Shri Krishan Vs. The Kurukshetra
University, Kurukshetra  INSC 279 (17 November 1975)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
KHANNA, HANS RAJ BHAGWATI, P.N.
CITATION: 1976 AIR 376 1976 SCR (2) 122 1976
SCC (1) 311
Statutes of Kurukshetra University-ordinance
2(b)Scope of Application for examination-Nor
scrutinised by the University in the beginning If could raise objection after
the examination-If University could allege fraud later-Statement made in
ignorance of law-Effect of.
Under the statutes of the
respondent-University persons in service could take the three-year degree
course in law by attending the evening classes. A candidate who had failed in
some of the papers of one year could clear those papers before completing the
three-year course. Under cl. 2(b) of Ordinance X contained in the University
Calendar Volume I, a candidate should submit to the University an application
seeking permission to appear for an examination which should be signed by the
Principal of the College or the head of the department concerned certifying
that the candidate had attended a regular course of study for the prescribed
number of academic years. But, this certificate is provisional and could be
withdrawn at any time before the examination if the applicant failed to attend
the prescribed course of lectures before the end of his term.
The appellant, a Government servant, joined
the LL.B. I year class of the University. He failed in three papers, but was
promoted to the second year. Before appearing in the second examination,
however, he wrote to the University stating that if he was not able to get the
requisite permission from his employer to join the law classes he would abide
by any order that the University might pass. The appellant, however, wrote to
the University later that this condition was not at all necessary and requested
that his result in Part II might be announced. In reply the University wrote to
the appellant that since his percentage of marks in Part I was short, his candidature
for Part II examination stood cancelled. Having failed in his appeal to the
Vice-Chancellor, he moved the High Court which dismissed his writ petition in
Allowing the appeal to this Court,
HELD: The impugned order of the university suffers
from errors of law patent on the face of' the record. This was not a case which
should have been dismissed by the High Court in limine. [730-A] (1) The last
part of cl. 2(b) clearly shows that the University could with draw the
certificate if the applicant had failed to attend the prescribed course of
lectures. But, this could be done only before the examination. Once an
applicant was allowed to take the examination, the statute which empowers the
University to withdraw the candidature of the applicant has worked itself out
and the applicant cannot be refused admission subsequently for any infirmity
which should have been looked into before giving permission to appear.
[727-E-F] (2) It was the duty of the University to scrutinise the form for
admission to the examination in order to find out whether it was in order. It
was also the duty of the head of the department of law, before submitting the
form to the University, to see that the form complied with all the requirements
of law. Ff neither took care to scrutinise the admission form, then the
question of the appellant committing a fraud did not arise. Where a person on
whom fraud is committed is in a position to discover the truth by due
diligence, fraud is not proved.' It was neither a case of suggestion, falsi nor
of suppressio [728 A-C] 723 Premji Bhai Ganesh Bhai Kshatriya v.
Vice-Chancellor, Ravishankar University, Raipur and others,, A.I.R. 1967 M.P.
194, 197, approved.
(3)(a) There is no provision of the
University statutes which could have afforded jurisdiction to it to cancel the
candiditure of the appellant on the ground that he had not obtained the
previous permission of his superior officers.
The impugned order did not mention this
ground at all.
[728G, 729-BC] (b) The undertaking given by
the appellant that he would get the requisite permission of the employer did
not put him out of court. It was written because he was anxious to appear in
Part II examination and was written in terrorem and in complete ignorance of
his legal rights. Any admissions made in ignorance of legal rights or under
duress cannot bind the maker of the . admission. [729-DE]
CIVIL APPELLATE JURISDICTION: Civil-Appeal
No. 947 of 1975.
Appeal by Special Leave from the Judgment and
order dated the 2nd April, 1971 of the Punjab and Haryana High Court in Civil
Writ No. 1039 of 1974.
