AI Structured Summary
Not yet generated for this judgment
Judgment
Sushil Harkauli, J.—All these writ petitions involve common questions and were therefore, listed together and heard together.
W.P. (C) No. 5203 of 2009 is by a trust known as Shree Shree Lakhsmi Narain Trust. In this writ petition, the trust claims that it has the right to nominate candidates for admission to the M.B.B.S. course in the Patliputra Medical College, Dhanbad. The said right has been denied by the impugned order dated 30.9.2009 passed by the Government of Jharkhand, a copy of which has been enclosed as Annexure-15 to this writ petition.
W.P. (C) No. 4753 of 2009 is by two nominees of the said trust who are seeking admission to the aforesaid course on the strength of their nomination for the course by the trust.
W.P. (C) No. 4694 of 2009 is by another candidate who has been nominated by the said trust and who is seeking admission on the strength of such nomination.
W.P. (C) No. 4715 of 2009 is by a candidate who has been nominated by M/s Tata Steel Limited for the same course under quota for nomination given to M/s Tata Steel Limited. The said quota for M/s Tata Steel Limited has been denied by another order dated 30.9.2009 passed by the Government of Jharkhand on similar grounds on which nomination quota has been denied to Shree Shree Lakhsmi Narain Trust. A copy of that order dated 30.9.2009 passed in respect of the nomination quota of M/s Tata Steel Limited has been enclosed as Annexure-5 to this writ petition.
The first question which arises for consideration is whether the reasons given in the order dated 30.9.2009 for denying the quota to Shree Shree Lakhsmi Narain Trust and Tata Steel Ltd. are valid; the second connected and more fundamental question is whether the right of nomination of candidates for admission to the M.B.B.S. course in the Patliputra Medical College still continues to be valid and enforceable on part of Shree Shree Lakhsmi Narain Trust and Tata Steel Ltd.
The reason for saying that the second question is more fundamental and more important is that even if the first question is answered against the Government on the ground that the reasons given in the order dated 30.9.2009 are not legally correct, yet no effect relief is possible for either the trust or its nominees if a mandamus cannot be issued directing that the State Government and the authority which held the Joint Entrance Test for the MBBS course, to admit the nominees of the trust to the said course in the current academic session.
The trust claims the source of its power of nomination from an �agreement� or at least a �promise� by the Medical College (private) Management to the trust that in lieu of donating a hospital of the trust to the Medical College, the trust would have the right to (i) nominate one student to be admitted to the College free of charges and (ii) to nominate four more candidates to the admission to the said College on payment basis.
In support of this �promise� a letter dated 24.3.1975, written by the Medical College to the Managing Trustee has been enclosed as Annexure-2 to this writ petition. The consequent donation-deed of 1987 is enclosed as Annexure-4 to the writ petition by which the hospital was donated by the trust to the Medical College.
This matter was considered in detail by a decision of a Division Bench of the Ranchi Bench of Patna High Court in the judgment dated 24.2.1998 passed in C.W.J.C. No. 690 of 1989(R). The said judgment gives all the facts in great detail and instead of burdening the present case by a repetition of all those facts it is directed that a copy of the said decision of the Division Bench will accompany the certified copy of this Judgment for ready reference.
By that decision, it was held that the State Government may take a final decision in the matter and in the meantime, the sponsored candidates of the trust will be admitted to the College subject to their eligibility for such admission. This decision was taken by relying the principle of promissory estoppel.
The Medical College in question was taken over by the Bihar Private Medical Colleges (Taking Over) Act, 1978. Section 3(3) of the said Act provided as follows:
3.(3) All the liabilities and obligations of the college under any agreement or contract entered into bona fide before the date of taking over shall devolve and shall be deemed to have devolved on the State Government.
Section 5 of the said Act was also referred to, and the same is reproduced below for ready reference:
Contracts in bad faith may be cancelled or varied. Without prejudice to the provisions contained in Section 4, the State Government may cancel or vary any contract or agreement entered into at any time before the issue of the notified order under Sub-section (1) of Section 3 between the College body and any other person or between the Board of Control and any other person, if the State Government is satisfied that such contract or agreement were mala fide and entered into in bad faith and was detrimental to the interest of the College.
