Kerala High Court
Dr.Arun Basil Mathew vs Dr.Mayank Bharati on 29 September, 2014
Author: A.M.Shaffique
Bench: A.M.Shaffique
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE AG.CHIEF JUSTICE MR.ASHOK BHUSHAN
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
MONDAY, THE 20TH DAY OF OCTOBER 2014/28TH ASWINA, 1936
RP.No. 784 of 2014
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AGAINST THE JUDGMENT IN W.A.NO.1327/2014, DATED 29-09-2014
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REVIEW PETITIONER(S) :
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DR.ARUN BASIL MATHEW, AGED 28 YEARS,
S/O. MATHEW PAUL, 15-AISWARYA NAGAR, PADINJARE KUDIYIL HOUSE,
KOTHAMANGALAM, ERNAKULAM DISTRICT.
BY SRI.K.RAMAKUMAR (SENIOR ADVOCATE)
ADVS. SRI.S.M.PRASANTH
SRI.M.MANOJKUMAR (CHELAKKADAN)
SMT.ASHA BABU
SRI.G.RENJITH
SMT.AMMU CHARLES
RESPONDENT(S) / APPELLANT & RESPONDENTS IN THE W.A :
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1. DR.MAYANK BHARATI,
FLAT NO. 9A, SAMRUDHI THAMPURANS,
THAMPURANMUKKU JUNCTION, VANCHIYOOR P.O.,
THIRUVANANTHAPURAM - 695 035.
2. STATE OF KERALA,
REPRESENTED BY THE SECRETARY TO GOVERNMENT HEALTH & FAMILY
WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
3. THE DIRECTOR OF MEDICAL EDUCATION,
DIRECTORATE OF MEDICAL EDUCATION,
MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM - 695 011.
4. THE COMMISSIONER FOR ENTRANCE EXAMINATION,
HOUSING BOARD BUILDING, SHANTHI NAGAR,
THIRUVANANTHAPURAM - 695 001.
5. DR.RAHUN RAVINDRAN, AGED 31 YEARS,
S/O. K.N.RAVINDRAN, SREERAGAM, PONKUNNAM P.O.,
KOTTAYAM - 688 506.
R1 BY ADV. SRI.GEORGE POONTHOTTAM
R2 TO R4 BY GOVERNMENT PLEADER SRI.ROSHAN.D.ALEXANDER
THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 20-10-2014,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Msd.
RP.No. 784 of 2014
APPENDIX
PETITIONER(S)' ANNEXURES :
NIL
RESPONDENT(S)' ANNEXURES :
ANNEXURE R1: TRUE COPY OF THE NOTIFICATION NO.B2/2077/2014/DME
DATED 29.09.2014
//TRUE COPY//
P.S.TO JUDGE.
Msd.
Ashok Bhushan, Ag. C.J & A.M. Shaffique, J.
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R.P. No. 784 of 2014
in
W.A. No. 1327 of 2014
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Dated this, the 20th day of October, 2014.
O R D E R
Shaffique, J.
This review petition has been filed after seeking leave of this Court by a person who was not party to the writ appeal.
2. By judgment dated 29.9.2014 in W.A. No. 1327/2014, this Court having set aside the judgment of the learned Single Judge, declared that clause 3.1.3 of the prospectus in relation to the Medical/Post-Graduate Super Specialty Courses, Kerala 2014 is unconstitutional and it was struck down. However, it was held that admissions made on the basis of counseling held prior to 12.9.2014 shall not be disturbed and that respondents 1, 2 and 3 were directed to redo the admission which was completed on 27.9.2014 disregarding clause 3.1.3 and to make consequential orders regarding admission, including the claim of the appellant.
3. Pursuant to the said directions, it is submitted that admissions had been completed on 30.9.2014. Review petitioner complains that he was not made a party to the writ appeal despite the fact that the review petitioner was affected by the R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 2 :- judgment in the writ appeal.
