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Abodha Kumar Mohapatra and ors. Vs. State of Orissa and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. Nos. 814 to 816, 819 to 826, 833 to 839, 846, 855 and 856 of 1968
Judge
Reported inAIR1969Ori80
ActsConstitution of India - Articles 14, 15(1) and 226; Code of Civil Procedure (CPC) , 1908 - Order 8, Rule 5; Evidence Act, 1872 - Sections 115
AppellantAbodha Kumar Mohapatra and ors.
RespondentState of Orissa and ors.
Appellant AdvocateC.V. Murty, ;S.S.B. Deo and ;S.K. Mohapatra, Advs. (in Nos. 815 & 825), ;P. Palit and ;K.C. Panda, Advs. (in No. 814), ;R. Mohanty, ;B. Roy and ;P.C. Misra, Advs. (in No. 816), ;D. Sahu, ;S.F. Ahm
Respondent AdvocateAdv. General and ;Govt. Adv.
DispositionPetitions allowed
Cases Referred(SriChannabasaviah v. State of Mysore
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....barman, c.j. 1. in these writ petitions analogously heard some student candidates including two lady students -- as applicants for admission during the medical colleges in orissa during theyear 1968 relying on a notice dated june 22, 1968 issued by the principal, s. c. b. medical college, cuttack and published in the orissa gazette dated june 28, 1968, fixing the criteria for determination of merit of candidates eligible for selection and inviting applications for admission to the medical colleges -- challenge the legality of the letter dated august 14, 1968 issued by the government of orissa in the department of health and family planning. it is said that by this impugned letter the government issued certain executive instructions which had the effect of eliminating many otherwise.....
Judgment:

Barman, C.J.

1. In these writ petitions analogously heard some student candidates including two lady students -- as applicants for admission during the Medical Colleges in Orissa during theyear 1968 relying on a Notice dated June 22, 1968 issued by the Principal, S. C. B. Medical College, Cuttack and published in the Orissa Gazette dated June 28, 1968, fixing the criteria for determination of merit of candidates eligible for selection and inviting applications for admission to the Medical Colleges -- challenge the legality of the letter dated August 14, 1968 issued by the Government of Orissa in the Department of Health and Family Planning. It is said that by this impugned letter the Government issued certain executive instructions which had the effect of eliminating many otherwise qualified candidates by a process of unreasonable discrimination, regionwise selection of candidates, and making special provisions for lady students retrospectively thereby altering, to the detriment of the candidates who had already applied, the very basis of selection as originally represented in the Notice inviting applications for admission, issued by the Principal, S. C. B. Medical College, Cuttack, on June 22, 1968. This letter of August 14, 1968 is challenged by the petitioners as unconstitutional, as affecting their fundamental rights and also otherwise illegal. For brevity, the Notice of June 22, 1968 is hereinafter referred to as 'the notice' and the letter of Government dated August 14, 1968 as 'the impugned Government letter'.

2. As in the previous years, during the present year (1968) the Principal, S. C. B. Medical College, Cuttack, as chairman of Selection Board for selection of candidates for admission into the Medical Colleges issued the Notice inviting applications for admission to the Medical Colleges in the State--S. C. B. Medical College, Cuttack, Burla Medical College and Medical College, Berhampur--all run by the Government of Orissa. The Notice specified the conditions for eligibility including the basis of merit as determined by the marks in science subjects, reservation of a limited number of seats for scheduled castes and scheduled tribes, the nominees of the Government of India and other State Governments; the minimum educational qualification required was a pass in the science subjects Physics, Chemistry and Biology (Botany and Zoology) in the qualifying examination i.e. I. Sc. or Pre-Professional examination or in examination recognised, as equivalent thereto.

In paragraph 16 hereinafter quoted read with paragraph 2 it was clearly represented that, the selection of candidates will be made on the basis of merit determined by marks in the Science subjects (Medical group only) in the qualifying examination. It was also represented that additional weightage of marks would be given for candidates who have passed B. Sc.,the rate of percentage of weightage varying according to the Class (First Class, Second Class, Distinction or Pass as the case may be); provision was also made for deduction of marks for each previous failure in the qualifying examination--all as fully stated in paragraph 16 of the Notice. The last date for receipt of the applications in the office of the Principal. S. C. B. Medical College, Cuttack, was fixed as July 10, 1968 as stated in paragraph 15 of the Notice. The last date for application was later on extended to July 20, 1968. The Index Register of the candidates prepared by the concerned authorities shows that 1497 students applied for admission.

