Rajasthan High Court - Jaipur
Dr. H.C. Chaturvedi vs The State Of Rajasthan on 15 December, 1992
Equivalent citations: 1992(3)WLC300, 1992WLN(UC)476
JUDGMENT V.K. Singhal, J.
1. This special appeal is directed against the judgment of the learned Single Judge given in S.B. Civil Writ Petition No. 3853/1989 dismissing the writ petition of the appellant.
2. The appellant passed M.B.B.S. examination in 1979 from he University of Rajasthan After completing his internship in the year 1980 from M.B.S. Hospital, Kota, the appellant was appointed as Resident Medical Officer on 11.12.1983 in the hospital of Rajasthan Atomic Power Station Anushaki which was under the department of Atomic Energy, Government of India. He was promoted in 1985 and, then, thereafter, again in 1989. As a result of the two promotions he became Medical Officer 'S-C and then Medical Officer 'S-D' respectively.
3. As the appellant desired to obtain post-graduate degree in M.B.B.S., his name was considered for sponsorship for sending him to join post-graduate course in the faculty of Radiology with Ultra-sound/Psychiatry in any of the five Medical Colleges of Rajasthan. His name was referred to the Department of Atomic Energy, Government of India by the office of the Rajasthan Atomic Power Station Anushaki. A letter was issued by the Nuclear Power Corporation, Bombay approving his name for sponsorship. After receiving the letter from Atomic Energy Department, the Chief Superintendent of Rajasthan Atomic Power Station Anushaki wrote a letter dated 1.9.1988 to the Secretary, Department of Medical & Health Services informing about the sponsorship of the name of the appellant for the post-graduate course in Radiology with Ultra-sound/Psychiatry in the Medical College located in Rajasthan. For this purpose, a request was made to the Government of Rajasthan to allot a seat in post-graduate course in the same grounds as previously allotted to Dr. K. Shringi. The Government of Rajasthan wrote of the Department of Atomic Energy, Government of India for sending the name of the appellant as nominated candidate for post-graduate course in any of the Medical Colleges, of Rajasthan. His name, however, was not sponsored by the Government of India. It was thereupon he filed the writ petition.
4. Two reliefs claimed in the writ petition were; (1) to admit the appellant in post-graduate course staring from September, 1989 as a sponsored candidate under the self-financing scheme; and (ii) to provide him similar privileges and facilities as provided to students of other Institute like Post-Graduate Institute of Medical Education & Research, Chandigarh and A.I.I.M.S., New Delhi.
5. The writ petition was contested by both the respondents denying that the appellant was sponsored by the Central Government. It was alleged that there was no provision in the State of Rajasthan for giving admission to any candidate sponsored by the Central Government in any of its five Medical College. There was of-course a provision for admission of foreign student in the five Medical Colleges of the State, in which one seat had been reserved for the said purpose.
6. The learned Single Judge dismissed the writ petition holding that in 1989 a new scheme for admission in P.G. medical course had been introduced, under which the University of Rajasthan had to conduct a Pre-P.G. Entrance Examination in accordance with the provisions of Ordinance 278-E. This Ordinance provided for reservation of the seats in P.G. medical * course. These reservations are for the candidates (i) coming on merits in the Pre-P.G. All India Competitive Examination; (ii) belonging to scheduled tribes and scheduled castes; and (iii) in-service candidates and the general merit list. No reservation had been made for any candidate sponsored or nominated by the Central Government. The learned Single Judge also found that there was no provision for admission to, an Indian National on being sponsored or nominated by the Central Government.
7. On the findings aforesaid, the writ petition was dismissed and the say order dated 26.9.1989 was cancelled.
8. On 26.9.1989, the appellant obtained a stay order to the following effect:
....
;g vkns'k ikjfr djuk mfpr gksxk fd vfxze vkns'k rd izkFkh dks Radiology with Ultra sound/Psychiatry P.G. dkslZ esa izksfotuyh izos'k ns fn;k tkosA"
9. In the present appeal which was preferred against the judgment of the learned Single Judge, a stay order was again given to the following effect:
uksfVl tkjh fd;s tkosaA izkFkhZ bl U;k;ky; ds vkns'k fnukad 26.9.89 ls izksfotuyh isos'k izkIr dj Radilolgy with Ultra'Soung/Psychiatry P.G. Course esa v/;;u dj jgk Fkk! Mls Hkfo"; esa vfxze vkns'k ikfjr gksus rd v/;;u djus fn;k tk;sA
10. Counsel for the appellant urged hat as the appellant has already appeared in all the examinations mean for obtaining a degree in M.D., what he required only a direction to the respondents to declare his result.
11. The learned for the appellant relied on the decisions, the first of which is reported in Gorish Pikharan and Ors. v. State of M.P. and Anr. . The Supreme Court held:
In view of our judgment in Civil Appeals Nos. 554 to 555 of 1981 State of M.P. v. kumari Nivedia Jain, we allow the appeal and dismiss all he petitions in which the very same question comes up for consideration. We, however, direct that the students who have already been admitted to a Medical College on the basis of any order passed by this Court or the High Court will be allowed to continue their studies as regular students of the College and the order of dismissal of the petitions will not entitle the authorities to remove their names from the rolls of the Colleges where they are studying. There will be no order as to costs in any of these petitions.
12. This case does not indicate as to what was the controversy before the Supreme Court and in which connection the direction mentioned above was given. In the absence of narration of facts, the aforesaid decision cannot be applied.
