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University of Calcutta Vs. Sm. Sweety Agarwal and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 214 of 1979
Judge
Reported inAIR1983Cal427
ActsConstitution of India - Article 14; ;West Bengal Medical and Dental Colleges (Regulation of Admission) Act, 1973 - Sections 6(1), 7(1) and 7(4)
AppellantUniversity of Calcutta
RespondentSm. Sweety Agarwal and ors.
Advocates:Sadhan Gupta, Addl. Adv. General
Cases ReferredM. Pentia v. Muddala Veeramallappa
Excerpt:
- ramendra mohan datta, j.1. the appea] arises from the judgment and order dated april 16, 1979 passed by t. k. basu, j. inter alia, directing a writ of mandamus to be issued in the state government authorities command-ing them to admit the petitioner to the m.b.b.s. course of study and giving consequential directions thereon.2. the facts shortly are that the respondent no. 1 sweety agarwal passed the higher secondary examination in 1976 in the first division. af that relevant time the higher secondary course was up to the eleventh class in the school. thereafter the respondent appeared and passed the joint entrance examination held in 1976 for admission to the pre-medical course. the respondent was selected for admission to dr. r. ahmed denial college, calcutta. the respondent got herself.....
Judgment:

Ramendra Mohan Datta, J.

1. The appea] arises from the judgment and order dated April 16, 1979 passed by T. K. Basu, J. inter alia, directing a writ of mandamus to be issued in the State Government authorities command-ing them to admit the petitioner to the M.B.B.S. course of study and giving consequential directions thereon.

2. The facts shortly are that the respondent No. 1 Sweety Agarwal passed the Higher Secondary Examination in 1976 in the First Division. Af that relevant time the Higher Secondary course was up to the eleventh class in the school. Thereafter the respondent appeared and passed the Joint Entrance Examination held in 1976 for admission to the Pre-Medical Course. The respondent was selected for admission to Dr. R. Ahmed Denial College, Calcutta. The respondent got herself admitted to the Pre-Medical Course at the said Denial College after completion of necessary formalities in that regard including execution of a bond dated 11th Nov. 1976 for serving the Slate Government for a stipulated period after the completion of the said course of study.

3. The said Bond required the respondent, inter alia, as follows:

'Now the condition of the above written bond is such that if the said student Sweety Agarwal shall duly, diligently and, regularly pro-secule her studies in the said Dr. R. Ahmed Dental College with a view to obtain the degree of B.D.S. from the University of Calcutta and that after having passed the said B.D.S. examination of the University of Calcutta the said student upon being required by the Government within (Two) 2 months enter into such service of the Government at any place other than the town of Calcutta/in the Districl of Calcutta as the Government may desire the said student to do so and shall serve the Government duly, diligently and faithfully for three years. After joining such service of the Government as she may be directed by the Government for a minimum period of three years and that in case of any default on the part of the student to prosecute her said studies duly, diligently and faithfully or fail to serve the Government if so desired after passing the Examination of the University of Calcutta for a period of three years as aforesaid and in such event the student/guardian and/ or the surety pay to the Government the said sum of Rs. 5,000/- (Rupees five thousand) forthwith on demand then the above written obligation shall be void and inoperative or otherwise the same shall remain in full force and virtue.'

4. The respondent completed the said course of studies and appeared at the Pre-Medical Examination of the Cal-cutta University in 1977 and duly passed the same in the First Division. It is to be noted that she passed, the Pre-Medi-cal Examination as an existing student for the said Dental Course from Dr. R. Ahmed Dental College. At this stage certain legislations were enacted concerning the Medical studies in the State of West Bengal. On Oct. 15, 1977 the West Bengal Medical and Dental Colleges (Regulation and Admission) Repealing Act, 1977 came into force. By this Act the West Bengal Medical and Dental Colleges (Regulation and Admission) Act (XXXVI of 1973) was repealed. On Jan. 12, 1978 The Calcutta University (Temporary Supersession) Ordinance 1978 came into effect.

5. In this background on March 21, 1978 an advertisement was published in the 'Statesman' inviting applications for admission to M.B.B.S. and B.D.S. Courses of study for the session 1978-79. The opening words read as follows:

'Joint Entrance Examination for Admission to 1st Year M.B.B.S. and B.D.S. Course in Medical and Dental Colleges in West Bengal. Session 1978-79.'

