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Judgment
N. Paul Vasanthakumar, J.—In this writ petition, petitioner seeks a direction to the respondents 1 to 3 to declare that he has passed the
MDS course with effect from the 1st supplementary examination, i.e., September, 2004, so as to enable him to get his seniority and promotion
thereon.
The brief facts necessary for disposal of the writ petition are as follows.
(i) Petitioner passed BDS course and applied for MDS course in the academic year 2001-2002 in terms of the prospectus issued by the 4th
respondent. Petitioner was ranked 18th among the applicants for MDS course and he was wait listed for the specialty course in Oralpathology in
the Government Dental College, wherein only seven seats were available for non-service candidates.
(ii) Petitioner filed W.P. Nos. 9403 and 9404 of 2001 before the High Court of Madras for allotment of seats in the Government Dental College
according to his merit against one of 18 additional seats, available by reasons of the deemed approval of the Central Government. The Principal
Bench at Madras passed an interim order to conduct second counseling and thus, the petitioner was given a seat in the MDS Oralpathology
course. According to the petitioner, the said procedure of admitting candidates in the additional seats were followed in the preceding years from
1997-98 to 2000-2001. Hence the petitioner joined in the course on 10.6.2001.
(iii) It is the further case of the petitioner that he had filed second writ petition with a prayer to allot a seat according to his merit in one of the self-
financing colleges, as otherwise, he will be deprived of the seat in the event of any adverse result in the other writ petition. On 8.5.2001, the
Principal Seat at Madras ordered to grant provisional admission to the petitioner in any one of the self-financing college, excluding two of such
colleges, which challenged the Government Order dated 18.9.1996 directing to fill up 50% of the seats. Petitioner was called for counseling along
with others, but the seats were not sanctioned afterwards.
(iv) According to the petitioner, he got impleaded in W.A. No. 550 of 1997 and applied for vacating the stay obtained by two self-financing
colleges directing to fill up 50% seats with Government allotted candidates. The appeal was dismissed on 20.12.2001 by a Division Bench of the
High Court of Madras and the power of the Government was upheld in respect of the allotment of students to the post graduate dental course.
Ultimately in the above referred judgment it was observed that the students including the petitioner, who have already got admission in the
Government Dental College, need not be allotted seats in the self-financing colleges.
(v) It is the grievance of the petitioner, that candidates with 60th and 70th ranks were admitted in the Private Dental Colleges in good speciality
courses, whereas the petitioner with 18th rank was put into non-recognised category in the Government Dental college. Petitioner had completed
three years MDS Course in the Government Dental College and passed Part-I examination and there is no examination for the second year.
Petitioner paid the examination fee for the final year part-II examination. However, the second respondent refused to permit the petitioner to take
up the final year part-II examination to commence on 18th March, 2004. Petitioner was allowed to write the examination by virtue of the interim
order passed by the Madras High Court along with other candidates on 18.3.2004 and the results were withheld.
(vi) The State Government submitted proposals for the increase of seats and ultimately the Central Government and Dental Council of India ratified
creation of additional seats to the Government Dental College, Chennai, by order dated 23.12.2005. The said order is extracted hereunder.
No.V.12017/39/97-PMS(DE)
GOVERNMENT OF INDIA
Ministry of Health & F.W.
Department of Health
(PMS Section)
Nirman Bhawan,
NEW DELHI,
the 23rd December, 2005
Health & Family Welfare Department,
Government of Tamil Nadu,
Secretariat, Fort St. George,
CHENNAI - 600 009.
Subject :The Tamil Nadu Government Dental College & Hospital, Chennai - Admission made in excess of the approved capacity in 7 Specialities
of MDS Course in the dental College between 1997 and2001.
Sir,
In supersession of this Ministry''s letter of even No. Dated 21.12.2005 and in continuation of this Ministry''s letter of even No. Dated 22.12.2005
on the subject matter, I am desired to convey the following decision of the Central Government on the request contained in your letter No.
56526/MCAI/2000-35, dated 21.7.2005 on the above subject:
The request of the State Government was considered by the Central Government in the light of the observations made by the Hon''ble High
Court of Madras in its interim order passed on 17.3.2004 in W.A. No. 2003 and 1231 of 2003 and it was decided to accede to the request of
the Government of Tamil Nadu to regularise the 90 students admitted in excess of the approved capacity in the following 7 Specialities of MDS
Course during the period between 1997 and 2001 in Tamil Nadu Government Dental College & Hospital, Chennai, subject to the condition that
the college authorities will surrender 2 seats per year from the approved intake capacity on rotational basis from different Specialities of MDS
Course until all the excess admissions are neutralised:
---------------------------------------
Prosthodontics 2. Periodontics
Orhedontics 4. Oral Surgery
Oral Pathology 6. Cons. Dentistry
Oral Medicine
---------------------------------------
It has further been decided to advise the concerned authorities to ensure that such mistakes in the matter of admission to MDS course are not
committed in the future in Tamil Nadu Government Dental College & Hospital, Chennai, and fix responsibility for the mistake already committed in
the matter.
This issues with the approval of the competent authority.
Yours faithfully,
(Aastha S. Khatwani)
Director (ASK)
After the ratification of admission by the Central Government, the results were published, in which the petitioner failed in the theory examination,
with a shortfall of ten marks. Petitioner appeared for the supplementary examination held in March, 2006 and passed the same with first class
marks. In these circumstances, petitioner has filed this writ petition with the above referred prayer.
