Anamika Saraf vs University of Jammu

M.Ramakrishna, CJ

Anamika Saraf, the appellant, who was the petitioner in OWP No: 769/1994 has come up in appeal against the order of the learned Single

Judge dismissing the above petition on 9.12.1994 for the reasons set out in the said order.

We have heard learned counsel for the appellant and perused the grounds taken in the appeal. A few facts which are relevant for purposes of

disposal of this appeal are as follows:

It is now brought to the notice of the Court that there are only two colleges imparting knowledge of law in the State of Jammu and Kashmir, and

there had been so much rush for the admission of the students intending to enter into law college. There are no other private institutions in this area

to cater the needs of such students as we find in other States.

The petitioner's grievance before the learned Single Judge was that admittedly the cut off points for the admission to the current year 199495 for

purposes of L.L.B course was 1007, regard being had to the marks obtained by the candidates during the marks in the academic course of degree

examination qualifying themselves for becoming eligible for admission to Law College. That being so, the University of Jammu denied the seat to

the petitioner. Erroneously though respondents 4&5 in the writ petition, who have secured the marks as 919 and 947, have been selected in the

University even though the petitioner has secured 961 marks in the Degree examination. The petitioner have secured higher marks than

respondents 4&5 in the academic course of Degree examination, she was denied a seat in the College. Another ground to seek for the relief before

the learned Single Judge was that there was a precedent of this court in W.P. No.696/1994 wherein the learned Single Judge of this court by an

order made on 19.10.1994 directed that the petitioner therein may be admitted provisionally until the order of injunction granted by the civil court

was vacated . These are the two grounds urged and reiterated before us in the appeal.

The argument advanced by the learned counsel for the appellant is that when the petitioner was found to be a person having secured higher

marks than the marks secured by respondents 4&5, the petitioner could not have been denied the seat in the Law College. Similarly the petitioner

in SWP No. 696/1994 has secured lesser marks than the marks secured by the appellant herein, had been allowed to continue by virtue of the

order of this Court. Therefore, it is a fit case for granting relief in favour of the appellant.

We do not think that there is any merit in this appeal and we intend to dispose it of holding that no notice is required to be issued to the opposite

party, for the following reasons.

At the outset it is seen that by a perusal of the order made by the learned Single Judge dismissing the writ petition on 9.12.1994, the order under

appeal, it is clear that the University having discovered the mistake committed by them in having allowed admission to respondents 4&5, who have

secured lesser marks than the marks secured by the petitionerappellant, immediately action was taken by them to cancel their admission. In this

behalf it is significant to note that for the arguments advanced before the learned Single Judge and reiterated before us, is that by virtue of a suit

having been filed by certain persons in the Civil Court in Jammu, the learned civil court having entertained the suit granted exparte injunction

directing the respondents to permit the plaintiff to continue the studies in the college. Based upon such order of injunction, the authorities had to

continue despite cancellation of their admission; Therefore, we will have to see whether the University could act upon such order of injunction

granted by a civil court in exercise of powers conferred by 0.39 R 1&2 CPC. We are dearly of the view that regard being had to the jurisdiction

conferred upon the civil court, the civil court ought to have seen whether it was competent to entertain such suit for granting injunction dealing with

the admission of candidates into the Colleges.

To ascertain the power and functioning, including the jurisdiction of the civil court, we shall extract the provisions of Section 9 of the CPC. It

reads:

Courts to try all civil suits unless barred. The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil

nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I. A suit in which the right to property or to an

office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on ther decision of questions as to religious rites or

ceremonies.

Explanation II. For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Expl. I or whether

or not such office is attached to a particular place.

In the light of the said provisions of section 9 extracted above, we will have to see whether the civil court has the jurisdiction to try all suits of civil

nature, whether it can take cognizance of all such suits? Indeed the provisions of section 9 clearly lay down that the civil court shall take cognizance

of such suits which are not expressly or impliedly barred. Therefore, we will have to find out as to whether a suit dealing with selection of

candidates to law college, whether such selection can be dealt with by entertaining a suit of the type, whether the civil court has jurisdiction to go

into the question and to grant injunction? The Hon'ble Supreme Court had the occasion to deal with these questions in Dhulabhai etc. vs. State of

Madhya Pradesh and another, AIR 1969 S.C: 78. Dealing with the exclusion of jurisdiction of civil courts, as found in section 9 of the CPC, the

Supreme Court held: ""The following principles regarding exclusion of jurisdiction of Civil Court may be laid down:

1) Where the statute gives a finality to the order of the special tribunals the civil courts jurisdiction must be held to be excluded if there is adequate

remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the

particular Act have not been complied with or the statutory tribunals have not acted in conformity with the fundamental principles of judicial

procedure.

