State of
Uttar Pradesh & Ors Vs. Dr. Anupam Gupta
[1992] INSC 47 (13
February 1992)
Ramaswamy,
K. Ramaswamy, K. Reddy, K. Jayachandra (J)
CITATION:
1992 AIR 932 1992 SCR (1) 643 1993 SCC Supl. (1) 594 JT 1992 (4) 422 1992 SCALE
(1)332
ACT:
Professional
Colleges-Admission to.
U.P.
Universities Act, 1973: Section 28(5) & G.O. 4215 dated August 22, 1989-Admission-Medical courses-PG Diploma- 50% marks at
entrance examination-Condition precedent.
Practice
& Procedure Professional Colleges-Admission-Vacancies of seats-No ground
for High Court to direct admission of students.
HEAD NOTE:
Section
28(5) of the U.P. Universities Act, 1973, as amended by the Amendment Act of
1980, which came into force from January 1, 1979 empowered the State Government
necessary with retrospective effect, to regulate by a notification, the
admission to medical and engineering colleges as well as to courses of
instructions and the number of students therein.
Exercising
power under section 28(5) G.O. 4215 dated August 22, 1989 was issued by the State Government
to enforce junior residency/senior residency and dental residency scheme in all
Government Allopathic Medical Colleges and affiliated degree colleges and hospitals prescribing
the eligibility for selection/examination and fixation of seats of various
degrees and diploma courses therein. The procedure for selection of the
candidates for the scheme was prescribed by clause 3 and sub-clause (e) thereof
provided that residents be selected departmentwise in the colleges under the
said scheme and registration shall take place on the basis of merit-cum-option,
merit being ascertained on the basis of 50% of marks obtained in the
competitive examination and 50% of the total marks obtained in M.B.B.S.
examination. This scheme was further amended by a notification No. 8390 dated October 9, 1990.
In the
Press Note issued inviting application for the entrance ex- 644 amination of
the year 1990, no mention was made that the candidate shall secure the minimum
50% of the marks in the entrance examination to be held on May 27, 1990. But,
however, in the subsequent press note issued before holding of the examination
on September 30, 1990, it was stated that as per G.O. No. 1259 dated February
20, 1990, the eligibility criteria for admission to the postgraduate courses
shall be for general candidates a minimum of 50% marks and for the candidates
of the reserved category (Scheduled Castes and Scheduled Tribes) a minimum of
40% marks secured at P.G. M.E.E. Candidates belonging to SC/ST shall also be
given weightage of 1.65 % of the maximum marks of the competitive entrance
examination (i.e.50 marks) for ranking them in the merit lists for admission to
the postgraduate course.
The
respondents in the appeals had completed their internship. They appeared for
the Post Graduate Medical Entrance Examination on September 30, 1990 for admission into the postgraduate degree and diploma
courses in specialities. The respondents were denied admission in the
post-graduate course due to their failure to secure the minimum 50% qualifying
marks in the Entrance Examinations.
They
filed writ petitions in the High Court assailing the denial thereof, as
offending Articles 14,15<1> and 29(2) of the Constitution. The High Court
allowed the writ petition and directed the State Government to grant admission
in the Allahabad and Agra Medical Colleges in the Gynaecology and Obsterics degree courses to which
they had given their options. The High court upheld the validity of the
prescription of 50% of the minimum marks as eligibility criteria. But on the
finding that there are vacant seats available for admission, directed those
seats to be given to the respondents.
The
State filed the appeals in this Court. On behalf of the respondents it was
contended that the initial press note inviting applications for the entrances
examination did not say that 50% minimum marks in the entrance examination as a
condition for admission into the postgraduation, and therefore denial of
admission for non-securing 50% cut off in entrance examination was illegal.
On
behalf of the State it was contended that this contention was not raised before
the High Court, and should be disallowed. It was further contended that the
course started from October
30, 1990 and in terms
of 645 the orders of this Court it would be deemed to have been commenced from May 2, 1990, the directions given in the impugned judgments for
admission after more than a year, were illegal.
