ORDER
N.Y. Hanumanthappa, J.
1. This writ appeal is filed aggrieved by the order passed by the learned single Judge in WP No.24843 of 1998, dated 20-11-1998. By the said order the learned single Judge dismissed the writ petition as not maintainable inasmuch as the respondents against whom the writ was sought are residing outside the territorial jurisdiction of this Court.
2. The brief facts of the case are that the petitioner is a graduate having passed B.E. in II division securing 52.5% marks. The third respondent issued a public notification in ‘Employment News 7-13 February, 1998 inviting applications for admission to Post-graduate Diploma in Management and Information Technology (for short ‘PGDMIT’) which is a 2 year course. The eligibility criteria for admission to the said course is a Bachelor’s Degree in Engineering and Master of Computer Applications with atleast 60% aggregate marks for OCs. and 55% marks for SC and ST candidates. The petitioner belongs to Scheduled Caste and though he secured only 52.5% marks, he submitted his application for the said course. The petitioner was called for the written test at Hyderabad and on being successful he was also called for the group discussion and interview which was held at New Delhi and the petitioner appeared for the same. The third respondent published the Merit list of the said Entrance Examination covering written test, group discussion and interview and the petitioner stood first in merit among the waiting list candidates under the SC category. But surprisingly, the third respondent failed to give admission to the petitioner and on the contrary he granted admission to candidates who secured lesser marks than the petitioner. Though he submitted several representations to the respondents explaining the injustice caused to him, nothing fruitful was forthcoming. Aggrieved by the inaction of the respondents in granting him seat in the said PDGMIT course, he filed the writ petition. But the same was dismissed as not maintainable. As against the said order, this writ appeal is preferred.
3. The contention of the learned Counsel for the appellant is three-fold. Firstly, she contended that the learned single Judge erred in holding that this Court cannot issue a writ against the respondents who are situated outside the territorial jurisdiction of
the State of Andhra Pradesh. She contended that in view of the amending to Article 226 of the Constitution, the judgments relied upon by the learned Judge are no longer good law. Secondly, the learned Counsel contended that even though the petitioner did not possess the requisite qualification that was contemplated in the said Notification, he was called for the written test and on being successful he was also called for the group discussion and interview. In the merit list he stood first. Having called the petitioner to appear for the examination, the authorities are duty-bound to admit him as he was successful and stood first in the merit list, even though he did not possess the requisite qualification and the eligibility criteria as per the notification. Therefore, having allowed the appellant to attend the written test, group discussion and interview, the authorities are estopped from holding that the candidate is not qualified to seek admission. Thirdly, she contends that even if any interview is contrary to the rule or instruction, the same will not disentitle the appellant to seek admission as there was acquiescence on the part of the authorities in the appellant’s selection process as to his qualification.
4. Before adverting to her contentions, it is necessary to examine the rule position as per the notification issued by the respondents, As per the advertisement, a candidate to be selected shall possess the following qualification:
Eligibility :–Following academic qualifications will be the eligibility criteria for admission. 60% marks or 6.75 CGPA on a 10-point scale in :
Bachelor degree in any branch of Engineering/Technology Master of Computer applications.
Those appearing in the final year examination may also apply. However, the candidates must finish their final
examination before 15th July, 1998 and the result of the examination should be available before 30th September, 1998. Their candidature will be provisional. There is a relaxation of 5% in marks or equivalent in CGPA for SC/ST candidates.
Selection procedure
The selection process will consist of a written test to be held on Sunday, March 22, 1998 at Allahabad, Bangalore, Bhopal, Calcutta, Calicut, Chandigarh, Chennai, Delhi, Guwahati, Gwalior, Hyderabad, Jaipur, Jamshedpur, Mumbai, Nagpur, Rourkela, Surat, Surathkal, Tiruchirapalli and Warangal. Those qualifying the written test will be invited for a group discussion and interview at Delhi, Gwalior. Candidates will appear for written test and group discussion and interview on their own expenses.
