Madras High Court
K. Anamika And P. Sindhu Sandhya vs The Government Of Tamil Nadu Rep. By The ... on 14 August, 2002
JUDGMENT P. Shanmugam, J.
1. The appeals arise out of a common order declining to interfere with the selection of respondents 5 to 10 to the First Year M.B.B.S. Course for the Academic Year 2001-2002 in the seats reserved for children whose parents worked for the enrichment, propagation and development of Tamil language.
2. The brief facts of the case are as follows :
The Government of Tamil Nadu, while prescribing the eligibility norms and source of admission of candidates to the First Year M.B.B.S. Course 2001-2002, ear-marked six seats for children whose parents worked for enrichment, propagation and development of Tamil language and have made significant contribution to Tamil Society, Culture and Literature. Clause 3.5(ii) of the Prospectus provided for selection of candidates under this category by a Common Committee at the Anna University, Chennai. A Note to this clause stated that this concession shall be extended to only one child of the family and only once. The candidates/parents were directed to give a declaration to that effect in the prescribed format. Detailed guidelines have been given for selection of the candidates in Annexure-IX of the Prospectus.
3. Both the appellants, in their affidavits in the writ petitions, have stated that they had applied under the category 'development of Tamil Language' for any one of six seats earmarked for that category, inter alia contending that the selection of respondents 5 to 10 in the writ petitions is arbitrary and that their parents' contribution were on a higher level, and therefore, they sought for a writ of mandamus to select them and a writ of mandamus to consider the admission of the appellants in the First Year M.B.B.S. Course 2001-2002 in any one of the Medical Colleges.
4. The main challenge before the learned single Judge was as against the award of marks to the contribution of the parents. This, according to them, was totally extraneous for the selection of candidates. The further point was that when once the eligibility of the candidates to apply was finalised, there cannot be a further classification by giving preference to National awards, State awards and University awards. The Selection Committee, according to them, ought to have selected the candidates on the basis of the academic marks and ought not have added the marks awarded to the parents for their contribution. The method adopted by the Committee in the award of marks, according to the petitioners, was arbitrary.
5. Learned Judge, after considering the submissions, found no fault with the procedure adopted by the Common Committee in awarding marks to the contribution in terms of Guideline No.5 of Annexure-IX to the Prospectus. The learned Judge took the view, after referring to the various decisions and the law laid down by the Supreme Court, that a candidate, having acquiesced (himself/herself) to the procedure to be adopted by the Common Committee which is consistent with the Prospectus, cannot challenge the same at a later point of time after such candidate comes to know that he/she has not been selected. According to the learned Judge, no reason had been adduced by the petitioners as to why they participated in the process of selection having made known Clause 3.5(ii) and Annexure-IX of the Prospectus. The learned Judge ultimately dismissed the writ petitions.
6. Two of the unsuccessful petitioners in the writ petitions have preferred the above two writ appeals. M/s. Kandavadivel Doraisami and Mr. J.R.K. Bhavanantham arguing on behalf of the appellants in the two appeals respectively, raised the question of ineligibility of the fifth respondent, her brother having been admitted in the Engineering Course for the Academic Year 1999-2000 under the special category and after having made a wrong declaration. Mr. Kandavadivel Doraisami submitted that his candidate K. Anamika, having secured a total of 324.55 marks (Academic : 279.55 + Parent's Mark : 45), should be considered for admission among the appellants in case the appeal is allowed and the selection of the fifth respondent, viz., P. Thendral is set aside.
7. Learned Senior Counsel Mr. G. Masilamani appearing on behalf of the Common Committee for Selection submitted that the appellants have not raised this point either before the learned single Judge or in their Memorandum of Grounds and that it is not open to them to raise this question for the first time in the course of arguments in the appeal. He submitted that the selection of the fifth respondent's brother was in the Academic Year 1999-2000 for the Engineering Course and that there was no prohibition at that time for a parent to seek for reservation in this category and that the limiting of concession to one child will apply prospectively from the Academic Year 2000-2001 and not retrospectively. He further submitted that the selection for the Academic Year 2001-2002 is already completed and the selected candidate, namely the fifth respondent herein, has already completed one year course of study and the appellants, assuming that they succeed, can only be admitted for the Academic Year 2002-2003 in the seats available for this year by seeking an increase in the number of seats. As far as the seat of the Academic Year 2001-2002 is concerned, which is availed of by the fifth respondent herein, in case her selection is set aside, it will go waste. He therefore submitted that the appellants, having not raised this issue before the learned single Judge and not obtained any interim order, are not entitled to press the point at this stage on a point not raised earlier.
