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State Medical Faculty of West Bengal Vs. Kshiti Bhusan Dutt and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 51 of 1958
Judge
Reported inAIR1961Cal31,64CWN842
ActsCode of Civil Procedure (CPC) , 1908 - Section 9; ;Specific Relief Act, 1877 - Sections 42 and 54
AppellantState Medical Faculty of West Bengal
RespondentKshiti Bhusan Dutt and ors.
DispositionAppeal allowed
Cases Referred and Sheoparson Singh v. Ramnandan
Excerpt:
- p.b. mukharji, j.1. this is the defendants' appeal from the judgment and decree of p. c. mallick j., decreeing the plaintiff's suit. in fact the decree under appeal first declares that the plaintiff is entitled to a certificate under article 6-c of the statute of the state medical faculty of west bengal which means that he is qualified to practise what is called, the western medical science and secondly that the defendants do grant the plaintiff a certificate, under the said article.2. eleven defendants including the state medical faculty of west bengal and the members of the governing body of the state medical faculty are the appellants before us.3. the case of the plaintiff respondent is that he was a student of the dacca national college, medical branch, during the years 1921 to 1925.....
Judgment:

P.B. Mukharji, J.

1. This is the defendants' appeal from the judgment and decree of P. C. Mallick J., decreeing the plaintiff's suit. In fact the decree under appeal first declares that the plaintiff is entitled to a certificate under Article 6-C of the Statute of the State Medical Faculty of West Bengal which means that he is qualified to practise what is called, the western medical science and secondly that the defendants do grant the plaintiff a certificate, under the said Article.

2. Eleven defendants including the State Medical Faculty of West Bengal and the members of the Governing Body of the State Medical Faculty are the appellants before us.

3. The case of the plaintiff respondent is that he was a student of the Dacca National College, Medical Branch, during the years 1921 to 1925 and that he duly completed the four years' course of study in specific subjects such as Anatomy, physiology, Pathology, Materia Medica, Pathology, Medicine, Surgery, Midwifery, Hygiene and Medical Jurisprudence. He alleges that he passed the College Final Examination in the year 1925. He obtained a certificate from the college 3 years later on 29-1-1928. His further allegation is that he has been in actual practice of the western system of medicine ever since the year 1925. He therefore, claims the certificate under Article 6-C of the Statute of the State Medical Faculty of West Bengal.

4. It is the plaintiff's case that on 6-12-1948 he made an application for such certificate. The plaintiff alleges that the defendant-appellants acted unlawfully and without jurisdiction in refusing to grant him the certificate and that they had acted unreasonably, irregularly, unlawfully, without jurisdiction and against the principles of natural justice. In the plaint the first declaration which the plaintiff seeks is that he is entitled to the certificate, secondly, a declaration that the refection by the defendants of the plaintiff's application is unlawful. Irregular and without jurisdiction and thirdly, a mandatory injunction commanding the defendant-appellants to grant the certificate to the petitioner.

5. The appellant's case in the written statement is that the plaintiff made false statements in respect of the year of his completing the four years' study required by the Statute and in respect of the year of his passing the Final Examination. The appellants further allege that they granted interviews to the plaintiff and the Special Board appointed by the Governing Body considered the divergent and contradictory statements made by the plaintiff before them and came to the conclusion that the plaintiff could not state or prove the year of his admission in the Dacca National College. The appellants also state in their written statement that the plaintiff stated his age in the application to be 40 years and if that was the plain-tiff's age then, then he was only 13 years old when he was supposed to have joined the Dacca National College in the year 1921. The appellants assert that they have not acted unreasonably or without jurisdiction or unlawfully or in any way violating the principles of natural justice.

6. The learned trial Judge proceeds on the basis that the errors committed by the plaintiff were due to his mistake and that the admitted error of the plaintiff developed into an obsession in the minds of the members of the Scrutiny Board of the appellant. The trial Judge goes farther to say that the plaintiff's explanations were convincing and should have been acceptable to the Board and the Board's non-acceptance of the explanation amounted to such extreme unreasonableness that it could be called perversity. No case of perversity, however, was even pleaded in the plaint, nor was there any breath of allegation against the appellant about bad faith. The judgment under appeal comes to the conclusion that the Special Board under the State failed to perform its duty to the Governing Body in not stating whether the requirements of Article 6-C of the Statute had been complied with. The learned trial Judge comes to the conclusion that the Governing Body failed to exercise their jurisdiction to issue the certificate due to misapprehension on their own part and therefore he comes to the conclusion that on the materials available both the Special Board and the 'Governing Body of the State Medical 'Faculty or West Bengal should have arrived at an affirmative finding that the requirements of Article 6-C pf the Statute had been complied with and on such finding they should have issued a certificate of practice to the plaintiff. The whole judgment proceeds on the basis that there was failure by the Governing Body to exercise jurisdiction and that the proceedings of the Scrutiny Board and the Governing Body are irregular resulting in failure of justice to the plaintiff.

