Manjunatha vs Director Of Pre-University … on 11 April, 1985

ORDER

Rama Jois, J.

1. In each of these Writ Petitions, the petitioner concerned has questioned the legality of the order of the Board of Pre-University Education of this State (‘the Board’ for short cancelling the certificate issued to the effect that he/she had passed the Pre-University examination held in April 1982.

2. When the petitions came up for preliminary hearing, in each of these petitions the Government Advocate was directed to take notice and now these petitions have come up for preliminary hearing after notice to the Government Advocate. As the cases involves common questions of law and fact, they are disposed of by this common order.

3. The brief facts of the case, in general, which have given rise to these Writ Petitions are as follows :

(i) The petitioners appeared for the Pre-University examination conducted by the Board in April 1982. The results of the examination were announced in the month of June 1982. Each of the petitioners failed in one or the other subjects and as a result failed in the examination. There has been a provision in Rule 37 of the Rules relating to the conduct of Pre-University Examinations to the effect that under no circumstances the answer scripts of the
examination shall be revalued. However there is a provision under Rule 38 for retotalling of the marks. The Rules read-

“37. Re-valuation of answer scripts.

Under no circumstances, re-valuation of answer scripts will be permitted by the Board. Hence no applications made by the candidate or by any other person in this behalf shall be entertained.

38. Re-totaling of marks/ totals.

(a) Any candidate of the examinations conducted’ by the Board who desires to cause retotalling of marks/totals in subject/s may apply within 30 days from the date of publication of the results of the examination in which he appeared as a candidate on payment of Rs. 10 per subject to the Board.

XX XX XX

In accordance with the above provision, each of the petitioners applied for re-totalling in the subject in which he she had failed. On re-totalling it was found that the totalling made by the valuer concerned was correct and the marks entered in the facing sheet of the answer script in the prescribed proforma was also correct.

(iii) However, in the case of each of the petitioners a representation was made to the Director that though the total was correct, some of the answers had not been valued and, therefore, the marks should be given to such of the answers which had remained not valued by the valuer. After such representation was made, the then Director S.P. Satish straightaway awarded additional marks in consultation with a subject expert and entered the same in a separate proforma prepared for the purpose and directed the issue of pass
certificate to each of the petitioners by adding the marks so given. But in the letter addressed to each of the petitioners to which the pass certificate was enclosed, it was stated that on retotalling he had secured more marks. Except regarding name and other particulars of the concerned candidate, the contents were identical. The communication issued to the petitioner in W.P. 4719 of 1985 reads :-

 

"OFFICIAL MEMORANDUM
 

Sub :    Retotalling of marks in  Sanskrit of Reg. No. 506297 of Bheema Rao, B.R.
 

Ref ;   Indent No. 301 from the retotalling Section.
 

Consequent upon retotalling of marks in Sanskrit, the marks are raised from 25 to 35, The result has been revised fails to I class.

The certificate of the above candidate is enclosed herewith for being issued to the candidate under acknowledgment.

Sd/. Director, Pre-University, Education.”

(iii) On 8-9-1983, a show cause notice was issued to each of the petitioners. The notice issued to the petitioner in W. P. 4719 of 1985 Annexure-C, reads :-

The notice issued to the other petitioners were similarly worded except to the extent of particulars relating to the candidate’s name, register number, the subject and the original marks secured and the marks awarded subsequently.

(v) Except in one or two of the petitions, the petitioner in each of the petitions, submitted a reply refuting the allegation that answers to questions were inserted by him/her subsequently as indicated in the notice and submitted that no malpractice had been committed by him/her and that there was no justification for cancelling the certificate.

(vi) The Board however passed orders on 11-3-1985 cancelling the certificate of pass issued to each of the petitioners. A copy of the order produced as Annexure-F in W.P. No. 4719 of 1985 reads : –

MEMO

“Sub : Malpractices in the Pre-University Examination of April 1982.

Ref : 1. Govt. D.O. Letter No. ED 32 TPU 83 dated 16/18-6-1983

2. Show cause notices issued to 41 candidates dated 8-7-1983

3. Resolution passed by the Board for Pre-University Education at its Meeting held on 26-12-1984.

Preamble :

(1) The Vigilance Commission has conducted enquiry in this regard and in its enquiry report it is stated that these 41 candidates are directly involved in tampering with the answer scripts.

