Haridayal and Another vs State of Jammu and Kashmir and Another

Adarsh Sein Anand, J.—Haridayal and Vijay Kumar petitioners who had been selected for admission to the M.B.B.S. course and were

actually admitted in the Medical College, Jammu, have filed this petition challenging the order of respondents by which their admission to the

M.B.B.S. course has been cancelled from the said college.

Briefly stated the facts of the case are that respondent No. 1, issued a notice inviting applications from Permanent Residents of the State for

admission to the Medical Colleges at Srinagar and at Jammu. On the basis of the said notice, the petitioners applied for admission on the

prescribed form and they were admitted to the Medical College, Jammu in December, 1975, after selection by a Committee appointed for the

purpose. After payment of the necessary fees, the petitioners started attending their lectures in the first year of the M.B.B.S. class. On 30th

January, 1976, respondent No. 2 conveyed to the petitioners the information that their admission to the Medical College at Jammu, had been

cancelled under orders of the Government of Jammu and Kashmir. After their admission was cancelled, the petitioners filed the present writ

petition in the court on 8th March, 1976. In the writ petition it was stated that the respondents had no jurisdiction to cancel the admission once

granted and that in any event, the order of cancellation of admission could not be passed behind the back of the petitioners.

In the reply affidavit filed by the respondents, it is admitted that the petitioners had been selected for admission and were actually admitted to the

Medical College, Jammu. It has, also, not been disputed that the petitioners continued their studies till 30-1-76 on which date their admission was

cancelled. It has been stated in the reply affidavit that the reasons for cancellation of admission of the petitioners were that they had concealed

certain material facts from the Selection Committee and had given false information, which necessitated the cancellation of their admission. It has

been stated that Haridayal petitioner had been nominated for B.V. Science training course in the year 1973, at Ranchi and he had also executed an

agreement with the Government to serve it on return from training. He had also obtained a loan of Es. 3000/- from the Government for his training

for B.V. Science course at Ranchi; but he suppressed all this information and did not disclose these facts either in the application form filed by him

or at the time of interview by the Selection Committee and as a matter of fact, he had tried to mislead the committee by attaching a copy of the

Character Certificate from the' Principal G.G.M. Science College, Jammu, against the requirement of attaching copy of the character certificate

from ""the last attended institute"", with a view to show that the last institution attended by him was G.G.M. Science College, Jammu and not the

College at Ranchi, Similarly, Vijay Kumar petitioner, was also undergoing training in Ayurvedic College, Jammu, in the third year class at the time

when he applied for admission to the Medical College, Jammu. Like Haridayal, he had also executed an agreement with the State-Government to

serve the State after completion of his Ayurvedic training and had also obtained a loan of Rs. 1200/- from the Government for that purpose. Like

Haridayal he had concealed this information from the authorities and has wrongly attached a copy of the character certificate from the Principal

G.G.M. Science College, Jammu when in fact the last institution attended by him was the Ayurvedic College, Jammu. Dealing with the allegation of

the petitioners that their admission was cancelled behind their back and without affording them any opportunity of hearing, in the reply affidavit it

has been stated:

There was no question to hear the petitioners in the instant case. All the material was already with the respondents-State and the facts stated herein

above have nowhere been disputed by the petitioners. The concept of natural justice does not mean a thorough problem (probe?) or a detailed

enquiry. What is required is that there must be sufficient material on the record to pass an order which should not adversely affect the rights of

either party. In presence of the material already with the State, there was no necessity to issue a show cause notice and to afford an opportunity to

the petitioners. The issuance of show cause notice or affording an opportunity of being heard would not have changed the case of the petitioners.

The petitioners could not be permitted to deceitfully enjoy the benefits of having secured admission at two technical institutions by the suppression

of material facts.

I have heard Mr. J.L. Sehgal, Advocate for the petitioners and Mr. R.P. Sethi, Advocate for the respondents.

The principal ground of attack as canvassed by Mr. J.L. Sehgal, the learned Counsel for the petitioners is, that since the petitioner had been

admitted to the College after proper selection, it was not open to the respondents to cancel their admission behind their back and without affording

any opportunity to them to explain their case. Such an. order was against the rules of natural justice and was bad. Mr. Sethi, the learned Addl.

Advocate-General, does not dispute that no show cause notice was given to the petitioners before cancellation of their admission but seeks to

justify the order on the ground that it was for the authority to determine whether or not to issue show cause notice to the petitioners before the

cancellation of their admission and on consideration of all the facts it was not considered necessary to issue the show cause notice to the petitioners

before cancelling their admissions. It is further maintained that even if a show cause notice had been given to the petitioners, they would not have

had any explanation to offer in their defence and, therefore, the issuance of notice would have been an idle formality.

I have given my anxious consideration to the respective contentions of the learned Counsel for the parties.