Allowing
the appeals, this Court,
HELD :
1. Though the first press note omitted, before conducting examination the
second press note specifically stated that securing minimum of 50% of the marks
in the entrance examination was a condition as eligibility for admission. What
paragraph 3(e) of the first notification postulates in the computation of 50%
of the marks secured in the entrance examination and 50% of the marks secured
at the M.B.B.S. qualifying examination to determine the eligibility for
admission i.e. 50% total and also in the order of merit among the candidates
that appeared in the examination. The letter dated February 20, 1990 does not appear to have been published in the gazette.
[654C-D]
2.
Undoubtedly, the letter dated February 20, 1990
and the prescription of qualifications laid down therein are not notified in
terms of Section 28(5) of the Act. So they may be considered to be
administrative instructions. The second press note, in pursuance of which the
entrance examinations were conducted, did mention them, which came into force
from August 1, 1987. [654G-H]
3. It
is settled law that administrative instructions would fill in the yawning gaps
in the statutory rules.
[654H]
4. The
statutory rules in paragraph 8(f) of the notification dated October 9, 1990
which was given retrospective effect from August 1, 1987 envisages 50% cut off
marks, Para 3(e) of first notification dated August 22, 1989 merely provides
the procedure for calculating the marks to determine the inter-se order of
merit among all the candidates and nothing more. The instructions issued in the
letter dated February
20, 1990, therefore
amplifies prescribing the eligibility criteria among the candidates who have
taken entrance examination. The prescription of the minimum of 50% marks as
eligibility criteria would be applicable to the respondents. [654H; 655A-B]
5. The
instructions dated February
20, 1990 are legal,
valid and they would supplement the statutory rules. The candidates who
fulfilled that 646 qualification alone would become eligible for admission.
[655C]
6. The
prescription of 40% to SCs and STs candidates obviously was done under Articles
14, 15(1) and (4) and 46 together with 1.65% of total entrance marks i.e. 50 as
weightage to them as a measure of social justice to accord them equality of
opportunity of admission in post-graduate courses. It is neither a source, nor
an analogy to fall back upon or to rely, as wrongly applied by the High Court, as
a criteria to select general candidates that secured below 50% of the marks.
[655D-E]
7.
Securing 50% marks at the entrance examination is one of the conditions
precedent to become eligible for admission into the postgraduate degree and
diploma courses.
[655E-F]
8.
Admission after more than a year, is illegal. To maintain excellence in the
academic courses, the delay defeats the claim for admission, though posts are
vacant.
[655H]
9.
Exercise of equity jurisdiction and prescription of minimum cut off are
mutually incompatible and counter productive. It would frustrate the
excellence. [656D]
10. To
maintain excellence the course have to be commenced on schedule and to be
completed within the schedule, so that the students would have full opportunity
to study full course to meet their excellence and come at par excellence.
Admission in the midstream would disturb the courses and also works as handicap
to the candidates themselves to achieve excellence. Considering from this
pragmatic point of view vacancies of the seats would not be taken as a ground
to give admission and directions by the High Court to admit the candidates into
those vacant seats cannot be sustained. [656E-F] Pradeep Jain & Ors. v. Union of India & Ors., [1984] 3 SCC 654; Dr.Dinesh
Kumar & Ors. v. Motilal Nehru Medical College, Allahabad & Ors., [1987] 4 SCC 459; Dr. Ajay Kumar Agarwal
& Ors., v. State of U.P. & Ors., [1991] 1 SCC 636;
Dr. Ambesh
Kumar v. Principal, LLRM Medical College, Meerut & Ors., AIR 1988 SC
1812, referred to. & CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
782-83 and 781 of 1992.
647
From the Judgment and Order dated 24.8.1991 and 26.8.1991 of the Allahabad High
Court in W.P. Nos. 2970 and 3893 of 1991 and C.M.W.P. No. 11812 of 1991.