7. With a view to appreciate' the points involved in this appeal it is necessary to examine first the relevant Statutes of the institution called the State Medical Faculty of West Bengal. Before I do so, some remarks perhaps are necessary to explain the establishment and origin of the State Medical Faculty of West Bengal in order to find Its legal basis. At the time when it was established on 11-8-1914 by the Bengal Government Resolution No. 2545-Medical of that date it was an executive act and the Government of Bengal then did not act under a Statute of the legislature. By that notification the State Medical Faculty wasestablished and the resolution states:

'The Governor-in-Council has, therefore, decided that the proper course is to establish a separate body to be called The State Medical Faculty which shall examine and certify to the qualifications of those medical students who are unable to attain to the high standard required for the M. B. Degree. An additional advantage of this, course will be the possibility of standardising the examination of candidates from the Government medical schools and from those private medical schools whose equipment and training may justify them in aspiring to a registrable qualification for their students.'

8. It was provided also by that Resolution that the State Medical Faculty would grant a diploma of membership and a licence, the former corresponding to the L. M. Section and the latter to the certificate given by the Government medical schools, and it was expected that the Council of Medical Registration under the Bengal Medkal Act would recognise those qualifications as registrable under Section 18(a) of the Bengal Medical Act and thus avoid the multiplicity of titles and qualifications which would otherwise be necessary when private schools and colleges were approved by the Council. The resolution further provides that the responsibilities of the State Medical Faculty will be confined to arranging for the examination of students from colleges and schools which had been approved for this purpose by the Council of Medical Registration and as the State Medical Faculty would be an examining body it was desirable that their diploma and licence should have the weight of the Government authority and therefore the Governing Body would be appointed by the Governor-in-Council. All this appears in paragraph 3 of the said Bengal Government Resolution No. 2545-Medical, dated 11-8-1914, promulgating and publishing the statutes and the bye-laws of the State Medical Faculty. These 'Statutes' so-called are really Rules and Regulations.

9. The relevant Article of the Statutes with which this appeal is concerned is 6-C and rules 1 to 5 of the Schedule thereof.

10. Article 6-C of the Statutes provides as follows:

'The Governing Body may, on application to it in the form provided in the regulations set out in the Schedule appended hereto on or before the 7th day of April 1949 and after necessary scrutiny in accordance with the said regulations, certify that a person, who, after having completed a 4 years' course of study in Medicine in any of the undermentioned institutions passed the Final Examination of that Institution or satisfied the examiners at such examination according to the rules of the institution, prior to the year mentioned against each and has been in actual practice of the western system of medicine (Allopathy), since that year, is qualified, to practise western medical science.'

11. Among the 'undermentioned institutions' in Statute 6-C, one is the Dacca National College(Banglabazar) 1937. It may be mentioned here that although the State Medical Faculty originally started by an executive resolution, its status came to be recognised within two years of its establishment by the Indian Medical Degrees Act, 1916. By Section 3 of that Act, the right of conferring and granting certificates certifying that the person certified is qualified to practise western medical science is exercisable by certain authorities specified in the Schedule of the Indian Medical Degrees Act, 1916. The Schedule of the Indian Medical Degrees Act, 1916, included the State Medical Faculty in Bengal of that time. There is further recognition of this State Medical Faculty by Section 11 ot the Indian Medical Council Act, 1956 dealing with the recognition of the medical qualifications granted by the Universities or medical institutions in India read with the First Schedule thereunder which included the State Medical Faculty of West Bengal.

