Bombay High Court
Kush S/O Dr. Damodar Jhunjhunwala vs The State Of Maharashtra And Ors. on 6 October, 1992
Equivalent citations: 1994(3)BOMCR532
JUDGMENT H.W. Dhabe, J.
1. Both these writ petitions can be disposed of by this common Judgment since they involve a common question of law.
2. Turning first to the facts in Writ Petition No. 1614 of 1992, the petitioner therein appeared for the XIIth Standard Examination in March, 1991. However, according to him, since he was not expecting to secure good percentage of marks in Biology subject, he did not appear and thus failed in that subject. The petitioner thereafter appeared for the XIIth Standard Examination held in March, 1992 in the subjects of English, Physics, Chemistry and Biology because, according to Regulation 101 of the Maharashtra Secondary & Higher Secondary Education Board's Regulations, 1977, he was entitled to claim exemptions in certain subjects in which he had secured not less than 35 per cent of the maximum marks assigned to that subject. He was then declared to have passed in the said subjects in the said Examination. According to the petitioner, he obtained 71 per cent marks in English and 262 marks in Science subjects i.e. Physics, Chemistry and Biology.
3. It is the case of the petitioner that he had planned the above strategy of appearing in the XIIth Standard Examination in Science subjects and English only in order to secure admission in the Medical College by obtaining more marks by concentrating upon the said subjects only instead of all the subjects prescribed for the XIIth Standard Examination since such a course was permissible for eligibility for admission to the Medical College under the then existing rule C(4) of the rule for admission framed by the Government under its G.R. dated 30-5-91. It may be seen that the said rule C(4) framed under the G.R. dated 30-5-91 permitted a candidate to appear in the Science subjects (i.e. Physics, Chemistry & Biology) and English only in one and the same attempt instead of all the subjects prescribed for the XIIth Standard Examination so that he would be eligible for admission in the Medical College on the basis of the marks in the said subjects.
3A. It is the case of the petitioner that after passing in the above subjects, he had submitted an application as per rules to the Dean of the respondent No. 3 college for admission in the academic session 1992-93 in any of the Private Medical Colleges in the 20% quota allowed to the Government in the total seats for admission in the said colleges. The rules applicable to the admissions for the academic session 1992-93 in the above Government quota were rules framed by the Government under its G.R. dated 10-6-1992. The name of the petitioner did not however find place in the merit list of the open category candidates in the said Government quota. It appears that relying upon the new Rule 4(ii)(c) of the above G.R. dated 10-6-1992, the Director i.e. the respondent No. 2 denied admission to the petitioner in the open category on the ground that he did not appear for all the subjects in one and the same attempt in the XIIth standard Examination on the basis of which admission to the medical course was sought by him. The petitioner has therefore preferred the instant writ petition for securing admission in the 1st Year M.B.B.S. Course in any of the Private Medical Colleges.
4. Turning to the facts in the connected Writ Petition No. 1685 of 1992, the petitioner therein likewise appeared for the XIIth Examination of the Board held in the March-April, 1991 but failed in the subject of Mathematics. However, as permissible under Regulation 101 of the regulations of the Board, he appeared for the Science subjects (i.e. Physics, Chemistry and Biology) and English only in the XIIth Standard Examination of the Board held in March/April, 1992. He then submitted an application for admission to the Dean, Government Medical College, Nagpur in the category of seats reserved for the wards of service personnel as per rule B-3 of the G.R. dated 26th May, 1992. The reservation indicated for the sons and daughters of servicemen and Ex-servicemen domiciled in the State of Maharashtra is 5 per cent of the total number of seats and is actually shown in the said rule seperately in regard to each of the Government Medical Colleges. As regards the Government Medical College Nagpur, there are five seats reserved there in for the sons and daughters of servicemen and Ex-servicemen and so far as the Indira Gandhi Medical College, Nagpur is concerned, the said number is three.
