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Dr. M. Alimelu and ors. Vs. Principal, Osmania Medical College and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition No. 2771 of 1993
Judge
Reported in1993(2)ALT227
ActsConstitution of India - Article 226
AppellantDr. M. Alimelu and ors.
RespondentPrincipal, Osmania Medical College and ors.
Appellant AdvocateM. Panduranga Rao, Adv.
Respondent AdvocateGovt. Pleader for Education for Respondent No. 1 and ;C.V. Ramulu, Adv. for Respondent Nos. 2 to 52
Excerpt:
.....state, pressure was brought on the 1st respondent by the persons, who either failed in the entrance test or did not appear for the test, resulting in issuance of the impugned circular dated 27-2-1993. it is also alleged that the reason stated in the impugned circular for cancelling the entrance test, which was held on 17-2-1993, is purely on administrative grounds. 1 alleging that they were not aware of the entrance test inasmuch as it was not notified in all the colleges as well as newspapers and that, therefore, they were deprived of the opportunity to appear for the entrance test. therefore, having satisfied himself with these deficiencies, respondent no. it is alleged that every medical graduate treats the course as a prestigious one and would like to participate in the..........having satisfied himself with these deficiencies, respondent no. 1 cancelled the entrance test held on 17-2-1993 and in order to rectify the lacunae committed earlier, a fresh notification was issued inviting applications for entrance test and the said notification was published in deccan chronicle english daily and siasat urdu daily on 7-3-1993 and udayam telugu daily on 10-3-1993. it is further stated in the counter that only 45 candidates have responded to the first notification due to lack of wide publicity, whereas 207 candidates responded to the second notification, which was given wide publicity. thus, it is stated by respondent no. 1 that cancellation of entrance test held on 17-2-1993, by the impuged circular is not vitiated on the ground of mala fides. it is also made.....
Judgment:

Motilal B. Naik, J.

1. The petitioners seek a writ of mandamus declaring the action of the Principal, Osmania Medical College, Hyderabad, the 1st respondent, cancelling the Entrance Test for recruitment to Diplomate National Board Course examination held on 17-2-1993, in Circular No. OMC/DNB/93, dated 27-2-1993, as illegal, arbitrary and violative of principles of natural justice.

2. During the pendency of the writ petition, by order of this court dated 9-4-1993 in WPMP No. 5554 of 1993, respondents 2 to 52 were impleaded to the writ petition.

3. Though the relief sought by the petitioners centres round the cancellation of entrance test which was held on 17-2-1993, on hearing the learned counsel for the petitioners, learned Government Pleader appearing for respondent No. 1 and learned counsel for respondents 2 to 52, the intricacies involved in the writ petition do not look to be that much narrow as canvassed by the petitioners. Respondents 2 to 52 getting themselves impleaded to the writ petition assumes significance as to the importance of the matter; therefore, requires a serious thought on the selection process of candidates for Diplomate National Board Course (for short 'DNB Course')

4. The facts in brief are as under:- The petitioners are all graduates in Medicine. Pursuant to the notification issued by respondent No. 1 inviting applications in prescribed proforma for recruitment to DNB course in Osmania Medical College, Hyderabad, the petitioner applied to the entrance test, which was scheduled to be held on 17-2-1993, along with a demand draft for Rs. 100/- as prescribed. The 1st petitioner opted examination in Paediatrics and she was given hall-ticket No. 015. The 2nd petitioner opted for Medicine and he was given hall-ticket No. 006. Likewise, the other petitioners opted different courses and they were given hall-tickets. The last date for submission of applications was 30-1-1993. Pursuant to the entrance test, it is stated, all the petitioners were called for interview which was in the nature of a formality and the petitioners were successful. The list of eligible candidates was displayed on the notice board of the Osmania Medical College on 22-2-1993. The interview was fixed on 24-2-1993 for Surgery/allied specialities including super speciality. It is stated that all the petitioners attended the interviews and fared well and were expecting admission into DNB course. It is alleged that some of the petitioners were asked to go and join in various courses by 8-3-1993.

5. While so, the petitioners state, pressure was brought on the 1st respondent by the persons, who either failed in the entrance test or did not appear for the test, resulting in issuance of the impugned circular dated 27-2-1993. It is also alleged that the reason stated in the impugned circular for cancelling the entrance test, which was held on 17-2-1993, is purely on administrative grounds. It is this action of respondent No. 1 that is questioned in the writ petition.

