Calcutta High Court (Appellete Side)
Elora Bisoi vs The State Of West Bengal & Ors on 13 May, 2016
W.P. No. 8141 (W) of 2016
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Elora Bisoi
Vs.
The State of West Bengal & Ors.
For the Petitioner : Mr. Ekramul Bari, Advocate
Mr. Syed Mansur Ali, Advocate
For the Respondent No. 1 : Mr. S. Banerjee, Advocate
Mr. Debaki Nandan Maiti, Advocate Mr. Abhisek Baran Das, Advocate Hearing concluded on : May 10, 2016 Judgment on : May 13, 2016 DEBANGSU BASAK, J.:-
The petitioner has challenged a letter dated April 21, 2016 issued by the college where she is presently studying. By such letter it has been stated that, since the petitioner does not fulfil the eligibility criteria for admission to a B.Sc. Nursing course the petitioner will not be allowed to appear in further examination.
Learned Advocate for the petitioner has submitted that, the petitioner has taken an admission in a B.Sc. Nursing course. The petitioner did not suppress any facts at the time of obtaining the admission. She has completed the Part-I and Part-II examinations of such course. The petitioner cannot be disallowed from continuing with her course at this belated stage. In support of the proposition that, since the petitioner is not guilty of suppression of any fact, the petitioner should be allowed to pursue her course, Learned Advocate for the petitioner has relied upon All India Reporter 1976 Supreme Court page 376 (Shri Krishan v. The Kurukshetra University), All India Reporter 1986 Supreme Court page 1448 (Rajendra Prasad Mathur v. Karnataka University & Anr.), All India Reporter 1989 Supreme Court page 823 (Ashok Chand Singvi v. University of Jodhpur & Ors.) and All India Reporter 1990 Supreme Court page 1075 (Sanatan Gauda v. Berhampur University & Ors.).
The college authorities are not represented.
Learned Advocate on behalf of the concerned university has submitted that, the educational qualification of the petitioner is such that, she could not have got an admission in the B.Sc. Nursing course. Consequently, she cannot be allowed to continue with her studies. He has submitted that, law prevails over equity and that the Court cannot take a sympathetic view in respect of a situation where the petitioner is ineligible to take an admission to a particular course. The Court should not permit such a student to continue with the course. In support of his contention learned Advocate for the university has relied upon 1993 Volume 4 Supreme Court Cases page 401 (Guru Nanak Dev University v. Parminder Kr. Bansal & Ors.), 1998 Volume 5 Supreme Court Cases page 377 (C.B.S.E. & Anr. v. P. Sunil Kumar & Ors.) and 2012 Volume 2 Supreme Court Cases page 16 (Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM BEd College v. National Council for Teachers' Education & Ors.).
I have considered the rival contentions of the parties and the materials made available on record.
The petitioner had taken an admission to a B.Sc. Nursing course. She has completed Part-I and Part-II examinations of the course from the college. Thereafter, the college authorities have issued the impugned letter dated April 21, 2016 stating that since she does not fulfil the eligibility criteria to take admission in the course, she will not be permitted to take any further examination in the course. In effect the petitioner has been told that, she cannot pursue the B.Sc. Nursing course any further in spite of her admission to the course and her successful completion of the Part-I and Part-II examinations.
None of the parties before me has alleged that, the petitioner is guilty of suppression of any fact while taking the admission. She has produced her mark sheet and all relevant papers for the purpose of consideration for admission to the course concerned. She was given the admission to the course. She was allowed to pursue the course for two years. She has successfully completed the Part-I and Part-II examinations. In fact, the college appears to have discovered the ineligibility on the basis of the same mark sheet by considering which the college had granted her the admission in the first place and had allowed her to continue for more than two years.
On a query from the Court, the learned Advocate for the university authorities has submitted that, there is a Central Selection Committee who looks into the admission of a candidate at the course concerned. The university authorities have no role play in the admission process.
Since the petitioner has submitted all her documents and after considering such documents she was allowed admission to pursue the B.Sc. Nursing course, it cannot be said that, the petitioner is at fault. The college authorities while issuing the impugned letter dated April 21, 2016 has also not relied upon any other document, than those submitted by the petitioner at the time of admission, to state that, she is disqualified to take admission in the course. Notwithstanding such documents being available to the college authorities as also to the Central Selection Committee, the petitioner was allowed to undertake the study and spend two years of her valuable time pursuing the course.
In Shri Krishan (supra) it has been held that, once a candidate was allowed to appear at an examination, the university had no jurisdiction to cancel his candidature for that examination.
In Rajendra Prasad Mathur (supra) the petitioners were admitted in an engineering college. The petitioners had completed the first year and were studying in the second year when the admission was disapproved by the Karnataka University. The writ petition challenging the decision of the Karnataka University was dismissed by the learned Single Judge as also by the Division Bench. The Hon'ble Supreme Court while considering the question whether the students should be allowed to continue the studies in the engineering college in which they were admitted came to the finding that, although the candidates were not eligible for admission to the engineering degree course and that, they did not have any legitimate claim to such admission, but the blame for their wrongful admission lay more upon the engineering college which had granted the admission, than upon the candidates. In such circumstances, the Hon'ble Supreme Court had allowed the students to continue with their studies.
