Nath Ghosal Vs. University of Calcutta & Ors  Insc 415 (30 September 2002)
B. Pattanaik, Y. K. Sabharwal & S. N. Variava. Variava, J.
appeal is against the judgment dated 7th February, 2000.
stated the facts are as follows:
Appellant appeared for M.A. Examination in Islamic History and Culture held by
the Calcutta University in November, 1984. The result of the examination was
announced on 6th June,
1985. However the
result of the Appellant was not declared. The Appellant then took admission in
the Law Course. On 9th
December, 1990, the
Appellant wrote to the Controller of Examinations and requested that his
result, of the examination held in 1984, be declared. He also wrote to the Vice
Chancellor on 14th
February, 1991 and
made the same request. He then filed a Writ Petition in the High Court of
Calcutta for issuance of Writ in the nature of Mandamus commanding publication
of his result. On 12th
July, 1991, the result
of the Appellant was declared and he was found to have failed. The Appellant
has not challenged the result of the examination and has accepted the fact that
he has failed.
the declaration of the result nothing really survived in the Writ Petition.
However the learned Single Judge of the High Court appointed a Committee
presided over by a retired High Court Judge to investigate why the result had
not been declared for so many years. The Committee gave the following findings:
The candidate knew that he was unsuccessful soon after the publication of the result.
the absence of relevant papers it cannot be said that the Examiner put
different marks on the 2 slips of the Tabulators.
The scrutineer failed in his duty in not detecting the discrepancy and yet
putting his signature signifying that the marks on the Tabulation sheets were
His conduct in not appearing before the Enquiry Committee does not speak well.
Tabulators did not notice the discrepancy and even if they had noticed, they
did not point out the same to the authority. They were under obligation to do
dealing Assistant ought to have been more vigilant in pursuing this matter.
Section-in-Charge of the Result Section ought to have made enquiry about
incomplete result. The Section-in- Charge of the Result Section or for the
matter of that any officer in the Controller's department must have to see that
a result does not remain incomplete for long years.
Controller should find out ways and means and should take such steps so that in
future result does not remain incomplete for years as in the present case.
do not find any conspiracy between the candidate and any staff of the
University." The learned Single Judge thereafter held that the University of Calcutta and the Vice Chancellor should pay to the Appellant a sum
of Rs. 60,000/- as monetary compensation and damages before 31st January, 1992.
learned Single Judge also directed the Vice Chancellor to take appropriate
steps against the Scrutineer, tabulators, dealing assistant and Sequin-in-Charge
and above all the Controller of Examination for defaulting in discharging their
duties. The learned Single Judge also directed payment of cost fixed at Rs. 200
Respondents filed an appeal. The Division Bench by the impugned judgment dated 7th February, 2000 agreed with the findings of the
Single Judge that the Respondents had been negligent. It was also noted that
the Appellant had known that he had failed in the Examination and had not
sought for issuance of the mark sheet for the long time. It was noted that the
Appellant had not waited for his result but had pursued studies in the Law
Course. It was held that it was not established by the Appellant as to what
problems he had faced and to what extent he had suffered prejudice. It was held
that this was not a fit case where the doctrine of public law should have been
invoked. It was held that normally damages, under this doctrine, are awarded in
the following cases:
to the petitioners who suffered personal injuries at the hands of the Government
and the causing of injuries which amounted to tortuous act;
relating to custodial deaths; and
where medical negligence has been proved.
in Manju Bhatia & Anr. vs. New Delhi
Municipal Council & Anr. reported in 1997 (^) SCC 370, the Apex Court in a case where a building which
was constructed in violation of law was demolished after the flats were sold.
Only in exceptional cases damages had been granted for tortuous
liability." It was held that on the facts of this case compensation should
not have been awarded to the Appellant but the proper course would have been to
leave the parties to agitate their grievances before a competent Civil Court.
By the impugned judgment the award of damages in the sum of Rs. 60,000/- was set
aside but the award of cost in favour of the Appellant was maintained.
Gupta submitted that the Division Bench erred in concluding that this was not a
fit case where damages should have been awarded in public law domain. He relied
upon the authority in the case of Lucknow Development Authority vs. M.K. Gupta
reported in 1994(1) SCC 243. This was the case where the Lucknow Development
Authority had floated a scheme of construction of houses or flats. The
Respondent therein had been allotted a flat under that scheme. The Respondent
had made the entire payment for the flat. It was found that there was use of
sub-standard material and delay in delivery of the flat. The question before
the Court was whether a complaint under the Consumer Protection Act, 1986 was
maintainable. This Court held that such a complaint was maintainable. It was
also held that the society or the tax payer must have a remedy for oppressive
and capricious acts of public officers. It was held that the administrative law
of accountability of public authorities for their arbitrary and even ultra vires
actions has taken so many strides. It was held that it has now been accepted by
this Court that the State was liable to compensate for loss or injury suffered
by a citizen due to arbitrary action of its employees. It was held that
jurisdictional power of Court to indemnify for the injury suffered due to abuse
of power by a public authority was founded on the principle that an award of
exemplary damage can serve a useful purpose in vindicating the strength of law.
