The Vice-Chancellor, Utkaluniversity
& Ors Vs. S. K. Ghosh & Ors  INSC 3 (15 January 1954)
VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA,
DAS, SUDHI RANJAN HASAN, GHULAM
CITATION: 1954 AIR 217 1954 SCR 883
Constitution of India, art. 226-Mandamus
petition-High Court-Whether can constitute itself as court of appeal-
Resolutions passed by University Syndicate-Validity of- Notice of meeting
issued to all-Want of due notice waived- Substantial compliance with spirit of
In the present case there were two meetings
of the University Syndicate, consisting of twelve members. Proper notices of
both meetings were issued to all the members but one member did not attend one
meeting and another member did not attend the other meeting. The defeat was
that the subject matter of the present case was not included in the agenda of
either meeting but one of the items in the agenda of both the notices was
"other matters, if any. " The subject matter consisted of leakage of
examination papers and the cancellation of results. Those present passed the
resolution on both occasions unanimously The High Court held that want of
notice in the two cases invalidated the resolutions 884 and issued a mandamus
directing the syndicate to take steps for the publication of the results Held,
that want of due notice can be waived in given circum- stances. In the present
case the two absentees did in fact attend one or other of the meetings and
expressed their views, not individually but as members of a meeting which was
considering the matter and there was unanimity on both occasions. The substance
is more important than the form and if there is substantial compliance with the
spirit and substance of the law, an unessential defect- in form should not be
allowed to defeat what is otherwise a proper and valid resolution. As in the
present case, there was actual appearance without objection at meetings
properly convened and there was complete unanimity on both occasions the two
resolutions were not invalid because whatever may be thought about each taken
separately, the defects, if any, are cured when two are read together and
regarded as a whole.
Held further, that in a mandamus petition the
High Court cannot constitute itself into a court of appeal from the authority
against which appeal is sought. It is not the function of courts of law to
substitute their wisdom and discretion for that of the persons to whose
judgment the matter in question is entrusted. by the law.
The present was not the sort of case in which
a mandamus ought to issue.
Radha Kishan Jaikishan v. Municipal
Committee, Khandwa (61 I.A. 125) and Young v. Ladies Imperial Club (89 L.J.K.B.
563) referred to.
CIVIL APPFLLATE JURISDICTION Civil Appeal No.
7 of 1952.
Appeal by special leave from the Judgment and
Order, dated 9th and 17th August, 1951, of the High Court of Judicature at
Orissa in Miscellaneous Judicial Case No. 80 of 1951, and Order- dated the 20th
August. 1951, in Supreme Court Appeal No. 15 of 1951, on the' file of the said
Dr. Bakshi Tek Chand (G. C. Mathur and H.
Mohapatra, with him) for the appellants.
N. C. Chatterjee (V. S. Sawhney and R.
Patnaik, with him) for respondents Nos. 1-8, 10-16, 18-23 and 25-34.
1954. January 15. The Judgment of the Court
was delivered by BOSE J.-This appeal arises out of a petition made by certain
students of the Utkal University of Orissa 885 to the High Court of Orissa at
Cuttack seeking a mandamus under article 226 of the Constitution against the
Vice- Chancellor of the University and certain other persons connected with it.
In view of an undertaking given before us on
behalf of the University, the questions at issue lose most of their practical
importance and only two questions of principle remain. Because of this we do
not intend to examine the matters which arise at any length.
The facts are as follows. The first M.B.B.S.
Exa. mination of the University included Anatomy as one of its subjects.
This examination was divided into three
parts. The theoretical portion, which was written, was fixed for the 9th and
10th of April, 1951. The practical was fixed for the 19th and the viva voce for
At 7 o'clock on the morning of the 9th,
before the examination began, a member of the Senate was told that there had
been a leakage of the questions and' he was given a paper which was entitled
"hints". He at once contacted three other members of the Senate and
handed over copies of these "hints" to them. The three members were
Mr. Justice Jagannadhadas Mr. Pradhan, the Director of Public Instruction in
Orissa, and Mr. Lingaraj Misra, the Minister for Education. The Vice-Chancellor
was not informed at the time and no further action was taken. The examination
proceeded as scheduled on the date,, fixed.
The Vice-Chancellor was informed on the 19th.
He at once asked Lt. Col. Papatla, the Principal of the Medical College, to
look into the matter. This was done and Lt. Col. Papatla submitted a report on
the 20th. He compared the "hints" with the question paper and considered
that the similarity between them justified the conclusion that there had been a
It so happened that an ordinary meeting of
the University Syndicate had been called for the 21st to 886 consider certain
other matters. This question was not on the agenda but the last item was,
"other matters, if any." The Vice-Chancellor presided and he told the
members present what had happened. He had already prepared a note about this on
the 21st before the meeting began. After setting out the facts the note
concluded- " I request the syndicate to discuss the matter as it is an
important and urgent one before taking up the publication of the M.B.B.S.
results which are also ready, though the subject is not in the agenda.
