of the excess amount has been denied. In a separate affidavit, the Controller of Examinations of the Utkal University while admitting that refund of the excess examination fee had been given contends that the Petitioner had failed in Political Science and she was aware of the fact that she had failed. Therefore, the Petitioner has no cause of action and is not entitled to a declaration to have passed the B.A. Examination. Counsel for the Petitioner does not dispute that Petitioner had as a fact failed in Political Science. It has been admitted by the Petitioner that she was possessed of the mark -list where particulars of marks secured by her subject -wise had been furnished. It is not disputed that under the relevant Regulation, a minimum of 80 marks is necessary in the written papers in Political Science for passing in the subject. It is not disputed that the Petitioner had secured less than 80 marks. On this basis, there can be no doubt that the Petitioner had failed in Political Science. Petitioner's counsel has claimed to succeed on the plea of estoppel. In view of the denial of Petitioner's assertion by the Principal of the College, we are not prepared to accept the assertion in the writ application to be true. While Petitioner has personal interest at stake and is likely to make an averment which may not be entirely true, the Principal on account of his having no personal interest at stake and his status as a teacher, would have no occasion to make a false affidavit. It would, therefore, follow that the Principal never gave the Petitioner to understand that she was required to take examination in the subject of English only. Estoppel so far as the University is concerned, is pleaded on the basis that at the time refund of excess due was claimed, the admissibility should have been examined and as refund was allowed, the University cannot now take the stand that the Petitioner had another subject to be examined in. Undoubtedly, the University authorities were negligent in not looking into the matter thoroughly and in allowing refund of the fee which the Petitioner was obliged to pay if she had to take the examination, in more than one subject. Negligence of the University on that score, however, cannot give rise to estoppel so as to justify the grant of a writ declaring Petitioner to have passed the examination. The University never represented to the Petitioner that she had passed the examination. Ordinarily, by the rule of estoppel, a position which may have been conceded explicitly or impliedly by the party is not permitted to be disputed when the person to whom representation has been made has changed his or her position depending upon the representation. In the instant case, there is no such representation. Petitioner made a claim for refund alleging that excess payment had been made and accepting the representation to be true without appropriate examination, the University authorities admitted the claim for refund. This, in our view, on the facts does not give rise to a situation where a rule of estoppel should be permitted to be raised. The main contention in the writ application has, therefore, to be negatived.
(3.) PETITIONER 's counsel next maintained that she should be given a chance for again taking the compartmental examination in English as also Political Science because there was some amount of negligence of the University in the matter. Counsel for the University has fairly agreed before us that the University would not stand in the way of the Petitioner taking of fresh examination in the two subjects on compartmental basis. In view of the concession which seems to be very fair, we hold that Petitioner may take fresh examination in the two subjects in accordance with the University Regulations.;

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