Madras High Court
Sajitha G. vs Secretary To The Government Of India, ... on 1 December, 1993
Equivalent citations: AIR1994MAD204, AIR 1994 MADRAS 204
ORDER
1. The prayer in the writ petition is to issue a writ of mandamus directing the respondent to consider the application, bearing Roll No. 74049 of the petitioner for M.B.B.S. Course under the "Self Financing Foreign Students Scheme" for the year 1992- 93 and select the students on the basis of the marks obtained and allot a seat to the petitioner.
2. The petitioner was born in Malaysia and had her schooling at Salem, Tamil Nadu and she had completed the Higher Secondary Examinations at Salem, in March 1988. She was a foreign nationals and even as on date she is a Malaysian citizen, and as such she has to apply to Ministry of External Affairs through Indian High Commission at Malaysia for the M.B.B.S. Course. It seems for the academic year 1992-93, the criterion for selecting candidates for medicine is only on the basis of the marks obtained by the candidates, who have submitted their applications. The petitioner was not selected, and this being the fourth time, she contacted some persons to find out the reason as to why she was not selected. It is alleged in the affidavit that she met one Pushparani, a Malaysian citizen who applied to the respondent for M.B.B.S. Course and through her she came to know that she had been allotted Jipmcr Medical College, Pondicherry under 'Self Financing Foreign Students Scheme'. It is alleged in the affidavit that the petitioner secured 82.5% marks, which is higher than the marks obtained by the said Pushparani, who secured only 72%. It is also alleged in the affidavit that the petitioner was not selected for the reasons best known to the respondent, since there is no prescribed norms for selection of students under Self Financing Foreign Students Scheme. It is also pointed out that applicants like that of the petitioner herein, after submitting the applications to the respondent need not appear for any entrance examination or viva voce (oral interview) and that the decision of the respondent is final. With these allegations, the petitioner is before me.
3. A counter affidavit has been filed by the respondent stating that the petitioner was on the 21st position in the merit list and that only 14 seats made available to Malaysian for the year 1992-93 and that she was not among the candidates from 1 to 14 in the merit list. It is also claimed in the counter affidavit that the petitioner herein falls under the same category of recommended candidates like that of one Pushparani, G. and that since both the candidates belong to the same recommended categories the prerogative of the selection of such candidates remains exclusively with the Ministry of External Affairs, and as such the petitioner was not selected for the year 1992-93.
4. The petitioner herein has filed a petition in W.M.P. No. 32363 of 1993, to amend the prayer in the main writ petition and the prayer is as follows :
" .... to amend the prayer as writ of mandamus or any other appropriate writ, order, or direction in the nature of a writ, directing the respondent to consider and select the petitioner for M.B.B.S. Course under the "Self Financing Foreign Students Scheme" for the year 1993-94 on the basis of the marks obtained during 1992-93 and allot a seat to the petitioner. . . . "
5. Mr. R. Gandhi, the learned senior counsel appearing for the petitioner contended that though the petitioner had secured more marks than the candidate Pushparani, whose name is stated in the affidavit, the petitioner has not been selected, that the respondent has followed an arbitrary procedure in selecting the candidates and that the denial of a seat to the petitioner herein is unwarranted. Learned senior counsel further contends that me: it alone should be the criteria for selecting the candidates in professional colleges, as held by the Supreme Court and that it has been given a go-by in this case. Learned senior counsel further contended that there are no proper guidelines to select a candidate under the Self Financing F'oreign Students Scheme and that the writ petitioner be given a seat by the respondent, at least fur this academic year.
