PETITIONER:
R.K. KHANDELWAL
Vs.
RESPONDENT:
STATE OF U.P. & OTHERS
DATE OF JUDGMENT11/08/1981
BENCH:
CHANDRACHUD, Y.V. ((CJ)
BENCH:
CHANDRACHUD, Y.V. ((CJ)
VARADARAJAN, A. (J)
CITATION:
1981 AIR 1673 1981 SCC (3) 592
1981 SCALE (3)1149
ACT:
Constitution of India 1950 Articles 226 and 136-
Admission to M.D. Course-Change in the practice of
admission-Whether discontinuance of a mere Practice will
sustain a charge of injury to legal rights.
Appeal by special leave-New Point-Discrimination not
taken in writ petition-Not argued in High Court-Not
mentioned in S.L.P.-Plea not permitted.
HEADNOTE:
The appellant applied for admission to the M.D.
(Paediatrics) Course for the academic year 1979-80. He had
passed his M.B.B.S. Examination in December, 1976. There
were other students who had applied for admission along with
the appellant. Some of them had passed their M.B.B.S.
Examination prior to December 1976 and had secured higher
marks than the appellant. The number of seats being limited,
admissions were given according to merit and four students
who had secured the highest number of marks were given
preference to others regardless of the year in which they
had passed their M.B.B.S. Examination.
The appellant filed a writ petition in the High Court
challenging the E decision of the college by which he was
denied admission. The petition was dismissed summarily by a
Division Bench on the ground that the relief of mandamus
could not be granted since the appellant had. failed to
establish that any of his legal rights was violated.
In the appeal to this Court it was contended on behalf
of the appellant that: (a) For many years in the past
candidates who had passed the D.C.H. Examination were
preferred for admission to the M.D. Course but that the
University suddenly discontinued that practice, as a result
of which he had to compete with others who had passed their
M.B.B.S. Examination, and (b) the ratio 1:1 between teachers
and students was relaxed from time to time by the University
and that the appellant was discriminated against by the
arbitrary refusal of the authorities to relax the ratio in
his favour.
Dismissing the appeal,
^
HELD: The appellant has failed to make out a case of
injury to any of his legal rights. Because of interim orders
passed by this Court directing the College and the
University to admit the appellant to M.D. Course in
Paediatrics, the College cancelled the appellant's admission
to the D.C.H. Course. If the appellant has passed the M.D.
Examination, he should be declared to have passed it like
any other student. He should not be subjected to any
disadvantage for the
284
reason that he was not entitled initially to be admitted to
the M.D. Course in Paediatrics. If he has failed he should
be permitted to take the examination again (or again and
again) in accordance with the rules of the University. Since
the result of the other students, who had appeared for the
M.D. Examination along with the appellant, was declared in
February, 1981 the appellant's result to be declared
forthwith. [287 B-F]
(a) There was no rule at any time requiring that an
applicant seeking admission to the M.D. Course in
Paediatrics had to pass his D.C.H. Examination. That such a
practice was recognised over many years or that such was the
understanding of all concerned has been denied on behalf of
the College. Besides discontinuance of a mere practice
cannot sustain a charge of injury to legal rights. The
practice had not ripened into a rule and the University was
under no obligation to admit only those who had passed their
D.C.H. Examination. The appellant therefore cannot make a
grievance of a change in the practice for admission to the
M.D. Course. [285 G-286 B]
In the instant case no one was admitted to the M.D.
Course who had secured lesser marks than the appellant. He
was sixth in order of merit and there were only four seats
available. [286 E]
(b) If there is a power to relax the ratio, that power
must be exercised reasonably and fairly. It cannot be
exercised arbitrarily to favour some students and to
disfavour some others. [286 G]
In the instant case this point of discrimination was
not taken in the writ petition filed in the High Court, not
argued in the High Court, and not even mentioned in the
Special Leave Petition. The question as to whether the
authorities have the power to relax the ratio and the
further question as to whether that power has been exercised
arbitrarily raise new points into which it is difficult to
enquire for the first time. This plea cannot therefore be
entertained. [286 H-287 A]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2324 of
1980.
Appeal by special leave from the judgment and order
dated the 23rd April, 1979 of the Allahabad High Court in
Civil Misc. Writ No. 2228 of 1979.
Dr. L. M. Singhvi, and S. K. Verma for the Appellant.
Mrs. Shobha Dikshit for Respondent Nos. I & 2.
S. N. Kacker and B. R. Agarwala & P. G. Gokhale for
Respondent No. 4.
The Judgment of the Court was delivered by
CHANDRACHUD, C. J.: The question which arises for
consideration in this appeal is whether the appellant, Dr.
R. K.
285
Khandelwal, is entitled to be admitted to the M. D. Course
in Paediatrics of the Agra University and whether in denying
him that opportunity, the State has violated any of his
legal rights.
The appellant passed his M.B.B.S. Examination from the
S. N. Medical College, Agra, in December 1976 and completed
his internship in December 1977. Being desirous of
prosecuting post-graduate studies in Paediatrics, he took a
year s house job in the Paediatrics Department of the S. N.
Medical College Hospital, which he completed in January
1979. He then applied for admission to the M. D. Course in
Paediatrics for the academic year 1979-80. He was admitted
to the D.C.H. Course but he was refused admission to the
M.D. Course on two grounds: First, that amongst the
applicants for the M. D. Course in Paediatrics there were
four students who had secured higher marks than him in the
M.B.B.S. Examination, and second, that on the basis of the
1:1 ratio between teachers and students, there were only
four seats available for the post-graduate course in
Paediatrics.