2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the

sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes

necessary and the resuit of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or liability and

provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by

the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not;

3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High

Court cannot go into that question on a revision or reference from the decision of the Tribunals;

4) Where a provisions already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of

certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy

to replace a suit.

5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if

the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the

particular Act must be examined because it is a relevant enquiry,

7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply: Case Law discussed.

Admittedly the selection of candidates to fill up the seats in the Law college is to be made by a Committee constituted by the University

concerned. It is not in dispute that sofar as the Jammu is concerned, the University of Jammu has similar provision, in the University Act is found in

any other Universities. Indeed it is also not in dispute that the selection in the instant case of the candidates was made by a Committee consisting of

experts constituting the committee. Therefore, the question is whether a selection of a candidate made by such expert committee constituted for

that purpose, could be called in question in a civil suit. The learned counsel appearing for the 1st respondent or the second respondent, Head of

the Department of Faculty of Law, have not been able to produce the statute governing the committee of selections and the selections made by

them, but it is common place that all such selections are made by the expert committee with a view to fill the vacancies or the seats available in the

Law College. This is so in respect of selection of candidates for Medical College, Engineering College and other professional college. That being

so, the question is whether such selections could be called in question in a civil suit? Whether civil court is competent to grant an order of injunction

directing the University of Jammu to admit a person by virtue of such order of injunction granted temporarily.

Normally, the statutes governing the selection of candidates for the colleges, specifically professional colleges, a provision would be there

providing that either the selection made by such committee is final, or going one foot further and saying that such selection shall not be called in

question in any court of law. Since in the absence of a copy of the statute governing the selection at present, we have not been able to lay our hand

on such provision either expressly or impliedly barring a civil suit in a civil court. Be that as it may, where there is an express bar of the jurisdiction

of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant

but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and she scheme

of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to

see if the statute creates a special right and liability and provide for the determination of the right or liability and further to be found out that whether

the question about the said right and liability could be determined by a civil suit in a civil court. Indeed such court will also find out as to whether

any remedy is normally associated with actions of civil courts are prescribed by such Statutes or not as laid down by the Supreme Court.

In matters of this kind, the civil courts must be slow in acting upon the allegations made by the plaintiff and to entertain such suits for grant of

temporary injunctions. It is desirable that in the event of the court not able to determine the sufficiency of the remedies provided by the Statute or

not, the notice may be issued to the respondents defendants to enable them to appear and to provide necessary materials to the court. That is one

way of looking at it. The other way is that the plaintiff must be able to establish a prima facie case that such suits are not expressly or impliedly

barred.

It is seen in certain cases that some of the learned Munsiffs and learned Sub Judges having entertained such suits, granted injunction orders not

applying their minds as to the jurisdiction of such courts and the statute governing the selection of the candidates in such cases.

In the event of the Statute providing a bar of jurisdiction of civil court, the only remedy for an aggrieved person is to approach the court in a

petition under Art. 226 of the Constitution of India. We may observe that in a matter of selection made by the expert committee even the High

Court hardly interferes in the matter of such selection. In a recent decision in Dalpat Aba Saheb Solunke etc. etc Vs. Dr. B.S. Mahajan etc. etc.

(AIR 1990 S.C: 434), the Supreme court had to lay down the following law: Dealing with the decision by a selection committee on comparative

merit of candidate by it and regard being had to the discretion of the court to be exercised under Art. 226 of the Constitution, and powers of the

court in General, the Supreme Court laid down:

It is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the

candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the

expertise on the subject. The decision of the selection committee can be interfered with only on limited grounds, such as illegality or patent material

irregularity in the constitution of the committee or its procedure vitiating the selection, or proved malafides affecting the selection etc. It is not

disputed that in the instant case the University had constituted the Committee in due compliance with the relevant statutes. The Committee

consisted of experts and it selected the candidates after going through all the relevant materials before it. Therefore setting aside the selection on the

ground of the so called comparative merits of the candidates, as assessed by the Court while sitting in appeal over selection so made would not be

permissible.