Kapil Sibal and S. K. Gambhir for the
S. K. Nandy for the respondent.
The Judgment of the Court was delivered by
FAZAL ALI, J. What appears to have been a clear case of refusal of admission to
the appellant or the cancellation of his candidature at the proper time has
been completely bungled and destroyed by the inherent inconsistency and
seemingly contradictory stand taken by the respondent and lack of proper
vigilance on the part of the Head of the Department of Law. The facts of the
present case lie within a very narrow compass and only two short points of law
have been raised before us by Mr. Kapil Sibbal learned counsel for the
The appellant was a teacher in the Government
High School, Dumarkha in the District of Jind (Haryana). The University of
Kurukshetra was running law classes for three years Course and had extended the
facility to persons who were in service to attend the evening classes and
complete the three-years course in that manner. The appellant decided to take
the benefit of the facility given by the Kurukshetra University and joined the
LL.B. Part I classes sometime in the year 1971. According to the University
statute a student of the Faculty of Law was given the option to clear certain
subjects in which he may have failed at one of the examinations before
completing the three years course. The students were to appear in six papers
each year. In April 1972 the petitioner appeared in the annual examination of
Part I but failed in three subjects, namely, Legal Theory, Comparative Law and
Constitutional Law of India Subsequently he was promoted to Part II which he
joined in the year 1972.
Under the University Statute the appellant
was to appear in part II Examination in April 1973. On April 26, 1973 the
appellant applied for his Roll number to the University in order to reappear in
the subjects in which he had failed and to clear them but he was refused
permission and according to the appellant without any reasons. The annual
examination for Part II was to be held on May 19, 1973 and the appellant
approached the University for granting him provisional permission to 724 appear
subject to his getting the permission from his employer to attend the Law Faculty.
In between it appears that the appellant had been prosecuted for offence under
376, 366 and 363 I.P.C. and was suspended
during the period when the case was going on against him. The appellant was,
however, acquitted and was reinstated by his employer on August 22, 1972. It
would thus appear that on May 18, 1973 as also on April 25, 1973 when he had
applied for his Roll Number to clear the subjects, the stigma of criminal case
had been completely removed.
To start the thread the appellant as mentioned
already approached the University on May 18, 1973 and wrote a letter to the
University authorities giving an undertaking that if he was not able to get the
requisite permission from his employer to join the Law Classes, he would abide
by any order that the University may pass. It appears that on the basis of this
undertaking he was allowed to appear at the Part II Examination on May 19,
1973. On June 20, 1973 the appellant wrote to the University authorities that
the condition on which he was to get the permission was not at all necessary
and that his results may now be announced. On June 26, 1973 the respondent
informed the appellant that since his percentage was short in Part I his
candidature stood cancelled. Thereafter there were series of correspondence
between the appellant and the University authorities but the appellant was
refused admission to LL.B.
Part III Class. The appellant then filed an
appeal to the Vice Chancellor of the University on September 26, 1973 which was
also rejected on November 3, 1973. Thereafter the appellant approached the High
Court of Punjab and Haryana for a writ of certiorari to quash the order of the
respondent canceling the candidature of the appellant but the High Court after
issuing notice to the other side and persuing the application form rejected the
petition in limine. Hence this appeal by the appellant by special leave to this
The sheet-anchor of the case of the
respondent was that the appellant had been involved in a criminal case` and
therefore the Head of Institution could not give the certificate in the
prescribed form that the appellant bore a good moral character. Subsequently it
was said that as the appellant was short of the requisite percentage in LL.B.
Part I he could not insist on his being admitted
to the Part II Examination; and lastly the stand taken by the respondent was
that the Evening Law Classes were held to benefit the members of the Services
and it was incumbent on the appellant to have obtained permission of his
superior officers and as he did not do so, the University was well within its
rights in refusing him permission to appear at the Part II Examination or in
admitting him to Part III Law course.
