Sandeep Singh Vs. Punjab University, Chandigarh and Others - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - after the common entrance test had been held and the merit list had been prepared, a candidate could very well seek admission under the category to which he or she belonged. the candidate wanted to be considered for admission against the reserved category as well.ordern.k. agrawal, j.1. the petitioner appeared in the common entrance test 1996 for admission to the m.b.b.s. course. the said test was conducted by the punjab university on 15-5-1996. the candidates were required to appear in the said test for admission to seven different courses including the m.b.b.s. course in the government medical college, chandigarh. forty-three seats were kept in the general category, and seven seats in the category for the scheduled caste candidates. separate merit lists were prepared for both the categories, namely, general category and the reserved category. fee for the general category candidate was rs.400/- and for the reserved category candidate rs. 200/-. the petitioner had appeare in the said test as a scheduled caste candidated for admission to the m.b.b.s. course. after the merit list was prepared and declared, the petitioner got 8th position in the merit list of the reserved category candidates but, since there were only seven seats in that category, the petitioner could not get admission. the petitioner had secured 105.25 marks out of 225 (aggregate marks) and was placed at serial no. 509 in the merit list of thecandidates. the petitioner noticed that respondent no. 3, kumari sukhbir paul kaur sidhu, had appeared in the test as a general category candidate but managed to get admission as a reserved category candidate. all the candidates, whose names appeared in the merit list in either category, were required to make separate applications for admission to the government medical college. respondent no. 3 in her application for the common entrance test had described herself as a general category candidate in the relevant column but, when she noticed that her name did not figure in the merit list of that category amongst the first hundred candidates, she opted to seek admission in the reserved category and, for that purpose while making application for admission to the government medical college, chandigarh, she described herself as a candidate and claimed the admission, in the reserved category.2. the petitioner has filed this petition under arts. 226/227 of the constitution for quashing the admission given to respondent no. 3 by the government medical college, chandigarh. the case of the petitioner is that, after respondent no. 3 had appeared in the common entrance test as general category candidate, she could not subsequently change her position and take the benefit as a reserved category candidate after she found herself to be not successful as a general category candidate. the petitioner has stated that he secured 8th position in the merit list of reserved category candidates but, since respondent no. 3 managed to get admission wrongly by describing herself as scheduled caste candidate, the petitioner could not get admission as there were seven seats only in the reserved category. if the name of respondent no. 3 is excluded from the reserved category list, the petitioner would come up to the 7th position in the merit list and would get admission to the m.b.b.s. course. it is stated that there was no provision for making a change in the category after appearing in the test and competing in a specific category.3. respondent no. 2, government medical college, has put forward the plea thatadmission was given to respondent no. 3 because, in her application for admission to m.b.b.s. course, she has described herself as a reserved category candidate and has also enclosed the requisite certificate. the college accepted the admission form as submitted by respondent no. 3.4. respondent no. 3 has come up with the plea that a candidate, after passing the common entrance test, had to apply for admission to a specific course. there was no bar to claiming admission under the reserved category because she belonged to that category and there was no room for any doubt in this regard in view of the certificate produced in support. the certificate in regard to respondent no. 3 being a scheduled caste candidate was not in genuine or fake and, therefore, her bona fides as a reserved category candidate were not under challenge. she had secured position at serial no. 307 in the merit list whereas the petitioner had got position at serial no. 509. since there was no bar to seeking admission in the reserved category, the admission given to respondent no. 3 is said to be beyond challenge. after the common entrance test had been held and the merit list had been prepared, a candidate could very well seek admission under the category to which he or she belonged. since respondent no. 3 belonged to the reserved category, she had a right to see admission in that category.5. the application form which had been filled in by respondent no. 3 for the common entrance test has been seen by us and it has been noticed that she had declared herself to be a candidate in the general category. she also deposited the fee of rs. 400/- as a general category candidate whereas the fee for a reserved category candidate was rs. 200/-only. from this application, it is quite clear that respondent no. 3 did not choose to compete as a reserved category candidate. it is only after the results were declared and merit lists were published that she changed her mind. respondent no. 3 did not find her name amongst the first hundred candidates in the general category and, therefore, she wanted to take benefit as a reserved categorycandidate. after she had opted to compete as a general category candidate, she had no option left to her to change the category after the merit lists had been prepared.6. clause 29 of the prospectus for the common