The learned Counsel appearing for the petitioner argued that only because of the delay in publication of the results for the examinations held in
March, 2004, petitioner was compelled to take examination in March, 2006 and had the results been published in April, 2004, petitioner would
have appeared for the failed subject in September, 2004 itself and therefore the petitioner is justified in claiming that he is to be treated as passed in
September, 2004 itself.
The learned Senior Counsel appearing for the respondents 2 and 3 submitted that the fact remains that the petitioner passed the examination
only during March, 2006 and the benefit of pass in the examination can be given only from the date of passing the examination and that the
petitioner cannot maintain this writ petition for the relief sought for.
I have considered the rival submissions made by the learned Counsel appearing for the petitioner as well as the learned Counsels appearing for
the respective respondents.
The point in issue is whether the petitioner is entitled to get degree from September, 2004, for the examination he passed during March, 2006.
Section 5 of the Tamil Nadu Dr. M.G.R. Medical University, Chennai, Act, 1987, reads as under:
The University shall have the following powers, namely:
(1) to hold examinations and to confer degrees, diplomas and other academic distinctions on any person who;-
(a) shall have pursued an approved course of study or training in a college or University laboratory or an approved institution unless exempted
therefrom in the manner prescribed by the statutes and shall have passed the examinations prescribed by the University; or
(b) shall have carried on research under conditions prescribed by the statutes;
(2) to confer degrees, diplomas and other academic distinctions on persons who shall have pursued an approved course of study; training or
research in an autonomous college.
From the said provision of the Act, it is seen that the petitioner having failed in one subject and passed the subject only in the examination held
during March, 2006, he cannot claim retrospective pass and the same is contrary to the statutes and well recognised principle that a person can be
conferred degree only from the date of passing the degree and not prior to that.
There is no dispute with regard to securing of pass marks by the petitioner in the subject in March, 2006 examination. The statement of marks
given by the University on 29.4.2006 contains the month and year of pass of the examination as March, 2006. The reason for the delay in
publication of the results may be on the part of the respondents, particularly respondents 1 and 4 i.e, without prior approval of the Dental Council
of India and Central Government, the seats were increased. Petitioner is also particularly responsible for getting himself admitted in the Government
Dental College by filing writ petition seeking admission in the Dental College, in the seat over and above the sanctioned strength, pursuant to the
interim order obtained from this Court. The writ petition filed by the petitioner was dismissed (W.P. No. 9404 of 2001) by the Division Bench of
the Madras High Court on 22.4.2003. Paragraphs 15 to 18 of the said order read as follows,
While the concern of the petitioner for legalities is to be appreciated, his efforts at trying to secure admission in several colleges at the same
time cannot be appreciated. He was an aspirant for the M.D.S. Course; he had persuaded the Court to direct the Government Medical College to
increase the strength, and had agreed to join that course at his risk in one of the seats so enhanced pursuant to the order issued by the Court. At
the same time he has been trying to ride another horse by maintaining a claim for admission in a self financing college. He cannot, even while he was
a student of the Government Dental College, assert a right to join a self financing college against a seat which the self financing college was required
to make available to a person allotted by the Selection committee. It is not in dispute that as on 25.07.2001 and shortly thereafter, the seat that the
petitioner wanted for Orthodontics in the college chosen by him was not available. Thus, the denial of admission to him on that date cannot be
faulted.
It is most unfortunate that the Government has not been monitoring as efficiently as it should, the litigation that has gone on in the cases
concerning admission to Dental Colleges, and the increase in the number of seats in such colleges. This Court had occasion to severely criticise the
conduct of the Government in the judgment in W.P. No. 9403 of 1991 etc. Dated 22.10.2002, delivered by one of us earlier speaking for the
Bench, wherein the court had directed the Chief Secretary to the State Government to initiate an enquiry in this regard. Whether or not such
enquiry was initiated and the result of any such enquiry, if one had been instituted, has so far not been made known to the Court.
There may or may not be something in the criticism made by the counsel that the Government was itself hand in glove with the management of
self financing colleges. The Bench in its order of 22.10.2002 made in W.P. Nos. 9403 of 1991 etc., had noted the possible collusion between the
Government and the petitioners therein in allowing an interim order wholly unwarranted on facts, to remain in force for several academic years.
That conduct of the Government, however, does not result in any additional right being conferred on the petitioner. The petitioner is not entitled
to any relief.
The above order has become final and only because of the ratification given by the Central Government through notification dated 23.12.2005,
passed pursuant to the interim order passed in W.A. No. 2003 and 1231 of 2003 dated 17.3.2004 and also due to the action taken by
respondents 1 and 4, the results of the students, who were admitted over and above the sanctioned strength, were declared. Therefore the
petitioner as well as the respondents 1 and 4 are equally responsible for the plight of the petitioner as held by the Division Bench in its order dated
22.4.2003 in W.P. No. 9404 of 2001. Petitioner having passed the examination after appearing in the arrear examination held in March, 2006, he
cannot seek for a declaration that he should be declared as passed from September, 2004 and the same is contrary to the University regulations
and also the mark statement issued by the University.
I do not find any merit in the writ petition and consequently the same is dismissed. No costs.