ORDER
D.N. Chowdhury, J.
1. The matter relates to a premier educational institution of this part of the country which so far contributed as a centre of acquisition of knowledge.
2. The petitioner is presently studying in the First Year Science of Three Year Degree Course (TDCJ in the Cotton College, Guwahati. After passing her All India Sr. School Certificate Examination (Class XII) in the year 1995, she was admitted in the First Year (Science) of TDC and was pursuing her studies with Zoology as major, with Botany, Anthropology and English. The final examination of 1st Year (Science) of the TDC of Cotton College was held in the month of March 1996 and the petitioner appeared in the said examination. On 23-3-96 while she was in the midst of her examination the petitioner was served with a notice from the office of the Dean of the Cotton College, Guwahati. By the said notice the petitioner along with another student was asked to produce their original mark sheets along with other relevant documents on the basis of which they were admitted to 1st Year (Science) of T.D.C. for the session 1995-96, before the Dean of Cotton College on or before 30-3-96. On receipt of the same notice the petitioner furnished her original mark sheet and other relevant documents mentioned before the Dean for verification. According to the petitioner after verification of the said documents in original the Dean returned the same to the petitioner. The Dean in her affidavit admitted that the petitioner produced her original mark-sheet and documents before 30-3-96, but asserted that the petitioner did not produce the original Medical Certificate, a copy of which was enclosed along with her application seeking admission in the T.D.C, 1st Year Science under physically handicapped quota.
3. The results of the 1st Year (Science) Examination for the year 1995-96 was declared in April 1996 by the college authorities in the Notice Board of the College and against the Roll No. of the petitioner it was shown “withheld for some official reasons” The petitioner has approached the authority. According to the petitioner she was informed that her results was withheld because of misplacing of some official files, and, however, she was assured that results will be cleared within a short time. From the month of July 96 the 2nd year classes resumed. The petitioner could not attend the 2nd year classes unless she is formally admitted after declaration of the results. The petitioner has asserted that she is, however, attending the classes. On the insistence of the father of the petitioner, he was furnished with a copy of the notice dated 17-7-96 issued by the respondent No. 2-The Dean of Cotton College, Guwahati. By the said notice it was intimated that the results of the petitioner along with another student was “withheld for some official reasons. The Heads of the concerned Departments are requested not to enter the names of the following students in the college register book. This may be treated as most important.” The said notice was also circulated to all the Heads of Departments of the College and marked as Annexure ‘E’ of the writ petition.
4. The petitioner failing to get redress from the college authority, she moved this court by way of Article 226 of the Constitution.
5. The learned counsel for the petitioner Mr. C. Baruah has submitted that the authorities in a most arbitrary fashion refused the petitioner her right to continue with her studies without assigning any reason. The denial to attend class and thereby denial to pursue her studies by the respondent authority amounts to deprivation of her liberty without affording any opportunity even to know the ground of the negation and the right to defend her reputation and dignity. According to Mr. Baruah, the petitioner was denied justice and fair play in action, Mr, A.K. Bhattacharyya, learned advocate appearing on behalf of the college authorities, submitted that the reasons for withholding result arc obvious and does not need elaboration. According to the learned counsel the result was withheld because of on-going scrutiny of her documents in connection with the admission in the college under the physically handicapped quota on the basis of the Medical Certificate submitted by the petitioner. By the notice dated 19-6-96, the petitioner along with the other student was asked to submit their original Medical Certificate regarding their physical disabilities. The main reason for not declaring the result of the petitioner and thereby not permitting to continue in her class are narrated in paragraphs 6, 7, 9, 10, 11 and 13, which are extracted below:
“… 6. That the statements made in paragraph 6 of the writ application being matters of record, 1 do not admit the statements which are contrary to and inconsistent with the record. In this connection, to say that the college authorities received verbal complaints that the petitioner is not a physically handicapped person but she got her ad mission in the college by submitting a false medical certificate under physically handicapped quota. Accordingly, it was decided that necessary verification in this respect be made to find out the truth or otherwise of the case. On verification of the petitioner’s application seeking admission and other documents it was found that the photocopy of the medical certificate furnished by the petitioner along with the application was missing. Thereafter, the then Dean issued a notice dated 23-3-96 (Annexure-D to the writ application) to the petitioner and another student asking them to produce their origimil mark-sheets along with other relevant documents on the basis of which they were admitted in the Degree First Year Classes for the Session 1995-96 of or before 30th March, 1996.
