Judgment:
ORDER
A.R. Tiwari, J.
1. This is a petition under Article 226 of the Constitution of India.
2. The petitioner claims that he was eligible and entitled for being placed in the waiting list for Second Counselling and on superior merit seeks issuance of writ for his admission in P. G. Medical Course M. S. General Surgery in MGM Medical College, Indore via creation of additional seat or in Medical Course M. D. Medicine on the seat vacated or abandoned by Dr. Sudhir Mungi on movement to foreign Country for further study.
3. Facts are jejeune. The petitioner obtained MBBS degree in I Division with eleventh position in merit list (Annexure P/1). Internship and Registration are evidenced by Annexure P/2 and P/3. He appeared in PPG (Second) entrance examination in January, 94 and secured 478 marks out of 900 i.e. 53.1.% (Annexure P/4). In waiting list, he was positioned at serial No. 15. On 7-4-94 in pursuance of Letter dated 7-3-94 (Annexure P/5) he appeared at Bhopai for counselling. On interview, he was allotted M. D. Anaesthesiology at G. R. Medical College Gwalior. He signed attendance sheet Annexure R/1 in token of his acceptance of this seat. Next day i.e. on 8-4-1994 he conveyed his non-acceptance by telegram Annexure P/6. It was stated that the seat be allotted to other eligible candidate and his name be kept in waiting list according to position of merit (The receipt of telegram on or about 8-4-1994 is denied in reply-para 2). Later he sent an application (Annexure P/7) in confirmation of telegram, which is received by respeondent No. 2 (Director) Telegram is received on 15-4-1994 and 16-4-1994 and application is received on 26-4-1994 and 27-4-1994. He did not deposit requisite fee of Rs. 5000/- for admission. Notice demanding Justice (Annexure P/9) was sent under Postal receipt (Annexure P/10). Reversion of seats from All India quota was awaited (Annexure P/12). The chancellor Gwalior was also informed about non-acceptance on 21-4-1994 (Annexure P/ 13) Second Counselling as per letter of 28-5-1994 (Annexure P/15) was fixed for 15-6-1994. Copy of telegram of 8-4-1994 was demanded on 14-6-1994 (Annexure P/17). Application was sent on 7-4-1994 (Annexure P/18). The petitioner maintains that he was entitled to be called for interview in second counselling. This was not done. Two candidates selected in second counselling had secured marks less than the marks of the petitioner. Dr. Sudhir Mungi allotted at Indore, abandoned the seat. The petitioner filed counter reply. He prays for direction for his admission on the seat of Mungi or direction for creation of one additional seat for his admission as he was wrongly excluded from the waiting list.
4. The respondents have filed reply in oppugnatioh. The defence is that 'The rules permit inclusion of the name of candidate in the waiting list only if he elects to do so by refusing the subjects available at the time of counselling' para 5, and that the petitioner accepted subject and place and as such forfeited rights of inclusion in the list for Second Counselling of 15-6-1994.
5. I have heard both the sides.
6. Rule 3.2.10 (V) of Admission Rules 1993 (Annexure P/14) provides as under :--
'A Candidate who does not wish to be admitted to any of the subjects available at the time of her/his Counselling may so indicate in writing. Such candidate would forfeit her/his right to admission to any subjects available at the time of her/his Counselling and will not be admitted to any subject and her/his name will be placed in waiting list in order of merit. She/he will be considered for admission of any seat falls vacant in any subject and institution. Candidates whose names have been placed on the waiting list or will be placed in waiting list as stated above, shall be free to choose any of the subject or institutions which may become available in order of merit.'
7. Both the sides placed reliance on this rule but interpreted it differently to suit their respective side of the case.
8. The counsel for the petitioner urged that the petitioner did not accept, conveyed non-acceptance did not join did not deposit fees left the seat for allotment to any one acquired right of being included in waiting list for Second Counselling was illegally left out despite superior merit, deserved to be accommodated by creation of new seat or on seat abandoned by Dr. Mungi. Reliance is placed on AIR 1993 Delhi 40; (Dr. Sandhya Kabra v. V. Univerisity of Delhi, AIR 1994 Delhi 108, Dr. Veena Gupta v. University of Delhi and, AIR 1993 SC 1313 Sandeep Berar v. State of Punjab.
