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Dr. M.N. De and anr. Vs. Dr. B.N. Mukherjee, Principal, Calcutta National Medical College and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 324 (W)/1973
Judge
Reported inAIR1973Cal519
ActsWest Bengal State Medical and Dental Colleges (Admission of Students) Rules, 1972 - Rule 6(4); ;Constitution of India - Article 14
AppellantDr. M.N. De and anr.
RespondentDr. B.N. Mukherjee, Principal, Calcutta National Medical College and ors.
Appellant AdvocateNani Coomar Chakraborty, ;N.C. Sen, ;Paritosh Mookerjee, ;R.N. Bhattacharya and ;Mihir Chakraborty, Advs.
Respondent AdvocateDipankar Gupta, ;Bimal Chandra Basak and ;J.K. Banerjee, Advs.
DispositionPetition dismissed
Excerpt:
- .....transferred to the state of west bengal and was to remain under the control and management of the state government. i shall hereinafter refer to the provisions of sub-sections (2) and (3) of section 3 of act xvii of 1967 which provided for recognition of deeds of gifts and endowments etc. made to this institution and for continuance of its contract, debts etc. section 6 of the said act empowered the state government to make rules for carrying out the purposes of the act.3. the petitioner no. 2 is stated to be an adopted daughter of dr. miss tara de, who is the daughter of the petitioner no. 1. in the year 1971 the petitioner no. 2 passed the higher secondary examination conducted by the west bengal board of secondary education. she secured 565 marks and was placed in the second.....
Judgment:
ORDER

Chittatosh Mookerjee, J.

1. In the year 1964 the petitioner No. 1, who is an eminent medical practitioner of Calcutta, decided to make a gift of a sum of Rs. 50,000/- (Rupees fifty thousand only) to the Calcutta National Medical Institute, Gorachand Road, Calcutta. On the 6th August, 1964 the Hony. Secretary of the said Institute wrote a letter to the petitioner No. 1 accepting the said gift in the following terms:

'In continuation of my letter No. 2/2063/S dated 20-6-64 and subsequent verbal discussion with you, we shall be glad to name a Ward in the Medical Block of our Hospital as Dr. M. N. De Block on condition that you donate a lump sum of Rupees 50,000/- to the institute.

We further agree that you and your heirs will be entitled to nominate one student possessing qualification as laid down by the Governing Body for admission to the Pre-medical Course of our College.'

The second paragraph of the above letter dated the 6th August, 1964 has come up for interpretation in the present Rule.

2. In 1967 the Governor of West Bengal made an Ordinance, inter alia, for providing control, management and maintenance of the aforesaid institution called the Calcutta National Medical College together with the hospitals and dispensaries attached thereto. Subsequently West Bengal Act XVII of 1967 was enacted replacing the said Ordinance. With effect from the appointed day i.e., the 9th June, 1967, at the first instance, for a period of ten years the said institution stood transferred to the State of West Bengal and was to remain under the control and management of the State Government. I shall hereinafter refer to the provisions of Sub-sections (2) and (3) of Section 3 of Act XVII of 1967 which provided for recognition of deeds of gifts and endowments etc. made to this institution and for continuance of its contract, debts etc. Section 6 of the said Act empowered the State Government to make rules for carrying out the purposes of the Act.

3. The petitioner No. 2 is stated to be an adopted daughter of Dr. Miss Tara De, who is the daughter of the petitioner No. 1. In the year 1971 the petitioner No. 2 passed the Higher Secondary Examination conducted by the West Bengal Board of Secondary Education. She secured 565 marks and was placed in the second division. The petitioners, in paragraph 8 of the petition, have set out the marks secured by the petitioner No. 2 in Mathematics, Physics, Chemistry and Biology subjects of the said examination.

4. On the 17th August, 1972 the Governor made the West Bengal State Medical and Dental Colleges (Admission of Students) Rules, 1972 for regulating the admission of students to the State Medical Colleges and the State Dental Colleges in West Bengal. Under Rule 3 (3) of the said rules the total number of seats in a session in the premedical course in the Calcutta National Medical College inclusive of the new admissions and readmissions was fixed at 200 only. Rule 4 (1) provided for reservation of a certain number of seats for Government of India nominees. Under Rule 4 (2) seats were also reserved every session for nominees of donors in terms of the agreements entered into with the donors. Rule 4 (2) stipulated that in the Calcutta National Medical College among others one seat would be reserved for a nominee of the petitioner No. 1 or his heirs. The Rules also laid down the conditions of eligibility for admission to the premedical course in the colleges covered by the rules. Besides the conditions in Rule 6 (1) regarding residence and citizenship and those in Rule 6 (3) regarding the minimum age qualifications, Rule 6 (4) laid down the minimum educational qualifications for candidates who seek admission to the Pre-Medical course. Rule 6 (4) was in the following terms:

'(4) The candidates for admission to the Pre-Medical Course shall have passed the Higher Secondary Examination of the Board of Secondary Education, West Bengal, or the Pre-University Examination of the Calcutta University or of the North Bengal University, or the University Entrance Examination of the Burdwan University, or any other Examination of any other Board or University recognised as equivalent by the Calcutta University for the purpose, with Physics, Chemistry and Biology subject to the following conditions:

(a) For admission against the seats reserved in terms of Sub-rule (1) of Rule 4 supra for the nominees of the Government of India, the candidates must have passed such qualifying Board or University Examinations at least in the Second Division.

(b) For admission against the seats reserved in terms of Sub-rule (3) of Rule 4 supra for the Scheduled Castes and Scheduled Tribes, the candidates must have secured a minimum of 40 per cent marks in English and 45 per cent marks in the aggregate in the three science subjects of Physics, Chemistry and Biology, in such qualifying Board or University Examinations.

(c) For admission against seats other than those mentioned in Clauses (a) and (b) above, the candidates must have secured a minimum of 40 per cent marks in English and 50% marks in the aggregate in the three science subjects of Physics, Chemistry and Biology, in such qualifying Board or University Examinations.'

5. The Rule 7 provided for submission of applications in the manner prescribed thereunder. Selection of candidates for admission against the general pool was to be made strictly on the merit which would be judged by marks secured by a candidate in the joint entrance examination.

6. The petitioner No. 2 had applied for admission to the Pre-Medical Course and actually sat at joint entrance examination. She was not, however, selected on the basis of merit for admission against the general pool.

7. The petitioner No. 1 had nominated the petitioner No. 2 for admission to the Pre-Medical Course of National Medical College against the seat reserved for a candidate to be nominated by him in terms of Rule 4 (2) (b) (iii) of the West Bengal State Medical and Dental Colleges (Admission of Students) Rules, 1972. On the 29th September, 1972, the Principal, Calcutta National Medical College, intimated the petitioner No. 1 that his nominee had not been found eligible for admission on the basis of Govt. Order No. Medl/486/2M-43/72 dated August 17, 1972, of the Department of Health and Family Planning, West Bengal. The petitioner was requested to send a fresh nominee according to the Govt. order, referred to above. On the 9th October, 1972, the petitioner No. 1 had written a letter to the Minister in charge of the department of Health and Family Planning on the subject of nomination for admission to the Pre-Medical Course. The Assistant Secretary of the department by a letter dated the 15th November, 1972, informed the petitioner No. 1 that a candidate nominated for admission against the seat reserved for the nominee of a donor had to pass, before such admission, the Higher Secondary Examination of the West Bengal Board of Secondary Education or any other recognised examination equivalent thereto securing a minimum of 50% marks in the aggregate in the three science subjects of Physics, Chemistry and Biology. Such provision was applicable uniformly to nominees of all donors in the Government Medical Colleges. It was stated that these rules could not be relaxed in favour of any nominee.

8. At that stage the petitioner moved a writ application in this court in the matter of admission of the petitioner No. 2 to the Pre-Medical Course of the National Medical College. Ultimately the said application for a rule nisi was withdrawn. The petitioners have set out in paragraphs 26 and 27 the alleged circumstances under which the said earlier application was withdrawn. It is not necessary for the purpose of disposal of this Rule to decide whether the petitioners have correctly stated these facts and I, therefore, refrain from dealing with the same. It, however, appears that after the withdrawal of the earlier application there was some further negotiation between the parties which did not however succeed. On the 30th December, 1972, the Principal of the Calcutta National Medical College wrote a letter to the petitioner No. 1 requesting him to nominate another candidate who fulfilled the requirements for admission for the session 1972-73. At this stage the petitioner filed the present writ application and the instant Rule was issued.