7. That with regard to the statements made in paragraph 7 of the writ application. I say that in pursuance of the aforesaid notice dated 23-3-96 the petitioner produced her original mark-sheets and the documents annexed as Annexures-A, B and C to the writ application before the then Dean on 30-3-96. It will be pertinent to mention herein that the petitioner did not produce the original medical certificate copy of which was enclosed along with the application seeking admission in the T.D.C. 1st Year Science under the physically handicapped quota. In the meantime, a news item was also published in the local news paper, namely ‘Asom Bani’ dated 29-3-96 alleging that admission of petitioner and another, under the physically handicapped quota was obtained by submitting false medical certificate. Accordingly, the petitioner and another student were asked to submit the original medical certificate regarding their physical disabilities for scrutiny again on 30-3-96 when the petitioner came to submit aforesaid documents.
A photocopy of the aforesaid news item along with the English translation of the same is annexed hereto and marked as Annexure-4.
9. That the statements made in paragraphs 9 and 10 of the writ application are not true and correct and the same are hereby denied. In this connection, I say that as per the information received from the college office, the petitioner did not approach the office at any point of time asking for reasons for withholding the result. In fact, the petitioner knows that her result was withheld because of the on-going scrutiny of her documents in connection with her admission in the said college under the physically handicapped quotu on the basis of the false medical certificate submitted by her. It is emphatically denied that “on further persuation the petitioner could learn that the official file regarding her admission particulars has been misplaced and that her case would be cleared within a day or two”, as claimed by her in paragraph 9 of the writ application. In, this connection, I further say that the petitioner failed to produce the original medical certificate as directed by the then Dean on 30-3-96. Keeping in view the nature of allegations, the aforesaid matter was placed in the meeting of the Heads of the Departments on 18-6-96. In the said meeting it was decided to issue fresh notice asking the petitioner to submit the original medical certificate on the basis of which admission was obtained in the college under physically handicapped quota. Accordingly, the petitioner was served with another notice dated 19-6-96 issued by me directing her to submit original medical certificate regarding her physically disabilities in connection with admission into Cotton College on or before 30-6-96. The aforesaid notice was duly served upon the petitioner on 20-6-96 by Shri M. Ali, Peon of Cotton College, Guwahati. In spite of service of the said notice, the petitioner has not submitted the aforesaid certificate till today.
10 That the statements made in paragraphs 11 and 12 of the writ application being matters of record, 1 do not admit the statements which are contrary to and inconsistent with the record. In this connection, I say that even though the college was closed from 10th May, 1996 to 15th July, 1996 for Summer Vacation, the office remained open. The classes commenced from 16th July 1996. I further say that the result of the petitioner had to be withheld because of certain
complaints and of a news item published in weekly news paper, namely, “Asom Bani” dated 29-3-96 (Annexure-4) in respect of her admission into the T.D.C. 1st Year Science Class on the basis of a false Medical Certificate furnished by her at the time of taking admission into the college. Accordingly, the Dean, incharge, issued a notice dated 17-7-96 (Annexure-E to the writ application). I say in this connection that before declaring the result of the petitioner the College Authority wanted to verify the allegations made in this regard.
11. That the statements made in para
graphs 13 and 14 of the writ application are
not true and correct and the same are
specifically denied. In this connection, I say
that the petitioner’s name has not been struck
off from the College Register, as alleged by
the petitioner. As the petitioner did not
submit the original Medical Certificate as
stated above, it was not possible for the
College Authority to ascertain the truth or
falsity of the complaint made against her.
