Miss Baljeet Oberaia vs The State and Others

V. Khalid, C.J.—This is an application filed by the acting Principal Medical College, Srinagar, seeking clarification/modification of the order

passed by this court on 7-4-1984 in answer to a contempt application made against him.

When the writ petition came up for admission before this court on 7-4-1984, the following order was passed :

Issue notice to the respondents to show cause as to why the writ petition be not admitted for hearing.

Issue notice in C.M.P. No. 411/84 also. Meanwhile it is directed that pending decision of the Civil Misc. Petition No. 411/84, the petitioner shall

be given provisional admission in First Year M.B.B. S. Course in Govt. Medical College, Srinagar. Objections if any, to this order shall be filed

within one month from today.

First respondent is the State of Jammu and Kashmir, and respondents Nos. 2 and 3 respectively are the Principal Medical College Srinagar and

Jammu. The first respondent's counsel prays that the order of provisional admission passed by this court may be vacated.' Detailed submissions

were made by the counsel for the petitioner to continue the direction regarding provisional admission and equally forceful submission by the counsel

for the first respondent to vacate the provisional admission I will now consider these submissions.

The petitioner came to court with the specific plea that respondents Nos. 4 and 5 have not appeared in the written test or viva voce and that

they have been improperly nominated by the State for admission to M B. B. S. Course. The allegation against respondent No. 6 is that she

secured only 33.90 marks as against the petitioner who secured 39.23 marks. Her nomination also is under challenge. Respondents Nos. 7 to 9

have been admitted as belonging to other social caste. The marks secured by them are 24, 16, 24 and 28.24. They have been given admission

contrary to law. The percentage of reservation has been increased in violation of law. In short, the petitioner seeks to displace respondents Nos. 4

to 9 with the plea that their admission, either on nomination or on reservation is bad and prays that she should be given admission to a seat

available on such displacement

In the counter-affidavit filed by the first respondent it is stated that respondent No. 4 was nominated on reciprocal arrangement with the State of

Maharashtra on 18-4-1983 and that the said nomination is protected by the decision of the Supreme Court Respondent No. 5 is a nominee of the

Govt. of Rajasthan. Regarding respondent No. 6 also she was nominated to the State of Rajasthan on 18-4-1983. Respondents Nos. 7 and 8

were selected on merit in the Medical College in the category ""other social castes"". Respondent No. 9 was selected on merit in the category of

line of actual control"".

From the materials placed before me, I find that the petitioner has not made necessary and proper investigation about the manner in which

respondents Nos. 4 to 9 have been admitted. For the purpose of this C.M.P. I hold that the State has made out a prima facie case that

respondents Nos. 4 to 9 have been admitted on the basis of nomination on reciprocal basis between J & K State with other States and on the

strength of reservations. Both these methods are permissible under law. The petitioner can claim admission only in open general merit. She cannot

come within any of the categories to which respondents Nos. 4 to 9 belong.

Now the petitioner has filed an application to implead three more students as additional respondents. I have allowed that application. According

to the State these three students also have not been admitted in the open general merit quota. However, I will take up the most advantageous

position for the petitioner so far as these three students are concerned and that is to assume that their admissions are bad. The question would be

whether the petitioner can even then get admission straightway. The learned counsel for respondent No. 1 has made available to me a list of those

candidates, with their marks, who could not come within the selection zone in the open general merit quota. The total of the marks obtained by the

candidate who was placed last in the List of selection in the open merit is 42-85. The petitioner's total marks are 39.23. Between 42.85 and 39.23

there are 31 other candidates. Therefore, even if the petitioner succeeds in getting the admission of these three students who are sought to be

impleaded, quashed, all that the court can do is to direct the State to fill up the vacancies taking into account the marks of those students who

could not be selected for admission because they did not come within the merits quota.

Learned counsel for the petitioner submits that it is not for the first respondent to espouse the cause of those who are not before the court or for

the court to lend its helping hand to them. The court is concerned with the petitioner and her claim alone. Those who are aggrieved can be given

relief when they come. I do not feel that this submission is well founded. When this court is told that there are 31 students above the petitioner in

the merit field, the court cannot close its eyes to this fact. The court is not a functionary to grant admission to students who knock its doors. Its

duty is to tell the State as to what it should do consistent with law, justice, and fair play. Therefore, this important aspect of the case cannot be

ignored by the court

Now coming to the question whether the interim order passed by this court should continue or should be vacated The counsel for the petitioner

made a forceful plea that it should continue. The 1st respondent's counsel with equal vehemence opposed it and states that continuance of the

order would place the officers in peril. The counsel for the petitioner takes up a technical stand that in view of the non-compliance by the State of

the interim order passed by this court and in view of the pendency of a contempt application for such non-compliance, the State and the Principals