3. Relying on the representation madein paragraph 16 of the Notice that selection will be made in the order of merit determined on the basis of marks obtained in the Science subjects (Medical group only) in the qualifying examination (L Sc. or Pre-Professional or its equivalent examination), the petitioners including some student candidates with admittedly high marks in the Medical group as appears from the Index Register, applied for admission. For appreciation of the merit of the petitioners (including the two lady students) as determined by marks, in the Science subjects (Medical group) a few instances with the marks and the Index numbers as tabulated in the Index Register produced by the Advocate General are given below :

Number of the Writ petition.Total percentage of marks.Index Number

O. J. C. No. 825/6865.661180O. J. C. No. 822/6863.661273O. J. C. No. 836/6863.331355O. J. C. No. 819/6862.661148O. J. C. No. 815/6861.661318O. J. C. No. 823/68 (lady student)61.33883O. J. C. No. 839/68 (lady student)58.661050

In spite of higher marks than those obtained by the provisionally selected candidates, the petitioners are stated to have been wrongfully eliminated as hereinafter fully discussed.

4. On August 14, 1968. that is the day on which the Selection Board was to meet, the Government by their impugned letter issued a directive to the concerned authorities purporting to alter the entire basis of selection based on merit in contravention of paragraph 16 of the Notice in which it was represented that the marks obtained by the candidates in the Science subjects Physics, Chemistry and Biology (Botany and Zoology) Medical group only, would be the determining factor. It is this directive or instruction of the Government as contained in the impugned Government letter which is being challenged in these writ petitions as unconstitutional and otherwise illegal.

5. The impugned Government letter dated August 14. 1968 is quoted below,

18732 IMMEDIATE

GOVERNMENT OF ORISSA

HEALTH AND FAMILY PLANNING

DEPARTMENT

No.--------------------/H

From

Sri K. S. Samantarai, B. A., O. A. S., Under Secretary to Government.

To

The Director of Health Services, Orissa.

Dated the August, 1968.

Subject : Admission of students into the Medical Colleges during 1968. Sir,

In continuation of Government letter No. 13042. dated 15-6-68, I am directed to say that Government have been pleased to decide that no student securing less than 50 per cent of marks in the Pre-Professional Examination should be entertained for admission into the medical colleges and from amongst the rest, the students securing 50 per cent and above marks in the group subjects, viz. Physics, Chemistry and Biology should be selected according to merit from the respective regions tagged to the individual colleges and the remaining seats will be filled up by the meritorious students from the other regions.

2. Spot selection will be made by the Principal according to merit

3. It is also decided that 15 per cent of the total number of seats will be reserved for lady students.

4. The Principals of the Colleges are being informed of the above decision.

Yours faithfully,

Sd/-

Under Secretary to Government,

S. P./14.8.

IMMEDIATE

Memo No. 17146(3)/H. dated 14th Aug.1968

Copy forwarded to the Principals of the 3 Medical Colleges for information and immediate necessary action,

Sd/-

Under Secretary to Government'.

6. In pursuance of the directive contained in the impugned Government letter, candidates who had obtained much lower marks than the petitioners were provisionally selected as appears from the lists published by the Principal, S. C. B. Medical College, Cuttack, and which appeared in the issue of the Samaj dated August 17, 1968, for admission into the First Year M. B. B. S. course of the three Medical Colleges of the State. This is clear from a scrutiny of the Index Register; for instance, the candidate bearing Index number 271 who was selected obtained only 49.66 per cent whereas, as already shown, the candidate petitioner in O. J. C. No. 825/68 (index No. 1180) who obtained 65.66 per cent on the basis of the determination of merit made according to paragraph 16 of the Notice, has been eliminated.

