Ku. Nilofar Insaf Vs. State of Madhya Pradesh & Ors  INSC 178 (8 August 1991)
S. Rangnathan, S. Fathima Beevi, M. (J) Ojha, N.D.
1991 AIR 1872 1991 SCR (3) 429 1991 SCC (4) 279 JT 1991 (3) 433 1991 SCALE
College, admission to M.D. Course in Radiology--Validity of--Rules for transfer
of students from other medical colleges to Madhya Pradesh Medical
College--Validity of order of transfer and its relevance/assailment.
appellant and Dr. Jain, respondent No. 4, completed their M.B.B.S. course in
the years 1983-87. from Gandhi Medical College, Bhopal. While Dr. Jain had been admitted into that course in the
Gandhi Medical College, Bhopal after he had passed the entrance test, the
appellant first sought admission to M.B.B.S. course in the M.S. Ramayya Medical
College, Bangalore, after paying the capitation fee and after completing the
first year of the course in that Col- lege she got herself transferred in 1984
to the Gandhi Medical College, Bhopal, with the approval of the State
Government and with no objection from the Ramayya College, Bangalore. After
passing M.B.B.S. both of them cleared their internship of one year and also
joined a house job in Radiology in the same college and completed the same in
August 1989. Both of them then applied for a single seat in the Master's Degree
(M.D.) course in Radiology at Gandhi Medical College, Bhopal. The appellant having secured
higher marks got admission to this seat in preference to Dr. Jain.
Jain, thereupon, challenged the admission of the appellant by means of a writ
petition before the High Court on the ground inter alia that the transfer of
the appellant from the Bangalore Medical College to the Bhopal Medical College
was itself invalid and since the very admission of the appellant to the
M.B.B.S. course degree in the Bhopal College was invalid, she could not at all
have been considered for admission to the M.D. course which was available only
to the institutional candidates. The High Court allowed the writ petition,
quashed the admission of the appellant and directed that Dr. Jain, be admitted
to that seat. Hence this appeal by the appellant.
the appeal, this Court,
The validity of an order for transfer may be chal- lenged 430 contemperaneonsly
by a third party whose claim for admission or transfer is superseded by such
order but cannot be al- lowed to be challenged by a third party because he
finds, in retrospect, at a future point of time, that it has affected his
interests as a result of subsequent events. [437E] The order of the State of Madhya Pradesh permitting the transfer of the
appellant cannot be struck down as void.
has been some irregularity hut, in the circumstances in which it was passed, it
was one within the competence of the State Government. [437F] There is the need
to avoid disturbing settled issues which affect the life and career of an
individual after a lapse of time or after the interposition of further events,
as a result of which he has rightly developed a sense of security. [441B] In
the instant case, the merit list of 1989 is nothing but a reproduction of the
merit list of 1988 confined to a narrower group of students of the same hatch.
The latter did show the appellant to have obtained more marks than Dr. Jain
and, in this sense, was adverse to his interests. The omis- sion of Dr. Jain to
challenge the correctness of the list then lulled the appellant into a sense of
security that the merit list was acceptable to all. Dr. Jain, should therefore
be barred, on equitable consideration from challenging the order of merit at
the present stage. [441G]
APPELLATE JURISDICTION: Civil Appeal No. 3447 of 1990.
the Judgment and Order dated 26.4.1990 of the Madhya Pradesh High Court in
Misc. Petition No. 4059 of 1989.
Sachar, Vijay Gupta, Vivek Gambhir, S.K. Gamb- hir and Surinder Karnail for the
S.S. Khanduja and S.K. Agnihotri for the Respondents.
Judgment of the Court was delivered by RANGANATHAN, J. Getting an admission
into a professional course has become so difficult and competitive of late that
litigation instituted by disappointed candidates has become a regular feature.