(2) On the basis of this enquiry report, Government have issued instructions in its letter cited under reference No. 1 above, that
how cause notice may be issued to these 41 candidates and the whole issue may be placed before the Board for Pre-University Education for its decision.

(3) Accordingly Show-cause notice was issued instructions in its letter cited under reference No. 1 above, that show cause notices may be issued to those 41 candidates and the whole issue may be placed before the Board for Pre-University Education for its decisions.

(4) Accordingly show-cause notices were issued to all the 41 candidates and the replies received from the candidates were placed before the Board for Pre-University Education. The Board for Pre-University Education at its Meeting examined this issue in detail and sought certain clarification from the Government and finally in its meeting held on 26-12-1984 received in its resolution No. 5 that the certificates issued to the 41 candidates should he withdrawn since they are involved in
tampering with the answer scripts after valuation by the Assistant Examiners/ Deputy Chief Examiners in the guise of retotalling of marks.

The replies furnished to the Show-Cause Notice by Sri B. R. Bheema Rao is not convincing and acceptable. Therefore, the certificate issued to him is hereby withdrawn as per the resolution of the Board.

Sd/- Director, Pre-University Education.”

The impugned order in all other petitions also is issued on the same date and is similarly worded. Aggrieved by these, orders, each of the petitioners has presented the Writ Petition.

4. The contention urged by the Learned Counsel for the petitioners are as follows:

(i) The impugned orders were violative of Rules of natural justice as no inquiry was held and no adequate opportunity was given to each of the petitioners to resist the serious allegations levelled against each of them.

(ii) The Board was equitably estopped at this distance of time from cancelling the certificate as on the basis of the representation made by the Board through the issue of pass certificate to each of the petitioners that he/she had passed in the Pre-University examination, and was prosecuting either Medical, Engineering or General Degree course and is now in the III Year of the concerned course and as by the cancellation of the pass certificate at this distance of time would result in irreparable loss and manifest injustice.

5. In support of the first contention, Learned Counsel for the petitioners, submitted as follows: The show-cause notice indicated that it was based upon the inquiry made by the Vigilance Commission. A copy of the Vigilance Commission’s report was not furnished. In the notice, it was alleged that the petitioner concerned had inserted certain answers in the answer script subsequently and it was on account of such malpractice committed he/she had secured more marks than given in the statement of marks and when the said allegation was denied, neither the Board proved the charges against the petitioners nor any opportunity was given to them to establish their innocence. Therefore the impugned order was in flagrant violation of rules of natural justice. In support of the above submission, Learned Counsel relied on the following decisions.

(i) Board of High School – v. – Ghanshyam, , The Board of H.S.I.E. – v. – Chitra, , Mohinder singh Gill – v. – Chief Election Commission, , Swadeshi Cotton Mills – v. – Union of India, , Amiya Kumar – v. – Principal R.E. College, , Sibaram Panda – v. – Collector, Cuttack, , Ramnarayan Keshori – v. -University of Calcutta, , Narendranath – v. – High School & Intermediate Examination Board, , Durgappa – v. – Basavesh-wara Engineering College, 1982(1) KLJ 120.

6. The substance of the ratio of all the decisions is that any order, even if administrative in character, which has got civil consequences against any individual, should be passed only after complying with the Rules of natural justice, i.e., by giving a reasonable opportunity of refuting the charges, The principle is too well settled. There can also be no doubt that cancellation of pass certificate certainly results in civil consequences to the person concerned.

7. The argument of the Learned Counsel for the petitioners was that in the present cases, except issuing a
stereotyped show-cause notice, no opportunity worth the name was given to each of the petitioners to meet the allegations levelled against him/her and, therefore the
impugned orders are violative of principles of natural justice.