Therefore, it was thought fit and proper to
take necessary precaution of not entering her
name in the College Register. It was done with
a view to make indepth scrutiny of the entire
complaint and/or allegations made against
her.
I say, in this connection, that the petitioner has not suffered any prejudice nor is she deprived of her any right for not entering her name in the College Register. The College Authority has not yet made up its mind to take any action against her. However, the allegation made in the aforesaid news item has brought the prestige and reputation of the college, under cloud. Therefore, the college authority wanted to study the entire situation by scrutinising the necessary documents furnished by her at the time of taking admission. It is relevant to mention herein that photostat copy of the Medical Certificate furnished by the petitioner in support of her physical disabilities was found missing from the relevant file maintained in connection with her admission. Therefore, it was necessary to ask her to furnish the Medical Certificate in original of which Photostat copy was submitted by her along with the application form? I emphatically assert that matter would not have come to this stage, if she had submitted the Medical Certificate in original as directed by the then Dean in the aforesaid notices. I say that the College Authority would not take any action against her without giving reasonable opportunity of stating her case. Under the present circumstances that stage has not come as yet to provide her any opportunity to show cause.
13. That the statements made in paragraph 19 of the writ application are not true and correct and the same arc hereby denied. In this connection, 1 say that the Vice President and General Secretary of the Cotton College Students’ Union verbally lodged several complaints before the Dean in respect of the admission of the petitioner under the physically handicapped quota on the basis of false medical certificate furnished by her. In this connection, a news item was also published in the local Assamese newspaper, namely, “The Asom Bani” dated 29-3-96. In view of the aforesaid complaints and news item it became necessary for the College Authority to verify the allegations to come to the conclusion whether the complaint lodged and news item published are correct or not.”
6. ‘According to College Authority admission in the College for all streams arc based purely on merit subject to reservation for physically handicapped persons, sports persons and Arts and Culture and persons belonging to Scheduled Caste, Scheduled Tribes, other backward classes and more other backward classes. The cut off marks for students seeking admission for the Sessions 1995-96 in general category of T.D.C. 1st Year Science having Zoology (Major) was 373. Since the petitioner obtained 325 marks, she was not entitled for seat in the General Category, but since the petitioner in her application No. 2138 on 22-7-95 along with her testimonials claimed scat under the physically handicapped quota, she was admitted in the college. According to College Authority the petitioner along with her application submitted her medical certificate. Her application was scrutinised and the same was placed before the Sub-Committee. The Dean in her affidavit stated : “The said Sub-Committee having gone through the application, her testimonials and the medical certificate recommended her case for admission in the T.D.C. 1st Year Science with Zoology (Major) from the physically handicapped quota. Accordingly, the then Dean, Cotton College, Guwahati, allotted her a seat in the aforesaid course from seats covered by physically handicapped quota. The petitioner was admitted on 18-8-95 and she was allotted Roll No. 350 by the admission Sub-Committee as per the order of the then Dean. The petitioner has suppressed the fact that she was admitted in the physically handicapped quota on the basis of medical certificate furnished by her.
7. Photocopies of the petitioner’s application dated 22-7-95, the list of students admitted in T.D.C. 1st Year Science classes for the Session 1995-96 and the notice dated 18-8-95 admitting the students under physically handicapped quota are annexed hereto and marked as Annexures-1, 2 and 3 respectively.”
8. From the foregoing facts it appears that College Authority upon due application of mind and after being fully satisfied admitted the petitioner in the college and allowed her to pursue her studies since 18-8-1995. Before being admitted her into the College, the authority followed the procedure, scrutinised her case at different stages, and thereafter only she was admitted into the college. When the matter rested at that stage the College Authority received some complaints, and those complaints are referred to in the affidavit. However, those are not placed before us. However at paragraph 13, the Dean stated that she received some verbal complaints from the Vice-President and General Secretary of College Students’ Union. In addition to the aforesaid verbal complaint the respondent also acted upon “because of certain complaints and of a news item published in weekly news paper, namely, “Asom Bani” which pursuaded them to refuse the two students from attending their classes.