8. Mr. N.G.R. Prasad appearing on behalf of the fifth respondent, supported the arguments of Mr. G. Masilamani that the appellants cannot be permitted to argue a question not raised in the writ petition nor in the writ appeal. Even if some of the writ petitioners who are not appellants before this court have raised the point orally, the appellants ought to have amended their writ petitions and raised the issue in the Memorandum of Grounds. In the absence of any such argument by either of the petitioners, since the issue has not found place in the judgment of the learned single Judge, it is not open to the appellants to raise a new point at this stage belatedly. According to him, he should have been given opportunity at the earliest stage to rebut this on the factual aspects. He further submitted that the Prospectus could only be prospective in operation and cannot be applied retrospectively. The brother of the fifth respondent was admitted in the Engineering Course, whereas the fifth respondent is admitted in the Medical Course. According to him, the selection to Engineering Course is not as difficult as it is for the Medical Course and there were thousands of seats unfilled for the Engineering Course and if really there was such a prescription at that time, the parent of the fifth respondent would have opted for his daughter to get the medical seat. Learned counsel submitted that the father of the fifth respondent, though has contributed to the cause of Tamil and has secured the highest mark among the parents, does not know a word in English. He was asked to furnish a declaration form at the time of counselling and at the last minute, without knowing the language, he was guided to write the names of his children and therefore, the said declaration given at the last minute of counselling cannot be taken to mean that he had violated the conditions and suppressed the factum of admission of his son. According to the learned counsel, he had no intention of making a false declaration and it was made only in the circumstances of the case.
9. Mr. Prasad also submitted that the appellant in W.A. No.303 of 2002, Miss P. Sindhu Sandhya had already joined the Engineering Course at the Government College of Engineering, Bargur for the Academic Year 2001-2002. She had discontinued the said course and obtained an order from the Director of Technical Education to re-admit her for the Academic Year 2002-2003. As per Clause 2.3(v) of the Prospectus, the candidates who are undergoing any of the professional courses are not eligible to apply to medical courses. Therefore, the appellant in W.A. No.303 of 2002 is also not eligible to question the selection of the fifth respondent.
10. We have heard the counsel and considered the matter carefully.
11. Though the counsel for the appellants have raised the question of weightage given to the contribution of the parents contending that it is an arbitrary method of award of marks and the procedure adopted as having been contrary to law, they have chosen not to raise these issues in their arguments before us. Their only point argued was that the selection of the fifth respondent is illegal and contrary to the condition applicable to this category. The fact that the selection for the First Year M.B.B.S. Course for the Academic Year 2001-2002 under the special category was not challenged in the grounds raised by the appellants at the argument stage is not in dispute. It is also not in dispute that the appellants have not raised it in their writ petitions nor in the Memorandum of Grounds. Therefore, the fifth respondent did not have the opportunity of raising the question as to the prospective effect of the Prospectus and other points in merits, including the factual foundation in reference to the case of the appellants and other selected candidates as to whether it is their first choice for the first time. The appellants have not stated that their parents have not availed their choice before. It is further not in dispute that the selection for the Academic Year 2001-2002 is completed and the selection for the Academic Year 2002-2003 has been announced and is also nearing completion. The fifth respondent had completed her one year course of study. Therefore, we are not persuaded to permit the appellants to raise this question for the first time before us.