The report of the Board of Examiners setting
out the results of the examination was received on the ,morning of the 21st
some time before the meeting. It showed that thirty seven students had appeared
for the examination in question. Of these, twenty seven passed and ten failed
in the written examination and the same ten, plus one other (making eleven),
failed in the practical and viva voce tests. In the result, eleven of the
thirty seven failed and twenty six passed. The petition for mandamus was made
by the twenty six who had passed and eight who failed: thirty four in all.
The syndicate heard Lt. Col. Papatla at
length and also examined three other persons, namely, Mr. Bhairab Chandra
Mahanty, who first gave the information, Dr. R. K. Mahanty, the internal
examiner for the M.B.B.S. and Dr. 8. M. Banerjee, President of the Board of
Examiners. (Two members of the syndicate were experts in Anatomy, namely Lt.
Papatla and Dr. S. N. Acharya, the Civil
After carefully considering the question for
some six hours, the members present passed the following resolution :
" That after enquiry, the syndicate is
satisfied that there has been leakage of questions in Anatomy and that the
result in Anatomy examination be cancelled and that another examination in the
subject be held commencing from the 7th May, 1951." The syndicate consists
of twelve members. these, all but one Mr. Pradhan, the Director of Public
Instruction, were present at the meeting. Those present passed the resolution
unanimously. It is admitted that Mr. Pradhan was not told that this was one of
the matters which would be considered at the meeting. This is one of the
grounds on which the validity of this resolution is attacked.
The successful candidates entered a protest
against the resolution and asked the syndicate to reconsider its decision. This
was on the 26th. The Vice-Chancellor had already called another meeting of the
syndicate for the 28th to consider other matters. Once again, this was not
placed on the agenda but the Vice-Chancellor brought it up suo moto "as before.
Again, eleven of the twelve were present but this time the absentee was Dr. M.
Mansinha who had approved of the previous resolution. The former absentee, Mr. Pradhan,
was present at this meeting. For a second time the decision was unanimous and
all eleven refused to review the former resolution. It is admitted that
Dr.Manasinha who was not there did not know that this question would be
The learned High Court Judges held that the
want of notice in the two cases invalidated the resolutions,, They examined the
facts for themselves and concluded that even if the evidence is sufficient to
indicate a a possibility of some leakage, there was "no justification for
the syndicate to pass such a drastic resolution in the absence of proof of the
quantum and the amplitude of leakage." They held that the syndicate had
acted unreasonably and without due care.
They therefore issued a mandamus directing
the syndicate to take steps for the publication of the results.
The Vice-Chancellor and the others appeal.
The right of the syndicate to control the
examinations, to scrutinise the results, to invalidate an examination for
proper reasons and to order a re-examination, when necessary, was not disputed.
In view of the undertaking given the only points argued were the 888 two which
the High Court decided against the University.
Several English authorities were cited about
the effect of an omission to give notice to even one member of a body entitled
to receive it, in particular a decision of the Privy Council in Radha Kishan
Jaikishan v. Municipal Committee, Khandwa(1). We do not think it necessary to
examine the general principle at any length because, in our opinion, this case
is governed by its own facts. It may well be that when there is a statutory
requirement about notice the provisions of the statute cannot be evaded or
ignored. It may also be, though we do not stop to enquire whether it is, that
when the constitution of a non statutory body requires notice to be given, then
also there cannot be any relaxation of the rule.
The reason for the stricter rule laid down in
the cases cited before us is that though an incorporated body like an
University is a legal entity it has neither living mind nor voice. It can only
express its will in formal way by a formal resolution and. so can only act in
its corporate capacity by resolutions properly considered, carried and duly
recorded in the manner laid down by its constitution.
If its rules require such resolutions to be
moved and passed in a meeting called for the purpose, then every member of the
body entitled to take part in the meeting must be given notice so that he can
attend and express his views.
Individual assents given separately cannot be
regarded as equivalent to the assent of a meeting because the incorporated body
is different from the persons of which it is composed. Hence, an omission to
give proper notice even to a single member in these circumstances would
invalidate the meeting and that in turn would invalidate resolutions which
purport to have been passed at it. But this is only when such inflexible
rigidity is imposed by the incorporating constitution. The position is
different when, either by custom or by the nature of the body or by its
constitution and rules, greater latitude and flexibility are permissible. Each
(1) 61 I.A. 125.
889 case must be governed by its own facts
and no universal rule can be laid down; also it may well be that in the same
body certain things, such as routine matters, can be disposed of more easily
and with less formality than others. It all depends on the nature of the body
and its rules.
In the present case, there were not one but
Proper notices of both meetings were issued
to all the members including the two absentees. The only defect is that the
matter we are concerned with was not included in the agenda of either meeting.
