Punjab-Haryana High Court
Maharshi Dayanand University And Ors. vs Gitanjali Sharma And Ors. on 22 January, 2002
JUDGMENT M.M. Kumar, J.
1. Maharshi Dayanand University and its Vice Chancellor have filed this revision petition under Section 115 of the Code of the Civil Procedure, 1908 (for brevity 'the Code') impugning the order dated I9th November, 2001 passed by the petitioner-University to allow the migration of respondent-plaintiff within two weeks from the date of the order as an interim measure. The Additional District. Judge passed the impugned order on the appeal preferred by respondent-plaintiff against the order dated 8th June, 2001 passed by the Additional Civil Judge (Senior Division), Rohtak declining the application of respondent-plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code.
2. The respondent-plaintiff has filed a suit for mandatory injunction making averments that she was admitted in the B.D.S. 1st year course in the session 1997-98. The entrance test was conducted by the petitioner-University in pursuance of the notification No. 16/11/94-34 B IV issued by the State of Haryana on 7th April, 1997. In the prospectus issued, Shri Baba Mast Nath College, Asthal Bohal, Rohtak has been listed as one of the Dental Colleges of Haryana were candidates successful in the entrance test were to be allocated by the petitioner-University. The respondent having taken the entrance test and after attending the counseling was allocated and admitted in Shri Baba Mast Nath College. She passed her 1st 1st year B.D.S. examination conducted by the petitioner-defendant in September, 1998 and stood first in the University. Thereafter in October, 1998 an advertisement was issued by the petitioner-University seeking application for migration for third semester course. The respondent applied and the Principals of Shri Bana Mast Nath College and Dental College of the petitioner consented to the migration. However, the petitioner-university did not allow the application of the respondent for migration. Thereafter, the respondent filed a civil suit on 7th December, 1998 and alongwith the suit she filed an application under Order 39 Rules 1 and 2 of the Code. On 7th December, 1998, the civil Court issued interim directions that the petitioner-defendants are restrained from allowing migration of any other student. The case of the respondent-plaintiff even pleaded before me is that a seat remained vacant because of the interim directions that has now been carried to seventh semester. It is further given out by the parties that Shri Baba Mast Nath College was recognised for the year 1997-98 and for the year 1998-99 but not thereafter.
3. Shri Ashok Aggrawal, learned Senior counsel appearing for the petitioners had made four submissions namely (a) that the respondent-plaintiff did not apply for migration within the time prescribed, (b) that Shri Baba Mast Nath College has not been recognised by the Dental Council of India; (c) that the migration cannot be claimed as of right because it prejudices the rights of others and lastly (d) that the passing of interim order and allowing the migration of the respondent-plaintiff would amount to decreeing the suit.
4. Shri Sudarshan Goel, learned counsel appearing for the respondent-plaintiff has argued that respondent has applied to her College well within the time and the question of recognition cannot be raised by the petitioner-defendant University because they had in their prospectus given out that Shri Baba Mast Nath College is recognised and the respondent-plaintiff was admitted by the petitioner-University after holding of entrance examination for the B.D.S. course. He has further argued that this revision petition is not maintainable in view of proviso (b) to Section 115 of the Code as the petitioner-defendant would not suffer any injury or loss. According to the learned counsel, the seat has been kept vacant in pursuance to the interim orders passed on 7th December, 1998 in third semester which vacant seat has now been carried to 7th semester because of the passage of time.
5. Before adverting to the respective contentions raised on behalf of the parties, it is necessary to observe that the petitioner-defendant on the asking of State of Haryana has conducted an entrance examination and allocated the respondent-plaintiff to Shri Baba Mast Nath College. Even in the prospectus it has been held out to the students that Shri Baba Mast Nath College is a college which provides facilities for B.D.S. course. There is no indication in the prospectus given to the students that it was not recognised or was recognised only for a year or two. If it is held out to the students by the State or its functionaries like the petitioner-defendant University that a particular college is on the list of recognised colleges then they are bound by the statements made in the Information Brochure. The candidates at no stage were informed that Shri Baba Mast Nath College was not recognised or was recognised for a limited period. Such a situation has arisen before the Hon'ble Supreme Court in the case of State of Uttar Pradesh and Ors. v. Dr. Reena Slnghal.i J.T. 2000(4) S.C. 259. In the short order, their Lordships observed as under:
"The High Court has found on the basis of entries on record and the admitted position of the parties before it, that Diploma in Gynaecology Course being conducted in Maharani Laxmi Bai Medical College, Jhansi was not a course recognised by Medical Council of India and that at the time of counseling when a seat in Diploma in Gynaecology in the said College was offered to the respondent, who opted for it, she was not made aware of the position that the course was not a recognised course. It is also admitted that neither in the brochure nor in the prospectus was it disclosed by the appellants that the Diploma in Gynaecology in that college was not a course recognised by the Medical Council of India. The respondent was apparently misled. It did not behove the appellants to have kept back such vital information from the student seeking admission to the diploma course in the medical college. It was not only concealment of such a material fact in the brochure and the prospectus but, even at the time of counseling admittedly information was not imparted to the candidates. The High Court under the circumstances was justified in allowing the writ petition in the following terms;
"The writ petition is allowed and the opposite parties, particularly opposite party No. 2 is directed by a writ of mandamus to offer a course of speciality in either of the medial colleges as courses as disclosed by her in her representations dated 20th June, 1994 and 10th September, 1994 contained in Annexures 6 and 8 respectively, to the writ petitioner within a period of one month from the date of service of a copy of this order."
In view of the admitted fact situation, we see no reason to interfere. This appeal, therefore, fails and is dismissed with costs."
6. Therefore, the respective contentions of the parties have to be analysed in the light of the stipulations made by the petitioner-University in its prospectus issued for the session 1997-98.
