JUDGMENT
R.P. Sethi, C.J.
1. Aggrieved by the selection made to the Postgraduate Medical Courses in the appellant-institution, the writ petitioners who were separately considered in the K.M.C. Category, prayed for issuance of directions to the appellant to admit them to the postgraduate medical courses on the basis of their ranking in the All India Medical Postgraduate Entrance Test (MEDPET), conducted by the appellant. They prayed, as an interim measure, that effect be not given to the selection to the postgraduate courses made on 4th August, 1996 in respect of 25% quota earmarked for Ex-KMC graduates. Writ petitions were allowed by the learned Single Judge vide his order dated 27-1-1997 directing the appellant to admit the writ petitioners in the coming academic session 1997-98 to the postgraduate courses from amongst 25% seats reserved in the NRI category subject to the condition that the fee structure and other conditions applicable to the writ petitioners shall be those prescribed for candidates admitted in the quota reserved for Ex-KMC graduates. On an interim application filed by the writ petitioners the learned Single Judge vide his order dated 9-4-1997 modified his earlier order to the extent.-
“….. that the petitioners namely: (1) Shaji Sridharan, petitioner in W.P. No. 23794 of 1996; (2) Sandeep Narayanaswamy, petitioner in W.P. No. 23795 of 1996; (3) Fahad, petitioner in W.P. No.
23797 of 1996; (4) Hariprasad Shetty, petitioner in W.P. No. 23798 of 1996; and (5) Deepak M. Shetty, petitioner in W.P. No. 26300 of 1996, shall be admitted to the Postgraduate courses in the subjects mentioned against the name of each one of them herein above during the academic session 1997-98 out of 25% seats reserved by the Management for itself in the N.R.I. category. It is further directed that in case the seats so reserved do not include the courses mentioned above, the petitioners shall be admitted to the same out of the seats reserved for the Ex-KMC graduates. The admission of the petitioners shall however be on the same terms and conditions as regards the payment of fee etc., as were prescribed for candidates admitted in the Ex-KMC graduates category”.
2. It has been submitted on behalf of the appellant that the order of the learned Single Judge being contrary to facts and the settled position of law, is liable to be quashed. It is contended that the appellant had the right to change the criteria for the purpose of making the selection of the best for the postgraduate courses. It is submitted that the process of criteria and prospectus had commenced in March, 1996, and was neither an afterthought nor mala fide. The MCI guidelines did not prevent the appellant from supplementing the criteria in the interests of the students for making better selection and that no student could insist for a particular criteria for being selected to a specified course. The criteria is stated to have been altered with legal authority and in accordance with the bye-laws, rules and the Memorandum of Association governing the appellant-institution. It is further contended that the allegations of mala fides though only legal, the alleged strictures passed by the learned Single Judge were uncalled for. It is pleaded that the implementation of the directions of the learned Single Judge would result in substantial and huge monetary loss to the appellant-institution besides adversely affecting their proclaimed acknowledged reputation. It is further contended that the learned Single Judge ignored the fact that some of the writ petitioners had already voluntarily got admitted to postgraduate medical courses which were available to them in the appellant’s college or otherwise as per their ranking. It is submitted that the learned Single Judge was not justified in ignoring the affidavit of the Deputy Registrar of the appellant-University only on the ground that he had mentioned therein that the contents therein were correct “to the best of his knowledge”. The action of the appellant in changing the criteria for making the selection is claimed to be for the purpose of their excellence in the field of medical service in the country and abroad, The learned Single Judge is stated to have traversed beyond the scope of the prayer made in the writ petition and is also stated to be not justified in modifying his order dated 17-1-1997 by his subsequent order dated 9-4-1997. The latter order is alleged to be reviewing the earlier order resulting in jeopardising the rights of those who would be entitled to seats in the subjects allotted to the writ petitioners.
3. In order to appreciate the rival contentions of the parties, it is necessary to have a cursory look at the facts necessary for the purpose of
adjudicating the legal pleas raised before us. The admission to the Postgraduate Medical, Dental and Super Speciality courses for the academic year 1996-97 were announced by the appellant-University vide prospectus Annexure-B issued in March, 1996. Advertisements inviting applications for admission to the aforesaid courses were published in regional and national newspapers between 24-4-1996 and 4-5-1996. Sale of prospectus and applications is stated to have commenced on 1-4-1996. About 5,000 candidates appeared in the All India Entrance Test held at Manipal on 16th of June, 1996. The results of the test were published on 30th June, 1996 and the counselling is stated to have been conducted between 2nd of August to 5th of August, 1996. Classes for those who were admitted commenced on 19th August, 1996.
4. The writ petitioners who had completed their M.B.B.S. and Internship in the year 1994-95 appeared for the All India MEDPET test conducted by the appellant in the Ex-KMC category for which 25% of the seats were reserved. They claimed that despite their ranking obtained in the All India Entrance Test they were not admitted to the courses to which they were eligible. It was submitted that the ranking given by the Registrar was not based on the merits of the students declared and accepted in the All India Entrance Test Examination. It was submitted that on account of the illegal procedure adopted by the appellant, those students who got low ranking in the All India Entrance Test got higher ranking in the list published by the appellant-institution. It was contended that no norms were fixed for the purpose of ranking by the KMC The writ petitioners alleged that the list of successful candidates published and the ranks allotted by the appellant was arbitrary and violative of Article 14 of the Constitution. It was further alleged that the method prescribed and adopted while allotting seats to the 25% reserved for Ex-KMC students was neither notified nor published or authorised under the prospectus circulated.