12. Article 6-C of the Statutes requires necessary scrutiny in accordance with the regulations before the Governing Body grants the certificate of practice. The regulations relating to such scrutiny are embodied in the Schedule of this Statute. Rule 1 of the Schedule says :

'The scrutiny referred to in Article 6-C of the Statutes shall be made by a Special Board consisting of these persons from amongst the members of the Governing Body to be appointed in this behalf by the President (hereinafter referred to as the 'Special Board')-'

Rules 4 and 5 provide as follows:

''4. The Special Board may require any applicant to appear before them or to produce any evidence in support of his application when they consider such personal interviews or evidence to be necessary.

5(1) The Special Board shall on completion of such scrutiny as they may think fit record on each application their finding as to whether the requirements of Article 6-C of the Statutes are fulfilled or not.

(2) Where the Special Board's finding is that the requirements of Article 6-C are fulfilled the Governing Body may grant a certificate to the applicant to the effect that he is qualified to practise western medical science.

(3) No such certificate shall be granted in cases in which the Special Board's finding is that the requirements of Article 6-C are not fulfilled piovided that the Governing Body may return any such case to the Special Board for further enquiry.

(4) The decision of the Governing Body shall in all cases be final.'

13. On a proper and fair interpretation of Article 6-C of the Statutes read with the regulations for scrutiny, the following conclusions are irresistible.

14. The Governing Body as such under the Statutes does not constitute the Special Board. Only three persons from the members of the Coverning Body are particularly constituted a Special Board for the purpose of this scrutiny. The scrutiny has to satisfy three essential conditions namely, (1) that the applicant has completed a four years course of study in Medicine in a recognised medical institution; (2) that the applicant has passedthe final examination of that institution and (3) that the applicant has been in actual practice of the western system of medicine (Allopathy) since that year.

15. Under the Statutes and bye-laws the State Medical Faculty is composed of eminent physicians and surgeons and learned members of the medical profession. The profession of medicine has great responsibilities to its own members and to the general public and the State. As one of the great professions, it has its own rules and domestic tribunals dealing with diverse matters pertaining to the profession and its regulation. The body to certify in this present case is the Governing Body of the State Medical Faculty. It is regulated by its own rules, statutes and regulations.

16. The decision of such a domestic body or a tribunal or a board particularly of a professional body can only be interfered with by the Courts of law on three main principles, namely, (1) that such domestic authorities have acted under bias or in bad faith and mala fide, (2) that such authorities have violated the principles of natural justice in the proceedings and conclusions before it and (3) that such domestic authorities have exceeded their jurisdiction under the statutes, rules and regulations, regulating their duties and procedure. These three principles are clearly deducible from the decisions in Thompson v. New South Wales. Branch of the British Medical Association, 1924 AC 764 at 778 and Secretary of State v. Mask and Co. . In this case, therefore, what we have to see is whether any of these three principles have been infringed. If not, then the law is that it is not for this Court to substitute its own view or opinion of the merits of (for?) the decisions of the domestic authorities. It is necessary to state outright that it is not for this Court to act as the Governing Body of the State Medical Faculty and perform the duties of such Governing Body and it is not for this Court to act as the Special Board of Scrutineers in place of the Special Board under the rules and regulations of the Statutes of the State Medical Faculty. It is precisely this error which the trial Court committed by its order usurping the functions of the Governing Body of the State Medical Faculty and its Special Board of Scrutineers.

17. Taking up first the question of bad faith, we find that there is no allegation or averment even of bad faith against the appellants. It is not pleaded in the plaint. It is not even asserted in the evidence. There is even no plea of perversity which the learned trial Judge interred. The perversity was said to be refusal to accept, what the learned Judge thought were, convincing explanations of the plaintiff to correct his errors. This is a delicate ground which the trial Court traded. An explanation which did not convince the professional body of scrutineers, but convinces the learned Judge, may indicate the possibility of two opinions being taken, but that does not by itself prove perversity of the Board of Scrutiny. Here on the facts we have come to hold that far from two views being possible, the view of the Board of Scrutiny is the only possible view and the view of the Trial Court is entirely unsupported by the record and the evidence.

18. The next question is whether the appellants violated the principles of natural justice. It is established and undisputed on the record that they received duly the application, that they scrutinised the application, that they gave interview to the applicant not once but more than once and they even heard the applicant's lawyers which they were not bound to hear. A fair hearing was granted and fair consideration of the record is established and we, therefore, do not think that any principles of natural justice had been violated by the appellants in the proceedings before them.

