The Vice-Chancellor, Utkal University and Others vs S. K. Ghosh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 7 of 1952

Decision Date: 15 January, 1954

Coram: Vivian Bose, Mehar Chand Mahajan, B.K. Mukherjea, Ghulam Hasan

In this case the petition was filed by the Vice-Chancellor of Utkal University and other university officials against S K Ghosh and other respondents. The petition was presented on 15 January 1954 before the Supreme Court of India. The judgment was authored by Justice Vivian Bose, with Justices Mehar Chand Mahajan, B K Mukherjea and Ghulam Hasan forming the bench. The matter arose from a mandamus petition under article 226 of the Constitution, seeking to compel the University Syndicate to take steps for publishing examination results after allegations of paper leakage and cancellation of results. The Court noted that the University Syndicate, consisting of twelve members, held two meetings concerning the controversy. Proper notices were sent to all members for each meeting. However, one member was absent from the first meeting and a different member was absent from the second meeting. The agenda of neither meeting expressly listed the subject of paper leakage and result cancellation; instead the agenda contained a heading “other matters, if any”. Despite this, the members present treated the issue as a matter falling under that generic heading and passed resolutions on both occasions by unanimous vote. The High Court had previously held that the lack of proper notice rendered the resolutions invalid and had issued a mandamus directing the Syndicate to publish the results. The Supreme Court examined whether the defect of inadequate notice could be waived. It observed that the two absent members did attend one of the meetings each, expressed their views as part of the collective deliberation, and the resolutions were adopted unanimously. The Court emphasized that substantive compliance with the spirit and purpose of the law outweighs technical irregularities, and that an unessential defect in form should not defeat a resolution that otherwise fulfills the legal requirements. Accordingly, the Court held that when the two resolutions are read together, any individual defect is cured, and the resolutions remain valid. Further, the Court held that a mandamus petition does not empower a High Court to act as an appellate body against the authority whose decision is being challenged. Courts are not to replace the judgment of the university authorities with their own discretion. Consequently, the Court concluded that a mandamus was not appropriate in the present circumstances. The decision referred to earlier authorities such as Radha Kishan Jaikishan v. Municipal Committee, Khandwa and Young v.

The report cites the case of Ladies Imperial Club (89 L.J.K.B. 563). The matter before this Court concerned a civil appeal under the appellate jurisdiction, identified as Civil Appeal No. 7 of 1952. The appeal was entertained by special leave from a judgment and order dated 9 August 1951 and 17 August 1951, rendered by the High Court of Judicature at Orissa in Miscellaneous Judicial Case No. 80 of 1951, together with an order dated 20 August 1951. The same judgment and order also appeared in Supreme Court Appeal No. 15 of 1951 on the file of the High Court. Counsel for the appellants consisted of Dr. Bakshi Tek Chand, assisted by G. C. Mathur and H. Mohapatra. Counsel for respondents numbered 1-8, 10-16, 18-23 and 25-34, and was led by N. C. Chatterjee, assisted by V. S. Sawhney and R. Patnaik. The judgment in this appeal was pronounced on 15 January 1954, and it was delivered by Justice Bose of this Court. The appeal arose from a petition filed by certain students of Utkal University, Odisha, in the Cuttack High Court, seeking a mandamus under Article 226 of the Constitution against the Vice-Chancellor of the University and several other individuals connected with the institution. Because University gave an undertaking before the Court, most practical issues became academic, leaving only two questions of principle for determination, and therefore Court elected not to examine factual matters at length. Accordingly, the Court reserved its decision to the two remaining points of law and declined to pass any further orders on the substantive allegations.