9. The counsel for the respondents submitted that 'acceptance' at the time of Counselling closed the chapter of alleged right for consideration at Second Counselling and delayed non-acceptance was an afterthought which conferred no right. He also contended that Dr. Mungi has not yet intimated about abandment of the seat and in any case other student of Gwalior is requesting his transfer to this seat at Indore. He, further submits that in view of 'initial acceptance' no case existed for creation of additional seat. He, thus, opposed the petition.
10. There is no tenebrosity. Rule (V), as quoted above clearly indicates the availability of right to. refuse offer of subjects available at the time of her/his Counselling. Dr. Sumit Shukla of Indore, scoring 474/900 marks was placed at Serial No. 14 and Dr. Sumit Gupta of Gwalior, was positioned at No. 19 in the waiting list. It is submitted that these two candidates are the fortunate ones to get 'admission' in MS-General Surgery during Second Counselling and are pursuing the studies.
11. It appears apt to appreciate the relevant rule as quoted above, in parts to agglomerate and enunciate the inherent as-sence. After all, every provision has a purpose to pilot the position embraced by five parts is pinked below :--
(i) A candidate who does not wish to be admitted to any of the subjects available at the time of her/his counselling may so indicate in writting;
(ii) Such a candidate would forfeit her/his right to admission to any subjects available at the time of her/his counselling and will not be admitted to any subject;
(iii) And her/his name will be placed in waiting list is order of merit.
(iv) She/he will be considered for admission of any seat falls vacant in any subject and institution.
(v) Candidates whose names have been placed on the waiting list or will be placed inwaiting list as stated above shall be free tochoose any of the subjects or institution whichmay become available in order of merit.
12. Logical perusal of the aforesaid position demonstrated that on non acceptance the candidate forfeited her/his light of admission to other subject and institution at that stage but earned the right to be placed in waiting list in order of merit for being considered for admission if any seat falls vacant in any subject and institution according to her/his choice. In other words, at the time of counselling, one is not permitted to exercise any option for other subject and other institution. The theme is 'take it or leave it' or 'choose within reasonable time to become wait listed' candidate. Problem on hand, however, is as to what is the answer to question where one accepted and later declined decided to be on the waiting list for 'any seat' which may fall vacant It is here that the rule may be said to contain same tenebrosity and may require the exercise of ironing out the creases.
13. Lord Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 KB 481 stated in classic terms that
'A judge must not alter the material of which the Act is woven but he can and should iron out the creases.'
The English language is not an instrument of mathematical precision literature would be such the poorer if it were. It is not possible to foresee manifold sets of facts which may arise and to provide for them in terms free from obscurity. Hence given provisions need to be analysed and applied logically spurning unjust consequences. At times one has to supplement the written word so as to give 'force and life' to the intention. This was clearly laid down in Heydon's case. It is safest guide today. About the same time Plowden gave the same advice. In the rule in question, it becomes necessary to supplement the words 'before last date fixed for joining' after the words 'indicate in writing' so as to give 'force and life' to the intention that names 'will be placed in waiting list'.
14. The undisputed facts are that the petitioner was allotted seat (MD Anaesthe-siology) at Gwalior at the time of his counselling. He signed the attendance sheet (Annex. R/1) in token of acceptance and offered no dissent at that time. He was, however, to join the Course in 15 days i.e. by 23-4-1994 Before expiry of this period he conveyed his unwilliness and non-acceptance by telegram (received on 15-4-1994) and later application (received on 26-4-1994 and 27-4-1994). The seats became available later for which candidates were noticed on 28-5-1994 (Annexure P/15) for counselling on 15-6-1994. He also informed Vice Chancellor of Gwalior on 21-4-1994 (Annexure P/13) Further chronicle of factual matrix is that --
(i) He did not deposit requisite fees. (ii) He did not join at Gwalior.
(iii) He relinquished the right on allotted seat for any other candidate who may be eligible and willing to obtain the same.
(iv) He indicated in writing his non-acceptance and desire of inclusion of his name in waiting list of 'further seats'.
15. The controversy is short but significant. The counsel for the petitioner submitted that indication of non-acceptance before last date fixed for joining the course yielded valuable right to become waitlisted and that on infringement of this right petitioner merited the direction of 'admission'. The Additional Advocate General for respondents on the other hand contended that the initial acceptance foreclosed the issue and forfeited the right.