7. The first submission of the learned Senior counsel appearing for the University that respondent plaintiff did not apply within the specified time does not require any serious consideration because the petitioner-University is relying on an advertisement which had sought applications for inter University migration and for such an application the last date kept was 5th August, 1998, The application of the respondent-plaintiff would not be covered by the aforementioned advertisement because that applied only to inter University migration and not to inter college migration affiliated to the petitioner-University. There are two rules in the M.D,U. Calendar, 1998 Volume II (for brevity 'the Calendar') namely Rules 257 and 260 which govern the question of migration. Both these rules are reproduced hereunder for facility of reference:
"Migration to B.D.S. Course (page 257) The migration of a candidate from a Dental College, whose B.D.S. degree has not been recognised by the Dental Council of India shall not be permitted. The application "for migration must be made by the applicant within three months of the declaration of Maharshi Dayanand University result. In case the request is received after three months, the approval of the Dental Council of India be obtained."
"Migration from one College of the University to another.(Page 260) A students who has joined one college of the University and wishes to migrate to another college of the University during the same course shall be permitted to do so only if the application is forwarded to the Registrar for sanction through the Principals of both the colleges, accompanied by a fee of Rs. 15/- which shall not be refunded."
8. Rule 257 postulates submission of application for migration within three months of the date of declaration of result by the M.D.University and migration of a candidate from Dental College whose B.D.S. degree has not been recognised by the Dental Council of India has not been permitted. However, there is a specific provision for migration from one College to another belonging to the petitioner-University made under Rule 260. This rule requires that if Principals of both the college agree to the migration and the application is forwarded to the Registrar through Principals of both the colleges accompanied by a requisite fee then such a student shall be permitted to migrate. The correct interpretation of the Rule, to my mind, is that inter college migration affiliated to the same University is contemplated by Rule 260 and no time limit has been envisaged therein. The advertisements dated 18t July, 1998 and 21st July, 1998 issued by the petitioner-University inviting applications for migration from other Dental Colleges/Institutions in India would cover inter University migrations. The case of the respondent, therefore, appears to be covered by Rule 260. Therefore, I have no hesitation in rejecting the first argument of the learned senior counsel for the University that the respondent-plaintiff failed to file application within the stipulated period.
9. The second argument that Sh. Baba Mast Nath College is not recognised also does not impress me because it ill-behaves the petitioner-defendant to take such a stand. In the Information Brochure they have themselves held out to the students that Shri Baba Mast Nath College is one of the Dental College affiliated to them and provides facilities for B.D.S. course. It does not lie in the mouth of the petitioner-University to take such a stand after they have held out to the students that the institution where she was allocated is not recognised.
10. The other argument of the petitioner-defendant University that the interim order would amount to decreeing the suit had to be examined in view of the provisions contained in proviso (b) to Section 115 of the Code as to what injury the petitioner-defendant would suffer and as to what are the parameters of jurisdiction of this Court under Section 115 of the Code. The matter with regard to application of the rules and the filing of application has been considered by both the Courts below and interim order has been passed allowing the migration of respondents-plaintiff. There is a prima facie case in favour of the respondent-plaintiff and also she would suffer irreparable loss if she is forced to remain idle and is not allowed to study for seventh semester. In the case of The Managing Director (M/G) Hindustan Aeronautics Limited Balangar and Anr. v. Ajit Prasad Tarway, A.I.R. 1973 S.C. 76, it was held by the Hon'ble Supreme Court that as long as the order of the lower appellate Court is within its jurisdiction then even if the order is wrong or in accordance with the law or not, the High Court would refuse to exercise jurisdiction. The view of their Lordships reads as under:-
"In our opinion the High Court had no jurisdiction to interfere with the order of the first appellate Court. It is not the conclusion of the High Court that the first appellate Court had no jurisdiction to make the order that it made. The order of the first appellate Court may be right or wrong; may be in accordance with the law or may not be in accordance with law; but one thing is clear that it had jurisdiction to make that order. It is not the case that the first appellate Court exercise its jurisdiction either illegally or with material irregularity. That being so, the High Court would not have invoked its jurisdiction under Section 115 of the Civil Procedure Code: See the decisions of this Court in Pandurang Dhoni v. Maruti Hari Jhadav, (1966)1 S.C.R, 102 = (A.I.R. 1966 S.C. 153) and D.LF. Homing and Construction Co, (P) Ltd. New Delhi v. Sarup Singh, (1976)23 S.C.R. 368 = (A.I.R. 1976 S.C. 2324)."
11. The view taken in Ajit Prasad Tarways 's case (supra) has been followed in the Municipal Corporation of Delhi v. Suresh Chandra Jaipuria and Anr.? A.I.R. 1976 S.C. 262; Mechalec Engineers and Manufacturers v. Basic Equipment Corporation, A.I.R. 1977 S.C. 577 and also in the case of Terene Traders v. RJ.and Company,. A.I.R. 1987 S.C. 1492.
12. Learned counsel for the respondent-plaintiff has stated at the Bar that the respondent as completed her course upto 6th semester and she is eligible in all respects to take admission in 7th semester. The statement made by the learned counsel has not been controverted by the counsel for the petitioner-defendant University. It has further been conceded that seats in the 7th semester are lying vacant. Taking into consideration all these facts and also the consent recorded by the Principals of both the colleges in terms of Rule 260, I do not deem it appropriate to interfere in revisional jurisdiction in the order passed by the Additional District Judge because it would not cause any injury to the petitioner-defendant. Needless to mention that whatever is said herein before is provisional expression of opinion and the evidence on the suit is yet to be lead and final findings are yet to be recorded.
13. For the reasons recorded above, this revision petition fails and is accordingly dis missed. The trial Court record summoned be returned forthwith.