The factual background concerned the first MBBS examination conducted by the University, in which Anatomy formed one of the subjects. The examination was organized into three distinct components: a written theoretical portion scheduled for 9 and 10 April 1951, a practical component slated for 19 April 1951, and a viva-voce examination set for 20 April 1951. On the morning of 9 April, at approximately seven o’clock, a member of the Senate received information that the examination questions had been leaked and was handed a document labeled “hints.” Immediately, that senator distributed copies of the “hints” to three other Senate members: Mr. Justice Jagannadhadas, Mr. Pradhan the Director of Public Instruction, Odisha, and Mr. Lingaraj Misra the Minister for Education. The Vice-Chancellor was not notified at that time, and no further steps were taken, allowing the examination to proceed as originally scheduled. The Vice-Chancellor learned of the alleged leakage on 19 April and promptly directed Lieutenant Colonel Papatla, the Principal of the Medical College, to investigate the matter. Colonel Papatla complied and submitted his report on 20 April, in which he compared the “hints” with the actual question paper and concluded that the similarity justified a finding of a leak. Subsequently, an ordinary meeting of the University Syndicate was convened for 21 April with the purpose of discussing matters unrelated to the examination. Although the leakage issue was not listed on the agenda, the final agenda item allowed for “other matters, if any.” The Vice-Chancellor presided over that meeting, informed the members of the occurrence, and presented a note he had prepared on the morning of 21 April, prior to the commencement of the meeting. The prepared note outlined the circumstances of the alleged leakage and requested the syndicate's consideration of the matter. The note was intended to bring the issue before the syndicate before publishing the examination results. The proceedings of the syndicate meeting were duly recorded in the university's official minutes. The note also reflected the Vice-Chancellor’s request that the syndicate discuss the matter as urgent and important.

After the facts were set out, the note began and concluded with the following request: “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 Board of Examiners had sent a report on the morning of the twenty-first, a short time before the meeting commenced. That report showed that thirty-seven candidates had sat for the examination in question. Of those candidates, twenty-seven passed and ten failed the written part of the examination. The same ten candidates, together with one additional candidate, failed the practical and viva-voce components, making a total of eleven failures. Consequently, eleven out of the thirty-seven candidates failed overall and twenty-six passed. The petition for a writ of mandamus was filed by the twenty-six candidates who had passed and by eight of those who had failed, making a total of thirty-four petitioners. During the syndicate meeting, Lieutenant Colonel Papatla was heard at length, and three other persons were examined: Mr. Bhairab Chandra Mahanty, who had originally supplied the information; Dr. R. K. Mahanty, the internal examiner for the M.B.B.S.; and Dr. I. M. Banerjee, the President of the Board of Examiners. Two syndicate members were anatomy experts, namely Lieutenant Colonel Papatla and Dr. S. N. Acharya, the Civil Surgeon. After careful consideration of the issue for approximately six hours, the members present adopted a resolution stating that, after inquiry, the syndicate was satisfied that there had been a leakage of anatomy questions, that the result of the anatomy examination should be cancelled, and that a fresh examination in the subject should be held commencing on 7 May 1951.

The syndicate comprised twelve members; all were present at the meeting except Mr. Pradhan, the Director of Public Instruction, who was not informed that this matter would be considered. The resolution was passed unanimously by those present. The successful candidates protested against the resolution on the twenty-sixth and asked the syndicate to reconsider its decision. The Vice-Chancellor had already scheduled another syndicate meeting for the twenty-eighth to deal with other matters, and, although the item was again omitted from the agenda, the Vice-Chancellor raised it suo motu as before. At this second meeting, eleven of the twelve members were present; the absent member this time was Dr. M. Mansinha, who had approved the prior resolution. Mr. Pradhan, who had been absent at the first meeting, attended the second meeting. For the second time, the decision was unanimous, and the eleven members present declined to review the earlier resolution. It was acknowledged that Dr. Mansinha, who was absent, was unaware that the question would be revisited. The learned High Court judges held that the lack of notice in both instances rendered the resolutions invalid. They examined the evidence themselves and concluded that, even if the evidence was sufficient to indicate a possibility of some leakage, there was no justification for the syndicate to pass such a drastic resolution without proof of the extent and magnitude of the leakage.