8. Sri N. Devadas, High Court Government Pleader, appearing for the Board, produced the original records including the concerned original answer scripts of each of the petitioners and on the basis of the said orders submitted as follows:

(1) According to the result declared by the Board each of the petitioners had failed in the examination. According to the rules regulating the Pre-University Examination for all candidates, who fail in the examination only statement of marks has to be given. As each of the petitioners had failed, statement of marks was given. Each of the
petitioners, on coming to know that he/she had failed in a particular subject, each of the petitioners applied for
re-totalling. Even after the re totalling, there was no change in the marks of each of these cases. In other words, the total made by the voluer concerned was found to be correct.

(2) At that stage, knowing full well, there was no provision for revaluation and on the other hand, there was a clear prohibition for revaluation of the answer scripts, each of the petitioners made a representation that the valuer concerned had not given marks to some of the answers
furnished by each of the petitioners. On such a representation, the then Director S. P. Satish on taking the opinion of an expert in the subject concerned awarded marks as requested by each of the petitioners in a cyclostyled proforma. The proforma in which the opinion of an expert in the subject was taken and the order passed by the Director, are similar in all cases. The two sheets relating to the petitioner in W.P. No. 4661 of 1985 read : –

I. Opinion of the Lecturer:

“Reg. No. 510672 – March 1982 Exam. Commerce, question No. 4 B has not been valued. Two marks may be awarded for that answer and two marks for 4 Bb.

Question No. 5 a) answer has not been valued and two marks may be awarded and for 5B b) 3 marks may be awarded.

On account of this the total marks will become 23 to 32.

Sd/- B.N. Satyanarayana Rao,

B. N, Satyanarayana Rao,
Lecturer in Com.

Govt. Central College,
Bangalore.

II. Orders of the then Director :

  

NOTES AND ORDERS
 

Indent No :    421
 

Institution No.
 

Centre No.
 

Register No,    510672
 

Name of the Candidate :    B. P.   Manjunath
 

Subject :    Commerce
 

Change in statement of marks in the marks list :    From 23 to 32
 

Reasons for change :     As per  the opinion of the subject expert enclosed certain answers written by the candidate have not been assessed by the examiner. They have been awarded 9 marks. Thus the total changes from 23 - 32.
 


 

Subsequently complaints were received by the Government that actually the answers in respect of which additional marks were sought for by each of the petitioners were inserted into the answer scripts in the office of the Director with his connivance. The State Vigilance Commission held an inquiry into the serious allegations held against the Director. He was found guilty of the charge and was dismissed from service.

(3) In the course of inquiry against the Director, it was revealed that the answers in each of the answer scripts in respect of additional marks was sought for by each of the petitioners were subsequently inserted. It is on this basis show-cause notices were issued to all the
petitioners. In the reply furnished by the petitioners, except baldly denying the allegations, no valid explanation was given. As pointed out earlier, under the rules, there was only provision for re-totalling and there was prohibition for revaluation of the answer
scripts. In spite of this clear position, even after knowing that the marks entered in the statement of marks furnished to each of the petitioners in the subject concerned, was correct, the petitioners resorted to secure more marks and to secure pass with the connivanct of the then Director in the manner indicated above. In the circumstances, on consideration of the indisputable facts as disclosed from the original answer scripts as to the actual marks secured by each of the petitioners the Board has proceeded to pass the impugned orders.

9. Learned High Court Government Pleader also made an alternative submission. Each of the petitioners was entitled to the marks awarded by the valuer which is found in the answer script. The same marks continued to be in existence at the time when certificate of pass was given as also even now. There was prohibition for revaluation and in fact there was no revaluation of the answer script by any one. In view of these indisputable facts, this Court should decline to interfere under Article 226 of the Constitution.

10. Learned High Court Government Pleader produced the original answer scripts. Opinion of the expert taken by the then Director, copy of the statement of marks issued by the Board in the first instance and pass certificate issued later were also produced. Photostat facing sheets of the answer scripts concerned in each of the petitions and a few other documents have also been produced wish memos. The original records disclose the facts in the statement below:-

(Set out in the following two pages)

The above facts are indisputable and were not disputed by the Learned Counsel for the petitioners.

10A. Learned High Court Government Pleader referred to each of the answer scripts and showed how the answers had been inserted, in some cases on the back side of the cover page, in some cases in the small spaces whenever available and in some cases wrong answers had been written and zero marks was given and right answers were inserted below the wrong answers and that insertions were alone in different ink and also pointed out that if these were answers
originally there, having regard to their location, there was no chance of the valuer omitting to value. The Learned Counsel for the petitioners however asserted that they were not
subsequent insertions.