19. Thirdly, the question is, have the appellants acted beyond the Rules and, therefore beyond their jurisdiction aS already pointed out, the reasons which persuaded the learned Judge to come to this conclusion were that the Special Board did not actually say that the requirements of Article 6-C of the Statutes had been complied with and, therefore, the Governing Body failed to exercise their jurisdiction and issue the certificate due to a misapprehension of their own power. This makes it necessary to examine the records of this case.

20. The plaintiff's application to the Secy, of the State Medical Faculty was dated 6-12-1948. This application was made under Rule 2 of the Schedule under Article 6-C of the Statutes. In this application, the applicant gave his age as 40 years, Admittedly, this was a wrong age. In this application, the plaintiff also stated the year 1928 as the year of his completing the full four years' course of study as required by the Rules. Admittedly, according to the plaintiff, this was again a second wrong statement in the same application. Thirdly, the plaintiff stated the year 1928 as the year of his passing the final examination which on the plaintiffs admission again was the third false statement in the same application. This application contains a declaration by the plaintiff that these statements, now admitted by him to be false, were 'true to the best of his knowledge and information.' Two certificates by doctors had to be attached to this application and they also certified that the plaintiff had been in actual practice since the year 1928 though admittedly according to the plaintiff now on the evidence, he started practice from 1925.

21. The Special Board of Scrutiny on the 13th April 1949 made the following order:

'Name does not appear in the 1928 list But a similar name appears in the list for 1925. To clarify the year of passing and identity established.'

The Special Board naturally was not satisfied with the truth of the statement of the petitioner in his application to the State Medical Faculty. They could have rejected the plaintiffs application straightaway but they did not do so but gave the plaintiff a chance to appear. By pointing out that his name did not appear on the 1928 list at all but a similar name appeared in the 1925 list, the plaintiff was given a chance to clarify his year of passing and to establish his identity. What does the plaintiff do? He makes a second statement on the 14th May 1949. There he says that his year of admission was December 1823 and the years of his study were 1925-1928,being the four years course of study and then he corrects himself again to say that the year of his admission was 1921 and that he passed Ms final examination in 1926. He signed this' statement.

22. Naturally, on this state of affairs, the Special Board made the following order on that date:

'Interviewed. States that he passed in 1928 having joined in 1923. Name does not appear in 1923 First or Second Year. Next he says that he joined in 1921 and passed in 1926. But the certificate given in 1928 in his own statement in the application is 1928. He could be found and he has been making prevaricating statements none of which can be believed. His name does not appear in the School Rolls of 1928. Rejected'.

23. We are satisfied that this order fulfils the requirements of Rule 5(1) of the Schedule to Article 6-C of the Statutes of the Medical Faculty which says that the Special Board shall record their finding whether the requirements, of Article 6-C of the Statutes are fulfilled or not. We are in no doubt in our mind that this order means that the Special Board disbelieved the plaintiff and thereby in effect was recording a finding that the requirements of Article 6-C of the Statutes were not fulfilled. They have not used the language that the requirements of the Statute are not fulfilled but they have made no secret of what they were doing which was rejecting the application on the ground that the statements, were not proved and that the statements were contradictory and on the ground that the applicant could not be believed. There was, therefore, no failure by the Special Board on the terms of this order either to exercise their jurisdiction or to act within, the limits of Rule 5(1) quoted above.

24. This is not the end of the matter. One Mr. Chintaharan Roy, an Advocate and one Dr. Section K. Datta, were again allowed to appear on 15-8-1950 before that Special Board to represent the case of the plaintiff whose application under Article 6-G had been rejected by the Board and a revision also after the examination in the presence of the plaintiff had been refected. These facts are important as will appear from the record of the Special Board, which says:

'Mr. Chintaharan Roy and Dr. Section K: Datta appear before the Special Board to represent the case of the above person whose application under Article 6-C had been rejected by the Board and a revision was after examination in the presence of the applicant rejected'.

Here even if one is going to take a technical view of She language of the order of the Special Board, the words used are 'application under Article 6-C had been rejected'. This record was made on 15-3-1950. The contention of the Advocate was recorded there to say that the applicant joined the college in 1921 and passed in 1926 and his other statements were bona fide mistakes. In this order, the Special Board says that

'it was then pointed to Mr. Roy, the Advocatethat the year 1928 was the year of the issue of thecertificate and not the year of passing the examination and there could not be any reasonable excusefor talking it otherwise'.It is also recorded there :

'Admission 1923, First Year 1925, Second Year1926, Third Year 1927 and Fourth Year 1928. Later i.e himself prevaricated by saying that his admission was in January 1921'. It proceeds to record -

'A person by this name had passed in 1925 and if he be the same person, then according to the age stated by the applicant in his application under Article 6-C, he must have been only twelve years and a few months old in 1921 June. This was absurd'.