A long counter-affidavit has been filed by
the respondent of which some paragraphs are extracted below :
4. Para 4 of the writ petition is rebutted.
The petitioner was involved in a case under sections 363 and 366 of the Indian
Penal Code. As a result, he was suspended. He remained under suspension till
August 23, 1972, when he 725 was reinstated. Consequently, he attended the
lectures in Part I. So far as Part II is concerned, the petitioner didn't
attend the requisite number of lectures. According to the notice displayed on
the notice board of the Department of Laws on January 24, 1973, the petitioner
was falling short of attendance by 48 lectures upto December, 1972. Thereafter,
another notice was displayed on the notice board on r April 16, 1973, according
to which the petitioner was falling short of attendance by 46 lectures. As such,
the averment in the writ petition that he attended his lectures according to
the rules is absolutely false.
Vide letter dated November 17, 1972, the
Headmaster, Government High School, Dumarkha (District Jind) made an inquiry
from the University regarding the petitioner's result in the LL.B. Part I
The intimation was sent by the University
vide their letter dated November 17, 1972. Thereafter, a letter dated January
1, 1973, was received in the University from the District Education officer
stating inter alia that "it may also be pointed out that Shri Siri
Krishan, Teacher was reinstated on 23-3-1972 and thereafter he is attending his
duties in School. I am amazed to learn that he is declared by your Law
Department to be attending classes in LL.B. Part II simultaneously".
"A copy of this letter is appended as
Annexure 'R.1' to this affidavit. A perusal of this letter would show that the
petitioner had not been granted permission by his employer to attend the law
classes at the University. Furthermore, the approximate distance between his
station of posting and the University is more than' fifty miles. Keeping m view
the fact that he was posted in the interior of District Jind, it is impossible
that the petitioner could have attended the requisite number of lectures.
Evidently, the petitioner was himself aware of the fact that he had not
attended the re quisite number of lectures. It is also incorrect to suggest
that the petitioner's name could be sent for the examination only if he had
completed and required minimum attendance of lectures. The examination forms
are always sent in December. Rule 2(b) of Ordinance 10 of the Kurukshetra
University Calendar, Volume I, provides as under inter alia:- "B. that he
has attended regular course of study for the prescribed number of academic
Certificate (b) will be provisional and can
be withdrawn at any time before. the examination if the applicant fails to
attend the prescribed course of lectures before the end of his term."
5-L159SCI/76 726 The petitioner's examination form was, as such, sent
provisionally and could be withdrawn at any time in case of his failure to
attend the requisite percentage of lectures."
23. (i) In reply to sub-para (i) of the writ
petition, it is submitted that the cancellation of the candidature of the
petitioner for LL.B. Part II was not based on any extraneous considerations.
Under the rules of the University every student is required to attend the
prescribed course of lectures delivered to the class in each of the subjects
offered. , I Mr. Sri Krishan was short of attendance which was duly notified on
the notice board of the Department of Law twice;
once on January 24, 1973 and again on April
The admission of the petitioner to Law course
in the University was under dispute as a result of a complaint from the
District Education officer, Jind. The petitioner came to the Magistrate on May
18, 1973, with an application that pending final decision of his case, he may
be allowed to sit `` in the examination provisionally at his own risk and
responsibility. In this application, the petitioner did not mention that he was
also falling short in lectures as notified by the Head of the Department of
Law. Since the office was closed at that time and the examination was to start
at 8.00 a.m. On May 19, 1973, the candidate was allowed to appear in the
examination provisionally at his own risk and responsibility.
(viii) In reply to sub-para (viii) of the
writ petition, it is submitted that in the admission notice printed at page 75
in the Hand Book of Information for the session 1971-72 to which the
application for admission to the Department forms a part, mentions that LL.B.
Classes in the evening were for employed persons only. It was, therefore,
implied that the applicant while seeking admission in this class would obtain
the approval of his employers. This approval became particularly necessary
because of the constant complaints of ill serious nature from the employers
(the Government) of the petitioner who insisted that he must obtain such
permission. It may be recalled that the petitioner in his undertaking to the
Registrar on May 18, 1973 promised to produce the required permission." It
will be seen from the above affidavit that the stand taken by the respondent is
by no means consistent. It may be mentioned that at one stage the University
takes the stand that it was a case of shortage of , percentage and therefore
the appellant was refused admission to appear at Part II Examination. Later on
this stand is given up and the respondent averred that as the appellant did not
get the permission of his superior officers and since the University was moved
by the District Education Officer to cancel the candidature of the appellant
the impugned order was passed by the University. It was also argued by Mr. S.