This appeal, arising out of such a context, throws up for consideration certain
aspects which call for a difficult exercise in balancing equities. We,
therefore, proceed to discuss the facts and issues at some length.
appellant Dr. Ku. Nilolaf Insaf and respondent no. 4, Dr. Devraj Jain, were
competitors for a single seat in the Master's Degree (M.D.) course in Radiology
at Gandhi Medical College, Bhopal. The appellant got admission to this seat in preference to
Dr. Jain because she had obtained average marks of 59.60 per cent in the
examinations of the M.B.B.S. course whereas Dr. Jain had obtained only 58.50
per cent. Dr. Jain successfully challenged the admission granted to the
appellant in preference to himself in a writ petition in the Madhya Pradesh
High Court. Dr. Insaf, who has for- feited her admission in consequence of the
judgment of the High Court, has filed the present appeal.
order to appreciate the circumstances in which the admission granted to the
appellant was quashed by the High Court, though she had admittedly got a higher
percentage of marks than Dr. Jain, it is necessary to set out a few fur- ther
facts. Dr. Jain and Dr. Insaf both completed their M.B.B.S. course in the years
1983-87. However, while Dr. Jain had been admitted into and completed that
course in the Gandhi Medical College, Bhopal, the appellant had initially joined her M.B.B.S. course in
the M.S. Ramayya Medical College, Bangalore, wrote the first examination and complet-
ed the first year of the M.B.B.S. course there. Thereafter, in August 1984, she
made an application for her transfer to the Gandhi Medical College, Bhopal. Her request was granted by the Gandhi Medical College with the approval of the State of Madhya Pradesh and with "no objection"
from the Ramayya Medical College. Thereafter she sat in the second
and third examinations pertaining to the MBBS degree along with Dr. Jain and
completed her MBBS course along with Dr. Jain in 1987 from the Gandhi Medical College, Bhopal. Thereafter, both of them cleared their internship of one
year and also joined a house job in Radiology in the same college and completed
the same in August 1989. It was at this stage that both of them applied for
being admitted to the M.D. course with the result already set out.
already mentioned, it is not in dispute that, if the total number of marks obtained
by the two contestants in all the examinations of the M.B.B.S. degree are taken
and re- duced to an "effective" percentage and a common maximum as
per the rules, Dr. Nilofar does get a higher percentage of marks than the
respondent. In fact, we 432 find from the papers filed before us that another
candidate, Dr. Km. Indu Fotedar, had obtained a percentage of 59.04 which was
also higher than the percentage obtained by Dr. Jain. However, she is no longer
in the race for a seat in M.D. (Radiology) as she appears to have joined the
M.D. course in medicine that was offered to her. Thus it was that the Radiology
seat went to Dr. Insaf.
Jain's challenge to the admission granted to the appellant cannot be a direct
one as the latter had clearly secured higher percentage of marks than himself
in the M.B.B.S. examinations. He, therefore, attacks her candida- ture for the
M.D. course on other grounds which may be described as collateral or indirect.
According to him, the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and he urges
that, since the very admission of the appellant to the M.B.B.S. degree in the Bhopal College was invalid, she could not at all have been considered for
admission to the M.D. course which was available only to the institutional candi-
dates. The grounds on which the transfer of the appellant from Bangalore to Bhopal is challenged by Dr. Jain are:--
The appellant had appeared in the pre- medical test for admission to medical
colleges in Madhya Pradesh. It is not known whether she passed the test or did
not get a sufficiently high rank but the fact is that she did not get admission
in any of the medical colleges in Madhya Pradesh. To overcome this difficulty,
she joined the Bangalore Medical College (the admission to which did not
perhaps require qualification in a pre-medical examination) by paying a
capitation fee. She has thus circum- vented the requirement of a pre-medical
test by getting admitted first at Bangalore and then getting a transfer to Bhopal;
According to the rules, no transfer of a candidate to a medical college in
Madhya Pradesh was permissible to students of medical colleges outside the
State who had secured admission in a college after paying a capita- tion fee,
development fee or 'donation in any form. As the appellant had obtained
admission in the Bangalore college by paying a capita- tion fee, her
application for transfer to the Bhopal Medical College could not and ought not
to have been entertained;
The rules also require, where a person makes an application for a transfer to a
medical college in Madhya Pradesh, that the application should state the
grounds on which he got admission 433 in a medical college of another State and
whether he had appeared for a pre-medical test or similar examination of. that
State. The appellant's application for transfer did not contain any reference
to this crucial aspect which was fundamental to a valid transfer to the college
in Madhya Pradesh;
Even assuming that the transfer itself was not bad, a comparison between the
marks ob- tained by the appellant and those obtained by the respondent was not
a fair or proper one.