5. It is not in dispute that in this category of seats reserved for the sons and daughters of servicemen and Ex-Servicemen, the petitioner was the sole applicant. However, relying upon the new Rule (C)4 of the rules for admission in 1992-93 in Government Medical Colleges framed under the G.R. dated 26-5-1992, he was not given admission solely on the ground that he was ineligible because he had not appeared in all the subjects prescribed for the 12th Standard Examination at one and the same attempt, but had appeared only for the subjects in English, Physics, Chemistry and Biology. Feeling aggrieved, the Writ Petition No. 1685 of 1992 has also preferred the said writ petition in this Court claiming admission in the said reserved category of wards of servicemen and Ex-servicemen. He has also raised the same question in his writ petition that as per the old Rule C(4) under the G.R. dated 30-5-1991, it was permissible for him to appear in only Science subjects and English at one and the same attempt for eligibility for admission to the Government Medical College and therefore, a sudden change in the rule could not be made applicable to him when with a view to get admission to the medical course, he had planned the strategy to appear in the Science subjects and English only in the XIIth standard Examination held in March/April, 1992 so as to secure better marks in the said subject by taking advantage of the then existing Rule C(4) as under the G.R. dated 30-5-1991 which according to him permitted such a course.
6. In appreciating the rival submissions, it may be seen that at the time when the petitioners in these writ petitions, appeared for March, 1992 XIIth Examination of the Board in the above subjects only, the rules applicable for admission to the Medical Colleges were the rules framed under the G.R. dated 30th May, 1991. Rule C of the said rules for admission deals with qualifying Examinations and Eligibility. Clause (3) of the said Rule (C) prescribed that the qualifying examination for admisson to the Medical Colleges was Higher Secondary Certificate i.e. XIIth Standard Examination conducted by the Maharashtra State Board of Secondary and Higher Secondary Education and consisting of the subjects of Physics, Chemistry, Biology and English amongst others. Clause 4 of the said Rule (C) then laid down that a candidate for admisson against the open seats to the medical course must have obtained not less than 50% of the total marks in English and the Science subjects (i.e. Physics, Chemistry and Biology) taken together at one and the same attempt in the qualifying examination. However, for the backward classes the percentage of marks for admission to the medical course was not less than 40% in the above subjects in one and the same attempt in the qualifying examination.
7. Although some doubt is expressed that under the above Rule C(4) of the G.R. dated 30-5-1991 also it is necessary to take the whole qualifying examination i.e. to appear in all the subjects prescribed for the same for admission to the medical course, it is not necessary for us to interprete the said rule because as stated in the application for amendment filed by the petitioner in W.P. No. 1614 of 1992, which statements are not denied, the respondents have considered the cases for admission to the medical course under the above Rule C(4) of such candidates who appeared in the Science subjects and English only and not in all the subjects in the XIIth standard examination in one and the same attempt which would mean that even according to them it was permissible for the candidates to do so under the aforesaid Rule C(4) framed under the G.R. dated 30-5-1991.
8. It appears that the State Government really intended by the above Rule C(4) under the G.R. dated 30-5-1991 also to consider cases of such students for admission to the Medical Course who have appeared for the XIIth examination in all the subjects including Science subjects and English in one and the same attempt but the said Rule C(4) was construed by the authorities empowered to grant admission to the medical course in different manner i.e. to mean that it is permissible thereunder to appear at XIIth standard examination in Science subjects and English only for which reason it appears that it was clarified by the State Government by adding a para in the said rule under the new G.R. dated 26-5-1992 to the effect that being eligible for admission to the medical course in the Government Medical Colleges from academic session 1992-93 onwards the candidate must appear for all the subjects of the XIIth standard examination including the Science subjects and English at one and the same attempt. Similarly, the State Government also amended the rules framed under the G.R. dated 10-6-1992 for admission in the 20 per cent Government quota in the Private Medical Colleges by introducing Rule 4(ii)C similar to Rule C(4) of the aforesaid G.R. dated 26-5-1992.
