Competent Authority vs Mir Abida and Others

This Letters Patent Appeal has arisen out of an order dated 20.10.2000 passed in OWP No. 504/2000 whereby the learned Single Judge has

granted admission to the respondent No. 1 to undergo MBBS Course in the Medical College.

Brief facts are that the appellants issued notification inviting applications for the candidates to appeal in the entrance test for selection to undergo

MBBS course, Session 2000 in different Colleges in the State. Desirous candidates including respondent no. 1 (herein after the respondent)

applied and appeared in the Common Entrance Test. The respondent was not selected because of her lower merit. She approached the court

seeking relief or admission to MBBS Course, Session 2000 on the ground that the seats are available in the Medical Colleges and that the three

questions of Chemistry paper of the respondent have not been evaluated by the competent authority. The last selected candidate has secured 155

marks. The respondent has been awarded 152 marks whereas she was entitled to secure 155 marks had the three questions in Chemistry Paper

been properly evaluated by the respondents awarding one mark for the each question.

Respondents were notified and granted time to file the objections which could not be filed as recorded in the course of the order under appeal.

The learned Single Judge having appreciated the rival contentions came to the conclusion that the seats still available and the petitioner was entitled

to secure 155 marks, the evaluation of the questions will take time and if the admission is not granted shall be an injustice to the respondent which

cannot be compensated, thus granted the admission.

The order under appeal has been challenged by the appellants on the grounds that the objections to the writ petition before the learned Single

Judge were filed on the same day in the registry of the court before the arguments were heard for grant of admission could not be taken into

consideration by the court as the registry wrongly reported to the court that the objections have not been filed. Therefore, the order under appeal

has been passed without considering the objections by the court. There are no seats available in the colleges as their intake capacity was reduced

to 50 from 80 seats before the select list should be issued by the Government as the Medical Council of India has recognized the intake capacity of

the College for 50 seats only. The Medical Council of India has also taken serious exception of admission of candidates over and above the

sanctioned strength of the intake capacity of the colleges. The three questions of Chemistry paper which according to the respondent have not

been evaluated by the competent authority have been evaluated and while evaluating, it was found that the respondent has answered these three

questions by marking two circles on each question instead of one, which means that the respondent has given two answers to each question with

the result the questions have not been evaluated by the computer assistant. It is further stated that the grant of admission to the respondent amounts

to increasing the intake capacity of the College for which there is no proper infrastructure. The admission granted, according to the appellant is thus

against the law laid down by the Supreme Court in various judgments. It is further stated that in case the respondents admission is allowed to

stand, it will result to injustice to 19 other candidates who fall between the merit of the last candidate selected and the marks secured by the

respondent.

We have heard the learned counsel for the parties and perused the record.

Mr. J.A. Kawoosa, learned AG representing the appellant has urged to make out that the objections though were filed by the appellant but have

not been taken into consideration by the learned Single Judge, he has filed with this appeal certified copy of the objections issued by the registry

which reveals that the objections were received by the registry at 12 PM on that day but the registry wrongly reported to the court that the

objections have not been received. According to him the learned Single Judge has been deprived of the appreciating the stand of the respondents

in the writ petition and has come to erroneous conclusion. Perusal of the objections reveals that all the grounds taken in the appeal have been taken

as objections in the reply filed by the appellant. The learned Single Judge had no occasion to appreciate these objections as these were not placed

in record by the registry of the court.

Learned counsel for the respondent has submitted that the appellant advertised the seats according to the intake capacity of the college and the

candidates submitted applications seeking consideration for selection keeping in view the said advertised intake capacity. The respondent State

was not competent to reduce the intake capacity after advertising the seats, therefore the seats are available. Mr. Kawoosa in rebuttal to this plea

has submitted that the State has taken action to reduce the intake capacity of the College in the State by issuing a formal order in terms of the

directions of the Medical Council of India. The respondent has not challenged the said action of the State Government reducing the intake

capacity, therefore this argument is not available to Mr. Qayoom to be convassed. We do not think it proper to dilate upon this plea as the learned

Single Judge has not recorded any finding on it and if any observation is made by us it may be prejudice and the case of the parties before the

learned Single Judge.

