Biswanath Misra Vs. Director of Medical Education and Training and ors.

Biswanath Misra vs Director of Medical Education and Training and ors.

Disposition Application allowed Court Orissa Decided Dec 05, 1981

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Citation: sooperkanoon.com/525833
Court: Orissa High Court
Judge: R.N. Misra, C.J. and ;B.K. Behera, J.
Decided On: Dec 05, 1981
Case Number: O.J.C. No. 2240 of 1981
Subject: Constitution
Disposition: Application allowed

Case Summary

AI-generated summary - not the official court judgment text.

- MOTOR VEHICLES ACT, 1988 [C.A. No. 59/1988]Section 173(1) Proviso; [D. Biswas, Amitava Roy & I.A.Ansari, JJ] Appeal without statutory deposit but within limitation/or extended period of limitation Maintainability - Held, If the provision of a statute speaks of entertainment of appeal, it denotes that the appeal ...

Key legal issue: Constitution
Outcome / disposition: Application allowed
Acts & sections: Constitution of India - Article 226; Evidence Act, 1872 - Sections 115

Parties & Advocates

Appellant / Petitioner

Biswanath Misra

Advocate Samareswar Mohanty, Adv.

Respondent

Director of Medical Education and Training and ors.

Advocate Govt. Adv.

Legal References

Acts: Constitution of India - Article 226; Evidence Act, 1872 - Sections 115
Reported In: AIR1982Ori106

Excerpt

- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. .....and 5 of the return it has been pleaded:-- 'the total number of r. h. s. seats during 1981-82 is 112. the entire seats are meant for the direct candidates. there was no indication in the prospectus that in-service medical officers are eligible for admission. the petitioner being an in-service medical officer applied for admission to the r.h.s. course during 1981-82 and he was issued index card, admit card and also allowed to appear at the entrance examination basing on the information furnished by the petitioner in the application form, but when it was found out that the petitioner is an in-service medical officer, he was denied admission. but it is not a fact that the petitioner has been debarred of the opportunity to undergo post-graduate study. he is at liberty to seek for admission to 2-year post-graduate course after completion of 5 years of service. 4. in the previous year, p. g. seats were limited for the in-service medical officers. so, in order to give equal opportunity to the in-service medical officers, 113 seats out of 226 total seats were reserved for the in-service medical officers. post-graduate course is three years, out of which the first year is r. h. s. one year of r. h. s. is equal to five years of service under the state government. so, opposite party no. 1 decided to allow in-service medical officer with five years of service under the state government to go for p. g. studies for two years. 5. the contention of the petitioner that he was selected for admission to r. h. s. course is true. but he wasotherwise not eligible as he was an in-service candidate. besides, this selection was subject to verification of records at the time of admission. on verification it was revealed that the petitioner is an in-service medical officer. so he was denied admission as r. h. s. seats are meant for direct candidates.'' 3. it is conceded at the hearing that in the prospectus there was no indication that the r. h. s. seats were intended for direct.....

Full Judgment

K.N. Misra, C.J.

1. The petitioner, a Medical Graduate in the employment of the State as an Assistant Surgeon with effect from Apr. 1977, is before us asking for a direction to the opposite parties to admit him to the Resident House Staff course in General Medicine for the 1981-82 session. When the prospectus for the 1981-82 session was issued, the petitioner obtained an application form and the prospectus on 4-8-81 and applied to undertake the said course in General Medicine on the selfsame day. His application was duly considered and he was allowed to sit for the selection examination held on 21-8-1981. He was also duly selected for joining the aforesaid course as would be evident from the intimation received by him under Annexure 2. Under that document he was directed to report personally to the Principal on any date between 21-9-1981 and 25-9-1981 during the specified hours for taking admission, In terms of Annexure 2, the petitioner reported to opposite party No. 3, Principal of the college where he was to be admitted, on 21-9-1981 and filled up the memorandum to the effect that he was so reporting. Opposite party No. 3 instead of admitting the petitioner chose to issue a clarificatory letter under Annexure 5 to the Governor of the Post-Graduate Selection Committee, opposite party No. 2, where he stated :--

'I am to inform you that Dr. Biswa-nath Misra, Index No. 8R/71 (petitioner), an in-service Doctor now working as Asst. Bacteriologist and Pathologist to Government of Orissa, Cuttack, reported today for admission to R. H. S. inGeneral Medicine. In this connection, instruction is requested if in-service Doctors can be admitted to the R. H. S, seats'.