Thereafter the names of the Medical Colleges appeared in which No. 8 was Dr. R. Ahmed Dental College. The other seven were Medical Colleges of different parts of West Bengal. The advertisement thereafter continued :

'A Joint Entrance Examination for admission to the 1st Year M.B.B.S. and B.D.S. Course in the above Medical and Dental Colleges in West Bengal, for session 1978-79, will be conducted by the Wesl Bengal Board, of Examinalion for Admission to Engineering Degree College, C/o. B. E. College, Howrah-711103 (West Bengal) (sic) from June 2 to 4, 1978 in the subject of *********

*****Applications in the prescribed form are invited for admission to the abovementioned Joint Entrance Examination. Prescribed application form is obtainable from any of the 8 Colleges noted above on payment of Rs. 2/- each in cash and on production of satisfactory evidence that the candidates passed or appeared at or will appear at the qualifying examination i.e. Higher Secondary (10 plus 2 year course) Examination of the West Bengal Council of Higher Secondary Education or any other equivalent examination recognised as such by the concerned University in West Bengal *****'

Regarding minimum educational qualification it is provided as follows:

''A pass in the Higher Secondary (10 + 2 year course) Examination of the West Bengal Council of Higher Secondary Education or any other equivalent examination recognised as such by concerned Universities (Calcutta, North Bengal and Burdwan in West Bengal with the prescribed subjects English, Vernacular (any modern Indian Language) as recognised by the said Universities, Physics, Chemistry and Biological Sciences. Candidates who will appear this year at such examinations or candidates who already parsed or appeared at any of such examination will be provisionally permitted to appear at the Joint Entrance Examination on payment of registration fee of Rs. 16/- each.'

6. It will appear from the above that it was made clear that the permission to sit in the said examination would be provisional. Then comes the important provision with a special note as follows :

'Permission to appear at the Joint Entrance Examination or securing of high marks in it does not constitute any guarantee for admission to any Medical/ Dental College. Admission of a candidate to any Medical/Dental College will not be allowed unless he has passed any of the qualifying Council/Board/Univer-sity Examination with the prescribed subjects and has fulfilled other prescribed requirements.

N. B.: Existing students of Medical and Dental Colleges in West Bengal or students who were already admitted to any of such Colleges on furnishing bonds that they will serve the State Government anywhere in the State for a minimum period of 3 (three) years after passing out of the Dental/ Medical Colleges are ineligible to apply.'

7. It will appear from the aforesaid that the said special note created a bar to apply in respect of a candidate in the said Joint Entrance Examination. In so far as the respondent Sweety Agarwal was concerned, knowing full well that she was not eligible to apply, she still applied. The respondent was conscious of the actual posilion, as admitted by her in para 13 of her petition: but her explanation was that her application was duly entertained by the authorities and an Admit Card was issued to enable her to appear at the said Joint Entrance Examination for selection for admission to the M. B. B. S. course and she was allowed to appear at the said examination and her result was also published along with those of other candidates. On her own showing she had no right to apply and to sit in the examination and, in any event, she also knew of the fact that such permission to appear at such examination was provisional. According to the respondent before us, the Central Selection Committee duly scrutinised her application before acceptance and no objection was raised as to the fact that she was a student of the Dental College or, for that purpose, she had executed a bond to serve the State Government on completion of her studies in the B.D.S. course. It is contended that after such scrutiny and by issuing an Admit Card in her favour the respondents, meaning thereby the authorities as also the appellant herein, had waived and/or withdrawn and/or relaxed the purported condition as to ineligibility on her part to apply for admission to the said examination in terms of the said advertisement. In other words, she wants to rely wholly on the Admit Card which should be considered as free from any stipulation attached to the said advertisement. But she also contends that once the Admit Card, is issued there could be no objection to her eligibility to sit at the said examination and it could not be contended by t'he authorities concerned that the issuance of such Admit Card was subject to further scrutiny and action. Accordingly, she contends that the stipulation in the Admit Card itself being Item No. 5 thereof could not be of any effect and the respondent authorities could not fall back upon the same for the purpose of disqualifying the candidate. The said clause in the Admit Card reads as follows:

''Generally all applicants who applied with registration fee for Joint Entrance Examination are provisionally permitted to sit for the Entrance Examination. After examination on scrutiny if it is found that an applicant is over-aged or otherwise ineligible, he will not be considered for admission even though he may have sat for the Joint Entrance Examination and obtained qualifying marks in the examination.' In the meantime the Medical members of the Calcutta University Council drafted the Transitory Rules for ad-mission to the First Professional M.B.B.S. course for the session 1978-79. On the basis thereof the Calcutta University Council by its resolution dt. 9th March, 1978 framed the Transitory Rules which are set out below:

'136. Considered the proceedings of the meeting of the Medical members of the C. U. Council dated 7-3-78.