Yogeshwar
Prasad and R.B. Misra for the Appellants.
Satish
Chandra, Atul Sharma, E.C. Agrawala, Ananat Palli, Ms. Rina Aggarwal, Ms. P. Kak,
Rajiv Dhawan and Ms. Kamini Jaiswal for the Respondents.
The
Judgment of the Court was delivered by K. RAMASWAMY, J. Special leave granted.
As
common questions of facts and law arise for decision, these appeals are
disposed of by a common judgment. Dr. Anupam Gupta, Dr. (Km.) Renu Agarwal and
Dr. Sanjay Agarwal passed their M.B.B.S. course and also completed internship.
The first two appeared for the Post Graduate Medical Entrance Examination
(P.G.M.E.E.) held by Lucknow University on September
30, 1990 for admission
into postgraduate degree and diploma courses in specialities.
Dr.
Sanjay Agarwal had appeared for the year 1991. Dr. Anupam Gupta secured in his
qualifying M.B.B.S. examination 61.8% and 41.6% in Entrance examination. Dr.
(Km.) Renu Agarwal secured 65% in the M.B.B.S. qualifying examination and 49.1%
in Entrance examination. Dr. Sanjay Agarwal secured 53.60 in qualifying
M.B.B.S. examination and 46.6% in Entrance examination. They were denied
admission in postgraduate courses due to their failure to secure minimum 50%
qualifying marks in the Entrance examination. Assailing the denial thereof,
offending Articles 14, 15(1) and 29(2) of the Constitution they filed the writ
petitions. In the case of first two Doctors, by a common judgment dated August 24, 1991, the High Court allowed the writ
petitions and directed to give them admission in Allahabad and Agra Medical College in the Gynaecology and Obstristics
degree course to which they had given their options. The High Court upheld the
validity of the prescription of 50% of the minimum marks as eligibility
criteria. But on the finding that there are two vacant seats available for
admission, directed those seats be given them.
Following
this ratio Dr. Sanjay Agarwal was directed to be admitted in the Post Graduate
Degree Course in Anesthesia in Gorakhpur Medical College in his writ petition. The State filed the appeals against
these judgments.
648
[Section 28(5) of the U.P. Universities Act 10 of 1973, as amended by the Act
15 of 1980, the later came into force from January 1, 1979,] for short `the
Act' provides that:
"Notwithstanding
anything contained in any other provisions of this Act, admission to medical
and engineering colleges and to course of instruction for degrees in education
of Ayurvedic and Unani Systems of medicine (including the number of students to
be admitted), shall be regulated by such orders (which if necessary may be with
retrospective effect, but not effective prior to January 1, 1979) as the State
Government may, by notification, make in that behalf:
Provided
that no order regulating admissions under this sub-section shall be
inconsistent with the rights of miniorities in the matter of establishing and
administering educational institutions of their choice." The non-obstenti
clause diffuses the effect of any inconsistent law in the Act and empowers the
State Govt., if necessary with retrospective effect, to regulate by a
notification, the admission to medical and engineering colleges as well as to
courses of instructions and the number of students therein.