7. The points argued on behalf of the petitioners challenging the impugned Government letter are in substance these : The authority vested in the State and its officers who issued the Notice, though executive in character, is from its very nature an authority required to deal with the matter, namely selection of candidates, in a manner consonant with the basic concept of justice, equity and fair-play; the State and its officers are bound to act in accordance with the said Notice already issued as early as in June about two months before the selection in August; if there is failure on the part of the State or its officers to so act in accordance with the Notice or if their action is to the detriment of the citizen and in violation of the representations made in the Notice, then such action by or on behalf of the Government is open to scrutiny and rectification by this Court. Relying on the representations made in the Notice the candidates applied; they believed that the Government would carry out the said representations holding out a promise that the applications would be considered on the basis of merit to be determined by the marks obtained in the Science subjects (Medical group only) in the qualifying examination as aforesaid. In such a case the State has no power to alter the very basis of selection in the manner they have done by the issue of the impugned Government letter: on the other hand, the State was bound to hono-our the representations. The impugned Government letter and the action taken In pursuance of that letter were arbitrary and had introduced discrimination. It was further submitted that the conditions for admission as laid down in the Notice had the force of law.

8. It was further submitted on behalf of the petitioners that the impugned Government letter, though stated to have been issued for the purpose of providing guidance to the Selection Board, in fact only made provisions for different categories of unreasonable discrimination in the matter of Selection. Firstly, it laid down a process of elimination of students who obtained less than 50 per cent marks (in the aggregate) including subjects outside the Medical group in the qualifying examination (I. Sc. or Pre-professional examination or its equivalent). It also involves unreasonable classification in that candidates with high marks in the Medical group only in the Qualifying examination (I. Sc. or Pre-professional or its equivalent) -- merely because they ma5 have obtained less than 50 % in the aggregate--would be outright eliminated from being considered, while candidate with more than 50 per cent marks in humanities or Arts subjects (which have nothing to do with Medical group) but with marks less than 50 per cent in the Medical group of subjects would be preferred; such classification has no reasonable relationship with the object of selection for admission into Medical Colleges, namely that it must be beneficial to the Medical profession; in order to attain that object, the marks obtained in the subjects constituting the medical group only should be considered as provided in paragraph 16 of the Notice. This impugned process of elimination of students who obtained high percentage of marks in the medical group of the subjects because they obtained less than 50 per cent marks in the aggregate in the qualifying examination is unreasonably discriminatory; such outright elimination is unreasonable because such students, if they also possess B. Sc. degree although given additional weightage in marks as provided in paragraph 16 of the Notice are still eliminated. The instructions in the impugned Government letter to shut out in one sweep all candidates securing below 50 per cent in the aggregate in the qualifying examination without giving any consideration to the marks obtained by them in the subjects under the medical group, has thus resulted in gross discrimination. Secondly, the impugned Government letter provides for discrimination on a regional basis, which is violative of the Constitution as offending Article 14. Thirdly, the provision in the impugned letter making reservation of 15 per cent of the total number of seats for lady candidates --not originally provided for in the Notice -- could not be made subsequently so as to retrospectively affect the chances of otherwise qualified male candidates who applied on the basis of the representation in paragraph 16 of the Notice that selection would be made on the basis of meritas determined only by the marks and additional weightage as stated therein from among the eligible qualified candidates placed in order of merit irrespective of sex -- male or female. In any event, such special reservation could not be made retrospectively so as to affect the rights of the better qualified male candidates.

9. It was also submitted that the Selection Board acted under pressure of a directive issued by the Government; in other words, the Selection Board as quasi judicial body was not free to act according to the procedure laid down in paragraph 16 of the Notice. It was stated that the selection was mala fide having been made on extraneous considerations and in pursuit of some illegitimate aim. But in the view that we have taken on the other points raised in these writ petitions, we do not think it necessary to express any opinion on the question of mala fide.

10. A preliminary objection wastaken -- though faintly -- on behalf of the opposite parties, that the writ petitions are not maintainable by reason of the selected students not having been implead-ed as opposite parties. In our opinion, the objection is not tenable. The noticen the Samaj publishing the lists of candidates selected states that the candidates were 'provisionally selected' for admis-sion into the First Year Class of the M. B. B. S. course of the Medical Colleges of the State. It also states that the candidates should report themselves before the Principals of the Colleges for which they are selected on or before August 24, 1968 for medical examination and admission and if they failed to get themselves admitted by the stipulated period, their names would be expunged from the selection list. The selection being thus only provisional, the candidates in the provisional list cannot claim admission as of right. That apart, in the course of hearing we made it clear that the candidates who had already been admitted -- as brought to our notice -- would not be disturbed. That apart, in the view that we have taken of the scope of these writ petitions and the grant by us of declaratory relief there is no substance in the point questioning the main-tainability of the petitions for non-joiti-der of parties.