5. In the statement of objections filed by the appellant it was submitted that prior to the selection for the year 1996-97 inter se ranking of Ex-KMC/CODS seats used to be made only on the basis of ranking in MEDPET. However, various complaints were received from the Ex-KMC/CODS graduates stating that many meritorious undergraduates who had passed out of KMC/CODS could not score good ranks in the Entrance Test whereas some who were not very good students or were only average or below average scored good ranks in the Entrance Test. In this way the purpose of reservation for Ex-KMC/CODS alumni being to select the best students in their alma mater was defeated by not taking into consideration their performance in the KMC/CODS at the undergraduate level. The appellant felt that there was merit in the complaints and accordingly, they decided to adopt a fair and equitable criteria for evaluation for ranking for Ex-KMC/CODS graduates for the 25% reserved seats from the academic year 1996-97. The Executive Committee of the appellant fixed the following guidelines, procedure and criteria for this purpose.
“GUIDELINES FOR RANKING AND SELECTION OF
CANDIDATES UNDER ALUMNI QUOTA
Eligibility
1. Should have passed the qualifying undergraduate examination from M.A.H.E. institution.
2. Transferred candidates to M.A.H.E. should have done not less than 60% of the entire course from M.A.H.E. institutions.
3. Candidates who have taken transfer from M.A.H.E. to other colleges after pre-clinical are not eligible.
4. Candidates who have passed only the P.G. Diploma but not their undergraduate qualification (M.B.B.S./B.D.S.) from M.A.H.E. are also not eligible to apply under alumni quota.
Selection Procedure:
1. Marks scored in M.A.H.E.-96 entrance examination.
2. Marks scored in undergraduate examination (M.B.B.S./B.D.S.) from M.A.H.E.
3. Negative marking for attempts/failures during the undergraduate course.
4. Additional marks for diploma qualifications only if the candidate is getting the Master’s course in the same subject.
5. Subject to the above, final marking is based on 50% of entrance test marks and 50% of undergraduate examination (theory) marks added together subject to Items 3 and 4 above and then ranked.
6. All the eligible and qualified Ex-KMC candidates must also attend the first round of general counselling and if accept a General Category seat of his/her choice as available, it would be allotted to him and he will not be considered for Alumni seats”.
It was submitted that the grievance of the writ petitioners that they were not informed of the valuation criteria was incorrect. The appellant relied upon Clause 15(D) of Annexure-B regarding reservation of Ex-KMC/CODS graduates which provided that 25% of the total number of seats were reserved for the Ex-KMC/CODS graduates who would be eligible for the unreserved seats according to the rank. It was claimed that it was open for the appellant to have its own reasonable and lawful parameters and criteria for selecting the students or a class of students under the reserved category. The criteria fixed and allegedly prescribed was claimed to be reasonable and lawful. The writ petitioners were not entitled to claim admission only on the basis of ranking given to them in the MEDPET. It was contended that the writ petitioners were not within the ranks in the general list so as to entitle them for selection and claim admission merely on the basis of MEDPET ranking and under the reserved quota of 25% Ex-KMC/CODS graduates. It was contended
that the writ petitions are misconceived which were liable to be quashed.
6. On the objections raised regarding non-joinder of necessary parties, the writ petitions were amended and all selected candidates were impleaded as party respondents in the writ petitions which were disposed of by the learned Single Judge in the manner as noted hereinabove.
7. We have heard the learned Counsel appearing for the parties at length and also perused the written submissions filed by them.
8. The most important question of law as admitted by all the parties requiring adjudication by us is as to whether the appellant-University has the power to change, modify or lay down the criteria of selection over and above the criteria prescribed for the purpose by the Medical Council of India. Section 19-A of the Indian Medical Council Act, 1956, provides that the Council may prescribe the minimum standards of medical education required for granting recognised medical qualifications (other than postgraduate medical qualifications) by Universities or medical institutions in India. A cursory look at the section indicates that what is required to be prescribed by the Medical Council is the minimum standards of medical education and that such standards can be prescribed for granting recognised medical qualifications for degrees of medical education other than postgraduate medical qualification. Vide prospectus Annexure-B issued by the appellant it was provided that admission to various medical/dental postgraduate courses shall be made under the following categories:
1. Non-Resident Indian (N.R.D/Foreign student category.
2. General category.
It was further provided that admission of candidates under the general category will be made on the basis of the rank obtained in the All India Medical Postgraduate Entrance Test for medical graduates and Dental Postgraduate Entrance Test. In the general category 25% of the total number of seats were reserved for Ex-KMC/CODS graduates. Such graduates were also held eligible for the unreserved seats according to the rankings. Counselling was to be held at Manipal during which the candidates were to be called in order of their ranks and offered the seats available at that point of time. The rules of the appellant attached with the Memorandum of Association indicate that Kasturba Medical College (KMC) is one of the associated hospitals of the appellant-University. Rule 6.1 provides that Board of Management of the appellant was to be the principal organ of the management which is to be a compact and homogeneous body enabling it to promptly take and implement well-considered decisions for the purpose of effectively handling crisis situations. The Board of Management has been declared to be the principal executive body of the academy which has all powers vested in it for the purposes specified in various sub-rules of Rule 6. Rule 6.2.31 authorises the Board of Management to delegate all or any of its powers to any committee or sub-committee constituted by it or to the Chancellor or any
other person. It has the powers to conduct examinations or tests for admission to the courses taught in the academy, to conduct examinations for degrees and diploma and to declare the results of such examinations and tests and to confer, grant or award degrees, diplomas, certificates and other academic titles and distinctions. It has the further power to perform such other functions that may be necessary for the furtherance of the objectives of the academy. In the meeting held on 8-4-1996 the Executive Committee of the appellant is stated to have adopted a resolution to the effect that for the 25% seats for P.G. courses reserved for KMC Alumni, the merit list should be based both on their performance in the M.B.B.S./E.D.S. examination and also in the entrance test on a 50:50 basis and for that purpose only the theory marks at the M.B.B.S./B.D.S. examination be taken into account. The resolutions of the Executive Committee is stated to have been subsequently approved by the Board on 3-5-1996.
