Bombay High Court
Ku. Sarika Shivprakash Sharma vs The State Of Maharashtra, Through ... on 23 March, 1995
Equivalent citations: 1996(2)BOMCR70
Author: V.S. Sirpurkar
Bench: V.S. Sirpurkar
JUDGMENT V.S. Sirpurkar, J.
1. Parties by Counsel. Rule. Heard forthwith.
Whether the discretion on the part of the management to grant admission as regards the vacant seats is absolute and untrammelled, is the predominant question in this writ petition; but first the factual matrix;
2. Petitioner Sarika d/o Shivprakash Sharma passed her Secondary School Certificate Examination from the Board of Education, Andhra Pradesh, in May, 1992. She, thereafter, took inter-mediate public examination conducted by the Board of Intermediate Education, Andhra Pradesh, Hyderabad, in March, 1994, and passed the same in the First Attempt. She secured 85% marks in PCB Group subjects, which consists of Physics, Chemistry and Biology.
3. An advertisement was given by the respondent No. 3-Punjabrao Deshmukh Memorial Medical College, Amravati, inviting the applications to the MBBS Course from Non Resident Indians and Foreign National students for the payment seats and also for the vacant seats which would be surrendered to the respondent No. 3-College by the competent authority, after the cut-off date, in the payment seats. Accordingly, the petitioner submitted an application. Admissions for the MBBS and BDS Courses were stayed by this Court and, ultimately, this Court finalised the admission procedure by judgment dated 27-9-1994. The process of admission commenced thereafter. After the regular admissions were over, it seems that in respect of the respondent No. 3-College, some seats from the quota of the sons and daughters of Non Indian Residents/Foreign Nationals remained vacant. The petitioner alleges that the seats remaining vacant were in all seven in number. The petitioner claims that she had received the interview call letter dated 23rd October, 1994, requiring her to attend the interview for the vacant seats from the aforementioned quota for the sons and daughters of Non Residents Indian / Foreign Nationals. The petitioner claims that she also received a telegram from the Secretary of the respondent No. 4-Society which runs the respondent No. 3-College, informing her that she should present herself for the interview on 31st October, 1994, at 11.00 a.m. The petitioner claims that she attended the said interview, alongwith her uncle. She further claims that the students/candidates were accommodated in a big hall and the serial numbers were given to those students/candidates. She claims that she did not know on what basis the said numbers were given; but she was given serial No. 34. The verification of her documents was made, but she was told at that time that she would not be entitled to the admission and, ultimately if she was found entitled, she would be informed about the same. The petitioner further claims that her guardian, Dr. Gowardhandas Sharma got the information on or about 16th November, 1994 that there were several irregularities which had crept in the said admissions conducted by the respondent No. 3-College and, in fact, the respondent Nos. 3 and 4 had given admissions to number of students who were having lesser marks than the petitioner. She claims that number of students, who were having lesser marks, though they did not belong to the category of Non Resident Indians or Foreign Nationals, yet they were admitted, while she was denied the admission. The petitioner's guardian, Dr. Gowardhandas Sharma thereafter tried to make enquiries at Amravati on 17th November, 1994, but to no effect and, therefore, he, of his own, gathered the information which suggested that out of total 100 seats available to the respondent No. 3-College for the academic sessions 1994-95, 50 seats were deemed to be the payment seats, and in all 10 seats, being 10% of the total number of seats, were allocated for the sons and daughters of the Non Indian Residents and Foreign Nationals. The petitioner claims that out of these ten seats, only three seats were filled in by giving admission to the sons and daughters of the Non Indian Residents in respondent No. 3-College, while remaining seven seats, which were the excess seats or vacant seats, were filled by the respondent Nos. 3 and 4 arbitrarily, even by giving admissions to the students who had passed their qualifying examination from the schools and colleges situated within the State of Maharashtra, or to some who had passed their qualifying examination from outside the State of Maharashtra, but within India, completely ignoring the merits and as per their own whims.
4. The petitioner generally contends that the seats were allotted to the similarly circumstanced students like her, but who had lesser percentage of marks as compared to her. She claims that amongst the admitted students, some students are having only 75% of marks in the Physics, Chemistry and Biology Group as compared to her, she having obtained 85% of marks in the said Physics, Chemistry and Biology Group.
