PETITIONER: THE VICE-CHANCELLOR, UTKALUNIVERSITY AND OTHERS Vs. RESPONDENT: S. K. GHOSH AND OTHERS. DATE OF JUDGMENT: 15/01/1954 BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM CITATION: 1954 AIR 217 1954 SCR 883 ACT: Constitution of India, art. 226-Mandamus petition-High Court-Whether can constitute itself as court of appeal- Resolutions passed by University Syndicate-Validity of- Notice of meeting issued to all-Want of due notice waived- Substantial compliance with spirit of law. HEADNOTE: In the present case there were two meetings of the University Syndicate, consisting of twelve members. Proper notices of both meetings were issued to all the members but one member did not attend one meeting and another member did not attend the other meeting. The defeat was that the subject matter of the present case was not included in the agenda of either meeting but one of the items in the agenda of both the notices was " other matters, if any. " The subject matter consisted of leakage of examination papers and the cancellation of results. Those present passed the resolution on both occasions unanimously The High Court held that want of notice in the two cases invalidated the resolutions 884 and issued a mandamus directing the syndicate to take steps for the publication of the results Held, that want of due notice can be waived in given circum- stances. In the present case the two absentees did in fact attend one or other of the meetings and expressed their views, not individually but as members of a meeting which was considering the matter and there was unanimity on both occasions. The substance is more important than the form and if there is substantial compliance with the spirit and substance of the law, an unessential defect- in form should not be allowed to defeat what is otherwise a proper and valid resolution. As in the present case, there was actual appearance without objection at meetings properly convened and there was complete unanimity on both occasions the two resolutions were not invalid because whatever may be thought about each taken separately, the defects, if any, are cured when two are read together and regarded as a whole. Held further, that in a mandamus petition the High Court cannot constitute itself into a court of appeal from the authority against which appeal is sought. It is not the function of courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted. by the law. The present was not the sort of case in which a mandamus ought to issue. Radha Kishan Jaikishan v. Municipal Committee, Khandwa (61 I.A. 125) and Young v. Ladies Imperial Club (89 L.J.K.B. 563) referred to. JUDGMENT:
CIVIL APPFLLATE JURISDICTION Civil Appeal No. 7 of 1952.
Appeal by special leave from the Judgment and Order, dated
9th and 17th August, 1951, of the High Court of Judicature
at Orissa in Miscellaneous Judicial Case No. 80 of 1951, and
Order- dated the 20th August. 1951, in Supreme Court Appeal
No. 15 of 1951, on the’ file of the said High Court.
Dr. Bakshi Tek Chand (G. C. Mathur and H. Mohapatra, with
him) for the appellants.
N. C. Chatterjee (V. S. Sawhney and R. Patnaik, with him)
for respondents Nos. 1-8, 10-16, 18-23 and 25-34.
1954. January 15. The Judgment of the Court was delivered
by
BOSE J.-This appeal arises out of a petition made by certain
students of the Utkal University of Orissa
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to the High Court of Orissa at Cuttack seeking a mandamus
under article 226 of the Constitution against the Vice-
Chancellor of the University and certain other persons
connected with it.
In view of an undertaking given before us on behalf of the
University, the questions at issue lose most of their
practical importance and only two questions of principle
remain. Because of this we do not intend to examine the
matters which arise at any length.
The facts are as follows. The first M.B.B.S. Exa. mination
of the University included Anatomy as one of its subjects.
This examination was divided into three parts. The
theoretical portion, which was written, was fixed for the
9th and 10th of April, 1951. The practical was fixed for
the 19th and the viva voce for the 20th.
At 7 o’clock on the morning of the 9th, before the
examination began, a member of the Senate was told that
there had been a leakage of the questions and’ he was given
a paper which was entitled “hints”. He at once contacted
three other members of the Senate and handed over copies of
these “hints” to them. The three members were Mr. Justice
Jagannadhadas Mr. Pradhan, the Director of Public
Instruction in Orissa, and Mr. Lingaraj Misra, the Minister
for Education. The Vice-Chancellor was not informed at the
time and no further action was taken. The examination
proceeded as scheduled on the date,, fixed.
The Vice-Chancellor was informed on the 19th. He at once
asked Lt. Col. Papatla, the Principal of the Medical
College, to look into the matter. This was done and Lt.
Col. Papatla submitted a report on the 20th. He compared
the “hints” with the question paper and considered that the
similarity between them justified the conclusion that there
had been a leakage.
It so happened that an ordinary meeting of the University
Syndicate had been called for the 21st to
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consider certain other matters. This question was not on
the agenda but the last item was, “other matters, if any.”
The Vice-Chancellor presided and he told the members
present what had happened. He had already prepared a note
about this on the 21st before the meeting began. After
setting out the facts the note concluded-
” I request the syndicate to discuss the matter as it is an
important and urgent one before taking up the publication of
the M.B.B.S. results which are also ready, though the
subject is not in the agenda.