11. Corning now to the merits, the impugned regiomvise classification in the Government letter is in these terms :

'xx xx xx the students securing 50 per cent and above marks in the group subjects viz., Physics, Chemistry and Biology should be selected according to merit from the respective regions tagged to the individual colleges and the remaining seats will be filled up by meritorious students from other regions.'

In our opinion, this provision for region-wise classification is directly hit by Article 14 of the Constitution. In the latest decision of the Supreme Court in P. Rai-endran v. State of Madras, Writ Petn. Nos. 194, 196 and 202 of 1967 decided on January 17, 1968-(AIR 1968 SC 1012) a similar provision made in the Rules for admission to the Medical Colleges in Madras State providing for districtwise distribution of seats was struck down as violative of Article 14 of the Constitution. Their Lordships accepted the argument made on behalf of the petitioners that districtwise distribution violates Article 14 because it denies equality before the law or equal protection of the laws, inasmuch as such allocation of seats may result in candidates of inferior calibre being selected in one district while candidates of superior calibre cannot be selected in another district.

12. The reasoning on which their Lordships of the Supreme Court took the said view in the aforesaid case is in substance this : The question whether districtwise allocation is violative of Article 14 will depend on what is the object to be achieved in the matter of admission to Medical Colleges. Considering the fact that there is a larger number ol candidates than seats available, selection has got to be made. The object of the selection must be to secure the best possible talent so that the country may have the best possible doctors. If that is the object, it must necessarily follow that that object would be defeated if seats are allocated district by district. It is true that Article 14 does not forbid classifica-tion, but the classification has to be justified on the basis of nexus between the classification and the object to be achieved, even assuming that territorial classification may be a reasonable classifica-tion. Their Lordships also made it clear that the mere fact that the classification by itself is reasonable is not enough to support it unless there is nexus between the classification and the object to be achieved. Therefore, as the object to be achieved in a case of the kind with which we are concerned is to get the best talent for admission to professional colleges, allocation of seats districtwise has no reasonable relation with the object to be achieved, if anything, such classification will result in many cases in the object being destroyed, and if that is so, the classification, even if reasonable, would result in discrimination, inasmuch as better qualified candidates from one district may be rejected while less qualified candidates from other districts may be admitted.

13. We are satisfied that the opposite parties including the State of Orissa have made out no case for regionwise selection of students in the Medical Colleges. We are also satisfied that such selection results in discrimination and there is no nexus between territorial distribution and the object to be achieved, namely, admission of the best talent on the basis of the merit judged by marks obtained by candidates in the Science subjects (medical group) already indicated. We are accordingly of opinion that selection of candidates on regionwise basis is violative of Article 14 and no justification worth the name in support of the classification has been made out.

14. The said provision in the impugned Government letter relating to region-wise classification is also attacked as violative of Article 15(1) of the Constitution in so far as it makes a discrimination solely on the basis of place of birth as contended in paragraph 25(j) of O. J. C. No. 823 of 1963 filed on August 20, 1968. Neither in counter-affidavit dated August 26, 1968 filed therein by the Under Secretary to the Government of Orissa, Health Department, nor in any of the four successive counter-affidavits in O. J. C. No. 815 of 1968 (which were adopted as counters to the other writ petitions, all analogously heard) filed on behalf of the opposite parties on August 22, 23, 26 and 29, 1968, the specific averment that the impugned Government letter creates discrimination solely on the basis of place of birth made in the aforesaid paragraph 25(j) of the petition in O. J. C. No. 823 of 1968 was denied or refuted. Thus, there having been no denial of the allegation made in paragraph 25(i) of the petition in O. J. C. No. 823 of 1968 that the discrimination has been made solely on the basis of place of birth, that allegation must be taken to have been admitted by the opposite parties.