appellant had appeared for one examination at Bangalore and two examinations at Bhopal whereas Dr. Jain had appeared for all the three examinations at Bhopal/At Bangalore, for the first year,
the appellant had three papers whereas in the Bhopal college there were only two papers in the first year.
Having regard to the disparity in the syllabus, the subjects for the
examination, the standards of valua- tion and quality of teaching the
comparison between himself and the appellant was not valid. If at all a
comparison had to be made, it should have been made by excluding the marks got
by both in the first examination and taking into account Only the marks
obtained by them in the other two examinations which were common to both.
above contentions found favour with the High Court quashed the admission of the
appellant and directed Dr. Jain to be admitted to that seat. Hence the present
opinion, contentions (a) and (d) cannot stand by themselves and rest, for their
validity, on contentions (b) and (c). While it is true that the appellant does
not appear to have qualified in the premedical test for admission to colleges
in Madhya Pradesh, it cannot be said that she has circumvented the rules by
first getting admitted to the Bangalore college and then seeking a transfer to
course, if permissible under the rules, was unobjec- tionable. So also, the
last contention by itself has no force. It is well-known that, in these
competitive days, students are not able to get admission, in the first in-
stance, in an institution at their own place and have, very often, to seek admission
elsewhere initially and then try to get a transfer back. This is also envisaged
by the rules which permit the transfer of a student only after the first year
course is completed. In such cases, if a valid transfer is made, the position
is as if the candidate has completed the course in the second place and the
rules (the validity of which are not in issue) permit a comparison of the aver-
age of marks obtained by the candidates in all the examina- tions after
reducing them as a 434 percentage of a uniform maximum. There can, therefore,
be no doubt that such transfers and comparisons can be valid and permissible.
The real question, therefore, is whether there has been a valid transfer on the
facts of the present case.
annexure has been filed before us-it was also before the High Court-which
purports to set out the "rules for transfer of the students from other
medical colleges to Madhya Pradesh State medical colleges". Though the
High Court and the parties before it proceeded on the basis that these were
"rules" governing transfer, there has been some controversy before us
on this to which we shall advert later. The following rules are relevant for
our present purpose:
applications from students for transfer from Medical Colleges outside the State
and studying in 1st M.B.B.S. (Pre-Clinical block) will not be considered.
Applications of those candidates who have cleared the 1st M.B.B.S. examination
of the university in Anatomy & Physiology (including Biochemistry) and are
studying in higher classes will be considered provided the Col- lege in which
he was studying was a Medical Council of India approved College.
Applications of only those will be consid- ered who satisfy the following
conditions in accordance with the premedical examination rules of Madhya
minimum qualification for ap- pearing in the pre-medical examination at the
time of admission.
a bona fide resident of Madhya Pradesh as per rules of Pre-medical Examination
within the prescribed age limit as per rules of Premedical Examination of
Madhya Pradesh at the time of admission.
would consider relaxation of rules in respect of those candidates who are
married to a Government Servant employed in the Madhya Pradesh State.
Applications of those candidates for trans- fer from 435 Medical Colleges
outside the State will not be considered who have secured admission in a
College after paying capitation, development fee or donation in any form.
Application should also state the grounds on which he got admission in a Medical College of another State and whether he had appeared for pre-
medical test or similar examination of that State.
appellant will submit a 'No Objec- tion' Certificate of the concerned Medical College and the University where he was study- ing before his
The applicant will submit his applications with all the required information
first to the Dean, Medical College where he wants to be transferred and the application will
then be routed through the Chairman, Pre-Medical Examination Board to
Government for final orders.
basis of these rules, the objec- tions to the transfer raised on behalf of Dr.