25. This order of 15-3-1950 then records Mr. Roy stating that the age of the petitioner was also wrong. It is difficult to see why the age was wrong. The plaintiff's explanation of the year of passing being wrong was said to be that the certificate given to him in 1928 misled him into thinking that to be the year of his passing, that he took the certificate three years after and the delay of three years was due to some strike in the College although the evidence is not clear as to how long the strike lasted and whether the certificate could not be granted during that time. But it is not possible for a man to forget his age whatever may be his forgetfulness about the year of his passing the final examination in medicine. Thereafter this order of 15-3-1950 proceeds to say:

'It was then pointed out to Mr. Roy that to accept his contention would mean that the applicant's statement about his study in his application, his statement about age etc, were all untrue, although he made a declaration on it that these were true to his knowledge and information'.

26. This is clear enough indication that the Special Board disbelieved completely the applicant and his statements about his study, about his age and other informations that he was required to submit under the Regulations with his application. They all formed the subject-matter of scrutiny. After all, it is the Special Board which has to be satisfied that the applicant had (1) completed the four years' study; (2) passed the Final Examination and (3) had been in actual practice of the western science of medicine since his passing and if the applicant fails to satisfy the Special Board of Scrutiny on these points of fact then I do not see why they should be forced to do so because the Court might take a different view of the facts.

27. It has been contended by Mr. Dutt on behalf of the respondent that the further reasoning which the Special Board gave in that order of the 15th March 1950 about medical ethics was wholly uncalled for. That ground was:

'It was also pointed out to Mr. Roy that in any case (ha person would be a person of such easy conscience that he would make any statement or give any certificate or treat any case to suit his convenience and in a very irresponsible manner and this alone would render him an undesirable person for admission into the medical profession which has its own penal and ethical code'. It has become the fashion in the present age to ridicule those who talk about ethics and so was the fate of the Special Board in the hands of the learned Advocte for the plaintiff. He criticised this ground as not germane or included within the object and purview of scrutiny under the Regulations. His plain contention was that medical ethics were outside the three subjects which the Board of Scrutinyhad to enquire. Without entering into any discussion or making a decision on the subject of medical ethics and assuming that Mr. Dutt's contention is correct on the point, this Court is of the opinion that it does not vitiate the order of the 15th March 1950 because it is only at the conclusion of that order that it proceeds to say; 'It was also pointed Out'. But the true reasons cannot thereby be in doubt which stand out clearly expressly and broadly and they all come within the purview of scrutiny contained in Article 6-C of the Statutes.

28. On this state of records, therefore, we do not think that the learned trial Judge's comments on this order that these observations were 'pontifical' or that the Scrutiny Board was 'perverse' were warranted or justified. It was a strange certificate which the plaintiff produced. Exhibit B is supposed to be the diploma. It is signed by the plaintiff along with the Principal and the Secretary of the Dacca National College. We have not come across a Degree or a Diploma signed by the person himself. Be that as it may, this Diploma actually uses this language that the plaintiff

'is hereby declared to be Fellow of the Medical Branch of this College -- F.M.B. (NAT) from this 29th day of January, one thousand nine hundred and twenty eight and herein we give our signatures and set in the seal of the College'.

Apart from the plaintiff himself, it is signed by the Principal, the President and the Secretary. The Diploma expressly declares him to be a Fellow from 29-1-1928 although the plaintiffs case is that he was a Fellow from 1925. It is difficult to see, and no explanation is forthcoming, why even though the Diploma was given three years later on 29-1-1928, due to alleged strikes in the college, it should not state the actual date from which he became a Fellow in 1925. In addition to this there is a certificate for study for four years which is Ex. C. It is signed by ten persons in addition to the Principal, the Hospital Superintendent and the President. These ten persons are teachers in different subjects, such as Anatomy, Physiology, Medicine, Surgery, Midwifery, Pathology, Hygiene, Jurisprudence, Homoeopathy and Materia Medica. Of these ten persons who certify the four years' study, the only witness who was called by the plaintiff was the Teacher of Anatomy called Dr. N. Pal. Dr. N. Pal definitely stated in his evidence that the plaintiff was not a student during his time and he was appointed a lecturer in Anatomy only in 1926. Finally in answer to Q. 36 Dr. Pal says that he did not know the plaintiff and he has no personal knowledge whether the plaintiff was a student of this particular college between the years 1921 and 1926. It is not explained in evidence why the plaintiff did not call any other teachers out of the ten who could have testified to his actual four years' study according to the rules in the Schedule to Article 6-C of the Statutes of State Medical Faculty.