Resolved -- (1) That the following transitory rules for admission to the First Professional M.B.B.S. course of studies during 1978-79 be adopted.

(a) Candidates passing the Pre-Medi-cal Examination for the M.B.B.S. Course of Calcutta University only will be directly admitted.

(b) Candidales passing the 10 + 2 Higher Secondary Examination of West Bengal and equivalent examination with English, Vernacular, Physics, Chemistry and Biological Science will be eligible provided that they must pass Mathematics of 10 + 2 Course or equivalent examination before appearing at the 1st Professional examination, if they did not pass in Mathematics.

(c) Candidates from other Universities or Boards passing I.Sc., Pre-Medical, Pre-Professional or 1st year B.Sc. Course or equivalent examination (Provided it is a public Examination) with English, Vernacular, Physics, Chemistry and Biology will be eligible provided they must pass Mathematics of 10 + 2 Course or equivalent examination before appearing at the 1st Professional exami-nation if they did not pass in Mathematics.

(d) Such candidates from outside West Bengal passing without a Vernacular in their 19 + 2 or Pre-Medical or Pre-Professional or 1st year B.Sc. or any other equivalent examination must pass a Vernacular or Alternative English of the 10 + 2 Course or equivalent examination before appearing at 1st Professional examination.

(e) Candidates passing Pre-Medical examination for B.D.S./B.M.S. Course will not be eligible for admission to M.B.B.S. Course.

(f) Pre-Medical Course of Studies will be abolished from the session 1978-79. But Pre-Medical Examination for 1979 only will be held for plucked can-didates who are eligible far second chance.

(2) That the following rules of eligibility for admission to the B.D.S. Course of Study during the session 1978-79 be adopted.

(i) Candidates passing the Pre-Medical Examination for the B.D.S. Course of Calcutta University will be directly admitted.

(ii) Candidates passing the Higher Secondary Examination (10 + 2) Course or equivalent examination with English, Vernacular, Physics, Chemistry and Biological Science will be eligible.

(iii) No. (d) of M.B.B.S. rules will also apply.

Sd/- N Sil.

21-3-78.'

8. It is to be remembered that the above Rule 1 (e) has been struck down by the court below as meaningless, unworkable and ultra vices. Regarding Rule 1 (a) and 1 (e) it has been sought to be contended that the rules provide as though there were two Pre-Medical Course of Studies, one for M.B.B.S. course and the other for B.D.S./B.M.S. Course. The learned Judge of the court below has also proceeded on that basis but, to my mind, reading the transitory rules as a whole, the position appears to be otherwise. Clause 1 (e) obviously must refer to the existing students who have already passed the Pre-Medical examination for studying in B.D.S./B.M.S. course and it has been made clear that such students would not be eligible for admission to M.B.B.S. course i.e. for the ollowing or the subsequent years of examination. The basic idea is that such existing students of the B.D.S./B.M.S. course had already executed bonds by which they bound themselves for future course of study and had been prosecuting their studies on that basis. They would therefore be under an obligation to pursue their studies in such course. They could not come out leaving their said course of study and thereby making themselves eligible for admission to M.B.B.S. course. Reading Clause 1(e) I do not see any ambiguity in the same. Surely a distinction was made by the Calcutta University in respect of candidates studying for M.B.B.S. course and candidate studying for B.D.S./B.M.S. course of study. Obviously, most candidates would only think of studying the Pre-Medical course for studying the M.B.B.S. course but everybody may not be successful in getting that opportu-nity. Some might tee allotted to the B.D.S. course of study for the particular session and if they have taken ad-mission for study in such course and executed a bond they must be taken to have aeeepted the position in so far as their course of study was concerned. The language in Clause 1(a) and 1(e) may not be as: happy as it is ordinarily to be expected when a legislation is drafted by expert draftsmen specially trained for that purpose and by the legislatures. But these transitory rules have been drafted and passed by the Medical Members of the Calcutta University Council who are not expected to have that expert knowledge which ordinarily the experts in the legislative department possess. Accordingly, in the language Denning L. J. as quoted by the Supreme Court in M. Pentia v. Muddala Veeramallappa : [1961]2SCR295 : 'A Judge should, ask himself the question how, if the makers of the Act had themselves come across thus ruck in the texture of it, they would have straightened it out He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases', to give the expressions used therein the correct meaning. The Rules, accordingly, have to be liberally construed.