In
exercise of the power under Sub-S. 5 of S. 28, G.O. 4215 dated August 22, 1989
was issued by the State Govt. to enforce junior residency/senior residency and
dental residency scheme in all Govt. Allopathic Medical Colleges and affiliated degree colleges and
hospitals prescribing the eligibility for selection/examination and fixation of
seats of various degrees and diploma courses therein. Clause 3 prescibes the
procedure for selection of the candidates for the aforesaid scheme. Clause 3
(e) is relevant which reads thus:
"The
residents shall be selected departmentwise in the colleges under the said
scheme and their registration shall take place on the basis of
merit-cum-option. The merit shall be ascertained on the basis of 50% of marks
obtained in the competitive examination and 50% of the total marks obtained in
M.B.B.S examination (50:50)." 649 The competitive examination shall start
with new batch for 75% seats in the institutions and the eligibility criteria
was prescribed in paragraph 4. The details whereof are not relevant for the
purpose of this case. This was further amended by a notification No. 8390 dated
October 9, 1990. It was stated therein that rulings
of this court;
rules
of Indian Medical Council and the recommendation of the Committee constituted to
reform P.G. Education/Training in All Govt. Allopathic Medical Colleges and Dental College of the State necessitated to prescribe the procedure for
fixation of the seats in various degrees and diploma course eligibility and the
marks. The scheme came into effect from August 1, 1987. In Paragraph 8 (f) it
has been stated that the residents shall be selected departmentwise in the
colleges under such scheme and the registration shall take place on the basis
of merit-cum-option. The merit shall be ascertained on the basis of the marks
obtained in the "competitive examination". The minimum qualifications
for admission were prescribed in clause (g), the details of which are not
material for the purpose of this case. In the Press Note issued inviting
applications for the entrance examination of the year 1990, no mention was made
that the candidate shall secure the minimum 50% of the marks in the entrance
examination to be held on May 27, 1990. But, however, in the subsequent press
note issued obviously before holding of the examination on September 30, 1990,
it was stated that as per G.O. No. 1259(it is only a letter) dated February 20,
1990, the eligibility criteria for admission to the above postgraduate courses
shall be for general candidates a minimum of 50% marks and for the candidates
of the reserved category (Scheduled Castes and Scheduled Tribes) a minimum of
40% marks secured at P.G.M.E.E. Candidates belonging to SC/ST shall also be
given weightage of 1.65% of the maximum marks of the competitive entrance examination,
(i.e. 50 marks) for ranking them in the merit list for admission to the
postgraduate courses.
Therein
it was further stated that:
"1.
For admission to postgraduate courses, the competitive examination shall be organised
on the pattern of All India Institute of Medical Science or University College
of Medical Science.
2.
This examination shall have 100% objective type questions. The eligibility
criteria for admission to postgraduate courses shall be 50% minimum qualifying
marks for candidates of general category and 40% minimum qualifying marks for
can- 650 didates of reserved categories (SC/ST).
3.
Candidates belonging to scheduled caste and scheduled tribe shall be given an
additional weightage of 1.65% of the total marks.
4.
This examination shall be held in the month of April 1990 on one and the same
day for all the medical colleges but with different sets of question papers.
For institutional seats of colleges, candidates of the same college shall be
eligible.
5.
Candidates who shall be completing their internship by December 1990 shall be
eligible to appear in this examination." It is, thus, clear that the Govt.
by statutory notifications dated August 20, 1989 and October 9, 1990 prescribed
entrance examination and prescription of 50% marks therein as a criteria for
admission into P.G. degree and diploma courses in medicine and in the later
notification 50% as a condition precedent. In the letter dated Feb. 20, 1990
prescribed as minimum 50% to the general candidates and 40% to SCs/STs together
with weightage of 1.65% of the maximum marks i.e. 50 in total.
In Pradeep
Jain & Ors. v. Union of India & Ors., [1984] 3 SCC 654. This court laid
emphasis for admission of the candidates into medical colleges on merit to meet
excellence in the medical services thus :
"Anyone
anywhere, humble or high, agrestic or urban, man or woman, whatever be his
language or religion, place of birth or residence, is entitled to be afforded
equal chance for admission to any secular educational course for cultural
growth, training facility, speciality or employment. It would run counter to
the basic principle of equality before the law and equal protection of the law
if a citizen by reason of his residence in State A, which ordinarily in the
commonality of cases, would be the result of his birth in a place situate
within that State, should have opportunity for education or advancement which
is denied to another citizen because he happens to be resident in State B. It
is axiomatic that talent is not the monopoly of the residents of any particular
State;
it is
more or less evenly distributed and given proper opportunity and environment,
651 everyone has a prospect of rising to the peak.