6. On behalf of respondent No. 1, a detailed counter has been filed. In the counter, it is specifically averred that the first notification was though directed to be displayed in various hospitals in the twin cities of Hyderabad and Secunderabad and districts for wide publicity, even by publication in the local newspapers, some medical graduates gave a representation to respondent No. 1 alleging that they were not aware of the entrance test inasmuch as it was not notified in all the colleges as well as newspapers and that, therefore, they were deprived of the opportunity to appear for the entrance test. It is also stated in the counter that the notification did not mention as to the total number of seats reserved for the students of Osmania Medical College and other students. Therefore, having satisfied himself with these deficiencies, respondent No. 1 cancelled the entrance test held on 17-2-1993 and in order to rectify the lacunae committed earlier, a fresh notification was issued inviting applications for entrance test and the said notification was published in Deccan Chronicle English daily and Siasat Urdu daily on 7-3-1993 and Udayam Telugu daily on 10-3-1993. It is further stated in the counter that only 45 candidates have responded to the first notification due to lack of wide publicity, whereas 207 candidates responded to the second notification, which was given wide publicity. Thus, it is stated by respondent No. 1 that cancellation of entrance test held on 17-2-1993, by the impuged circular is not vitiated on the ground of mala fides. It is also made clear that respondent No. 1 had not succumbed to any pressures from any quarter as contended by the petitioners.

7. In the counter filed by respondents 2 to 52 in support of the petition seeking vacation of the interim order granted by this Court on 10-3-1993 in WPMP No. 2771 /93, the entire selection process is attacked on the ground that total number of seats in each faculty and the eligibility criteria were not mentioned in the first notification and that no rules or regulations are prescribed nor any procedure was followed for conducting the entrance test for DNB course. It is also stated that DNB course is a very vital course for every medical graduate, as it is equivalent to post-graduation in medicine. No doubt, this course was introduced in various parts of the country right from 1976, it has been introduced in the state of Andhra Pradesh for the first time and, therefore, neither respondents 2 to 52 nor similarly placed persons knew about the first notification, which was not given wide publicity. It is alleged that every medical graduate treats the course as a prestigious one and would like to participate in the entrance test. It is also stated that the procedure followed is per se illegal, inasmuch as only 45 candidates applied pursuant to the first notification; therefore, it is sufficient indication to show that there was no wide publicity. Respondents 2 to 52 further state that the question paper set for the entrance test was in handwriting and it is unheard in the canons of conducting the entrance test. It is further averred that majority of the successful candidates are from one college; that no reservations for weaker sections were provided though course is equivalent to post-graduation in medicine and that, therefore, the entrance test held on 17-2-1993 is vitiated and consequently the impugned circular cancelling the entrance test has been issued. Respondent No. 1 had sufficient reasons to cancel the test held on 17-2-93 and no prejudice would be caused to the petitioners if they compete with others after a proper method is adopted by respondent No. 1 in conducting the entrance test for DNB course.

8. In order to appreciate the rival contentions, it is necessary to examine the matter in detail and on merits. At page 1 of the booklet 'Bulletin of Information' regarding DNB course, issued in February, 1993 from New Delhi, the heading 'Introduction' reads as under:

'The National Board of Examination was established in 1975 with the primary objective of improving the quality of medical education by elevating the level and establishing standards of post-graduate examinations in Modern Medicine on an all India basis. It was to function as a national resource for imparting quality in evaluation of professional competence in Medical Sciences. There are more than 100 recognised Medical Colleges in the country in addition to about 90 Board accredited institutions imparting medical education at various levels and in various specialities and super specialities. There are 39 medical disciplines identified by the Board for which approved training facilities are available in the country at present. The Medical Council of India has laid down standards of post-graduate examinations conducted by various universities and other institutions. It is felt that the levels of proficiency and standards of evaluation vary considerably in these institutions and universities. The setting up of a national body to conduct post-graduate medical examination was intended to provide a common measurement standard and mechanism of evaluation of the minimum level of attainment of the objectives for which post-graduate degree courses were started in medical institutions. Inter-country and international comparisons will be facilitated with the availability of a commonly accepted evaluation mechanism.'

Similarly, at page No. 1, the heading 'Recognition by the Government of India' reads:

'The nomenclature of the degree awarded by the National Board of Examinations has been changed from MNAMS to Diplomate of National Board. The Medical Council of India and the Government of India have included this qualification in the First Schedule of the Medical Council of India Act 1956.