9. In the transitory rules classification has been made regarding the ad-mission for the First Professional M.B.B.S. Course of study and for admission to B.D.S./B.M.S. course of study. By Clause 1 (e) it has been enacted that the candidates for the M.B.B.S. course of Calcutta University would have some limited scope. They must pass the pre-Medical examination for M.B.B.S. Course meaning thereby that they have been selected for M.B.B.S. Course of study and on that basis they can be ad-mitted. But in respect of the candidates who have not been so selected but have been selected for B. D. S./B. M. S. course of studies it is made specifically clear that such candidates will (not) be eligible for admission to M. B. B. S. course of studies. I do not know why Clause 1 (e) has been held to tee meaningless and unworkable and why it has been held to be ultra vires. It will fee mis-reading the rules if they would tee read as Pre-Medical examination for B.D.S./B.M.S. course or Pre-Medical examination for M.B.B.S. course. There was one Pre-Medical examination for both but selections were made on the basis of the marks obtained and also on the basis of the quota which prevailed in respect of the different zones or districts or for special consideration such as scheduled castes, scheduled tribes were prescribed and so on. The transitory rules have to be read as a whole. Clauses 1(a) and 1(e) have to be read together.

10. It appears that the authorities concerned at every stage had taken precautions and intimated the candidates concerned that unless the terms imposed were fulfilled or complied with the authority concerned had the right to disallow the candidates regarding admission of such candidates in such course of studies even though they might have sat for the Entrance examination and obtained the qualifying marks in the examination.

11. On or about Sept 7, 1978 the results of the Joint Entrance Examination for 1978-79 session was declared and it was found that she had passed in the said examination by obtaining qualifying marks. On Oct. 19, 1978 a list of candidates who were found eligible for admission to the M.B.B.S. Course was published and the classes were to be started on and from Nov. 1978. The respondent Sweety Agarwal's name was not found in the list published and being aggrieved, she moved the Writ Court and a Rule Nisi was issued and an ad interim order dated Nov. 8, 1978 was passed on the authorities concerned directing them to get her admitted to the M.B.B.S. course. Thereafter affidavits were filed and the writ matter was heard by the court below.

12. It appears that she was admitted to the M.B.B.S. Course under the order of the Court and she has been prosecuting her studies in that course ever since obviously without being obliged to execute any such bond which she executed previously as stated hereinabove while getting her admission in the B.D.S. course of studies. In other words, she is in a more advantageous position than the other students prosecuting their studies after being admitted by the authorities concerned in the regular manner. Happily, however, the learned Additional Advocate General Mr. Sadhan Gupta appearing on behalf of the appellant on behalf of his client has given an undertaking in writing on 18th Aug. 1982 in respect of the nine pending matters including the matter herein in the following terms :

'I hereby undertake to court on behalf of the University of Calcutta, the appellant abovenamed in the aforesaid appeals that irrespective of the result of the appeal the appellant University of Calcutta will not interfere with the respondents students in the aforesaid appeals in the matter of their pursuing their respective M.B.B.S. Course of Studies in their respective Medical Colleges of West Bengal, where they had been admitted under the orders of this Hon'ble High Court. They will be deemed to have been admitted in normal course and, will be permitted to complete their course of studies as so admitted and to appear in all relevant examinations without any interference on the basis that they were once admitted to B.D.S. Course of Study in the Dental College. Their results will be published in the usual course and they will be admitted to the M.B.B.S. Degree if they are successful in their examinations. The University will not make any objection as to their admission to M.B.B.S. course in respective Medical Colleges or on any account whatsoever.

