1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (C ) No. 5203 of 2009
Shree Shree Lakhsmi Narain Trust.....................Petitioner
Versus
The State of Jharkhand & Ors......................... Respondents
With
W.P. (C ) No. 4753 of 2009
1. Simmy Anuradha
2. Prasansha Narnoli .....................Petitioners
Versus
The State of Jharkhand & Ors......................... Respondents
With
W.P. (C ) No. 4694 of 2009
Akash Singh .....................Petitioner
Versus
The State of Jharkhand & Ors......................... Respondents
With
W.P. (C ) No. 4715 of 2009
Prerna Pandey ....................Petitioner
Versus
The State of Jharkhand & Ors......................... Respondents
With
W.P. (C ) No. 4916 of 2009
1.Sulabh Suman
2. Pramod Kumar
3. Prakash Chandra Mishra
4. Gopal
5. Ravi Shankar ....... .....................Petitioners
Versus
The State of Jharkhand & Ors......................... Respondents
With
W.P. (C ) No. 414 of 2010
Krishna Kumar .....................Petitioner
Versus
The State of Jharkhand & Ors......................... Respondents
------
CORAM: HON'BLE MR. JUSTICE SUSHIL HARKAULI
------
For the Petitioners: Mr. R.S. Mazumdar, Mr. Indrajit Sinha,Mr.
Bibhash Sinha, Mr. Anil Kr. Sinha,Mr.Saurav Arun,
Ms. Neha Prashant, Mr. Rajneesh Vardhan, Mr.
Rajiv Ranjan, Mr. Abhay Kr. Mishra.
For the Respondents: Mr. R. Krishna, Mr. Rajesh Lala, Mr. A. Allam, Mr.
G. Sinha, Mr. Sumeet Gadodia, Mr. M.S. Mittal.
------
C.A.V. on 11.3.2010 Pronounced on 16 .03. 2010
2
JUDGMENT
10/16.03.2010
All these writ petitions involve common questions and
were therefore, listed together and heard together.
2. W.P.(C) No. 5203 of 2009 is by a trust known as
Shree Shree Lakhsmi Narain Trust. In this writ petition, the trust
claims that it has the right to nominate candidates for admission to
the M.B.B.S. course in the Patliputra Medical College, Dhanbad.
The said right has been denied by the impugned order dated
30.9.2009 passed by the Government of Jharkhand, a copy of
which has been enclosed as Annexure-15 to this writ petition.
3. W.P.(C) No. 4753 of 2009 is by two nominees of the said
trust who are seeking admission to the aforesaid course on the
strength of their nomination for the course by the trust.
4. W.P.(C) No. 4694 of 2009 is by another candidate who has
been nominated by the said trust and who is seeking admission on
the strength of such nomination.
5. W.P.(C) No. 4715 of 2009 is by a candidate who has been
nominated by M/s Tata Steel Limited for the same course under
quota for nomination given to M/s Tata Steel Limited.
The said quota for M/s Tata Steel Limited has been denied
by another order dated 30.9.2009 passed by the Government of
Jharkhand on similar grounds on which nomination quota has been
denied to Shree Shree Lakhsmi Narain Trust. A copy of that order
dated 30.9.2009 passed in respect of the nomination quota of M/s
Tata Steel Limited has been enclosed as Annexure-5 to this writ
petition.
6. The first question which arises for consideration is whether
the reasons given in the order dated 30.9.2009 for denying the
quota to Shree Shree Lakhsmi Narain Trust and Tata Steel Ltd. are
valid; the second connected and more fundamental question is
whether the right of nomination of candidates for admission to the
M.B.B.S. course in the Patliputra Medical College still continues to
be valid and enforceable on part of Shree Shree Lakhsmi Narain
Trust and Tata Steel Ltd.