The appellant filed a writ petition in the High Court
of Allahabad challenging the decision of the College by
which he was denied admission to M.D. (Paediatrics). That
petition was dismissed summarily by a Division Bench of the
High Court on the ground that the relief of mandamus sought
by the appellant could not be granted to him since he had
failed to establish that any of his legal rights was
violated. This appeal by special leave is directed against
the High Court’s order dated April 23, 1979.
The appellant, as stated earlier, was admitted to the
D.C.H. Course after he had finished his house job in
Paediatrics. His case is that for many years in the past,
candidates who had passed the D.C.H. Examination were
preferred for admission to the M. D. Course but that the
University suddenly discontinued that practice, as a result
of which he had to compete with others who had passed their
M.B.B.S. Examination. There is no substance in this
contention and in any case the appellant cannot make a
grievance of a change in the practice for admission to the
particular course. Admittedly, there was no rule at any time
requiring that an applicant seeking admission to the M.D.
Course in Paediatrics had to pass his D.C.H. Examination.
All that is alleged is that such a practice was recognised
over many years or at least, that such was the under-
standing of all concerned. Both the practice and the
understanding have been denied on behalf of the College. But
apart from that,
286
discontinuance of a mere practice cannot sustain a charge of
injury to legal rights. The practice had not ripened into a
rule and the University was under no obligation to admit
only those who had passed their D.C.H. Examination. We also
feel some difficulty on the facts before us in accepting the
contention of the appellant that passing the D.C.H.
Examination was a passport for admission to the M.D. Course.
It may, at the highest, be said that it was easier for
students to get admitted to the M.D. Course after passing
the additional examination of D.C.H. after the M.B.B.S.
Examination.
The appellant applied for admission to the M.D.
(Paediatrics Course for the academic year 1979-80. He had
passed his M.B.B.S. Examination in December 1976. There were
other students who had applied for admission to the M.D.
Course in Paediatrics along with the appellant. Some of them
had passed their M.B.B.S. Examination prior to December 1976
and had secured higher marks than the marks obtained by the
appellant in the December 1976 Examination. The number of
seats being limited, admissions were given according to
merit and the four students who had secured highest number
of marks were given preference to others regardless of the
year in which they had passed their M.B.B.S. Examination.
No one was admitted to the 1979-80 academic year for the
M.D. Course in Paediatrics, who had secured lesser marks
than the appellant. The four students who secured admission
had obtained marks varying between 60.06% to 65.80% while
the appellant had secured 58.56% marks only. He was sixth in
order of merit amongst the applicants and there were only
four seats available bearing in mind the ratio of 1:1
between the teachers and the students.
Dr. Singhvi, who appears on behalf of the appellant,
raised a further contention that the ratio 1:1 was relaxed
from time to time by the University and that the appellant
was discriminated against by the arbitrary refusal of the
authorities to relax the ratio in his favour. We are
prepared to accept that if there is a power to relax the
ratio, that power must be exercised reasonably and fairly.
It cannot be exercised arbitrarily to favour some students
and to disfavour some others. But the difficulty in the way
of the learned counsel is that this point of discrimination
was not taken in the Writ Petition which was filed in the
High Court, it was not argued in the High Court and is not
even mentioned in the Special Leave Petition before us. The
question as to whether the authorities have the power to
relax the ratio and the further question as to whether that
power has been exercised arbitrarily in this case raise new
points
287
into which it is difficult for us to enquire for the first
time. We are therefore unable to entertain the submission
made by the counsel.
The appellant has thus failed to make out a case of
injury to any of his legal rights, for which reason the
appeal must fail. The appeal is accordingly dismissed. But
considering that under interim orders passed by this Court
from time to time the appellant has appeared for the M.D.
Examination on the completion of the Course, we hope that
the University and the S.N. Medical College will take a
sympathetic view of the appellant’s case and have his result
declared. It may be mentioned that because of the interim
orders passed by this Court directing the College and the
University to admit the appellant to the M.D. Course in
Paediatrics, the College cancelled the appellant’s admission
to the D.C.H. Course. That may have been right because no
student can do the D.C.H. Course and the M D. Course
simultaneously. But the point of the matter is that if this
Court were not to direct as an interim measure that the
appellant should be allowed to prosecute his studies in M.D.
Paediatrics (subject to the result of this Appeal), the
appellant might have completed his D.C.H. Course and,
subject to being admitted to the M.D. Course within a year
or so from now he would have taken his M.D. Examination
after passing the D.C.H. Examination. The authorities
concerned will bear in mind that the appellant should not be
placed in a worse position than he would have been in, had
he not filed this appeal. Therefore, if the appellant has
passed the examination, he should be declared to have passed
it like any other student. He should not be subjected to any
disadvantage for the reason that he was not entitled
initially to be admitted to the M.D. Course in Paediatrics.
If he has failed, he should be permitted to take the
examination again (or again and again) in accordance with
the rules of the University. Since the result of the other
students, who had appeared for the M.D. Examination along
with the appellant, was declared in February 1981, we hope
that the appellant’s result would be declared forthwith.
There will be no order as to costs.
N.V.K. Appeal dismissed.
288