- (1.) R. H. Zaidi, J. Petitioner, by means of this petition under Article 226 of the Constitution of India, challenges the validity of the order dated 31st March, 1995/4-4-1995, contained in Annexure VII to the writ petition, whereby the result of the petitioner for the year 1993 of B. A. Part II was withheld. The petitioner also prayed for a writ, order or direction the nature of mandamus commanding the respondents to allow the peti tioner to appear in the examination of B. A. Part III which was scheduled to commenced from 15-4-1995 from Digvijay Nath Post Graduate Degree College, Gorakhpur and to declare the result of the said class. Admission of the petitioner in B. A. Part III was held illegal and the examination form submitted by him of B. A. Part HI for the year 1993 was cancelled on the ground that the petitioner was declared to have failed in B. A. Part I in 1992 and further he had no right to appear in B. A. Part HI examination.
(2.) THE brief facts of the case giving rise to the present petition are that, it was in the year 1992 that the petitioner appeared in B. A. Part 1 examination from the Digvijay Nath Post Graduate Degree College, Gorakhpur (hereinafter referred to as the college ). He was allotted roll No. 29758 by the University. THEreafter, the petitioner was declared to have passed the said examination and mark-sheet was also issued in which he was shown to have passed B. A. Part I.- On the basis of the said mark-sheet the petitioner took admission in B. A. Part II in the year 1993. He also appeared in the examination of B. A. Part II and was declared successful on 20-7-1991. THEreafter, notice dated 2-6-1994 was served calling upon him to show cause as to why he be not declared to have failed in B. A. Part I examination. It was stated that if no explanation was submitted within one week of the receipt of the said notice his result of B. A. Part II will be cancelled. On receipt of the said notice the petitioner submitted his detailed reply within the time prescribed by respondent No. 1. THEreafter, nothing was heard from the University, therefore, petitioner took admission in B. A. Part III as he has already passed B. A. Part II. After complying with the necessary formalities of depositing fee etc. , the petitioner continued to attend classes and after depositing the requisite fee petitioner also submitted his examination form. THE respondents have also issued admit card to the petitioner for the examination which was scheduled to commence from 15-5-1995. It was on 8-4-1995 that all of sudden the impugned order was served upon the petitioner. Since the examination was about to commence the petitioner has no option but to approach this Court and to file present petition for the relief, referred to above. It was on 13-4-1995 this Court was pleased to pass the following order :- "shri Dilip Gupta has accepted notice for opposite party Nos. 1, 2 and 3. The petitioners is directed to serve opposite party No. 4 by registered post indicating that the counter-affidavit be filed within three weeks from the date of receipt of the notice. Steps may be taken in a week. Two weeks thereafter for rejoinder affidavit. List in the week commending 10th July, 1995. The respondent Nos. 1 to 3 are directed to permit the petitioner to appear in B. A. Part III examination for the year 1994 which is said to be scheduled from 15th April, 1995 pro visionally. The result of the petitioner shall not be declared, till further orders of this Court. " On the strength of the aforesaid order the petitioner appeared in B. A, Part III examination. Counter- affidavit has been filed on behalf of the respondents and it has not been disputed that in the year 1992 the petitioner appeared in B. A. Part I examination in which he was declared to have passed and that mark-sheet was also issued to him. It has also been admitted that in the year 1993 petitioner appeared in B. A. Part II examination in which he was also declared to have passed. The fact, the petitioner took admission in B. A. Part III, submitted his examination form and the admit card was also issued to him have also been admitted. It has, however, been asserted by the petitioner that two "tabulation chart were prepared by the University. In one tabulation chart the petitioner was shown to have passed the B. A. Part I examination while in the other he was shown to have failed in the said examination. The tabulation chart in which the petitioner was shown to have passed the examination was sent to the college concerned, on the basis of which mark-sheet was issued to him by the Principal of the College. It has been asserted that it was on account of clerical mistake that the petitioner was shown in the said tabulation chart as to have passed the B. A. Part I examination. Actually he has failed in the said examination and was not entitled to appeal in B. A. Part. II examination. Plea of availability of alternative remedy has also been taken.
(3.) I have heard learned counsel for the petitioner and learned counsel appearing for the respondents. It has been vehementally urged by the learned counsel for the petitioner that no allegation of fraud, mis-representation and suppression of fact has been made by the respondents against the petitioner. He was declared to have passed the B. A. Part I examination by them and there after mark-sheet was also issued in which also he was shown to have passed the said examination. On the strength of the said mark-sheet the petitioner was admitted in B. A. Part II examination in which also he was declared to have passed. The respondents, under the facts and circumstances stated above, were estopped from contending that the petitioner has failed in B. A. Part I examination and on that footing had no right to refuse him to appear in the examination of B. A. Part III. The impugned order was wholly illegal, without jurisdiction and inequitable. It has also been submitted that this Court by its order dated 13-4-1995 permitted the petitioner to appear in B. A. Part III examination, on the basis of which he appeared in the said examination and he is hopeful of success in the same. Therefore, under the said circumstances it has been submitted, it would be in the interest of justice to allow this petition otherwise not only the career but life of the petitioner shall be completely ruined and he shall suffer loss which could not be compensated in terms of money. In support of his submission learned counsel for the petitioner has referred to and relied upon the several decisions of Hon'ble Supreme Court and of this Court which I will refer to and deal with later on.;