AI Structured Summary
Not yet generated for this judgment
Judgment
Srinivasan, J.—The question that arises for consideration before us is in a very narrow compass. The Respondent herein after completing M.B.B.S., course, joined Government service and was posted as Assistant Surgeon in Government Upgraded Primary Health Centre at Kelamangalam, Denkanikottai Taluk, Dharmapuri District. He worked there till May, 1992. He was selected for diploma Course in Opthalmology which he completed successfully. He was posted as Assistant Surgeon at Government Upgraded Primary Health Centre, Perambakkam, Chengalpatu District. Desirous of pursuing his further education in Post Graduate course M.S., (Opthalmology), he applied for joining 1993-94 session on 7.3.93 under the Service Category. There were ten seats in the course, out of which five were reserved for Service Category and five were to be taken from the Open Category. According to the Prospectus, the quota will be filled up only on the basis of merit, duly following the rule of Reservation and the Open Quota must first be filled up. The Petitioner was given the Registration No. 141120 for Entrance Examination. The results ought to have been published on 3.4.93 as specified in the Prospectus. There were some challenges of the results and ultimately, the revised list was published on 20.3.94. According to the said list, eight candidates were selected for admission. In the advertisement made in ''The Hindu'' dated 20.3.94, containing the list of selected candidates, the following statement is found:
The selected candidates should join their respective courses on or before March 28, failing which they will forfeit their seats, These seats will be filled up with the candidates from the waiting list in the order of merit.
For the next academic year, viz., 1994-95, the Selection List was published in ''The Hindu'' dated 18.7.94. Nine candidates were selected for the course, four of them in the Open Category and five in the Service Category. According to the advertisement, 19% seats were not filled up in the previous year, in view of the Supreme Court verdict and they had been allotted for the current year viz., 1994-95 in addition to the candidates for the current year. Thereafter the Respondent wrote a letter on 18.8.94 to the Selection Committee that he is in the waiting list for Selection List to M.S., (Opthalmology) in the Service Open Quota Category. According to the said letter, as the results were not declared fully and seats were kept pending, he was fully eligible to get admission if the reservation was restricted to 50% as per the Supreme Court''s direction. He requested for accommodating him to pursue his Post Graduate course in M.S., (Opthalmology) and intimate selection to him. There was no response. He filed the Writ Petition on 22.8,94. It was taken on file as W.P. 14905/94. The Writ Petition was admitted on 24.8.94 and notice was ordered in the interlocutory petition W.M.P.22511/94 in which he had prayed for a direction to the Respondents to reserve a seat in M.S., (Opthalmology) for him till the disposal of the Writ Petition. The prayer in the Writ Petition is for issue of mandamus directing the Respondents to admit him under the Service Category either directly or by creating a seat in the event of all the seats having been declared filled up. In the affidavit in support of the Writ Petition, his contention is that he is No. 1 in the waiting list in Service Open Quota and as there were vacancies in the course he had to be admitted. The affidavit does not set out how in law the Petitioner can claim to be entitled to a seat in the course for 1993-94 session. It should be remembered that the Writ Petition itself was filed only after the list for 1994-95 was published, even though in the list for 1993-94 which was published in March, 1994 the Petitioner''s name did not find a place.
After the Respondents entered appearance, they were directed to file counter in the main petition so that the main Writ Petition could be disposed of. They were granted 15 days time from 6.1.95. But no counter affidavit was filed by the Respondents. On 24.2.95, the learned single judge, after hearing both parties, passed an order, the relevant portion of which reads as follows:
The learned advocate for the Petitioner submitted that there are vacancies in the said course and this Court should direct the Respondents to admit the Petitioner. However, the learned Government Advocate submitted that there are no vacancies and they are not in a position to admit the Petitioner. The Government Advocate has fairly submitted that if there are vacancies they will definitely admit the Petitioner.
I direct the Respondents that if the vacancy is there, the Respondents should admit the Petitioner within 15 days from to-day to the said course. It is submitted by the learned advocate for the Petitioner that some students, who had been admitted, have discontinued. If such vacancy is there and if the Petitioner is eligible, he will be admitted to the said course.
On 10.3.95 Learned Counsel for the Respondent (Writ Petitioner) would appear to have mentioned before the learned single judge that a clarification was necessary in the order passed on 24.2.95 and sought a direction to call the matter in the afternoon on the same day. Notice would appear to have been given to the Government Advocate and the matter was heard after lunch on that day. The following order was passed by the learned Judge:
In W.P. No. 14905 of 1994 on 24.2.1995 I passed the order. The last portion of the order reads as follows:
If such vacancy is there and if the Petitioner is eligible, he will be admitted to the said course.