15. In our opinion, there is a good deal of force in the argument that the aforesaid provision in the impugned Government letter is also violative of Article 15(1). This our view gains support from the fact that in the Index Register of candidates who applied for admission there are 5 columns, namely (1) Index No. (2) Name and address for correspondence of the student (3) Home district (4) Percentage and (5) Remark. Column 3 headed 'Home district' is not without significance. Column 3 ('Home District') -- as distinct from column 2 'Name and address for correspondence of the student' -- should be read with the relevant provision in the impugned Government letter directing that candidates should be selected according to merit 'from the respective regions'. The phrase 'from the respective regions' read with column 3 'Home District' of the Index Registerand the specific averment in paragraph 25(j) of the writ petition O. J. C. No. 823/ 68 not denied by the opposite parties la sufficiently indicative -- and indeed conclusive--that the discrimination Involved in the provision was solely on the ground of place of birth. In any case, the contention that the discrimination was solely on the basis of place of birth not having been controverted by the opposite parties in any of their several successive counter-affidavits, must be held to have been admitted; such discrimination is clearly violative of Article 15(1) also.

16. The next attack is on that part of the directive contained in the impugned Government letter laying down that :

'No student securing less than 50 par cent of marks in the Pre-professional examination should be entertained for admission into the medical colleges'.

The implication of this directive is that by this the Government totally eliminated a large number of candidates who were otherwise better qualified by reason of their having obtained higher marks in the Science subjects (medical group) with additional weightage for B. Sc. candidates, all in accordance with the principles for determination of merit as represented in the Notice. Paragraph 16 of the Notice which contains the repra-sentation that selection would be made on the basis of merit as fully stated therein, is quoted below :

'16. The selection of candidates will be done by a Selection Board consisting of the Principals of the three Medical Colleges. The selection will be made en the basis of merit determined by the marks obtained by them in the Science subjects (Medical group only i.e. Physics, Chemistry and Biology (Botany and Zoology)) in the qualifying examination, i.e., I. Sc. or Pre-professional examination or an examination recognised as equivalent thereto. Additional weightage in the following manner may be given, provided that the total weightage for all items does not exceed 15 per cent in the case of a 1st Class B. Sc. (Hons) candidate and 10 per cent in all other cases.

(a)B. Sc. 1st Class (Hons)10 Per cent B. Sc. 2nd Class (Hons)8 Per cent B. Sc. (Distinction)6 per cent B. Sc. (Pass)5 per cent (b) Participation in the inter-Univer-sity/State sports recognised by the Government of Orissa and certified by theprincipals of the Institutions last attended 5 per cent

(c) Children of the defence service personnel recruited during the emergency, i.e. from 26th October, 1962 to 9th January, 1968 who have rendered approved military service as defined in the Politi-cal & Services Department Circular No.6225(88) General dated the 2nd May,1963 5 per cent

(d) Holders of 'B' Class certificate inN. C. C. 2 per centHolders of 'C' Class Certificatein N. C. C. 3 per cent(certificates issued by the Group headquarters or by the Director, N. C. C. willonly be taken into consideration).

N. B. -- Qualifications & Sports, N. C. C. certificates submitted at the time of application will only be considered.

(e) 5 marks will be deducted from the marks secured in the qualifying examination i.e. I. Sc. and Pre-professional for each failure.

The list of selected candidates will be notified in the College and published in the local dailies. Individuals will also be intimated in the address given by them to take admission',

17. It was argued on behalf of the op-pesite parties that the power of the Government to change the rules for admission cannot be restricted on the ground that the representation held out by Government in the Notice had not been carried out; that the Government is the sole judge of the validity of its actions, and that the candidates who acted on the representations made in the Notice, have no right except what the Government choose to recognise or accept. This exalted claim about the nature of the authority claimed by the Government requires examination.

18. The question is : Once the candidates have acted on the said representation made in the Notice and relying on the same had made applications for admission on the basis thereof, can the Government later on abruptly to the detriment of the candidates give a directive to the Selection Board purporting to eliminate the better qualified candidates who have secured high marks in the Science subiects (Medical group) with additional weightage for B, Sc. candidates? In our opinion, the Government cannot so change the rules abruptly in the manner done. The reasons are these : It is not the case of the Government that the representations made in the Notice were subject to any condition that Government would not be bound to admit students on the basis of merit as determined by marks obtained in the Medical group of Science subjects, if the Government deem it inexpedient to make admissions on that basis. We are unable to accept the argument that the Government is not bound to honour the said representation, relying on which the candidates acted to their detriment. In our opinion, assuming that the power of the Government in issuing the directives to the concerned authorities is executive in character, even sowhen it was represented by Government in the Notice that selection for admission will be made on the basis of merit as determined by marks obtained in the Science subjects (Medical group only) in the qualifying examination, the Court has the power to direct the concerned authorities to honour the said representation made to the candidates who had acted on such representation and have been denied the consideration which was due to them on the basis of marks obtained by them in the Medical group of Science subjects. If the Government had acted arbitrarily in issuing their directive in their impugned letter, it is open to judicial review. Where the candidates have acted to their prejudice upon a representation made in the Notice, their claim to be considered on the basis of marks obtained by them in the medical group of subjects cannot be arbitrarily rejected.

