Hemant L. Leuva Vs. H.S. Shah, Chairman, Admission Committee and Dean - Court Judgment

Excerpt:
- - kanabar, he was compelled to leave hospital premises as well as studies and is now not able to prosecute studies. as the supreme court found that direction by the high court to admit the candidates into those vacant seats in the midstream was bad in law, it was not sustained and set aside. it is well settled that, the high court cannot, in the exercise of its jurisdiction under article 226 of the constitution (a) relax rules governing admission to educational institutions or rewrite them, (b) devise a scheme of its own relating to admission, in place of that made by statutory authority, (c) direct the educational institution to admit a particular candidate to a course contrary to rules. in matters relating to internal working of an educational institution and more particularly, in the matter of admissions, the court will not interfere unless the act complained of is clearly beyond jurisdiction or contrary to the statutes, rules or regulations governing the institution, or there is a statutory duty which the authority has failed to perform or the impugned act is mala fide or arbitrary.j.m. panchal, j.1. by means of filing this petition under article 226 of the constitution the petitioner has prayed to issue appropriate writ or order directing respondent nos. 1, 2 & 3 or any of them to forthwith grant admission to the petitioner as a student in n.h.l. municipal medical college, ahmedabad in m.s. (ortho.) discipline.2. the petitioner passed 3rd m.b.b.s. (new) examination which was held in november, 1994 and is duly registered with gujarat medical council, ahmedabad. the petitioner belongs to scheduled caste. as the petitioner was interested in post-graduate studies, he applied to the gujarat university for admission to post-graduate studies in m.s. (ortho.) discipline. the petitioner was called for interview on july 9, 1996 and at the interview also the petitioner indicated his inclination to be admitted in m.s. (ortho.) discipline. respondent no. 2 prepared a merit list. in the merit list, name of the petitioner was shown at serial no. 216 so far as general category was concerned. another merit list of students belonging to scheduled caste was also prepared wherein name of the respondent no. 4 was mentioned at serial no. 7 whereas petitioner's name was shown at serial no. 8. the respondent no. 4 opted for m.s. (ortho.) discipline and was admitted in that discipline in smt. n.h.l. municipal medical college, ahmedabad. the petitioner thus could not secure admission in m.s. (ortho.) discipline. as the petitioner, who was immediately next to respondent no. 4, could not get admission in the discipline of his choice, the petitioner opted for m.s. (general surgery) discipline for his post-graduate studies and was accordingly admitted to the said course.3. it is the case of the petitioner that in the month of august, 1996 the petitioner learnt that respondent no. 4 who was admitted in second academic term of academic year 1996, had left studies after about one week of joining the college and seat had fallen vacant. the petitioner, therefore, addressed a letter dated august 26, 1996 to the respondent no. 2 and requested respondent no. 2 to permit him to prosecute studies in m.s. (ortho.) discipline. a copy of the said letter is produced by the petitioner at annexure a/1 to the petition. the petitioner has claimed that copy of letter was also sent to all members of admission committee including respondent nos. 1 & 3 with a request to do needful in the matter. as none of the respondents considered the request of the petitioner mentioned in the said letter, the petitioner addressed a notice dated november 4, 1996 through his advocate to the respondent nos. 1 & 2 requisitioning them to admit the petitioner as a post-graduate student in m.s. (ortho.) discipline in smt. n.h.l. medical college, ahmedabad. a copy of the said notice is produced by the petitioner at annexure a/2 to the petition. it is averred in the petition that the petitioner requested his father to make inquiry whether respondent no. 4 was really interested to study in m.s. (ortho.) discipline or not and during inquiry made by the father of the petitioner it was learnt that respondent no. 4 is practising as a general practitioner at satlasana. in order to substantiate this claim, the petitioner has produced prescription of medicines issued by respondent no. 4 to the father of the petitioner at annexure a/3 to the petition. as the request made in the notice dated november 4, 1996 was not acceded to, the petitioner has filed the present petition and claimed reliefs to which reference is made earlier.4. mr. m.p. jadia, registrar, gujarat university has filed an affidavit-in-reply on behalf of the respondent no. 2-university. in the reply affidavit, it is emphasised that rule 7.9 of the rules governing admission to post-graduate degree and diploma medical courses other than m. ch. & d. m. at the affiliated medical colleges ('rules' for short), which enabled reshuffling