Both the counsel for the Petitioner as well as the Respondents submit that since the said direction leads to some confusion, it may be deleted. Both the advocates agreed for the said prayer. Since both of them agreed, I direct that the said portion, i.e., "If such vacancy is there and if the Petitioner is eligible, he will be admitted to the said course", should be deleted from the said order.
Thus the order dated 24.2.95 was modified by the learned judge on 10.3.95 on the only ground that both the advocates had agreed for the deletion of the last sentence in the said order. Thereafter the Appellants herein filed W.M.P. 8846/95 for modification of the order dated 10.3.95 by including the sentence which was deleted by the said order. In other words, they wanted the order dated 24.2.95 to be restored in entirety. In the affidavit filed in support of the said petition the facts relevant to the selection of candidates for the year 1993 -94 and for the year 1994-95 were set out. It is stated that out often seats available for the course, five were reserved for candidates under Service Category and the remaining five seats are for candidates under Open Category. As regards the Service Category, the affidavit sets out that all the five seats were filled up and in particular, the two seats which were to be given to Open Category under the rule of reservation were filled up. As the Writ Petitioner belongs to Open Category and not B.C., M.B.C., or S.C., it is pointed out in the affidavit that he was not entitled to claim a seat in the Service Category. As regards the open category it is stated in the affidavit that two of the persons who were selected did not join. But yet the Petitioner would not be entitled to get selected as he has scored only 63.25 marks. It is pointed out that the person who was selected under the open category had secured 67.42 and between the Petitioner and the said person there were at least about 20 candidates with higher marks than that of the Petitioner. In the said circumstances, the prayer was for restoring the sentence which was deleted by the order dated 10.3.95 which would enable the Appellants to admit the Petitioner only if he is eligible.
That petition was opposed by the Respondent herein and the learned judge has passed a detailed order. The learned judge has referred to the arguments advanced on both sides and the rulings cited before him. One of the contentions urged on behalf of the Appellants was that under the Open Quota the Petitioner could not be given a seat as number of other candidates have scored more marks than the Petitioner and they had not been selected. If the Petitioner was given a seat, those candidates will be prejudiced. That contention was rejected by the learned judge on the footing that there was no necessity for the court to consider those who had not approached the Court. The learned judge relied upon a passage in the judgment of the Supreme Court in Minor A. Peeriakaruppan and Sobha Joseph Vs. State of Tamil Nadu and Others, . The learned judge has in his order distinguished the ruling of the Supreme Court in Punjab Engineering College Chandigarh through its Principal Vs. Sanjay Gulati and Others, and State of Uttar Pradesh and others Vs. Dr. Anupam Gupta, etc., . Ultimately, the learned judge said that when there are seats in the Open Quota, the Petitioner ought to be admitted and there was no reason whatever to modify the order dated 10.3.95. Consequently, he dismissed the petition.
The said order is challenged in this appeal. The only question to be considered by us is whether the learned judge was right in deleting the last sentence in his order dated 24.2.95 on the matter being posted before him "for being mentioned" at the instance of the counsel for the Petitioner. As pointed out already, the order dated 10.3.95, deleting the last sentence in the order dated 24.2.95 was passed only on the consent of both the advocates. The learned judge has not given any reason for modifying the earlier order and deleting the sentence. In such circumstances, the question arises naturally as to whether the advocate who appeared for the Appellants herein had the authority to give consent for such an order being passed. It is not in dispute that the advocate who appeared was only Government Advocate and not a person who had signed the Memorandum of appearance on behalf of the Appellants, nor did the advocate file any vakalat on behalf of the Appellants. Such an advocate is certainly not entitled to act on his own and give consent to an order being modified. The advocate ought to have taken time for getting instructions from the Appellants before expressing consent for the modification. We have already pointed out that the matter was mentioned in the morning and brought up before the court in the afternoon session. Naturally, the advocate did not have time to contact the parties and get instructions as to what stand should be taken in the matter. Hence, the advocate has no authority to make a concession before the court without consulting the Appellants herein.
The Supreme Court has held that the Government can be bound only by a statement made by the Advocate General and any concession by Government Pleader will not be binding on the Government. Vide Periyar and Pareekanni Rubbers Ltd. Vs. State of Kerala, In the present case, it is not even a statement of a Government Pleader but it is only a Government Advocate who represented the Appellants before the learned single judge.