Again the Patna High court had the occasion to deal with a similar suit brought before a civil court seeking relief in respect of a seat in the

College by way of selection, in the Director Indian School of Mines and ors. Vs. Sripat Singh and others (AIR 1975 Patna: 11). Justice Untwalia

Chief Justice as he then was, who later became Judge of the Supreme Court, dealing with section 9 of the CPC read with 0.39 R.2 held as

follows:

The plaintiffs alongwith many others were required to appear at the viva voce test. They did appear. According to the case of the school

authorises, they were found fit at the interview test for being admitted in the Indian School of Mines. In such a situation, I am of the opinion that the

Civil Court hardly got any jurisdiction to interfere with the order of the school authorities in refusing to admit the plaintiffs. Their order right or

wrongcould not be said to be without jurisdiction or a nullity so as to clothe the Civil Court with jurisdiction to try a suit of the kind which has been

instituted by the plaintiffs. Even assuming that some irregularity or illegality was committed in admitting some of the opposite party, as the case of

the plaintiffs seems to be, that did not give a right to the plaintiffs to say u/s 39 of the Specific Relief Act, 1963 that the school authorities were

committing a breach of their legal obligation and to prevent such breach a mandatory injunction was necessary. If at the interview, in the opinion of

the school authorities, the plaintiffs were not found fit or suitable for admission to the school then the decision and the plaintiffs could not ask for a

mandatory injunction during the pendency of the suit. In my opinion, the and interim order of mandatory injunction is without jurisdiction.

The Hon'ble Supreme Court has also held more than once in the later decisions that in a matter of selection made by expert committees for

professional colleges and if disputes arising out of such selection is brought before the court for adjudication, the courts must be slow in sitting as

appellate authority and taking contrary view from the selection authorities. Therefore, in other words, even in writ proceedings under Art.226 of

the Constitution read with section 103 of the J&K Constitution, where this court was not supposed to interfere in a matter of selection made by

experts to the professional colleges, certainly, it is not open to the civil court exercising ordinary jurisdiction to entertain such suits nor would they

be competent to grant mandatory injunctions against the authorities of the University. Such orders of injunction would be nullity in the eye of law.

Therefore, even such order of injunction is granted by the civil court, they are not binding on the University to be acted upon.

Coming to the defence taken by the University before the learned Single Judge as well as before this Court, in appeal, we fail to understand

why the University failed to bring to the notice of the Civil court as well as the writ court that such order of injunction being incompetent in the eye

of law, there was no need for them to act upon such orders of injunction. Indeed the learned counsel who appeared before the civil court should

have brought to the notice of that court that such order of mandatory injunction could not have been passed by such court. They should have

asked for vacation of the orders of injunction. Instead the University authorities obeyed such incompetent orders. Viewed from these

circumstances, we must hold that so far as the order of mandatory injunction granted by the civil court in the instant case must be held to be one

without jurisdiction and could not have been acted upon by the authorities of the University.

Coming to the arguments advanced by the learned counsel for the appellant in the instant case it is seen that according to him as learned Single

Judge dealt with writ petition No.696/1994 having allowed the petitioner therein to continue by virtue of the temporary injunction by the civil court

and enable the student to continue provisionally in the college to mark his attendance until such order of injunction was dissolved or modified, the

petitioner had the benefit of this order and that he continued to mark his attendance in the College and therefore equity is in favour of the appellant.

Therefore, it is argued that regard being had to the equity favouring the appellant, this court must allow him to continue the studies in the College.

We do not see any force in the submission. At the outset as we have pointed out the interim order of injunction granted by civil court was found to

be one without jurisdiction and that there was no need for the authorities of the University to have acted upon such injunction order. Secondly, a

learned Single Judge having allowed the writ petitioner to continue in the college provisionally and therefore the benefit of his attendance in the

college have been accrued to him, the submission is that there is equity in favour of the appellant and that the equity must be available to him to

enable him to continue in the college. The misplaced sympathy should not be a basis to enable the writ petitioner to place reliance upon equity

available to him by virtue of his continuance in the college. Secondly even if such admission based upon misplaced sympathy should not be allowed

to be utilized by such person who is not eligible for a seat in the college.