(S. Gupta)

18-8-82.

Additional Advocate

General appearing on behalf of University,

Calcutta.'

By an order of the Court made herein the aforesaid undertaking has been recorded in this proceeding. That being the position, by virtue of the aforesaid undertaking the course of studies in respect of the candidates mentioned therein including Sweety Agarwal would not in any way be affected by reason of the said candidates being admitted under the orders of the court but it must be clear that such candidates have to execute fresh bond in the manner they executed previously with suitable modification as recorded in the minutes dictated today in the first sitting of the Court within a period of four weeks from date of furnishing the relevant forms failing which the undertaking in respect of such defaulting candidates will stand discharged.

13. In this connection it would be relevant to look into some of the provisions of the West Bengal Medical and Dental Colleges (Regulation of Admission) Act, 1973 being West Bengal Act XXXVI of 1973 under which the said Joint Entrance Examinations were held, and the formalities that were required to be performed for admission in any of the Medical or Dental Colleges provided therein. Such provisions would show under which authority the Joint Entrance Examination was held and how the admission to such Medical or Dental College would be governed. The definition section thereof being Section 2(c) defines 'Joint Entrance Examination' meaning the competitive examination held for the purpose of admission to the Pre-Medical Course in the Medical and Dental Colleges in West Bengal. The said section also defines 'Pre-Medical Course' which means the course of studies prescribed by any University in West Bengal for the preliminary examination of a student after his admission in any of the Medical or Dental Colleges. Then comes the definition of 'qualifying examinations' which means the examinations which are recognised by any University in West Bengal for the purpose of admission to the Pre-Medical Course in any of the Medical or Dental Colleges. In Clause (h) of Section 2 the Medical or Dental Colleges have been enumerated and the last item thereof being item No. (viii) happens to be Dr. R. Ahmead Dental College, Calcutta.

14. Sections 3 and 4 are relevant for our purpose and the same are set out as follows:

'3(1) The State Government shall constitute a Central Selection Board (hereinafter referred to as the Board), which shall consist of the Principals of all the Medical and Dental Colleges in West Bengal and two persons to be nominated by the State Government, as members.

(2) The nominated members shall hold office for such period as the State Government may fix.

(3) The Principal of the Medical College, Calcutta, shall be the Chairman of the Board and the Secretary of the Medical College, Calcutta, shall be its Secretary.

(4) The Board shall have its office located at the Medical College, Calcutta.

4. The functions of the Board shall be -

(a) to hold in every year by itself or through any other authority to be appointed by the Board with the prior approval of the State Government, a Joint Entrance Examination in such manner as may be prescribed and at such time as the State Government may, by notification, announce, for selection of candidates for admission to the Pre-Medical Course;

(b) to allot candidates to the different Medical and Dental Colleges in West Bengal on the basis of merit displayed by such candidates in the Joint Entrance Examination and having regard to the preference indicated by them in their applications, and

(c) to prepare a waiting list of a reasonable number of additional candidates for filling vacancies of seats, if any, occurring in any Medical or Dental College in West Bengal.'

15. From the aforesaid provisions it would appear that the Joint Entrance Examination was to be held in every year by the State Government which would constitute a Central Selection Board, shortly called the 'Board'. Section 4(b) provides for the allotment of candidates to the different Medical and Dental Colleges in West Bengal on the basis of merit displayed by such candidates in the Joint Entrance Examination. Section 6(1) is relevant in asmuch as the same provides for conditions of eligibility for admission of candidates and the same is set out as follows:

'6. (1) In order that a candidate may be considered eligible for admission in any of the seats referred to in Sub-section (6) of Section 5, he shall,

(a) Submit his application in such form, deposit such fees and comply with such other formalities as may be prescribed;

(b) submit a certificate in the prescribed form that he is normally resident in the district from the reserved quota of which he wishes to be selected;

(c) give an undertaking by executing a bond in the prescribed form that on completion of his course of study he shall compulsorily serve for a minimum period of three years in the particular district from the reserved quota of which he is selected;

(d) satisfy that he has passed any of the qualifying examinations.

(e) fulfil such other qualifications regarding nationality, citizenship, age, etc., as may be prescribed;

(f) obtain such qualifying marks in the aggregate, in the Joint Entrance Examination, as may be fixed by the Board.'