9. The writ petitioners allege that the appellant-University had no power to change or lay down a new criteria which, according to them, prejudiciously affected their merit. In support of their contention, they have relied upon Rule 42.3 and Rule 6.2.33 of the Memorandum of Association and the rules made thereunder. In reply the learned Counsel appearing for the appellant-University have submitted that change of criteria or guidelines could be made, as according to him, such change was neither mala fide nor ex facie targeted to help some selected few. The change did not confer any discretionary powers upon the appellant which could result in changing the merit to the prejudice of others. The students claiming admission had no right to a particular criteria. Both the sides have referred to a host of authorities of the Apex Court and various High Courts in support of their respective contentions. On appreciation of the facts of the case and the position of law, the learned Single Judge came to the conclusion:
“….. I am therefore inclined to accept the submission made on
behalf of the petitioners that the formulation and application of the additional criterion for admission to Ex-KMC graduates was an afterthought, which lacks legal sanction thereby vitiating any selection made on that basis”.
10. Before adverting to the rival contentions urged before us, it is necessary to note that the writ petitioners had opted to participate in the selection process and after having failed to get the admission for the course of their choice, they approached this Court and filed writ petitions in October, 1996 despite the fact that consequent upon selection the classes in the courses had commenced in August, 1996. Under the normal circumstances a person who participates in the selection process, takes the chance of being selected and after having failed to get selection, cannot be permitted to challenge the selection on the grounds of alleged illegalities particularly when it is shown that he had not in any way objected to the process of selection or the guidelines, regulations and criteria prescribed for the same. However, as in this case, important questions of law have been raised and the learned Single Judge has
decided the writ petitions on merits, we are inclined not to non-suit the writ petitioners on this ground alone.
11. The writ petitioners have relied upon Rule 42.3 of the Memorandum of Association providing that all the admissions shall be made as per the guidelines of AICTE/UGC/MCI/appropriate bodies. Section 19-A of the Indian Medical Council Act, as already noticed, provides the minimum standards of medical education required for granting recognised medical qualifications other than postgraduate medical qualifications. Rule 6.2.33 of the Rules governing the appellant, authorises the Board to conduct examinations or test for admission to the courses started in the academy and to conduct examinations for degree and diploma. Rule 6.2.31 authorises the Board of Management to delegate all or any of its powers to any committee or sub-committee constituted by it. Rule 6.2.14 authorises the Board of Management to appoint such committees for such purposes and with such powers as the Board of Management think fit and to co-opt such persons on these committees as it thinks fit. The constitution of the executive committee by the Board of Management is not disputed. It is however submitted that the committee was not authorised to pass the resolution dated 8-4-1996 by which the criterion for selection was changed and that in fact no such resolution was passed by the said executive committee. The learned Single Judge was justified in not accepting the plea of the appellant-University that the prospectus had not prescribed any criteria or procedure for admission against the seats reserved for Ex- KMC graduates. He further held that the prospectus issued by the University prescribed the procedure to be adopted by the respondent-University while making admission to all the available seats including those reserved for Ex-KMC graduates. The only point on which the learned Judge did not agree was that after the issuance of prospectus the appellant-University had no right to change the criteria and guidelines and that in fact such guidelines or criteria was not changed before the All India test was conducted.
12. The Apex Court in Ajay Kumar Singh and Others v State of Bihar and Others , considered the scope of the Medical Council Act in relation to admissions to the Postgraduate Medical Courses and held:
“….. Section 19-A expressly empowers the Council to “prescribe the minimum standards of medical education” required for granting undergraduate medical qualification. So does Section 20 empower the Council to prescribe standards of postgraduate medical education but “for the guidance of Universities” only. It further says that the Council “may also advice Universities in the matter of securing uniform standards for postgraduate medical education throughout India”. (The distinction between the language of Section 19-A and Section 20 is also a relevant factor, as would be explained later.) Clause (j) of Section 33 particularises the subjects with respect to which regulations can be made by the Council. It speaks of the courses and period of study and the practical
training to be undergone by the students, the subjects of examination which they must pass and the standards of proficiency they must attain to obtain the recognised medical qualifications but it does not speak of admission to such courses of study. Indeed, none of the sections aforementioned empower the Council to regulate or prescribe qualifications or conditions for admission to such courses of study. No other provision in the Act does. . . . “.