in case of vacancy arising, is deleted by the faculty with effect from 1996 and the recommendations of the faculty have been accepted by the vice-chancellor which were also placed before the executive council. under the circumstances, it is claimed in the reply affidavit that it is not possible to accede to the request of the petitioner that he should be admitted to post-graduate studies in m.s. (ortho.) discipline. it is also averred in the reply affidavit that the academic term has come to an end by december 31, 1996 and, therefore, the petitioner is not entitled to the reliefs claimed in the petition because fresh admissions will be granted for the academic year commencing from january 1997. on behalf of respondent no. 2 it is also mentioned that respondent no. 4 by his letter dated september 30, 1996 claimed that he wanted to continue his studies, but he could not join the studies because of alleged behavior of dr. p.k. kanabar towards him and as admission of respondent no. 4 is not cancelled, no relief can be granted to the petitioner.5. the respondent no. 4 has filed affidavit-in-reply stating that though he had obtained admission to post-graduate studies in m.s. (ortho.) discipline on july 9, 1996, he could not prosecute studies because of behaviour of dr. p.k. kanabar. respondent no. 4 has claimed that because of persistent harassment by dr. kanabar, he was compelled to leave hospital premises as well as studies and is now not able to prosecute studies.6. mr. r.d. pathak, learned counsel for the petitioner submitted that as respondent no. 4 is not inclined to prosecute studies, a vacancy has arisen in post-graduate studies so far as m.s. (ortho.) discipline is concerned and, therefore, necessary direction should be given to the respondent nos. 1, 2 & 3 as prayed for in the petition. it is claimed that in view of rule 4.8 of the rules, the petitioner has acquired right of being admitted on the seat which has become vacant in the post-graduate studies and, therefore, the petition deserves to be allowed. the learned counsel for the petitioner contended that action of the respondent nos. 1, 2 & 3 in not admitting the petitioner to post-graduate studies in m.s. (ortho.) discipline, is arbitrary and illegal and, therefore, the prayers made in the petition should be granted. in support of his submissions, the learned counsel placed reliance on the decisions rendered in the case of (1) goyal dipti rajkumar v. principal government akhandanand ayurved mahavidyalaya and ors. 1996(3) glr 387, and (2) nirish sureshkumar shah v. ahmedabad municipal corporation and ors. 1996 (3) glr 438.7. mr. nilesh anjaria, learned counsel for respondent no. 2 contended that rule 7.9 which enabled the authorities to effect reshuffling to fill the vacancies, has been deleted and, therefore, the petition should not be entertained. it was pleaded on behalf of respondent no. 2 that academic term has already ended on december 31, 1996 and, therefore, no direction should be given to respondent nos. 1, 2 & 3 by the court under art. 226 of the constitution to admit the petitioner in m.s. (ortho.) discipline. it was emphasised on behalf of respondent no. 2 that for the first time respondent no. 4 has indicated his intention to give up studies in m.s. (ortho.) discipline on january 6, 1997 during the course of hearing of this petition and, therefore, no relief should be granted to the petitioner having regard to the facts of the case. in support of his submissions, learned counsel placed reliance on (1) dr. pramodkumar joshi v. medical council of india and ors. : (1991)2scc179 , (2) chandigarh administration and anr. v. manpreet singh and ors. : air1992sc435 , and (3) state of uttar pradesh and ors. v. dr. anupam gupta : [1992]1scr643 .8. as noted earlier, rules governing the admission to post-graduate degree and diploma medical courses, other than m.ch. & d.m. at the affiliated medical colleges are framed by the gujarat university. in view of provisions of rule 1-a which deals with admission process to be carried out by the admission committee, it is evident that academic year is from 1st january to 31st december; whereas according to rule 3.1, first academic term begins on 1st january and ends on june 30 and second term begins on july 1 and ends on december 31. rule 7.9 of the rules before its deletion was as under:7.9: to fill the vacancies arising within 1 month and for resulting reshuffling. second interview will be held before the end of 1 month for those eligible candidates who wish to avail of the opportunity. procedure to be followed at this interview is described below:7.9 (a) all candidates desirous of taking advantage of this filling of vacancies and reshuffling must remain present at this interview; anybody who remains absent will lose his chance of admission or reshuffling. however, those who were admitted at earlier interview will continue and their status will not be disturbed if they remain absent at this interview.7.9 (b) the candidates will be called in the same order, they were called at the previous interview, according