Ashish Aggarwal vs Kurukshetra University and Another

Swatanter Kumar, J.—Challenge in this petition under Articles 226/227 of the Constitution of India is to the validity of Clause 18 of Chapter-VI of the "Information Brochure, MBBS/BDS Entrance Examination for admission to Medical/Dental Colleges in Haryana 2001", which reads as under:

The candidates already admitted in any Medical/Dental Colleges will not be considered eligible for admission to the course.

Before we notice the contentions/admissions raised on behalf of the parties, it will be necessary to refer to the basic facts giving rise to this petition.

The State of Haryana,-vide its notification dated 4th February, 2001, declared the Vice-Chancellor, Kurukshetra University, Kurukshetra, as competent authority to conduct the entrance examination for admission to various courses including MBBS and BDS in different colleges in the State of Haryana for the year 2001. The information brochure afore-noticed was issued by the University, wherein it was provided that the selection to MBBS/BDS courses would be made on the basis of entrance examination to be conducted by the University. The last date for receipt of the applications was 11th June, 2001. The entrance test was to be held on 1st July, 2001. However, the result regarding selection of the candidates for admission including the Petitioner was declared on 4th August, 2001. The eligibility conditions were duly provided in the brochure and under condition No. 18 of the special instructions of Chapter VI of the information rendered a candidate otherwise eligible as ineligible, if he was already admitted to any medical or Dental College. Such candidate was not eligible for admission to the course. The Petitioner had taken similar entrance examination for the year 2000 and was given admission in that year in BDS course in MM College of Dental Sciences and Research, Maulana, Ambala.

According to the Petitioner, no fresh admissions to 1st year of BDS Course, are being conducted for 2001 in MM College of Dental Sciences and Research Maulana, Ambala, by the University and the Petitioner claims to have learnt from newspaper cutting that Dental Council of India has not permitted the said college to give admission. The Petitioner was called for counselling in regard to the present academic session on 16th August, 2001. However, he was declared ineligible, in view of the Clause 18 quoted above and has been declined admission in any of the two courses i.e. MBBS and BDS on the basis of his merit in the Entrance Test conducted by the University for the current session. Thus, compelling the Petitioner to file the present writ petition.

Upon notice, the Respondents filed their written statement. According to the Respondents, no legal right of the Petitioner has been infringed. The Petitioner has taken admission in the previous year in the BDS Course for 2000 in MM College of Dental Sciences and Research, Maulana, Ambala, and according to Clause 18, he is not entitled to pursue any further course, on the basis of entrance examination for the current year. The Dental Council of India has not been impleaded as party by the Petitioner, as such, the reasons could not be ascertained as to why the said college has not been permitted to grant admission to the students in the current year.

It is stated on behalf of the Respondents that condition 18 is not violative of Articles 14 and 16 of the Constitution of India but is in consonance with the main object that a candidate should not be permitted to waste the seat, as the State/Institute also invest a considerable money in educating the students every year. The eligibility of candidate is seen at the time of counselling under Clause 14 of the brochure. The Petitioner was ineligible, in terms of Clause 18 of the brochure and, as such, he was declared ineligible at the time of counselling. The result of the Entrance Test was declared on 4th August, 2001. The Petitioner secured 137 marks out of 200. The Petitioner was found to be ineligible for admission. The condition imposed under Clause 18 is neither perverse nor it infringes any of the legal right of the Petitioner.

There is three fold challenge to Clause 18:

(a) Clause 18 of the brochure infringes Articles 14 and 16 of the Constitution of India and deprive the candidates including the Petitioner of fair opportunity for seeking admission to professional courses in the subsequent years.

(b) No such condition has been imposed by the Medical Council of India and, as such, the Government/ University was incompetent to introduce such condition, which at the face of it is unreasonable and unfair and (c) The brochure for other similar courses does not contain such stipulation and, as such introduction of Clause 18 in the brochure under reference is arbitrary.

It is contended that the brochure in the previous year did not contain such condition as has been introduced in the brochure for the year 2001 for the first time and in the facts and circumstances of the case, the bar to eligibility provided under Clause 18 cannot be enforced against the Petitioner.

Learned Counsel for the Respondents, while relying upon two judgments of the Andhra Pradesh High Court in the cases of A. Sri Krishna Chaithanya v. NIR University of Health Sciences 2002 (2) STC 974, and V. Raja Satyanarayana and Ors v. Osmania University, Hyderabad 2000 (5) SLR 15, contended that no right of the Petitioner has been infringed and the Petitioner cannot claim any relief in the present case.