16. Clause (c) as above would require the candidate to give an undertaking by executing a bond that on completion of his course of study the candidate shall compulsorily serve for a minimum period of three years in the particular district from the reserved quota of which he is selected.

17. Sections 7 (1) and 7 (4) are also relevant for our purpose and the same are set out as follows:

'7 (1) A list showing the total number of selected candidates including candidates selected in each category and allotted for admission to the different Medical and Dental Colleges in West Bengal together with the marks secured by these candidates, if any, shall be hung up on the notice board of the Medical College, Calcutta, and the relevant portions of such list shall also be hung up on the notice boards of the individual Medical and Dental Colleges.

(4) On being admitted to the Pre-Medical Course in any of the Medical orDenial colleges the candidates concerned shall abide by the rules and regulations of that college and shall not seek transfer from one college to another or from one course to another except under such circumstances and subject to such conditions as may be prescribed.'

18. From Sub-section (4) as set out aboveit will appear that, restrictions havebeen imposed disentitling the candidateconcerned from seeking transfer fromone college to another or from onecourse to another except under suchcircumstances as prescribed. It wouldseem that a direct legal bar has beenimposed upon the candidates concerned,inter alia, from seeking transfer fromone course to another. The respondentSweety Agarwal took her Joint En-trance Examination as also the Pre-Medical Course of study presumably onthe basis of the said provisions of thesaid Act of 1973. That being the position,the respondent Sweety Agarwal couldnot have appeared in the Joint EntranceExamination held for the subsequentyears so as to seek the change of thecourse of study from B.D.S. to theM.B.B.S. course.

19. By and under the provisions of the said West Bengal Medical and Dental Colleges (Regulation of Admission) Act of 1973 the admissions into collegesof the candidates were regulated. The authorities concerned were empowered by the said enactment to distribute seals in the Medical and Dental Colleges as the case might be in the manner provided therein districtwise and in accordance with other formalities prescribed thereunder. On that basis Sweety Agarwal was allotted a seat in the Dental College to prosecute her studies in Dentistry in the B.D.S. Course. She in her turn accepted the allotment and got herself admitted in the said Dr. R. Ahmed Dental College and prosecuted her studies in that Dental College after executing the bond as provided under Section 6(i)(c) of the said Act of 1973. She bound herself by the provisions of Section 7 (4) of the said Act of 1973 and having done so she could not seek transfer from B.D.S. course to M.B.B.S. course. If she would be permitted to change her course of studies the result would be that the bond executed by her would not remain effective. Furthermore, if she would be permitted to seek admission in the M.B.B.S. course of study for the subsequent year, as prayedfor, the said bond or any other fresh bond could not be obtained from her aa a matter of course and the position would be inconsistent and anomalous inasmuch as in respect of other M.B.B.S. students who got themselves admitted after passing Joint Entranee Examination of 1977 such candidates would be required to act in compliance with the bond they have executed, in accordance with the provisions of the Act of 1973 but recording the candidate viz. Sweety Agarwal and others who have passed the Joint Entrance Examination for the subsequent year viz. of 1978 they would no longer be bound by or be obliged to act in accordance with the provision of the said bond. The position might have been different had Sweety Agarwal left B.D.S. course altogether and started her Medical studies afresh but that is not her case before us. It would be noticed that although she had applied afresh for appearing at the Joint Entrance Exami-nation and passed the said examination but in respect of her getting admission in the M.B.B.S. course of study she has all the same to rely on the fact that she had already passed the Pre-Medical examination after prosecuting her studies for the same. In her application form addressed to the Chairman, Central Selection Committee, Calcutta for appearing at the Joint Entrance Exami-nation for admission to the first year class of M.B.B.S. course for the session 1978-79 she had relied on her Pre-Medical examination marks which she obtained in such examination held for the year 1977. She has also relied on her certificate showing that during the session 1976-77 she passed the Pre-Medical Examination of the Calcutta University held in June 1977 and was placed in the First Division. From the said certificate it would appear that she was admitted to the Pre-Medical Course and was selected for Dr. R. Ahmed Dental College during the session 1976-77.