4. The review petitioner raises two specific contentions seeking review of the aforesaid judgment. One is that he was a necessary party in the writ appeal and in the writ petition, which was not considered by this Court. Reliance is placed on the Full Bench judgment of this Court in State of Kerala and another v. Rafia Rahim, 1978 KLT 369(FB). Second contention is that the 1st respondent herein, who is the writ petitioner, was not entitled to challenge clause 3.1.3 of the prospectus having written the examination and having known about the prospectus conditions, which related to admissions to provide institutional preference to 50% of the candidates from the State of Kerala. It is therefore contended that the writ petitioner was not entitled to approbate and reprobate having written the examination with open mind and having known about the prospectus conditions. Hence it was not open for the writ petitioner to challenge the same when it was found that he was placed at a lower rank. Reliance is placed on the Judgment of Supreme Court in Cauvery R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 3 :- Coffee Traders v. Hornor Resources (International) Co. Ltd., (2011) 10 SCC 420) and Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation, (2011) 5 SCC 435)
5. Counter affidavit is filed by the 1st respondent refuting the allegations made, inter alia contending that one person who would have been affected by the judgment was made as a party in the writ petition, viz. the 5th respondent herein. That apart, as far as the petitioner is concerned, he had applied for admission in the subject M.Ch Thoracic Surgery and M.Ch Neuro Surgery whereas the writ petitioner's application was for a super specialty course in M.Ch Genito Urinary Surgery and M.Ch Neuro Surgery. It is contended that the writ petitioner got admission after the directions issued by this Court in the subject M.Ch Genito Urinary Surgery.
6. It is submitted by the learned Government pleader that the review petitioner had applied for a seat in M.Ch. Thoracic Surgery and Neuro Surgery. He was originally given admission to M.Ch. Thoracic Surgery in the counselling on R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 4 :- 30.7.2014 and in the counseling on 27.9.2014, he obtained admission in M.Ch Neuro Surgery.
7. In fact, the learned Single Judge by an interim order dated 12.9.2014 issued a direction not to admit any candidate in the reservation quota. The writ petition was disposed of on 23.9.2014. Appeal was filed and an interim order was passed by this Court on 26.9.2014 stating that counseling could go on but shall be subject to further orders to be passed in the writ appeal.
8. Therefore, this is not a case where counseling was done without knowing about the interim orders passed by the learned Single Judge as well as this Court. It cannot be said that the candidates were not aware of the interim orders and the challenge in respect of clause 3.1.3, since the admissions are made subject to Court orders.
9. The first question mooted in the review petition is whether it was proper on the part of this Court to have rendered the judgment without impleading the affected parties. It is contended that when the counseling was held on 27.9.2014, the appellant was aware about the name and R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 5 :- address of the candidates who had obtained admission during the said counseling. The question is whether they were necessary parties to the lis. The main contention urged is based on the judgment of the Full Bench (five Judge Bench) of this Court in Rafia Rahim's case (supra) wherein this Court held in Paragraph 12 as under:
"12. The objection was repeated before us by the learned Advocate-General that the writ petition must fail for non-joinder of the selected candidates. The learned Judge was not inclined to regard the objection as fatal. This writ pstition- and many others were filed before the selection to the Medical Colleges was made and the selected candidates had appeared on the scene. Interim orders had been obtained in most, if not all of them, that the selections would be subject to the result of the writ petition. In one of the writ petitions, for instance, O.P No. 3867 of 1977 which is the subject-matter of W.A. No. 312 of 1977 filed by the State the interim order passed in C. M. P. No. 16325 of 1977 is to the effect that the selection and admission would be subject to the result of the writ petition and the selected candidates should be expressly informed that this would be so. But this would not be a sufficient substitute for the obligation to make the affected candidates parties to the proceeding and to afford them specific and pointed notice of the same. The invalidation of the selection is a matter which vitally affects their interests, and the same cannot be done in writ proceedings to which they are not parties."
The Full Bench thereafter referring to the Supreme Court R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 6 :- judgment in Periakaruppan's case (AIR. 1971 SC. 2303) and The General Manager, South Central Railway, Secundrabad v. A. V. R. Siddhanti (AIR. 1974 SC. 1755 Para.20) held that:
"The decision has no application. Differing from the learned Judge, we hold that the writ petition (and the others in this batch) in so far as it seeks to impugn the selection already made should fail for non-joinder of the selected candidates."
Apparently the Full Bench was considering a case were the admissions were over and the classes commenced. That is not the situation in this case.
10. In J.S. Yadav v. State of U.P., (2011) 6 SCC 570, relied upon by the learned counsel for 1st respondent, the Supreme Court had occasion to observe that in service jurisprudence, if a successful candidate challenges a selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case of service of a person is terminated and another person is appointed at his place in order to get relief, the person appointed at his place is a necessary party. Ultimately, at paragraph 60, it is held as under:
R.P. No. 784 of 2014
in W.A. No. 1327 of 2014 -: 7 :- "60. The principle therefore is that while necessary parties should be impleaded, it is not so in the case of proper parties. Applying this principle to the facts of this, where challenge is against the action of Association and failure of the Committee, which are to be justified only by them, I must hold that the candidates who have appeared in the examination held on 14.07.2011 are not necessary parties and their non impleadment is not a fatal defect in this litigation.