9. It thus emerges that the application of
the petitioner along with the testimonials, on
completion of the scrutiny, was placed before
the Sub-Committee for selection of physically
handicapped students. The Committee specifically constituted for that purpose “having
gone through the application, her testimonials and the medical certificate recommended her case for admission in the T.D.C.
1st Year Science with Zoology (Major) from
the physically handicapped quota.” The
Committee after attaining its own satisfaction
recommended the case for admission and
finally the recommendation reached the
Dean, who in turn on being satisfied, allotted
the petitioner a seat from the physically
handicapped quota. The petitioner is saying
that she was accordingly admitted on 18-8-
1995 and she was allotted Roll No. 350 by the
Admission Committee as per the order of the
Dean and then she pursued her studies and
appeared in the examination without any
interruption. The College Authority did not
find so far any infirmity in her admission.
According to the authority the verbal com
plaint lodged by the two of the office bearers
of the College Students’ Union added by the
news item impelled the authority to initiate
the impugned action.
10. The question which require adjudication is as to whether the impugned exercise of the discretion is lawful. The action indubitably intervened the right of the petitioner to pursue her studies, i.e., her right to education. The right to education falls within the reach of Article 21 of the Constitution of India. The makers of the Indian Constitution sought to usher a social revolution by a democratic process and through Part III and Part IV of the Constitution, the makers of the Constitution, sought to attain the said object: “The Fundamental Rights”, according to GranVille Austin, “therefore were to foster the social-revolution by creating a society egalitarian to the extent that all citizens were to be equally free from coercion or restriction by the State, or by society privately; liberty was no longer to be the privilege of the few. In the Directive Principles, however, one finds an even clearer statement of the social revolution. They aim at making the Indian masses free in the positive senses, free from the passivity engendered by centuries of coercion by society and by nature, free from the object physical conditions that had prevented them from fulfilling their best selves.”
11. Article 38 contains the essence of the Directive Principles which echoes the Preamble of the Constitution in the following manner;
“38. State to secure a social order for the promotion of welfare of the people– (1) The State shall strive to promote the welfare of the people by securing and protecting us effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
(2) The Slate shall, in particular, strive to minimise the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.”
In the light of the principles embodied in Part IV of the Constitution, the right to life or personal liberty as contained in Article 21 of the Constitution embraced also the right to education. Right to life is not confined to the protection of limb alone, but also embraces the right to life with human dignity. “It is the business of the State ……. to maintain conditions without which the very exercise of human faculty is impossible,” (T. H. Green). Education makes man free from all prejudices and presupposition and looks upon all as its own near and dear. It trains a person to get rid of preconceived notions and look at the object in its entirety with objectivity removing the prejudices. The object of study is the attainment of scientific truth by providing intellectual excellence morale strength and emotive commitments. The greatest Indian thinker Dr. Sarvapalli Radhakrishnan says in “The Creative Life” that:
“Buildings do not make a university. It is the teachers and pupils and their pursuit of knowledge which make the soul of a university. The university is the sanctuary of the intellectual life of a country. The healthy roots of national life are to he found in the people. They are the well-springs of national awakening. They are the spirit behind revolutionary movements of society. When we give education, we start a ferment of debate and discussion of first principles. The educated youth will voice their thoughts and find fault with things as they are. We train in the universities not only doctors and engineers but also men and women who think for themselves. They will not judge everything by the party line. If we destroy the initiative, the freedom of the people, we do so at our peril. If men lose intellectual vigour, the future of civilisation is bleak indeed.”
“Human development is not to be confused with the acquisition of mechanical skills or intellectual formation. It is the development of the spirit in man …..”
