Baba Farid University vs Amandeep Kaur Gill

R.L. Anand, J.—By this judgment I dispose of four revision petitions No. 4706 (Baba Farid University v. Amandeep Kaur Gill etc.), 4707 (Baba Farid University v. Rachna Brar), 4708 (Baba Farid University v. Gargi Chawla) and 4709 (Baba Farid University v. Akalshaya Raina and others), all of 2000, as in the opinion of this court all these revisions can be disposed of by one order because common questions of law and fact are involved.

For the sake of convenience, the facts have been taken from CR 4706 of 2000.

Five suits were instituted in the trial Court, i.e. 271 (Akalshaya Raina v. Baba Farid University and others), 272 (Rachna Brar and others v. Baba Farid University and others), 273 (Aman Deep Kaur Gill v. Baba Farid University and others), 274 (Gargi Chawla and others v. Baba Farid University) and 275 (Komal Chadha and others v. Baba Farid University and others), all dated 19.7.2000. The prayer in all the suits was common.

The suit was for mandatory injunction directing the defendants to issue roll numbers to the plaintiffs enabling them to appear in the examination to be held by Baba Farid University for I st, 2nd and 3rd Prof. of B.D.S. Court starting from 19.6.2000 and, thereafter, to declare the results of the College. It was also a suit for permanent injunction vide which the plaintiffs prayed that the defendants be restrained from debarring the plaintiffs from appearing in their respective B.D.S. Examinations on provisional basis at their own risk and responsibility. Alongwith the suit, the plaintiffs filed an application under Order 39 Rules 1 and 2, CPC, praying that during the pendency of the suit, an interim injunction should be granted in their favour and against respondents 1 and 2 to declare the results of the plaintiffs and also to issue directions (o promote the plaintiffs to their next professional stage as per their respective results and further directing respondents 1 and 2 to make arrangements to conduct the examinations and allow the plaintiffs to appear in the papers and declare results of those papers before the final date of filing the examination forms in the supplementary examination to be held in the month of September, 2000.

The case set up by the plaintiffs, in the trial Court was that their respective Dental Colleges came into existence on various dates and those Colleges were affiliated with the Punjabi University, Patiala. The Punjab Government had also issued a No Objection Certificate and, thereafter, the Govt. of India issued a Letter of Approval in favour of those private colleges vide which the Letter of Intent was issued for the running of the Dental Colleges with limited seats. In the case of Khalsa Dental College, Mansa, the Letter of Intent was to the extent of running a New Dental College with 60 intake in BDS Course during 1995-96 academic session. Regular examinations were conducted by the Punjabi University, Patiala. According to the plaintiffs, they were admitted through PMT and counselling of Govt. of Punjab was conducted by the Punjabi University, Patiala. Thereafter, the students started regularly studying in the Colleges. They undertook ihe theory and practical examinations regularly held by the Punjabi University, Patiala. Thereafter, vide notification dated 22.3.1999, the Govt. of Punjab notified that all the colleges imparting Health Science Education, previously affiliated with either Guru Nanak Dev University, Amritsar, Panjab University, Chandigarh or Punjabi University, Patiala, will stand affiliated with Baba Farid University of Medical Science, Faridkot. In this manner, Baba Farid University conducted a special examination in the month of February, 2000 so as to create uniformity amongst the various colleges of previous Universities. Even for the present year, Baba Farid University conducted the annual examination. The plaintiffs are the students of various professions of BDS Course and they are students of Khalsa Dental College, Mansa or Khalsa Dental College, Faridkot. On notifying the examination for the year 1999-2000 to be held in May/June, 2000, the University even demanded examination fees alongwith duly filled forms from all the students of various colleges for BDS Courses. The plaintiffs deposited their examination fee and duly filled in forms. The defendants received the forms. The forms were not rejected nor were sent back to the Colleges but the defendants have not issued the roll numbers to the students including the plaintiffs for the reasons best known to them. The Colleges sent the forms and examination fee of all the students of 1 st, 2nd, 3rd and final professions but the defendants have only issued roll numbers to the students of final profession and conducted the examination from 29.5.2000 to 17.6.2000. The inaction and apathy on the part of the defendants by not issuing the roll numbers to the plaintiffs and other similarly situated students is illegal, void, arbitrary, ab initio, without jurisdiction and against the principles of natural justice. The plaintiffs asked the University many times to issue the roll numbers so that they may be able to undertake the examinations which started in the month of June, 2000 but to no effect.

