ORDER
1. In this petition counter and rejoinder affidavits have been exchanged and learned counsel for parties have agreed that this petition may be decided finally at this stage.
2. Facts, in short, giving rise to this petition are that petitioner Rekha Somani passed her Intermediate Examination from Central Board of Secondary Education and then she appeared in All India Pre-Medical/Pre-Dental Test of 1995. In this test, she was declared successful and shown at serial No. 135 in order of merit on All India basis. She was admitted in Seth G. S. Medical and King Edward VII Memorial Hospital, Bombay. Petitioner also appeared in the Entrance test for M. B. B. S. Course for seeking admission in Banaras Hindu University with Roll No. 30951. She was declared successful and her name found place at serial No. 28 in the first list of the selected candidates published on 16-8-1995. She was re-
quired to appear for interview before Admission Committee on 31-8-1995. On 31-8-1995, however, she could not appear. She sent an application through her uncle Shri Vimal Maru, a local resident of Varanasi. In this application it Was mentioned that petitioner was suffering with high fever and was unable to appear before the Admission Committee. In support of this application an affidavit of the same date was also filed before the Director. Copy of the affidavit has been filed as Annexure 5 to this writ petition. Along with this affidavit, medical certificate dated 31-8-1995 given by Dr. O. M. Mehta of Bombay, School leaving certificate, statement of marks of Certificate of Secondary Education Examination and Senior School Certificate Examination, migration certificate etc. were also filed. It has been stated in the writ petition that respondent No. 4, the then Director of the Institute of Medical Sciences, assured the uncle of petitioner that petitioner will be interviewed on some other date. The next list was published and the selected candidates were to be interviewed on 15-9-1995. It’ is stated that on 13-9-1995 petitioner came to Varanasi and contacted the authorities and requested for the opportunity of interview on 15-9-1995 along with other candidates. However, she was not allowed interview. The third interview Was held on 30-9-1995 but petitioner was not interviewed on this occasion also in spite of representation made to the Vice Chancellor and the Director of the Institute of Medical Sciences and aggrieved, the petitioner filed this writ petition on 11-10-1995 in this Court under Article 226 of the Constitution seeking relief of a direction to the respondents to permit petitioner to appear before the Admission Committee and further to give her admission in the M. B. B. S. Course in the’ Session 1995-96. The writ petition was entertained on 12-10-1995 and this Court passed the following interim order :
“In the meantime, the respondents are directed to permit the petitioner to appear before the Admission Committee which is scheduled to be held on 16-10-1995, subject to the condition that she fulfils all the formalities and produces all the relevant papers in accordance with the admission Rules and the result of the same shall be declared. However, the interview before the admission committee and the result thereof shall be subject to the result of the present writ petition.”
3. Against this interim order, Special Appeal No. 810 of 1995 was filed which was decided on 17-10-1995 and the following direction was given :
“In the facts and circumstances of the case, we consider that it would be just and proper if the authorities are directed (o permit the 1st respondent herein, Kumari Rekha Somani, to appear for the interview on 19-10-1995. However, if she is selected, she shall not be admitted in the course pending disposal of the writ petition and one seat shall, however, be reserved for her. Her selection wilt be subject to the final order that may be passed in the writ petition.”
It was further mentioned that the selection shall be subject to fulfilment of all the requirements under the Admission Rules.
4. Respondents filed counter affidavit along with which a copy of the order dated 16-10-1995 has been filed by which it has been said that the candidature of the petitioner merits no consideration. It will be appropriate at this place to reproduce the entire order for better appreciation of the controversy :
“Dear Km. Somani,
Your representation regarding permission to appear in the interview regarding MDBS admission through the Vice-Chancellor, BHU., was considered by the Admission Committee in its meeting dated 23-9-1995. In this connection the resolution of the meeting is given below for your information.
“Para 4(b) of the call letter says that “admission” is liable to be cancelled at the discretion of the Admission Committee (if thecandidate) failed to appear personally before the admission committee or Medical Board on due date.”