13. In State of Madhya Pradesh and Another v Kumari Nivedita Jain and Others, the Supreme Court while dealing with the regulations made by the then Indian Medical Council, had declared that “it is merely directory and does not have any mandatory force”. Dealing with the scope of Entry 66, List I, in the VII Schedule of the Constitution, the Court held:
“Entry 66 in List I (Union List) of the 7th Schedule to the Constitution relates to ‘co-ordination and determination of standard in institutions for higher education or research and scientific and technical institutions’. This entry by itself does not have any bearing on the question of selection of candidates to the Medical Colleges from amongst candidates who are eligible for such admission. On the other hand, Entry 25 in List III (Concurrent List) of the same Schedule speaks of– ‘education, including technical education, medical education in Universities, subject to Entries 63, 64, 65 and 66 of List I. . . .vocational and technical training of labour’. This entry is wide enough to include within its ambit the question of selection of candidates to medical colleges and there is nothing in the Entries 63, 64 and 65 of List I to suggest to the contrary. We are, therefore, of the opinion that Regulation II of the Council which is merely directory and in the nature of a recommendation has no such statutory force as to render the order in question which contravenes the said regulation illegal, invalid and unconstitutional”.
14. It is not disputed that the purpose of selection for postgraduate courses is to select the best and to achieve excellence. The University, in the absence of any directions of the Medical Council of India to the contrary, had the right to fix and prescribe criteria which, if challenged, was required to be justified as fair, reasonable and intra vires of the provisions of the Constitution. We, therefore, find force in the submission of the learned Counsel for the appellant that the appellant-University was entitled to change or prescribe the criteria for the purpose of making selection of the best for postgraduate courses. The criteria prescribed by the appellant was not challenged by the students of being violative of the provisions of the Constitution. Despite submissions made regarding the constitutional validity of the criteria we have opted to not comment on the rival contentions in the absence of pleadings and leave this matter open in these appeals. We are also of the opinion that the criterion was changed in accordance with the bye-laws and the rules of
the appellant-University. To come to such a conclusion we put our reliance upon Rules 6.1, 6.2, 6.2.31, 6.2.33 and 6.2.38, the details of which have already been noticed in the preceding paragraphs. We do not agree with the findings of the learned Single Judge that the additional criteria for admission lacked legal sanction and thereby vitiated the selection made on that basis.
15. The next point requiring adjudication is that even if the appellant-University had the power to change or lay down additional criteria whether it was permissible to introduce such criteria unilaterally without mentioning the same in the prospectus. In other words it requires to be adjudicated as to what are the safeguards provided for the competing students in case any change in the criterion is made. In Gurdeep Singh v State of Jammu and Kashmir, the appellant had claimed admission to the course leading to a medical degree under the sports category which was allegedly wrongfully denied to him and in his place another candidate viz., Shuab Omer was selected. The Court noticed in that case that the authorities concerned with the admission to the medical courses in the State of Jammu and Kashmir had issued notification on 19-7-1991 inviting application for admission to the Entrance Examination for selection of candidates for the medical courses. Those seats were reserved for candidates excelling in certain categories of sports specifically notified as approved sports. At the relevant time mountaineering was not specified as one of the sports. The entrance examination was conducted on 14-9-1991 and the official results declared on 26-11-1991. There was a tie between the writ petitioner and the respondent therein as both of them had secured 118 marks each. Regulations of admission contemplated a preference in favour of a candidate who had secured high marks in Biology in the 12th standard examination. Respondent therein was selected on the ground of having secured higher marks in Biology. The petitioner Gurdeep Singh challenged the selection of the respondent therein on the ground of eligibility. The eligibility of sports category was stated to have been determined by the Sports Council of Jammu and Kashmir. At the time of selection by the Sports Council, the sporting activity of Gurdeep Singh was one of the approved sports while that of the respondent therein was not so included in the approved sports. The selection of the respondent was challenged in the High Court which dismissed the writ petition on the ground that the plea of the writ petitioner amounted to a plea that the ‘mountaineering’ by itself, was not an activity eligible to be recognised as a sporting activity. In that context the Supreme Court held:
“. . . The real question was rather that such a sport not having been included in the list of approved sports at the cut-off date when the applications were invited and on the basis of which candidates responded, could not later be introduced to provide eligibility retrospectively to a single candidate.. .”.
16. In Dr. Vinay Ramped v State of Jammu and Kashmir , it was held that once the conditions of eligibility are notified, the same are required to be acted upon and subsequent Government notification prescribing different conditions could not deprive admission to a candidate who was eligible as per the requirements set out in the advertisement. The learned Single Judge in the present case referred to various judgments of different High Courts in this regard and concluded:
“. . .There is thus considerable judicial authority for the proposition that norms and procedure prescribing the method of making the selection published in the prospectus constitute the rules regulating the same which cannot be altered once the process of selection has started and candidates invited to participate in the same. Alteration of the norms governing admission against seats reserved for Ex-KMC graduates after the selection process had been put into motion, that too without prior notice to the candidates concerned was in the facts and circumstances of this case sufficient to vitiate the selection insofar as candidates admitted in the said category were concerned. My answer to question 2 is therefore in the negative”.