C.J. Eartc Waren of U.S. Supreme Court in Brown v. Board of Education reported in (1954) 347 US 483, observed :
“Today, education is perhaps the most important function of State and local governments….. It is required in the performance of our most basic responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”
Indian Supreme Court in Unni Krishnan, J.P. v. State of Andhra Pradesh reported in (1993) 1 SCC 645 : (AIR 1993 SC 2178), observed that the “right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 and the State cannot deprive the student his right to education except in accordance with the procedure prescribed by law.”
12. In the instant case the application was duly processed and scrutinised and thereafter it passed through the Sub-Committee which recommended the case of the petitioner for admission after attaining its full satisfaction regarding the eligibility of the petitioner and thereafter the Dean only on being fully satisfied allowed the petitioner to be admitted in-the course. The Maxim OMNIA PRAESUMUNTUR RITE ET DOWEE PROBETUR IN CONTRARIUM SOLENNITER ESSE ACTA, i.e. All acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by the official persons a presumption arises in favour of the performance of the An execution of an official act is presumed to rightly and duly performed until the contrary is proved. The official act is presumed to be done with honestly and discretion. The Indian Law, particularly, the Evidence Act also recognises the aforesaid Maxim in the illustrations given in (c) and (f) of Section 114 of the Indian Evidence Act; as follows:
“(e) that judicial and official acts have been regularly performed;
(f) that the common course of business has been followed in particular cases;”
In Sri Krishnan v. Kurukshetra University reported in AIR 1976 SC 376, while deciding a case in respect of refusal of admission to the Part II LLB examination, the Supreme Court held as follows:
“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. (Para 6)”
“Before issuing the admission card to a student to appear at Part I Eaw Examination in April 1972 it was the duty of the University Authority to scrutinise the admission form filled by the student 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. If neither the Head of the Department nor the University authorities took care to scrutinise the admission form then in not disclosing the shortage of percentage in attendance the question of the candidate committing a fraud did not artisc. Similarly, when the candidate was allowed to appear at the Part II Law examination in May 1973, the University authorities had no jurisdiction to cancel his candidature for that examination. If the University authorities acquiesced in the infirmities which the admission form contained and allowed the candidate to appear the Examination, then by force of the University statute the University had no power to withdraw the candidature of the candidate.”
“Where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It is neither a case of suggestio falsi, or supressio veri.”
Even otherwise the authorities had at different stages by different people passed the case of the petitioner and allowed her to be admitted and pursue her course about a year and cannot now come around and say that the act was performed wrongly and the maxim NULLUS COMMODUM CAPERE PROTECT DE INJURIA SUA PROPRIA, i.e. No man can take advantage of his own wrong, applies. He who prevents a thing being done shall not avail himself of the non7performance he has occasioned. A wrong doer ought not to be permitted to make profit for his inaction. The doctrine referred to above is introduced to promote the law favours public good and it will in some cases permit a common error to pass for right. The reluctance has been due to the wholesome fear of interference based upon them “Communis error facit Jus.”
13. In Anil Baipadithaya v. State of Karnataka reported in (1995) 6 SCC 531 : (AIR 1996 SC 432), the Supreme Court decided a matter in respect of admission into 1st year MBBS course for the year 1993-94. Appellant in the aforesaid scale in collusion with the members of the Selection Scrutiny Committee (SSC) put up higher rankings in their admission forms, by reason of which they were given admissions in various medical colleges in the State of Karnataka. However, it was subsequently found that the ranking were really not as mentioned in the admission forms, but lower. Knowing this the authority cancelled their admission. In the aforesaid case the District and Sessions Judge on enquiry found that the appellants secured admission by furnishing incorrect ranking in collusion with the S.S.C. and the members of the S.S.C. including the Chairman were equally guilty if not more than permitted. The Supreme Court made the following observations .:.–
“7. On the State counsel being asked by us as to whether the State is prepared to restore the status quo ante regarding the posts which the members concerned of the S.S.C. were holding at that time, cold shoulder is shown. Shri Nagaraja states that the officers at this stage cannot be punished without giving them opportunity. It is really not a question of punishment to them, but of taking back the reward given. As the State is not prepared to do so, we do not think if we would be justified in punishing only one party to the fraud. This Would not be equitable. So even though we strongly decry and condemn the fraud played by the appellants, the present is not an occasion where any punishment is deserved at the behest of one who is not prepared to punish the main culprit, as the members of the S.S.C. have to be regarded, because, but for their active role, the appellants would not have succeeded in their highly objectionable and deplorable act. In not allowing the cancellation to take effect, we have also noted that the appellants have studied for about two years by now and their action had otherwise not deprived any other merited student of his legitimate seat.”