Thus we do not see any force in the submission of the learned counsel for the appellant that merely because by the strength of the injunction

order, the appellant had been allowed to join the college and that he was provisionally admitted and therefore he may be allowed to continue as the

course of LLB, there is no justification to do so. If the appellant was not eligible, regard being had to the marks secured by him and the rank

obtained by him in the selection, it would be unfair to allow him to continue as otherwise a better merited candidate would have been eligible to

secure that seat. A misplaced sympathy of the court should not be the basis to allow an ineligible person to continue the studies in the college based

upon the provisional admission made on the strength of the injunction order. That would affect the general principles of administration of justice.

In the result the appeal fails and is dismissed.

Let a copy of this order be sent to the

learned Civil Judge., wherever he is posted.

Jammu; Sd/

17021995 (M. Ramakrishna)

Chief Justice (B.A. Khan) J

L.P.A. (Writ) No.29 of 1995

Anamika Saraf Vs. University of Jammu & Others.

Khan J:

I have read the judgment prepared by My Lord, the Chief Justice. While concurring on the dismissal of the appeal for the reasons to follow, I

find it difficult to agree with the dictum laid down that a civil court lacks jurisdiction to entertain a suit relating to the admission of the candidates to

a course run by the University and that any interim stay order passed by it is a nullity and not binding on the University. The principle enunciated

has far reaching consequences and that is why I feel constrained to record this note of dissent.

The appellant was a candidate for the current LLB Course run by the Jammu University. She had secured 961 marks as against 919 and 947

obtained by respondent 4 and 5 respectively. The last candidate selected had got 1007 marks. It appears that respondents 4 & 5, with lesser

merit, were admitted to the course by the University. When their admission was cancelled, they filed a suit in a civil court, obtained a stay and

continued in the course on its strength. Meanwhile, another candidate with more marks filed OWP No. 696/ 94 in this court and obtained order of

provisional admission subject to the decision of the civil court on the interim stay matter. The appellant, seizing the opportunity, sought to build her

castle on this and filed OWP No. 769/94 in this Court contending that since three other candidates with less merit had gained entry in the course,

she was also entitled. Her case, however, did not find favour with the writ court and was rejected.

The appellant's case was rightly rejected on the premise that one wrong could not justify the other one and that merit cannot be allowed to be

converted into demerit. Because some candidates with less merit had managed to stay in the course on the strength of the interim stay order passed

by the civil court, that by itself would not clothe the appellant with any right or entitlement to get entry into the course in which the last candidate

selected had admittedly secured more marks. As regards the validity or otherwise of the interim stay order granted by the civil court resulting in

continuation of respondents 4 & 5 in the course, it was for the University to take suitable and urgent action in an appropriate legal remedy to seek

vacation or modification of the order.

The appeal was liable to be dismissed on this parity of reasoning and should have been dismissed as such. But, that was not to be and the

judgment prepared by My Lord, the Chief Justice, taking hold that the civil court had no jurisdiction to entertain such as case and the exparte

interim order was a nullity and not binding on the University.

The dictum laid down, in my humble view, is extraneous to the controversy involved in the appeal and, therefore, did not call for any

examination or determination. It was nobody's case that the civil court had no jurisdiction or had exceeded its jurisdiction in the matter and perhaps

could not be in an Appeal, directed against the dismissal in exercise of the writ jurisdiction. There was nothing on record before the LPA Bench to

indicate the nature of the suit. Nor was any jurisdictional plea taken by any of the parties concerned. As such there was no occasion or basis for a

generalized dictum that a civil court was incompetent to entertain a suit relating to the admission in a University course or an order passed by it was

a nullity.