17. We have not been persuaded to agree with the general observations made by the learned Single Judge to the effect that once a prospectus is published providing the criteria for selection, the same cannot be altered under any circumstances. We, however, find ourselves in agreement with the finding of the learned Single Judge that alterations of the norms governing admission cannot be given effect to without prior notice to the candidates concerned. Such an intimation and procedure to that effect is in the interest of justice and fair play. The criterion for selection cannot be permitted to be changed without its intimation to the concerned candidates. If the authorities are permitted to change the criterion according to their whims, convenience and timing, the same may result in disastrous consequences inasmuch as the authorities concerned may tend to change the criteria ostensibly for justifying the selection made by them. Such a course, if allowed, would amount to authorising the authorities to make tailor made criterion for the purpose of their convenience which is likely to result in frustration amongst the competing candidates and defeat the very purpose of selection. We are, therefore, of the opinion that the authorities could have changed the criterion in accordance with law and the rules at any time before the commencement of the entrance test on 16th June, 1996 with prior intimation to all the competing students. In the instant case, the criterion was resolved to be changed in the meeting of the Executive Committee held on 8th April, 1996 which was stated to have been confirmed by the Board of Management on 3rd May, 1996. As the entrance test was held on 16th June, 1996 it can be held that the criterion for selection was validly changed by the Competent Authority before the commencement of the entrance test. In view of this finding we are called upon to decide as to whether the said altered, changed and modified additional criteria was intimated
to the candidates appearing in the examination before 16th June, 1996, or not. If it is shown that the said guidelines had been validly, properly and sufficiently notified to all concerned students, no fault can be found in the process of selection made by the appellant-University. If, however, it is found that the criteria though adopted was not properly, validly and sufficiently notified to the concerned the same cannot be permitted to affect the rights of the aggrieved students. In this regard the learned Single Judge has held:
“Suffice it to say that the respondent-University has not been able to satisfactorily demonstrate the desired transparency in the matter of formulation of a criterion at a stage much after the Rules regulating the admissions to the courses for the year 1996-97 had been finalised, published for the information of candidates and the candidates on that basis invited to appear in the All India Test. The reason why respondents found it essential to alter the criterion at a stage when it had already committed itself to holding the selection on the basis of the norms that were followed in previous years is therefore hard to discover. All that can be said is that the disclosures made leave a strong lurking suspicion about the bona fides of the University considering the manner in which the same has been introduced. The claim made by the respondents that the norms were formulated by the Executive Committee in its meeting on 8th of April, 1996 and that the modalities based on the said norms, for preparation of a separate rank list were prepared on 6th of May, 1996, which were later displayed on the notice boards for the information of the candidates are also rendered highly doubtful in the absence of any supporting documentary evidence, except the affidavit filed by the Deputy Registrar, which also instead of an emphatic statement made on the basis of the personal knowledge or knowledge derived from the record only makes a half-hearted assertion based on his best of knowledge. This is particularly so when we find that in the rank list prepared on the basis of the entrance test result conducted by the respondent-University published on 30th of June, 1996, there is no suggestion that admissions against the seats reserved for Ex-KMC graduates shall be made on the basis of a criterion other than the one originally set out in the prospectus. If the version of the respondent-University that the norms/criterion applicable to Ex-KMC graduates had been formulated in April-May, 1996 was correct, there was no reason why the said norms and criterion could not be disclosed to the candidates in the results published by the University on 30th of June, 1996. A perusal of the booklet containing the results of the entrance examination shows that the procedure for admission was reiterated by the University while publishing the rank list. Para 4 of the procedures published in the said booklet invited the first 400 candidates in the rank list to attend the counselling and on the spot admission session on the 2nd and 3rd of August, 1996 according to the schedule given therein. The booklet also invited
Ex-KMC graduates to attend the general counselling as per the guidelines given in the said paragraph. Para 5 of the booklet stated that a separate rank list of Ex-KMC graduates will be displayed in the notice board and constituent colleges while para 6 stated that candidates will be called in the order of their ranks and offered seats available at that point of time. What is significant is that paras 5 and 6 of the said booklet do not give any indication, whatsoever that the procedure or the criterion applicable to admissions in the reserved category for Ex-KMC graduates would be different. This is strongly suggestive of the fact that till 30th of June, 1996 either the so-called additional criterion/guidelines formulated by the Executive Committee were non-existent or even if the same had been formulated the respondent-University had deliberately and consciously suppressed the same from the concerned candidates, giving them an impression as though admissions would continue to be based entirely on the ranking of the candidates in the MEDPET examination. Significantly, no explanation has been offered by the respondent-University for its failure to make public the introduction of the new criterion at least at the tune of publication of the MEDPET result which reiterated the procedure to be followed while making the admissions”.
18. The learned Single Judge on facts held that the additional criteria was not at all circulated. To come to this conclusion he disbelieved the affidavit of the Deputy Registrar sworn on the basis of “to the best of his knowledge”. It may be true that the amended criteria was not properly advertised, circulated and conveyed to the concerned, but it cannot be said that the same was not displayed on the notice board merely on the ground that the Deputy Registrar, in his affidavit, had stated that the facts mentioned in the affidavit were correct ‘to the best of his knowledge’. In the statement of facts filed on behalf of the appellant on 9-12-1996 it was stated:
“When the above case was heard by this Hon’ble Court on 5-12-1996, this Hon’ble Court was pleased to enquire whether the guidelines for ranking and selection of candidates for Postgraduate Courses in the ex. KMC/COD reserved quota formulated in pursuance of the resolution dated 8-4-1996 of the Executive Committee of MAHE were published. The Counsel for this respondent stated that they have been promptly displayed in the Notice Boards of the office of the deemed University and the concerned colleges. This Hon’ble Court wanted to know if there are any records maintained in that behalf and the Counsel for this respondent sought time to verify.
2. This respondent submits that the guidelines formulated for ranking and selection of candidates for postgraduate courses for ex. KMC/CODS quota for the year 1995-96 have been displayed in the Notice Board in the ground floor of the office of the Manipal Academy of Higher Education, deemed to be University; common
Notice Board of Kasturba Medical College and College of Dental Surgery at Mangaloro; and Kasturba Medical College, Manipal. The said guidelines have been so displayed from the middle of May 1996 till the end of August 1996. This respondent also begs to produce herewith a true copy of the communication dated 18-4-1996 of the Registrar of MAHE at Manipal to the Deputy Registrar, MAHE at Mangalore, dated 18-4-1996 regarding the guidelines formulated as Annexure-R4. The summary of guidelines thus formulated after meeting of the group in pursuance of the Resolution of the Executive Committee has already been reproduced at para 4 at page 4 of the statement of objections dated 3-9-1996″.