By the impugned order, admission of the petitioners had been cancelled from the Medical College Jammu after they had been admitted to the

College and had paid their fees and attended the lectures upto 30-1-76. It is not disputed that prior to the cancellation of their admission, no

opportunity was given to the petitioners to explain their case and to show cause against the cancellation of their admission. According to the

learned Counsel for the petitioners, the order of cancellation of admission is a quasi-judicial order and could not be passed without first affording

an opportunity to the concerned to show cause against it. However, the learned Additional Advocate-General maintains that such an order is only

administrative in character and no opportunity was required to be afforded before passing the same. Whether the order of cancellation of

admission is a quasi-judicial order, as canvassed by Mr. J.L. Sehgal, or is merely an administrative order as canvassed by Mr. Sethi, the learned

Addl. Advocate-General;' would not be of much significance in the present case because the compliance with Rules of Natural Justice is required

not only in cases of quasi-judicial orders but also for administrative orders from which civil consequences or penal consequences flow. The

objective behind the compliance with the Rules of Natural Justice is to prevent miscarriage of justice and arbitrariness as well as to secure a fair,

and impartial order from the concerned authorities. In the words of their Lordships of the Supreme Court in The Keshav Mills Co. Ltd. and

Another Vs. Union of India (UOI) and Others, . ""The only essential point that has to be kept in mind in all cases is that the person concerned

should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and

reasonably. Where administrative officers are concerned the duty is not so much to act judicially as to act fairly.

Keeping in view the, above guideline given by their Lordships of the Supreme Court, it cannot be said that if an order is of an administrative

natural the Rule of Natural Justice need not be complied with. The argument of Mr. Sethi, therefore, is rejected. Moreover it is quite certain that

the impugned order visits the petitioners with civil consequences and to put it differently penal consequences do flow from the said order as the

effect of the said cancellation of their admission would be that the petitioners are debarred from pursuing their further studies in the Medical

College to which they had been admitted and since petitioners had also paid the fees they stand to lose the benefit of those fees as well. Can it,

therefore, be said that, the authorities need not have afforded an opportunity to the petitioners to show cause against the cancellation of their

admission? The answer clearly is in the negative. In my opinion it was absolutely incumbent on the respondents to hear the petitioners before

passing the impugned order and to give them a fair and reasonable opportunity of presenting their case before the authorities. Since, the

respondents did not issue the requisite show cause notice, the impugned order is violative of the Rules of Natural Justice and is bad in the eyes of

law.

I am unable to agree with' the other submissions of the learned Counsel for the respondents that no useful purpose would have been served by

issuing a show cause notice to the petitioners in the facts and circumstances of the case, since, the action was taken by the respondents after taking

into consideration all the material that was available on the record and which material could not have been rebutted by the petitioners. Whether or

not the petitioners had a defence is for them to see and is not a matter of speculation by the authorities. A similar argument was raised before their

Lordships of the Supreme Court in The Board of High School and Inter-mediate Education, U.P. and Others Vs. Kumari Chitra Srivastava and

Others, wherein it was held that whether a duty arose in a particular case to issue a show cause notice before inflicting a penalty does not depend

on the authority's satisfaction that the person to be penalised has no defence but on the nature of the order proposed to be passed. In that case

before the Supreme Court a candidate's admission to an examination was cancelled because of shortage in the attendance in lectures in a particular

subject. Their Lordships of the Supreme Court held that the Board in cancelling the examination of the candidate was exercising quasi-judicial

functions and it was incumbent upon it to issue a show cause notice to the candidate before inflicting the penalty of cancellation of her admission to

the examination. In the Supreme Court case the order of the cancellation of admission was set aside on the ground that the Board had failed to

issue show cause notice to the candidate concerned before passing the order of cancellation of admission. The said authority in The Board of High

School and Inter-mediate Education, U.P. and Others Vs. Kumari Chitra Srivastava and Others, was followed by a Division Bench of the Madhya

Pradesh High Court in Dinkar Prabhakar Mahajan Vs. S.L. Agrawal and Others, , wherein their Lordships of the Madhya Pradesh High Court

while considering the case of a candidate whose admission to the M.B.B.S. course in the State Medical College was cancelled on the ground that

he was in-eligible initially for admission to the M.B.B.S. Course, held that while cancelling admission, the Government was exercising quasi-judicial

functions and it was incumbent upon it to have issued a show cause notice to the candidate before the order of cancellation of admission was

passed by the Government. Their Lordships' set aside the order of cancellation of admission on the short ground that no show cause notice had

been issued to the candidate prior to the cancellation of his admission and he had been denied opportunity of reasonably presenting his case before

the authorities before the impugned order was passed. Both the aforesaid authorities are fully applicable to the facts of the present case. In the face

of this position of law the order of cancellation of admission of the petitioners without affording any opportunity to the petitioners for presenting

their case before passing the impugned order cannot be justified and deserves to be set aside,

The last submission of the learned Addl. Advocate-General is that the Government has a right to issue show cause notice to the petitioners

even now and that right would be affected by this order if the impugned order is set aside. I do not see how this judgment can take away the right

of the Government to issue the necessary notice and act in accordance with law. The fear expressed is unfounded.

As a result of the above I would hold that the order cancelling the admission of the petitioners is not sustainable in law and the same is hereby

quashed and set aside and the admission of the petitioners is restored to the Medical College, Jammu. There shall be no order as to costs.