7. The reason for saying that the second question is more
fundamental and more important is that even if the first question is
answered against the Government on the ground that the reasons
given in the order dated 30.9.2009 are not legally correct, yet no
effect relief is possible for either the trust or its nominees if a
3
mandamus cannot be issued directing that the State Government
and the authority which held the Joint Entrance Test for the MBBS
course, to admit the nominees of the trust to the said course in the
current academic session.
8. The trust claims the source of its power of nomination from
an ‘agreement’ or at least a ‘promise’ by the Medical College
(private) Management to the trust that in lieu of donating a hospital
of the trust to the Medical College, the trust would have the right to
(i) nominate one student to be admitted to the College free of
charges and (ii) to nominate four more candidates to the admission
to the said College on payment basis.
9. In support of this ‘promise’ a letter dated 24.3.1975,
written by the Medical College to the Managing Trustee has been
enclosed as Annexure-2 to this writ petition. The consequent
donation-deed of 1987 is enclosed as Annexure-4 to the writ
petition by which the hospital was donated by the trust to the
Medical College.
10. This matter was considered in detail by a decision of a
Division Bench of the Ranchi Bench of Patna High Court in the
judgment dated 24.2.1998 passed in C.W.J.C. No. 690 of 1989(R).
The said judgment gives all the facts in great detail and instead of
burdening the present case by a repetition of all those facts it is
directed that a copy of the said decision of the Division Bench will
accompany the certified copy of this Judgment for ready reference.
11. By that decision, it was held that the State Government may
take a final decision in the matter and in the meantime, the
sponsored candidates of the trust will be admitted to the College
subject to their eligibility for such admission. This decision was
taken by relying the principle of promissory estoppel.
12. The Medical College in question was taken over by the Bihar
Private Medical Colleges (Taking Over) Act, 1978. Section 3(3) of
the said Act provided as follows:
“3.(3) All the liabilities and obligations of the college under
any agreement or contract entered into bona fide before the date of
taking over shall devolve and shall be deemed to have devolved on
the State Government.”
13. Section 5 of the said Act was also referred to, and the same
is reproduced below for ready reference:
“5. Contracts in bad faith may be cancelled or varied.-
Without prejudice to the provisions contained in Section 4, the
4
State Government may cancel or vary any contract or agreement
entered into at any time before the issue of the notified order under
sub-section (1) of Section 3 between the College body and any
other person or between the Board of Control and any other
person, if the State Government is satisfied that such contract or
agreement were mala fide and entered into in bad faith and was
detrimental to the interest of the College.”
14. It is no body’s case that the promise made by the private
Medical College to the trust was in bad faith or was not bona fide at
the time when it was made.
15. It was argued that there was no such ‘promise’ or
‘agreement’ by the Medical College. However, in view of the fact
that the promise is supported not only by documentary material but
has also been found to exist in the decision of the Division Bench
dated 24.2.1998 in C.W.J.C. No. 690 of 1989 referred above and
that every year the nominations of the trust have been honoured
over a long period of time, is more than sufficient to reject the
submission of about non-existence of such promise.
16. As mentioned above, the Division Bench of the High Court
left it open to the State Government to take a final decision which
has been taken by the impugned order dated 30.9.2009.
17. Two reasons are mentioned for denying the nomination
quota to the trust. The first reason is that presently no facility
(hospital) of the trust is being used by the Medical College now
because of which there is no justification on continuing the facility of
nomination.
18. This ground is difficult to sustain because while making the
promise granting the privilege of nomination, which was acted upon
by the trust by transferring the hospital to the Medical College,
there was no such reservation that the nomination privilege would
continue only so long as the hospital was used for the purposes of
the Medical College.
19. The second reason given in the impugned order
dated 30.9.2009 is that according to the decision of the Supreme
Court in the case of State of Gujrat and Others Vrs. Meghji
Pethraj Shah Charitable Trust And Others reported in (1994) 3
SCC 552 it has been held that no seat in educational institutions
can be filled by nomination because of which the nomination facility
of the trust cannot be continued.