6. Mr. K. R. Thiagarajan, the learned Additional Central Government Standing Counsel has produced before me the procedure for admission of self financing foreign students to various courses in India, which has been circulated by Ministry of External Affairs Students Cell on 23-10-1991. For the M.B.B.S. and B.D.S. Courses the procedure for admission is stated, according to the learned Additional Central Government Standing Counsel, in paragraph l(i) of the instructions. According to the learned counsel, the selection is made by nominations and as such in this case, the petitioner has not been nominated though both the petitioner and one Pushparani, the candidate whose name has been mentioned in the affidavit, belong to the same category. Learned counsel for the respondent pointed out that it is true that the candidate, who has got lesser marks has been given a seat, but the petitioner herein cannot be selected since the rank of the petitioner is far below and there are more meritorious students in the list. Referring to the decision in Tlhaper Institute of Engineering and Technology, Patiala v. Abhinav Taneja, . Learned counsel contends that this Court should not exercise the discretion under Art. 226 of the Constitution of India, in such circumstances. Learned counsel also refers to the decision in Nand Singh v. Estate Officer, AHt 1991 Delhi 38. for this proposition.
7. When the matter came up for hearing, on the last occasion I directed the learned counsel for the respondent to produce files. An affidavit has been filed by the Secretary to the Government of India, Ministry of External Affairs. New Delhi claiming privilege under Ss. 123 and 124 of the Evidence Act. Though the privilege is claimed in para 7 of the affidavit it is stated that the deponent has no objection whatever, to any of the documents in regard to which privilege has been claimed being produced for satisfying about the genuineness of the plea of privilege. In view of that entire files have been produced before me and I have gone through the same.
8. I have considered the arguments of the learned counsel on cither side and have gone through the flics and other materials produced before me.
9. What is stated in the affidavit fik'd by the respondent, cannot be said to be wrong from what I have seen in tlie files. Hut at the same time, it cannot also be disputed that there are meritorious students than the petitioner, in the merit list, in such circumstances, whether it is open to this court to exercise the discretion under Art. 226 of the Constitution is only to be considered on the facts and circumstances of this case, especially when a student who has gut lesser marks had been provided with a seat and the petitioner herein, who had secured higher marks, has not been given a seat. As pointed out by Mr. K.R. Thiagaiajan, learned Additional Central Government Standing Counsel, the scheme envisages short-listing of candidates with regard a foreign students and it is to the following effect :
" .... The country wise allocation of seats is decided in consultation with the concerned Territorial Divisions keeping in view the relative importance of the countries, number of applications received, commitments made, etc. Keeping in view the proposed allocation of seats and applications received. candidates arc short-listed on the basis of merit and/or recommendations. All nominations to M.B.B.S./B.D.S. and B.E. Courses are approved at the level of External Affairs Minister/Minister of State . . . . "
It is seen that seats arc allocated, after the candidates arc short-listed on the basis of merit and/or recommendations and that all nominations to M.B.B.S./B.D.S. and B.C. Courses are approved at the level of External Affairs Minister/Minister of State. In this case, it cannot be disputed that the said Pushparani. whose name is mentioned in the affidavit filed by 'he petitioner, was not made as a party in the writ petition. So the admission given to the said Pushparani cannot be challenged by the petitioner herein without impleading her as a party-respondent in this writ petition.