Jain may now be considered:
submission was made that the Bangalore
college is not an approved medical college (vide rule 2 above) but this is not substanti-
ated. The document relied upon in support of this contention is only a list of
medical colleges in India published by the Health Ministry of
the Central Government. There is no mention in it that only these colleges and
none else have been approved by the All India Medical Council. Also, the list
does not bear a date. It appears to be an old one and does not refer to any
college recognised after 1979. There is nothing to show that the Banga- lore
medical college was established before that. That apart, it appears that the Banga-
lore college is affiliated to the Bangalore University, and there is no reason to believe
that it was not an approved medical college.
The objection that the transfer is bad because the appellant had not qualified
in a pre-medical test, conducted either in Madhya Pradesh or in Bangalore, does not appear to be well
founded. While the rules no doubt contain a reference to premedical tests,
rules 3, 5 and 13 make it clear that the passing of a pre-medical test is not a
pre-requisite for a transfer. No doubt rule 4 requires that the application for
transfer should say whether the applicant had appeared for a pre-medical or
similar 436 test in the State from which a transfer is sought. The omission of
the appellant in the present case to mention this in her applica- tion may be a
defect but, in the absence of any clear rule to the effect that a pass in a
pre-medical test is an essential condition for transfer, it cannot be treated
as a vital defect vitiating the transfer.
There is, however, force in the contention that the transfer in the present
case was violative of the first part of rule 4. This clearly precludes the
consideration of an application for transfer from a person who had gained
admission to a medical college on payment of a capitation fee, development fee
or donation. Neither the appellant nor the State contradicted Dr. Jain's
averment in the writ petition that the appellant had secured admission in the Bangalore college only on the basis of such
payment. There is, therefore, an infringement of rule 4-atleast in part-and we
shall proceed to consider the effect of the same. But before we proceed to do
so, we should like to digress a little to make some general observations.
the facts stated earlier, it is not clear how, in the face of the specific
provisions contained in the rules, the appellant's transfer was considered and
sanctioned, particularly when the application had to be scrutinised by a number
of authorities: the Bhopal medical college, the Chairman of the Pre-medical
Board referred to in rule 13, the University of Bhopal and the State
Government. It is difficult to believe that they were not conscious that the
limitations imposed by the rules operated in this case. The application of the
appellant (a copy of which has been placed before us) contained a bare and
simple request for transfer and nothing more and the authorities did not even
care to call for the details required under the rules before taking a decision.
The respondent has alleged that this was done by reason of the influence
exerted by the appellant's father but this is not substantiated. All that has
been brought out is that the appellant is a resident of Bhopal and her father is a doctor practising
at Bhopal. In the circumstances we think that
the authorities must have acted bona fide on considerations of sympathy
towards, and the hardship of, the appellant in pursuing her course of study for
a number of years at distant Bangalore.
They must have thought that their decision would only help the appellant and
harm no one. But the facts of the present case show how even well-meant
decisions, which seem innocuous at the time they are taken, can rebound in the
long run and affect the interests of others in manner that could not have been
even conceived of earlier. It is, 437 therefore, necessary to emphasise that,
in matters of this type, the authorities should carefully and strictly apply
the relevant rules.
reverting to the question as to the impact of this infringement of the rules on
the situation in the present case, Sri Sachar, appearing for the appellant,
puts forward two aspects for consideration. In the first place, he sub- mits
that the rules relied upon for the respondent are merely internal guidelines or
instructions not having the force of law and that a deviation therefrom here or
there would not affect the validity of the order accepting the application for
transfer. Sri Sachar may be right in saying this but unfortunately, both
parties and the High Court have proceeded on the basis that there were
"rules" i.e. some instruments having statutory force. No material has
been placed before us either to support or repel this assumption and so we will
not be justified in treating them to be otherwise. However, we think that, even
if they are viewed as "rules" they should not be treated as rigid,
inflexible and mandatory, having in mind the context and purpose in which they
are made. These are rules setting out circum- stances in which the application
for transfer will be grant- ed and deal with a matter primarily concerning the
applicant and the authorities.