19. In such a case, the Court is competent to grant relief in appropriate cases if, contrary to the representation made in the Notice, the concerned authorities decline to consider the applications on the basis of that representation. Therefore, even assuming that the representations in the Notice offering inducement to the prospective medical students are in character executive, the Government and its officers are, on the authorities of the Supreme Court, not entitled at their mere whim to ignore the said representations made in the Notice. We cannot therefore accept the argument that the Government is the sole judge in such matters and that the Courts are powerless to grant relief if due consideration is not given to the applications of the petitioners who acted to their prejudice relying on the representations in the Notice. To concede to the concerned authorities that power is to strike at the very root of the rule of law. The authority of the concerned authorities even though executive in character, was from its nature an authority to deal with the matter in manner consonant with the basic concept of justice and fairplay; if they made an order subsequently which was not consonant with the basic concept of justice and fairplay, their action is open to scru-tiny and rectification by the courts.

20. While taking this view, we must make it clear that the petitioners are not seeking to enforce any contractual right they are only seeking to enforce compli-ance with the representations made in the Notice. We are of the view that even if the power of the concerned authorities is executive in character, the petitioners are entitled to resort to the Court and claim that the said representations in the Notice be ordered to be honoured.

21. Thus, the claim of the petitioners is appropriately founded upon the equity which arises in their favour as a resultof the representations made on behalf of the Government in the Notice and the action taken by the petitioners acting upon the said representations under the belief that the concerned authorities would carry out the representations made by them or on their behalf. On the facts proved in this case, no ground has been suggested before us for exempting the Government or the concerned authorities from the equity arising out of acts done by the petitioners to their prejudice reiving upon the representations. The Government and the authorities concerned are thus estopped from issuing the impugned letter which rules of equity and good conscience prevent them from using against the candidates including the petitioners. The Government is not exempt from liability to carry out the representations in the Notice as to the basis of merit on marks for selection and they cannot on some undefined and undisclosed ground of necessity or expediency fail to carry out the said representations made in the Notice nor claim to be the sole judge of their own implied commitment or obligation to the candidates on an ex parte appraisement of the circumstances in which the claim of the petitioners founded upon the equity has arisen.

22. So, having made the representation that if a candidate satisfied the standard or criteria set up for selection of candidates as stated in paragraph 16 of the Notice, it is not open to the concerned authorities to retract from the same -- as they purported to do here -- by the issue of the impugned Government letter. By the representations in the Notice the petitioners were led into the belief that they had good chance of being selected, having obtained a reasonably high percentage of marks in the Science subjects (Medical group only) in the qualifying examination with additional weightage in the case of B. Sc. candidates all as represented in the Notice. It is not denied that some of the petitioners did obtain a high percentage of marks in the Science subjects medical group in the qualifying examination as recorded in the Index Register. But for the assurance or representation made in the Notice, they would have applied to other Colleges and, in all probability, might have secured admission. In these circumstances, we feel that the principle of legal or equitable estoppel would apply to this case.

23. This our view is fully supported by the principles underlying the decision of the Supreme Court in Union of India v. Anglo Afgan Agencies, AIR 1968 SC 718 and also a Division Bench decision of the Andhra Pradesh High Court in Ku-mari Akhtar v. Principal, Osmania Medi-cal College. AIR 1959 Andh Pra 493.

24. The petitioners also attack the Government directive in the impugned letter which makes a special provision for lady students and lays down that

'it was also decided that 15 per cent of the total number of seats will be reserved for lady students'.

