M.L. Malik, J.
1. This is a hard case. The petitioner, who was prosecuting his studies in the IIIrd year of the M.B.-B.S. course in the Medical College, Rai-pur received a letter on 16-9-1972 (An-nexure 9) from the Dean that his admission to the M.B.B.S. course had been cancelled because he had not taken Physics as a subject in his B.Sc. (Part I) examination and was, therefore, not qualified to appear in the Pre-medical examination held in the year 1970, to which examination he was wrongly admitted. The petitioner rushed to this Court for a writ of certiorari to quash the letter (Annexure 9) cancelling his admission to the medical courses and expelling him from the College. This Court gave an ad interim writ directing that the petitioner be allowed to prosecute his studies, the results of his M.B.B.S. terms to be declared after the final order in the writ petition was pronounced. The petitioner is now in the Vth year and would shortly be appearing in the final M.B.B.S. examination.
2. The petitioner had passed his Higher Secondary School Certificate Examination-- A Course (i.e. Three years integrated Regular) in the year 1965 in Second Division. Physics was one of the subjects he had offered. He passed his B.Sc. Part I (Pre-professional) Examination in the year 1967 in Second Division. His subjects were Chemistry and Biology. He had not offered Physics as a subject. He passed his B.Sc. Final Examination in the year 1969, subjects being Chemistry and Biology. Physics was not his subject in B.Sc. Part I or in the Final B.Sc. In the year 1970, the petitioner filled in the prescribed form for admission to the Pre-medical Examination. He gave along with the form the requisite certificates and mark-sheets, and wrote a covering letter that his case be considered sympathetically and as a special one.
3. The petitioner was admitted to the Examination. He was declared duly passed. The results were notified. He was granted admission to the Medical College, Raipur, and was also awarded scholarship. He passed his M.B.B.S. 1st year, the home-examination, in the year 1971. and his second year which is called the M.B. B.S. First Examination in May, 1972. While prosecuting studies in the Illrd year, he was given the impugned notice,
4. The petitioner contends that under the Rules for Pre-medical Examination Madhya Pradesh of 1970 (Annexure R-I), the Pre-medical Examination Board which consisted of (i) The Additional Director of Health Services (Medical Education) as Chairman (ii) The Deans of Medical Colleges, and (iii) The Controller of Pre-medical Examination, was the final authority in the matter of admissions rejections of admissions. Examiners, setters, tabulators, checkers, etc., and every matter of policy connected therewith. The Board having exercised discretion in admitting the petitioner to the examination and having selected him on his passing the examination, and having notified his selection, the matter of admission stood finally decided which could not be re-agitated years after. That the petitioner had not been dishonest in giving particulars of his academic career and he had filed all the relevant certificates, the scrutiny of which would have revealed that Physics was not his subject in the B.Sc. (Part I) or in the B.Sc. Final Examination. The petitioner had practised no fraud or deception. Instead, by his letter Annexure 6, he had drawn the attention of the Controller of the Pre-medical Examination that he had been applying for admission during the past three years and being one of a Scheduled Caste, has case could be treated more sympathetically and as a special one and that this was his third attempt
That in giving admission, the petitioner was led to believe that whatever disqualification in eligibility he suffered from, was expressly or by implication condoned by the Board. He was allowed to prosecute his studies in the Medical College for more than two years and he did spend lot of his time, energy and money. That there was no valid justification for depriving him of his professional career merely because the authorities had been remiss or negligent in informing themselves correctly of his qualifications at a proper time. The principles of estoppel by negligence operated as much against them as against anybody else.
That there existed no rule under which the petitioner could be ousted after his selection was notified except on the ground that the candidate had given false and incorrect statement in his application, which was not a fact in the present case.
That the action of cancellation of the admission was taken in violation of the principles of natural justice, inasmuch as the petitioner was given no opportunity whatsoever to meet the grounds of expulsion.
5. The respondents seek to justify the action taken on the ground that it was obligatory on the candidate applying for admission to possess the minimum qualifications of eligibility. One of the qualifications was that the candidate ought to have cleared his B.Sc. Part I Examination with Physics as a subject The petitioner had not taken Physics as a subject in his B.Sc. Part I. He was, therefore, not eligible, to apply. The mistake came to be detected later and had to be rectified by the petitioner's expulsion. There could be no waiver or condonation of the minimum qualifications. The card of admission issued to the petitioner did indicate that he was provisionally admitted to the examination, subject to his fulfilling the provisions of the Rules for the Pre-medical Examination, 1970. The Government, no doubt, delayed taking action but that would create no estoppel.
6. Having heard the counsel, we are of the opinion that the petition must succeed. The first ground available to the petitioner is that the Government, while cancelling the admission, were exercising quasi-judicial functions and it was incumbent upon them to issue a show-cause notice to the petitioner before inflicting the penalty of cancellation. That is the law laid down by the Supreme Court in the Board of High School and Intermediate Education, U. P. v. Kumari Chittra Srivastava, AIR 1970 SC 1039. That was a case where a candidate's admission to an examination was cancelled because of shortage in attendance in lectures in a particular subject This is what their Lordships of the Supreme Court observed in paras 8 and 9 of their judgment:--
'Whether a duty arises 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.
Where the Board of High School and Intermediate examination had cancelled the examination of a candidate who had been allowed to appear at the examination and had actually answered all the question papers, on the ground that he had been admitted to the examination in spite of shortage in attendance at lectures, without giving any show cause notice to the candidate, the action of the Board is vitiated by violation of rules of natural justice. The Board in cancelling the exanation 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.'