We are afraid this contention of the Respondents cannot be accepted. In those cases, relief was declined to the Petitioners therein keeping in view the facts and circumstances of those cases and because of the time that had elapsed during the intervening period of the test and the decision by the court. Unlike in the present case, there was no challenge to a condition or stipulation alike Clause 18 of the brochure. Challenge to the constitutionality or validity of a condition creating bar to eligibility of a candidate tantamount to depriving a right of consideration and, as such, is substantial question to be considered by the court independent of the precedents referred. Therefore, we see no reason to dismiss this petition on the basis of the preliminary submission raised on behalf of the Respondents.

The Petitioner certainly has the right to challenge the validity of a condition, which debars him from taking admission to the professional courses. The jurisdiction of this Court cannot be ousted on such a ground. The judgment of the Hon''ble Andhra Pradesh High Court is restricted to the facts of those cases and do not enunciate any general principle of law.

Having dealt with this preliminary submissions, of the Respondents, we are of the view that the contentions raised on behalf of the Petitioner, points (a) and (c) need to be dealt with together.

Learned Counsel for the Petitioner has placed reliance upon the Division Bench judgment of this Court in the case of Ramesh Kumar minor through his father v. The State of Haryana and Ors. 1987 (2) SLR 684, to contend that change of trade (subject) in draftsman (civil) was permitted and somewhat similar clause, being Clause 3.4 of the prospectus in that case was treated as a bar to the change of trade. The reliance on this case is of no consequence, as the Division Bench in that case did not hold that Clause 3.4 of the prospectus was invalid or it infringed any of the right of the Petitioner. In fact, the Division Bench specifically held that Clause 3.4 of the prospectus was not attracted as the subject of electronic mechanic trade was not available at the first instance and was subsequently introduced and thus seat would be awarded on the basis of merits to the candidate. The Division Bench did not even remotely indicate that bar for altering trade, as provided in Clause 3.4 was not sustainable or was unconstitutional.

Reliance was also placed upon the Single Bench judgment of Karnataka High Court in the case of Dr. T. Manohar v. Selection Committee of Post Graduate Degree and Diploma Course of Medical Education 1994 (4) SLR 698, wherein the court had struck down later part of Rule 11 of the Rules, which debars the already selected candidate in filling up the resultant vacancies in the event of a selected candidate fails to join. Rule 11 reads as under:

Rule 11 of the Admission Rules is in the following terms:

Any vacancy due to the failure of a selected candidate to join the college within the last date and time specified by the selection committee or for any other reason, such seats shall be filled by the selection committee from among the next available candidates. However, while filling the vacancies, candidates who are already selected for any course shall not be considered.

Firstly this judgment is not of much help to the Petitioner as the facts and rules/clause applicable are totally different and distinct and secondly with respect, we are unable to persuade ourselves to take same view in the present case.