entrance test reads as under.'the candidates shall not he allowed to ask for making any changes in the application form once it is submitted by them in the university office by way of any addition/ deletion/alteration/ amendment etc. under any circumstances.'the petitioner's case is that, since there were a large number of seats (43 seats) in the general category, it was for that reason that respondent no. 3 appeared in the test as a general category candidate and, when she noticed that she had not been able to place herself in the merit list so as to seek admission in that category, she wanted to fall back and seek the benefit in the reserved category. since respondent no. 3 had not competed in the reserved category, she is said to have no right to change her position because that would amount to making a change in the respective merit list declared by the punjab university which had held the test for admission. two separate merit lists were prepared by the university, one for the general category candidates and the other for the reserved category candidates. after the merit lists had been prepared and published, there was no provision entitling respondent no. 3 to change her position/ category. the government medical college had also no jurisdiction to admit a candidate whose name did not figure in the merit list in the reserved category. there is no provision for allowing any change in the category after a candidate had appeared in the competitive test in a specific category and merit lists for the two categories, in question, had been declared by the university.7. a question about the eligibility for admission was examined by a division bench of this court in ravinder kaur v. state of punjab, ilr (1985) 1 punj & har 343. it has been observed therein that eligibility for admission has to be seen according to the prospectus issued before the entrance examination and that the admission has to be made on the basis of the instructions, given in the prospectus as the instructions issued have the force of law.8. a question regarding the change of category was also examined by this court (sb) in sumit pal singh v. state of punjab, (1994) 5 serv lr 84. a candidate had sought admission to the m.b.b.s. course in the general category only. the candidate wanted to be considered for admission against the reserved category as well. it was held that he could not do so.9. a full bench of this court in raj singh v. the maharshi dayanand university, (1994) 2 serv cas today 766, had also an occasion to examine a question regarding change from mbbs course to bds course after appearing in a joint entrance test. in that case, the petitioner had filled in his form seeking admission to mbbs only. later on, the candidate wanted admission to the bds course. it was held that option for a different course could not be allowed once a candidate had exercised the option for a specific course.10. the learned counsel for the respondent no. 3 has argued that the respondent's status as a scheduled caste candidate was not in doubt and the certificate filed by her in support of that status is also not under challenge. therefore, in the absence of any rule debarring respondent no. 3 from declaring herself, at the stage of admission, as a reserved category candidate, there was no reason to disallow her from seeking admission as a reserved category candidate. reliance has been placed on a division bench decision of this court in minakshi gupta v. thapar institute of engineering and technology, (1992) 5 serv lr 122. it was held in the case that where a student who had competed in the general category was not debarred from competing in the reserved category. the facts of that case are not available from the judgment but it appears that where a candidate was selected against a reserved seat, he could not be refused admission against that seat even if that candidate had taken admission in the general category. the following observation made by the court indicates that, in thatcase, the candidate had sought admission in both the categories:--'even if a person has taken admission in the general category, he can surrender and join in the category of reserved seats if selected against that seat.'11. the petitioner's case is found to have force. respondent no. 3 had competed after making a clear declaration in the application form for the common entrance test that she wanted admission as a general category candidate. the punjab university, which held the common entrance test, prepared two separate merit lists for admission to the mbbs course and the name of respondent no. 3 did hot figure either in the merit list for the general category or in that of the reserved category. in such a situation, change was not permissible and a change in the category of respondent no. 3 did amount to a change in the position. the government medical college had also no authority to permit a change after the merit lists had been duly published. application made for admission to the mbbs course was not meant for making a change in the status or in the position in the merit list but was meant for enabling the government medical college to see whether all other conditions stood fulfilled for the purposes of admission. if a change in the category is allowed, that would amount to a change in the merit list, which the medical college could not do. the petitioner has a right to seek admission if his name finds place among the first seven successful candidates in the merit list for the reserved category.12. in the result, the petition succeeds, respondent no. 2. government medical college, chandigarh is directed to cancel the admission given to respondent no. 3 in the reserved category. the college shall give admission to the petitioner if his name figures in the merit list among the first seven candidates in the reserved category and if the petitioner fulfils all other conditions required for admission to the m.b.b.s. course. no order as to costs.13. petition allowed.