What
is necessary is equality of opportunity and that cannot be made dependent upon
where a citizen resides. If every citizen is afforded equal opportunity,
genetically and environmentally, to develop his potential, he will be able in
his own way to manifest his faculties fully leading to all round improvement in
excellence. The philosophy and pragmatism of universal excellence through
equality of opportunity for education and advancement across the nation in part
of our founding faith and constitutional creed. The effort must, therefore,
always be to select the best and most meritorious students for admission to
technical institutions and medical colleges by providing equal opportunity to
all citizens in the country and no citizen can legitimately, without serious
detriment to the unity and integrity of the nation, be regarded as an outsider
in our constitutional set-up. Moreover, it would be against national interest
to admit in medical colleges or other institutions giving instruction in specialities,
less meritorious students when more meritorious students are available, simply
because the former are permanent residents or residents for a certain number of
years in the State while the latter are not, though both categories are
citizens of India. Exclusion of more meritorious students on the ground that
they are not resident within the State would be likely to promote substandard
candidates and bring about fall in medical competence, injurious in the long
run to the very region. "It is no blessing to inflict quacks and medical
midgets on people by wholesale sacrifice of talent at the threshold.
Nor
can the very best be rejected from admission because that will be a national
loss and the interests of no region can be higher than those of the
nation." The primary consideration in selection of candidates for
admission to the medical colleges must, therefore, be merit. The object of any
rules which admissions to the medical colleges must be to secure the best and
most meritorious students." "In Dr. Dinesh Kumar & Ors. v. Motilal
Nehru Medical College, Allahabad & Ors., [1937] 4 SCC 459 at page 462
paragraph 6 this court laid time table for conducting entrance examination in
P.G. courses for All 652 India Quota of 25%. The court held thus :
"What
remains now to be dealt with is the finalisation of Programme relating to the
selection examination. As already decided the selection examination shall be
conducted by the All India Institute of Medical Sciences, New Delhi. The
announcement for holding of the selection examination shall be made on October
1 of every year and a full four weeks' time would be made available to
candidates for making their applications. After the applications are received
not later than six weeks from October 1, the same would be scrutinised and duly
processed and admit cards would be issued. Examination shall be held on the
second Sunday of January. The result of the examination shall be announced
within four weeks from holding of the examination. Admission shall commence two
weeks after the declaration of results. The last date for taking admission
shall be six weeks from the date of the announcement of results but the Head of
every institution shall be entitled to condone delay up to seven days for
reasons shown and grounds recorded in special cases. The courses of study shall
commence in every institution providing such study throughout the country from
May 2. Notification announcing examination, publication of results and
allotment of place of admission (keeping preference in view and our directions
regarding preference of candidates) shall be published in two successive issues
of one national paper in English having large circulation in every State and at
least in two local papers in the language of the State as quickly as
possible."
In Dr.
Ajay Kumar Agarwal & Ors. v. State of U.P. & Ors., [1991] 1 SCC 636
while approving the procedure laid down in Dr. Dinesh Kumar's case this court
held that technicality in the issuance of the notification and non- compliance
of statutory notificaiton in terms of s.28(5) of the Act would not stand in the
way, stating thus, "There may be some force in the submission of the
learned counsel, but we do not think in the present facts and setting of events
and in particular for meeting the problem which has arisen we need approve a
technical stand. "In paragraph 11 this court further stated, "It is
not disputed that in U.P. the prevailing practice was 50% test for allowing
postgraduate studies to Doctors with M.B.B.S.
653 qualification.......
We are of the view that it is in general interest that the 50% cut off base as
has been adopted should be sustained. "It is, therefore, clear that
technicality of non-compliance of s.28(5) in issuing the letter dated February
20, 1990 was nailed past and approved the prescription of 50% cut off minimum
marks as eligibility for admission into P.G. course in medicine for 1990,
though plausible to countenance the contention appeared to be of securing 50%
in qualifying examinations in M.B.B.S. course. But the fact is that U.P. Govt.,
in fact, conducted entrance examination in 1990 and adopted 50% cut off as minimum
marks.
In Dr.