5
20. From the side of the trust and its nominees it was argued
that for the said proposition in the Gujrat case (supra) the Supreme
Court has relied upon of the another decision of the Supreme Court
in the case of J.P. Unnikrishnan Vrs. State of A.P. reported in
(1993) 1 SCC 645 which has subsequently been modified by the
Supreme Court in the case of T.M.A. Pai Foundation And Others
Vrs. State of Karnataka And Others reported in (2002) 8 SCC
481. The relevant words of the Judgment in the case of State of
Gujrat and Others Vrs. Meghji Pethraj Shah Charitable Trust
And Others (supra) are extracted below:
“…Now, where an individual or an organisation which
establishes and runs a medical college (recognised by State or
affiliated to a university) is not entitled, according to Unnikrishnan
to admit students on its own, or in its discretion, it is inconceivable
that a person or a body which has assisted in setting up of a
government medical college would be permitted to have a quota of
its own to which it can nominate students of its own choice. There
is no room for such an arrangement in law…” (emphasis mine)
21. In the case of T.M.A. Pai Foundation And Others Vrs.
State of Karnataka And Others (supra) a Constitution Bench of
the Supreme Court was examining the rights of minorities to
administer educational institution established by such minorities. In
the said law report, the reconsideration of the Unnikrishnan case
finds place in paragraph 27 to 45.
22. I do not find the criteria of admission purely on merits as laid
down in the case of Unnikrishnan to have been watered down in
the case of T.M.A. Pai Foundation And Others Vrs. State of
Karnataka And Others (supra). More importantly, the T.M.A. Pai
Foundation And Others Vrs. State of Karnataka And Others
(supra) case does not permit any unrestrained quota in admission
to the Management or to any other person or body. Thus, the words
of the Supreme Court quoted above from the case of State of
Gujrat and Others Vrs. Meghji Pethraj Shah Charitable Trust
And Others (supra) still hold good as law and accordingly second
reason given in the impugned order dated 30.9.2009 cannot be
faulted.
23. More importantly, in 1995, when the State of Bihar had not
been bifurcated into Bihar and Jharkhand, an Act was passed by
the Bihar Legislature which is known as
6
fcgkj la;qDr izos’k izfr;ksfxrk ijh{kk vf/kfu;e] 1995 (Act-15 of 1995).
Section 3 of the aforesaid Act is relevant and reproduced below:
” 3- O;kolkf;d ikB~;dzeksa esa izos’k A (1) fdlh U;k;ky; ds fu.kZ;] fMdzh] vkns’k
vFkok fdlh vf/kfu;e] fu;e ;k ifji= esa vUrfoZ”V fdlh ckr ds izfrdwy gksrs gq, Hkh
vfHk;a=.k] fpfdRlk foKku] nUr fpfdRlk] QkesZlh] d`f”k] foKku] i’kq fpfdRlk foKku] eRL;]
Ms;jh] okfudh ds Lukrd Lrj ds ikB~;dzeska rFkk leku izd`fr ds vU; ikB~;dzeska ds izFke
o”kZ esa izos’k la;qDr izfr;ksfxrk ijh{kk ds vk/kkj ij fd;k tk;sxk A
(2) jkT; ,oa jkT; ds ckgj ds fo’ofo/kky;ksa] egkfo/kky;ksa ,oa laLFkkuksa esa izos’k ds fy,
tgka jkT; ljdkj ls euksu;u dh vis{kk gks ,slk euksu;u la;qDr izos’k izfr;ksfxrk ijh{kk
ds vk/kkj ij fd;k tk;sxk A””
The aforesaid legislative provision had not been considered
in the Division Bench decision dated 24.2.1998.