to revised merit list on operation of rule 1, rule 2, rule 3, rule 4 and rule 5.7.9 (c) whatever seats are available at the time of his interview will be offered to him, i.e., vacancies arising during the interval after the last interview plus those that fell vacant due to candidates of higher merit having taken another seat minus those seats which were already taken by candidates of higher merit.7.9 (d) if his admission is fresh, procedures prescribed under rule 1, rule 2, rule 3 and rule 6 will be followed. after he pays the fees and deposit, admission order is passed and delivered.7.9 (e) if he is shifting, difference of fees and deposit, if any, will have to be paid before shifting order is passed. inability to pay the difference will result in cancellation of shifting and the next candidate will be called for interview.a bare reading of the above referred to rules makes it abundantly clear that reshuffling was permissible within one month of vacancies taking place. however, as averred in the reply affidavit, rule 7.9 has been deleted with effect from 1-1-1996. the fact that rule 7.9 forming part of the earlier rules has been deleted, is not in dispute. though respondent no. 4 has asserted in reply affidavit that he gave up studies because of harassment caused to him by dr. kanabar, it is not necessary for the court to decide the question as to what prompted respondent no. 4 to give up studies. however, the fact remains that respondent no. 4 has given up studies in m.s. (ortho.) discipline. the question which arises for consideration is whether direction can be given by the court to respondent nos. 1, 2 & 3 to admit the petitioner is m.s. (ortho.) discipline.9. in the case of chandigarh administration and anr. (supra) the rule for reservation of seats in educational institution for children/spouses of defence and paramilitary personnel as framed by the chandigarh administration and as published by the punjab engineering college did not include children and spouses of defence personnel who were awarded ashok chakra, kirti chakra or shaurya chakra. writ petition was filed by a candidate on ground that though he was son of a defence personnel who was recipient of shaurya chakra, he was not given admission under category i of reservation rule. the validity of the rule was not expressly questioned before the high court. the high court allowed the writ petition and directed that since shaurya chakra is immediately below vir chakra in the order of precedence and since respondents-students admitted to the engineering college under subcategory i had obtained lesser marks than the writ petitioner, the writ petitioner should be given admission without disturbing the admission given to respondents. in appeal supreme court has held that writ court cannot assume role of rule-making authority nor can it act as appellate authority over rule-making authority. the supreme court has emphasised that changing of priority of categories mentioned in the rules, is without jurisdiction and the direction issued by the high court that since shaurya chakra is also awardable for gallantry and is placed immediately below vir chakra, the writ petitioner, who was son of recipient of shaurya chakra, should be granted admission, was without jurisdiction. from the principle enunciated by the supreme court in the above referred to decision, it is evident that in absence of any rule, court cannot direct the educational authorities to admit a student contrary to rules or regulations. therefore, no direction can be given to respondent nos. 1, 2 & 3 to admit the petitioner in m.s. (ortho.) discipline, more particularly when rule 7.9 which enabled the authorities to reshuffle the admissions, is deleted. such a direction would amount to assuming role of rule-making authority and sitting in appeal over rule-making authority. such a course is not open to high court while exercising jurisdiction under article 226 of the constitution. under the circumstances, in absence of rule, the prayer made by the petitioner cannot be granted.10. even otherwise, in view of provisions of rules 1-a and 3.1, it is evident that the academic term has ended on december 31, 1996. rule 7.8 of the rules provides that all p. g. courses are full-time courses and the candidates are forbidden from indulging in private practice or taking up employment of any nature. it is an admitted position that the petitioner has not undergone full-time post-graduate course in m.s. (ortho.) discipline. as the petitioner has not completed full-time course stipulated for post-graduate studies in m.s. (ortho.) discipline, i am of the opinion that the discretion vested in the court under art. 226 of the constitution cannot be exercised in favour of the petitioner. in the case of state of uttar pradesh and ors. (supra) the supreme court has emphasised that to maintain excellence the p.g. medical courses in medical colleges have to be commenced on schedule and to be completed within the schedule, so that the students would have full opportunity to study full course to meet their excellence