20. Before the court below the main attack was concentrated on the said Transitory Rules and particularly sub-rule (1)(e). Reliance was placed on Regn. 7 appearing in Chapter XXXI-B of the Regulations and Syllabi for the Preliminary Examination for Medical Students. Regn. 7 read as follows:

'7. No student shall be allowed tojoin the first M.B.B.S. class or the First Professional class of the B.D.S.course unless he has previously passed the Preliminary Examination for Medical Students as a whole or the I.Sc. examination with Physics, Chemistry and Biology.'

It was sought to be contended before the court below that Sub-rule (e) Rule 1 of the Transitory Rules was inconsistent with the above Rule 7 and was meaningless because it proceeded on the assumption that there was a separate Medical (examination for B.D.S./B.M.S. course. I have already explained that such a meaning could not be attached to Sub-rule (e) inasmuch as it did not contemplate that there was a separate Pre-Medical examination for B.D.S. course. In my opinion, the argument was imaginary and baseless and should not have been accepted by the court below. In fact, the learned Judge had, it recorded that on behalf of the University of Calcutta the factual position was not disputed that there was one and only one Pre-Medical examination and no other. The learned Judge was accordingly wrong to hold that the Transitory Rule 1 (e) was meaningless. In my opinion, the learned Judge decided, the ca.se on matters which were entirely extraneous to the point involved in the application before him.

21. To my mind, the real point was missed. What the authorities concerned did with regard to the Governor's nominee in respect of the admission was not the question to be decided. What was relevant to be considered in this case was about the violation or infringement of any right which the petitioner to the writ petition was supposed to be entitled to enjoy but which she could not because of the wrongful conduct on the part of the authorities concerned. It is true that the admit card was issued to the respondent Sweety Agarwal but that by itself would not create any legal right in her favour simply because the University or other Authorities were under a duty to scrutinise the admission form filled in by the students to find out whether it was in order or not. The learned Judge was of the view that if neither the head of the department nor the University authority took care to scrutinise the admission form then they had no power to withdraw the candidature of the candidate.

22. In my opinion, in the writ petition itself it would appear that the candidate viz. Sweety Agarwal was aware of the stipulation made in the advertisement that the existing students to Medical and Dental Colleges in West Bengal or the students who were already admitted to any of such Colleges on furnishing bond were not eligible to apply. In spite of such knowledge she deliberately took a chance and consciously appeared in the exaimination although she was warned at every stage that she was not a candidate who was eligible to apply or to sit in the said examination for admission to the M.B.B.S. course. It is no good saying that her application was duly scrutinised and no objection was raised as to her being a student of the Dental College or for that purpose she had executed a bond to serve the State Government on completion of her studies in the B.D.S. course. She was warned also that her application was provisional and she was not permitted to sit n the Joint Entrance Examination. She was ultimately found on scrutiny to be ineligible, and accordingly, she could not assert any of her alleged legal right to get herself admitted into M.B.B.S. course of study because she had obtained qualifying marks in such examination From the averments made in the petition it is absolutely clear that she had knowledge all throughout that she was not entitled to apply.

23. Under such circumstances, the writ court could not exercise its discretion in her favour and could not have granted any relief to the extent sought for or at all and should have dismissed her petition in limine.

24. I am of the view that the learned Judge was wrong in striking out Sub-rule 1(e) of the Transitory Rules as ultra vires, unworkable and, meaningless and by issuing a Writ of Mandamus to the Stale Government Authorities commanding them to admit the peti-tioner to the M.B.B.S. course.

25. The result, therefore, is that the appeal herein must be and is hereby allowed. The judgment and order of the court below must be set aside and the petition under Article 226 of the Constitution, in the facts and circumstances of this case, must be and is hereby dismissed with no orders as to costs, excepting that the ad interim orders passed by the Court below directing the admission of the respondent petitioner to the M.B.B.S. course of study are directed by this Court to continue irrespective of the result of the appeal.

26. As already recorded herein in view of the undertaking given by the University Authorities in respect of the candidate including Sweety Agarwal, her position in the M.B.B.S. course of study would not be in any way jeopardised or affected even though the appeal herein has been allowed and the writ petition has been dismissed provided, however, the candidate viz. Sweety Agarwal would, execute a bond on similar line as indicated hereinabove. In default of her executing the bond as aforesaid the undertaking given by the University Authorities would stand discharged and the interim orders which are directed to continue would stand vacated. Liberty to apply.

C.K. Banerji, J.

27. I agree.


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