14. Mr. Baruah, the learned counsel for the petitioner also brought my attention to the decisions reported (1995) Supp (1) SCC 157 ; (AIR 1994 SC 1917). Chetana Dilip Motghare (smt.) v. Bhide Girls’ Education Society Nagpur in AIR 1988 Madh Pra 66. The college authority mainly exercised the discretion to withhold the results of the students on the strength of the alleged verbal complaint of two students’ Union Office bearers and the News Item published in “ASUM BANI”. The statement of facts contained in the newspaper is merely a hear-say and therefore cannot be acted upon as a piece of evidence.
The Supreme Court in Samant N. Bala-krishna v. George Fernandez, AIR 1969 SC 1201 observed that: (at p. 1220, para 47):
“A newspaper report without any further proof of what had actually happened through witnesses is of no value. It is at best a secondhand secondary evidence. It, is well known that reporters collect information an’d pass it on to the editor who edits the news item and then publishes it. In this process the truth must get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.”
15. When the authority exercise discretionary power it requires to apply its minds to the facts and circumstances of the case and if the conditions are not satisfied it will be a case of non-application of mind. The authority though might have acted bona fide the same will amount to mechanical exercise of power if it exercises that power without due care and caution and without any sense of responsibility. In the words of Warrington L.J. In R. v. Darlington School, (1844) 6 QB 682. “It may also be possible that an act of public body, though performed, in good faith and without any taint of corruption was so clearly founded on alien and irrelevant grounds as to the outside the authority conferred upon the body and therefore inoperative. “The exercise of power in this fashion will amount to fraud on power though not corrupt motive can be imputed.
16. The learned Senior counsel for the respondent brought my attention to the decision of the Supreme Court reported in AIR 1993 SC 2638 in Gurdeep Singh v. State of J. & K. In the aforesaid case the Appellant Gurdeep Singh, the eligible candidate, was deprived of a seat to a course leading to a Medical Degree in Jammu & Kashmir, through stratagem and trickery. The Respodent No. 6 attained the eligibility long after the selection process was offered by misuse of power. The facts of the case is totally distinct and they are not applicable in this case. In the instant case there is absolutely no materials before this Court to hold that the petitioner took any undue advantage by any deception or subterfuge.
17. From the materials made available before this Court points that the discretion exercised by the authority solely at the instances of the aforesaid two bodies and not on their own accord. The authority surrendered its own discretion and submitted itself to the wishes to those who are strangers in the decision making process and took recourse to the impugned devise impairing the dignity of the individual and thereby infringing her rights to education in a most illegal fashion.
18. For the reasons as set out above and considering all aspects of the matter I quash the notice dated 30-3-1996 issued by the Dean of Cotton College, Guwahati, asking the petitioner to submit the original Medical Certificate whereby the Dean held up the examination results (1st year T.D.C. Science) as well as the Notice dated 17-7-1996 issued by the Dean, Cotton College, directing the Departments not to enter the name of the petitioner along with another in the College Register Book (Annexure ‘E’) and accordingly the Respondents are directed to declare the results and the Respondents Authorities are directed to enter her name in the college Register Book and permit, her to pursue her classes in the 2nd year T.D.C. Science Course, and allow her to complete her course in accordance with the law.
The writ petition is accordingly allowed.
No order as to the costs.
Rule made absolute.