11. I consider it unnecessary to go into the said allegation as I was told that criminal prosecutions are being launched in respect of the above allegation.

12. Whatever that may be, the following facts are not and could not be disputed-

1. The marks secured by each of the petitioners according to the valuation made by the valuer in the subject concerned was as stated at
column 5 of the statement.

Sl. No.

W.P. No.

Name and Reg. No.

Subject

Marks as per valuation
and which remains unchanged on the answer script after retotalling.

Marks after adding
additional marks given by the Director.

Question Nos. for the
answer to which additional marks were given.

1

2

3

4

5

6

7

1.

4661/1985

B.P. Manjunatha

Commerce

23

32

BB(a) 5(b)(a)

 

 

510672

 

 

 

 

2.

4719/1985

B.R. Bheema Rao

Sanskrit

22

35

1(a)(3), (3)(b)(l)(2)

 

 

506297

 

 

 

3(a)(3) & 5(d)

3.

4781/1985

Suresh Patil

Sanskrit

25

35

1(i) l(ii);

 

 

550162

 

 

 

 

4.

4790/1985

P- Shashikala

Chemistry

14

19

3(d), 7(c)

 

 

521373

 

 

 

 

5.

4801/1985

N. Sharmila

Mathematics

23

35

2(c), 8(a)(b), 2(c)

 

 

505789

 

 

 

and 9(b)

6.

4828/1985

Malleshappa

History

27

32

5B, 5C

 

 

546403

 

 

 

 

7.

4855/1985

G. Yoginarayana

Sociology

22

31

3(a), 4(b) & 5(a)

 

 

Gowda, 563679

 

 

 

 

8.

4977/1985

Arif Mohammed

Mathematics

62

66

V(b) l(c) 14(a) 14(c)
13(c)

 

 

Mujawar

 

 

 

8(b) (i) (ii)

 

 

 

Chemistry

9

20

13(c) 8(b) (i) &

(ii)

9.

5071/1985

T.R. Rathi

Mathematics

19

28

11(1)(2)(3)

 

 

540406

 

 

 

 

10.

5098/1985

Bahubali J. Desai

Sanskrit

23

31

3(a)(b) 5(b) 5(e)(2)(3)

 

 

555287

 

 

 

 

11.

5115/1985

Sangeetha,

Chemistry

11

19

5b(i)(ii) &

(iii),7(b),

 

 

M. Patil, 505139

 

 

 

i, ii, iii & 10(b)i,
ii, iii

12.

5190/1985

L.S. Ramesh

Mathematics

16

52

11(1) (4) 12(a)( i), (ii)

 

 

506759

 

 

 

8(b) (1)3(b),
9(a)(i)(ii)

 

 

 

 

 

 

(iii) & 6(a)

13.

5330/1985

Uma, N.

Sanskrit

23

29

5(d), (e)

14.

5357/1985

Sangeetha Pardal

Chemistry

16

24

2(a)(b)(c)

 

 

505138

 

 

 

 

15.

5366/1985

K. Suresh 5866

Commerce

22

30

3(a)(b)(i)(ii), 6(B)(1)

2. There was only provision for retotalling and each of the petitioners applied for retotalling.

3. Even after retotalling the total marks given by the valuer and entered on the prescribed proforma being the cover page of the answer script was found to be correct.

4. Even though there was prohibition for revaluation under the rules, after finding that there was no change after retotalling representation was made by or on behalf of each of the petitioners to give marks to certain answers stating that they had not been valued by the valuer.

5. Straightaway additional marks were given by the then Director in a separate sheet taking the opinion of a subject expert without referring the script to the valuer.

6. No marks have been given on the answer script to those answers alleged to have been not valued by the valuer. The marks awarded on the answer scripts remain the same and on a retotalling of the marks, even now the position remains the same.