16. The rule, quoted above, Rule 3.2.10(v) does not contain any indication of stage when or limit upto which 'wish' of refusal is recordable. In my view the expression 'whose names have been placed on the waiting list.' Relates to placement on account of non-acceptance right at the time of her/his counselling and provision 'or will be placed in waiting list as stated above. Pertains to subsequent non-acceptance but within reasonable time that is before the last date fixed for joining the course. And if this is not so, then why rule provided the situation of present tense (have been placed) and future tense will be placed).
17. Luculently the rule does not say about first or second or third Counselling. It envisages the operation of the position if any seat falls vacant in any subject and institution' Later availability of seats on whatever ground or basis fills the bill. The portion of the last line of Rule 3.2.10 (iv) that 'Candidates already admitted to any subject in any institution will not be considered.' Envisages a situation where one is admitted i.e. when on obtaining seat he/she has not indicated that individual 'does not wish to be admitted such is not the case here.'
18. I am fortified in my view as noted above, by Full Bench Decision of Delhi High Court. In Dr. Veena Gupta's case (supra) Delhi (supra) (AIR 1994 Delhi 108) (FB) Delhi High Court took the view as under (at pp. 111, 112) :--
'It is to be seen that at a short notice a candidate has to make up his mind during counselling as to which seat to accept. He is thereafter given 15 days time to join. It is possible that even though a candidate may have accepted a seat thereafter for reasons best known to him he may decide not to join course which he has selected. It will be unjust unfair to punish such a candidate and not to consider him in future counselling if he has chosen not to join and has expressed his desire to be on the waiting list. Of course, if a candidate joins the course and thereafter chooses to resign or abandon then the said candidate cannot be placed in the waiting list. It is only those candidates who do not join any postgraduate course for any reason whatsoever either because of not being offered have not accepted or have not joined who may be regarded as being On the waiting list.
We make it clear that in future those candidates who do not join and want to be considered for any resultant vacancies must inform the University in writing that they want to be placed in the waiting list and they have not joined any course and it is only then that those candidates who, having been allotted but having not joined will be put in the waiting list. It is clearly understood that such intimation must be given to the University on or before the last date fixed for joining.'
19. Initial consent is not always irrevocable. Considering the position of consent in Hindu Marriage Act, the Supreme Court in case of Smt. Sureshta Devi v. Om Prakash (AIR 1992 SC 1904) took the view that consent, once signified may be withdrawn unilaterally within the stipulated period and was not irrevocable. On the same line the initial acceptance is capable of being with-drawn within the period fixed for joining the course so that the seat may go to other eligible and willing candidate. As noted rule itself did not visualise the indication of non-acceptance right at the time of counselling and forbid-dance at later stage. Can a candidate accepting and later refusing become a permanent loser?
20. In case of Miss Mohini (AIR 1992 SC 1858) the Apex Court declared that 'right to education is concomitant to the Fundamental rights enshrined under Part III of the Constitution. The Constitution contains guarantee for enforcement of rights. In Dr. Anupam Gupta's case (AIR 1992 SC 932) the Supreme Court emphasised the need 'to maintain excellence in academic course.' Here the petitioner is superior in order of merit as compared to those who secured seats in second counselling.
21. Lord Denning put it elegantly in Breen v. Amalgamated Engineering Union, (1971) I All ER 1148 and Supreme Court stated in Khudi Ram's case (1975) 2 SCR 832: AIR 1975 SC 550 that in a Government of Laws 'there is nothing like unfettered discretion immune from judicial review ability.' Fairness founded on reason, is the essence of the guarantee epitomised in Article 14. If the power has been exercised improperly or mistakenly so as to impinge unjustly on legitimate rights or interests of the subject, then Courts must so declare. The Courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. Lord Atkin highlighted that aspect. Liver sidge v. Anderson, (1942) AC 206 is instructive and indicator of the amplitude of the power available with the Courts.
22. Error is thus apparent on the face of the record. Ligitimate rights and interests suffered jeopardy and impingement. Law is yet not so incommodious and inclement as to remain petrified and powers and refuse to incinerate injustices. The message is 'kill evil' in whatever form within permissible limits of law whenever voiced and whereever visible.
23. Lord Manasfield in Rex v. Wilkes held (fiat Justitiaet ruant coeli) 'let justice be done, though the heavens fall' Paul Freund drew attention to an inscription on the wall of Harvard Law School Library taken from Justinian's Institutes. One of the precepts of law is 'suum Cunious tribute' Pragmatically speaking Justice is what Justice does and Justice says Justinian' is the earnest and constant will to render 'Every Man His Due'. This is how the petitioner needs to be and has to be answered.