5. The petitioner was allowed to amend the writ petition, and by the amendment, she contends that the respondent No. 6 had passed his 12th Standard Examination from Bihar Intermediate Education Council, Patna and was having only 56% marks in the Physics, Chemistry and Biology Group and, therefore, there was no question of she (respondent No. 6) being preferred to her (the petitioner). The petitioner thereafter made a bold statement in the petition that all the seven students, who were granted the admission, were having lesser marks as compared to her in the said Physics, Chemistry and Biology Group, and the respondent No. 6 was having the least number of marks amongst them. She, therefore, claims an admission on the basis of her merits, and if necessary, by cancelling the admission of the respondent No. 6. In short, the petitioner's claim is that even if the seats fall vacant and even if all the seats are not filled in, though the respondent No. 4 has the discretion to fill in those seats, the said discretion cannot be exercised arbitrarily, as the said discretion is not an untrammelled and uncontrolled discretion and the same does not amount to "a choice or sweet will" of the respondent No. 4-Society, while filling up those seats. According to her, the very term 'discretion' suggests that the seats have to be filled in by applying certain standards or principles. The merit would be such a principle and in the absence of any justification for preferring the less meritorious students, the petitioner had to be accommodated, particularly in place of the respondent No. 6 who was the candidate having the least percentage.
6. Stand of the respondent No. 2-Director, Medical Education and Research, Bombay, is that the petitioner had passed her 10th Standard Examination from the State of Andhra Pradesh and, therefore, she was not eligible for admission to the MBBS Course in the Government Medical Colleges and non-aided private Medical Colleges in the State of Maharashtra, like the one in question. The respondent No. 2, curiously, further states that the petitioner had not represented her case to him for non-inclusion of her name in the merit list. There is nothing further which the respondent No. 2 contends by way of his defence to the petition. There is no denial of the claim of the petitioner that the vacant seats, which have to be filled in at the discretion of the management, should go by some principles, the merits being one of the predominant principles amongst them. There is no denial to the further claim of the petitioner that there were irregularities, inasmuch as the candidates having lesser percentage than the petitioner were admitted by the respondent Nos. 3 and 4, the College and the Society respectively. In short, the return of the respondent No. 2 is of no consequence whatsoever. One would have expected a proper return from the respondent No. 2, particularly because he was at the helm of affairs insofar as the grant of admissions of the Medical Colleges was concerned. After all, the respondent No. 2 was primarily concerned with the Rules which govern the admissions and their interpretation. We only record that the return of the respondent No. 2 is not only sadly short but appears to be diabolical. That leaves us to the defence raised by the respondent No. 3-College.
7. The respondent No. 3-College in its return, inter alia, contends by way of defence that the petitioner, being a domicile of State of Andhra Pradesh and having passed her Secondary School Certificate Examination from the Board of Education, Andhra Pradesh, was not eligible to get the admission. It is further contended by the respondent No. 3 that as per Rule 4.2.0 of the Rules of 1994-95, in case the seats reserved for Non Resident Indians or Foreign Nationals remain vacant, the private Colleges could fill such seats as their discretion. In paragraph 6 of the return, the respondent No. 3 contends :
"The petitioner had submitted her application for her inclusion in the waiting list of candidates from all over India, who could be admitted to a vacant seat that may be available after a cut-off date of admission procedure. The admission to such a vacant post was to be done on the basis of respective merit, and therefore, the candidates were invited for interview. However, all the candidates were selected by the Competent Authority have reported and, therefore, there is no vacancy in the College, and hence, the petitioner could not be considered for admission."
There is a clear admission in this return, therefore, that the vacant seats were to be filled in as per the respective merits. The respondent No. 3 has again and again reiterated Rule 4.2.0, which suggests that the vacant seats would be permitted to be filled in 'at the discretion' of the management and, therefore, the College could select candidates 'of its choice'. In short, the stand taken by the respondent No. 3 is that it could fill up the vacant seats as per 'its choice'. Beyond this, there is no defence raised, nor is it specifically denied that the petitioner was a better candidate. The gravamen of the condition of the respondent No. 3, thus, appears to be that in respect of the vacant seats, the college authorities could exercise their choice and could admit anybody at their sweet will and pleasure.