In the present case, no notice to show cause seems to have been issued to the petitioner. There was clear violation of the rules of natural justice and the order of cancellation cannot, therefore, stand,
7. As it appears, the Government purported to act under Rule 9 of the Rules for Pre-medical Examination (Annexure R-I) which reads as under:
'Any false or incorrect statement in the application form shall disqualify a candidate for admission to the examination. Further if the candidate is -selected on the basis of any false or incorrect statement, he shall be liable to be removed from the College by the Dean or such authority as the State Government may specify.'
Reading the Rule as it is, action of removal from the College could be taken only upon the proof that the candidate had given false or incorrect statement in the application form. The petitioner here was not guilty of false or incorrect statement in the application form. He had not practised any fraud and had concealed no information. Rule 9 could not be applied to his case. If that Rule could not be invoked, we find no other Rule under which the action could be taken, once the candidate was declared selected and was admitted to the courses of study. Had a show-cause notice been given, the petitioner could successfully plead that any action contemplated under Rule 9 was not warranted.
8. On the question of estoppel by negligence, we are at present not inclined to express any opinion though there are authorities in support of the petitioner. To cite a few, in Registrar. University of Madras v. Sundara Shetti. AIR 1956 Mad 309 a student was admitted to the Intermediate course and had almost completed two years' study when mistake was detected that the certificate of eligibility was wrongly stamped in the S.S.L.C. Book and the Registrar prevented the candidate from completing the Intermediate courses. Their Lordships observed.
'The University did hold out that the eligibility endorsement on the certificates was prima facie proof of the declaration of the eligibility of the candidate concerned. It is on the strength of the endorsement that the Principal could proceed to make admissions. Otherwise, at the time of admission, there would be no other data to help the Principal to decide whether a candidate was or was not eligible.
This was a ease of legal or equitable estoppel which satisfied practically all the conditions embodied in Section 115 of the Evidence Act. A Mandamus should issue both to the University of Madras and to the Principal of the Thiagaraja College to forbear from preventing the petitioner to complete his Intermediate course and appear for the Intermediate examination in due course,'
In K. Jagannadham v. District Collector, Kurnool, AIR 1966 Andh Pra 59, a candidate was selected as a clerk and served the department for about 2 years when it was detected that he had not obtained the requisite percentage of marks in the Secretarial Course in the S.S.L.C. Examination and he could not have been permitted to appear in the competitive examination held in connection with the appointments. The candidate was not guilty of any fraud or misrepresentations. This is what the Court said :
'There was no valid justification for depriving the petitioner of his service career merely because the authorities happened to be remiss or negligent in informing themselves correctly at the appropriate time of a matter which related to a period anterior to the petitioner's appointment in Government service. The petitioner was entitled to the protection of the service rules under which he was appointed and which governed him. The authorities having brought about a situation on the faith of which the petitioner embarked upon a service career, could not at so late a stage and so much to the detriment of the petitioner, be heard to say that the situation of their making should be regarded as not to have existed at all. The principle of estoppel operated against the authorities in the circumstances of this case.'
Doctrine of equitable estoppel was invoked by their Lordships of the Supreme Court in the Union of India v. M/s. Anglo Afghan Agencies, AIR 1968 SC 718 where a party had acted on the representations made by the Government and on the basic concept of justice and fair play, the Government ought to have carried out their promises though not recorded in the form of a formal contract as required by Article 299 of the Constitution.
9. As said above, we are at present not inclined to say anything on the plea of estoppel. Suffice it to say that the authorities were culpably negligent in not undertaking the scrutiny of the papers submitted by the petitioner, and he ioin-ed the institution in the hope that his disqualification, if there was any, had been condoned and he was found eligible to appear in the Pre-medical Examination. To such a belief, there could be reasonable foundation; first, the Board had an overall power in the matter of policy and second, it was not the result in B.Sc. Part I that mattered but the number of marks the candidate obtained in a subiect in the Pre-medical Examination, (Please see Rule 4). The petitioner was a successful candidate even in Physics in the Pre-medical Examination though he had not offered it as a subject in the B.Sc. Part I. The basic knowledge of Physics the petitioner had, and we have reasons to believe that having passed the special test of the Pre-medical Examination, the Board could in its discretion condone the initial disability. It would be worthwhile to recall that in good old days. Matriculates were being admitted to Medical Schools and the basic knowledge of Physics up to Matriculation standard was considered sufficient. The petitioner here had passed his Higher Secondary School Certificate Examination with Physics as a subject.
10. Before we embarked on the final decision of the case, we desired that the Controller of the Board or the University should find a way out to help the petitioner. The way we suggested was that the Board should meet and condone the slight disqualification having permitted the boy to prosecute the studies for all these years. The Board hesitated to take such a decision, we do not know the reason why The Registrar of the University was asked if the boy could be permitted to appear in Physics subject alone of the B.Sc. Part I. He said, the Rules did not permit that We did not explore the avenues any further since but were inclined to set aside the order of expulsion on the simple ground that no show cause notice was given to the petitioner before the penalty was inflicted and that the Rule 9 under which the action purports to have been taken, was not available.
11. In the result, the petition is allowed and the letter dated the 16th September, 1972 (Annexure 9), by which the petitioner's admission to the Medical College was cancelled, is quashed. There shall be no order as to costs. Security be refunded to the petitioner.