In this case, the Court observed that the allegation of a possible leakage of examination papers did not provide sufficient basis for the syndicate to adopt an extreme measure without evidence of the amount and extent of the leakage. The Court noted that the High Court had found that the syndicate acted unreasonably and without the necessary care. Consequently, the High Court had issued a writ of mandamus ordering the syndicate to take steps to publish the examination results. The Vice-Chancellor and the other respondents appealed this order. The Court recognised that the syndicate’s authority to supervise examinations, to examine the results, to invalidate an examination for legitimate reasons and, where required, to direct a re-examination was not contested. The only matters put forward on appeal were the two points that the High Court had decided against the University. The Court observed that several English authorities had been cited concerning the effect of failing to give notice to even a single member of a body entitled to receive it, notably the Privy Council decision in Radha Kishan Jaikishan v. Municipal Committee, Khandwa (1). The Court expressed that a detailed discussion of the general principle was unnecessary because, in its view, the present dispute was to be decided on its own facts. The Court acknowledged that where a statute imposes a notice requirement, the statutory provision cannot be ignored, and it also suggested that, although it did not investigate the matter exhaustively, a non-statutory body whose constitution mandates notice should not relax that rule. The Court explained that the reason for the stricter rule in the cited cases is that an incorporated body such as a university is a legal entity without a living mind or voice; it can express its will only through formally adopted resolutions and can act in its corporate capacity only by resolutions that have been properly considered, carried and recorded according to its constitution. If the rules of the body require that such resolutions be moved and passed at a meeting convened for that purpose, then every member entitled to participate in that meeting must receive notice so that he may attend and voice his opinion. The Court further held that separate individual approvals cannot be treated as equivalent to the approval of a duly convened meeting because the incorporated body is distinct from the individuals who compose it. Accordingly, an omission to give appropriate notice even to one member in the circumstances described would invalidate the meeting and consequently invalidate any resolutions alleged to have been passed there. However, the Court clarified that this strict approach applies only when the constitution imposes an inflexible rule. A different position emerges where, by custom, by the nature of the body, or by its constitution and rules, greater flexibility is permitted. Each case, as noted in 61 I.A. 125, must be decided on its own facts, and no universal rule can be imposed; it is also possible that within the same body, different matters may be subject to varying degrees of procedural strictness.

In the case, the Court observed that routine matters may be handled with less formality than more significant issues, and that the appropriate level of formality depended on the character of the corporate body and its governing rules. The factual record showed that two separate meetings had been convened. Proper notice of each meeting had been sent to every member, including the two individuals who were absent. The only irregularity identified was that the specific question under consideration had not been placed on the agenda of either meeting. The Court noted that it was unnecessary to determine whether agenda inclusion was an absolute requirement, because English authorities, such as The King v. Pulsford(1), La Compagnie De Mayville v. Whitley(1) and Parker and Cooper Ltd. v. Reading(1), held that agenda placement was not always mandatory. Moreover, the notices for both meetings contained a general item described as “other matters, if any.” The Court further explained that this point required no detailed discussion, since the members in question had actually attended one of the meetings, had expressed their views not as individuals but as part of the assembled body, and had done so unanimously on both occasions. Even under the stricter approach advocated in the cases cited by counsel, the Court pointed out that a failure to give proper notice could be waived in certain circumstances. For example, if a person who had not received notice nonetheless attended the meeting and waived the defect, the irregularity was cured; likewise, when a person could not be reached in time because of great distance, the obligation to serve notice was excused. The Court cited Radha Kishan Jaikihsan v. Municipal Committee, Khandwa(4) and Young v. Ladies Imperial Club, Lim.(1) as authorities supporting this principle.

The Court emphasized that the substance of a proceeding outweighed its form, and that when there was substantial compliance with the spirit and purpose of the law, an inconsequential procedural flaw should not defeat a otherwise valid resolution. Accordingly, the Court confined its remarks to the present facts, where members had appeared without objection at properly convened meetings and had expressed complete unanimity on both occasions. The Court refrained from opining on whether the same conclusion would be appropriate where a dissenting voice was present. In its view, the High Court had erred in declaring the two resolutions invalid. While each resolution might be examined individually, the Court held that any defects, if they existed, were remedied when the two resolutions were read together as a single whole. The Court also concluded that the High Court was incorrect on a second point: although the learned judges correctly stated that a mandamus petition does not permit the High Court to act as an appellate body reviewing the authority against which the appeal was sought, the judges subsequently acted in a manner inconsistent with that limitation.