We need not decide here whether this must always be done-there are English
cases which indicate that is not always necessary, see for example The King v.
Pulsford(1), La Compagnie De Mayville v.
Whitley(1), and Parker and Cooper Ltd. v.
Reading(1); also, in the present case one of the items in the agenda of both
notices was " other matters, if any. " But it is not necessary to go
into that because in this case these members did in fact attend one or other of
the meetings and expressed their views, not individually, but as members of a
meeting which was considering the matter; and there was unanimity on both
occasions Even on the stricter view taken in the cases relied on by counsel it
is pointed out that want of due notice can be waived in given circumstances.
Thus, if a person who was not noticed appears
at the meeting and waives the irregularity, the defect is cured; so also when a
person is too far away to be reached in time to enable him to communicate with
the Committee before the meeting: the sending of a notice is then excused. See
Radha Kishan Jaikihsan v. Municipal Committee, Khandwa(4) and Young v. Ladies
Imperial Club, Lim.(1). The substance is more important than the form and if
there is substantial compliance with the spirit and substance of the law, we
are not prepared to let an unessential defect in form defeat what is otherwise
a proper and valid resolution. We, however, confine our (1) 108 E.R. 1073.
(2)  1 Ch. 788.
(3)  1 Ch. 975.
(4) 61 I.A. 125.
(5) 89 L.J.K.B. 563.
890 remarks to the facts of this case where
there was actual appearance without objection at meetings properly convened and
where there was complete unanimity on both occasions.
Whether it would be proper to reach the same
conclusion when there is a dissentient voice we are not prepared to say. In our
opinion, the High Court was wrong in holding that the two resolutions were
invalid. Whatever may be thought about each taken separately, the defects, if
any, are, in our judgment, cured when the two are read together and regarded as
We also think the High Court was wrong on the
The learned Judges rightly hold that in a
mandamus petition the High Court cannot constitute itself into a court of
appeal from the authority against which the appeal is sought, but having said
that they went on to do just what they said they could not. The learned Judges
appeared to consider that it is not enough to have facts established from which
a leakage can legitimately be inferred by reasonable minds but that there must
in addition be proof of its quantum and amplitude though they do not indicate
what the yard-stick of measurement should be. That is a pro- position to which
we are not able to assent.
We are not prepared to perpetrate the error
into which the learned High Court Judges permitted themselves to be led and
examine the facts for ourselves as a court of appeal but in view of the
strictures the High Court has made on the Vice- Chancellor and the syndicate we
are compelled to observe that we do not feel they are justified. The question
was one of urgency and the Vice-Chancellor and the members of the syndicate
were well within their rights in exercising their discretion in the way they
did. It may be that the matter could have been handled in some other way, as,
for example, in the manner the learned Judges indicate, but it is not the
function of courts of law to substitute their wisdom and discretion for that of
the persons to whose judgment the matter in question is entrusted by the law.
The University authorities acted honestly as
reasonable and responsible 891 men confronted with an urgent situation are
entitled to act.
They had experts of their own on their body.
They examined others who in their opinion, might throw light on the incident.
They themselves compared the two papers and, after a deliberation of some six
hours, arrived at an unanimous decision and then they reviewed the matter
afresh at a second meeting with the assistance of one of their number who was
not present on the first occasion. It is inaccurate to describe that as haste
and unjust to characterise their action as unreasonable and lacking due care.
This is decidedly not the sort of case in which a mandamus8 ought to issue. We
accordingly set aside the order of the High Court.
We now come to the undertaking given on
behalf of the Vice- Chancellor. As we have observed, the syndicate reached the
conclusion that there had been a leakage and so cancelled the examinations and
ordered fresh ones. Had the High Court not stepped in, those examinations would
have been held nearly two and a half years ago and it is possible that all the
students who were successful then would have passed again, or at any rate many
of them would. But because of the High Court's order the examinations could not
be held and the University was virtually directed to regard the examinations
already held and the results already declared as good. The result has been that
the students who passed have been studying and sitting for examinations in the
higher classes for some two and a half 'years. If the status quo which would
result from our setting aside of the High Court's order were to be resumed it
would mean that those students would be put back to where they were two and a
half years ago and would be compelled to do the courses which they have already
covered all over again. In order to avoid such injustice we were told at the
outset by counsel on behalf of the Vice-Chancellor that the University did not
want to penalise them and so gave us the following undertaking drafted by the
" The students who are declared to have
passed the first M.B.B.S. Examination of the Utkal University 892 held in
April, 1951, shall be deemed to have duly passed that examination and shall not
be required to appear again in Anatomy. " The appeal is allowed. The High
Court's order is set aside and the petition for mandamus filed before it is
dismissed, but without costs. There will be no order about costs in this court
Agent for the appellants: Rajinder Narain.
Agent for the respondents Nos. 1-8, 10-16,
18-23 and 25-34:
S. P. Varma.