24. The core question albeit nodus free is as to what is to be done.
25. It is not contended that seat allotted to the petitioner remained unfilled or that the petitioner is short of merit.
26. Two students selected on 16-6-1994 as particularised above are not impleaded in this petition. They are holders of seats and as stated are continuing their Course. Behind back, nothing adverse can be ordered against them. Likewise Dr. Mungi alleged absentee is also not before me.
27. In such a setting problem permits its solution in three ways --
(a) Admission on the seat allegedly abandoned by Dr. Mungi.
(b) Admission on the seat to be created to undo the wrong done.
(c) Admission on any other seat if vacant and 'acceptable' AIR 1993 SC 1313 (supra) is pertinent for (b).
28. The counsel for the petitioner has alsoplaced reliance on (1994) 2 SCC 387 : (1994AIR SCW 2891) Dr. A. Franklin Joseph v.State of T. N.) in support of his contentionthat petitioner possessor of more marks andmerit deserves to be admitted when candidates with a lesser percentage of marks havebeen preferred and when he stood deprived ofhis legitimate due. It is held in this decision asunder (at p. 2896 of SCW) --
'A candidate with a lesser percentage of marks of 71.50% has been preferred as against the appellant who had secured 76.75% marks. Equality is a laudable principle but not to be used by the State at its whims and fancies. The stand of the State is wholly untenable. The appellant being the first in the waiting list having secured 76.75% marks would be legally entitled to admission in preference to Dr. Balamurugan whose selection is clearly arbitrary. The state has adopted the principle of 'show me the man I will show you the law 'The appellant should not be deprived of his legitimate due. Therefore it is hereby directed that the State-respondent shall admit the appellant within two weeks from today since the academic year had commenced and the course is in progress. The Civil appeal will stand allowed with costs.'
29. Ex Consequenti I hold that petitioner was wrongly or mistakenly denied the status of being a 'wait listed.' candidate and was thus, illegally excluded and left out from consideration. Accordingly I allow this petition with directions as under but without any order as to costs.
(a) The respondent may admit the petitioner in MD (Medicine) on the seat allegedly abandoned by Dr. Mungi in this Session if such a course is otherwise not forbidden by any rule or practice and is free from all hurdles including possible assertion of Dr. Mungi at later stage.
(b) Alternatively the respondents shall immediately approach medical council of India to obtain approval/sanction of one additional seat of MS (General Surgery) at MGM College Indore for the current Session for the petitioner on special features of this case and accommodate the petitioner against such seat. Now that Course is in progress, the respondents shall admit the petitioner provisionally in aniticipation of approval for creation of one additional seat.
(c) The respondents may accommodate the petitioner on any other seat of different discipline if available and acceptable to the petitioner. The petitioner on hearing from the respondents shall say 'yes' or 'no' to such a proposal promptly in writing so that they may address themselves to compliance of other two directions contained in (a) and (b) above,
30. It is thus clarified that (a) and (c) are directory whereas (b) of preceding para is mandatory so as to serve the cause of justice and to render the wronged petitioner his due.
31. The omega has been said. Yet before bidding adieu to this case, I find it fit to indicate as under :--
(i) In future candidates who accept allotment of seat as the time of counselling but indicate unwillingness and withdrawal of acceptance later in writing before the last date fixed for joining and refuse to be admitted at that stage 'will be placed in waiting list.' in terms of Rule 3.10.2 (V) and will be considered if any seat falls vacant in any subject or institution and accordingly shall not be treated as having incurred forfeiture of right of being waitlisted.
(ii) The respondents should consider the desirability of making specific rule to provide an answer to the question of abandonment of seat when allottee of any seat chooses to remain absent beyond reasonable time i.e. one or two months and fails to respond to written notices of the institution.
(iii) The respondents may also consider the propriety of reshaping even Rule 3.10.2 (V) in the light of the view taken herein for its logical operation uniformly free from all ambiguity and for general information of all concerned.
32. The respondents are directed to implement the directions as contained in para 29 above within 15 days from today.
33. The petition is, thus allowed in terms noted above without costs.
34. Issue WRIT in terms of directions contained in para 29 above.
35. CC to both the sides in two days on usual charges.