and come at par excellence. what is highlighted by the supreme court is that admission in the midstream disturbs the courses and also works as handicap to the candidates themselves to achieve excellence and, therefore, the vacancies of the seats should not be taken as a ground to give admission. as the supreme court found that direction by the high court to admit the candidates into those vacant seats in the midstream was bad in law, it was not sustained and set aside. again, in the case of dr. pramod kumar joshi (supra) the petitioner had done house job in pediatrics but was denied admission to diploma course in pediatrics and instead offered diploma course in other specialities. the supreme court found force in the submission of the petitioner to the effect that refusal of admission to petitioner while granting admission to others in pediatrics was contrary to the regulations framed by the indian medical council. however, no relief was granted to the petitioner, as the academic session was complete. in the present case also, the academic term has already ended and, therefore, no direction can be given to the respondent nos. 1, 2 & 3 to admit the petitioner to m.s. (ortho.) discipline at this belated stage.11. rule 4.8 on which reliance is placed by the petitioner, does not help him. rule 4.8 reads as under :4.8 seats can only be utilised in the same academic term and vacancy in one academic term cannot be utilised any time in subsequent term. vacancy of earlier term also cannot be filled up.a bare reading of the said rule makes it abundantly clear that seats can only be utilised in the same academic term and vacancy in one academic term cannot be utilised any time in subsequent term. according to the petitioner, vacancy took place in m.s. (ortho.) discipline in academic term beginning from july 1996 and ending in december 1996. therefore, in terms of rule 4.8, that vacancy cannot be utilised in subsequent term. now, reshuffling is not permissible because of deletion of rule 7.9 of the rules. therefore, the vacancy of the seat on which the respondent no. 4 was admitted, cannot be utilised for any purpose because of two reasons, namely, deletion of rule 7.9 and expiry of academic term.12. in the case of goyal dipti rajkumar (supra) court has inter alia, laid down guidelines as to how reliefs should be molded in case admission is granted to a student by interim relief of the court. in this case, no interim relief is granted to the petitioner and, therefore, question of moulding of relief as indicated in the said decision does not arise for consideration of the court. similarly, in the case of nirish sureshkumar shah (supra), rule 18 of n.h.l. municipal college and rule 5.2 of b.j. medical college were interpreted in case of a student who had not prosecuted his studies by not keeping the terms and thereby rendered himself ineligible to fill the form for examination. in the present petition, court is neither concerned with interpretation of rule 18 of n.h.l. municipal college nor with rule 5.2 of b.j. medical college and, therefore, the principle laid down in the said case does not apply to the facts of the present case.13. it is not demonstrated before the court that the action of the respondents in not admitting the petitioner to m.s. (ortho.) discipline is in any manner arbitrary or contrary to the rules governing admission to p.g. courses. there is no legal or constitutional infirmity in the decision of the respondent nos. 1, 2 & 3. the court cannot, in absence of any legal or constitutional infirmity, substitute its judgment for that of academicians, as if sitting in appeal. it is well settled that, the high court cannot, in the exercise of its jurisdiction under article 226 of the constitution (a) relax rules governing admission to educational institutions or rewrite them, (b) devise a scheme of its own relating to admission, in place of that made by statutory authority, (c) direct the educational institution to admit a particular candidate to a course contrary to rules. in matters relating to internal working of an educational institution and more particularly, in the matter of admissions, the court will not interfere unless the act complained of is clearly beyond jurisdiction or contrary to the statutes, rules or regulations governing the institution, or there is a statutory duty which the authority has failed to perform or the impugned act is mala fide or arbitrary. it is not established that the act of the respondents in not admitting the petitioner to m.s. (ortho.) discipline is beyond jurisdiction or contrary to statutes and/or regulations or unreasonable.14. having regard to the facts of the case, it cannot be said that action of the respondents is in any manner arbitrary. on totality of the facts and circumstances of the case, i am of the opinion that no case is made out by the petitioner for granting any of the reliefs claimed in the petition and the petition is liable to be dismissed. for the foregoing reasons, the petition fails and is dismissed. notice is discharged, with no order as to costs.