K. Nandy counsel for the respondent that the appellant knew fully well that his
percentage was short and in spite of that be fraudulently suppressed this fact
from the University authorities 727 when he was allowed to appear in the LL.B.
Part I Examination in April 1972.
Mr. Sibbal learned counsel for the appellant
submitted two points before us. In the first place it was argued that once the
appellant was allowed to appear at L.L.B. Part II Examination held on May 19,
1973 his candidature could not be withdrawn for any reason whatsoever, in view
of the mandatory provisions of clause 2(b) of the Kurukshetra University
Calendar Vol. I, ordinance X under which the candidature could be withdrawn
before the candidate took the examination. Secondly it was argued that the
order of the University was mala fide because the real reason for cancelling
the candidature of the appellant was the insistence of the District Education
officer that the appellant should not have been admitted to the Law Faculty
unless he had obtained the permission of his superior officers. In order to
appreciate the first contention it may be necessary to extract the relevant
portions of the statute contained in Kurukshetra University Calendar Volume I,
ordinance X. Clause 2 of this ordinance runs as follows:
"2. The following certificates, signed
by the Principal of the College/Head of the Department concerned, shall be
required from each applicant:- (a) that the candidate has satisfied him by the
production of the certificate of a competent authority that he has passed the
examinations which qualified him for admission to the examination; and (b) that
he has attended a regular course of study for the prescribed number of academic
Certificate (b) will be provisional and can
be withdrawn at any time before the examination if the applicant fails to
attend the prescribed course of lectures before the end of his term." The
last part of this statute clearly shows that the University could withdraw the
certificate if the applicant had failed to attend the prescribed course of
lectures. But this could be done only before the examination. It is, therefore,
manifest that once the appellant was allowed to take the examination, rightly
or wrongly, then the statute which empowers the University to withdraw the
candidature of the applicant has worked itself out and the applicant cannot be
refused admission subsequently for any infirmity which should have been looked
into before giving the applicant permission to appear. It was, however,
submitted by Mr.
Nandy learned counsel for the respondent that
the names of the candidates who were short of percentage were displayed on the
Notice Board of the College and the appellant was fully aware of the same and
yet he did not draw the attention of the University authorities when he applied
for admission to appear in LL.B. Part II Examination. Thus the appellant was
guilty of committing serious fraud and was not entitled to any indulgence from
It appears from the averments made in the
counter- affidavit that according to the procedure prevalent in the College the
admission forms are forwarded by the Head of the Department in December
preceding 728 the year when the Examination is held. In the instant case the
admission form of the appellant must have been forwarded in December 1971
whereas the examination was to take place in April/May 1972. It is obvious that
during this period of four to five months it was the duty of the University
authorities to scrutinise the form in order to find out whether it was in
order. Equally it was the duty of the Head of the Department of Law before
submitting the form to the University to see that the form complied with all
the requirements of law. If neither the Head of the Department nor the
University authorities took care to scrutinise the admission form, then the
question of the appellant committing a fraud did not arise. It is well settled
that where a person on whom fraud is committed is in a position to discover the
truth by due diligence, fraud is not proved.
It was neither a case of suggestio falsi, or
suppression veri. The appellant never wrote to the University authorities that
he had attended the prescribed number of lectures. There was ample time and
opportunity for the University authorities to have found out the defect. In
these circumstances, therefore, if the University authorities acquiesced in the
infirmities which the admission form contained and allowed the appellant to
appear in Part I Examination in April 1972, then by force of the University
Statute the University had no power to withdraw the candidature of the
appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai
Kshatriya v. Vice-Chancellor, Ravishankar University, Raipur and others(ii)
where a Division Bench of the High Court of Madhya Pradesh observed as follows:
"From the provisions of ordinance Nos.