In support of the statement of facts Dr. Sudhakar B. Nayak, Deputy Registrar and Professor and Head, Clinical Biochemistry, Manipal Academy of Higher Education, Manipal, sworn to an affidavit stating therein:
“I say I am conversant with the facts of the case. I have authority to swear to this affidavit. I am personally conversant with the facts stated in the Additional Statement of Objections
filed herewith.
2. I say the statements made in paras 1 and 2 of the additional statement of facts are true to the best of my knowledge”.
Such an averment cannot be termed to be not a responsible statement or being without substance. The Deputy-Registrar had categorically stated that he was personally conversant with the facts stated in the additional statement of objections filed by the appellant and referring to the averments made in paras 1 and 2 he also submitted that the statement made therein was true to the best of his knowledge. It is not disputed that the averments “to the best of my knowledge” is generally acknowledged proforma statement to be made in the affidavits filed. We are not inclined to reject the submissions made in the additional statement of objections regarding the publication of guidelines formulated for ranking or selection by way of displaying the same in the notice board in the office of the Manipal Academy and common notice board of Kasturba Medical College, and Colleges at Mangalore and Manipal. We are, however, of the firm opinion that such display was not sufficient publication for the purpose of intimating the concerned candidates about the change in the guidelines formulated for ranking and selection of candidates or the change in the additional criteria. It has not been brought on record or even suggested that the petitioners and similarly situated other candidates were in any way expected or supposed to see the notice board for the purpose of matters relating to their selection. The petitioners and other competing students in the specified category for which the guidelines were formulated for ranking and selection and criterion was changed, are admitted to be residing in different parts of the State. In the absence of averments to the effect that the writ petitioners and other similarly situated like them had the access to the notice board or supposed to see the notice board, it cannot be held that the display of the changed guidelines on the notice board was sufficient notice to them.
19. It may be noticed that the petitioners were Ex-KMC students who have not been shown to be assigned to the Kasturba Medical College either at Mangalore or at Manipal. Even in the prospectus issued no mention was made that the University had reserved the rights to change the criterion without intimation to the concerned candidates. Even though the admissions and examinations are stated to have been notified by advertisements in the newspapers, yet the changed criterion was not notified by any such means for which no explanation has been submitted or even suggested. Absence of proper publication of the additional criterion and its intimation to the concerned candidates obviously resulted in disadvantage to various students appearing under the Ex-KMC category. Whereas admission of candidates under the general category was made on the basis of the rank obtained in the All India MEDPET test, admission of Ex-KMC students, under the same category, was made under the changed criteria. The students appearing under the same category can safely be held to be having no knowledge of the said change.
20. From the pleadings of the parties and the submissions made before us it cannot be denied that the additional criteria had substantially affected the merit of the candidates appearing in the Ex-KMC category. In the absence of publication of the changed criteria the selection of the candidates was reportedly received with a shock and surprise by the affected Ex-KMC students. For example, writ petitioner Hari Prasad Shetty, who appeared under Ex-KMC category under the Registration No. 12702 was placed at No. 369 in the general category and was at No. 36 in the Ex-KMC category based upon MEDPET test. However, after the changed criteria he ranked at No. 103. Writ petitioner Fahad. F. was ranked at 447 in the general category based upon MEDPET test. His registration No. was 11613 and he was ranked at No. 45 in the Ex-KMC category, but after the changed criteria he was ranked at 114. Writ petitioner Shaji Sreedharan, with registration No. 11781, was ranked at No. 611 in the general category based upon MEDPET test. In the Ex-KMC category based upon MEDPET test he was ranked at 71 and after change of criteria he was ranked at 106. Sandeep Narayanaswamy, another writ petitioner, was ranked at No. 796 in the general category based upon MEDPET test. He was ranked at No. 228 in the Ex-KMC category based upon MEDPET test. After the changed criteria he was ranked 220. Writ petitioner Raveesh B.N. was ranked at No. 683 in the general category based upon MEDPET test. He was ranked at 76 in the Ex-KMC category based upon the MEDPET test. After change of criteria he was ranked at 109. But for the ranking assigned to the writ petitioners on the basis of changed criteria, they would have opted for the subjects of their choice subject to its availability during the course of counselling. Upon consideration of the material supplied and the documents furnished, the learned Single Judge rightly held:
“Considering the number of seats that were reserved for
Ex-KMC graduates and the ranks secured by the petitioners each one of them would have in all likelihood been granted a seat. On
the contrary, a perusal of the statement filed by the respondent shows that candidates who have secured ranks much lower than those of the petitioners have been granted admissions only on account of the application of the changed criterion. The petitioners are therefore justifiably aggrieved of such a situation”.