It was held that such a power acts as a check on arbitrary and capricious
exercise of power. It was held that the award of compensation for harassment by
the public authority not only compensates the individual, satisfies him
personally but helps in curing a social evil. It was held that it may result in
improving the work culture and help in changing the outlook. It was held that
this development of law apart, from other factors, succeeds in keeping a
salutary check on the functioning in the Government and semi-government offices
by holding the officers personally responsible for their capricious or even
ultra vires action resulting in injury or loss to a citizen by awarding damages
was also placed on the case of Common Cause versus Union of India and others
reported in 1999(6) SCC 667, wherein after considering a catena of decisions it
has been held that this Court and the High Courts being the protectors of the
civil liberties of the citizen have the power and jurisdiction and also an
obligation to grant relief in exercise of jurisdiction under Articles 32 and
226 of the Constitution to victims or the heir of the victim whose fundamental
rights under Article 21 of the Constitution have been infringed. It was held
that this can be done by calling upon the State to repair the damage done by
its officers to the fundamental rights of the citizen notwithstanding the right
of the citizen to a remedy by way of a civil suit or criminal proceedings. It
was held that such relief can be granted only when it is established that there
has been infringement of the fundamental right of the citizen.
can be no dispute with the proposition of law. A claim in public law for
compensation for contravention of human rights and fundamental freedoms, the
protection of which is guaranteed in the Constitution is undoubtedly an
acknowledged remedy for protection and enforcement of such right and such a
claim based on strict liability made by resorting to a constitutional remedy,
provided for the enforcement of fundamental right is distinct from, and in
addition to the remedy in private law for damages for the tort, as was held by
this Court in Nilabati Behera. It is in fact an innovation of a new tool with
the Court which are the protectors of the civil liberty of the citizens and the
Court, in exercise of the same, would be in a position to grant compensation
when it comes to the conclusion that there has been a violation of fundamental
rights under Article 21. It is in this context, this Court has observed:
the citizen complaining of the infringement of an indefeasible right under
Article 21 of the Constitution cannot be told that for the established
violation of the fundamental right to life he cannot get any relief under the
public law by the Courts exercising writ jurisdiction." The Courts having
the obligation to satisfy the social aspiration of the citizens have to apply
the tool and grant compensation as damages in a public law proceedings.
Consequently when the Court moulds the relief in proceedings under Articles 32
and 226 of the Constitution seeking enforcement or protection of fundamental
rights and grants compensation, it does so under the public law by way of penalising
the wrongdoer and fixing the liability for the public wrong on the State which
has failed in its public duty to protect the fundamental rights of the
citizens. But it would not be correct to assume that every minor infraction of
public duty by every public officer would commend the Court to grant compensation
in a petition under Articles 226 and 32 by applying the principle of public law
proceeding. The Court in exercise of extraordinary power under Articles 226 and
32 of the Constitution, therefore, would not award damages against public
authorities merely because they have made some order which turns out to be
ultra vires, or there has been some inaction in the performance of the duties
unless there is malice or conscious abuse. Before exemplary damages can be
awarded it must be shown that some fundamental right under Article 21 has been
infringed by arbitrary or capricious action on the part of the public
functionaries and that the sufferer was a helpless victim of that act.
out above the report of the Committee clearly shows that the Appellant was
aware, from the beginning, that he had failed. He did nothing for a number of
years to have his result declared. The High Court is right when it holds that
in this case it has not been shown what problem the Appellant faced and to what
extent he has suffered prejudice. It is not shown how the Appellants future was
affected by the results not being declared. This is not a case where because of
non-disclosure of the results, the Appellant was prevented from undertaking
future studies. In fact the Appellant took up law course. In our view the
Division Bench was right in concluding that even though the Respondents were
negligent in not declaring the result, this was not a fit case where
compensation could or should have been awarded. We are also in agreement with
the Division Bench that a case for compensation had not even been pleaded or
therefore, see no infirmity in the impugned judgment. We see no reason to
interfere with the judgment of the High Court. The appeal stands dismissed.
There shall be no order as to costs.