A civil court's jurisdiction is not dependent upon the nature of the litigation or the status of an institution or a party. A court acquires a jurisdiction

to decide any dispute by its creation which is called inherent jurisdiction. It is liable to be regulated by the laws in force. Sec. 9 of the Code of Civil

Procedure describes the nature of the suits entertainable by a civil court. It is elementary that a civil court has the jurisdiction to entertain a suit of

civil nature only. It cannot entertain a suit other than this like the one involving questions of caste or religious rites or ceremonies etc. because such

questions do not deal with the legal right of the parties. That is why it is taken as general rule of law that when a legal right and its infringement is

alleged or when a civil wrong is committed, a cause of action accrues and unless there is a bar to the entertainment of the suit, express or implied,

the civil court is bound to entertain the claim. An express bar may be provided by a statute in force and an implied bar could be imposed by the

general principles of law such as suits relating to sovereign acts of the state and public policy. There can also be cases where an enactment in force

provides its own forum and machinery for determination and enforcement of the rights and liabilities and impliedly creates a bar to the

maintainability of a civil suit.

For all this, however, certain conditions must exist and are required to be satisfied by the party who invokes the bar. Otherwise the exclusion of

the jurisdiction of the civil court cannot be readily inferred and that too suomoto. By saying so, I am only reiterating an restating a legal position

settled as far back as 1940 by the Judicial Committee of the Privy council in AIR 1940 PC. 105

My Lord, the Chief Justice, has referred to the judgment of the Supreme Court in Dhulabhai's case (AIR 1969 SC 78) and has extracted the

principles laid down therein regarding the exclusion of the jurisdiction of the civil courts under the statutes. This judgment undoubtedly is the basic

authority on the point and holds the field till date having been reaffirmed and followed lately in 1993 (3) SCC 161. A plain reading of this,

however, proves my point and supports my view. It clearly and unambiguously be allowed to be taken away on an inference and that a civil court

would retain the jurisdiction even despite express bar where the validity of the provisions of the statute is questioned. It goes step further and holds

that a civil court can even examine the force of a prohibition against the maintainability of a suit, contained in an enactment.

The other judgments referred and relied upon (AIR 1990 SC 434) and AIR 1975 Patna 11) are no authority on the point. In the first case the

Supreme Court was dealing with a case of appointment in the University and it was in that context that it cautioned the courts to sit in appeal over

the decision of the selection committees and to scrutinize the relative merit of the candidates. There can be no quarrel with this proposition and it is

being given due regard by the courts considering it rationale that a court cannot substitute its satisfaction or opinion for that of the experts. This

doctrine of noninterference in the affairs of selection bodies is well settled but it is different from the ouster of jurisdiction of courts in such matters,

In simple words, a civil court may possess the requisite jurisdiction but may not like to exercise it in a matter keeping in regard the practice or

precedent. The judgment of the Single Bench of the Patna High Court who made a per curriculum observation about the jurisdiction of the civil

court in a selection matter in a revision petition, cannot be taken to be the last word on the issue.

Viewed thus, 1 am convinced that a civil court's jurisdiction cannot be taken away that lightly. Where its jurisdiction is to be excluded, it has to

be on hard facts and solid basis depending on the conditions and circumstances of the case. It has to be established that it is either expressly or

impliedly barred and till then court cannot be deprived of its jurisdiction. Likewise, an order of the civil court cannot be declared a nullity when it is

implemented and acted upon by the parties and unless it is shown to have emanted from a want of inherent jurisdiction and is declared so by a

proper court in an appropriate proceedings.

As noticed earlier, this issue was not relevant to the controversy in the present appeal which arises under the writ jurisdiction. We do not know

what is the nature of the suit pending before the civil court and whether it is a suit for declaration, a suit alleging a breach of a legal duty or a suit for

infraction of the provisions of the University statute. We also do not know whether the University Act or any other statute bars such suit. No party

in the appeal had challenged the jurisdiction of the civil court in the present appeal. Nor are the plaintiffs before us to defend and justify the

jurisdiction of the civil court. I am at a loss to understand as to how can a general declaration be made divesting all civil courts of their jurisdiction

in a particular specie of litigation involving the selection of candidates by the University and nonsuit the plaintiffs in a proceedingwhich is extraneous

to that suit. After all the course of law cannot be changed and nor can be the provided legal remedies be bypassed only because a civil court had

allegedly exceeded its jurisdiction by passing a supposedly wrong order. In a case of wrong or bad order, the law provides an appropriate remedy

for rectification and no superior court can taken upon the role of repairing the damage in an extraneous proceeding.

With this, I record my respectful dissent to the judgment prepared by Lord the Chief Justice to the extent indicated. The appeal shall, however,

stand dismissed on my own reasoning.