Further Clause 17 of the Information Booklet says, “Admission to respective courses the decision of the Director of the Institute concerned . shall be final and binding on the candidate.”
In view of the above provisions the candidature of Rekha Somani merits no consideration.”
5. In para 10 of the counter affidavit it was mentioned that no application was submitted by Shri Vimal Maru, uncle of petitioner, on 31-8-1995 and no such application is on record. It was
also stated that no assurance was given to the petitioner by respondent No. 4 that she will be given chance of interview on any subsequent date. The plea of the petitioner of illness on 30th and 31st August, 1995 has been seriously disputed.
6. A supplementary counter affidavit dated 30-10-1995 was filed by respondents in para 2 whereof it was stated that petitioner herself informed the admission committee that she was not ill on 30th and 31st August, 1995 but on both the said dates she attended her classes in Seth G. S. Medical College, Bombay. It has also been stated that respondent No. 3 wrote a letter to the principal, Seth G. S. Medical College, Bombay inquiring as to whether the petitioner attended the Medical College on the said dates. It is alleged lhat the Principal on phone informed that the petitioner attended her classes on 30th and 31st August, 1995. It was also mentioned that the formal reply from the principal of Seth G. S. Medical College is awaited. Then an application and affidavit was filed by respondents on 1-11-1995 inpara. 2 whereof it has been alleged that the principal of Seth G. S- Medical College, Bombay had telephoned on 20-10-1995 itself that petitioner had attended her classes in the said Medical College on 30th and 31 st of August, 1995. It has been stated that a letter was written on 20-10-1995. A copy of the letter has been filed as Annexure 1 to the affidavit. Through this letter it has been requested to send a copy of the attendance recorded and other connected information. A second supplementary counter affidavit dated 10-1-1996 has been filed and along with this affidavit replies from the Dean, Seth G. S. Medical College dated 6-11-1995 and 20-10-1995 have been filed by this affidavit. It has also been admitted that on 31-8-1995 an application was filed by uncle of petitioner praying for five days’ time to appear before the admission committee. Copy of the letter has been filed as Annexure 2 to the supplementary affidavit. Petitioner filed her rejoinder and supplementary rejoinder affidavits reiterating her stand. In para 4 of the supplementary rejoinder affidavit petitioner has stated that on 30th and 31 st of August, 1995, she was suffering from high fever. However, since in Medical College if a class is missed, it becomes difficult to keep the course uptodate, she took medicine (Crocine tablet) and even in fever, she attended the classes on 30th and 31st of August, 1995. However, she was not able to undertake a long
journey from Bombay to Varanasi. She has denied that she ever informed the respondents that she was not ill on 30th and 31st of August.
7. Learned counsel for petitioner has submitted that uncle of the petitionerappeared before the Admission Committee and filed application and affidavit with all the requisite papers and prayed for time so that petitioner may appear before the Admission Committee. It has been submitted that the medical certificate showing that petitioner was ill was also filed. It has been submitted that there was no material on record to disbelieve the fact of illness of the petitioner. Petitioner made representation before respondents Nos. 3 and 1 on 14-9-1995 and 22-9-1995 respectively. However, the genuine prayer of the petitioner had been rejected in arbitrary manner. Learned counsel for petitioner has submitted lhat it cannot be termed as failure on the part of the petitioner to appear before the Admission Committee as she was physically incapable of appearing. The respondents ignoring the natural aspect of the matter took a very harsh and arbitrary stand and rejected the reasonable request of the petitioner. Learned counsel for petitioner has further submitted that for appearing before the Admission Committee, the petitioner withdrew all the papers from the Seth G. S: Medical College, Bombay and she has forfeited her right of admission in that College and on account of the arbitrary view taken by the respondents now she is being deprived of admission in the Medical College at Bararas Hindu University and this way the career of the petitioner shall be spoiled and she shall suffer irreparable loss and injury. Learned counsel for petitioner has submitted that considering the petitioner’s performance, she deserved a lenient and sympathetic treatment.