Judgment:
ORDER

N.K. Agrawal, J.

1. The petitioner appeared in the Common Entrance Test 1996 for admission to the M.B.B.S. Course. The said test was conducted by the Punjab University on 15-5-1996. The candidates were required to appear in the said test for admission to seven different courses including the M.B.B.S. Course in the Government Medical College, Chandigarh. Forty-three seats were kept in the general category, and seven seats in the category for the Scheduled Caste candidates. Separate merit lists were prepared for both the categories, namely, general category and the reserved category. Fee for the general category candidate was Rs.400/- and for the reserved category candidate Rs. 200/-. The petitioner had appeare in the said test as a Scheduled Caste candidated for admission to the M.B.B.S. Course. After the merit list was prepared and declared, the petitioner got 8th position in the merit list of the reserved category candidates but, since there were only seven seats in that category, the petitioner could not get admission. The petitioner had secured 105.25 marks out of 225 (aggregate marks) and was placed at Serial No. 509 in the merit list of thecandidates. The petitioner noticed that respondent No. 3, Kumari Sukhbir Paul Kaur Sidhu, had appeared in the test as a general category candidate but managed to get admission as a reserved category candidate. All the candidates, whose names appeared in the merit list in either category, were required to make separate applications for admission to the Government Medical College. Respondent No. 3 in her application for the Common Entrance Test had described herself as a general category candidate in the relevant column but, when she noticed that her name did not figure in the merit list of that category amongst the first hundred candidates, she opted to seek admission in the reserved category and, for that purpose while making application for admission to the Government Medical College, Chandigarh, she described herself as a candidate and claimed the admission, in the reserved category.

2. The petitioner has filed this petition under Arts. 226/227 of the Constitution for quashing the admission given to respondent No. 3 by the Government Medical College, Chandigarh. The case of the petitioner is that, after respondent No. 3 had appeared in the Common Entrance Test as general category candidate, she could not subsequently change her position and take the benefit as a reserved category candidate after she found herself to be not successful as a general category candidate. The petitioner has stated that he secured 8th position in the merit list of reserved category candidates but, since respondent No. 3 managed to get admission wrongly by describing herself as Scheduled Caste candidate, the petitioner could not get admission as there were seven seats only in the reserved category. If the name of respondent No. 3 is excluded from the reserved category list, the petitioner would come up to the 7th position in the merit list and would get admission to the M.B.B.S. Course. It is stated that there was no provision for making a change in the category after appearing in the test and competing in a specific category.

3. Respondent No. 2, Government Medical College, has put forward the plea thatadmission was given to respondent No. 3 because, in her application for admission to M.B.B.S. Course, she has described herself as a reserved category candidate and has also enclosed the requisite certificate. The College accepted the admission form as submitted by respondent No. 3.

4. Respondent No. 3 has come up with the plea that a candidate, after passing the Common Entrance Test, had to apply for admission to a specific course. There was no bar to claiming admission under the reserved category because she belonged to that category and there was no room for any doubt in this regard in view of the certificate produced in support. The certificate in regard to respondent No. 3 being a Scheduled Caste candidate was not in genuine or fake and, therefore, her bona fides as a reserved category candidate were not under challenge. She had secured position at Serial No. 307 in the merit list whereas the petitioner had got position at Serial No. 509. Since there was no bar to seeking admission in the reserved category, the admission given to respondent No. 3 is said to be beyond challenge. After the Common Entrance Test had been held and the merit list had been prepared, a candidate could very well seek admission under the category to which he or she belonged. Since respondent No. 3 belonged to the reserved category, she had a right to see admission in that category.

5. The application form which had been filled in by respondent No. 3 for the Common Entrance Test has been seen by us and it has been noticed that she had declared herself to be a candidate in the general category. She also deposited the fee of Rs. 400/- as a general category candidate whereas the fee for a reserved category candidate was Rs. 200/-only. From this application, it is quite clear that respondent No. 3 did not choose to compete as a reserved category candidate. It is only after the results were declared and merit lists were published that she changed her mind. Respondent No. 3 did not find her name amongst the first hundred candidates in the general category and, therefore, she wanted to take benefit as a reserved categorycandidate. After she had opted to compete as a general category candidate, she had no option left to her to change the category after the merit lists had been prepared.

6. Clause 29 of the Prospectus for the Common Entrance Test reads as under.

'The candidates shall not he allowed to ask for making any changes in the application form once it is submitted by them in the University office by way of any addition/ deletion/alteration/ amendment etc. under any circumstances.'