validity of an order for transfer may be challenged contemporaneously by a
third party whose claim for admission or transfer is superseded by such order
but cannot be al- lowed to be challenged by a third party because he finds, in
retrospect, at a future point of time, that it has affected his interests as a
result of subsequent events. We would, therefore, hold that the order of the
State of Madhya Pra- desh permitting the transfer of the
appellant cannot be struck down as void. There has been some irregularity but,
in the circumstances in which it was passed, it was one within the competence
of the State Government.
second answer, furnished on behalf of the appellant to Dr. Jain's challenge is
that Dr. Jain was aware, even as early as 1987, that in the order of merit of
M.B.B.S. candi- dates the appellant ranked higher than the respondent. Apart
from the fact that this was just a matter of arithmetic, an "order of
merit" had indeed been published by the University at the time the medical
graduates of 1987 were being consid- ered for house-jobs. Reference is made in
this context to a chart entitled "Merit list for the selection of House Offi-
cers, Gandhi Medical College, Bhopal, for the year 1988" placed at p. 68
of the paper book before us- This list is incomplete but it contains the names,
in order of merit, of 58 students who had completed M.B.B.S. in 1987 438 who
had, apparently, applied for house jobs in the college.
sets out their aggregate marks in the M.B.B.S. examina- tions with certain
adjustments and also the effective per- centage thereof. The appellant's
percentage is shown as 59.60 and his rank as 37; Dr. Indu Fotedar is at 44 with
a percentage of 59.04; and Dr. Jain is no. 49 with a percent- age of 58.50 Sri Sachar
invites our attention to the "Rules for Postgraduation (M.D./M.S. course)
in clinical, para clinical and nonclinical disciplines, in medical colleges in
Madhya Pradesh". These rules provide a scheme whereby
marks obtained by candidates in the M.B.B.S. examina- tions (sometimes at
different colleges and universities which have different maxima for the
examinations) are to be standardised to a common maximum;
by giving certain penalty marks (for example, where a candidate has made extra
attempts in any examination) and bonus marks (where he has some special
distinctions in academics or extra curricular activities: for example,
distinction in a subject or National Cadet Corps certificates); and
the "effective marks" and their percentage. The process of selection
of merit candidates for the post gradu- ate course is outlined in rules 8.1 to
8.3. They read thus:
Merit candidates in clinical subjects shall be selected from out of those who
are completing their house jobs within that ca- lender year.
Candidates under 8.1 shall be selected by the Dean of the Medical College, strictly on the basis of merit from amongst the students
passing from that college, on the recommenda- tion of the college and Hospital
Council or the P.G. Committee of the college.
The merit list of candidates under 8.1 and
would be prepared by each Dean of the College every year and notified on the
College Notice Board. Any objection or representation received within 10 days
of notification would be considered by the Dean of the College who shall make
modifications, if necessary, after placing the objection or representation
before the College and Hospital Council or P.G. Committee." On the
strength of these rules, Sri Sachar contends that the respondent, not having
preferred objections to the merit list referred to earlier, is now estopped
from challenging the merit list.
find that there is a good deal of confusion about the relevant facts in this
regard. In the High Court, the re- spondent's case was that he had duly filed
his objections to the merit list of 1989 in July 1989 and well within time.
list that is relied upon by him is a list published by the Dean which bears the
heading "Particulars of the candi- dates who have applied for registration
in M.D. Radiology for the year 1989" placed at page 49 of the paper book.