The learned counsel for the respondent was further submitted that the respondent has implemented the order, under appeal on 28.10.2000 and

the appeal under such circumstances is not maintainable. Implementation of the order may be for any reason but there is no legal bar to question

the legality of the order under appeal by the appellant.

Mr. Kawoosa has also submitted in rebuttal that the appellant has not implemented the order but it is principal of the particular college who has

granted the admission, though has no authority to admit the candidate unless permitted by the appellant. Be that as it may, we hold that the

correctness and legality of the order can be challenged by the appellant and gone into and determined by the LPA Bench, therefore the argument

of Mr. Qayoom being devoid of merit is rejected.

The admission of the respondent is mainly on the ground that the respondent's three questions of Chemistry paper have not been evaluated by

the competent authority and had it been evaluated the respondent would have secured 155 marks instead of 152 marks. The last selected

candidate has secured 154 marks, therefore the respondent is entitled to admission. The competent authority has stated in the grounds set out in

the memo of appeal that the respondent has marked two circles on each question instead of one i.e. the respondent has given two answers to each

of these questions. Such being the position the questions have not been evaluated by the computer scanner. To bring round this agreement, Mr.

Kawoosa has placed reliance on the relevant portion of clause 15(4) of the Information Broucher issued by the appellant for selection of the

candidates, which provides as under :

...In case of cutting/ overwriting and more than one answer marked to a particular question) no credit will be given"".

The plea of the respondent that three questions have not been evaluated prima facie appears to be incorrect. The questions have been

evaluated but because of the two circles marked on each question, no credit has been given to these answers. Assuming there was some

controversy with regard to the evaluation of the questions as raised by the respondents, these were to be evaluated by the experts and not by the

court. Therefore, the observation of the learned Single Judge that the respondent was entitled to three marks is not sustainable.

Mr. Kawoosa has categorically submitted that there is no seat available in any of the Colleges against which the respondent could be

accommodated, in terms of the directions of the court and the grant of admission has the effect of increasing the intake capacity which is not the

province of the courts. To support his argument he has relied upon the judgment of the Supreme Court in the case of ""State of Punjab vs. Renuka

Single and Others"" reported in AIR 1994 SC holding that :

We fail to appreciate that the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing

the authorities concerned to violate their own statutory rules and regulations in respect of admission of students. It cannot be disputed that technical

education, including medical education, requires infrastructure to cope with the requirements of giving proper education to the students, who are

admitted. Taking into consideration the infrastructure, equipment, staff, the limit of the number of the admission is fixed either by MCI or Dental

Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions ""compassionate

grounds"". The High Court should be conscious of the fact that in this process they are affecting the education of the students who have already

been admitted against the fixed seats after a very tough competitive examination, therefore, the order by the High Court direction admission to the

student of background area in BDS courses on ""compassionate grounds"" and issuing a fait to create an additional seat for other student on

compassionate ground amounts to direction to violate section 10A and 10B (9) of the Dentist's Act"".

The Supreme Court while dealing with the grant of provisional admission to technical courses by interlocutory order has pronounced in AIR

1984 SC 3 as follows :

...Whenever a writ petition challenging admission to medical courses is filed provisional admission should not be given as a matter of course on the

petition being admitted unless the court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or

apparent that no other conclusion is possible. In order however to test this fact even a short notice may be given to explore as to what the other

side has to say........."".

The above view has again been reiterated by the Supreme Court in U.P. Doctors Association Committee vs. Sheetan Nandwani reported in

AIR 1992 SC 671 holding that :

It is well known rule of practice and procedure that an interlocutory relief which is sought and is available at the disposal of the matter is not

granted unless there is any special reason to be indicated in clear terms in an interlocutory order as rule, no provisional admission should be granted

and more so into technical courses"".

Upon consideration of the rival contentions convassed before us, we are of the view that unless it is conclusively established by the respondent,

that she was entitled to three more marks, she is not entitled to the relief of admission as an interim relief.

For the foregoing reasons, the order under appeal being unsustainable is set aside. Resultantly, the appeal is allowed. The respondent principal

is directed to refund the admission fee to the respondent. No order as to costs.