21. Keeping in view the facts and circumstances of the case, the settled position of law and our findings as noted hereinabove, we are satisfied that the selection made to the postgraduate courses in the general category of Ex-KMC students was contrary to law, the rules applicable and the prospectus issued by the appellant-University. It is further held that in view of the wrong selection made many students like the writ petitioners were prejudiciously affected. The selection of all the candidates in the said category is, therefore, liable to be quashed. However, keeping in view the time spent in the litigation and the fact that selected students have undergone studies for almost a year, we have decided to appropriately mould the relief so that the selected students are not penalised for the fault in the form of acts of commission and omissions attributable to the appellant-University. The prayer of the writ petitioners to regulate admission to the postgraduate medical courses into the appellant-institution on the basis of ranking in the All India Postgraduate Entrance Test 1996 (MEDPET), is accepted. The order of the learned Single Judge dated 17th January, 1997 is allowed to the extent it has held the writ petitioners are entitled to admission on the basis of MEDPET results.
22. The appellants have also challenged the order of the learned Single Judge dated 9th April, 1997 passed in Interim Application filed by some of the writ petitioners. It was prayed, by way of interim application, that the order of the Court dated 17th January, 1997 be clarified and if necessary appropriate modification of the same be issued by directing the appellant to admit the writ petitioners in the academic session 1997-98 to the postgraduate courses indicated by them. After consideration of the rival contentions the learned Single Judge directed that the writ petitioner Shaji Sridharan be admitted to M.D. Radio Diagnosis, petitioner Sandeep Narayanaswamy to M.S. Orthopaedics, petitioner Fahad. F. to M.D. Radio Diagnosis, petitioner Hariprasad Shetty to M.S. Optholmology, and petitioner Deepak M. Shetty to M.D. Paediatrics. They were directed to be admitted out of 25% seats reserved by the Management for itself in the NRI quota. It was further directed that in case the seats so reserved do not include the courses opted for the writ petitioners they shall be admitted to the same out of the seats reserved for Ex-KMC graduates, and the admission was to be on the same terms and conditions regarding payment of fee etc., as specified in the original order of the learned Single Judge dated 17th January, 1997. It has rightly been argued on behalf of the appellant that in the guise of interim application, the writ petitioners could not have asked for a relief which they had not even prayed in the main writ petition. It is further submitted that the directions issued in the interim application were against the settled position of law inasmuch as the writ petitioners had not invoked the jurisdiction of the Court under any provision of law. In the name of modification of the order, the writ petitioners had in fact sought review of the order of the learned Single Judge which was not
permissible as none of the conditions specified under Order 47, Rule 1, Civil Procedure Code was in existence.
23. Interim application appears to have been filed by the writ petitioners apparently or ostensibly under the provisions of Section 151 of the Code of Civil Procedure which gives the Court inherent power to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court. It cannot be disputed that the powers under Section 151, Civil Procedure Code can also be invoked by the High Court in exercise of writ jurisdiction also. However, such a power has to be exercised within the parameters of the settled propositions of law. It has to be kept in mind that Section 151, Civil Procedure Code is not a substantive provision conferring any right upon a litigant to any relief of any kind. The section is only a procedural provision which enables the Court to pass appropriate order in a manner consistent with justice and equity. The power has to be exercised only in the ends of justice and to prevent abuse of process of Court. While exercising power under Section 151 the Court cannot override the express provisions of law or allow the proceedings to be substituted for substantive remedy provided under law. While exercising power under Section 151 the Court cannot review its order by substantially changing the relief which may amount to substituting the relief already granted. Such a power cannot be exercised to override the general principles of law. It cannot be resorted to as a substitute of any other remedy. In Nainsingh v Koonwarjee and Others, it was held:
“….. Under the inherent power of Courts recognised by Section 151, Civil Procedure Code, a Court has no power to do that which is prohibited by the Code. Inherent jurisdiction of the Court must be exercised subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case, such provisions should be followed and inherent jurisdiction should not be invoked. In other words, the Court cannot make use of the special provisions of Section 151 of the Code where a party had his remedy provided elsewhere in the Code and he neglected to avail himself of the same. Further the power under Section 151 of the Code cannot be exercised as an appellate power”.
The power has to be exercised with caution and according to judicial principles. The exercise of the power must be consistent with sound general principles of law. A Full Bench of the Kerala High Court in G.K. Prabhakaran and Company v David Traders , held that the inherent jurisdiction of the Court should be exercised in very exceptional circumstances for which the Code lays down no procedure. Such a power is required to be sparingly used. No party has a right to insist on the Court to exercise its inherent power.
24. Miscellaneous applications praying for exercise of inherent jurisdiction can normally be filed during the pendency of the Us and should not be entertained after the disposal of the case except in exceptional
circumstances. After the Court becomes functus officio it has no jurisdiction to grant or modify the relief with the aid and under the authority of inherent powers. Where the aggrieved party has alternative remedy of either filing the appeal or review, the Court should not normally entertain a miscellaneous application in terms of Section 151, Civil Procedure Code. However, clerical or arithmetical mistake in judgment, decrees or orders can be corrected by the Court under Section 152 or Section 153 of the Code. In the guise of invoking inherent jurisdiction no party can be permitted to seek a relief which he would not have been granted even in the main proceedings in the absence of specific prayer in that behalf.
25. In the instant case, the writ petitioners had only prayed for the issuance of directions to the respondent for giving them admissions to the postgraduate medical courses on the basis of their ranking in the All India MEDPET test conducted and had not prayed for admission to specified subjects or specialities. While allowing the writ petitions on 17th January, 1997, the learned Single Judge also had directed the appellant-University to admit the writ petitioners in the coming academic session 1997-98 against the reserved seats in the NRI category without charging excessive fee from them. However, interim application was filed purporting to be seeking clarification of the order with prayer for seeking admission to the postgraduate courses specified by them therein. The prayer of the petitioners was allowed by the learned Single Judge vide his order dated 9th April, 1997 in the terms as noted earlier. On the basis of the principles laid down, we are of the opinion that the learned Single Judge was not justified in either entertaining the interim application after the disposal of the writ petitions or issuing substantial directions for admission of the writ petitioners in specified subjects of the postgraduate courses. The said order of the learned Single Judge, dated 9th April, 1997, cannot be held to be legal, valid or according to law and is liable to be set aside.