9. Mr. Nani Coomar Chakraborty, learned Advocate for the petitioners, has submitted that the gift of Rs. 50,000/- made by the petitioner No. 1 was subject to conditions one of which was that he would be entitled to nominate one student possessing qualification as laid down by the Governing Body to the Pre-Medical Course of the National Medical College. Therefore, the respondents are estopped from resiling from the said agreement and to commit a breach of such condition. Mr. Chakraborty has contended that the then Secretary of the National Medical Institute, by his letter dated the 6th August, 1964, had agreed that the petitioner No. 1 would be entitled to nominate one student possessing qualifications as laid down by the Governing Body for admission to the Pre-Medical Course of our College'. According to Mr. Chakraborty, the expression 'qualification laid down' meant such qualifications as were laid down at the time of the acceptance of the gift by the petitioner No. 1. After transfer of the Institution under Section 3(2) of the West Bengal Act XII of 1967 all deeds of gift, endowment, bequest, trust or otherwise covering all properties and assets referred to in Sub-clause (c) of Clause (1) were to be construed as if they were executed in favour of the State Government (vide Section 3 (2) of the Act). Under Sub-section (3) all contracts, debts and liabilities of the institution were to be deemed to be contracts, debts and liabilities of the State Government. Therefore, the agreement entered into between the petitioner and the Calcutta National Medical Institute and embodied in the letter dated the 6th August, 1964 on and from the appointed day shall be deemed to be a contract between the petitioner and the State Government and the State Government was bound by such contract. It has been contended accordingly that the State Government was not entitled to unilaterally change such agreement and to lay down qualifications for admission to the Pre-Medical Course different from those which were existing at the date of the acceptance of the gift made by the petitioner. Under the rules which existed at the date of the gift the candidates for admission to the Pre-Medical Course were not required to obtain 50% marks in the three science subjects for being eligible for admission to the Course. Therefore, the State Government cannot now override the contract by framing rules in the year 1972 and insist that the nominee of the petitioner No. 1 for admission to the Pre-Medical Course would be ineligible for admission unless she secured 50% marks in the three science subjects. Mr. Chakraborty has further contended that the rules known as the West Bengal State Medical and Dental Colleges (Admission, of Students) Rules, 1972 were not statutory rules but in the nature of administrative orders Such rules could not override the provision of the Act XVII of 1967 which recognised and continued the existing contracts and obligations of the National Medical College even after the appointed day giving the same statutory recognition. According to Mr. Chakraborty, it was not open to the State Government to make administrative orders regarding admission to the College without framing rules in terms of Section 6 of the Act. It has been further contended that the aforesaid rules regarding admission framed in the year 1972 are discriminatory as they unequally treat the Government nominees and nominees of the donors for admission to the Pre-Medical Course of the National Medical College.

10. As I have decided to discharge this Rule on merits, I need not consider the point raised on behalf of the respondents that the instant writ application is for enforcement of a contract incapable of specific performance. Mr. Dipankar Gupta, learned Advocate for the respondents, contended that the petitioners' claim was founded entirely on an alleged contract and/or agreement According to Mr. Gupta, this contract was akin to personal contracts and agreements the performance of the terms of which were incapable of being supervised by a Court of law. Therefore, a writ would not lie for enforcement of such contractual obligations. Mr. Chakraborty, learned Advocate for the petitioners, disputed this legal position and tried to establish that under certain circumstances even contractual obligations of the State are capable of being enforced by writ petitions. As already indicated, I need not decide these rival contentions particularly in view of the fact that the respondents have not disputed the right of the petitioner No. 1 to nominate a candidate of his choice for admission to the Pre-Medical Course of the National Medical College and the respondents have not tried to repudiate the agreement and/or stipulation contained in the letter of the Secretary of the National Medical Institute dated the 6th August, 1964. But the point for consideration is whether a candidate nominated by the petitioner for such admission would be required to fulfil the educational qualifications as laid down by the West Bengal State Medical and Dental Colleges (Admission of Students) Rules, 1972.

11. Mr. Chakraborty himself did not seriously dispute that in the instant case the provisions of Section 127 of the Transfer of Property Act did not apply in terms and I am unable to equate the gift of Rs. 50,000/-made by the petitioner No. 1 with 'an onerous gift' within the meaning of Section 127 of the Transfer of Property Act. Section 6 of the West Bengal Act XVII of 1967 has empowered the State Government to make rules for carrying out the purposes of the Act. But I see nothing in the said Act to hold that the Government has no power to make administrative orders regarding admission to Medical Colleges including the National Medical College until framing of such statutory rules, No statutory rules in terms of Section 6 has been yet made by the State Government regarding admission to the National Medical College. Therefore, even if the West Bengal Stale Medical and Dental Colleges (Admission of Students) Rules 1972 have no statutory force, they cannot be held to be invalid. These rules, not being in conflict with any statute or rules made thereunder cannot be struck down. The State Government is en-tilled to regulate admission to the State Medical Colleges etc. including Colleges which stood transferred by Act XVII of 1967 and to issue necessary administrative rules in these behalf. I am unable to hold that such regulation of admission could not be done by administrative directions. The power of the State Government to regulate admission to the Pre-Medical Course was neither expressly nor by necessary implication made dependent prior upon framing of Rules under Section 6 of the Act.