Moreover, a matter cannot be posted "for being mentioned" for challenging a judicial order passed by a court. If any of the parties is aggrieved by any part of the order, it is for him to take appropriate proceedings as contemplated by law and seek either review or modification under the appropriate provision of law. Recently, a Division Bench of this Court, to which one of us was a party, has considered this aspect of the matter in Arunachalam, K.K. v. K. Nallusamy 1995 2 L.W. 456 and observed as follows:
We must also at this stage point out that the alleged practice of posting the matters "for being mentioned" is not justified by any provision of law. Once the court passes an order, if a party is aggrieved by any part of it, is for the party to file an application for review or any other application under any provision of law. The party cannot prescribe the procedure of its own and have the matter mentioned in court orally and bring it before the court once again for fresh consideration. The proper procedure in all cases where a party is aggrieved by an order is to file an application before the Court for proper relief. We can understand if it is a small arithmetical or clerical error, say, a word has been omitted or wrong calculation has been made, it may be mentioned and the rectification maybe made. Even for that purpose Section 152 of the CPC prescribes a procedure and that should be followed even in such cases. We are unable to appreciate how after an order is passed it could be reversed by bringing it for "being mentioned" and get the whole matter reconsidered. In this case, the procedure adopted by the party for bringing up the matter "for being mentioned" on the ground that his counsel was not heard, is not in accordance with law. Learned single judge ought not to have directed the matter to be posted "for being mentioned". He ought to have directed the Plaintiff to file an appropriate application for the relief which he wants at the hands of the learned judge.
In the Law Weekly report the Editor has made a footnote, inviting the attention of the readers to the decision in Khan Bahadur C.K. Mammad Koyi v. Assistant Controller, Estate Duty Circle, Coimbatore AIR 1962 Mad 36 at page 43 on the aspect of ''being mentioned''. It is seen from the said case that after the judgment was delivered in the main case, the matter was posted before the court for being mentioned with regard to the counsel''s fees allowed in the order. The order in the main Writ Petition fixed a sum of Rs. 500/- by way of counsel''s fees. The contention before the Bench was that the maximum that could be fixed was a sum of Rs. 250/- for that matter. The Writ Petition was posted "for being mentioned". The Bench considered the said contention and rejected the same on merits. Obviously, the editor of the Law Weekly has attempted to draw the attention of the readers to the said decision only for the purpose of pointing out that such a practice of ''being mentioned'' had been prevalent in this Court for such a long time. No doubt, the eminent judges who decided that case did not go into the question whether the matter could be posted before the court for ''being mentioned'' and under the guise of "being mentioned'' the order could be varied or altered in any manner so as to prejudice the rights of parties. But, that does not mean that the practice is valid or that it is supported by any provision of law. As pointed by the Division Bench in Arunachalam''s case there is no provision of law to get the matter posted "for being mentioned."
It should not also be forgotten that the days have changed and at present we see in many cases that the parties are prepared to deny their signatures in the vakalats and pleadings even during the pendency of the case in which they have filed vakalat and pleadings. We are also aware that lawyers are prepared to give false evidence before court, and very recently, the same Division Bench which decided Arunachalam''s case had to find in two cases that the lawyers had given false evidence. In such a situation, it is not advisable to encourage the practice of ''being mentioned'' to bring up the case for altering the orders without even an application or an affidavit by the party concerned. It is also against the principles of natural justice as the other party will be taken by surprise, and in many a case, they may be unwittingly conceding the request made by the person who brings up the matter for ''being mentioned'' without realising the consequences. In this case, for example, the consequence will be very serious by deleting the said sentence from the order dated 24.2.95. Thereby, the Court will be enabling the Petitioner to get admission in a course of Specialty even though he has scored much lesser marks than about 15 to 20 persons who have scored more marks. It is a case of working gross injustice as against the persons who had scored more marks who would have been eligible for selection in preference to the Writ Petitioner. There is no justification in saying that those persons have not approached the Court and their rights could be ignored. It should not be forgotten that the Petitioner has come to Court for admission in 1993-94 session only after list for 1994-95 was published. Nobody would have thought of seeking admission to the course for 1993-94 session at that time and just because the Petitioner has chosen to approach the Court after such a long delay it should not be held that he should be given a seat in the course, in spite of the fact he has scored lesser marks than several others. In fact the-Supreme Court has pointed out in State of Kerala Vs. Kumari T.P. Roshana and Another, that the measure for admission is academic excellence and not litigative persistence. It has been repeatedly held by the Supreme Court that for higher Speciality courses the only test should be academic excellence and not any other consideration. In those circumstances, the Government Advocate ought not to have agreed for the deletion of the last sentence of the order dated 24.2.95 and such concession by the Government Advocate is not binding, on the Appellants herein.
Hence in our view the order dated 10.3.95 requires to be set aside and the learned judge is in error in dismissing the petition W.M.P.8846/95 in which the prayer was to modify the order dated 10.3.95. Consequently this appeal is allowed. The order in W.M.P. 8846/95 is set aside. The prayer in the said petition is granted. The order passed on 24.2.95 is restored.
In this view, it is not necessary for us to consider the merits of the contentions raised in the Writ Petition by the Respondent herein and the arguments advanced. The parties shall bear their respective costs.