29. On this evidence and on the series of admitted contradictions of the plaintiff we fail to see how it could possibly be said that the Governing Body or the Scrutiny Board acted in any Way unreasonably in not holding that they were satisfied either about the plaintiffs four years study or about his identity. At any rate, the decision of the defendants, whether of the Governing Body or of the Scrutiny Board, cannot on the facts of this case be said (1) to infringe the ruins or regulations of the relevant Statute, or (2) to be in violation of any principles of natural justice, or (3) perverse, or (4) in any way in excess of any jurisdiction of the said Board.

30. The nature of relief granted and the decree given cannot be supported. This problem has to be judged in the light of the particular Statutes which deal with the duties and functions of the Governing Body and the Special Board and secondly, in the light of the general law an legal relies permissible in suits of this kind.

31. The ground may be cleared first by one more reference to the Statutes and the Rules thereunder. The Governing Body has no duty cast upon it under Article 6-C to issue a certificate before the required scrutiny. In fact Rule 5(3) definitely prohibits the grant of such certificate where the Special Board finds that the requirements of Article 6-C are not fulfilled. The Governing Body, therefore, is expressly prohibited in that event. As we are of the opinion that the Special Board in this case did find that the requirements of Article 6-C were not fulfilled in effect and in substance, no liability attaches to the Governing Body under the Rule. The only power which the Governing Body has under Rule 5(3) is that it may return any such case to the Special Board for further enquiry but that is discretionary. Under the Statute and the rules, therefore, we are unable to hold on the facts that the Governing Body can be made liable by this Court. In our view this Court on these Special Statutes cannot grant a decree ordering the Governing Body to grant a degree or a Certificate of practice.

32. Mr. Banerjee, learned Counsel for the appellant, has drawn our attention to the observations of Lord Atkinson in the Privy Council decision in 1924 AC 764, at p. 778:-

'In their Lordships' view if any body rightly convened and properly composed is burdened with the discharge of some Judicial or quasi-judicial duty affecting the rights, liberties or properties of a subject, makes, as the result of a just and authorized form of procedure, a decision it has jurisdiction to make, that decision if legal evidence be given in the course of the proceeding adequate to sustain it, cannot in the absence of some fundamental error be impeached or set aside, save upon the ground that this body was interested, or biased by corruption or otherwise, or influenced by malice in deciding as it did decide'.

This represents a succinct classical exposition ofthe principle of law which should govern the courtsin interfering with decisions of these domesticauthorities. Nothing is here on the record of thepresent case which in any manner suggests thatthere is any fundamental error. In fact wehave tried to show that the decision of the SpecialBoard in this case was eminently reasonable andsensible. There is also nothing on the record tosuggest any interest, bias or corruption or malice.

33. This view that we are taking is also supported by other well-known decisions quoted in the Third Edition of Halsbury's Laws of England, Vol. 26 at page 72, such as General Medical Council v. Spackman, 1943 AC 627, Daty v. General Medical Council, 1952-2 All ER 666 and Ong Bak Hin v.General Medical Council, 1956-2 All ER 257. To complete the references we need only mention the well-known principles on this point laid down in Board of Education v. Rice, 1911 AC 179, at p. 182, and also by our Court of Appeal in B. C. Das Gupta v. Bijoy Ranjan Rakshit, : AIR1953Cal212 .

34. The nature of relief given and the decree granted in this case cannot also be supported on the general law. Lord Thankerton of the Judicial Committee of the Privy Council in , formulated the guiding principle on the point in the following terms:-

'It is settled law that the exclusion of the jurisdiction of the civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure'.

35. The Privy Council in that case was considering a point under the Sea Customs Act. In that case also under Section 188 of the Sea Customs Act every order passed in the appeal was supposed to be final. But notwithstanding that provision the Privy Council holds that such order will be reviewable by the civil courts if it be found that the statutory tribunal had not acted in conformity with the statute or with the fundamental principles of judicial procedure.

