- (1.) HEARD Mr. P. S. Baghel, learned counsel for the appellant and Mr. B. N. Pathak, learned counsel for the respondents.
(2.) THIS special appeal has been preferred by the Allahabad University against the order passed by the learned Single Judge whereby the learned Single Judge has held that the University Authorities were not at all justified in holding that the petitioner had failed in LL. B. Ist Year Examination and directed the University to declare the result of the petitioner treating him to have passed in LL. B. Ist year examination. It appears that the petitioner-respondent was a regular student of LL. B. course in Allahabad Degree College, which is an affiliated college of Allahabad University. He appeared in LL. B. Ist year examination, 1995 conducted by the Allahabad University and secured 261 marks in aggregate out of 600 marks. In Criminal Law paper he secured 32 marks out of 100 and in Constitutional Law of India only 32 marks out of 100. However, in view of the provisions of the ordinance, which provides that a candidate can appear in one subject as back paper to clear the examination, he appeared in Criminal Law again in which he secured 38 marks only out of 100 marks. The petitioner was, however, permitted to take admission in LL. B. Part II. He also appeared in the examination of LL. B. Und year but till then the result of the back paper was not declared. The result of back paper was declared subsequently and mark sheet was issued on 8-10-1999 showing that he had secured 38 marks out of 100 in Criminal Law. However, in the mark sheet he was shown to have been promoted. It appears that the petitioner in LL. B. IInd year examination also failed in papers of Evidence Act and Limitation Act and, therefore, he appeared in back paper under the ordinance and on that basis he was permitted to continue with the studies in LL. B. IIIrd year. However, when he was not permitted to appear in the examination of LL. B. IIIrd year oh the ground that he had failed to obtain minimum pass marks in aggregate of Ist year examination, filed Writ Petition No. 12209 of 2000 and the learned Single Judge of this Court by an interim order dated 8-3-2000 directed the University to permit the petitioner to appear in the examination of LL. B. IIIrd year examination provisionally, which was scheduled to be held from 10-3-2000. It was further ordered that the result shall not be declared and shall be subject to the decision of the writ petition. In compliance of the aforesaid interim order he was permitted to appear in LL. B. IIIrd year examination. However, since he could not obtain the minimum aggregate marks in LL. B. 1st year he was not declared pass. The Learned Single Judge in view of the facts that in LL. B. 1st year mark sheet he has been shown to have been promoted, directed the University to declare his result treating him to have passed in LL. B. 1st year against which this special appeal has been preferred by the University. The mark sheet of LL. B. 1st year is on record as Annexure-I to the affidavit filed in support of the appeal, a perusal of which shows that in the subject of Constitutional Law of India the petitioner has admittedly secured 32 marks only and in aggregate 267 marks only, hence in view of the provisions of Chapter XL of Ordinance. No. 9, which provides that in order to pass the examination a candidate must obtain minimum of 36 marks in each subject and minimum of 45 marks in aggregate, could not have been promoted in LL. B. IInd year.
(3.) LEARNED counsel for the University vehemently contended that the University statute does not permit a candidate to be declared to have passed when he has not actually passed the examination. He also submitted that there can be no estoppel against the statute and the doctrine of estoppel cannot be applied to nullify the statutory provisions. Reliance has been placed on the Division Bench judgment of this Court in the case of Kumari Leena Gupta v. Ruhailkhand University, Bareilly, reported in (1989) 1 UPLBEC 409 wherein that petitioner was declared to have passed C. P. M. T. examination. However, subsequently it was detected that due to error committed in decoding the roll number that candidate has secured lesser marks in subject of Botany and, therefore, her admission in medical college was cancelled. Argument was advanced on behalf of the petitioner that that petitioner having been admitted the opposite parties are estopped from ousting her from the class. The Division Bench of this Court relying on various authorities repelled the argument and held that in such case, principle of estoppel is not attracted as admissions are given under the statutory provisions and there can be no estoppel against the Statute. The Apex Court in the case of Union of India v. Godfrey Philips India Ltd. reported in AIR 1986 SC 806 has held that promissory estoppel cannot be used to compel the Government or a public authority to carry out a representation or promise, which is contrary to law or which was outside the authority or power of the officer of the Government or of the public authority to make such promise. It has further been held that the doctrine of promissory estoppel being an equitable doctrine, it must yield when equity so requires. 7. In view of the settled legal position we are also of the view that in the case in hand the principle of promissory estoppel is not attracted and the University cannot be compelled to declare the petitioner pass in LL. B. Ist year examination when, admittedly, he has secured less than pass marks in aggregate as well as in paper of Constitutional Law. Rule 9 of the Ordinance provides that a candidate must secure minimum of 36 marks in each subject and minimum of 45 marks in aggregate in order to pass the examination. The petitioner, admittedly, having secured less thn 45 marks in aggregate and less than 36 marks in Constitutional Law of India in LL. B. Ist year examination cannot be declared pass by the University. The direction, therefore, of the LEARNED Single Judge to the University to declare the result of the petitioner treating him to have passed in LL. B. Ist year examination is contrary to the provisions of the ordinance. It is settled legal position that the mandamus is issued to command the authorities to discharge its statutory functions or to exercise statutory powers and this Court cannot issue mandamus directing any authority or inferior Tribunal to violate or to nullify the statutory provisions or to act contrary to law. Therefore, we are of the view that the learned Judge fell in error by directing the University to treat the petitioner-respondent to have passed the LL. B. 1st year examination when admittedly, in view of the statutory provisions he cannot be declared to have passed. However, during the course of argument Shri P. S. Bhagel, learned Counsel appearing for the appellant-Univerity has fairly stated before us that the University is prepared to hold special examination for this petitioner- respondent of the paper Contitutional Law of India of LL. B. Ist year within one month and the petitioner may appear in that examination and if he obtains minimum 36 marks, in that event his result shall be declared. 8. We are of the view that the learned counsel for the University has taken a very fair stand and the petitioner should avail the same. The question as to whether the petitioner has not committed fraud or made suppression, is not relevant which the learned Single Judge took into account, since the petitioner could not secure pass marks in aggregate as also in paper of Contitutional Law of India in LL. B. Ist year examination, there is no scope for declaraing him to have been passed. Mere error on that part of the office staff cannot confer a right on an examinee to get the declaration from the Court that he has passed in the examination. Such error is liable to be corrrected and the petitioner should appear in the examination, which the learned counsel for the University proposed. LEARNED counsel appearing for petitioner-respondent No. 1 is agreeable to such suggestion made by the counsel for the University and submitted that the petitioner shall appear in the said examination. 9. We, accordingly, direct the University to hold such examination within a month from the date of communication of this order and declare his result within two weeks thereafter if the petitioner applies with all the formalities of filling up form and paying examination fee for the same and in the event the petitioner secures pass marks and thereby passes in the aggregate, he shall be declared to have passed LL. B. Ist year examination and consequently shall be declared to have passed LL. B. IIIrd year examination. Accordingly, the order passed by the LEARNED Single Judge is set aside and the Special Appeal is allowed to the extent indicated above. Order accordingly. .;