10. The only other point as to whether the petitioner can ask for the issue of writ of mandamus to direct the respondent to admit her, in the M.B.B.S. Course under the Self Financing Foreign Students Scheme, is to he considered. As I culled out from the files, I do not think it is possible for this Court to issue a writ as prayed for. The Supreme Court in Thaper Institute of Engineering and Technology, Patiala v. Abhinav Taneja, , has held that if a writ is issued in such circumstances, the more meritorious students, however, not in a position to avail of seats due to lapse of time will be ignored, and as such a direction to give admission to a student like that of the petitioner herein is not warranted. As pointed out by Mr. K. R. Thiagarajan. learned Additional Central Government Standing Counsel, no seats are available for the academic year 1992-93 or 1993-54 and all the scats were filled up which arc allotted to the External Affairs Ministry. In such circumstances, I do not think that the petitioner can claim merit over the meritorious who arc not allotted seats merely on the ground she approached this court for securing a scat and also pointed out that one candidate who secured lesser marks than the petitioner had been admitted in the academic year 1992-93. I could see from the files that there arc more meritorious students than the petitioner waiting. As such, I do not think the writ jurisdiction of this court can be exercised which will result injustice to non-meritorious students who have not been admitted during that academic year 1992-93. It is true that merit alone should be considered as held by the Supreme Court in the abovementioncd decision. But even then, the petitioner cannot be claimed to be a meriotorious student. It is true that the petitioner has secured higher marks than the said Pushparani, whose name is mentioned in the affidavit. Hut at the same time, it is seen that there are students who got higher marks than the petitioner arc in the wailing list. As such, the choice of petitioner getting a seat has not been lost, just because a seat has been allotted to the said Pushparani. Even if that scat is allotted on merit, the petitioner will not in any way come nearer the marks obtained by other students. In view of. that, I have no hesitation to hold that this court cannot exercisc its extraordinary jurisdiction, on the facts and circumstances of this case. As such, the writ petition will stand dismissed. No costs.
11. Having dismissed the writ petition, I am of the view that it is high time for the Government of India to frame guidelines for admitting foreign students in such professional courses. The scheme as placed before this court contains no guidelines. It is true that the admission (is) based on marit and/or recommendations. It is but proper for the authorities concerned to have a second look on the scheme to be framed with regard to foreign students in professional courses in our country. It should not he a prerogative of the bureaucrats and in the higher education at ministerial levels, to admit any student in professional courses on some pretext or other. The Supreme Court has repeatedly held that merit alone should be the criteria for any citizen of India, to get a seat to get admission into professional courses. I am of the view that the very same principle has to be adopted even for foreign nationals coming from other countries. That apart, I do not think that the privilege claimed by the respondent in the affidavit is correct. I am of the view that the deponent of the affidavit is ill-advised to file such an affidavit before this court. After the judgment of the Supreme Court in S. P. Gupta v. President of India, , I do not think that such a privilege can be claimed on such flimsy grounds. The Supreme Court; in the above mentioned decision has held at page 233 as follows :
".... Now, if secrecs were to he observed in the functioning of Government and the processes of Government were to be kept hidden from public scrutiny, it would tend to promote and encourage oppression, corruption and misuse or abuse of authority, for it would all be shrouded in the veil of secrecy without any public accountability. But if there is an open government with means of information available to the public, there would be greater exposure of the functioning of government and it would help to assure the people a better and more efficient administration. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means of achieving a clean and healthy administration. It has been truly said that an open government is clean government and a powerful safeguard against political and administrative aberration and inefficiency....."
While considering the scope of S. 123 read with S. 162 of the Indian Evidence Act, in the abovementioned decision, the Supreme Court, after referring to the decision in State of Punjab v. Sodhi Sukhdev Singh, , has held at page 235 as follows :--
"..... Now we agree with the learned Judge that public interest lies at the foundation of the claim for protection against disclosure enacted in S. 123 and it seeks to prevent production of a document where such production would cause public injury but we do not think the learned Judge was right in observing that the interest which comes into conflict with the claim for non-disclosure is the private interest of the litigant in disclosure....."
I do not think that such production of files in this writ petition, before this Court would cause any public injury. The Supreme Court in the abovementioned decision, observed at page 237 as follows :
" . . . . even in such cases it is now well-settled that the Court is not bound by the statement made by the Minister or the Head of the Department in the affidavit and it refains the power to balance the injury to the State or the public service against the risk of injustice, before reaching its decision . . . . "
So I do hope that in future the respondent may not file such an affidavit before this Court, keeping in mind, the views expressed by the Supreme Court with regard to claiming of privilege. In view of the fact that I have dismissed the writ petition, I do not think the prayer for amending the prayer can be granted. W. M. P. No. 32363 of 1993 also shall stand dismissed. No costs.
12. Petition dismissed.