This prospectus has to govern and control the admission only to MBBS and BDS courses. The Government of Haryana in exercise of its power and in furtherance to the judgment of the Hon''ble Supreme Court in the case of Unni Krishnan v. State of Andhra Pradesh in Civil Writ Petition No. 607/92, and in supersession of its earlier notification including the notification dated 27th January, 2000 issued a notification on 4th February, 2001 for appointing the competent authority to conduct entrance test examination to MBBS and BDS Course in terms of the notification of the Government. Clause 18 was integral part of the said brochure and was boldly printed under Chapter VI relating to special instructions/information. This chapter relates to the manner and the procedure in which the application for admission to entrance examination are to be filled in and submitted by trie candidates. The purpose of bar to eligibility created under Clause 18 has been specifically stated by the Respondents in their written statement and is even obvious from various terms and conditions of the brochure and the scheme announced by the Government in its notification for admission to its various professional courses. It is known fact that the admission to professional courses is highly competitive and the State is discharging its duty to impart such professional education in compliance with the directive principle enunciated in the Constitution of India and in furtherance to various judgments of the Hon''ble Apex Court in that regard. Clause 18 does not offend Articles 14 and 16 of the Constitution of India as the students who are already admitted to Medical or Dental Colleges cannot be equated or placed at parity with the students, who are still to seek admission such courses for the first time, thay are two different classes which are neither comparable inter se nor can be placed at par. Once a candidate has been granted admission to the professional course like MBBS/BDS on his own merits on the basis of the Entrance Test, he cannot be permitted to leave the course mid way and join another course of MBBS or BDS only with an intention to change his college or subject preference. A clause prohibiting such change introduced by the specialise body thus can hardly be questioned. The purpose is to prevent wastage of seats on the one hand and on the other to provide desirable continuity of course, based on various factors. The State and the Institute spend money, man power to keep up prescribed standard in professional courses for completion of such courses. Such avoidable disturbances during the continuance of course would certainly hamper the entire scheme formulated by the Government. Even otherwise, it would be unfair that a candidate who has already got admission to a course of his choice at the relevant time should be permitted to give up that course and take another professional course in the subsequent year. The net result of such prohibition would be that a seat is not wasted in the previous year while in the current year no candidate of merit would be denied admission for want of seat being occupied by such candidate of the previous year. If change of subject or college in subsequent year of admission is permitted as a matter of routine, it would affect the professional educational system adversely. The language of the clause clearly indicates the certainty on the part of the competent authority to create bar to the very eligibility of a candidate to take the Entrance Test i.e. precise reason that this clause has been put under Chapter VI of the brochure relating to special instructions/information regulating to entrance examination. All the candidatges including the Petitioner had been put to notice by this clause that if they are already admitted to a Medical or Dental College, they will not be eligible for admission to the course for the current year. The Petitioner even before filling up the form for the current year knew that they were not eligible for admission to the courses under the brochure for 2001. Thus, the contention of the Petitioner in regard to lack of notice is patently incorrect. Under Clause 14 of the brochure, the admission itself is provisional and are subject to the registration by the University, after completing necessary requirements, as per rules/ordinances. No indefeasible right accrues in favour of the Petitioner on the basis of the entrance test and more particularly in face of Clause 18 of the brochure. Under Clause 19 of the brochure under Chapter VI interpretation given by the competent authority has been attached finality. This clause further strengthen the stand of the Respondents that they intended and are enforcing Clause 18 of the brochure in its true spirit and as such the Petitioner is ineligible for admission to the course.

There will be perpetual wastage of seats as every candidate admitted to a course of lessor importance would like to leave the said course and try his luck for admission to a better course, or better institution by taking the subsequent entrance examination. If such candidates are successful in the subsequent entrance test and are granted seats, the obvious result would be wastage of seats of the previous academic year as well as displacing another candidate of merit in the subsequent year from getting a seat in the current professional course. Exceptions apart, this would be the inevitable result having a chain reaction, which obviously would be adverse to the interests of larger sections of students. The University has issued the prospectus under which the Petitioner took the entrance test without protest or demur. The Petitioner took the entrance test being fully aware of Clause 18 of the brochure which was published and circulated by the University at the beginning of the year.

We find substance in the submission of the Respondents that acceptance of the contention of the Petitioner would tantamount to encouraging unfair practice in the professional colleges. Most of the medical institutions/colleges are run by the State and huge investment of the State is involved in running such colleges/hospitals. To permit a candidate to leave the course mid-way just because the student can afford to pay the money would not be an acceptable compliance in the eyes of law or even social welfare of the public. We are of the considered view that it would encourage the students to leave the course midway and waste seats in turn to the disadvantage of all concerned. Every college works on different kind of seats i.e. paid, free seats, seats reserved for NRIs and other categories. The mere fact that the candidate has made payment for the academic session or ready to pay more would not protect the candidate from the rigours of Clause 18 of the brochure.

Another serious ramification of permitting such mid-term or after admission change of courses or institutions would be that it is bound to disturb the prescribed ratio by Medical Council of India in regard to teacher-taught ratio and patient student/doctor ratio. In law and equity, it is not possible tod draw a balance between the preferential choice of a candidate in regard to course or institution and the likelihood of the adverse consequences resulting from such practice. It would give rise to chain re-action and compulsory re-allocation of seats as well.

The acceptance of contention of the Petitioner is bound to have serious ramifications on the entire process universally adopted by various institutions all over the country. Permitting a Petitioner to leave the course mid-stream or even after admission just because a candidate can afford to pay and take admission in a subsequent course for the choice of a better institution or subject by taking entrance examination for the current year, would result in a change reaction and would inevitably lead to wastage of seats.