Rajendra Prasad Mathur (supra) was followed in Ashok Chand Singvi (supra). On the same principle the student concerned was allowed to continue with his studies.
In Sanatan Gauda (supra) a student admitted to a law course was found ineligible to be admitted in such course after the declaration of the results of the Pre-Law and Intermediate Law examinations of the university. Again the Court had found that the candidate had submitted his mark sheet along with his application for admission. The college had allowed him to continue with his study. He was allowed to appear in two examinations. He was admitted to the final year of the course. In such circumstances, the university was found to be estopped from refusing to declare the results of the candidate's examination or preventing him from perusing his final year course. It was also held that, it was the duty of the university to scrutinize the matter thoroughly before permitting the candidate to appear in an examination. Not having done so, it cannot refuse to publish the result.
In the facts of this case, the petitioner was allowed to complete the Part-I and Part-II examinations without any hindrance. The petitioner had submitted all her documents with the application for admission. The Central Selection Committee apparently did not scrutinize the documents properly. Therefore, applying the ratio of Shri Krishan (supra), Rajendra Prasad Mathur (supra), Ashok Chand Singvi (supra) and Sanatan Gauda (supra) neither the college nor the university concerned should be permitted to disallow the petitioner from continuing with her study.
In Guru Nanak Dev University (supra) and C.B.S.E. & Anr. (supra) the Supreme Court has observed that, interference at interlocutory stage without recourse to relevant aspects was improper. There ineligible candidates were allowed to take the course by interim orders passed by the Court. In such circumstances, the Supreme Court has held that, the petitioners were not entitled to any sympathy and that since they were ineligible to take admission, they should not be permitted to take the course.
The fact scenario in the present case is absolutely different. The petitioner before the Court has not taken the admission by virtue of any interim order passed by the Court. Rather she was allowed to pursue her studies for two years where she has completed the Part-I and Part-II examinations successfully.
Shri Morvi Sarvajanik Kelavni Mandal Sanchalit MSKM BEd College (supra) has dealt with withdrawal of recognition of an institute granted under the National Council for Teachers Education Act, 1993. It has been held there that, where there are deficiencies at an institute concerned as prescribed by the NCTE, then withdrawal of recognition is warranted. Again the fact scenario in the present case herein is different.
The law relating to the right of an ineligible candidate to continue with a course admitted to, appears to be as follows. A candidate while offering his/her candidature for a course is required to make full disclosure of his/her eligibility qualifications to the admitting authorities. The admitting authorities are required to scrutinize such disclosures prior to admitting the candidate. Once a candidate is admitted after scrutiny of the disclosures made by him/her and such candidate is not guilty of suppression or misrepresentation or committing any fraud in obtaining the admission, the admitting authority is precluded from taking a stand subsequent to grant of admission on the basis of the documents disclosed that, the candidate concerned was ineligible to be admitted. The eligibility of the candidate for admission has to be decided at the time of grant of admission itself. Subsequent thereto, save that candidate was guilty of suppression or misrepresentation or fraud, his/her right to continue with the course cannot be withdrawn. It can be validly withdrawn if the candidate has made a misrepresentation as to his/her eligibility or suppressed any fact relevant thereto or is guilty of fraud in obtaining the admission, then on discovery of such fact the authorities can terminate further continuance of the course by such candidate and take such steps as may be permitted by law. A situation may arise where the admitting authority has to admit a candidate without having sufficient time at its disposal to scrutinize all the documents. In such situations, the admitting authority may admit a candidate provisionally. Candidates who are otherwise ineligible but have got the admission on the strength of interim orders of Courts do not enjoy the same immunity as that of candidates who have been admitted by the authorities themselves without the intervention of the Courts. A candidate securing an admission by virtue of an interim order of Court has to vacate the seat if a finding of ineligibility is returned in the proceedings. The Supreme Court does not favour grant of interim orders for such purposes. Sympathy should not be allowed a role in such circumstances.
In such emergent situations it is permissible for the admitting authority to grant admission provisionally, that is, subject to the result of the scrutiny. The admitting authority is then required to decide within a reasonable period of time, the provisional admission of the candidate, his/her eligibility or the lack of it, as the case may of such candidate to continue with course, and the candidate has to be informed accordingly. A provisional admission in such circumstances does not create any right or equity in favour of the candidate. Such candidate has to discontinue with the course, if found ineligible.
In view of the discussions above the impugned letter dated April 21, 2016 is set aside. The authorities will permit the petitioner to pursue her course till its completion in accordance with law. She will be treated as a bona fide student of the course. She will be permitted by the authorities to fill up the form for the Part-III examination and take the same. Her Part-III examination results will be published along with other candidates.
W.P. No. 8141 (W) of 2016 is allowed. No order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.
[DEBANGSU BASAK, J.]