12. A Constitution Bench of the Honourable Supreme Court in AJAY HASIA VS. KHALID MUJIB refused to exercise their discretion in setting aside the selection made after the lapse of considerable period. It was held that to do so, would be to cause immense hardship to those students in whose case the validity of the section cannot otherwise be questioned and who have nearly completed three semesters and moreover, even if the petitioners are ultimately found to be deserving of selection on the application of the proper test, it would not be possible to restore them to the position as if they were admitted for the academic year, for which they sought for admission, which has run out long since.
13. Assuming that the appellants are entitled to contend that this is not a factual issue, but a legal point and that there is an illegality which can be questioned at any time, we have to see whether the condition imposed for reservation under this category, viz., whether the concession can be availed of by one child of the family and only once, will apply to the facts of this case. It is not in dispute that when the fifth respondent's brother was admitted under this category in the Academic Year 1999-2000, there was no such condition. In other words, the parents of the fifth respondent did not have the option to exercise this concession only once. The policy of the Government being that this concession can be availed of by one child of the family and only once, it would mean that the parents are given the choice and therefore, from the Academic Year 2000-2001 when this condition has been imposed, the parents are given a liberty to choose the child to whom their contribution can be utilised. As rightly pointed out, if only this condition was there in the year 1999-2000, the father of the fifth respondent would not have utilised the option for his son for the Engineering Course for which there was no difficulty and he would have definitely reserved this concession for his daughter for a medical course. This, in our view, appears to be reasonable and consistent with the purpose of providing the concession for one child in one family. Neither the fifth respondent nor her father could have foreseen such a condition and they cannot be penalised for availing the concession at a time when there was no such condition.
14. Srinivasan, J. (as he then was), in SUBRAMANIAN L. VS. STATE OF TAMIL NADU (1992 W.L.R. 73), has taken the view that cancellation of a reservation can only be prospective and not retrospective. The learned Judge accepted the plea of promissory estoppel and held that there cannot be cancellation retrospectively. Applying the same principle to the case on hand, since the fifth respondent's brother was selected on the basis of a valid reservation, that cannot be a ground to disentitle the claim of reservation by the fifth respondent after two years on the basis of a newly introduced condition.
15. A Division Bench of this Court in POOVIZHI, MINOR, ETC. VS. THE GOVERNEMNT OF TAMIL NADU, ETC. & ANOTHER (D.B.) [2002 (1) L.W. 732), was considering the Government order whether the doctrine of legitimate expectation can be invoked to assail the changed Government's policy relating to improvement examination from 2001. From that year, the Government ordered that those who want to write improvement examination have to write all the subjects and cannot choose subjects of their choice. The Division Bench, while holding that there is no arbitrariness in the decision taken by the Government, held that the Government order shall be operative only prospectively only for such of those students who reappear for improvement examination from the academic year 2002-2003 onwards. Their Lordships followed the view of the Full Bench of this Court in TAMIL NADU TAMIL AND ENGLISH MEDIUM SCHOOLS ASSOCIATION VS. STATE OF TAMIL NADU (F.B.).
16. In K. KUPPUSAMY VS. STATE OF TAMIL NADU , the Hon'ble Supreme Court has held that when amendment is effected in statutory rule, ordinarily it would be prospective in nature unless expressly or by necessary implication found to be retrospective. Therefore, we are of the view that the prescription imposed is a condition for limiting the reservation. The condition sated in Clause 3.5(ii) of the Prospectus is prospective in operation and will not affect the admissions made under this category prior to the Academic Year 2000-2001.
17. Once we hold that the condition will not be put against the fifth respondent, we need not go into the allegations of false declaration and availing of admission by the appellant in W.A. No.303 of 2002, as the same may not survive for consideration.
18. We are also alive to the fact that the fifth respondent has completed her first year of study and is to take her first year examination in August, 2002 and has also paid the examination fee for the same and also the fact that the admissions for the Academic Year 2001-2002 are already completed and admissions for 2002-2003 are also nearing completion. Therefore, at this stage, we are of the view that it would be inequitable and unjust to disturb the selection made in reference to the fifth respondent.
19. For the above reasons, we do not find any merit in the writ appeals and the same are accordingly dismissed. However, there will be no order as to costs. Consequently, the connected C.M.Ps. are closed.