The petitioner thereupon came before this Court on 23-9-1981 apprehensive that if there was delay he may not be in a position to take admission. On 24-9-1981, a rule was issued and the Court passed an order saying that the petitioner would be adequately protected in case his application succeeded.

2. A counter affidavit has been filed by the Deputy Secretary to Government in the Health & Family Welfare Department, where the basic facts are not disputed. In paras 3, 4 and 5 of the return it has been pleaded:--

'The total number of R. H. S. seats during 1981-82 is 112. The entire seats are meant for the direct candidates. There was no indication in the prospectus that in-service Medical Officers are eligible for admission. The petitioner being an in-service Medical Officer applied for admission to the R.H.S. course during 1981-82 and he was issued index card, admit card and also allowed to appear at the entrance examination basing on the information furnished by the petitioner in the application form, But when it was found out that the petitioner is an in-service Medical Officer, he was denied admission. But it is not a fact that the petitioner has been debarred of the opportunity to undergo Post-Graduate study. He is at liberty to seek for admission to 2-year Post-Graduate course after completion of 5 years of service.

4. In the previous year, P. G. seats were limited for the in-service Medical Officers. So, in order to give equal opportunity to the in-service Medical Officers, 113 seats out of 226 total seats were reserved for the in-service Medical Officers. Post-Graduate course is three years, out of which the first year is R. H. S. One year of R. H. S. is equal to five years of service under the State Government. So, opposite party No. 1 decided to allow in-service Medical Officer with five years of service under the State Government to go for P. G. Studies for two years.

5. The contention of the petitioner that he was selected for admission to R. H. S. course is true. But he wasotherwise not eligible as he was an in-service candidate. Besides, this selection was subject to verification of records at the time of admission. On verification it was revealed that the petitioner is an in-service Medical Officer. So he was denied admission as R. H. S. seats are meant for direct candidates.''

3. It is conceded at the hearing that in the prospectus there was no indication that the R. H. S. seats were intended for direct candidates and in-service candidates would not be entitled to the R. H. S. course. It is not the case of the opposite parties that the petitioner had made any wrong representation in his application. Since the petitioner made a clear disclosure of actual facts, in case there was any Government decision from before it was open to the opposite parties to reject his application outright saying that he was not qualifi-ed to join the R. H. S. course. The Government decision referred to in the paragraphs extracted above from the counter affidavit were not disclosed to the public and the petitioner was allowed to make an application, undergo the process of selection, and following selection was directed to take admission. By their conduct, opposite parties were estopped from contending at the stage when the petitioner was reporting for admission that he was not qualified for admission. Dealings of the State Government with its citizens must be on clear-cut basis. Citizens look up to the State for appropriate guide-line and to mould their conduct according to the prescriptions by the State. The State is expected to formulate its policies, particularly in respect of matters where citizens are involved in an open manner, publicise its decisions in an appropriate way so that citizens are aware of them. We are surprised that every year a new method is being adopted in the matter of selection for the Post-Graduate study and thereby, instead of clear-cut dealings between the public officers and the citizens, unnecessary confusion is being created. If it had been indicated in the prospectus that all the seats were meant for direct candidates, the petitioner would not have at all applied. The opposite parties have not placed appropriate records to show when the decision relied upon by them was taken. Keeping these facts in view, we are inclined to think that the opposite parties must be treated as estopped from pleading the defence which they have advanced in their counter affidavit and the petitioner must be permitted to join the R. H. S. course. There is no clear rule to indicate that 5 years of service would be taken as one year of R. H. S. and the plea of estoppel cannot be kept away on the basis of a doubtful administrative decision.

4. We accordingly allow this writ application, direct the opposite parties to admit the petitioner into the Post-Graduate course in terms of Annexure 2, It will be for the petitioner to obtain appropriate exemption from the University as there appears to have been some delay by now for taking admission, but we hope, the University authorities would take into account the special circumstances for extending the period in case admission is complete and there is no vacancy left in the speciality for which the petitioner applied, the State Government must create one more seat to accommodate the petitioner as the situation now created is relatable to the fault of the opposite parties and the petitioner should not be prejudiced for it. We direct the petitioner to report for admission within one week from today.

There would be no order for costs.

Behera, J.

I agree with my Lord, the Chief Justice.

Same Court & Year Orissa · 1981 Same Parties Biswanath Misra vs Director of Medical Education and Training... Same Subject Constitution Same Judge R.N. Misra, C.J. and ;B.K. Behera, J. Acts & Sections Constitution of India - Article 226; Evidence Act, 1872 - Sec...

Constitution