8. Learned counsel for respondents, on the other hand, has submitted that petitioner has not come with clean hands in this Court, The alleged plea of illness on 30-8-1995 and 31-8-1995 has been proved false and she is not entitled for any relief from this Court under Article 226 of the Constitution. Learned counsel has further submitted that as petitioner failed to appear before the Admission Committee on the due date, her candidature had rightly been rejected as per the conditions mentioned in the call tetter and the information booklet. Learned counsel for the respondents has further submitted that admissions were closed in the month of October, 1995
and the first professional examination is going to be held very shortly and petitioner should not be allowed admission at this late stage. Learned counsel has placed reliance in case of Dr. Subodh Nautiyal v. State of U. P. reported in AIR 1991 SC 1131 and case of State of U. P. v. Dr. Anupam Gupta reported in AIR 1992 SC 932.
9. Learned counsel for respondents has also submitted that normally Court should not interfere with the discretion exercised by the educational authorities. Reliance has been placed in the case of Bhushan Uttam Khare v. Dean B. J. Medical College reported in AIR 1992 SC 917.
10. Learned counsel for respondents has also submitted that as petitioner has not come with clean hands, she is not entitled for any relief from this Court. Reliance has been placed in case of Laxman Prasad Agarwal v. K. P. Singh reported in (1991) 2 UPLBEC 1247 and Mukul Chand Pandey v. Vice-Chancellor and Chairman of the Academic Council, reported in 1983 UPLBEC 87 : (1982 All LJ 1356).
11. In rejoinder, however, learned counsel for petitioner submitted that on 31-8-1995 petitioner prayed through her uncle only for five days’ time toappear before the Admission Committee. However, that was not allowed. In spite of the fact that affidavit and medical certificates were filed, the Prayer was not considered. Thereafter, on 13-9-1995 she came to Varanasi with all her papers but she was not allowed to appear in the interview held on 15-9-1995 and 30-9-1995 in spite of representation made by her. In the circumstances, the delay has occurred on account of the arbitrary conduct of the respondents, and petitioner cannot be blamed fo’r the same. It has also been submitted that petitioner was admitted in the month of June in Seth G. S. Medical College, Bombay and she continued her studies there up; to September, 1995, Thus, it cannot be said that she will be stranger to the course. Petitioner has a very good academic record and by her hard labour and study, she can make up the course if given opportunity and the cases relied on are clearly distinguishable.
12. I have seriously considered the rival contentions raised by the counsel for the parties. There is no doubt about the principle that normally the Court shquld be slow to interfere with the decision taken by the educational authorities but it is rule of prudence. The Court cannot and should not refuse to interfere in a case where
injustice is going to be caused to petitioner. Now, it has to be seen whether the view taken by the respondents in the present case in rejecting the candidature of the petitioner was justified in the facts and circumstances.
13. Before coming to the real question, however, it would be relevant at this place to deal with the case of petitioner about her illness on 30-8-1995 and 31-8-1995 on which much stress has been laid by learned counsel for the respondents. In counter affidavit and supplementary counter affidavits also, attempt has been made to show that the plea raised by the petitioner about her illness on the aforesaid two dates was false and she is not entitled for any relief. However, in my opinion, this stand taken by the respondents is wholly irrelevant and is not required to be given a very serious consideration in view of the fact that the order dated 16-10-1995 which has been reproduced in the earlier part of the judgment is absolutely silent about the ground of illness raised by the petitioner. While giving the verdict that candidature of petitioner merits no consideration, the Admission Committee in its resolution dated 23-9-1995 has only relied on in para 4-(b) of the call letter and Clause 17 of the Information Booklet. The Admission Committee did not record any finding this way or that way on the ground of illness raised by the petitioner for not appearing on the due date, i.e. 31-8-1995. There is an established legal position that the impugned order cannot be supplemented or justified in the light of the explanation subsequently given. If the ground of illness was not believed or disbelieved by the Admission Committee for rejecting the candidature of the petitioner, vide resolution dated 23-9-1995 communicated through letter dated 16-10-1995, Annexure 2 to the counter affidavit, now it cannot be justified by saying that petitioner was not actually ill and the plea raised by her was false. For this view I find support from the judgment of Hon’ble Supreme Court in case of Sualal Vadav v. State of Rajasthan (AIR 1977 SC 2050). In this case are view application was dismissed by Governor on merits holding the same not fit for review and not on ground of delay. Before High Court, however, a preliminary objection was raised that the application for review merited dismissal on account of undue delay and latches. The High Court accepted this. However, Hon’ble Supreme Court did not approve the view taken by the High
Court and it was held by the Supreme Court that it was not open to the High Court to resurrect the ground of delay in the review application at a remote stage and make it a ground for dismissing the writ petition. The view taken by Hon’ble Supreme Court is squarely applicable in the present case. Now, the respondents Cannot pray that the writ petition should be dismissed on the ground that plea of illness raised by the petitioner was false as this plea had not been taken into consideration by the respondents themselves. A Division Bench of this Court in case of Dr. Framed Kumar v. University of Allahabad reported in AIR 1981 All 8, took the same view that the order of the authority cannot be construed in the light of the explanation subsequently given. If the plea of the respondents is considered in the light of the above case, it can be safely said that the respondents are not entitled to explain their order by the subsequent explanation that the plea of illness was incorrect.