Written test:
The total duration of the test to be conducted in English medium is three hours. The test will be objective in nature having 150 questions on (1) quantitative aptitude, (2) analytical reasoning, (3) creative and verbal ability and (4) numerical and computer literacy.
5. At pages 35 of the material papers, we also find the important dates relating to issue of application forms, last date for receiving completed application form, written test to be conducted on, group discussion/ personal interview and declaration of final result. Beneath that we also find the instructions given to the candidates in a format box and one of the instructions reads as follows:
“Only eligible candidates will be called for appearing in the written test.”
6. Thus, as per the eligibility criteria, a candidate for admission into the said course
should possess minimum 60% marks or 6.75 CGPA on a 10-point scale in Bachelor degree in any branch of Engineering-Technology/Master of Computer Applications. However, there is relaxation of 5% of marks in case of SC/ST candidates. In other words, the requisite qualification in case of SC/ST candidates is 55%. On the date of submitting his application, the appellant though possessed a Bachelor’s degree in Engineering, the marks secured by him were less than 55%, i.e., he possessed only 52.5%. But he was called for the written test. In the written test, he secured higher ranking than those who possessed more marks in the eligibility criteria. It is not in dispute that the appellant wrote the written test at Hyderabad and attended the group discussion and personal interview at New Delhi. According to him, he was hopeful of getting selection. But he was surprised to know that he was not granted admission on the ground that he did not possess the requisite qualification. Aggrieved by the same, he filed the writ petition before this Court. A the admission stage itself the learned single Judge after hearing either side passed an order holding that the writ petition is not maintainable for want of jurisdiction as no cause of action took place at Hyderabad.
7. As state above, Smt. Chaya Devi, learned Counsel for the appellant attacked the order passed by the learned single Judge on several grounds. She contended that the learned single Judge placing reliance on the decisions of the Supreme Court in Lt. Col. Khajoor Singh v. Union of India, , Collector of Customs v. East India Commercial Company Limited, and also the decision of this Court in Visakhapatnam Co-operative Motor Transport Society Ltd. v. Subba Rao, , ought not to have dismissed the writ petition for want of jurisdiction. In view of the latest 42nd Amendment to Article 226 of the
Constitution of India, the view taken by the learned single Judge does not hold
good.
8. Her next contention is that if the appellant was not qualified, the authorities should not have allowed him to writ the written test and interview. Condition No.2 in ‘the instructions to candidates’ reads “only eligible candidates will be called for appearing in the written test”. Having allowed the candidate to attend the written test and also for the group discussion and interview, the authorities are estopped from holding that the appellant is not qualified to seek admission. Even if any interview is contrary to the rule or instruction, the same will not disentitle the appellant to seek admission as there was acquiescence on the part of the authorities in the appellant’s selection process as to his qualification. In support of her contention, particularly on the last contention, she placed reliance on the Supreme Court decisions in Sanatan Gauda v. Berhampur University, and Shri Krishan v. Kurukshetra University, and one of this Court in Shaik Khadervali v. Regional Admission Committee, 1996 (1) ALD 1223. According to her, the decision of the Supreme Court in Shri Kishan v. Kurvkshetra University (supra), squarely applies to the facts of this case as their Lordships in that case held that when once a candidate is allowed to take the examination, rightly or wrongly, the right of the University to withdraw such admission is not available and the authority of the University cannot refuse admission subsequently for any infirmity which, in fact, should have been looked into by the authority before granting permission to appear.