13. In State of M.P. v. Nivedita Jain , in this case what was challenged was the Executive Order dated 9th Sept. 1980 passed by the State Government relaxing the conditions relating to the minimum qualifying marks in Pre-Medical Examination for selection of students to Medical College of the State in respect of candidates belonging to the Scheduled Castes and Scheduled Tribes categories. The Supreme Court held that the relaxation could not be struck down on the ground of contravention of Regulation-II. The order was valid in view of Article 15(4) of the Constitution. The State Government could for the the upliftment of the Scheduled Castes and Scheduled Tribes and other backward communities grant such a relaxation. This case officers no support to the appellant.
14. In the instant case, the controversy was whether the admission of student to the post-graduate course, having not been made in accordance with the Ordinance applicable, could entitle him still to get the result declared and to obtain the degree on the basis of that result.
15. We have noted above that the learned Single Judge found that neither the appellant was sponsored by the Government of India nor was there any scheme to that effect. That being so, he could not claim that he was entitled to get M.D. degree on the basis of stay orders obtained from the High Court. If a person is not entitled to the relief in a writ petition, he cannot obtain by virtue of the interim orders. A stay order preserves the rights of the parties for the duration it remains in operation, but it does not confer any right which it does not recognize.
16. Another decision cited by the learned Counsel fro the appellant was in Smt. Reeta Sharma v. University ofRajasthan RLR 1987 11 832. In this case, as the appellant had been permitted to fill up the form to appear in the examination and she had been provisionally admitted in the correspondence course by the University of Rajasthan, the High Court held hat she was entitled to get the degree by virtue of the the admission given to her.
17. In the instant case, no such thing happened. The appellant filed the writ petition for the reliefs mentioned above and during the pendency of the writ petition for the reliefs mentioned above and during he pendency of the writ petition when those controversies were still to be adjudicated, he got the stay orders first in the writ petition and, thereafter, in the appeal. By the strength of these stay orders; the appellant claimed that his admission provisionally made would confer a right to get his result declared, if there was a condition precedent of securing a seat by appearing at the Pre-P.O. Entrance Examination, the nonobservance J the same would confer no right on him to be given a degree by virtue of wrongful admission obtained. The Supreme Court deprecated the tendency of the court, to grant provisional admission because of the fact that such an admission leads to anomalous position.
18. Counsel for the appellant urged that the appellant wasted his valuable time and had he not been given stay orders, he would have saved his money and time. For obtaining stay orders in the writ petition and the appeal, the appellant was responsible and that he could not blame anyone for the same.
19. The appellant was not qualified for either of the two examinations, hence, was not entitled to any relief on qualified for either of the two examinations, hence, was not entitled to any relief on equitable grounds. See Dr. Mahendra Vangani and Anr. v. State of Rqjasthan and Ors. 1992 (2) WLC (Raj.) 610. This view was taken by a Division Bench of which one of us was a member relying on the decisions reported in Subodh Noiyal v. Stale of U.P. and in Ajay Pradhan v. State of M.P. .
20. In U.P. Junior Dectorsd v. Action Committee , the Supreme Court held that provisional admissions should not be given. Similar view has been taken in Prabir Kumar Ghosh v. University of Calcutta and Ors. .
21. About estoppel, the law is:
However, it is now reasonably dear that the doctrine of estoppel cannot confer legal effectiveness upon an ultra vires act, not can it restrict an authority's freedom to exercise a discretionary power. See Southend-on-Sea Corporation v. Hodgson (Wickford) Ltd. (1961) I QB 416.
22. The submission of the appellant's counsel about the relief claimed in the writ petition was next based on equity.
23. It is not open to Court to evolve new and unrecognized principle of equity and to hold a person to be entitled to a right on the basis of the same.
24. Under Article 226 of the Constitution, the High Court may take into consideration the equity while administering justice, but it is wrongly stated that the High Court is a Court of Equity while deciding a writ petition. A Court of Equity is something different in English Law than taking of just and fair principle into account while deciding a particular case.
25. Rule of Equity, justice and Good Conscience has been well discussed by Jagdish Swarup in his book on 'Legislation and Interpretation at page 630. The same Is reproduced below:
The principle that, in all cases for which no specific statuary directions were given, judges should act according to justice, equity and good conscience, was expressly formulated in Section 93 of the Administration of Justice Regulation promulgated on 5h July, 1781. This rule, was, thereafter, successively reproduced in Section 21 of Regulation 3 of 1793 in Section 24 of the Bengal Civil Court Act, 1871 and in Section 37, Bengal Civil Courts Act, 1887.
The decision of a case according tone principles of justice, equity and good conscience, during the British regime, generally meant decision according to the principles of English Law applicable to a similar state of circumstances. In Waghela Rajsanji v. Masludin Lord Hobhouse stated that Equity, justice and good conscience as been generally interpreted to mean the rules of English Law if found applicable to Indian society and circumstances. Thus in those provinces to which the Indian Easement Act, 1882 was not applied, the courts were left to follow the course of drawing up English sources for their substantive law on the principle that the English law on the subject was in accordance with justice, equity and good conscience. On the same principle the law of civil wrongs has been practically taken in its entirely from the common law of England.
Where rights of parties are determined according to the general principles of equity and justice, this must be done without any distinction, as in England, between the partial justice which was administered in the courts of law and the more full and complete justice for which it was frequently necessary to seek the assistance of a Court of Equity.
26. Counsel for the appellant did not challenge the finings of the learned Single Judge on merits.
27. In the result, the appeal fails and is dismissed. But, in the facts and circumstances of the case, we direct the parties to bear their own costs.