The Diplomate qualifications awarded by the National Board of Examinations have been equated with post-graduate degree and post doctoral level qualifications of universities by the Government of India. Ministry of Health and Family Welfare vide their notification No. V11025 / 4/79 ME (policy) dated 9/11 the December 1981, and reiterated vide No. V 11025/15/87-ME(P)(Part) /ME (UG). The holders of Board's qualifications awarded after an examination are eligible to be considered for specialists post in any hospital other than a training/teaching institution. They will also be eligible for appointment to the post of Registrars/Tutors/ Demonstrators etc., in teaching institutions which would be counted as research experience for other teaching posts where holders of Board's qualifications are required to have one year's re-search experience.'

At page 3, under the heading 'General Information', clause 2.1 reads:

'A candidate holding qualification registerable under the Medical Council of India Act, 1956 and such other qualifications as may be recognised by the Medical Council of India OR by the National Board of Examinations from time to time is eligible to take the Board's Examinations.'

At page 7, under the heading 'Primary Examinations' sub-clause (i) of clause 5.1 Eligibility Requirements, reads as under:

'Candidates in possession of medical degrees from India Universities registerable in the First Schedule of the Medical Council of India Act, 1956 as well as from foreign universities recognised by MCI will be eligible to appear in the examinations conducted by the Board.'

9. A reading of the above contents of the booklet, which are relevant for the purpose of appreciating the importance of the course, would undoubtedly go to show that the course has a significant value and every medical graduate would intend to appear for the entrance test. It is also evident that candidates possessing DNB course are equated to that of post-graduates in medicine. The booklet also indicates the eligibility criteria for the DNB course holders and specialities and super specialities. This being the significance of DNB course, it is unthinkable that the authorities, who are authorised to conduct entrance test, failed to adopt a reasonable procedure, such as framing of guidelines indicating the eligibility criteria to the candidates for appearing for the entrance test; total number of seats meant for each faculty; total number of seats reserved for weaker sections of the society etc.

10. The first notification issued reads as under:

'NOTIFICATON

RECRUITMENT OF CANDIDATES-DIPLOMATE

NATIONAL BOARD COURSES EXAMINATION

OSMANIA MEDICAL COLLEGE, HYDERABAD.

Applications in the prescribed form are invited for recruitment to Piplomate National Board Courses' Examinations in Osmania Medical College, Hyderabad from the candidates who are eligible to appear for the same.

The filled-in application forms with all necessary documents should be submitted in the office of the Principal, Osmania Medical College, Hyderabad together with a crossed Demand Draft for Rs. 100/- (Rupees one hundred only) payable to Principal, Osmania Medical College, Hyderabad on or before 30-1-1993.

All the eligible candidates can receive their hall-tickets in person on 15-2-93 at Osmania Medical College, Hyderabad. The entrance test shall be held on 17-2-93 from 10 a.m.

(Dr. CM. Habeebullah)

Principal

Osmania Medical College, Hyd.& '

11. From a reading of the above notification, it cannot be made out as to what is the eligibility criteria to appear for the entrance test for admission into DNB course examination; how many seats are meant for each faculty and how many seats are reserved for weaker sections. The notification also fails to disclose whether it was notified in various hospitals in the twin cities of Hyderabad and Secunderabad and districts. It is also evident that no procedure was followed for conducting the entrance test. It is fairly admitted in the counter filed by respondent No. 1 that this notification was not at all circulated to the hospitals. It is also admitted that no specific procedure was followed nor is there any procedure indicating the reservations for each faculty and for weaker sections. Therefore, the contention of respondents 2 to 52 that the entire selection process has been done only to suit some students, is justified. When it is found that the requirement of fair play is apparently lacking, the entire selection process contemplated for the holding of entrance test to the prestigious DNB course, without following any proper method, such procedure suffers from infirmity and, therefore, cannot sustain.

12. Sri. M. Panduranga Rao, learned counsel for the petitioners, contends that pursuant to the notification issued by respondent No. 1 the petitioners applied to the entrance test, underwent preliminary test on 22-2-1993, sub-sequently they were interviewed on 24-2-1993 and 26-2-1993 and were successful, list of selected candidates for each faculty has also been published and, therefore, at this stage, the petitioners cannot be denied of admissions to the DNB course. Counsel also contends that the impugned circular is based on no material and deserves to be set aside, as respondent No. 1 succumbed to political pressures and issued the impugned circular. Sri Rao further contends that the subsequent notification inviting applications for the same purpose cannot be made applicable to the petitioners, as respondent No. 1 is estopped from seeking applications from the petitioners. It is also contended that promise was made on behalf of respondent No. 1 and pursuant to such promise, the petitioners have applied and undergone the entrance test and, therefore, it is not open to respondent No. 1 to issue the second notification. In support of this contention, Sri. Panduranga Rao relied on the decision of the Supreme Court in M.P. Sugar Mills v. State of U.P., : [1979]118ITR326(SC) .