In the Notice there was no special provision for reservation of seats for lady candidates. The Notice only provided for selection on the basis of merit determined by marks as laid down in paragraph 16; the only reservation made was for candidates belonging to scheduled castes and scheduled tribes and a few nominees of the Government of India, and the other State Governments against a limited number of reserved seats. Under the scheme of the Notice, lady candidates have to take their chances along with other candidates in open competition on merit on the basis of marks as provided therein. In fact, having regard to the high marks obtained by the lady students as appears from the Index Register inasmuch as a large number of lady students obtained more than 60 per cent the highest marks obtained by a lady student being 76 per cent, whereas the highest marks obtained by a male student is 79.55 per cent. -- there appears to be no compelling necessity for making a special provision for lady students. Even in spite of this position if the Government had still contemplated making a special provision for ladv candidates for admission into the Medical Colleges, they could have done so when they issued the Notice on June 22, 1968. It is not open to the Government now to make any such special reservation as they purport to do in the impugned Government letter because in that event, in open competition on merit it will affect the chance of candidates in general who would otherwise have been selected strictly on merit on the basis of marks as laid down in paragraph 16 of the Notice, without any special considera-tion or weigntage being given to women candidates as such. Therefore, as in the case of other impugned provisions the principle of legal or equitable estoppel must, for the same reasons, equally apply to the provision in the impugned letter purporting to reserve a certain percentage of seats for lady students. In any event, such a provision for reservation, even if otherwise justified as reasonable, cannot, in the circumstances of the present case, be permitted to retrospectively affect the chances of selection of candidates who, along with women applicants, had already applied on the basis of the representations made in paragraph 16 of the Notice.

25. There is no doubt that the directives contained in the impugned Government letter -- on the basis of which the selections have been made -- have, onaccount of the various processes of discrimination as indicated above, operated to the detriment of the petitioners affect-ins not only their chances of selection but also perhaps their ranking in order of merit. Therefore leaving aside the allegation of mala fide which it is not the practice of this Court to investigate unless a strong case is made out -- there is sufficient justification for interference by this Court.

26. Ultimately, the position comes to this : The impugned Government letter dated August 14, 1968, as viplative of the provisions of the Constitution and as otherwise illegal, is struck down and has to be ignored. The concerned authorities are to make selection of candidates foradmission into the First Year M. B. B. S. course of the three Medical Colleges during this year (1968) on the basis of merit according to the provisions contained in paragraph 16 of the Notice. In this context, for the guidance of the concerned authorities, paragraph 9 of the Notice needs some clarification. That paragraph reads as follows :

'9. Subject to the condition that the 1st twenty students in order of merit will be given the option to apply and join any of the three medical colleges, the rest of the candidates belonging to the undermentioned districts and places shall be selected for admission to the colleges as noted against each.

(a)Balasore, New Capital, Cuttack, Keonjhar and MayurbhanjS. C. B. Medical College, Cuttack.(b)Bolangir Dhenkanal, Kalahandi, Sambalpur and SundergarhBurla Medical College.(c)Ganjam, Koraput, Phul-bani, Puri (excluding New Capital)Medical College, Berhampur. Remaining meritorious students of the aforesaid districts who cannot be admitted in the Medical Colleges as noted above, will be directed to take admission in other Colleges where there may be vacancies'.

It was stated by the learned Government Advocate that 400 students are to be admitted in the three Medical Colleges this year, the respective quotas for the three colleges being 150 students for the S. C. B. Medical College, Cuttack; 150 for the Burla Medical College; and 100 for the Medical College, Berhampur.

27. Paragraph 9 of the Notice in terms and read with paragraph 2, contemplates that only one list of candidates -- selected strictly in order of merit as provided in paragraph 16 -- has to be prepared without making any distinction between male and female candidates. This is apparent from the condition that the first twenty students selected in order of merit have the option to join any of the three colleges; unless such a single common list is prepared, selection of the first twenty meritorious students will not be possible. After taking out these twenty candidates from the list for the purpose mentioned above, the paragraph proceeds to provide for the admission of the 'rest of the candidates'. The 'rest of the candidates' in the context would obviously mean the others left out in the said single list prepared on the basis of merit, who have to be allotted, for the purpose of admission, in order of merit, in the various colleges as mentioned in the said paragraph. That this is the intention is also clear from the use of the expression 'remaining meritorious students' occurring in the last sub-paragraph of paragraph 9. The word 'remaining' in the context can only mean those candidates left out, in the single list prepared on the basis of merit The scheme underlying paragraph 9, therefore, is that out of a single list prepared of all selected candidates, in order of merit, the first twenty should be given the choice to join any of the colleges they liked; for the remaining seats, allotment will be made from out of the remaining candidates in order of merit in the same list, to the various colleges in the manner indicated in paragraph 9; and if after that some more seats still remain to be filled up, allotment will be made again from the same list, strictly in order of merit, to the Medical Colleges at the discretion of the authorities.