24. The aforesaid legislative provision, against which there can
be no estoppel, strictly prescribes without any exception that
admission would be made only on the basis of the Combined
Competitive Examination. An attempt was made from the side of
the trust to get out of the rigour of this legislative provision by
arguing that the over-riding opening words of Section 3(1) apply
only to decisions decrees and orders of Courts and to statutes,
rules and circulars (paripatra). It was argued that those over-riding
word do not include agreement and promises. It is difficult to accept
this argument because it is not merely the express words of statute
but also necessary intendment which has to be seen and the
interpretation which advances the purposes of the legislation has to
be adopted keeping in mind not only the mischief which is sought to
be remedied but also the principle of law consistently laid down by
the Supreme Court namely that admission should be only on merit
as determined by the Joint Competitive Examination.
25. Therefore, the said provision over-rides everything which
detracts from merit based admission.
26. In the circumstances, in view of the statutory provision in the
aforesaid Section 3 of the 1995 Act, the petitioner trust has no right
to nominate candidates to the M.B.B.S. course and admission to
that course has to be exclusively on the basis of the merit as
determined by the Joint Competitive Examination. The principle of
promissory estoppel propounded in the Judgment of the Division
Bench of this Court dated 24.2.1998 will also not be available to the
trust as there can be no estoppel against statute.
27. As a result, both the questions framed at the beginning of
this order are answered in favour of the respondents and against
7
the petitioners. Accordingly, writ petition (C) nos. 5203 of 2009,
4694 of 2009 and writ petition (C) no. 4753 of 2009 are dismissed.
28. So far as the writ petition (C) no. 4715 of 2009 is concerned,
which is based upon a nomination by M/s Tata Steel Limited. The
source of the power to nominate it based upon a situation similar to
the case of the aforesaid trust ie. earlier use of Tata’s hospital by
the Medical College. The denial of quota is alleged in the impugned
order to be on the two grounds identical to that of the trust.
Therefore the said WP (C) 4715 is also dismissed for the same
reasons as given above in this order.
29. Writ Petition (C ) Nos. 414 of 2010 and 4916 of 2009 are by
the candidates who had appeared at the Combined Entrance Test
but being lower down in merit could not get admission to the
M.B.B.S. course. These candidates have filed these writ petitions
for a direction to the respondents to admit these students against
the vacant seats which are available.
30. It has been argued from the respondents’ side that more
than six months of the current academic session have already gone
by. Of the three semesters which take place every year, the first
semester examination is over and the second semester is also
drawing to a close. It has been argued that admission should not be
directed at this belated stage for the current academic session as
these candidates will not be able to fulfill the requirement of
minimum 75% attendance necessary for appearing at the final
examination. Reliance has also been placed from the respondents’
side upon a decision of the Supreme Court in the case of Medical
Council of India Vrs. Manas Ranjan Behera and Others reported
in (2010) 1 SCC 173. The said decision is reproduced below in its
entirety:
“1. Leave granted. The Medical Council of India has
challenged the order passed by the Division Bench of the High
Court of Orissa directing the admission of twelve students after the
cut-off date of 30th September of the year concerned.
2. It may be noticed in Mridul Dhar V. Union of India this
Court directed that all the parties shall comply with the directions
issued by this Court as regards admission of students in the
medical and dental colleges. In Direction 15 of para 35 of the
judgment, we had also indicated,
8
“Time schedule provided in the Regulations shall be strictly
adhered to by all concerned failing which the defaulting party would
be liable to be personally proceeded with.”
In view of these directions, the High Court should not have passed
the impugned order.
3. However, we have noticed that these twelve students
were eligible and because of unprecedented situation, they could
not secure admission within the prescribed time-limit. We condone
the delay in giving admission to them as a one-time measure.
However, we clarify that the time schedule prescribed by this Court
should be followed strictly.
4. The appeals are disposed of accordingly.”
(emphasis mine)
31. In view of the underlined words of the Supreme Court quoted
above, it would not be proper for this Court to issue the direction
prayed for at this belated stage. Therefore, both the writ petitions
i.e. writ petition (c) no. 414 of 2010 and writ petition(c) no. 4916 of
2009 are dismissed.
(Sushil Harkauli, J.)
Jharkhand High Court at Ranchi
Dated: the 16th March, 2010.
Sudhir/A.F.R.