9. The said Rule C(4) under new G.R. dated 26-5-1992 (similar to Rule 4(ii)C of the G.R. dated 10-6-1992) is as follows:
"A candidate for admission against the open seats to the medical course must have obtained not less than 50 per cent of the total marks in English & the Science subjects (i.e. Physics, Chemistry & Biology) taken together at one & the same attempt in the qualifying examination. Candidates belonging to the Backward Class Communities (i.e. Scheduled Castes & Scheduled Castes converts to Buddhism, Scheduled Tribes including those living outside specified areas, Denotified Tribes and Nomadic Tribes & other Backward Communities) & applying for admission to reserved seats must have obtained not less than 40 per cent of the total marks in English & the Science subjects (i.e. Physics, Chemistry & Biology) taken together at one and the same attempt in the qualifying examination."
(Similar to old Rule C(4) of the G.R. dated 30-5-1991.
"The candidate has to pass the qualifying examination taking together the subjects Physics, Chemistry, Biology & English in the same attempt i.e. he/she to pass the examination taking all subjects together in one sitting or in the same attempt. Exemption in the subject will disqualify the candidate."
It is in view of the above new rule framed as per the G.R. dated 10th June, 1992 or similar rule framed as per the G.R. dated 26-5-1992 that the cases of the petitioners in Writ Petition No. 1614 of 1992 and Writ Petition 1685/92 were not considered for admission to the M.B.B.S. Course commencing from the 1992-93 academic session because as already pointed out, they had appeared in the XIIth standard examination held in March/April 1992 in the subjects of English, Physics, Chemistry and Biology only and not in all the subjects, after having failed in March-April 1991 examination in the subject of Biology or Mathematics as the case may be.
10. The learned Counsel for the petitioners in these writ petitions have urged before us that without any notice, all of a sudden, such a rule cannot be introduced by the State Government because they have acted as per the existing rule to better their prospects and to get admission in the Medical College. In support of their submission, the learned Counsel for the petitioners have relied upon the judgment of this Court in Writ Petition No. 1241 of 1985, Arati Band and another v. State, with connected writ petitions rendered on 11th July, 1985 in which although the existing rule was held to be good, it was held that it could not be enforced against the petitioners in those cases because a change of policy could operate prospectively and it was necessary for the Government to take care of persons who, acting upon the existing rule, have decided to prosecute and plan the course of study in a particular manner.
11. The learned Counsel for the respondent-State has, however, relied upon the judgment of the Full Bench of this Court in Ashwin Prafulla Pimpalwar v. State of Maharashtra, , in support of his submission that the principles of estoppel are not applicable in the matter of medical admissions. He has also relied upon the judgment of the Supreme Court in the case of Punjab University v. Subash Chander and another, , in support of his submission that the change of rule is not retrospective but is prospective.
12. In considering the rival submissions, it is first necessary to consider the effect of the judgment of the Full Bench of this Court cited supra. In appreciating the ratio of the said judgment, it must be borne in mind that the question of estoppel, whether promissory or equitable, is a question of fact and has to be considered in the facts and circumstances of each case. The facts considered in the judgment of the Full Bench were that the earlier criteria of 'marks in the subject concerned' "prescribed for admission to Post-Graduate Courses was changed by the rules framed during 1989 to 1991 and the new criteria which was introduced was the aggregate marks in all the subjects. However, in 1991, the Government decided to revert back to the old criteria and therefore, the submission in the said case was that the Government was estopped from enforcing the new criteria vis-a-vis the students who had planned their career on the basis of the previous criteria of aggregate marks.
13. It is in the context of the above facts and circumstances that the Full Bench has observed that in the first instance, it was open to the Government to alter the rules or change the policy as regards admission of students. It has then observed in para 34 that a student who enters in educational institution cannot be said to have a vested right to prepare for and write the succeeding higher examination on the basis of the prevalent rules/directions and to claim advantage and benefits arising therefrom and therefore it cannot be held that a student has a right for admission to a professional course on the basis of the prospectus in existence when he wrote the S.S.C. Examination. It has also observed that the student prepares for doing best in the examination and not for planning his life and career as urged in that case.