In view of the above indisputable/undisputed facts, Learned High Court Government Pleader submitted that there was no justification for this Court to interfere with the decision of the Board. In support of this submission he relied on the following decisions –

Bihar S. E. Board – v. – Subhas Chandra,

Prem Prakash – v. – Punjab University,

G.B.S. Omkar – v. – Sri Venkateshwara University,

Bright Sun Jose – v. – Madnrai Kamaraj University,

Alternatively Learned High Court Government Pleader sub-mitted that even on the basis that Rules of natural justice have not been fully or properly complied with or even not complied with, this Court should decline to interfere with the impugned orders as the decision was based on
indisputable facts.

13. Having due regard to the Rules of natural justice, there can be no doubt that if the Board intended to take action against each of the petitioners on the basis of malpractice alleged against them, the petitioners should have been
confronted with the answer scripts and they should have been called upon to explain the charges. This has not been done. But the Learned High Court Government Pleader submitted that in view of the undisputed facts set out above, in particular the marks recorded on the answer script, the Board was fully justified in withdrawing the pass certificate.

14. Learned Counsel for the petitioners submitted that if the Board wanted to withdraw the certificate on the basis of the marks recorded on the answer script, a notice on that basis ought to have been issued.

15. It is true that having due regard to the Rules of natural justice, the Board should have set out the facts which have been set out in paragraph 12 and called upon each of the petitioners to show cause why the pass certificate should not be withdrawn and should have proceeded to pass final orders on consideration of the reply if any furnished by them. The Board has not done so. Still the alternative submissions made by Sri N. Devadas, High Court
Government Pleader, was in view of the indisputable facts, this Court should decline to interfere in these cases.

16. These cases are really unprecedented. When each of the petitioners personally verified the answer script and found that there was no change in the marks, he/she ought,’ to have accepted the declaration of the result and the marks. But curiously what happened in the present cases is, each of the petitioners admittedly represented to the Director stating that some of the answers had remained not valued and requested the Director to give more marks which he readily gave in consultation with a subject expert though Rule 38 only provided for retotalling and Rule 37 prohibited revaluation, and gave an endorsement stating that on
retotalling the candidates concerned had secured more marks though it was factually false.

17. Learned Counsel for the petitioners submitted that it was for the Director to consider whether the request for giving more marks should be granted or not. The Director gave an endorsement stating that each of the petitioners had secured more marks on retotalling and for that the
petitioners cannot be found fault with. It is only correct to say that the petitioners alone cannot be found fault with for there can be no doubt that but for the grave and heinous misconduct of the then Director, who betrayed the trust reposed in him by the Government in appointing him as the Head of such an important branch of administration, the petitioners could not have been given more marks than the valuer had given on the answer scripts. It is significant that the endorsement issued to each of the petitioners stated that he had secured more marks after retotalling though it was false to the knowledge of the Director and the
petitioners. Why it was not stated in the endorsement the additional marks were given to the petitioners for certain answers not valued by the valuers and by addition of those marks they had passed ? The reason is obvious. If in the endorsement it was said so, the matter at once would have got exposed and exploded. Suppression of truth, in the endorsement cannot but be deliberate and speaks about the dubious method adopted by the then Director.

18. Whatever that may be, the indisputable fact is that the marks given by the valuer on the concerned answer script remains the same. This constitutes the foundation of the impugned orders. As this basic fact is indisputable, even on the basis, that rules of natural justice have not been complied with, the appropriate course for this Court is to decline to interfere in view of the observations of the Supreme Court in S. L. Kapoor – v. – Jagemohan, . Relevant part of the Judgment reads :

“In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It will comes from a person who has denied justice that the person who has been denied justice is not prejudiced. As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because Courts do not issue futile writs,”

(Underlined by me)

In the present case also, no useful purpose will be served by directing the Board to give an opportunity to the petitioners for in view of the marks found on the answer scripts, which is indisputable by the petitioners, no order other than the one already passed could be made by the Board.