Along with the suit, the plaintiffs filed an application under Order 39 Rules 1 and 2, CPC, praying that during the pendency of the suit, directions be given to the respondents to issue the roll numbers; to allow the plaintiffs to undertake the examinations; to declare their results and to promote them to the higher profession. So much so, the directions be given to the University to undertake a special test for the eligible candidates.

The suit as well as the application were contested by the University. According to the respondents, the suit has been filed on false grounds. No institution by the name of Khalsa Dental College, Mansa, or Faridkot, exists in the record of the University. There is no institute in the name of Khasla Dental College and Hospital for Women, V.P.O. Nangal Kalan, Mansa. The Govt. of India never granted any permission to the Colleges to run and establish and impart dental education as required u/s 10A of the Dentists Act. The Letter of Intent was issued only to run new Dental College for 60 students in BDS Course during the year 1995-96. The Letter of Intent does not amount to permission to run the College as described in Section 10A of the Dentists Act. Khalsa Dental College, Mansa, is not a recognised institute. Though the Letter of Intent for the College for the academic year 1995-96 was for 60 students, the said institute admitted 65 students for 1996-97, 103 students for 1997-98 and 104 students for 1998-99. According to sub-section (3) of Section 10B, when any institute increases its admis- sion capacity without the permission of the Central Govt. it is not binding. The private colleges have violated the statutory provisions. The examination, if any, conducted by the Punjabi University, Patiala, "is wrong, illegal and it can only be explained by that University as to under what circumstances it was conducted. It was also pleaded by the defendants that the conduct of the examination by the Punjabi University, Patiala, will not regularise/legalise the illegal action of the plaintiffs and University. It was also pleaded that the plaintiffs were not admitted through PMT. They have not produced any record on the file. Their admission was not in accordance with the rules. The Colleges have admitted the students more than their sanctioned seats. Baba Farid University even wrote a letter to the Principal of the Khalsa Dental College to provide the required information. The reply, which was received by the University, was vague. The University was informed by the Dental Counsel of India that the Khalsa Dental College is not a recognised one and the admission, if any, made by the College is illegal. This information was duly conveyed to the Principal of the College. The University issued the roll numbers to the students of the final profession of the College to sit in the examination, which was to start w.e.f. 29.5.2000 and those roll numbers were issued under the bona fide belief and impression that the College was a recognised one and that the admission was in accordance with the rules but this does not amount to waiver or acquiescence on the part of the University to regularise the illegal status of the College. The plaintiffs are the students of the institute which is not recognised and no permission of the Central Govt. was obtained. The sludents are not eligible to sit in the examination. However, under the orders of the Courts, the plaintiffs were provisionally allowed to sit in the examination at their own risk and responsibility.

It may be mentioned here that during the pendency of the suit, interim relief was given to the respondents. Vide order dated 17.6.2000, the trial court gave the directions to the petitioner to issue the roll numbers to the plaintiffs for BDS 1st, 2nd and 3rd year examinations to be held from 19.6.2000 and allow to appear in the examinations provisionally at their own risk and responsibility and the result of the plaintiffs shall be subject to their eligibility and on fulfilling all the conditions required for the examination. When these directions were complied with by the University, the interim application was got dismissed as infructous vide order dated 29.7.2000. Again, an application was moved by the plaintiffs praying that the defendants be directed to declare their result. Finally, the application was decided and the trial Court after hearing the arguments and on going through the case law and by a detailed order dated 10.10.2000, gave directions to the University to conduct the examination of papers in which the plaintiffs could not appear, within the next two months from the date of order. It was further directed by the court to declare the results of the candidates who appeared in the examination in the professional course under the directions of the court.

The matter was challenged before the court of Addl. Distt. Judge, Faridkot, who affirmed the order of the trial Court vide judgment dated 24.10.2000 by holding that he did find any infirmity or illegality in the said order. The first appellate court also gave directions to the trial Court to frame the issues and further made it a time bound case for the plaintiffs to conclude their evidence by 10.12.2000 by taking short dates. So much so, the plaintiffs were given the liberty to take the dasti process for the service of the witnesses. The appeal of the University was dismissed for the reasons given in para-11 of the impugned order dated 24.10.2000, which is reproduced herein below :-

