JUDGMENT
O.P. Garg, J.
1. The petitioner, Abhishek Srlvastava, who had obtained degree of Master of Commerce had a keen desire to become a teacher, as his father, who was also a teacher, died in harness. He appeared in the Entrance Test conducted by Bundelkhand University in the year 1997 for admission to B.Ed, course and topped the list of the successful candidates having secured 84.47% of marks. The petitioner was not allowed to take up admission at Pt. J. N. College, Banda–respondent No. 3 as his name did not appear in the list transmitted by the University for admission to the B.Ed, course in the aforesaid college, obviously for the reason that the percentage of marks of the petitioner in B.A, was less than the prescribed minimum of 45 per cent as notified by the State Government amending the Uttar Pradesh State Universities (Regulation of Admission to Course of Instruction for Degree in Education in Affiliated, Associated and Constituent Colleges) Order, 1987. By the said amendment, it has been provided that for admission in the B.Ed, course the minimum qualification would be graduate degree of a University established by law with a minimum 45 per cent marks. The petitioner ran from pillar to post by making representation but no orders were passed with the result the petitioner had to file a Writ Petition No. 36094 of 1997 which was finally disposed of by this Court on 27.10.1997 with the direction that the pending representation of the petitioner shall be decided within the period specified and that till the representation of the petitioner is decided, he shall be permitted to join B.Ed, classes in respondent No. 3-College. Against this order, the respondent–University filed a Special Appeal No. 1046 of 1997 which was ultimately dismissed in view of the decision rejecting the representation of the petitioner on 2.12.97 (Annexure-7). After the rejection of the representation the petitioner was not allowed to attend the classes.
2. In the present writ petition under Article 226 of the Constitution of India, a prayer has been made by the petitioner that the order dated 2.12.1997, Annexure-7 to the writ petition, rejecting his representation be quashed and the respondents be commanded to permit him to pursue his studies in B.Ed. course in respondent No. 3 college and no impediments or restrictions should be placed in his taking up the ensuing examinations. A supplementary affidavit has been filed to indicate that now the examinations are to take place in the month of October, 1998.
3. In the counter-affidavit filed by respondent Nos. 1 and 2, it has been averred that since the petitioner does not fulfil the minimum qualification as has been prescribed under the notification dated 4.7.1997, Annexure-9 to the writ petition, he was not eligible to appear in entrance test. It was maintained that the petitioner being ineligible to appear in the entrance test, is not entitled to seek admission in B.Ed . course, even though he had topped the list of the successful candidates. A rejoinder-affidavit has been filed.
4. Heard Sri Giridhar Gopal, learned counsel for the petitioner and Sri R. P. Tiwari, learned counsel for respondents.
5. To begin with, it may be mentioned that at the time when the application for entrance test for admission to the B.Ed, course were invited by the respondent–University, minimum qualification was only graduate in view of the Government notification dated 5.5.1987. However the question of prescription of minimum percentage of marks was in contemplation and consideration of the Government and this fact was mentioned in clause 17 (2) of the printed application form required to be submitted by the candidates desirous of seeking admission to B.Ed. course. A firm decision in the matter was taken by the Government on 4th July, 1997 on which date the notification, copy of which is Annexure-9 to the writ petition, was issued prescribing minimum requirement of 45 per cent marks In the degree examination and the requirement was made applicable with retrospective effect. Admittedly the petitioner secured 44.5 per cent marks in B.A.
examination and did not fulfil the newly laid down criteria of the minimum qualification of having secured at least 45 per cent marks. The petitioner was denied the benefit of admission in B.Ed. course only on the solitary ground that he does not possess the minimum percentage of marks as has been prescribed by the notification amending the Regulation of Admission Order of 1987, referred to above.