It will amount to encouraging an unjust and inequitable practice which is bound to render the present system of admission disfunctional, that has stood the test of time. It would frustrate the very object sought to be achieved by implementation of such objective education policy framed by the State. This interpretation may result in hardship to a microcosm section of students but is certainly in the interest of larger students and providing stability to the existing methodology of admission to professional courses.

There is no dispute to the fact that the Petitioner has already been admitted in the previous course in 2000 and was given admission in BDS course in MM College of Dental Sciences and Research, Maulana, Ambala. The Petitioner is also pursuing the said course and has taken the current Entrance Examination for 2001 in violation of Clause 18 which renders him totally ineligible for the current admission. Restriction under Clause 18 is reasonably being placed by the authorities for preventing mischief of wastage of seats as well as for smooth and appropriate running of the professional courses in various institutes. The present brochure relates only to MBBS and BDS courses. There is neither definite statement before the court nor any other brochure has been placed on record by the Petitioner in support of the submissions that other courses do not contain such clause. The court is presently concerned only with the case in hand and not any generalised provisions of law. The brochure relates to MBBS and BDS courses and the bar created under Clause 18 of the brochure is equally applicable to these courses. There is no justification before the court to term the said clause as arbitrary or discriminatory. The government is fully competent to formulate its education scheme and the terms and conditions governing entrance test to such courses. The competence of the State to formulate policy in this behalf squarely falls in its domain, as has been held by the Hon''ble Supreme Court in the case of Rajiv Kapoor and Others Vs. State of Haryana and Others, where the court held as under:

In our view, the High Court fell into a serious error in sustaining the claim of the Petitioners before the High Court that selection and admissions for the course in question have to be only in terms of the stipulations contained in Chapter v. of the Prospectus issued by the University. Such an error came to be committed in assuming that the Government had no authority to issue any directions laying down any criteria other than the one contained in the Prospectus and that the marks obtained in the written Entrance Examination alone constituted proper assessment of the merit performance of the candidates applying for selection and admission. The further error seems to be in omitting to notice the fact that the orders dated 21st May, 1997, which came to be issued after the declaration of results of written Entrance Examination, even if eschewed from consideration the orders dated 20th March, 1996 and 21st February, 1997 passed in continuation of the orders of the earlier years, continued to hold the field, since the orders dated 21st May, 1997 were only in continuation thereof. Those orders dated 20th March, 1996 and 21st February, 1997 had, admittedly been forwarded to the University, with a request to make necessary entries in the Prospectus/Syllabus.

In view of the above settled principle of law, the competency of the Government to stipulate procedure for admission and the terms and conditions, which will govern the admission, cannot be doubted. In fact, the Hon''ble Supreme Court in a very recent judgment, State of Punjab Vs. Dayanand Medical College and Hospital and Others, , has held that the Government of State/Centre are better suited for framing its policy with regard to reservation in respect of socially and educationally backward classes than the bodies like Medical Council of India. Once, the State has exercised its power to formulate a policy, which provides a Clause 18, the Petitioner can hardly be permitted to challenge the competency of the State to impose such like conditions merely on the ground of hardship. The Petitioner and all other alike candidates were fully aware of this prohibitory clause and in fact they took the Entrance Test with complete awareness of the said clause introduced by the State. This clause is based upon its experience over the past years as an improvement on the brochure existing at the relevant time. Merely because earlier brochure did not contain such a bar per se can be no ground for preventing the State from introducing this clause in the brochure in the current year. The Petitioner, thus, cannot plead any estopple against the State in the present case.

At this stage, it may be appropriate to refer to the Full Bench decision of Delhi High Court in the case of Sandhya Kabra and Others Vs. University of Delhi, , were the court held as under:

The Scheme further provides as follows:

xxx

xxx

While filling up such vacant seats on account of drop out, candidates already admitted to any subject in any institution will not be considered and only candidates in the waiting list will be considered.

... The main departure which has been made from the old Scheme now is that the change of subjects is completely ruled out. If the Petitioners were very keen in studying a particular subject then, according to the new Scheme, the Petitioners should not have chosen any course and could have insisted on their names being retained on the waiting list. The Petitioners choose not to do so. They want to eat their cake and have it too. The Petitioners accepted the best subject and/or institution which was available at the time of counselling and now if any fortuitous vacancy has arisen, we do not see as to how the Petitioners can make any grievance.