13. I am afraid, the above decision cannot be made applicable to the present facts and circumstances. In that case, the appellants were a limited company, which was primarily engaged in the business of manufacture and sale of sugar. The Government of Uttar Pradesh decided to give exemption from sales-tax for a period of three years to all new industrial units in the state with a view to enabling them 'to come on firm footing in developing stage'. Basing on this concession, the appellant-company came into existence. Later on, the Government of U.P. denied the concession. In those circumstances, the Supreme Court held that the State is bound by its promise and it cannot plead waiver of such promise. The facts and circumstances of that case are totally different to the one on hand. It is interesting to extract few observations made by the Supreme Court in the above decision:

'.......But since the doctrine of promissory estoppel is an equitable doctrine, it must yield when the equity so requires. If it can be shown by the Government that having regard to the facts as they have subsequently transpired, it would be inequitable to hold the Government to the promise made by it, the Court would not raise an equity in favour of the promisee and enforce the promise against the Government. The doctrine of promissory estoppel would be displaced in such a case because, on the facts, equity would not require that the Government should be held bound by the promise made by it. When the Government is able to show that in view of the facts which have transpired since the making of the promise, public interest would be prejudiced if the Government were required to carry out the promise, the court would have to balance the public interest in the Government carrying out a promise made to a citizen which has induced the citizen to act upon it and alter his position and the public interest likely to suffer if the promise were required to be carried out by the Government and determine which way the equity lies.'

14. Thus, it is evident that when public interest is involved, courts cannot bind the Government to hold on its promise. In the instant case, as discussed by me in the foregoing paragraphs, respondent No. 1 has categorically stated that the first notification was not given wide publicity. Further, according to the counter of respondent No. 1 the notification did not indicate the eligibility criteria; total number of seats meant for each faculty and total number of seats meant for reserved categories. The interviews held pursuant to the first notification if allowed to sustain, the interest of many eligible students would suffer and, therefore, the court would have to balance the public interest and determine each issue on merits.

15. Sri. Panduranga Rao also relied on the decision of the Supreme Court in Amrit Banaspati Co. Ltd. v. State of Punjab, : 1992(59)ELT13(SC) .

This decision is also on the question of promissory estoppel. In mat case, the Supreme Court referred to its earlier decision in M.P. Sugar Mills' case (1 supra). The facts of that case are not at all relevant to the facts of the case on hand.

16. Sri. C.V. Ramulu, learned counsel for respondents 2 to 52, contends that the entire selection process lacks bona fides and suffers from infirmities and, therefore, it cannot be allowed to sustain. In support of this contention, Sri Ramulu relied on the decision of the Supreme Court in Union Territory of Chandigarh v. Dilbagh Singh, AIR 1992 S.C.W. 3263.

17. Learned Government Pleader appearing for respondent No. 1 has admitted the fact that though the first notification was directed to be published in all the hospitals in the twin cities of Hyderabad and Secunderabad and districts, it was found that such display was not effected. He further contends that the result of interview and test held pursuant to the first notification has not been published and, therefore, the stand taken by the petitioners that they were asked to join in respective courses, is misconceived. Learned Government Pleader has placed before me the second notification issued by respondent No. 1 appearing in newspapers one of such publications was made on 10-3-1993 in Udayam Telugu daily, which reads as under:

18. I have examined the first notification, subsequent notification and also the guidelines contained in the 'Bulletin of Information'. Unfortunately, the second notification also suffers from same deficiencies found in the first notification. The notifications suffer primarily on the following counts:

(i) They do not disclose the eligibility criteria of the candidates to appear for the entrance test;

(ii) They failed to disclose the number of seats meant for each faculty; and

(iii) They do not disclose the number of seats reserved for Scheduled Castes, Scheduled Tribes and Backward Classes.

Besides these deficiencies, no proper rules or guidelines have been framed for admission to the entrance test, so as to enable the interested students to understand the implications and prepare themselves for the examination. When these primary requirements are lacking, I am of the view, the notification issued in the first instance as well as the subsequent notification cannot sustain and have to be struck down. Consequently. I hold that the entire selection process for DNB course brought out by the 1st respondent through first notification and subsequent notification is vitiated and needs framing of proper modalities.