8. It is necessary to state that the whole Rules of 1994-95 are the fall-out of the judgment of the Supreme Court in Unnikrishnan and others v. State of Andhra Pradesh and others, Writ Petition No. 607 of 1992, reported at . In the preamble itself, it is stated that as per the said scheme suggested in the form of directives in the aforementioned case of Unnikrishnan, the State Government has accepted the scheme by its Resolution dated 5th June, 1993 and has carried out the selection process at non-aided Private Medical and Dental colleges consistent with the said Scheme, and the said Rules of 1994-95 were being formulated. In short, the Rules of 1994-95 accept the essential philosophy as manifested from the judgment of the Supreme Court in Unnikrishnan's case. A competent authority has been created for the selection of the candidates, and in case of MBBS, Director, Medical Education and Research, Bombay, respondent No. 2 herein, is that competent authority. The competent authority is to control the selection process as per the rules contained in the Government Resolution.
9. The matter of admission to the Medical Colleges for the year 1994-95 is governed by the Government Resolution bearing No. ADM 1094/CR_238/94/EDU, dated 10th June, 1994. This Government Resolution covers the whole arena of the admissions to the MBBS and BDS courses in the State of Maharashtra in all the governmental and non-governmental colleges. Since both the petitioner as well as the respondents have relied upon the Rules of 1994-95 and have tried to interpret the same to suit their respective purpose, it will be better to test their contentions on the aforementioned back-drop of the said Rules framed by the State of Maharashtra.
10. Rule 3.0.1, which provides for eligibility, says that eligibility is a condition precedent to selection and the claim of the candidate for selection on the basis of merit shall be considered only on fulfilment of all applicable eligibility criteria. Rule 3.3.0 provides for qualifying examinations. Rule 3.3.1 declares that the Higher Secondary Certificate (12th Standard Science) examination of the Maharashtra State Board of Secondary and Higher Secondary Education or the Indian School Certificate Examination (12th Standard Science) or any other equivalent examination from an institution situated in the State of Maharashtra, would be the qualifying examination. Rule 3.3.2 suggests that in addition to the qualification mentioned in Rule 3.3.1, only those applicants will be held eligible for selection, who have passed the S.S.C. or Senior Cambridge or Indian School Certificate or equivalent examination from any of the recognised schools in the State of Maharashtra. Rule 4.2.0 is of utmost concern in decision of this writ petition. It runs as under :--
"4.2.0 Seats at the Disposal of the Competent Authority--Out of the remaining seats, all seats at Govt. colleges and fifty per cent of seats at non-aided private colleges will be treated as 'Free seats'. Balance fifty per cent seats of non-aided private colleges will be treated as 'Payment seats'. Fifteen per cent seats of total seats are permitted to be filled in by a non-aided private college on the basis of merit, as seats for sons/daughters of Non-resident Indians/Foreign nationals, within the category of payment seats. The seats remaining vacant will be filled by the Private College as payment seats at their discretion. Excepting these seats as well as the seats for nominees of Government of India, all remaining seats are at the disposal of the Competent Authority."
It is to be noted that, in fact, the percentage reserved for the sons and daughters of the Non-Resident Indians and Foreign Nationals was to be ten per cent only as against 15 per cent given out in the Rules, as per the order of the Supreme Court. For the purposes of the present petition, we are considering the said percentage to be ten per cent only.
11. Rule 6.0.1 provides as under :--
"6.0.1 Merit The total marks secured by the applicant in the subjects of Physics, Chemistry and Biology at the H.S.C. (or equivalent) examination, with duly corrected additions as stated at para 6.1.0 (if any), and 'tie-breakers' as stated at para 6.2.0 (wherever applicable), will form the basis of selection."
Rule 6.0.2 provides that the merit lists shall be prepared in descending order of merit so calculated. Subject of payment seats is considered by Rule 8.5.0. The only relevant rule in this area is Rule 8.5.8 which runs as under :--
"8.5.8 After a cut-off date announced by the Competent Authority, and instructions issued by him accordingly, the non-aided private colleges will be at liberty to fill up vacant seat on the basis of merit, both for 'free' and 'payment' seats. On exhausting the merit list of applicants in Maharashtra, the released seats are permitted to be filled in from the merit list of applicants from other States in partial relaxation of eligibility rules at paras 3.3.1 and 3.3.2 to the extent that H.S.C./S.S.C. or equivalent examinations may not have been passed from Maharashtra State."