... While no system can ever be perfect, we are firmly of the opinion that the present Scheme or procedure which has been devised will cause the least amount of dislocation and is more beneficial to the candidates as well as to the institutions to which they are assigned.

In brief, our conclusions in these writ petitions are as follows:

xxx

xxx

(d) No change of course or hospital is allowable to the candidates who have already secured admission.

The principle laid down in Dr. Sandhya Kabra''s case (supra) was reiterated by another Full Bench of Delhi High Court in the case of Veena Gupta Vs. University of Delhi, , and the court held that right for allocation of seat was applicable only to the waiting list candidates and not the candidates, who had already taken admission. The view taken in Dr. Veena Gupta''s case was affirmed by the Hon''ble Supreme Court of India, in the case of Arvind Kumar Kankane. Vs. State of U.P. and Others, where the court held as under:

We have carefully examine the contentions but forth before the High Court and before us and we are of the view that the finding recorded by the Division Bench and Delhi High Court in Dr. Veena Gupta''s case (supra) and the High Court of Punjab and Haryana in Anil Jain''s case (supra) is in accordance with the reason and stands the test of rationality. It is clear that once an option is exercised by a candidate on the basis of which he is allotted the subject and thereafter that candidate is allowed to participate in subsequent counselling and his seat becomes vacant, the process of counselling will be endless and, as apprehended by the High Court, it may not be possible to complete the academic course within the stipulated period.

In view of the above, the judgment of the Karanataka high Court in the case of Dr. T. Manohar (supra) to some extent is in conflict with the judgment of the Full Bench of Delhi High Court which as already noticed stands approved by the Hon''ble Supreme Court.

In regard to contention (b)

Under the Medical Council of India Act, the Council has the jurisdiction to frame the rules and issue instructions in regard to maintenance of standards of medical education. Admission to Medical and BDS Courses in the State is to be regulated and the respective State Government in accordance with its education policy and constitutional mandate. The competence of the State to fomulate policies for admission can hardly be disputed. The Medical Council of India can and may provide the academic standards which are to be maintained even for the Entrance Examination but the State is free to formulate its policies in regard to the manner and method of admission and the procedure to be adopted. In this regard reference can be made to the case of Rajive Kapoor''s case (supra).

We may also notice that the notification by the State Government has been issued in compliance to the directive of theApex Court in various cases commencing from the case of Dr. Pradeep Jain and Others Vs. Union of India (UOI) and Others, . It is not even the contention before us that the policy offends any of the directive issued by the Apx Court. Even otherwise prescription of such bar cannot be said to be unreasonable or arbitrary.

During the course of hearing, the learned Counsel for the University also produced the result of the Entrance Test held for 2001. The Petitioner is stated to be at rank 107 and would not be entitled to get admission to MBBS Course even in current year. The Petitioner on his own merit in the Entrance Examination 2001, at best can be awarded BDS course in a different college. However, the Petitioner cannot be permitted to change the course, as already held by us.

With regard to contention of the Petitioner that the same College has not been permitted to give fresh admission for the current academic sessions, has no relevancy to the present case that is a matter between the College authorities and the Dental Council of India and the University. This question is irrelevant for the purpose of deciding the present writ petition. However, we do hope that all concerned authorities would take appropriate steps well in time so that students including the Petitioner who are pursuing their courses in 2nd year of BDS on the basis of the last year admission are not exposed to any academic loss. The Dental Council of India as well as the State authorities and the University are under statutory obligation to ensure completion of the professional courses as well as to protect the academic interest of the students.

We cannot find any fault as a matter of principle in the action of the Respondents for treating the Petitioner ineligible for admission to the course. The terms and conditions of the brochure are binding and effective to all concerned and they must be adhered to strictly. This was so held by a Full Bench of this Court in the case of Amar Deep Sahota v. State of Punjab and Anr. 1993 (2) PLR 212. The Hon''ble Apex Court has held that mis-placed sympathy in the education matters should be avoided and admission contrary to the Prospectus and Calendar of the University should not be allowed. Even on this score we see no reason to grant the prayer of the Petitioner. Reference can be made to the case of C.B.S.E. and Another Vs. P. Sunil Kumar and Others, .

(32) In view of the above discussions, we reject all the contentions raised on behalf of the Petitioner and dismissed this writ petition with the above observations. However, parties are left to bear their own costs.