36. Here in this case in spite of Rule 5(4) that 'the decision of the Governing Body shall in all cases be final', if we had come to the conclusion that they had not acted according to the Statutes or had acted in violation of the fundamental principles of judicial procedure, we would have held that the finality of their decision under the Rules could not have been an obstacle in our way.

37. But the more fundamental question is whether this Court can or should create doctors by judicial verdicts. In this age of multi-purpose activities, the Courts have also become multipurpose in their outlook. The Courts are granting licences, running buses, managing companies, and almost carrying on administration of various State and Government departments by their numerous administrative writs, fiats and orders under the Constitution. The question here is whether this Court can act as a Kind of a shadow university to confer medical degrees and diplomas. Slowly but imperceptibly, it seems that Courts in India have started conferring degrees on disappointed Scholars and students. Judicial decrees granting academic degree are certainly an innovation. The recent case of the Assam High Court in Himenclra Chandra Das v. Gauhati University, 58 Cal WN 54 : (AIR 1954 Assam 65), did it under Article 226 of the Constitution of India and not by way of a declaratory suit as in the present case. The Assam High Court in that case issued a writ of mandamus upon the Gauhati University to declare and announce appropriately that the petitioner was a Bachelor of Science of the Gauhati University with Second Class. This found a sympathetic echo in our Courts in Tapendra Nath Roy v.University of Calcutta, : AIR1954Cal141 where also under Article 226 of the Constitution of India a writ of mandamus issued upon the University of Calcutta to declare and announce the petitioner to have passed the Pass Course of the B. Sc. Examination and to issue him the necessary certificates. The present decree under appeal attempts to do so not under the high constitutional writs provided by Article 226 of the Constitution but by the more general and unambitious process of Section 9 of the C. P. C. read with the declaratory and injunctionary reliefs under the Specific Relief Act. The situation was not quite so exciting at the beginning because the first tremors of judicial conscience did not actually usurp the functions of the universities to grant degrees and diplomas. What they did in the first stage was to set aside and quash the decisions of universities and lay down the law or the principles which should govern such decision and send back the case to the proper authority, the university, or other educational institutions to decide according to the law so laid down. That seemed sensible enough. This was what was done in such cases as in Dipa Pal v. University of Calcutta, decided by my learned brother in : AIR1952Cal594 , and confirmed on appeal in 56 Cal WN 730 (SB) University of Calcutta v. Dipa Pal, Section K. Chose v. Vice-Chancellor, Utkal University, : AIR1952Ori1 , Samarendra Prosad v. University of Calcutta, : AIR1953Cal172 , King v. Chancellor, Master and Scholars of the University of Cambridge, (1723) 93 ER 698 and many other cases. To us this appears to be the correct approach. When Universities go legally wrong in their decisions this Court can set aside their illegal decisions and ask them to act according to law but cannot go to the length of usurping their statutory authority and obligation to confer degrees. But these case relate either to writs under Article 226 of the Constitution or the prerogative writs in England. The miscellaneous kinds of orders permissible under the constitutional provisions of Article 226 may not in their plenitude and variety apply to the reliefs that can be claimed under Section 9 of the C. P. C. read with Section 42 of the Specific Relief Act and other provisions relating to injunctions. These eases also can be distinguished by the fact that they involved breaches of the principles of statutory rules and proceeded on admitted facts. For instance, in the Assam Case, the admitted facts were certain marks which were not in dispute but the only question was whether according to a Particular interpretation of the Rules of the Gauhati University, the student could be said to have passed. The Court under Article 226 of the Constitution came to the conclusion that on the question of law and interpretation of the Rules, the student stood passed. That, however, is a totally different set of facts than in the present appeal before us. For this Court, on the other hand, to do the functions of the university by deciding disputed questions of fact of academic eligibility which the Governing Body and particularly the Special Board had to decide whether the person, in fact, had actually completed the four years' course of study in medicine or whether he had been, in fact, in actual practice ever since he passed the Final Examination, will not only be an unwarranted usurpation of the statutory rights of universities and academic institutions but will also be an assumption of a kind of responsibility which this Court has neither the requisite machinery nor the requisite' ability to discharge.