Even otherwise, 2 candidates got impleaded in this petition and hence, as noticed in A. Janardhana's case (supra), this is not a case where such candidates went unrepresented. Therefore, this contention also has to be rejected and I do so."
11. Apparently, in this appeal, one of the affected parties had been impleaded and the respective contentions have been considered. That apart, as already indicated, the review petitioner's admission in the counseling held on 27.9.2014 was subject to the result of the writ appeal. As on the date of filing the appeal, appellant could not foresee as to who will be affected by the appeal judgment. As far as the appellant is concerned as on the date of filing the appeal the review petitioner got admission for M.Ch. Thoracic Surgery. Therefore, we do not think that non-joinder of the review petitioner is a ground for reviewing the aforesaid judgment.
12. Another contention urged is on the principle of R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 8 :- approbate or reprobate. It is argued that the 1st respondent had participated in the written test based on the conditions in the prospectus and thereafter he is not entitled to challenge the same. In Cauvery Coffee Traders v. Hornor Resources (International) Co. Ltd., (supra), while considering an application for appointment of Arbitrator under the Arbitration and Conciliation Act,1996 it is held that:
"34. A party cannot be permitted to "blow hot and cold", "fast and loose" or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, is estopped to deny the validity or binding effect on him of such contract or conveyance or order. This rule is applied to do equity, however, it must not be applied in a manner as to violate the principles of right and good conscience." xxxxxx
35. Thus, it is evident that the doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had.
36. In the facts and circumstances of the case, as the respondents resorted to Clause 5 of the purchase agreement dated 28-6-2008, regarding price adjustment and the offer so made by the respondents has been accepted by the applicants and agreed to receive a particular sum offered by R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 9 :- the respondents as a full and final settlement, the dispute comes to an end. The applicants cannot take a complete somersault and agitate the issue that the offer made by the respondents had erroneously been accepted."
In Joint Action Committee of Air Line Pilots' Assn. of India v. DG of Civil Aviation, (supra), the Supreme Court held as under:
"12. The doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. By that law, a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. Taking inconsistent pleas by a party makes its conduct far from satisfactory. Further, the parties should not blow hot and cold by taking inconsistent stands and prolong proceedings unnecessarily. [Vide Babu Ram v. Indra Pal Singh, P.R. Deshpande v. Maruti Balaram Haibatti and Mumbai International Airport (P) Ltd. v. Golden Chariot Airport.](2011) 5 SCC 435)."
13. The learned counsel for 1st respondent placed reliance on a Full Bench judgment of this Court in Saurabh Jain (Dr.) and others v. State of Kerala and others, (2011(1) KLT 888). It is held that in case of violation of the fundamental right, the petitioner could not be non-suited on R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 10 :- the ground of either estoppel or waiver, but it is held that bona fides of the petitioner are relevant in deciding the question whether the court should exercise its discretionary jurisdiction or not. It was further held that having participated in the selection process the petitioner is not estopped from challenging the provisions of the prospectus at a later point of time.
14. Having regard to the aforesaid law laid down by the Full Bench, we have to consider whether the principle of approbate or reprobate applies to the facts of this case. The petitioner in this case was challenging a clause in the prospectus, which this Court has found to be unconstitutional. Merely for the reason that the writ petitioner had written the examination by itself is not a reason to conclude that he is not entitled to challenge the prospectus after the declaration of results as held by the Full Bench of this Court in Saurabh Jain's case (supra). Full Bench was considering the question whether the doctrine of 'Estoppel' or 'Waiver' applies to the facts of the case. In Cauvery Coffee Traders (supra) it is held that a party R.P. No. 784 of 2014 in W.A. No. 1327 of 2014 -: 11 :- cannot be permitted to "blow hot and cold", "fast and loose"
or "approbate and reprobate". Where one knowingly accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or binding effect on him of such contract or conveyance or order. It is further held that the doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. The doctrine of estoppel by election is one of the species of estoppels in pais (or equitable estoppel), which is a rule in equity. In Joint Action Committee of Air Line Pilots' Assn. of India (supra) the Supreme Court held that the doctrine of election is based on the rule of estoppel--the principle that one cannot approbate and reprobate inheres in it. Therefore, when the principle of approbate or reprobate is a species of the rule of 'Estoppel', the Full Bench judgment squarely applies to the facts of the case and the principle of approbate or reprobate does not apply to the facts on hand.
In the result, we do not think any ground is made out warranting interference by way of review and accordingly, the review petition is dismissed.R.P. No. 784 of 2014
in W.A. No. 1327 of 2014 -: 12 :- Sd/-
Ashok Bhushan, Ag. Chief Justice Sd/-
A.M. Shaffique, Judge.
Tds/