It is no body''s case that the promise made by the private Medical College to the trust was in bad faith or was not bona fide at the time when it was made.
It was argued that there was no such �promise� or �agreement� by the Medical College. However, in view of the fact that the promise is supported not only by documentary material but has also been found to exist in the decision of the Division Bench dated 24.2.1998 in C.W.J.C. No. 690 of 1989 referred above and that every year the nominations of the trust have been honoured over a long period of time, is more than sufficient to reject the submission of about non-existence of such promise.
As mentioned above, the Division Bench of the High Court left it open to the State Government to take a final decision which has been taken by the impugned order dated 30.9.2009. 17. Two reasons are mentioned for denying the nomination quota to the trust. The first reason is that presently no facility (hospital) of the trust is being used by the Medical College now because of which there is no justification on continuing the facility of nomination.
This ground is difficult to sustain because while making the promise granting the privilege of nomination, which was acted upon by the trust by transferring the hospital to the Medical College, there was no such reservation that the nomination privilege would continue only so long as the hospital was used for the purposes of the Medical College.
The second reason given in the impugned order dated 30.9.2009 is that according to the decision of the Supreme Court in the case of State of Gujarat and Others Vs. Meghji Pethraj Shah Charitable Trust and Others, it has been held that no seat in educational institutions can be filled by nomination because of which the nomination facility of the trust cannot be continued.
From the side of the trust and its nominees it was argued that for the said proposition in the Gujrat case (supra) the Supreme Court has relied upon of the another decision of the Supreme Court in the case of Unni Krishnan, J.P. and others Vs. State of Andhra Pradesh and others etc. etc., which has subsequently been modified by the Supreme Court in the case of T.M.A. Pai Foundation and Others Vs. State of Karnataka and Others, . The relevant words of the Judgment in the case of State of Gujrat and Ors. v. Meghji Pethraj Shah Charitable Trust and Ors. (supra) are extracted below:
...Now, where an individual or an organisation which establishes and runs a medical college (recognised by State or affiliated to a university) is not entitled, according to Unnikrishnan to admit students on its own, or in its discretion, it is inconceivable that a person or a body which has assisted in setting up of a government medical college would be permitted to have a quota of its own to which it can nominate students of its own choice. There is no room for such an arrangement in law...
In the case of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (supra) a Constitution Bench of the Supreme Court was examining the rights of minorities to administer educational institution established by such minorities. In the said law report, the reconsideration of the Unnikrishnan case finds place in paragraph 27 to 45.
I do not find the criteria of admission purely on merits as laid down in the case of Unnikrishnan to have been watered down in the case of T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (supra). More importantly, the T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. (supra) case does not permit any unrestrained quota in admission to the Management or to any other person or body. Thus, the words of the Supreme Court quoted above from the case of State of Gujrat and Ors. v. Meghji Pethraj Shah Charitable Trust and Ors. (supra) still hold good as law and accordingly second reason given in the impugned order dated 30.9.2009 cannot be faulted.
More importantly, in 1995, when the State of Bihar had not been bifurcated into Bihar and Jharkhand, an Act was passed by the Bihar Legislature which is known as fcgkj la;qDr izos''k izfr;ksfxrk ijh{kk vf/kfu;e] 1995 (Act-15 of 1995). Section 3 of the aforesaid Act is relevant and reproduced below:
^^O;kolkf;d ikB~;�eksa esa izos''k A �1� fdlh U;k;ky; ds fu.kZ; fM�h] vkns''k vFkok fdlh vf/kfu;e] fu;e ;k ifji= esa vUrfoZ"V fdlh ckr ds izfrdwy gksrs gq, Hkh vfHk;a=.k] fpfdRlk foKku] nUr fpfdRlk] QkesZlh] d`f"k foKku] i''kq fpfdRlk foKku] eRL;] Ms;jh] okfudh ds Lukrd Lrj ds ikB~;�eksa rFkk leku izd`fr ds vU; ikB~;�eksa ds izFke o"kZ eas izos''k la;qDr izfr;ksfxrk ijh{kk ds vk/kkj ij fd;k tk;sxkA
�2� jkT; ,oa jkT; ds ckgj ds fo''ofo|ky;ksa] egkfo|ky;ksa ,oa laLFkkuksa esa izos''k ds fy, tgka jkT; ljdkj ls euksu;u dh vis{kk gks ,slk euksu;u la;qDr izos''k izfr;ksfxrk ijh{kk ds vk/kkj ij fd;k tk;sxkA The aforesaid legislative provision had not been considered in the Division Bench decision dated 24.2.1998.