" 11. I have considered the arguments advanced by the learned Counsel for the parties and have gone through the citations referred to by them. In my opinion when the college was previously affiliated to the Punjabi University and said University was conducting the examination of the respondents of this College regularly and later on this college was affiliated to the appellant-University vide notification dated 22.3.1999 and said University was to conduct the examination from November/December, 1999, it cannot be said that the college was unauthorizedly. started by its management. Moreover, the students who passed their PMT entrance test and thereafter their counselling was conducted by the Punjabi University and they took their admission in the Khaisa Denial College and had already been studying, should not be allowed to suffer on account of any irregularity on the part of the College. So, far as Akalshya Raina is concerned her migration has been made through permission of the appellant-University. So far as the respondents who had not submitted their forms in time is concerned their examination has been conducted with the condition that they will have to prove their eligibility. So far as the respondents Komal Chadha and others are concerned, it is their version that they fulfil their eligibility and the fact that they are not eligible can be considered after leading evidence by the parties. So far as the admitting of excess number of students by the College is concerned, in my opinion if the college has committed any irregularity in admitting excess number of students or in not getting proper permission from the proper authority, it cannot be said that the students are at fault. It is also worth mentioning here that based on the report of the Inspectors the Den-tat Council of India made recommendations to the Central Government for granting permission to start Khalsa Dental Hospital and College, Nangal Kalan, Mansa, with 60 intake in BDS Course during 1995-96 academic session and Letter qf Intent was issued to that effect. If the Government of India was in picture about the opening of the College it cannot be said that the same was an unauthorised institution. Moreover, the Punjabi University authorities have also been making correspondence with the College authorities on various aspects. Therefore, the students/respon- dents who are already studying in the College should not suffer on account of any irregularity on the part of the college, so the balance of convenience and prima facie case lies in favour of the respondents and they will suffer an irreparable and huge loss if they are not permitted to sit in the examination or their result is not declared. So, in my opinion the learned lower court has rightly appreciated the material on the file and has allowed their applications under Order 39 Rules 1 and 2 of the CPC. I do not find any infirmity or illegality in the said order and in view of the facts of this case the citations referred to by the learned Counsel for the appellants are not applicable to the facts of this case whereas the citations referred to by the learned Counsel for the respondent are fully applicable to the facts of this case. However, it is observed that the parties shall appear before the lower court on 31.10.2000 and the respondents shall file replication on that day failing which the lower court shall frame the issues on the basis of the pleadings which are already on the file and the respondents shall conclude their evidence even by taking short adjournments and also by taking dasti process by or before 10.12.2000 as per direction of the lower court and with these observations the appeals are dismissed. ....."

Aggrieved by the orders of the courts below, the present revision which I am disposing of in limine, after hearing the counsel for the petitioner, who tried to convince me that the orders of the courts below are erroneous and are liable to be inlerfered.

The principal attack of the counsel for the petitioner was that the private colleges are nothing but professional shops. They had been violating all norms and procedure and provisions of law by fleecing (he innocent students. These colleges were never recognised. The students never appeared in the PMT. No counselling was ever conducted by the University on behalf of the Govt. No clarification has been given to the University either by the college or by the Punjabi University. In this view of the matter, the plaintiff- respondents cannot call upon the University to undertake their test nor the plaintiffs can call upon the University to promote them to the higher professional courses.

Mr. Patwalia invited my attention (o Dental Council of India v. Harpreet Kaur Bal , and submitted that the Hon''ble Supreme Court is of the view that relief must be the one permissible under the law and must be based on legally recognized principles. Any direction given by the civil Court to the University to hold the examination for the students of unaffiliated and unrecognised dental colleges at the risk and responsibility of such students is totally unjustified. Equity has no place when the procedure of law is prescribed. He also invited my attention to the letter dated 14.6.2000 issued by the Dental Council of India, addressed to the Registrar, Baba Farid University, in which it has been stated that the status of Khatsa Dental College and Hospital, Nangat Kalan, Mansa, which was affiliated to Punjabi University, Patiala, till 30.6.1999 was that in the year 1995-96, 60 students were admitted; in the year 1996-97, 65 students were admitted and in the year 1997-98, 104 students were admitted, but no permission was granted by the Central Govt. It has been categorically stated by the Dental Council of India that this college has violated the provisions of the Dentists (Amendment) Act, 1993 and Section 10B of the Dentists Act. So much so, the College had admitted without permission of the Central Govt. students for the years 1995-96, 1996-97 and 1997-98.