14. Now, coming to the two grounds taken in the order for rejecting the candidature of the petitioner, the first ground is based on para. 4 (b) of the call letter. Para. 4 of the call letter is being reproduced below for better appreciation of the controversy :–
“4. Please note that in the following event your admission (if admitted) is liable to be cancelled at the discretion of the Admission Committee :
a. Failure to deposit fee by due date.
b. Failure to appear personally before the Admission Committee or Medical Board on the due date on any ground.
c. Failure to produce all or any of the documents in original asked for in this letter.
d. Failure to join the regular classes on admission without reasonable cause of absence.
e. Failure to produce marks sheets of the qualifying examination.
f. In case marks of qualifying examination are not available at the time of interview the same may be submitted latest by …..
15. From a perusal of the aforesaid condition 4, it is abundantly clear that the conditions provided were not mandatory and could be relaxed at the discretion of the Admission Committee. The Admission Committee, however, misinterpreted this Rule and took the stand that in no case the
petitioner could be allowed time to appear in the interview on some other date. In my opinion, such a view is contrary to the language used in para. 4. If para. 4 is interpreted in the manner adopted by the Admission Committee it shall be rendered unreasonable and arbitrary and violative of Article 14 of the Constitution of India. There could be various grounds for a candidate for not appearing before the Admission Committee on the dale fixed and the grounds may be such which may be beyond the control of the candidate. Can para. 4 be interpreted in such a rigid manner is highly doubtful and cannot be accepted. If para. 4 is read as a whole, the view taken by the Admission Committee cannot be justified. Otherwise also, from authorities of the Educational institutions a kind, lenient and sympathetic approach towards the students is always expected. In the present case, it is evidence from the record that the petitioner has a very good academic career as she qualified in both the Examinations for admission in Medical College. There could have been a natural anxiety and uncertainty or any other difficulty for some time faced by petitioner in leaving one medical college where she had already studied for more than two months and coming to join another medical college which is situate nearer to her home town Ranchi. Probably, the members of the Admission Committee could not appreciate this natural anxiety on the part of the petitioner. They failed to consider the problem of the petitioner in this light. In such circumstances even the aged and grown up persons take time in deciding the course to be adopted. The petitioner could not be punished so heavily for her shaky stand for certain time that now she has been deprived of the opportunity to complete the MBBS course from both the Medical Colleges. In my opinion, the view taken by the Admission Committee was unreasonable and against the object and spirit of para 4 of the Call letter.
16. The second ground is about Clause 17 of the Information Booklet. Clause 17 reads as under :–
“In all matters relating to pre-medical Test/ Pharmacy/ Admission Test and Admission to respective course the decision of the Director of Institute concerned shall be final and binding on the candidate.”