The aforesaid legislative provision, against which there can be no estoppel, strictly prescribes without any exception that admission would be made only on the basis of the Combined Competitive Examination. An attempt was made from the side of the trust to get out of the rigour of this legislative provision by arguing that the over-riding opening words of Section 3(1) apply only to decisions decrees and orders of Courts and to statutes, rules and circulars (paripatra). It was argued that those over-riding word do not include agreement and promises. It is difficult to accept this argument because it is not merely the express words of statute but also necessary intendment which has to be seen and the interpretation which advances the purposes of the legislation has to be adopted keeping in mind not only the mischief which is sought to be remedied but also the principle of law consistently laid down by the Supreme Court namely that admission should be only on merit as determined by the Joint Competitive Examination.
Therefore, the said provision over-rides everything which detracts from merit based admission.
In the circumstances, in view of the statutory provision in the aforesaid Section 3 of the 1995 Act, the petitioner trust has no right to nominate candidates to the M.B.B.S. course and admission to that course has to be exclusively on the basis of the merit as determined by the Joint Competitive Examination. The principle of promissory estoppel propounded in the Judgment of the Division Bench of this Court dated 24.2.1998 will also not be available to the trust as there can be no estoppel against statute.
As a result, both the questions framed at the beginning of this order are answered in favour of the respondents and against the petitioners. Accordingly, writ petition (C) Nos. 5203 of 2009, 4694 of 2009 and writ petition (C) No. 4753 of 2009 are dismissed.
So far as the writ petition (C) No. 4715 of 2009 is concerned, which is based upon a nomination by M/s Tata Steel Limited. The source of the power to nominate it based upon a situation similar to the case of the aforesaid trust ie. earlier use of Tata�s hospital by the Medical College. The denial of quota is alleged in the impugned order to be on the two grounds identical to that of the trust. Therefore the said WP (C) 4715 is also dismissed for the same reasons as given above in this order.
Writ Petition (C) Nos. 414 of 2010 and 4916 of 2009 are by the candidates who had appeared at the Combined Entrance Test but being lower down in merit could not get admission to the M.B.B.S. course. These candidates have filed these writ petitions for a direction to the respondents to admit these students against the vacant seats which are available.
It has been argued from the respondents'' side that more than six months of the current academic session have already gone by. Of the three semesters which take place every year, the first semester examination is over and the second semester is also drawing to a close. It has been argued that admission should not be directed at this belated stage for the current academic session as these candidates will not be able to fulfill the requirement of minimum 75% attendance necessary for appearing at the final examination. Reliance has also been placed from the respondents'' side upon a decision of the Supreme Court in the case of Medical Council of India v. Manas Ranjan Behera and Ors. reported in (2010) 1 SCC 173. The said decision is reproduced below in its entirety:
Leave granted. The Medical Council of India has challenged the order passed by the Division Bench of the High Court of Orissa directing the admission of twelve students after the cut-off date of 30th September of the year concerned.
It may be noticed in Mridul Dhar V. Union of India this Court directed that all the parties shall comply with the directions issued by this Court as regards admission of students in the medical and dental colleges. In Direction 15 of para 35 of the judgment, we had also indicated,
Time schedule provided in the Regulations shall be strictly adhered to by all concerned failing which the defaulting party would be liable to be personally proceeded with.
In view of these directions, the High Court should not have passed the impugned order.
However, we have noticed that these twelve students were eligible and because of unprecedented situation, they could not secure admission within the prescribed time-limit. We condone the delay in giving admission to them as a one-time measure. However, we clarify that the time schedule prescribed by this Court should be followed strictly.
The appeals are disposed of accordingly.
In view of the underlined words of the Supreme Court quoted above, it would not be proper for this Court to issue the direction prayed for at this belated stage. Therefore, both the writ petitions i.e. writ petition (c) No. 414 of 2010 and writ petition (c) No. 4916 of 2009 are dismissed.