Mr. Patwalia also submitted that the entire approach of the courts below was humanitarian and was based on sympathetic reasons, which has no propriety or legality in the law courts which are governed by the law of the land. In support of his contention, counsel for the petitioner relied upon a judgment reported in C.B.S.E. and Another Vs. P. Sunil Kumar and Others, .

I have considered the submissions of the counsel for the petitioner. Though the submissions may look alluring at the first instance but on deeper scrutiny, I have not been able to persuade myself with the same.

We are dealing with a case of revision u/s 115, CPC, and an application under order 39 Rules 1 and 2, CPC. We all know that Order 39 Rules 1 and 2, CPC, is discretionary in nature. Of course, this discretion is based on judicial pronouncements and has to be exercised judiciously and not arbitrarily, but if this discretion has been used after application of mind on the part of the courts below, such discretion should not be interfered lightly or as a matter of course unless it is further established on the record that the discretion has been used in a perverse, illegal or arbitrary manner. The Hon''ble Supreme Court has even held in several cases that the High Court should be slow in interfering in the discretionary matters of the lower courts if it comes to the conclusion that the discretion has been exercised after proper application of mind.

Let us see from where the problem arose. The Colleges in which the plaintiff-respondents were studying were affiliated with the Punjabi University, Patiala and the said University was conducting the examinations regularly. The problem arose when these Colleges were affiliated to Baba Farid University in the year 1999. The entire thrust of the arguments of Mr. Patwalia, if I have followed correctly, was that the Colleges were not recognised by the Dental Council of India, the students never appeared in the P.M.T.; they were never interviewed by the duly authorised bodies of the State Govt. and if the students have been fleeced by the Managements of Private Colleges, Baba Farid University is not bound to oblige them.

The submissions of Mr. Palwalia cannot be readily accepted. The peculiar facts of these cases are such that the same cannot be ignored lightly. I have just stated above that the Colleges were previously affiliated to Punjabi University and this is the position which I find even from the letter dated 14.6.2000 issued by the Dental Council of India, which admits that the Khalsa Dental College and Hospital, Nangal Kalan, Mansa, was affiliated to Punjabi University till 30.6.1999. If Punjabi University had been undertaking the examination of these candidates, it cannot be said that the students are at fault. They were undertaking their studies under a bona fide belief that they are the students of an institute which is affiliated to a University. Not only that, the University was undertaking the examinations. Later on, if the Govt. has transferred all the Colleges imparting health education and affiliated to the three Universities; i.e. Punjabi University, Patiala, Panjab University, Chandigarh and Guru Nanak Dev University, Amritsar, to Baba Farid University, the students should not be put in a disadvantageous position. Their loss of career is an irreparable injury which cannot be compensated by money or damages. Rightly observed by the first appellate court that if the excess number of students had been admitted by the institute, it is not the fault of the students. Even the stand of the Dental Council of India at one point of time was that permission was granted to the Khalsa Dental College and Hospital, Nangal Kalan, Mansa, to admit 60 students in the BDS Course for the year 1995-96 and a Letter of Intent was issued to that effect. Moreover, it has become a time bound case. The plaintiffs have been given the admission in the courses at their own risk and responsibility. Any undertaking of the examination or declaration of the result is subject to the final decision of the suit. If the suit of the plaintiffs fails, they sink and if they succeed ultimately, they swim. I have to see prima facie case at this juncture. Further, this court is to see whether the balance of convenience lies in favour of the plaintiffs or the defendants and that who will suffer an irreparable injury. The answer of this court is in favour of the plaintiffs.

During the course of submissions, Mr. Patwalia also drew my attention by stating at the Bar that the Hon''ble High Court is seized of the matter as to whether these students can be accommodated in other recognised institutions or not and it is also under the consideration of the Govt. and the University whether any appropriate scheme in this behalf can be framed or not.

In my opinion, if this is the situation, the case of the plaintiffs becomes more strong. It cannot be said that both the courts below have been totally swayed by humanitarian grounds.

In this view of the matter, I do not see any illegality or impropriety or perversity in the order of the first appellate court. Therefore, the present revision is dismissed in limine.

Nothing stated above shall amount to expression of my opinion on the merits of the suit and it is hereby declared that the trial Court shall be bound by the directions given by the first appellate court for the disposal of me suit.

Copy of the order be sent to the trial Court for strict compliance.

Revision dismissed.