12. Shri S.G. Aney, learned Counsel appearing on behalf of the petitioner, heavily relying on the language of the rules and their general spirit, contended that the common thread in this apparel of admission is the merit of the student. He drew our attention to the eligibility Rule 3.0.1 and pointed out that the claim of the eligible applicants was to be considered only on merits. His contention is that the petitioner became eligible, by reason of Rule 8.5.8 because in that rule, the passing of the qualifying examination of the petitioner from the State of Maharashtra was to be relaxed, and even those students who had passed their qualifying examination, meaning the H.S.C. and S.S.C. Examinations from outside the State of Maharashtra, were to be held eligible. He pointed out at Rule 6.0.1 and contended that merit is the sole basis. His further contention is that though the language in Rule 4.2.0 permits the private colleges to fill the seats remaining vacant, at their discretion, such discretion has to be necessarily guided by some principles, the merit being predominant amongst them. He pointed out from the return of the respondent No. 3-College that firstly there is no denial that the petitioner was the most meritorious candidate; at any rate, she was better than the respondent No. 6. Therefore, he contended that the petitioner was a much more meritorious candidate and, therefore, a better candidate than the respondent No. 6 or, any of the seven candidates who have been granted admission by the respondent No. 3-College. He is at pains to point out that there is no principle manifested from the return of the respondent No. 3 to suggest as to how the merit has been given a go by, and in the absence of such principle, the merit will be a predominant consideration even for the grant of admission in respect of the seats falling vacant and, at any rate, the management would not be permitted to have an untrammelled and uncontrolled discretion, as per the language of Rule 4.2.0. He also relied heavily on the language of Rule 8.5.8 to suggest that any admission after the cut-off date in respect of the vacant seat has to be on the basis of the merit only, and the only relaxation was in respect of the qualifying examination. He contended that there is no relaxation whatsoever contemplated by Rule 8.5.8, and essentially Rule 8.5.8 has to be read alongwith Rule 4.2.0. He, therefore, contended that in ignoring the merits, the petitioner has been wronged.
13. Shri S.A. Bobde, learned Counsel appearing on behalf of the respondent No. 6, heavily relying upon the language of Rule 4.2.0, contended that, in fact, insofar as the vacant seats are concerned, the said seats were clearly outside the jurisdiction of the Competent Authority. His mainstay of the argument is the concluding sentence of Rule 4.2.0 which is as under :
"Excepting these seats as well as the seats for nominees of Government of India, all remaining seats are at the disposal of the Competent Authority."
He, therefore, reads an absolute discretion in respect of such vacant seats in favour of the privates colleges. He suggests that the principle of merit could not be brought in unnaturally as that is not the import of the language of Rule 4.2.0 and, in fact, the said seats, which would remain vacant, could be filled in by the private colleges as per their choice. In short, Shri Bobde reads the term 'discretion' in Rule 4.2.0 to be meaning 'choice of the private colleges'.
14. Shri Rajeev Madkholkar, learned Assistant Government Pleader, has reiterated the same stand taken by the respondent No. 2-Director in the return that since the petitioner had passed her S.S.C. and H.S.C. examinations from outside the State of Maharashtra, she would not be entitled for the admission in the MBBS course, at all.
15. On these rival contentions, it is to be decided as to whether the petitioner is entitled to be admitted to the MBBS course in the respondent No. 3-college.