Ambesh Kumar v. Principal, LLRM Medical College, Meerut & Ors., [1987] 1 SCR 661 this court upheld the
Government's power under Art. 162 and held that where the number of seats for
admission to various postgraduate courses both degree and diploma are limited
and large number of candidates undoubtedly apply for admission to those courses
of study, an order laying down qualifications for candidates to be eligible for
being considered for selection for admission to the said courses on the basis
of merit specified by regulation cannot be said to be in conflict with the
regulations of All India Medical Council Act. It does not encroach upon the
standard prescribed by the statutory regulations. Laying down further
qualifications of eligibility promotes and farthers the standard in the
institutions. Thus it could be seen that this court consistently laid down the
criteria for conducting entrance examination to the postgraduate degree and
diploma courses in Medicine and the best among the talented candidates would be
eligible for admission. 50% cut off marks was also held to be valid to achieve
excellence in postgraduate speciality. Accordingly we uphold the prescription
of 50% cut off marks to general candidates and 40% to SCs and STs together with
1.65% weightage of total marks i.e. 50 marks in total in entrance examination
as constitutional and valid.
Dr. Rajiv
Dhavan and Sri Satish Chandra, learned senior counsel for the Doctors, in
fairness, also did not dispute that prescription of 50% minimum marks as
eligibility criteria to seek admission into the postgraduate courses to be in
any way arbitrary. However, Dr. Dhawan contended that the initial press note
inviting applications for the entrance examination did not say that 50% minimum
marks in the entrance examination as a condition for admission into the postgraduation.
G.O. 4215 only mentions 50% of qualifying M.B.B.S. marks and not 50% in
entrance as 654 eligibility. Therefore, denial of admission for non- securing
50% cut off in entrance examination is illegal.
The
doctrine of promissory estoppel was also pressed into service. It is further
contended that the Doctors satisfied the criteria laid in G.O. 4215. The High
Court's order was justified on this base. Shri Yogeshwar Prasad, learned senior
counsel for the State countered that this contention was not raised in the High
Court and for the first time it cannot be raised. We find no force in the
contention of the State. Though it was never raised, nor argued, since it is a
pure question of law arises from record, it can be gone into. But on careful
consideration of the record, we find no force in the Doctor's contention.
Though the first press note omitted, before conducting examination the second
press note specifically stated that securing minimum of 50% of the marks in the
entrance examination was a condition as eligibility for admission. What
paragraph 3(e) of the first notification postulates is the computation of 50%
of the marks secured in the entrance examination of 50% of the marks secured at
the M.B.B.S. qualifying examination to determine the eligibility for admission
i.e. 50% total and also in the order of merit among the candidates that
appeared in the examination. The letter dated Feb. 20, 1990 does not appear to
have been published in the gazette. We refrain to give acceptance to the
respondent's contentions, as was laid in Dr. Sanjay Kumar's case, for the
scheme and procedure laid by this court was adopted to have uniformity of
institutional 75% candidates too. The technicality would not be permitted to
outweigh the salutory scheme in the larger public interest. The contention of Shri
Satish Chandra that merit-cum-option is the criteria and no criteria to
determine 50% of the minimum marks was prescribed in paragraph 8(f) of the second
G.O. therefore, procedure prescribed in paragraph 3(e) of the first G.O. 4215
should be followed and in calculating the candidates securing 50% cut off the
marks would be eligible for admission is also devoid of force. The second G.O.
expressly mentions that 50% minimum in entrance examination is a must for
admission in postgraduate courses.
Undoubtedly,
the letter dated February 20, 1990 and the prescription of qualification laid
down therein are not notified in terms of s.28(5) of the Act. So they may be
considered to be administrative instructions. The second press note, in
pursuance of which the entrance examinations were conducted, did mention them,
which came into force from August 1, 1987. It is settled law that
administrative instructions would fill in the yawning gaps in the statutory
rules. The statutory rules in 655 paragraph 8(f) of the notification dated Oct.