14. What is material to be seen is that in paras 36 and 37 of its judgment, the Full Bench has referred to certain decisions of the Division Benches of this Court including the judgment in Arati Band's case cited supra. It has particularly referred to Writ Petition No. 2065 of 1985, Kum. Swati v. The State of Maharashtra, decided on 7-11-1985 from which the observations referred to with approval are as follows :
"Even if technically speaking, the rules of admission are published in the year and are applicable to that particular year, it may not amount to promissory estoppel because they apply to the prospective academic year. But we find without hesitation that in equity, if a rule has been in vogue since many academic years consecutively, to change it so as to affect restrospectively would take the case into one of equitable estoppel...."
The above observations of the Division Bench in Ku. Swati's case endorsed by the Full Bench would show that the application of the principle of equitable estoppel is not wholly ruled out by the Full Bench in the matter of rules of admission to the educational institutions, including the Medical Colleges. Similarly the ratio of Arati Band's case is also not disapproved by it.
15. It may then be seen that in para 39, it has referred to the judgment of Gujarat High Court in the case of Kumari Jayashree Chandrachud Dixit v. State, 1979 Guj. L.R. 614, wherein it has been held that although there is power in the Government to frame rules and regulations to regulate admissions and to change the norms earlier laid down, frequent changes made in the rules are likely to introduce uncertainity. It is therefore held in the said case that the State Government would be well-advised to consider all the relevant questions relating to its policy in the matter of admission to Government Colleges well in advance of the start of the academic year and to formulate rules based on such policy and make such rules known to the intending applicants by giving to it suitable publicity. No departure should ordinarily be made once such rules are published unless for compelling reasons it is necessary to do so inorder to meet the exigencies of the situation. It is further held in the said case that it would be desirable for the State Government to give to these rules some permanency after taking into account all relevant facts and circumstances. The principles laid down in the above judgment are also approved by the Full Bench.
16. Considering the facts of the instant case, it may be seen that as regards W.P. No. 1614 of 1992 pertaining to the rules for admission in 20% Government quota in the Private Medical Colleges, the said rules are framed under the G.R. dated 10th June, 1992 i.e. just before the commencement of the new academic session 1992-93 for which they are to be made applicable. Similarly as regards W.P. No. 1685 of 1992 pertaining to the rules for admission in the Government Medical Colleges in the academic Session 1992-93, the said rules are framed under the G.R. dated 29-5-1992 i.e. just before the commencement of the said academic Session 1992-93. It is thus clear that just before the commencement of the admissions to the Medical Colleges, Rule C(4) framed under the G.R. dated 29-5-1992 for admission to the Government Medical Colleges and analogus Rule 4(ii) C framed under the G.R. dated 10-6-1992 for admission in 20% Govt. quota in the Private Medical Colleges have brought out a change which would adversely affect the candidates like the petitioners who after their failure in the XIIth Standard Examination have chosen to appear in the next XIIth Standard examination only in the Science subjects (Physics, Chemistry and Biology) and in English only as per the then existing rule under the G.R. dated 30-5-1991 which rule was the same even in previous years, (See Rule C(4) of the G.R. dated 13-6-1987). Had the said rule C(4) been framed prior to their examination in March/April, 1992 in which they appeared in the aforesaid Science subjects and English only instead of all the subjects, there could not have been made any grievance against the said rule because the candidates concerned could be attributed the knowledge about the same before they appeared for the XIIth Standard Examination in question in March/April, 1992.
17. The next question which needs consideration is whether the petitioners can be said to have planned to appear for Science subjects and English only in their XIIth standard examination only with a view to secure admission in Medical Colleges keeping the requirement of the then existing Rule C(4) under the G.R. dated 30-5-1991 in mind. As regards the said question, there is no manner of doubt that they have so appeared for the XIIth standard examination in March/April 1992 in Science subjects and English only in view of then existing rule under the G.R. dated 30th May, 1991 because in March/April 1991 Examination, they had failed only in one subject and as per Regulation 101 of the Maharashtra Secondary & Higher Secondary Boards Regulations 1977, framed under the Maharashtra Secondary & Higher Secondary Boards Act, 1965, they need not have appeared except in that subject. Moreover, if the object was to improve class and distinction in the XIIth standard examination, they would have appeared for all the subjects in March-April 1992 examination instead of Science subjects and English only. In these circumstances, when they have chosen to appear in the Science subjects and English only, it clearly means that they had before them the then existing Rule C(4) under the G.R. dated 30-5-1991 for admission in Medical Colleges which permitted such a course following which they would be able to secure more marks in the said subjects by concentrating upon them only instead of all the subjects prescribed for the XIIth standard examination.