6. Sri Giridhar Gopal, learned counsel for the petitioner urged that the petitioner is a brilliant student who admittedly had topped the list of the candidates of successful candidates in the Entrance Test for admission to B.Ed. course having secured 84.47 per cent marks and that since the form of the petitioner was accepted and after the dale of Impugned notification admit card was issued to the petitioner and he was allowed to take up the examination in which he remained successful, the respondents are now estopped from taking the plea that the petitioner was not eligible to appear in the examination as he did not fulfil the requirement of minimum percentage of marks. To fortify his contention Sri Giridhar Gopal has placed reliance on the oft-quoted celebrated decision of the Supreme Court in Shri Krishnan v. Kurukshetra University, Kurukshetra, (1976) 1 SCC 311. In that case Sri Krishnan, appellant before the Supreme Court, who was Government servant, was pursuing the co.urse of LL.B. in evening classes. He failed in three subjects at the Part I examination but was permitted to appear in Part II with option to clear those subjects in which he had failed. He was, however, refused permission for Part II examination which was ultimately given on his giving an undertaking to secure his employer’s permission. After the examination he demanded that his results be declared as the permission was not necessary. He was informed that since his attendance in B.A. I is short, his candidature stbod cancelled. The High Court dismissed the writ petition in limine. The Apex Court held that the University Ordinance empowers the authorities to withdraw the certificate regarding attendance before the examination tf the candidate fails to reach the prescribed minimum. But this could not be done only before the examination. 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. Though notice regarding shortage of attendance was twice put up on the notice board and the appellant was aware of it. it cannot be said that he committed a fraud by not drawing the attention of the University authorities to this fact. If neither the Head of Department nor the University authorities took care to scrutinise the admission form, then the question of the appellant committing fraud did not arise. Where a person on when fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. Hence if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in the examination then by force of the University statute the University had no power to withdraw the candidature of the appellant.
7. The Apex Court found that somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshatriya v. Vice-Chancellor, Ravishankar University, Raipur, AIR 1967 MP 194, in which 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.”
8. The learned counsel for the petitioner further placed reliance on Km. Savita Singh v. Board of High School and Intermediate Examination, U. P., Allahabad, through its Secretary, 1990 All LJ 1113 ; Alok Singh v. Kshetriya Sachiv and others, 1990 All LJ 1090 and Km. Pallavi Mukherjee v. Board of High School, (1990) 3 UPLBEC 1808, in which placing reliance on Shri Krishnan’s case (supra), it was held that the educational authorities were estopped from withholding or cancelling the result of the petitioner on the ground that the combination offered by the student as private candidate was not permissible under the regulation. Reference was also made to the Division Bench decision of this Court in Ved Pal Singh v. Madhyamik Shiksha Parishad, 1987 UPLBEC 298, in which it was held that once having declared the result the Board was estopped from recalling the result and declaring the petitioner as failed almost after two years. This cannot be done and this will greatly effect the career of the petitioner who had already studied for two years by attending the classes in Intermediate. Another Division Bench of this Court in Rajnath Singh Yadav v. Secretary Madhyamik Shiksha Parishad, (1986) 2 UPLBEC 1424, quashed the order of the Board on the ground of delayed action. Similar view was taken in Pravesh Kumar Dubey v. Kanpur University, 1990 UPLBEC 1053.
9. In the backdrop of the above law. Sri Giridhar Gopal. learned counsel for the petitioner urged that the respondents are estopped from refusing admission to the petitioner on the ground that he did not fulfil the eligibility qualification. Sri R. P. Tewari. learned counsel for the respondents repelled the above submission and urged that since in the admission form itself, it was mentioned that the State Government is seized of the matter–whether or not prescription of the minimum qualification of 45% marks in the degree course should be made, the petitioner cannot claim that he was kept in dark and, therefore, the plea of estoppel against the respondents is not attracted.