9, 1990 which was given retrospective effect from August 1, 1987 envisages 50%
cut off marks. Para 3(e) of first notification dated August 22, 1989 merely
provides the procedure for calculating the marks to determine the inter-se
order of merit among all the candidates and nothing more. The instructions
issued in the letter dated February 20, 1990, therefore amplifies prescribing
the eligibility criteria among the candidates who have taken entrance
examination.
The
prescription of the minimum of 50% marks as eligibility criteria would be
applicable to the respondents. Fairly, the respondents had not disputed before
us that the instructions in the letter dated Feb. 20, 1990 were issued much
earlier to the date of holding of the examination and as notified in the second
press note. Therefore, the instruction dated Feb. 20, 1990 are legal, valid and
they would supplement the statutory rules. We hold that the candidates who
fulfilled that qualification alone would become eligible for admission. The
learned counsel in fairness conceded that the prescription of minimum marks is
valid. The prescription of 40% to SCs and STs candidates obviously was done
under Arts. 14, 15 (1) and (4) and 46 together with 1.65% of total entrance
marks i.e. 50 as weightage to them as a measure of social justice to accord
them equality of opportunity of admission in postgraduate courses. It is
neither a source, nor an analogy to fall back upon or to rely, as wrongly
applied by the High Court, as a criteria to select general candidates that
secured below 50% of the marks.
Accordingly
we hold that securing 50% marks at the entrance examination is one of the
conditions precedent to become eligible for admission into the postgraduate
degree and diploma courses. This is also consistent with the view expressed by
this court in Dr. Ajay Kumar Agarwal's case.
In the
view we refrain to go into whether there actually exist vacant seats (if need
be we would decide/get decided and suitable directions would follow).
It is
next contended by Sri Yogeshwar Prasad that the courses were started from
October 30, 1990 and in terms of the orders of this court it shall be deemed to
have been commenced from May 2, 1990, the direction as given in the impugned judgements
for admission after more than a year, is illegal. To maintain excellence in the
academic courses, the delay defeats the claim for admission, though posts are
vacant. In Pramod Kumar Joshi v. Medical Council of India, Writ Petition No.
1154 of 1990 dated February 656 19, 1991 this court held that the course for
the year 1991 is almost completed and it would be proper to allow admission
belatedly. In Dr. Subodh Nautial v. State of U.P., (Writ Petition No. 1215 of
1990 dated January 10, 1991) there is a delay of four months in giving
admission, and this court held that, "even according to Mr. Pandey the
course has started in September for the session. This is technical course and
to admit a student four months after the commencement would not at all be
correct." Dr. Dhawan placed reliance on Jeevak Almast v. Union of India
& Ors., AIR 1988 SC 1812 wherein there was flux in selection of the
candidates for M.B.B.S. course on all India basis and large number of vacancies
left unfilled. Under these circumstances this court, instead of allowing them
to go waste, directed to maintain A list and B list and the direction was given
to admit the candidates in A list who secured on merit and thereafter to admit
in the order of merit from less meritorious candidates in the B list. That
peculiar situation would not help to the respondents herein in postgraduate specialised
courses. That was for M.B.B.S. course arose in the peculiar situation and does
not afford as a precedent. Exercise of equity jurisdiction and prescription of
minimum cut of are mutually incompatible and counter productive. It would frustrated
the excellence.
Considering
from this point of view, to maintain excellence the courses have to be
commenced on schedule and to be completed within the schedule, so that the
students would have full opportunity to study full course to reach their
excellence and come at par excellence. Admission in the midstream would disturb
the courses and also works as handicap to the candidates themselves to achieve
excellence.
Considering
from this pragmatic point of view we are of the considered opinion that
vacancies of the seats would not be taken as a ground to give admission and
direction by the High Court to admit the candidates into those vacant seats
cannot be sustained.
Accordingly,
the appeals are allowed and writ petitions stand dismissed, but in the
circumstances without costs.
S.B.
Appeals allowed.
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