19. The question that would now fall for consideration is whether this Court is competent to direct respondent No. 1 to frame proper procedure keeping in view the significance of the course, and direct him to conduct the entrance test in a fair and rational manner, after framing rules and guidelines, so that the scope for heart burning could be avoided. The power of High Courts in a contingency of this nature came up for consideration before the Supreme Court in The Comptroller & Auditor-General v. K.S. Jagannathan, : [1986]2SCR17 wherein it is held:

'There is thus no doubt that the High Courts in India exercising their jurisdiction under Article 226 have the power to issue a writ of mandamus or a writ in the nature of mandamus or to pass orders and give necessary directions where the Government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion or the policy for implementing which such discretion has been conferred. In all such cases and in any other fit and proper case a High Court can, in the exercise of its jurisdiction under Article 226, issue a writ of mandamus or a writ in the nature of mandamus or pass orders and give directions to compel the performance in a proper and lawful manner of the discretion conferred upon the Government or a public authority, and in a proper case, in order to prevent injustice resulting to the concerned parties, the Court may itself pass an order or give directions which the Government or the public authority should have passed or given had it properly and lawfully exercised its discretion.'

20. In my endeavour to set at naught the deficiencies which are apparent in this case, at the threshold itself, I am supported by the decision referred to above. In order to prevent injustice resulting to the concerned parties, this Court is not handicapped to direct respondent No. 1 to modulate proper procedure before conducting entrance test. Sri. Panduranga Rao, learned counsel for the petitioners, says that this Court cannot direct respondent No. 1 to hold entrance test afresh. In support of this contention, Sri. Rao relied on the decision of the Supreme Court in UPSRTC v. Mohd. Ismail, : (1991)IILLJ332SC . In that case, the employees of the UPSRTC, who were initially appointed as drivers, were sought to be removed on the ground that they were found not suitable for the job when they were subjected to medical examination by virtue of subsequent circulars of the Corporation. Regulation 17 (3) of the UPSRTC Employees' Service Regulations contemplated the procedure for removal. The High Court in that case directed the authorities to consider the cases of the retrenched employees for alternative job. The Supreme Court, while examining the aspect, held:

'...........The discretion conferred by Regulation 17 (3) confers no vested right on the retrenched workmen to get an alternative job in the Corporation, Like all other statutory discretion in the administrative law, Regulation 17 (3) creates no legal right in favour of a person in respect of whom the discretion is required to be exercised -'

21. I am afraid, the facts of the above case have no bearing on the intricacies involved in the writ petition. Therefore, in my view, this Court is not handicapped in directing the Principal, Osmania Medical College, Hyderabad, respondent No. 1 to frame proper rules and guidelines, particularly with reference to the mode of notification, eligibility criteria of the candidates, number of seats available for each faculty and number of seats reserved for weaker sections.

22. Under these circumstances, I direct the Principal, Osmania Medical College, Hyderabad, respondent No. 1 to concentrate his energies first on the aforesaid proposition and frame such rules and guidelines as are necessary and conduct fair and proper examination enabling all the competing students to appear for the same. In view of the quashing of the selection process, it should be the endeavour of respondent No. 1 to complete the modalities and go ahead with the issuance of notification, inviting applications and holding the entrance test. It is desirable that the entire process is completed within two months from the date of receipt of this judgment.

23. Since I have held that the entire selection process is vitiated for want of proper procedure and fair play, the preliminary selections held on 17-2-1993 pursuant to the first notification and the interviews held on 22-2-1993, 24-2-1993 and 26-2-1993 cannot sustain. They are accordingly setaside. As I have observed that the second notification published in various newspapers on 7-3-1993 and 10-3-1993 also lacks proper information as to the eligibility criteria, total number of seats meant for each faculty and total number of seats reserved for weaker sections, it also cannot sustain. It is accordingly set aside. Consequently, respondent No. 1 is prevented from holding the interviews pursuant to the second notification also. Further, as I have held that the entire selection process is bad, the petitioners cannot stand to gain. Therefore, the writ petition is dismissed. No costs.

24. Before parting with the case, I must say that the procedure followed looks to be most obnoxious and gives rise to belief that sufficient water has flown behind the screen in conducting the entrance test and interviews pursuant to the first notification. It is hoped that the authorities, who are entrusted with high responsibilities, should take sufficient care in discharging their onerous obligation, particularly in matters of this nature where careers of persons belonging to lucrative profession are involved.


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