It contains 9 names (including Drs. Insaf, Jain and Fotedar) and the details of
their period of study and internship. The last two columns are headed
"Effective Marks" and "Effective Percentage". They are not,
however, arranged in order of merit but are arranged on a different basis. The
first four names are of candidates who had applied for the M.D. course in
Radiology, whereas the others had applied also for admis- sion to M.D. courses
in other subjects. It is on the basis of this list apparently, that the
selections were made and, in his petition for special leave before us, the
appellant also admitted this position. Sri Sachar, however, contends, that the
earlier list produced by him (p. 68) is the merit list referred to in the rules
and not this one which does not even purport to be a "merit list".
merit list of 1988 (p. 68) was clearly one prepared in the context of selection
for house jobs in 1988. The rules regulating admissions for that purpose have
not been placed before us. We can only guess from the contents and columns in
the list that they apparently run on the same lines as the rules for admission
for M.D. If this be treated as the merit list referred to in rule 8.3, of the
relevant rules, Dr. Jain is clearly precluded from challenging it after one
year. But rule 8.3 refers to merit list for selec- tion of candidates for the
diploma course being published every year. None of the parties including the
college au- thorities have been able to clarify whether (apart from the list at
p. 49 of the paper book) any "merit list" for the year 1989 in
respect of admission to M.D. courses, on the pattern of the list at p. 68, had
at all been published by the Dean of the college. In this context, we should'
point out that the list earlier published (p. 68) contained all the relevant
details for preparation of such a merit list.
is nothing before us to show that the procedure for adjustment, standardisation
and averaging were not the same for preparing a merit list for selection of
house officers as for the selection of candidates to the M.D. courses outlined
in rule 8.5 (and this appears to be so from the adjustment columns in the list
at p. 68). The only differ- ence is that this list is restricted only to the
nine candi- dates seeking admission to the M.D. course in radiology.
having regard to the small number of applicants for the course in question, the
prepared a short list containing the relevant extracts regarding effective
marks and percentage from the earlier list--without calling it a merit
list--and made the selec- tions. In the circumstances, we think that there can
be no practical or legal difficulty in treating the list at p. 49 as the
relevant merit list for the present purpose. Learned counsel for Dr. Jain is,
therefore, correct in saying that, in this view, he could and did lodge his
objections within the time specified in rule 8.3 and he cannot be precluded
from contesting the correctness or validity of the list on the grounds of
delay. On strictly legal considerations, therefore, the respondent cannot be
shut out from raising his objections at this stage.
it seems to us, questions of this nature cannot be decided on considerations of
pure law. Granting that it is open to Dr. Jain to challenge the merit list, one
has to examine whether there are any limits to the scope of such challenge on
grounds, if not of law, of justice and equity.
course, he can challenge the correctness of the order of merit, he can
challenge any errors in the marks taken into account or the adjustments made
thereto, and he can even challenge the eligibility of any of the candidates for
consideration. But there are abvious limitations to such challenge. For
example, it would seem difficult to say that one can challenge the correctness
of the marks that one of the other candidates has obtained in the examinations
and call for the revaluation of some or all of his papers or to permit a
contention that one of the candidates has not been properly awarded the
M.B.B.S. degree and that, therefore, his application should be ignored. Their
having obtained the marks noted in the list or a degree of a university or
secured a transfer are actual events that have happened.
may have been some irregularity at some earlier stage but it does not go to the
root of the matter so as to render the qualification void abinitio capable of
being ignored, without anything more, at any time for any purpose. The position
may be different where a person is claiming under a bogus degree. The appellant
has obtained the degree after a regular course; the only grievance is that she
should not have been permitted to do part of it in a particular col- lege. The
legality or validity of such qualifications must be directly challenged and got
set aside in independent proceedings. To permit a collateral attack on them in
other proceedings, as here, will be beset with problems and com- plications of
a far-reaching magnitude. For obvious reasons, limitations have to be imposed
on the grounds available for such challenge. The need for such circumspection
will be better appreciated if another situation of a similar nature is
considered. Suppose the competition between the two present contestants had
arisen, 441 not, as it has, just two years after the M.B.B.S. degree, but, say,
fifteen years later, when they both apply for a post in a hospital or
Government open to M.B.B.S. graduates.
that situation, it should be contended for Dr. Jain that the appellant cannot
be considered for the post because her transfer to the Bhopal medical college
was bad and, consequently, that the M.B.B.S degree obtained by her was not
valid, we think the answer to the contention must pat- ently be in the
negative. The need to avoid disturbing settled issues which affect the life and
career of an indi- vidual after a lapse of time or after the interposition of
further events, as a result of which he has rightly de- veloped a sense of
security, has been emphasised by this Court in Mudgal v. Singh,  4 S.C.C.