17.A The conclusion is thus irresitible that the petitioners had planned their career by appearing for Science subjects and English only in their XIIth Standard Examination with a view to better their prospects in getting admission to the Medical College only. In contrast, and as found by the Full Bench in its judgment cited supra, it cannot be said with any certainity that the petitioners therein had concentrated on getting higher aggregate marks in M.B.B.S. examination in view of the then existing rule rather than getting high marks only in the subject in which they desired admission in Post Graduate Courses.
18. It is in the light of the above facts and circumstances of the instant case that it has to be seen whether the said Rule C(4) framed under the G.R. dated 29-5-1992 or the Rule 4(ii)(C) framed under the G.R. dated 10th June, 1992 can be enforced against the petitioners. In this regard the judgment of the Division Bench of this Court in Arati Band's case where a similar point was involved is of great assistance. It is necessary to see that the ratio of the judgment of the Division Bench of this Court in Arati Band's case is not disapproved by the Full Bench in its judgment cited supra. On the other hand, the view expressed in the said judgment that "if a change in the system is predicated upon experience gained by the working of the system in the past, no one would come in the way of change and Government cannot be faulted for introducing a different norm for regulating admission" is expressly endorsed by the Full Bench. It may be seen that in Arati Band's case Rule C(4) of the Rules for admission to the Medical Colleges was impugned on the ground that it is arbitrary, discriminatory and violative of Article 14 of the Constitution. Alternatively, it was urged that even if it was not declared invalid, it should not be made applicable to the candidates who had taken their XIIth standard examinations prior to enactment of the said rule. It is pertinent to see that for the first time Rule C(4) as enacted in the G.R. dated 30-5-1991 was introduced at that time the change effected being of the introduction of the words "taken together at one and the same attempt" in the said rule so as to make ineligible for admission in Medical Colleges such students who as a part of their planning and strategy for betterment of their prospects in securing admission to the Medical Colleges would appear at the XIIth Standard examination in parts as it was permissible for them to do so under the aforesaid Regulation 101 of the Higher Secondary Education Board.
19. The Division Bench did not pronounce upon the validity of the then Rule C(4) in Arati Band's case cited supra. It, however, held that a change of policy can operate prospectively and Government can, and often do, take care of persons, who acting upon the existing regulations have decided to prosecute or plan a course of study in a particular manner. It then held in para 17, which lays down its ratio, that the unreasonableness was writ large upon the then Rule C(4) which did not take care of the cases like those of the petitioners before them. According to it, a change of policy of vital nature if it operates retrospectively to the detriment of the citizens would require adequate notice and publicity. It thus finally held that the new Rule C(4) as it then was introduced cannot be enforced against the petitioners therein who had planned their strategy as permissible under Regulation 101 of Higher Secondary Board to appear at the XIIth standard examination of the said Board in parts to better their prospects in securing admission to the medical college knowing full well its disadvantages of the deductions being effected in their aggregate marks.
20. As regards the question of giving due notice and publicity to the rules of policy, the judgment of the Supreme Court in the case of Harla v. State of Rajasthan, , can also be usefully referred to. The Supreme Court has held in the said case that in the absence of any special law or custom to the contrary, the principles of natural justice require that before a law can become operative, there must be some sort of reasonable promulgation or publication of the said law so that those who are governed by it have its knowledge before they are punished or penalised for its breach. The question of giving reasonable notice and publicity to the rules of admission is emphasised in the Gujarat judgment cited supra which is approved by the Full Bench in its judgment. In the instant case, there is no reasonable notice or publicity given to the new rules for admission to the Medical Colleges in the academic session 1992-93 since they are framed just prior to the date when the admissions to the said colleges were to commence after the result of the XIIth standard examination of March/April, 1992 was declared in June, 1992.