10. I have given thoughtful consideration to the matter. H is true that in the instructions annexed with the application form, it is mentioned that the State Government is contemplating to prescribe eligibility qualification of having 45% minimum marks in the degree course but the said information cannot debar the petitioner from asserting his right to seek admission. It has got to be realised that the plea of estoppel deals with the questions of facts and not of rights. No one can be estopped from asserting his right which he might have stated that he will riot assert. The contingency mentioned in the instructions appended with the application form was inchoate and incomplete. The matter was mere in contemplation of the Government. Suppose the State Government had not taken the decision as was under its contemplation, in that event, the petitioner would have been entitled for admission. No candidate at that stage could be made Ineligible to appear in the admission test merely on the ground that on some future date, the State Government is likely to prescribe the requirement of minimum marks of 45%. It was a contingency which was likely to fructify in the near future or it may not have been translated into action at all. Therefore, the information conveyed to the students through the Instructions appended to the admission form was of no consequence. Ignoring the said information, we have to judge whether the petitioner has a case for being admitted in the B.Ed course or not. There is yet another aspect of the matter. The provision with regard to the prescription of minimum qualification could not be made retrospective to the serious detriment of the candidates who on the relevant date, when the applications were Invited, were eligible to appear in the Combined Entrance Test. The candidates who were eligible on a particular date to appear in the admission test could not have been made ineligible by a subsequent Government notification which could very well be made operative from the next session.
11. In the instant case, the petitioner submitted the application form on 10.6.1997 though the last date for submission of the form was 25.6.1997. Till the last date of the submission of the application forms, there was no prescription that the candidates should have secured minimum 45% marks in the degree course. As a matter of fact, tn view of the Government notification dated 5.5.1987 any candidate who was a Graduate, irrespective of the percentage of his marks, was entitled to appear in the admission test for B.Ed course. The petitioners having passed M.Com. Examination, was eligible and entitled to appear in the Combined Entrance Test. Even otherwise, the plea of estoppel and acquiescence would be attracted in the present case for one simple reason that inspite of the Government notification dated 4.7.1997, prescribing the minimum 45% marks in the degree course, admit card was issued to the petitioner on 16.7.1997. He was allowed to undertake the Entrance Test on 20.7.1997 and on 20.9.1997 result of the Entrance Test was declared in which, as said above, the petitioner topped the list of the successful candidates, securing 84.47% of marks. It was the duty of the respondents to have disallowed all those candidates who had not fulfilled the requirement of minimum percentage of marks in the degree course after the date of the Government notification, i.e., 4.7.1997. The doctrine of equitable estoppel applies to a case where a person Is given an unequivocal assurance and on the faith thereof, he acted detrimental to his interest and he suffered an irretrievable injury in that pursuit. In such an event, having made such a promise, the maker thereof is precluded to resile therefrom and pass an order detrimental to the interest of the person who believed the promise, placed reliance thereon acted on that basis to this detriment and he cannot be adequately compensated. The concept of pomissory estoppel involves a representation by a person that something will be done in future and on such representation being made, the party alters -his position relying on such promise.
12. Now the question is whether the present case comes within the fold of the above principle? As said above, on the date on which the petitioner applied for Entrance Test, he was undoubtedly eligible and qualified to appear in the test. His form was accepted without any demur or objection. Not only this, even after the crucial date of the Government notification, an admit card was issued to the petitioner and he was allowed to appear in the Entrance Test and ultimately, his result was declared on 20.9.97. All this exercise went on with any objection from the side of the respondents. The petitioner. therefore, cannot be penalised for the fault committed by the respondents. In the education’s sphere, the Apex Court has been quite liberal in extending the principle of promissory estoppel and acquiescence against educational authorities if they have, after giving an assurance, have acted to the detriment of a student. The other High Courts have also taken a liberal attitude in interpreting and applying the principle of estoppel, vis-a-vis, students in the matters of their admission, cancellation of results and other allied matters. A reference may be made to the decision of M. Hussain and others v. Bharathiyar University Coimbatore and others, 1991 (3) A/EC 730 (Mad) and the decision of this Court in Atul Mathur and others v. Allahabad Agricultural Institute, Naini and others, (1993) 1 ESC 244 (All) and Km. Pratima Srivastava v. Purvanchal University, Jaunpur, (1994) 1 ESC 74 (All). Km. Pratima Srivastava’s case (supra), also related to Entrance Examination for the B.Ed. course. It was held that the respondents in that case, after declaring the petitioner successful In Entrance Examination for B.Ed and also after directing her to get herself admitted in the particular college, could not go back and refuse her admission on the ground that she did not possess degree of Graduation upto a particular date. In Sri Krishnan’s case (supra), the Apex Court has clearly laid down that once the candidate is 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 candidate cannot be refused admission subsequently for any infirmity, which should have been looked into
before giving the candidate permission to appear. In view of the authoritative pronouncement of the Apex Court as well as this Court, the plea of estoppel is clearly attracted in the present case and now the respondents are debarred from asserting that the petitioner was not eligible to seek admission, as he did not fulfil the minimum requirement of percentage of marks in the degree examination.