The petitioner's case is that, since there were a large number of seats (43 seats) in the general category, it was for that reason that respondent No. 3 appeared in the test as a general category candidate and, when she noticed that she had not been able to place herself in the merit list so as to seek admission in that category, she wanted to fall back and seek the benefit in the reserved category. Since respondent No. 3 had not competed in the reserved category, she is said to have no right to change her position because that would amount to making a change in the respective merit list declared by the Punjab University which had held the test for admission. Two separate merit lists were prepared by the University, one for the general category candidates and the other for the reserved category candidates. After the merit lists had been prepared and published, there was no provision entitling respondent No. 3 to change her position/ category. The Government Medical College had also no jurisdiction to admit a candidate whose name did not figure in the merit list in the reserved category. There is no provision for allowing any change in the category after a candidate had appeared in the competitive test in a specific category and merit lists for the two categories, in question, had been declared by the University.

7. A question about the eligibility for admission was examined by a Division Bench of this Court in Ravinder Kaur v. State of Punjab, ILR (1985) 1 Punj & Har 343. It has been observed therein that eligibility for admission has to be seen according to the prospectus issued before the Entrance Examination and that the admission has to be made on the basis of the instructions, given in the prospectus as the instructions issued have the force of law.

8. A question regarding the change of category was also examined by this Court (SB) in Sumit Pal Singh v. State of Punjab, (1994) 5 Serv LR 84. A candidate had sought admission to the M.B.B.S. Course in the general category only. The candidate wanted to be considered for admission against the reserved category as well. It was held that he could not do so.

9. A Full Bench of this Court in Raj Singh v. The Maharshi Dayanand University, (1994) 2 Serv Cas Today 766, had also an occasion to examine a question regarding change from MBBS Course to BDS Course after appearing in a Joint Entrance Test. In that case, the petitioner had filled in his form seeking admission to MBBS only. Later on, the candidate wanted admission to the BDS Course. It was held that option for a different course could not be allowed once a candidate had exercised the option for a specific course.

10. The learned counsel for the respondent No. 3 has argued that the respondent's status as a Scheduled Caste candidate was not in doubt and the certificate filed by her in support of that status is also not under challenge. Therefore, in the absence of any rule debarring respondent No. 3 from declaring herself, at the stage of admission, as a reserved category candidate, there was no reason to disallow her from seeking admission as a reserved category candidate. Reliance has been placed on a Division Bench decision of this Court in Minakshi Gupta v. Thapar Institute of Engineering and Technology, (1992) 5 Serv LR 122. It was held in the case that where a student who had competed in the general category was not debarred from competing in the reserved category. The facts of that case are not available from the judgment but it appears that where a candidate was selected against a reserved seat, he could not be refused admission against that seat even if that candidate had taken admission in the general category. The following observation made by the Court indicates that, in thatcase, the candidate had sought admission in both the categories:--

'Even if a person has taken admission in the general category, he can surrender and join in the category of reserved seats if selected against that seat.'

11. The petitioner's case is found to have force. Respondent No. 3 had competed after making a clear declaration in the application form for the Common Entrance Test that she wanted admission as a general category candidate. The Punjab University, which held the Common Entrance Test, prepared two separate merit lists for admission to the MBBS Course and the name of respondent No. 3 did hot figure either in the merit list for the general category or in that of the reserved category. In such a situation, change was not permissible and a change in the category of respondent No. 3 did amount to a change in the position. The Government Medical College had also no authority to permit a change after the merit lists had been duly published. Application made for admission to the MBBS Course was not meant for making a change in the status or in the position in the merit list but was meant for enabling the Government Medical College to see whether all other Conditions stood fulfilled for the purposes of admission. If a change in the category is allowed, that would amount to a change in the merit list, which the Medical College could not do. The petitioner has a right to seek admission if his name finds place among the first seven successful candidates in the merit list for the reserved category.

12. In the result, the petition succeeds, Respondent No. 2. Government Medical College, Chandigarh is directed to cancel the admission given to Respondent No. 3 in the reserved category. The College shall give admission to the petitioner if his name figures in the merit list among the first seven candidates in the reserved category and if the petitioner fulfils all other conditions required for admission to the M.B.B.S. Course. No order as to costs.

13. Petition allowed.