12. It has been rightly contended on behalf of the respondents that the agreement embodied in the letter of the Secretary of the National Medical Institute dated the 6th August, 1964 was not self-contained. It referred to a previous letter of the Secretary of the Institute dated the 20th June, 1964. The same has not been produced before me. Reference was also made to a verbal discussion relating to the offer of the petitioner No. 1 to make a gift of Rs. 50,000/- on condition that a ward in the Medical Hospital would be named after him. Further, the letter stipulated that the petitioner and his heirs would be entitled to nominate students for admission to the Pre-Medical course of the College. Therefore, such power of nomination was likely to be exercised for an indefinite length of time and such power would be exercisable not only by the petitioner No. 1 who is himself an eminent medical practitioner but also by his heirs, who may have no connection with the Medical profession. In exercising such power of nomination it was agreed that the choice of the donor would be confined to candidates who would fulfil the qualification for admission in the Pre-Medical Course of the College. The second paragraph of the letter dated the 6th August, 1964, if properly construed, in my opinion, meant that the petitioner No. 1 and his heirs would be entitled to nominate one student for admission to the Pre-Medical Course of the National Medical College who possessed qualifications as laid down by the Governing Body of the College. Therefore, the respondents are right in contending that while the Governing Body empowered the petitioner No. 1 and his heirs to nominate a student for admission, it did not abdicate its right to lay down qualification for admission to the Pre-Medical Course of the College. Giving a reasonable interpretation to the expression 'qualification as laid down', the same cannot mean such qualification as already laid down on the date of acceptance of the gift by the petitioner No. 1. It would be only reasonable to construe the expression as 'such qualification as may be laid down from time to time'. Otherwise it would lead to absurdities. Mr. Chakraborty, appearing on behalf of the petitioners, himself in effect conceded that the expression 'qualification as laid down' cannot be taken too literally. For example, in the year 1964, certain age limits with reference to the year 1964 were laid down by the then admission rules. The acceptance of the petitioners' view would in its extreme form would mean that such qualification regarding age was intended to remain unaltered and unchanged for ever, but the same would be impossible to fulfil. Further, the qualifying examination itself may be changed. In future, the Calcutta University or any other competent body may prescribe different academic qualifications for admission to the Pre-Medical Course. According to Mr. Chakraborty, subject to these exceptions, the agreement between the petitioner No. 1 and the Secretary of the Institute stipulated that the qualifications for admission shall remain unchanged. Once it is held that the qualifications for admission of candidates chosen by the petitioner No. 1 were not immutably determined at the time of the acceptance of the gift made by petitioner No. 1, then there would be no escape from the conclusion that the Governing Body of the College was entitled to change and/or alter the qualifications prescribed for admission to the Pre-Medical Course.

13. In fact, subsequent to the date of acceptance of the donation of the petitioners, the Government from time to time made rules regulating admission to State Medical Colleges. The State Government by the West Bengal State Medical Colleges (Admission of Students) Rules, 1968 had previously exercised its power to lay down qualifications for admission to Medical Colleges. It is immaterial that these Rules might not have prescribed qualifications different from those made in the year, 1964.

14. Therefore, I hold that the Governing Body while accepting the gift made by the petitioner No. 1 conferred upon the petitioner No. 1 a right of selection of a candidate for the admission to the Pre-Medical Course. But they had retained the right of prescribing the qualification for admission to the Pre-Medical Course. The words 'as laid down' should be interpreted to mean 'as may be laid down from time to time.' The petitioner No. 1 could nominate a candidate who was eligible or qualified for admission.

15. Selection of candidates for admission to the Pre-Medical Course involves two distinct steps. In the first place -- the principles for selection must be laid down on a rational basis in order to prevent arbitrary and capricious selections. Such principles of selection must lay down conditions of eligibility consistent with the rules and regulations of the academic body to which the Medical Colleges might be affiliated. Such conditions of eligibility may include nationality, residence, age and minimum educational qualifications for candidates. The second stage is selection or choice of candidates. The seats in the course being limited, all who might fulfil these qualifications cannot possibly be selected and admitted to the course. Therefore, selections are to be made from amongst qualified candidates. Majority of the candidates are chosen in order of merit in the examination. Others are elected by special agencies or bodies, the Government, the donors, etc. But the Government and the donors must confine their selection from among candidates who are otherwise eligible, i. e. possess requisite qualifications, but who need not appear in the competitive examination.

