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Ashwani Kumar Vs. the State of H.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtHimachal Pradesh High Court
Decided On
Case NumberS.C.A. No. 1 of 1974
Judge
ActsConstitution of India - Aritle 133 and 133(1)
AppellantAshwani Kumar
RespondentThe State of H.P. and ors.
Appellant Advocate Inder Singh, Adv.
Respondent Advocate B. Sita Ram, Adv. General and; S. Malhotra, Adv.
DispositionPetition dismissed
Cases Referred and Bharat Kala Bhandar Ltd. (Private) v. Municipal Committee
Excerpt:
constitution - grant of certificate - article 133 of constitution of india - initially petitioner applied for admission to mbbs course against general seat - made another application against seat reserved for ward of political sufferers - application of petitioner rejected even after securing higher marks than other candidates selected against reserved category - filed application under article 133 for grant of certificate of fitness for appeal to supreme court - after disposal of appeal by high court appellate jurisdiction of court comes to end - jurisdiction to grant certificate under article 133 is not an appellate jurisdiction - points raised by petitioner cannot be formed basis of granting certificate. - .....it cannot be said that the judgment of this court dismissing the writ petition involves those questions. a question can be said to arise in a judgment where it has beenraised and decided, or raised but not decided or even though not raised it has been decided. a question neither raised before the court nor considered by it will not be a question involved in the case. see commr. of income-tax, bombay v. scindia steam navigation co. ltd., air 1961 sc 1633. reference may also be made to haji muhammad v. b. venkata komaraju, air 1940 mad 810 where the madras high court declined to grant leave to appeal to the privy council on the basis of a question which was not raised at any stage before the petition for leave to appeal. for the petitioner reliance was placed on jugal kishore,.....
Judgment:

Thakur, J.

1. This application under Article 133 of the Constitution of India for a certificate of fitness for appeal to the Supreme Court has been filed by Shri Ashwani Kumar against the judgment of this court, dated 30th November, 1973, whereby his civil writ petition No. 177 of 1972 under Article 226 of the Constitution for quashing the selection and admission of respondents 4 and 5 and the rejection of his admission to the first year of the M. B. B. S. class to the Medical College by respondents 1 to 3 had been dismissed.

2. The petitioner had on 25th August, 1972, applied for the admission to the first year of the M. B. B. S. Course for the 1972-73 Session against a general seat. The time fixed for receipt of applications for admission to the Medical College was 30th August, 1972. It appears that the petitioner made another application on 12th September, 1972, for admission to the M. B. B. S. Course against one of the two seats reserved for wards of political sufferers and persons with outstanding social background hailing from Himachal Pradesh. The petitioner had not stated in his writ petition that he had made an application on 25th August, 1972, seeking admission against a general seat. However, he filed his petition only on the ground that he had applied for admission against the reserved seat for wards of political sufferers and that his application was rejected although he had secured higher percentage of marks than the respondents Nos. 3 and 4, who had also sought admission and were selected and admitted against the aforesaid category. The petitioner had pleaded discrimination in the matter of selection on the ground that he had secured higher percentage of marks, whereas the respondents Nos. 3 and 4 had secured lower percentage of marks. This Court rejected the contention raised by the petitioner that he was discriminated against.

3. Now the petitioner has raised three points and he contends that they are substantial questions of law which need to be decided by the Supreme Court.

4. The first point is that the rules in the prospectus do not amount to law within the contemplation of Article 13 of the Constitution. It is pointed out that although this court held in Kumari Manju v. Himachal Pradesh Government, AIR 1972 Him Pra 37 that the provisions of the prospectus had the status of law, that view was taken on the basis of a concession by one of the parties. The second point is that the provision prohibiting a candidate from changing the category on the basis of which he seeks consideration for admission is an unreasonable restriction and offends Articles 14, 15 and 29 (2) of the Constitution. Those two points were not raised before this Court during the hearing of the writ petition and have not been considered in the judgment dismissing the writ petition. In the circumstances it cannot be said that the judgment of this Court dismissing the writ petition involves those questions. A question can be said to arise in a judgment where it has beenraised and decided, or raised but not decided or even though not raised it has been decided. A question neither raised before the Court nor considered by it will not be a question involved in the case. See Commr. of Income-tax, Bombay v. Scindia Steam Navigation Co. Ltd., AIR 1961 SC 1633. Reference may also be made to Haji Muhammad v. B. Venkata Komaraju, AIR 1940 Mad 810 where the Madras High Court declined to grant leave to appeal to the Privy Council on the basis of a question which was not raised at any stage before the petition for leave to appeal. For the petitioner reliance was placed on Jugal Kishore, Rameshwardas v. Mrs. Goolbai Hormusji, AIR 1955 SC 812 and Bharat Kala Bhandar Ltd. (Private) v. Municipal Committee, Dhamangaon, AIR 1966 SC 249. Those cases are distinguishable. The Supreme Court allowed a question to be raised for the first time before it but that was in an appeal already pending before it. As a court of appeal, it possessed the jurisdiction to permit a proper question to be raised even though it had not been raised before the High Court or the Subordinate Court and was being raised for the first time before the Supreme Court. That is not open to the High Court on a petition for a certificate under Article 133 (1) of the Constitution. The question before the High Court at this stage is whether the judgment delivered by it raises such a question as will justify the grant of a certificate. In granting the certificate the High Court does not exercise an appellate power. It has already disposed of the appeal, and in the strict sense its appellate jurisdiction has come to an end. The jurisdiction to grant a certificate under Article 133 (1) of the Constitution is a different jurisdiction altogether. Although it is exercised in respect of an appellate judgment, it is nevertheless not an appellate jurisdiction. It is a jurisdiction specially conferred upon it by Article 133 of the Constitution. We are of opinion, therefore, that the two points now raised by the petitioner cannot be made the basis of granting a certificate under Article 133 (1) of the Constitution.

5. The third point is that Articles 14, 15 and 29 (2) of the Constitution have been violated because the respondents Nos. 3 and 4, who had obtained a lower percentage of marks than the petitioner, have been admitted to the Medical College while the petitioner has not. The submission made before this court during the hearing of the writ petition in respect of discrimination was a different one. It was urged then that while the second application of the petitioner was not considered on the ground of its being belated and on the ground that he had already exercised an option by virtue of the first application in favour of a certain category, yet the rule was relaxed in respect of respondents Nos. 4 and 5 who were allowed even after the due date to file a number of documents in order to complete their applications for admission. The contention was negatived by this court. The court pointed out that the applications of respondents Nos. 4 and 5 had been received before the due date, while the petitioner was seeking to rely on an application made after the due date. The contention was not pressed before the Court that the categorisation of the applicants into different groups was discriminatory and could result in a candidate awarded a lesser percentage of marks being selected over a candidate awarded a higher percentage of marks. It was never argued before the court that classifying the candidates into categories violated the Fundamental Rights guaranteed by Articles 14, 15 and 29 (2) of the Constitution. The point now sought to be raised cannot be made the foundation of a certificate under Article 133 (1) of the Constitution.

6. The petition fails and is dismissed.


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