of the Medical Colleges cannot be heard unless they purge themselves of the contempt. For this purpose the petitioner's counsel relies upon a

decision of this Court. This aspect of the case needs fuller consideration and I for one, with great respect, cannot subscribe to the view that in all

cases where an interim order is not immediately complied with by the party against whom it is passed he commits contempt. Orders differ from

case to case. There may be orders, which the officer against whom they are passed, can immediately comply. Disrespect of such orders would be

wrong. There may also be orders passed ex parte by court, immediate compliance with which may not be possible for an officer, against whom it

is passed, for various reasons, legal and factual. In such cases, such officers can come to court immediately and apprise the court of the true

position and seek modification or clarification of such orders. Simply because a party chooses to file a contempt application the alleged contemner

does not become disentitled to plead his cause before the court In an appropriate case, this matter will have to be heard by a larger bench to

outline the scope of contempt in such cases.

Now regarding the order dated 7-4-1984 directing provisional admission to be given to the petitioner, one has to bear in mind that the learned

Judge who passed that order was not apprised of all the facts. At that time the petition was based on the ground that percentage of reservation

was violative of Article 14 and some respondents were wrongly admitted in the open general merit Now it transpires that it is not so. The State has

satisfactorily explained as to how respondents Nos. 4 to 9 were given admission. Prima facie I am satisfied that the petitioner cannot displace

respondents Nos. 4 to 9 because she does not come within any of the categories in which they were placed Thus the petitioner fails to establish a

strong prima facie case.

In this context it would be useful to refer to the guidelines given by the Supreme Court regarding provisional admissions. In Civil Appeal Nos.

133 of 1982 : (reported in AIR 1982 SC 186), Fazal Ali, J., makes the following Observations (Para 3) : --

With this short prelude, now to the facts of the case which disclose a sad story indeed -- not because those in charge of the institutions commit

errors but because the courts start directing the authorities to grant provisional admissions to students even if they did not deserve the same in some

cases. Experience has shown that in view of the huge accumulation of arrears in courts, it takes a long time for the petitions to be disposed of,

hence we have evolved the practice of forcing the authorities to grant provisional admissions which has resulted in a piquant and pungent situation

because by the time the case comes up for hearing, the rejected candidates having completed their course and having appeared at the examination

with every hope of success become eligible for admission to the higher course in case of success though the court may ultimately find that their

initial rejection was justified Such a situation becomes a sort of ,a fait accompli for those in charge of the institutions as a result of which the

candidates are admitted in due deference to the desire of the eourt by increasing or creating vacancies even in the absence of suitable and proper

facilities to-train in an anathema and a dilemma for which there is hardly any remedy. The present cases are a clear illustration of this problem. Our

suggestion, therefore, is that whenever a writ petition 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

and thereafter if the court is satisfied that there is strong prima facie case and the matter needs thorough examination, provisional admission may be

given. We hope and trust that the High Courts would in future discontinue the practice of lightly granting provisional admission to the candidates at

the time of regular admissions, as observed above. It is needless to state that this court on its part would also be extremely reluctant to grant

provisional admission and would do so only in very special case.

The facts of this case and the materials placed before the court fall for short of the requirements set out by the Supreme Court in the observations

quoted above, for giving provisional admissioa The petitioner has to first establish whether she can get admission to any of the places in which

respondents Nos. 4 to 9 have been admitted and that she comes within one or the other categories to which respondents Nos. 4 to 9 belong. Then

alone can the petitioner succeed. The validity of the increase in the percentage of reservations is a matter to be decided in the main petition. In

these circumstances, it is undesirable and unfair to allow the direction for provisional admission to continue. Accordingly I vacate the said direction

given on 7-4-1984 and dismiss the C. M P. The writ petition will be posted for hearing immediately after the preliminaries are over.

Before parting with the case, I would like to suggest to the State the desirability of appointing a liaison officer for purposes of writ petitions. In

Kerala the State Government has a liaison officer who is a Government Pleader to look after urgent matters filed in court In all writ petitions where

interim orders are sought, the petitioner has to serve a copy of the petition and the interim application to the Liaison Officer immediately they are

numbered. The Liaison Officer gets in touch with the department concerned. When the interim petition is moved before the court, the Liaison

Officer assists the court with such information as he could collect. The court passes orders on the interim application despite notice to the Liaison

Officer if the petitioner makes out a strong prima facie case. Else, the court gives a very short time to the Liaison Officer to furnish better

particulars. This way the Govt. and its officers are saved of embarrassment and accusation of disrespect to courts and consequent contempt

applications. The case on hand is the best illustration of the desirability of having such an officer. This court would not have directed provisional

admission, if it was told of the correct position.

A copy of the judgment with the seal of the court under the signatures of the Registrar shall be sent to the Chief Secretary for information.