The report of the Board of Examiners setting out the results
of the examination was received on the ,morning of the 21st
some time before the meeting. It showed that thirty seven
students had appeared for the examination in question. Of
these, twenty seven passed and ten failed in the written
examination and the same ten, plus one other (making
eleven), failed in the practical and viva voce tests. In
the result, eleven of the thirty seven failed and twenty six
passed. The petition for mandamus was made by the twenty
six who had passed and eight who failed: thirty four in all.
The syndicate heard Lt. Col. Papatla at length and also
examined three other persons, namely, Mr. Bhairab Chandra
Mahanty, who first gave the information, Dr. R. K. Mahanty,
the internal examiner for the M.B.B.S. and Dr. 8. M.
Banerjee, President of the Board of Examiners. (Two members
of the syndicate were experts in Anatomy, namely Lt. Col.
Papatla and Dr. S. N. Acharya, the Civil Surgeon).
After carefully considering the question for some six hours,
the members present passed the following resolution :
” That after enquiry, the syndicate is satisfied that there
has been leakage of questions in Anatomy and that the result
in Anatomy examination be cancelled and that another
examination in the subject be held commencing from the 7th
May, 1951.”
The syndicate consists of twelve members. these, all but one
Mr. Pradhan, the Director of Public Instruction, were
present at the meeting. Those present passed the resolution
unanimously. It is admitted that Mr. Pradhan was not told
that this was one of the matters which would be considered
at the meeting. This is one of the grounds on which the
validity of this resolution is attacked.
The successful candidates entered a protest against the
resolution and asked the syndicate to reconsider its
decision. This was on the 26th. The Vice-Chancellor had
already called another meeting of the syndicate for the 28th
to consider other matters. Once again, this was not placed
on the agenda but the Vice-Chancellor brought it up suo moto
“as before. Again, eleven of the twelve were present but
this time the absentee was Dr. M. Mansinha who had approved
of the previous resolution. The former absentee, Mr.
Pradhan, was present at this meeting. For a second time the
decision was unanimous and all eleven refused to review the
former resolution. It is admitted that Dr.Manasinha who was
not there did not know that this question would be
considered again.
The learned High Court Judges held that the want of notice
in the two cases invalidated the resolutions,, They examined
the facts for themselves and concluded that even if the
evidence is sufficient to indicate a a possibility of some
leakage, there was “no justification for the syndicate to
pass such a drastic resolution in the absence of proof of
the quantum and the amplitude of leakage.” They held that
the syndicate had acted unreasonably and without due care.
They therefore issued a mandamus directing the syndicate to
take steps for the publication of the results.
The Vice-Chancellor and the others appeal.
The right of the syndicate to control the examinations, to
scrutinise the results, to invalidate an examination for
proper reasons and to order a re-examination, when
necessary, was not disputed. In view of the undertaking
given the only points argued were the
888
two which the High Court decided against the University.
Several English authorities were cited about the effect of
an omission to give notice to even one member of a body
entitled to receive it, in particular a decision of the
Privy Council in Radha Kishan Jaikishan v. Municipal
Committee, Khandwa(1). We do not think it necessary to
examine the general principle at any length because, in our
opinion, this case is governed by its own facts. It may
well be that when there is a statutory requirement about
notice the provisions of the statute cannot be evaded or
ignored. It may also be, though we do not stop to enquire
whether it is, that when the constitution of a nonstatutory
body requires notice to be given, then also there cannot be
any relaxation of the rule.
The reason for the stricter rule laid down in the cases
cited before us is that though an incorporated body like an
University is a legal entity it has neither living mind nor
voice. It can only express its will in formal way by a
formal resolution and. so can only act in its corporate
capacity by resolutions properly considered, carried and
duly recorded in the manner laid down by its constitution.
If its rules require such resolutions to be moved and passed
in a meeting called for the purpose, then every member of
the body entitled to take part in the meeting must be given
notice so that he can attend and express his views.
Individual assents given separately cannot be regarded as
equivalent to the assent of a meeting because the
incorporated body is different from the persons of which it
is composed. Hence, an omission to give proper notice even
to a single member in these circumstances would invalidate
the meeting and that in turn would invalidate resolutions
which purport to have been passed at it. But this is only
when such inflexible rigidity is imposed by the
incorporating constitution. The position is different when,
either by custom or by the nature of the body or by its
constitution and rules, greater latitude and flexibility are
permissible. Each
(1) 61 I.A. 125.
889
case must be governed by its own facts and no universal rule
can be laid down; also it may well be that in the same body
certain things, such as routine matters, can be disposed of
more easily and with less formality than others. It all
depends on the nature of the body and its rules.
In the present case, there were not one but two meetings.
Proper notices of both meetings were issued to all the
members including the two absentees. The only defect is
that the matter we are concerned with was not included in
the agenda of either meeting. We need not decide here
whether this must always be done-there are English cases
which indicate that is not always necessary, see for example
The King v. Pulsford(1), La Compagnie De Mayville v.