16. After the transfer of the National Medical Institution to the State Government in terms of Section 3 (I) of the Act XVII of 1967 the agreement of the petitioner No. 1 with the National Medical Institute must be deemed to be an agreement with the State Government. Under such agreement the other Governing Body of the Institute having retained powers to prescribe qualifications for admission to the Pre-Medical Course, I find nothing illegal on the part of the State Government now prescribing the qualifications for admission to the said course for the year 1972. In fact, it has not been argued before me that the State Government by the said rules was not entitled to lay down other conditions of eligibility relating to residence and citizenship and minimum age qualifications for admission to the Pre-Medical Course.

17. Mr. Chakraborty, learned Advocate for the petitioners drew my attention to the fact that in case of candidates for admission against the general pool of students, as mentioned in Rule 5 of the Rules -- the candidates are not required to pass in any particular division in the qualifying examination. They are also not required to secure any minimum marks in the three science subjects. But Rule 8 (1) lays down that selection for candidates against the general pool would be strictly on the basis of merit which would be judged by the marks secured by the candidates in the aggregate in the different subjects in the Joint Entrance Examination. So far as the donors' nominees are concerned, they are not required to sit in such entrance examination and a candidate fulfilling minimum educational qualifications if nominated by the donor would straightway secure an admission to the Pre-Medical Course. Therefore, there is no scope for comparison between, the qualifications of candidates for admission from the general pool and the candidate nominated by donors.

18. The arguments that the rules discriminate between the Government nominees and the donors' nominees cannot also prevail. Under Rule 4 (1) seats have been reserved for students nominated by the Government of India. In case of Government nominees in terms of Rule 6 (4) (a) they must pass in the second division whereas in case of donors' nominees there is no stipulation that they must pass the qualifying examination in any particular division and for them securing of fifty per cent. marks in the aggregate in the three science subjects would be sufficient. These provisions are not necessarily more favourable to candidates for admissions nominated by the Government. In a given case a donor's nominee who has been placed in the third division but had obtained more than 50% marks in the three science subjects would be admitted to the Pre-Medical Course. But a Government nominee irrespective of marks obtained in the three science subjects must have passed in the second division. The Government of India is not a party to the present petition. Further prima facie the respondents in laying down separate sets of rules for admission from different categories of students are entitled to prescribe different provisions. The Government nominees and the donors' nominees do not form one class. The facts and circumstances relating to the Government grants and the basis on which Government has been given power to nominate candidates for admission are different. The terms and conditions of the gifts made by the individual donors are entirely different and their rights to nominate are regulated by the particular terms of such individual gifts. Therefore, I hold that the individual gifts, generous as they are, cannot be compared with the grants which the Government has been making to these medical institutions because they have certain powers and responsibilities in respect of State Medical Colleges. The right of the petitioner No. 1 to nominate candidates for admission to the Pre-Medical Course on the other hand is regulated, according to himself, by the letter of the Secretary of the then National Medical Institute (vide Annexure 'A' to the petition). Thus, the Government nominees for admission to the Medical Colleges and the donors' nominees to the Pre-Medical Course do not belong to the same class and therefore no question of discrimination could possibly arise as between these two categories or classes. Since these two categories of candidates are not similarly situated, no question of discrimination can arise. Further, as already stated, there is intelligible basis of differential treatment between the Government nominees and the donors' nominees in the matter of admission to the above course. Therefore, the plea that the West Bengal State Medical and Dental Colleges (Admission of Students) Rules, 1972 are violative of Article 14 must fail. As the petitioner's contention relating to discrimination fails on merit it is not necessary for me to examine the proposition advanced by the respondents that these rules cannot be termed as a State action and this Court ought not to issue prerogative writs.

19. For the foregoing reasons, I have come to the conclusion that the State Government acted within its powers by prescribing the educational qualifications even in respect of the nominee of the petitioner No. 1 for admission to the Pre-Medical Course. Admittedly, the petitioner No. 2 does not possess the said minimum educational qualifications inasmuch as she failed to secure 50% marks in all the three science subjects. Accordingly, the respondents were entitled to decline to admit her in the Pre-Medical Course.

20. I, therefore, discharge this Rule.

21. There will be no order as to costs.


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