The Court observed that the lower judges seemed to think that merely establishing facts from which a leakage could be inferred by a reasonable mind was insufficient; they insisted that the parties must also prove the amount and extent of the leakage, yet they did not specify what standard of measurement should be applied. The Court could not agree with that position. It declined to repeat the mistake it believed the High Court judges had made by re-examining the facts as a court of appeal. In light of the restrictions that the High Court imposed on the Vice-Chancellor and the syndicate, the Court felt that those restrictions were not justified. The matter was one of urgency, and the Vice-Chancellor together with the syndicate members were well within their authority to exercise discretion in the manner they chose. While the Court recognised that the issue might have been dealt with in another way, for example in the manner suggested by the learned judges, it held that it is not the role of the courts to replace the judgment and discretion of those to whom the law has entrusted decision-making authority. The University officials acted honestly and as reasonable, responsible persons faced with an urgent situation, and they were therefore entitled to act. They consulted experts on their own staff and also examined other individuals whom they believed could shed light on the incident. After comparing the two examination papers, they deliberated for approximately six hours and reached a unanimous conclusion. They then reconvened at a second meeting, this time with the assistance of a member who had not attended the first session, to review the matter anew. The Court found it inaccurate to describe this process as hurried, nor was it proper to characterize their actions as unreasonable or lacking due care. Accordingly, the Court held that this case was not one in which a writ of mandamus should be issued, and it set aside the order of the High Court. Turning to the undertaking offered on behalf of the Vice-Chancellor, the Court noted that the syndicate had concluded that a leakage had occurred, cancelled the original examinations and ordered fresh ones. Had the High Court not intervened, those examinations would have taken place almost two and a half years earlier, and it is possible that all the students who had then succeeded would have passed again, or at least many of them would have. Because of the High Court’s intervention, the examinations could not be held and the University was virtually compelled to accept the earlier examinations and the results that had already been declared as valid. Consequently, the students who had passed continued to study and sit for examinations in higher classes for roughly two and a half years. If the status quo that would follow from setting aside the High Court’s order were to be restored, the situation would revert to that which existed two and a half years ago.

The Court observed that reinstating the order of the High Court would have the practical consequence of returning the students to the academic position they had occupied two and a half years earlier. Such a reversal would oblige those students to repeat the courses and examinations that they had already completed and for which they had received credit. Recognising that this result would constitute an injustice, the Court noted that, at the outset of the proceedings, counsel appearing on behalf of the Vice-Chancellor informed the Court that the University did not wish to penalise the affected students. To prevent the contemplated unfairness, the University, through its counsel, provided an undertaking that had been drafted by the appellants’ counsel. The undertaking said: “The students who are declared to have passed the first M.B.B.S. Examination of the Utkal University held in April, 1951, shall be deemed to have duly passed that examination and shall not be required to appear again in Anatomy.” The Court recorded this undertaking as a clear expression of the University’s intention to protect the academic progress already achieved by the students. The Court accepted that this undertaking effectively fixed the status of the examination results and removed any need for the University to conduct fresh examinations for the subject of Anatomy.

The Court then proceeded to dispose of the appeal. It held that the appeal should be allowed and that the order of the High Court was to be set aside. Accordingly, the petition for mandamus that had been filed before the High Court was dismissed. In reaching this conclusion, the Court considered that the undertaking provided by the University adequately addressed the concerns raised by the petitioners and obviated the need for the University to conduct fresh examinations. Consequently, there was no justification for continuing the mandamus proceeding. Regarding the question of costs, the Court observed that neither party should be burdened with costs in this matter and expressly declined to make any cost award. The final operative portion of the order therefore read that the appeal was allowed, the High Court’s order was set aside, the mandamus petition dismissed, and no costs were awarded. The agents representing the parties were recorded as follows: the agent for the appellants was Rajinder Narain, and the agent for the respondents numbered 1-8, 10-16, 18-23 and 25-34 was S. P. Varma.