U.P. Vs. Ramona Perhar  INSC 447
(2 September 1994)
M.N.(Cj) Venkatachalliah, M.N.(Cj) Jeevan Reddy, B.P. (J)
1995 AIR 241 1994 SCC (6) 1 JT 1994 (5) 632 1994 SCALE (3)955
Leave granted. Heard counsel for both the parties.
appeal is preferred against the judgment of a learned Single Judge of the
Allahabad High Court allowing the writ petition filed by the respondent.
respondent obtained admission in a private medical college in Karnataka (J.J.M. Medical College, Devangere) in July 1990. The said
college is said to be recognised by the Indian Medical Council. Sometime, in
early 1992, the respondent applied to the Government of Uttar Pradesh for
transferring her to the medical college at Allahabad. This request was rejected following the policy enunciated by the
Government of Uttar Pradesh that no one from outside the State shall be
permitted to be transferred to a medical college within the State. Thereupon
the respondent approached the 3 High Court of Allahabad by way of the present writ petition.
On 2-4-1992, it appears' the learned Standing Counsel for the
State of Uttar Pradesh was asked to obtain instructions in
the matter. Within five days, i.e., on 7-4-1992, the writ petition came up again
for orders before S.C. Verma, J.
learned Judge observed that though the learned Standing Counsel was asked to
obtain instructions, he has neither filed a counter-affidavit nor has obtained
any specific instructions to oppose the writ petition. The learned Judge
granted him three more weeks to file a counter-affidavit and at the same time
made the following direction:
3 is directed to provisionally admit the petitioner to second professional MBBS
course. The petitioner may be allowed to presume (pursue?) her studies in the
said course. The result of the examination shall not be declared until further
orders of this Court.
provisional admission is required to be made on 5 per cent vacancies in
accordance with the provisions of Regulations framed under the Indian Medical
order speaks for itself. To expect the Standing Counsel to obtain instructions
in the matter within five days was really not practicable nor was the matter of
such urgency that it could not wait for three more weeks which was granted to
the learned Standing Counsel on that date to file the counter affidavit. The
learned Judge has not even indicated prima facie that the policy of the Uttar
Pradesh Government not to permit transfer of students from outside the State is
bad and, if so, why? Assuming that such a transfer is permissible, the question
would arise, who among all the applicants is more deserving. No effort was made
by the learned Judge to find out whether there are any other students similarly
placed who may be seeking such transfer and who among them is more deserving or
more meritorious, as the case may be. A mandatory interim order, which had the
consequence of displacing the student from a private college in Karnataka to a
government college in Allahabad was passed as a matter of routine.
This Court has emphasised in several decisions that passing of interim orders
more particularly of a mandatory nature like the present one is neither a
matter of course nor a matter of charity. The power to grant interim orders is
coupled with the duty to consider all the relevant facts and legal principles
relevant in that behalf. Admissions to educational institutions should not be
granted by interim orders at any rate, not without fully hearing the
writ petition ultimately came up before V Bahuguna, J. on 12-11-1992. The writ
petition was allowed under a short order which reads thus:
learned counsel for the parties. The State Government allowed the transfer of
the petitioner, consequently the Principal passed an order on 13-8-1992
admitting the petitioner in MLN Medical College, for the second professional
course of MBBS. This order of State Government has been passed in subsequent to
the order of this Court 4 dated 7-4-1992. This Court has permitted a
provisional admission to the petitioner with the right to appear in the
examination. As the State Government has permitted the petitioner to pursue her
studies in aforesaid course in the college and she also appeared in aforesaid
examination her result shall be declared under the aforesaid observations.
writ petition is disposed of. " A reading of the order shows that the main
reason for allowing the writ petition is the permission granted by the State Government
to the respondent (writ petitioner) to pursue her studies in the Allahabad college. The learned Judge has
himself recognised that the said order of the Government was passed
"subsequent to the order of this Court dated 7-4-1992". In other words, the learned Judge was conscious of
the fact that the said order of the Government was in obedience to the
aforesaid interim orders of the High Court and yet such permission was made the
basis for allowing the writ petition. In this order too, there is no reference
to the Government's policy. Nor was any effort made to find out how many others
have applied for such transfer and who among them is more deserving. Again the
matter appears to have been dealt with as a matter of course without reference
to the relevant legal principles governing the power of judicial review vested
in High Court by Article 226 of the Constitution.
view of the above, it is not possible to sustain either of the orders
aforesaid. Both the orders are accordingly set aside.
Sunil Gupta, learned counsel for the respondent submitted that the respondent
was admitted in Allahabad college as far back as April 1992, that she is about
to complete her course and that it would not be just and proper to disturb her
at this stage. We are not impressed by this plea. The respondent has invited
the said orders and she has to take the consequences flowing from their
invalidation. Be that as it may, similar matters are being heard by the
Allahabad High Court now and it is but proper that this matter too is remitted
to the High Court for an appropriate decision on merits in accordance with law.
appeal is allowed with costs. The High Court shall dispose of the writ petition
in accordance with law.
costs assessed at Rs 5000 consolidated.