1. This is a petition under Article 226 of the Constitution by an unsuccessful appellant for admission to one of the Medical Colleges in the State of Orissa for the academic year 1962-63.
2. On the 8th June 1962 a notice was issued in the Orissa Gazette inviting applications from students having the necessary qualifications for admission to the Medical Colleges in the State of Orissa, the minimum qualification being I. Sc. or Pre-Professional Examination, with Physics, Chemistry and Biology as subjects. The candidates were also required to file their mark-sheets, showing the marks obtained by them in the said Examinations. It was further announced that the selection of candidates will be made on the basis of the marks obtained by them in the qualifying examination, i.e. I.Sc. or Pre-Professional Examination, or an Examination recognised as equivalent thereto by the Selection Board appointed by Government.
3. The petitioner was one of the candidates who applied for a seat and he enclosed along with his application the marks obtained by him in the Pre-Professional examination which showed that he obtained 201 marks out of a Total of 500 in that Examination. A Selection Board was duly constituted and it is admitted that the Selection Board tabulated ail the applications according to the marks obtained and got a list prepared, arranging the candidates in order of merit according to those marks. The petitioner was placed in serial No. 196 in the list and one Sri R. K. Biswal was given serial No. 241. The said Sri R. K. Biswal had passed I. Sc. Examination held in June 1959 and had obtained a total marks of 382 out of 1000. He had also joined the B.Sc. degree course in Khalikkote College in 1961 and had thus done one year in that Degree course, at the time of his applying for a seat in the Medical Colleges. After thus preparing a fresh list of candidates according to the marks obtained by them the Selection Board made a fresh selection of those candidates who had obtained at least 44 per cent of the total marks in the qualifying examination.
After thus making the first selection the Board made a second selection of those candidates who had obtained at least 41.2 per cent of the total marks at the said qualifying examination. But the Board felt that on the actual dates of reopening of colleges some of the selected candidates may not appear, in order to get themselves admitted, and this might give rise to a few more vacancies. Hence the Board authorised the respective Principals of Colleges to make a 'spot' selection on the 13th August 1962 from out of the candidates seeking admission, and actually present, on that date. Neither the petitioner nor Shri R. K. Biswal was selected either in the first list or the 2nd list prepared by the Board. Subsequently, Dr. Radhanath Misra, Principalof Burla Medical College, assisted by one Dr. Sen, Professor of Physiology in the said Medical College and a member of the Selection Board, made three selections on the spot, on the 13th August 1962 in pursuance of the authority given to him by the Board and in that selection he preferred Shri R. K. Biswal to the petitioner. He has also sworn an affidavit to the effect that while judging the relative merits of the petitioner, on the one hand, and Sri Biswal on the other, he took into consideration the following facts :
(i) The petitioner had passed only the Pre-Professional Examination for which the aggregate number of marks was fixed at 500 and which was only a one year course whereas the I. Sc. Examination was a two years course with an aggregate of 1000 marks -
(ii) Shri R. K. Biswal was actually studying in the first year class of the B. Sc. degree course.
(iii) Shri Biswal had also taken Mathematics whereas the petitioner had taken only Physics, Chemistry and Biology.
(iv) Shri Biswal had given his marks in Practical Biology whereas the petitioner did not give these marks.
4. The petitioner's grievance appears to be two-fold : Once the candidates had been arranged, according to the marks obtained by them, and the petitioner had been given a higher place than Sri Biswal by the Selection Board the Principal had no jurisdiction to select the latter in preference to the petitioner. Secondly the Selection Board had no jurisdiction to delegate their power of making selections to the Principals of the respective Medical Colleges under any circumstances. In addition to these 2 grounds some of the facts stated by Dr. Radhanath Misra, Principal of Burla Medical College, in paragraph 12 of his counter affidavit as regards the relative merits of petitioner and Shri R. K. Biswal were also challenged. But in a writ application we cannot obviously enter into disputed questions of fact and the reason given by Dr. Radhanath Misra in his counter affidavit must be taken as correct for the purpose of disposing of this writ application.
5. The petitioner is faced with an initial difficulty arising out of the fact that he had no right to get admis-sion in any of the Medical Colleges. Ultimately it is a matter of discretion with the authorities concerned. The Gazette notification inviting applications has no statutory force. Similarly the Selection Board appointed by Government to make selections of candidates for admission to the Medical Colleges has no statutory function to perform. Nor Is there any express prohibition in the instructions given to the Selection Board from further delegating their powers to the Principal when an extraordinary situation arises.
6. This is not a case of the Selection Board abdicating its functions. On the other hand, the Board quite properly arranged the candidates in order of merit according to their marks and made careful selections in two sittings, fixing the minimum percentage of marks for selection at the first sitting at 44 per cent and educing it to 41.2 per cent in the secortd sitting. But the Board was conscious that due to unforeseen circumstances such as the failure of the selected candidates to appear on the date of reopening of a Medical College, failure to pay the fees or other causes fresh vacancies may arise. The number of such vacancies could not obviously be foreseen with any degree of accuracy in the earlier stages. Nor will it be possible for the Selection Board to be at the spot, at every one of the places where the Medical Colleges are situated, namely Cuttack, Berhampur and Burla, to make selection when such unforeseen vacancies arise. As there is no prohibition by Government against the Selection Board fur-ther delegating their powers to the respective Principals to make spot selection on the 13th August 1962, it cannot be said that such delegation is invalid. That was the only arrangement that could possibly be made to deal with such emergencies.
7. Once discretion is given to the respective Principals of the Medical Colleges to make spot selection on the 12th August 1962 their exercise of such discretion cannot be challenged by this Court under Article 225 of the Constitution. If two candidates appeared at the same examination, the relative merits of those candidates may be judged by the marks obtained at that examination. But when the petitioner had passed the Pre-Professional Examination whereas Shri Biswal had passed the I.Sc. Examination which is of longer duration and whose total marks are- double the total marks fixed for the Pre-Professional examination, the percentage of marks fixed by the respective candidates in the aforesaid two examinations may not by itself be sufficient to show their relative merits. Various other facts may have to be taken into consideration and it must necessarily be left to the discretion of the selecting authority. Shri R. K. Biswal had also definitely higher qualification in the sense that he was doing the 1st year degree course of B.Sc. whereas the petitioner had remained content with merely passing the pre-professional examination. In any case we have no jurisdiction to question the exercise of discretion by the Principal of the Buria Medical College, as no mala fide is attributed to him and he has not exceeded the authority conferred on him by the Selection Board.
8. I may in this connection refer to the decision of the Madhya Pradesh High Court, reported in Gokul Prasad v. M. M. Sohani Petul, AIR 1962 Madh Pra 126, where it was held, following their earlier view in Ramchandra Vishnu v. State of M. P., AIR 1961 Madh Pra 247, that the instructions relating to admission to educational institutions are. of an administrative nature and even a breach of those instructions would not justify the exercise by the High Court of its power under Article 226. Here as already stated there was not only no breach of instructions, but, the selection Board and the Principal of Burla Medical College appear to have followed certain reasonable principles in making selections.
9. The question of discrimination under Article 14 of the Constitution also does not arise. It was not expressly alleged in the petition, nor can it be said that the petitioner and Shri R. K. Biswal were placed in identical situations.
10. The application is therefore dismissed with costs; Hearing fee is fixed at Rs. 50/-.
11. I agree.