Whitley(1), and Parker and Cooper Ltd. v. Reading(1); also,
in the present case one of the items in the agenda of both
notices was ” other matters, if any. ” But it is not
necessary to go into that because in this case these members
did in fact attend one or other of the meetings and
expressed their views, not individually, but as members of a
meeting which was considering the matter; and there was
unanimity on both occasions Even on the stricter view taken
in the cases relied on by counsel it is pointed out that
want of due notice can be waived in given circumstances.
Thus, if a person who was not noticed appears at the meeting
and waives the irregularity, the defect is cured; so also
when a person is too far away to be reached in time to
enable him to communicate with the Committee before the
meeting: the sending of a notice is then excused. See Radha
Kishan Jaikihsan v. Municipal Committee, Khandwa(4) and
Young v. Ladies Imperial Club, Lim.(1). The substance is
more important than the form and if there is substantial
compliance with the spirit and substance of the law, we are
not prepared to let an unessential defect in form defeat
what is otherwise a proper and valid resolution. We,
however, confine our
(1) 108 E.R. 1073.
(2) [1896] 1 Ch. 788.
(3) [1926] 1 Ch. 975.
(4) 61 I.A. 125.
(5) 89 L.J.K.B. 563.
890
remarks to the facts of this case where there was actual
appearance without objection at meetings properly convened
and where there was complete unanimity on both occasions.
Whether it would be proper to reach the same conclusion when
there is a dissentient voice we are not prepared to say. In
our opinion, the High Court was wrong in holding that the
two resolutions were invalid. Whatever may be thought about
each taken separately, the defects, if any, are, in our
judgment, cured when the two are read together and regarded
as a whole.
We also think the High Court was wrong on the second point.
The learned Judges rightly hold that in a mandamus petition
the High Court cannot constitute itself into a court of
appeal from the authority against which the appeal is
sought, but having said that they went on to do just what
they said they could not. The learned Judges appeared to
consider that it is not enough to have facts established
from which a leakage can legitimately be inferred by
reasonable minds but that there must in addition be proof of
its quantum and amplitude though they do not indicate what
the yard-stick of measurement should be. That is a pro-
position to which we are not able to assent.
We are not prepared to perpetrate the error into which the
learned High Court Judges permitted themselves to be led and
examine the facts for ourselves as a court of appeal but in
view of the strictures the High Court has made on the Vice-
Chancellor and the syndicate we are compelled to observe
that we do not feel they are justified. The question was
one of urgency and the Vice-Chancellor and the members of
the syndicate were well within their rights in exercising
their discretion in the way they did. It may be that the
matter could have been handled in some other way, as, for
example, in the manner the learned Judges indicate, but it
is not the function of courts of law to substitute their
wisdom and discretion for that of the persons to whose
judgment the matter in question is entrusted by the law.
The University authorities acted honestly as reasonable and
responsible
891
men confronted with an urgent situation are entitled to act.
They had experts of their own on their body. They examined
others who in their opinion, might throw light on the
incident. They themselves compared the two papers and,
after a deliberation of some six hours, arrived at an
unanimous decision and then they reviewed the matter afresh
at a second meeting with the assistance of one of their
number who was not present on the first occasion. It is
inaccurate to describe that as haste and unjust to
characterise their action as unreasonable and lacking due
care. This is decidedly not the sort of case in which a
mandamus8 ought to issue. We accordingly set aside the
order of the High Court.
We now come to the undertaking given on behalf of the Vice-
Chancellor. As we have observed, the syndicate reached the
conclusion that there had been a leakage and so cancelled
the examinations and ordered fresh ones. Had the High Court
not stepped in, those examinations would have been held
nearly two and a half years ago and it is possible that all
the students who were successful then would have passed
again, or at any rate many of them would. But because of
the High Court’s order the examinations could not be held
and the University was virtually directed to regard the
examinations already held and the results already declared
as good. The result has been that the students who passed
have been studying and sitting for examinations in the
higher classes for some two and a half ‘years. If the
status quo which would result from our setting aside of the
High Court’s order were to be resumed it would mean that
those students would be put back to where they were two and
a half years ago and would be compelled to do the courses
which they have already covered all over again. In order to
avoid such injustice we were told at the outset by counsel
on behalf of the Vice-Chancellor that the University did not
want to penalise them and so gave us the following
undertaking drafted by the appellants’ counsel:
” The students who are declared to have passed the first
M.B.B.S. Examination of the Utkal University
892
held in April, 1951, shall be deemed to have duly passed
that examination and shall not be required to appear again
in Anatomy. ”
The appeal is allowed. The High Court’s order is set aside
and the petition for mandamus filed before it is dismissed,
but without costs. There will be no order about costs in
this court either.
Appeal allowed.
Agent for the appellants: Rajinder Narain.
Agent for the respondents Nos. 1-8, 10-16, 18-23 and 25-34:
S. P. Varma.