It is difficult to understand as to how this clause could be invoked for passing the impugned order in the present case. The order dated 16-10-
1995 clearly mentioned that the representation of petitioner to appear in the interview regarding MBBS admission was considered by the Admission Committee in its meeting dated 23-9-1995, which was reproduced in the letter for her information. Clause 17 of the Information Booklet is applicable to the decision of the Director alone and not to the decision of the Admission Committee. The Admission Committee wrongly invoked this Clause for rejecting the candidature of the petitioner. In any view of the matter the finality attached to the decision of the Director of the Institute may be for the purposes of the University. However, this finality clause cannot come in the way of this Court in granting relief to the petitioner if she is otherwise found entitled for the same.
17. The problem can be considered with another angle also. Petitioner appeared in the Entrance Test and she secured a good merit as her name was published in the first list. She failed to appear on the date of interview for any reason and if she isallowed to appear on any subsequent date, could it affect her merit or performance or the process of admission in any manner. In my opin-on, the answer will be ‘no’. The respondents and the Admission Committee without affecting the srocess of admission or the merit or chance of other students, could accommodate the petitioner by giving her an opportunity of interview on subsequent dates. Thus the rigid stand taken by the respondents was wholly uncalled for and unreasonable and cannot be sustained.
18. The learned counsel for respondent has laid much stress on the ground that petitioner has not come with clean hands and she is not entitled for any relief from this Court. The respondents have controverted this plea by filing counter affidavit and three supplementary affidavits though it was not a ground for consideration before the Admission Committee. Supplementary counter affidavits have been filed saying that respondent No. 3 was informed on telephone that petitioner was not ill. However, the letters dated 6-11-1995 and Zerox copy of the letter sent along with this letter do not contain anything on which basis it may be said that petitioner was not ill on 30th and 31st August, 1995. The letter only says that petitioner remained absent from the Medical College. It has also been communicated that admission of the petitioner has been cancelled.
Petitioner has herself in her supplememary rejoinder affidavit stated that in spite of illness she attended the classes. In my opinion, there is nothing to infer that petitioner has not come with clean hands and thus she has disentitled herself for any relief from this Court and the plea of illness loses importance as it was not a factor before the Admission Committee for taking decision against the petitioner. The Admission Committee confined its decision only on the two grounds mentioned above. The contention of the learned counsel for respondents thus cannot be accepted. The cases relied on are clearly distinguishable.
19. The last submission of the learned counsel for the respondents was that petitioner should not be allowed to join this technical course when the course is at the advanced stage.
20. I have seriously considered the submission of the learned counsel and also perused the cases relied on by him. However, in my opinion, the injustice caused to the petitioner cannol be allowed to be perpetuated. She was refused admission on account of the arbitrary and unreasonable stand taken by the Admission Committee. Under the interim order of this Coun she was allowed to appear before the Admission Committee and she could have been allowed to join the course without any difficulty but on that date she was served the impugned order about cancellation of her candidature. It is difficult to understand how the petitioner can be blamed in these facts and circumstances. 1 find force in the submission of the learned counsel for petitioner that petitioner has been pursuing the course in the Seth S. G. Medical College, Bombay for about three months and she will not be a total stranger to the course and she can make up the Course by putting a little hard labour or she may be subsequently given chance to appear in the Examination. However, in the facts and circumstances of the case, it is difficult to accept the contention raised on behalf of the respondents that petitioner should not be allowed admission. It should not be forgotten that her admission to Seth S. G. Medical College has also been cancelled, if the contention of the learned counsel for respondents is accepted, it shall cause serious injustice to the petitioner.
21. For the reasons stated above, this, petition is allowed. The appropriate relief in the facts and
circumstances of the case is granted to the petitioner by quashing the decision of the Admission Committee dated 23-9-1995 communicated through the letter dated October, 16, 1995 which has been filed as Annexure 2 to the counter affidavit. The respondents are directed to allow the petitioner admission in the Medical College against the seat which was directed to be reserved for her by order of the Divison Bench dated 17-10-1995, passed in the Special Appeal, without any further delay, provided she deposits the admission fee and other required documents and appears before the Medical Board on the date fixed duly communicated to the petitioner by the respondents. There will be no order as to costs.
22. Petition allowed.