18A. A Division Bench of this Court also had declined to interfere with the decision of an academic body on similar grounds in D. Ramanujan – v. – The Dean, Bangalore Medical College, ILR (Karnataka) 1973, 955. The relevant part of the Judgment reads :

“The evidence in these cases discloses a disturbing state of affairs. There is a clear evidence that the marks cards obtained by the petitioners do not represent the real marks secured by them in their examinations. On the strength of these fraudulent marks cards, the petitioners have secured admission in the Medical Colleges. The authorities have correctly taken action in cancelling their seats. The contention for the petitioner that the University has not cancelled or withdrawn the marks cards given to the petitioners and therefore the college authorities are bound to act upon them, cannot be accepted. We are satisfied that there has been a fraud committed by somebody in order to secure admission of the
petitioners to the Medical Colleges. It is not necessary for us to hold as to who is responsible for that fraud. The fact remains that the petitioners are the beneficiaries of the fraud and the Jurisdiction of this Court under Article 226 of the Constitution cannot be invoked for the benefit of the beneficiaries of the fraud.”

19. It is also dear that in the present cases Rules of natural justice are being invoked only to avoid the
consequences of an action based on indisputable fact by procrastination. The observations of the Supreme Court in H.G. Sarin – v. – Union of India, which are apposite read :

“In the entire background of this case we find a passage occurring at page 803 in the judgment of Lord Denning, Master of the Rolls in the case of R. -v- Secy., of State for the Home Department exparte Mughal, (1973) 3 ALL ER 796 quite apposite to be quoted. The passage runs thus :

“The rules of natural justice must not be stretched too far. Only too often the people who have done wrong seek to invoke ‘the rules of natural justice’ so as to avoid the consequences.”

In the case of Manjunath – v. – University of Bangalore, 1966(1) Mys. LJ 716 the plea of natural justice was rejected as the marks card had been cancelled on the basis of indisputable facts. Relevant part of the judgment reads :

“Considering the facts of this case, the only record that has been used against the petitioner is the Marks Register of Pre-University Examination 1959 of the Mysore University. At no stage, has the petitioner challenged the correctness of the entries made therein. No doubt the Chairman of the Selection Committee would have done well if he called the petitioner and confronted him with the marks as entered in the Register before cancellation of his admission. But, as already observed, the facts on the basis of which the petitioner’s admission was cancelled being undisputed and incapable of any explanation except on the hypothesis that the marks card produced by the petitioner was erroneous, we do not consider that the absence of notice to the petitioner had resulted in any injustice to him.”

The ratio of the above decisions applied on all fours to these cases.

19. Learned Counsel for the petitioners relying on para-graph 8 of the judgment in Mohinder Singh Gill submitted that the Board cannot be permitted to sustain its order on new material. The contention is untenable. The Board has clearly stated in the show cause notice the marks actually secured as also the marks given in the guise of retotalling and is relying only on the material on which the order was made and is not trying to sustain its decision on material which did not then exist.

20. Learned Counsel for the petitioners also submitted that what was done was not revaluation, as valuation of certain answers not valued by the valuers cannot be termed revaluation. The contention is also untenable. Rule 37 clearly prohibits revaluation of answer scripts. Therefore once the answer scripts have been valued in accordance with Rules which ensure full and complete valuation, the answer script cannot be revalued for whatever reason. Therefore any attempt to give more marks to an answer script than already given by the valuer in any manner is revaluation and that is prohibited by the Rules. The effect of Rule 37 is even
allowing of inspection of the answer script by the candidate or his parents at the time of retotalling as was done in these cases was impermissible. (See Maharashtra State Board & Secondary Education

– v. – Paritosh, and N. S. Sudha – v. -State of Karnataka, 1985 (1) KLJ. 61).

21. For the reasons aforesaid, I am of the opinion that these are cases in which this Court should decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution as the impugned orders are based on indisputable fact i.e., the marks awarded and found on the answer scripts of the petitioners, which remain unchanged even after retotalling.

22. In support of the second contention based on the plea of equitable estoppel Learned Counsel for the
petitioners relied on the Judgment of the Madras High Court in the case of University of Madras

– v. – Sundara Shetty, AIR 1956 Mad 309 and of the Patna High Court in Amaresh Kumar – v.- Principal, Bhagalpur Medical College, . They also pointed out that in the case of MANJUNATH the Division Bench of this Court rejected the plea of equitable estoppel only because action was taken without delay.