38. That a suit of this nature does not He was decided long ago in Ram Ugrah Singh v. Benares Hindu University : AIR1925All253 , where a candidate sued the University asking first that he should be declared to have, in fact, passed the previous LL.B. Examination of 1924 and secondly for an injunction to promote him to the Final University Class. The Allahabad High Court held that no civil Court could entertain a suit of such a nature following the decisions in re G. A. Natesan, ILR 40 Mad 125 : (AIR 1918 Mad 763), Leslie Willams v. Haines Thomas Giddy 15 Cal WN 669 (PC) , Thomson v. University of London, (1864) 10 LT 403 and other authorities. Sir Theodore Piggott J., who delivered the judgment in that case, discussed and analysed Section 9 of the C. P. C. and the relevant Sections 42, 54 and 55 of the Specific Relief Act at great length. The learned Judge at page 447 of the Report expressed the view that the case was fairly simple but was in danger of being smothered under the weight of legal learning which was brought to bear upon its elucidation. Without adding any further weight to that legal learning I shall be content to quote the learned Judge at pages 448 and 449 of that report:

''No Court of law can possibly entertain a claim on his part that he has passed a certain examination when the authorities of the University conducting the examination and lawfully empowered ,'to adjudicate upon its results declared him to have failed. The questions apply a fortiori to the further relief sought by way of injunction. As a student of the Benaras Hindu University and still more as a post graduate student holding by virtue of his degree a certain status in the corporate body known as the University and bound as Such to set an example of discipline and good conduct to members of the University of lower status than himself, the plaintiff is not entitled to challenge the decision of those in authority over him that it is expedient for him, if he desires to proceed to the degree of Bachelor of Laws, to spend a second year in preparing for he previous LL.B. Examination, before he passes on to any higher class. The University must have absolute discretion over its students in the matter of the class to which the students are admitted. An injunction directing the authorities of the University, against their will and against their better judgment, to place a young man in a class where he will receive instruction by which he is not, in the opinion of those authorities, as yet properly qualified to benefit is, to my mind, simply unthinkable'. I entirely associate myself and' agree with the views expressed above. A similar view was taken by the decision of the Lahore High Court in Taj Ahmad v. University of the Punjab, ILR 2 Lah 197 : (AIR 1922 Lah 232). There also it was held that the plaintiff, who gained the required number of marks but who was failed on the ground that he was detected in cheating during the examination, had no remedy against the University by civil action and Leslie-Tames J., distinguished Darasha Rustomji's case in ILR 23 Bom 465 on the well-known ground that in that case there was infringement of a statutory obligation by the University. That was a case under Section 45 of the Specific Relief Act.

39. We are inclined to take the view that so far as a cavil suit is concerned, the better opinion is expressed by the Allahabad and Lahore decisions. We shall only add this that in this plaint two declarations and two injunctions are sought for. Thefirst declaration that the plaintiff is entitled to a certificate cannot be granted under Section 42 of the Specific Relief Act because the statutory authority which can grant such a certificate is the Governing Body which this Court is not. It can only set aside the decision of the statutory body like the State Medical Faculty only on the grounds which we have discussed above. Under those grounds, the second declaration which the plaintiff seeks in the plaint could have been made if the decision was mala fide or bassed or unlawful, irregular or without jurisdiction in the manner and on the grounds discussed above. Sir Lawrence Jenkins both from this Court as well as from the Privy Council, as in the two decisions of Deokali Koer v. Kedar Nath, ILR 39 Cal 704 at p. 709 and Sheoparson Singh v. Ramnandan 43 Ind App 91 : (AIR 1916 PC 78), protested against the undesirability of granting 'multiform and at times eccentric declarations' by the Courts. Then comes the mandatory injunction which the plaintiff seeks in the plaint for commanding the appellants to issue the certificate on the same reason and same ground. On the grounds discussed in : AIR1925All253 such an injunction cannot be granted. Whether it is relief by way of a declaration or relief by wayof an injunction, such reliefs are always discretionary with the Court. We would, in any event, have 'hesitated to exercise our discretion in favour of the plaintiff on the facts such as we have found in the present case.

40. For these reasons, we allow the appeal and set aside the decree and judgment of the trial court and dismiss the suit.

41. The learned Advocate for the respondent submits that having regard to the facts of this case, his client may not be saddled with costs. The learned counsel for the State does not object and does not press for costs. In that view of the matter,we made no order as to costs but this is made clear that the lower court's order for costs is also setaside.

Bose, J.

42. I agree;


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