16. Taking the last objection first, regarding the petitioner having passed her S.S.C. and H.S.C. examinations from outside the State of Maharashtra, it will have to be observed that the stand taken by the respondent No. 2-Director is completely incorrect. The clear language of Rule 8.5.8 suggests that after exhausting the merit list of the students who have passed their S.S.C. and H.S.C. examinations from Maharashtra State, if there are any vacant seats which are to be filled in after the cut-off date, eligibility Rules 3.3.1 and 3.3.2 would be relaxed to the extent that even if the said examinations are not taken by the students from Maharashtra States, yet such students would be entitled to be admitted. In view of this clear position, the objection raised by the respondent No. 2-Director to the eligibility of the petitioner is clearly untenable. Merely because the petitioner has passed her qualifying examinations from Andhra Pradesh, i.e., outside the State of Maharashtra, that would not come in her way for getting the admission, at least to the vacant seats, after the cut-off date. There is no dispute that the seats, to which the petitioner was seeking the admission, were vacant seats, as the seven seats in question had fallen vacant because the quota of ten seats for sons/daughters of Non Resident Indian/Foreign National had remained vacant, and that the said admission were being offered after the cut-off date was announced by the Competent Authority. The objection raised by the respondent No. 2 will have, therefore, to be negativised.
17. That leaves us to decide as to whether in respect of such admission, there is an absolute, untrammelled and uncontrolled discretion of private colleges to fill up the seats. In other words, it has to be decided, whether the vacant free seats can be filled in by the private colleges as per their own choice, in complete disregard to any principles, including the principle of merit.
18. The word 'discretion', as per the Shorter Oxford Dictionary literally means:
"I. Separation, disjunction, distinction;
II. 1. The action of discerning or judging; judgment; discrimination;
2. The faculty of discerning;
3. Liberty or power of deciding, or acting according to one's own judgment; uncontrolled power of disposal; in Law; the power to decide, within the limits allowed by positive rules of law, as to punishments, remedies, or costs, and generally to regulate matters of procedure and administration."
Thus, though the word 'discretion' literally means and denotes an uncontrolled power of disposal, yet in law, the meaning given to this word appears to be 'a power to decide within the limits allowed by positive rules of law; as to the punishments, remedies or costs'. This would mean that even if a person has a discretion to do something, the said discretion has to be exercised within the limits allowed by positive rules of law.
One of the literal meaning of the word 'discretion' as appearing from the original Oxford English Dictionary is like this :
"b. Law--The power of a Court of justice, or person acting in a judicial capacity, to decide, within the limits allowed by positive rules of law, as to the punishment to be awarded or remedy to be applied, or in civil cases, how the costs shall be borne, and generally to regulate matters of procedure and administration."
The literal meaning of the word 'discretion', therefore, unmistakably avoids untrammelled or uncontrolled choice and more positively points out at there being a positive control of some judicial principles.
19. Black's Law Dictionary gives the following meaning of the word 'discretion':
"Discretion.--When applied to public functionaries, discretion means a power or right conferred upon them by law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. As applied to public officers means power to act in an official capacity in a manner which appears to be just and proper under the circumstances."
Under the caption 'Judicial and legal discretion', Black's Law Dictionary describes the same to be in the following terms :
"These terms are applied to the discretionary action of a judge or Court, and mean discretion bounded by the rules and principles of law, and not arbitrary, capricious, or unrestrained. It is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law, or the equitable decision of what is just and proper under the circumstances. It is a legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the judge, but to that of the law. The exercise of discretion where there are two alternative provisions of law applicable, under either of which Court could proceed. A liberty of privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of the law."
Here, therefore, what would be evident would be that a discretion has to be within the four-corners of the conscience; it has to be just and proper. It cannot clothe the person with arbitrary, capricious or unrestrained power. It essentially is bounded by the rules and principles of law.
20. As per Stround's Judicial Dictionary, the following paragraph would show the natural illustrations of the term as spelt out by the English decisions :
"Where something is left to be done according to the discretion of the authority on whom the power of doing it is conferred, the discretion must be exercised honestly and in the spirit of the statute, otherwise the act done would not fall within the statue. 'According to his discretion", means, it is said, according to the rules of reason and justice, not private opinion, Rooke's case, 5 Rep. 100 a; Keighley's case, 10 Rep. 140 b; Eastwick v. City of London, Stule, 42, 43 per Willes, J., Lee v. Bude Railway, L.R. 6 C.P. 576; according to law and not humour; it is to be not arbitrary, vague, and fanciful, but legal and regular per Lord Mansfield, R. v. Wilkes, 4 Burr. 2839; to be exercised not capriciously, but on judicial grounds and for substantial reasons per Jessel M.R., (Re Taylor)7, 4 Ch.D. 160; and per Lord Blackburn, Doherty v. Allman, 3 App. Cas. 728. And it must be exercised within the limits to which an honest man competent to the discharge of his office ought to confine himself per Lord Kenyon, Wilson v. Rastall, 4 T.R. 757; that is within the limits and for the objects intended by the legislature".