23. Learned High Court Government Pleader resisted the above submission and submitted as follows:

The principle of equitable estoppel could be applied only in cases where one of the parties represented certain set of facts to exist to another and the latter acting on the basis of the said facts had altered his position and in such a case the former could not be permitted to go behind the facts represented, which if allowed, would result in manifest injustice or irreparable loss to the party, who acted on such representation. In the present case, Learned Counsel
submitted that the petitioners were disentitled to raise the plea of equitable estoppel in view of the following facts :- The Board declared the result of each of the petitioners correctly. The statement of marks were also furnished. Each of the
petitioners applied for retotalling as permitted by Rules. Even after retotalling each of the petitioners found that there was no defect in totalling. Thereafter each of the petitioners represented to the then Director that certain answers had not been valued by the valuer concerned knowing full well there was prohibition for revaluation and pursuant to such representation secured more marks. Each of the petitioners knew the correct position. The giving of more marks by the then Director and issuing of the pass certificates were
consequent on the effort of each of the petitioners, and therefore it cannot be said that in the present cases there has been any representation made by the Board though factually incorrect to each of the petitioners and, he/she believed it to be true and acted on the said basis. Therefore, he contended that the principle of equitable estoppel cannot be invoked in these cases.

24. On giving careful consideration to the rival submissions, I am satisfied that these are not cases in which the petitioners could invoke the principle of equitable estoppel for, there was a correct representation of facts made by the Board to the petitioners in the first instance and it was the petitioners who made untenable representations as discussed earlier and secured more marks, which was impermissible under the rules. Hence. I reject the second contention.

25. Learned Counsel for the petitioners made a fervent plea for setting aside the impugned orders on the simple ground that it was highly belated and would prove ruinous to the career of the petitioners. They pointed out that each of the petitioners was in the third year of the degree classes and that though show cause notice was given on 8-9-1983 final orders were passed now after two years and that if prompt action had been taken earlier, the petitioners could have appeared for the examination once again.

26. Why and how delay has occurred is difficult to speculate. It is true that belated action causes considerable loss and hardship to the petitioners. But could that be a ground to interfere with otherwise lawful action? In this behalf the observations of the Supreme Court in the case of Channabasavaiah

– v. – State of Mysore, are apposite :-

“It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable inconvenience to Government and the selected candidates do the right thing.”

27. In that case, the Court interfered with illegal selection and appointments made by the Public Service
Commission and the Government, after more than three years, and as a result of which illegal appointees were thrown out of the jobs after long lapse of time. In the present cases the Government and the Board themselves have taken the right action setting aside the illegal action. If purity in
administration should prevail and the Department of Education should enjoy the confidence of the Public, the impugned action to deprive the petitioners of the benefit secured from such gross abuse of power pursuant to their representation was inevitable. Therefore certainly this Court cannot set aside such right action.

28. The eternal truth, namely, the truth destroys untruth, though slowly but surely, stands established in these cases, The petitioners and/or their parents are themselves
responsible for their misery. My agony for the predicamental situation in which these young boys and girls have been placed is not less than theirs and their parents. But I cannot give relief to them as in law they are not entitled to it. I can only relieve them from payment of exemplary costs to the respondents, which I would have certainly awarded and which I am not awarding in view of the complicity of the then Director in the whole affair, and in view of the delayed action.

29. Learned Counsel for the Petitioners lastly submitted that there were large number of candidates numbering more than 100, who had been given additional marks in the same manner in which additional marks had been given to the petitioners, but action had been taken only in the case of 41 persons including the petitioners, but no action has been taken as against others. If what the Learned Counsel for the petitioners say is true, it would be difficult to appreciate as to why the Board has failed to take action in other similar cases. It is a matter for the Government and the Board to look into this serious allegation. But whatever that may be, the fact that there are several other persons whose cases are similar to the petitioners in respect of whom fail certificates issued to them have been substituted by pass certificates is no ground to set aside the impugned orders.

30. Before concluding, it is necessary to record the submission made by the Learned High Court Government Pleader. In each of the impugned orders, the pass
certificate of the concerned student based on additional marks has been cancelled. Having done that it was necessary for the Board to have substituted it by the original statement of marks. Learned High Court Government Pleader
submitted that the Board would reissue the original statements of marks to each of the petitioners forthwith.

31. In the result, I make the following order:

(i) The Writ Petitions are dismissed.

(ii) No costs.