26. The learned Counsel appearing for the appellants has vehemently argued that the learned Single Judge was not justified in directing the admission of the writ petitioners against the seats in the Management/NRI quota of 25%. It is submitted that such a direction was likely to result in huge monetary loss to the appellant-University. The monetary loss was conservatively estimated or suggested to the extent of Rs. 35 lakhs per seat. The mere fact that the directions of the learned Single Judge were likely to result in monetary loss cannot be made a basis for altering the directions of the learned Single Judge if otherwise found to be legal, valid and justifiably issued under the peculiar facts and circumstances of the case. The activities connected with education cannot and should not be permitted to be carried on with the only motive of earning profits. The Supreme Court in Miss Mohini Jain v State of Karnataka and Others and in J.P. Unnikrishnan and Others v State of Andhra Pradesh and Others, highlighted the importance of education and dealt with the proclaimed rights of educational institutions in the activities connected with education. It was specifically observed that Indian civilisation recognised education as a pious obligation of the human society
which was never treated as commerce in the country. This Court in the Associated Managements of Primary and Secondary Schools and Others v State of Karnataka and Another , held that making education as commerce and business is opposed to the ethos, tradition and sensibilities of the nation. Imparting of education has never been treated as a trade or business in this country. It has been treated as a religious duty. It has been acknowledged as a charitable activity. Education was never considered as a saleable commodity nor was it made the principle of amassing wealth. The field of education cannot be permitted to be exploited only for inflating the money bags of the influential and greedy people involved in the task of imparting education on account of the failure of the State to perform its obligations in this field. It is the pious obligation of the society in general and Courts in particular to protect and safeguard education from being exploited and from being rendered a saleable commodity.
27. In view of the facts of the case and the circumstances under which the criterion for selection was changed, we have no hesitation to agree with the finding of the learned Single Judge that the fault if any should, to the extent as discussed by us hereinabove, lay with the appellant-University which failed to duly publicize or advertise the changed criterion. For the fault of the appellant-University no other person can be penalized or put to loss or harm. The setting aside of the whole of the selection at this belated stage may defeat the ends of justice and direction for reservation of next year’s seats in the general category for the writ petitioners is surely to affect the other meritorious candidates who are likely to seek admission in future on the basis of their own merit determined in the ensuing entrance test. The ends of justice can be met only if a direction is issued for admission of the writ petitioners in the next session of 1997-98 against the seats in the Management/NRI quota of 25% in accordance with and according to the directions which we propose to issue in these appeals.
28. We also do not agree with the submissions made on behalf of the appellant that the learned Single Judge had passed any strictures or cast any uncalled for aspersions against the appellant-University which require either deletion or modification. After going through the judgment we have come to the conclusions that some of the observations pointed out by the appellants do not amount to either casting aspersions or reflections on the conduct of the appellant-University. The observations of the learned Single Judge were necessitated in view of the prevalent circumstances which the learned Single Judge found to be attributable to the appellant-University. In respect of some of the remarks made by the learned Single Judge we have already expressed our disagreement and for the rest we do not find any ground to direct their deletion or expunction as prayed for by the appellant-University.
29. Under the circumstances, the appeals are partly allowed with the following declarations, directions and observations:
1. The order of the learned Single Judge dated 9th April, 1997, passed in an interim application is set aside.
2. The order of the learned Single Judge dated 17th January, 1997 passed in the writ petitions insofar as it holds that the appellant-University had no power and jurisdiction to amend, modify or alter the admission criterion for the purpose of making selection, is also set aside.
3. The order of the learned Single Judge in the writ petitions holding that the changed criterion was not properly and validly published which adversely affected the interests of the writ petitioners, is upheld.
4. The admission made on the basis of the selection of such of the respondents who were in the Ex-KMC category is held to be not valid and proper. However, keeping in view the passage of time and the fact that none of such respondent-candidates was at fault they are allowed to continue their studies on the basis of the selections made by the appellant-University without the change of their subjects.
5. The appellant-University is directed to notionally make fresh selection/admission on the basis of the ranking of the writ petitioners in All India MEDPET test conducted by them. In order to ascertain the eligibility and the choice of the subjects, the appellant-University is directed to call all such candidates who had appeared in the Ex-KMC category on the basis of their ranking determined in the All India MEDPET test for the purpose of counselling and during such Counselling seek their options without making any change in the subjects already assigned to the admitted candidates. During the process of such counselling made on the basis of merit in the MEDPET test the preference of the writ petitioners be determined, if they come in merit of the ranking, in accordance with the rules applicable, and such of the subjects to which they are notionally held entitled be reserved for the year 1997-98 out of the Management/NRI quota of 25% against which the writ petitioners alone be admitted and the balance of said quota be filled up in accordance with the prevalent rules.
6. The above said relief would not be available to any of the writ petitioners who has been granted admission and was pursuing his studies in any discipline or subject notwithstanding the mode of selection adopted.
7. The admission of such successful writ petitioners shall be according to the fee structures and any other conditions applicable as were prescribed for candidates admitted in the quota reserved for Ex-KMC graduates.
30. Parties to bear their costs.