21. On this back-drop, if we consider the language of Rule 4.2.0, as was strenuously argued by Shri Bobde, it will have to be held that the discretion to the college authorities to fill up the vacant seats cannot be capricious, arbitrary or sans any legal principle. It has to be just, proper and must keep within the four corners of the good conscience and the prevailing principles of law. It is to be noted here that no justification whatsoever has been pleaded by the respondent Nos. 3 and 4 for preferring the less meritorious students than the petitioner. Indeed, no other principle; no factual data has been presented so as to justify the ignoring of principle of merit. The respondents are merely using the crutches of litera legis to justify their lame stand which, in turn, justifies ignoring of the merits. There is no other reason given out by these respondents, why the principle of merit has been given a complete go-by.
22. Speaking of the interpretation, when Rule 4.2.0 and Rule 8.5.8 are read together, there is only one unmistable conclusion that the principle of merit shall be honoured in the grant of these admissions. We are not prepared to hold that a positive language of Rule 8.5.8 is controlled by the language of Rule 4.2.0, so that an absolute choice could be read in favour of the private colleges to finalise the admissions of the vacant seats. In fact, the very first sentence of Rule 8.5.8 suggests that after the cut-off date, if any vacant seat remains, it shall be filled in on the basis of merit. The relaxation is only in respect of the condition to pass the qualifying examinations from the State of Maharashtra. We do not read any other relaxation. Considering the language of Rule 8.5.8., it is not possible to read Rule 4.2.0 benefit or de hors of this positive language so as to confer an untrammelled choice on the private colleges to fill up the vacant seats.
23. It cannot be forgotten that these Admission Rules take their life and spirit from the decision of the Supreme Court , Unni Krishnan, J.P. v. State of Andhra Pradesh. Even the preamble of the Rules brings out that position. The Apex Court has given utmost importance to the principle of merits in the matter of admission to the engineering and medical courses. In paragraph 170(2), the Supreme Court observes :
"...... The allotment of students against payment seats shall also be done on the basis of inter se merit determined on the same basis as in the case of free seats. There shall be no quota reserved for the management or for any family, caste or community which may have established such college. The criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the 'payment students'. The Management of a professional college shall not be entitled to impose or prescribe any other and further eligibility criteria or condition for admission either to free seats or to payment seats. It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. ........"
It is, therefore, clear that there is not only a positive direction to uphold the merit at any cost, but also an injunction restraining the colleges to run away from the main avenue of merits through the lanes and by-lanes of some other considerations, like reservation of a quota, for the management, or for the family, caste or community establishing the college etc. The principle of merit, thus, is the over-powering spirit of the admission procedure, as per this decision.
23. In the present case, it is an admitted position that the petitioner is a more meritorious candidate. At least, that claim has not been controverted. Respondent No. 6, who has been joined as a party, has not controverted the claim of the petitioner that amongst the seven admitted students, she is the lowest, and compared to the petitioner, she is nowhere. The petitioner has 85% marks in the Physics, Chemistry and Biology Group, whereas she (respondent No. 6) is said to have only 56% marks in the said Group. The respondent No. 3-College has given no explanation as to why the principle of merits has been given a go-by. It will, therefore, not be possible to hold that the respondent Nos. 3 and 4 had an absolute choice to select the students and give admission to them in respect of the vacant seats, as per their own whims, ignoring the merits of the students.
25. In that view of the matter, the instant petition will have to be allowed, and the petitioner will have to be admitted to the respondent No. 3 College, if necessary by cancelling the admission of respondent No. 6, and by readjusting the list of admitted students in respect of the seven vacant seats. The respondent Nos. 3 and 4 will be at liberty to take steps to regularise the admission of the respondent No. 6, with the appropriate authorities. Rule is, therefore, made absolute in terms of prayer Clause (b)(i) of the writ petition. In the circumstances, there shall be no order as to the costs.