13. This Court had directed the respondents to take a decision on the representation of the petitioner. It is sad and bad that neither the University nor the State Government took any decision in the matter in spite of the fact that the Principal of the college, who had passed the Impugned order dated 2.12.1997. had contacted the Registrar of the respondent No. 2–University and sought his guidance. If the University had applied its mind to the case of the petitioner on his representation, perhaps it would have come to the conclusion that it was an eminently suited case in which relaxation from the minimum requirement of qualification was necessary. We are dealing with an ambitious candidate who has obtained a Master’s degree. He had topped the list of the selected candidates and the percentage of marks secured by him being 84.47% was commendable. But for the Government notification dated 4.7.97, the petitioner would have been admitted in the B.Ed. course. The respondent No. 2 Bundelkhand University instead of taking up the matter with the Government, left the matter to be decided by the Principal, who had no option but to reject the representation of the petitioner merely on the ground that since the name of the petitioner did not appear In the list of the candidates transmitted by the University, he was not rightly given admission. In the representation, the very question which was to be decided was whether in the circumstances of the case, the petitioner should be allowed to take up the B.Ed. course even though he did not fulfil the requirement of minimum per centage of marks, which was prescribed by a subsequent Government notification. Be that as it may, the fact remains that the respondents are estopped from asserting that the petitioner was Ineligible to appear in the Entrance Test to the B.Ed. course and is not entitled to pursue the studies.
14. The petitioner has pursued the B.Ed. course in pursuance of the orders of this Court and now the examinations are to take place in the month of October, 1998. The Apex Court has permitted the students who were found ineligible but were able to pursue the studies In pursuance of the orders of the Court to complete the course on considerations of justice and equity. Dr. Km. Nilofer Insar v. State of M. P. and others, (1991) 4 SCC 279. is an instance in which consideration of Justice and equity have outweighed the legal considerations. Km. Nilofar Insar was permitted to complete the M.D. course. which she was pursuing under the interim orders, though legally she was not entitled to the course in preference to the rival candidate. Dr. Jain. The Court observed that even if her (Km. Nilofer’s) admission is cancelled. Dr. Jain cannot now be admitted to the M. D. course of 1989. though in view of the Apex Court. Dr. Jain has been the victim partly of a lapse and failure on the part of the Medical College authorities in properly applying the rules governing the transfer, and partly of Court’s delay in disposing of the writ petition. In my view, the present is a case in which the consideration of equity and justice should take precedence over the legal considerations and technical formulae.
15. In the result, for the reasons stated above, the writ petition succeeds and is allowed. The impugned order dated 2.12.1997 passed by respondent No. 3 on the representation of the petitioner is hereby quashed. The petitioner shall be deemed to have been validly admitted in the B.Ed, course in respondent No. 3 college in pursuance of the Entrance Test conducted by Bundelkhand University respondent No. 2 in the year 1997. None of the respondents shall put any impediment in the way of the petitioner to pursue his studies and to appear in the ensuing B.Ed. examination and for all practical purposes, he shall be treated as a bona fide student of B.Ed. course.