21. In our view, there cannot be any dispute about the enforcement of the new Rule C(4) under the Govt. Resolution dated 29-5-1992 for admission to the Government Medical Colleges or Rule 4(ii)C of the Govt. Resolution dated 10-6-1992 regarding 20% Government quota in admission to the Private Medical Colleges in the case of students who would appear for the XIIth standard examination held after the said rule has come into force, because the said examination would be held in March/April 1993 (even supplementary examination for ex-students would be in October, 1992), because they have due notice of the said rule.
21A. However, as regards the students like the petitioners who have appeared for the XIIth Standard Examination of March/April 1992, they did not have any knowledge about such a change and, therefore, they had, as held by us above, planned their strategy under Regulation 101 of the Educational Board to appear for the Science subjects and English only to get more marks in the said subjects by concentrating upon them only taking advantage of the then existing Rule C(4) of the rules for admission to the Medical Colleges framed under the Govt. Resolution dated 30-5-1991 which made such students eligible for admission. There is obviously no provision made for such students in the new rule although as pointed out on behalf of the petitioners, there were many such cases of students who took advantage of the earlier Rule C(4) to better their prospects. In these circumstances, if the new rule is enforced against the petitioners, it would cause them great inconvenience and hardship and would result in penalishing them for no fault of theirs as they would lose one valuable academic year being ineligible for admission under the new Rule C(4) or Rule 4(ii) (C) as the case may be. The enforcement of the new Rule C(4) or Rule 4(ii) (C), as the case may be against them is thus arbitrary and unreasonable.
22. We are supported in our aforesaid view by the Doctrine of Legitimate Expectation which, according to us, is attracted in the facts and circumstances of the instant case narrated above. It is true that the Full Bench has held in its judgment cited supra that the said doctrine is not applicable in the facts and circumstances present in the case before it. But then the applicability of the said doctrine has to be considered in the set of facts and circumstances in a particular case. H.W.R. Wade has considered the said doctrine in his Book on Administrative Law (Vth Edn) at pages 464-465. The learned author has observed that in many situations where there is no legal right involved, it may still involve what the courts sometimes call "legitimate expectation". He has then observed that in the application of the principles of natural justice what matters is not whether the claimant has some legal right but whether legal power is being exercised over him to his disadvantage. Thus, according to him, it is not a matter of property or vested interests, but simply of the exercise of governmental power in a manner which is fair and considerate.
23. Turning to some English decisions, the phrase "legitimate expectation" occurred first in the judgment of Lord Denning M.R. in Schmidst v. Secretary of State of Home Affairs, 1969(2) Ch. 149, 170. In Attorney General of Hongkong v. NG Yuen Shiu, 1983(2) A.C. 629 at 636, the Privy Council held that the word "legitimate" in the above phrase means "reasonable" and not `entitlement' or `recognition by law' as construed by Barwick, J., in Salemi v. Mackellar, (NOC) (1977)137 C.L.R. 396, 404. Accordingly, it held that the phrase `legitimate expectations" is capable of including expectations which go beyond enforceable legal rights, provided they have some reasonable basis. However, in Council of Civil Service Unions & others v. Minister of the Civil Service, 1985 I.A.C. 374, the House of Lords held that although the duty to act fairly required the Minister concerned to consult unions and employees affected by his decision on the basis of the doctrine of legitimate expectations, the considerations of national security outweighed those of fairness. This Court has in the case of Det Norske Veritas v. Reserve Bank of India, 1989 Mh.L.J. 107, also applied the doctrine of legitimate expectations in carrying out a right of hearing to the petitioner in the said case, which was an alien company, in the matter of renewal of permission granted to it since 1977 to carry on its work and business in India.