53 1 relying on the earlier decisions in Makashi v. Menon,  2 SCR 69 and
Malcolm Lawrence Cecil D'Souza v. Union,  Supp SCR 409. What should be a
reasonable period beyond which, or the intervening developments because of
which, such challenge cannot be permitted must depend on the facts and circum-
stances of each case.
present case, there are valid considerations why Dr. Jain should not be allowed
to challenge the merit list at this point of time. We have referred earlier to
the plea of Dr. Jain that he has challenged the merit list of 1989 within the
period of time mentioned in the rules. Technical- ly, he is right, as we have
already held. But if we look at the position more closely, we find that the
precedence of the appellant over Dr. Jain crystallised as soon as the M.B.B.S.
results were published. We do not know whether any merit list of the results of
the examination were published or not at that time but it cannot be that Dr.
Jain was not aware that the appellant had got higher percentage of marks than
himself. At any rate, this became clear when the merit list was published for
the house jobs in August 1988. It is true that the place accorded to the
appellant in that list did not prejudice Dr. Jain in his selection for the
house job. Still, the rules of the university make it clear that the aggregate
and average marks in the M.B.B.S. course would also be material for admission
to the M.D. course. The merit list of 1989 is nothing but a reproduction of the
merit list of 1988 confined to a narrower group of students of the same batch.
The latter did show the appellant to have obtained more marks than Dr. Jain
and, in this sense, was adverse to his interests. The omission of Dr. Jain to
challenge the correctness of the list then lulled the appellant into a sense of
security that the merit list was acceptable to all.
therefore, think that Dr. Jain should be barred, on equitable considerations,
from challenging the order of merit at the present stage.
important consideration which prevents us from giving 442 any relief to Dr.
Jain--even if we accept all his conten- tions-is this. The M.D. course,
admission to which is the bone of controversy, started in August 1989 and is
coming to a close shortly. Though the appellant lost in the High Court, she was
permitted by this Court--though, obviously, subject to the result of this
appeal--to continue attending the classes for M.D. in Radiology. Now she has
almost com- pleted her course and, to deprive her of her seat at this stage,
apart from irretrievably harming her, will not bene- fit Dr. Jain who cannot
now be admitted against the M.D. seat of 1989. This again is a development
which militates against the grant of any relief to Dr. Jain.
we conclude, we should like to touch upon one more aspect. The course of events
narrated above will show that Dr. Jain has been the victim, partly, of a lapse
on the part of the medical college authorities in properly applying the rules
governing transfer and, partly, of courts' delay in disposing of his writ
petition and the present appeal. In the course of the hearing, therefore, we
were tempted to consider whether we should give some relief to Dr. Jain by
directing the authorities to consider his case for admission to the M.D. course
atleast this year. On careful thought, however, we find it difficult to make
any specific direc- tions or recommendations for a number of reasons. In the
first place, we are told that Dr. Jain has, in the meantime, undergone and
completed a diploma course in Radiology and, in terms of a rule recently
promulgated, is not eligible to apply for the M.D. course for another three
years, even if he is interested to do so. Secondly, as noted already, the rules
permit admission in M.D. in any year only to candi- dates who have finished
their house jobs in that year and, Dr. Jain having completed his house job in
1989, may not be eligible to be considered for admission this year. Thirdly, if
any direction of the above nature is given by us, it will operate to the
prejudice of some other candidate who is eligible for admission to that course
in the normal course.
it would not also have been possible for us-even if we had come to the
conclusion that Dr. Jain and not the appellant should have been admitted in
1989--to direct the University to carry forward that vacancy and grant him
admission to it now. We therefore refrain from giving any directions to the
authorities in the matter as had been mooted in the course of the hearing.
the reasons above mentioned, we have come to the conclusion that the appeal
should be allowed and the appel- lant's admission to the M.D. Radiology course
1989-91 should be upheld. We direct accordingly. No costs.