38. It is clear therefore from a reading of paragraph 9 of the Notice that the concerned authorities have to take steps to prepare only one single list of candidates, selected in order of merit in accordance with the provisions of paragraph 16 and after giving the option to the first twenty candidates to choose any of the colleges, the remaining selected candidates in the said list are to be allotted in order of merit to the three Medical Colleges in the manner indicated therein, and as clarified above. If the selection of candidates is itself made on a territorial basis -- districtwise or regionwise -- that will be open to objection as violating the Constitution for reasons already discussed, but once selection is made strictly on the basis ofmerit as provided in paragraph 16 and one single list of candidates is prepared, in order of merit on the basis of such selection, there can be no objection to allotment of the candidates to the various Medical Colleges in the manner indicated in paragraph 9 which is a matter of convenience. This, in our opinion, is whal is provided in that paragraph.

29. In this view of the matter and on a reasonable interpretation of paragraph 9 of the Notice in the light of the legal principles as discussed above, the concerned authorities are directed to implement and give effect to the same in the manner as hereinafter indicated.

30. It is declared that the impugned Government letter dated August 14, 1968, is invalid as violative of the provisions of the Constitution and otherwise illegal, and it is accordingly struck down, and the list of candidates provisionally selected in pursuance of the impugned Government letter is declared void and inoperative. The concerned authorities are directed to make the selections and allotment of seats strictly in accordance with the Notice dated June 22, 1968, including paragraph 9 as interpreted in the manner indicated above and paragraph 16 thereof.

31. The concerned authorities are accordingly directed to implement this our decision as indicated below :

(a) There will be one single list in order of merit of all selected candidates (including therein lady candidates) drawn up on the basis of merit as determined by marks obtained by them in the Science subjects (Medical group only i.e. Physics, Chemistry and Biology (Botany and Zoology) in the qualifying examination or any examination recognised as equivalent thereto) after giving additional weigh-tage as is due to them -- all according to paragraph 16 of the Notice.

(b) Then, the first twenty candidates in order of merit out of the aforesaid list will be given the option to join any of the three Medical Colleges in the State.

(c) As regards the allotment of candidates to the remaining seats in the three colleges (after the allotment of the first twenty candidates as above), the required number of candidates for admission this year will be adjusted from the said list strictly in order of merit, in accordance with paragraph 9 as interpreted by us.

(d) If after such adjustment there are still any vacancies in the respective quotas of the three colleges, such vacancies may be filled up from the remaining selected candidates, strictly in order of merit in the said list, the actual allotment being left to the discretion of the authorities concerned.

(e) The students already admitted into the three colleges -- whose cases werebrought to our notice at the time of the hearing of these writ petitions -- are not to be disturbed.

32. The concerned authorities are also directed to apply to the appropriate authorities of the University concerned for reasonable extension of time for admission of students into the Medical Colleges in view of the special circumstances. We trust that all concerned including the University authorities will implement the decision of this Court regarding selection, allotment and admission of students into the Medical Colleges this year (1968) according to the Notice of June 22, 1968, and the directions given above.

33. We further direct that the selection of candidates, allotment of candidates to the Medical Colleges in accordance with the above directions, and the publication of the list are all to be completed by September 12, 1968 at the latest.

34. Before closing this judgment we would remind the concerned authorities of the following observations of Mr. Justice Hidayatullah (as he then was) in a judgment of the Supreme Court :

'xx xx xx If equality and equal protection beforethe law has any meaning, and if our public institutions are to inspire that confidence which is expected of them, we willbe failing in our duty if we did not, evenat the cost of considerable inconvenienceto Government and the selected candidates, do the right thing. If any blamefor the inconvenience is to be placed, itcertainly cannot be placed upon the petitioning candidates, the candidates whomthis order displaces, or this Court.'

(SriChannabasaviah v. State of Mysore,AIR 1965 SC 1293).

35. In the result, therefore, the writ petitions are allowed in terms as aforesaid. The petitioners are entitled to one set of consolidated costs, and one hearing fee which we assess at Rs. 200.

Acharya, J.

36. I agree.


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