24. The Supreme Court has now in the case of Food Corporation of India v. M/s. Kamdhenu Cattle Feed Industries, (reported after our judgment was dictated) put its inprintur (sic) upon the Doctrine of "legitimate expectations" in the following words in paragraph 8 of its judgment.
"8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent".
25. The Supreme Court held on facts before it in the judgment cited supra that although the public authority has power to reject all the tenders, such a power cannot be exercised arbitrarily and must depend for its validity upon certain cogent reasons for such action. Inadequacy of price in the highest bid, according to it, is a cogent reason for negotiations with all the tenders giving them equal opportunity to raise their bids with a view to obtain the highest available price for the public good while at the same time retaining the option to accept the highest tender if there is no significant higher bid offered in the negotiations. The Supreme Court thus held that the above procedure involves giving due weight to the legitimate expectation of the highest bidder outbid to have his tender accepted unless expectation by a higher offer in which case acceptance of the highest offer within the time the offers remain open would be a reasonable exercise of power for public good.
26. As held by us, the petitioners appeared for the Science subjects and English only in the XIIth standard examination of the Board held in March/April 1992 as permissible under the existing Rule C(4) for admission to the Medical College under the Govt. Resolution dated 30-5-1991 (similar rule existed since 1985) only with a view to better their prospects in securing admission to the Medical College as they reasonably expected that the above rule would not be changed without giving the students concerned due notice about such change. As pointed out above, the enforcement of the present Rule C(4) or Rule 4(ii)(c) as the case may be against them results in causing hardship to them as they lose one precious academic year in their educational career. The enforcement of the said present rule against them is thus arbitrary and unreasonable and against the rule of law and same cannot therefore be allowed to be enforced against them.
27. The learned Counsel for the State has sought to rely upon the judgment of the Supreme Court in the case of Punjab University v. Subhash Chander, , in support of his submission that enforcing the new rule against the petitioners does not amount to its retrospective application, but is its prospective application since they are seeking admission to the medical college after the said new rule was framed by the State Government under its Govt. Resolution dated 29-5-1992 or 10-6-1992 as the case may be. The facts in the above judgment of the Supreme Court show that the student concerned therein was admitted in the Medical College in 1965 when there was one rule in the Punjab University of giving grace marks which was changed to his disadvantage in 1970. The student thereafter appeared for the third MBBS examination in 1974 but failed according to the new rule about the grace marks. He claimed in the writ petition before the High Court that since he was admitted to the M.B.B.S. course in 1965, the rule about giving grace marks then existing was applicable to him according to which he was entitled to be declared as having passed the examination.
28. Rejecting the said contention, the Supreme Court held in the above case that the operation of the new rule about awarding grace marks is not retrospective when the petitioner-student concerned in the said case had appeared for the examination in 1974 i.e. subsequent to the enactment of the said rule in 1970. What is important to be seen in the said judgment of the Supreme Court is its observations that the student concerned therein had sufficient notice about the change in the rule which was framed as far back as in 1970 and that he was not prejudiced by the change. The ratio of the said judgment therefore, cannot be made applicable in the instant case wherein there is no notice to the petitioners about the change in the new rule and they are definitely prejudiced by the enactment of the new rule as demonstrated hereinbefore which would therefore make the action of the enforcement of the said rule against them arbitrary and unreasonable.
29. In the result, the instant writ petitions are allowed. The respondent No. 2 in Writ Petition No. 1614 of 1992 is directed to give admission to the petitioner in the said writ petition to the First Year M.B.B.S. Course in the current academic session 1992-93 in Private Medical College in the seat kept vacant for him in 20% quota of the State Government. The respondents No. 1 and 2 in Writ Petition No. 1685 of 1992 are directed to give admission to the petitioner in the said writ petition to the First Year M.B.B.S. Course in the current academic session 1992-93 in the Medical College affiliated to the Nagpur University in the reserved category of sons and daughters of Servicemen and Ex-servicemen being the sole applicant in the said category. Rule made absolute as above in both the writ petitions with no order as to costs.