19 and 48 it is clear that the scrutiny as to the requisite attendance of the
candidates is required to be made before the admission cards are issued. Once
the admission cards are issued permitting the candidates to take their
examination, there is no provision in Ordinance No. 19 or ordinance No. 48
which would enable the Vice-Chancellor to withdraw the permission. The
discretion having been clearly exercised in favour of the petitioner by
permitting him to appear at the examination, it was not open to the
Vice-Chancellor to withdraw that permission subsequently and to withhold his
result." We find ourselves in complete agreement with the reasons given by
the Madhya Pradesh High Court and the view of law taken by the learned Judges.
In these circumstances, therefore, once the appellant was allowed to appear at
the Examination in May 1973, the respondent had no jurisdiction to cancel his
candidature for that examination. This was not a case where on the undertaking
given by a candidate for fulfillment of a specified condition a provisional
admission was given by the University to appear at the examination which could
be withdrawn at any moment on the non-fulfillment of the aforesaid condition.
If this was the situation then the candidate himself would have contracted out
of the statute which was for his benefit and the statute (1) A.T.R. 1967 M. P.
729 therefore would not have stood in the way
of the University authorities in cancelling the candidature of the appellant.
As regards the second point that the order
was passed mala fide, it is difficult to find any evidence of mala fide in this
case. The order suffers from yet another infirmity.
The annexures filed by the appellant and the
respondent as also the allegations made in the counter affidavit clearly show
that there were series of parleys and correspondence between the District
Education officer and the respondent in the course of which the respondent was
being persuaded, to the extent of compulsion, to withdraw the candidature of
the appellant because he had not obtained the permission of his superior
officers. Mr. Nandy appearing for the respondent has not been able to show any
provision in the statutes of the University which required that the candidates
attending the evening law classes who are in service should first get the prior
permission of their superior officers. We have also perused the University
Statute placed before us by counsel for the appellant and we do not find any
provision which could have afforded justification for the respondent to cancel
the candidature of the appellant on the ground that he had not obtained the
previous permission of his superior officers.
Mr. Nandy counsel for the respondent placed
great reliance on the letter written by the appellant to the respondent wherein
he undertook to file the requisite permission or to abide by any other order
that may be passed by the University authorities. This letter was obviously
written because the appellant was very anxious to appeal in Part II Examination
and the letter was written in terrorem and in complete ignorance of his legal
rights. The appellant did not know that there was any provision in the
University Statute which required that he should obtain the permission of his
superior officers. But as the respondent was bent on prohibiting him from
taking the examination he had no alternative but to write a letter per force.
It is well settled that any admission made in ignorance of legal rights or
under duress cannot bind the maker of the admission. In these circumstances we
are clearly of the opinion that the letter written by the appellant does not
put him out of court. If only the University authorities would have exercised
proper diligence and care by scrutinising the admission form when it was sent
by the Head of the Department to the University as Ear back as December 1971
they could have detected the defects or infirmities from which the form
suffered according to the University Statute.
The Head of the Department of Law was also
guilty of dereliction of duty in not scrutinising the admission form of the
appellant before he forwarded the same to the University.
Moreover, the stand taken by the respondent
that as the appellant did not get the requisite permission from his superior
officers, therefore he was not allowed to appear at the examination, does not
merit consideration, because the impugned order does not mention this ground at
all and it was not open to the respondent to have refused admission to the
appellant to LL.B. Part III or for that matter to refuse permission to appear
at the examination on a ground which was not mentioned in the impugned order.
730 Having gone into the circumstances
mentioned above, we are of the view that the impugned order suffers from errors
of law patent on the face of the record, and in any event this was not a case
which should have been dismissed by the High Court in limine.
The appeal is accordingly allowed and the order
of the University dated June 26, 1973, is hereby quashed by a writ of
certiorari. The respondent is directed to declare the result of LL.B. Part II
Examination in which the appellant had appeared on May 19, 1973 and also to
give him an opportunity to appear in the three subjects in which he had failed
in LL.B. Part I Examination, at the next examination which may be held by the
In the peculiar circumstances of this case,
however, we leave the parties to bear their own costs.
P.B.R. Appeal allowed.