9. As far as the question of jurisdiction is concerned, in view of the amendment to Article 226 of the Constitution, Smt. Chaya Devi may be right in her submission and we do not want to dwell upon it much. Regarding the other two contentions, namely,
vesting of any right in the candidate if he appears for any test/interview conducted contrary to the Rules and that there will be acquiescence on the part of the authorities in the appellant’s selection process as to his qualification and hence it cannot be said that the appellant is not entitled to seek admission, the same do not merit consideration because this Court cannot direct the authorities to do a thing which is not required either under the Rules or Statute, As far as the principles laid down by the Supreme Court in Sri Krishan v. Kurukshetra (supra), they have no application to the facts of the present case. That was a case where the student had shortage of attendance but at the time of scrutinising the application, the authorities did not verify as to the shortage of attendance but allowed him to take the examination. When the authorities later wanted to refuse admission to him, Their Lordship held:
“If neither the Head of the Department nor the University authorities took care to scrutinise the admission form, then in not disclosing the shortage of percentage in attendance the question of the candidate committing a fraud did not arise. Similarly, when the candidate was allowed to appear at the Part II Law Examination, in May, 1973, the University authorities had no jurisdiction to cancel his candidature for that examination. If the University authorities acquiesced in the infirmities which the admission form contained and allowed the candidate to appear in the examination, then by force of the University Statute the University had no power to withdraw the candidature of the candidate.”
10. Coming to the case relied by the learned Counsel in Sanatan Gauda v. Berhampur University (supra), that was a case where the candidate though has secured less than 40% of marks was allowed to
prosecute his studies and only at the fag end the University found that his admission was incorrect and wanted to cancel his admission, Their Lordships interfered and held:
“This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his mark-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law Examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law Examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law course. The University is, therefore, clearly estopped from refusing to declare the results of the appellant’s examination or from preventing him from pursuing his final year course.”
11. In the case of Shaik Khadervalli v. Regional Admission Committee (supra) the question that had cropped before the learned single Judge was whether the Rules framed under G.O. Ms. No.35, Education (Rules) Dept., dated 26-2-1990 prescribing examination marks both for Intermediate (qualifying examination) and also in the Entrance examination, are valid. Section 3 of the A.P. Educational Institutions (Regulations of Admissions and Prohibition of Capitation Fees) Act, 1983, says that admission to educational institutions shall be made cither on the basis of the marks obtained in the qualifying examination or on the basis of the ranking assigned in the Entrance test. As such, the learned Judge held that insofar as Teacher Training
Course is concerned, which is governed by the above statutory provision, it can be on the basis of the marks obtained in the qualifying examination or in the entrance test. There cannot be a rule which contravenes the statute. Accordingly, the learned Judge approved the admission of the petitioner.
12. In our view, as mentioned above, none of the three decisions relied upon by Smt. Chaya Devi, arc in any way helpful to her client as there is a gulf difference between the facts involved and the law to be applied. If we concede to her arguments that having allowed the candidate to appear for the examination, the authorities are bound to admit even though the rule does not permit, we will be directing the authorities to do an illegal act which is not the scope of Article 226 of the Constitution.
13. The question of acquiescence also does not arise because the conditions incorporated in the advertisement are quite clear – the eligibility criteria being 55% of marks in the case of SC/ST candidates. The argument of Smt. Chaya Devi that having allowed the candidate to appear for the examination, it shall be presumed that he was eligible to appear for the examination and later the authorities could have said that he was not qualified, also is incorrect. The words “only eligible candidates will be called for the interview” means that the authorities are entitled or empowered to call the students to appear for the test who possess the requisite qualification. No authority can do a thing which the law or the rule does not permit. If the University is directed to admit the appellant who does not possess the requisite qualification, namely 55% in the qualifying examination, the Court will be creating a very bad precedent. The learned Counsel further submits that though the appellant had secured only 52.5% of marks in the qualifying examination, in both the written test and the oral interview, he
was far above all the other candidates who were admitted and that out of 30 seats only 29 were filled and atleast for that seat there may be a direction to allot the said seat to the appellant.
14. We cannot accede to this
submission also at this again has no merit. Application were invited for the academic year 1998. Now, we are in 1999. The second academic year has already set in. As such this Court cannot grant such a direction. Even if the academic year 1998 is not completed, we cannot give such a direction because as observed earlier we will be asking the authorities to do a thing which is impermissible in law which in turn will create a very bad precedent.
15. There are no merits in the appeal and the same is accordingly dismissed. No costs.