Calcutta High Court
Dipannita Pal vs State Of West Bengal & Ors. on 3 February, 1999
Equivalent citations: (1999)2CALLT511(HC)
JUDGMENT M.H.S. Ansari, J.
1. The brief facts leading to the filing of present writ application are that the petitioner was selected by the trustees of the trust dated 28.6,92 (Copy of the trust deed is annexure 'A' to the writ petition) whereby provision has been made for admission to some students of Subarna Banik Parentage in the Carmlchel Medical College. By the said trust, the trustees three in number have been conferred the power to make the selection and nominate candidates in M.B.B.S. course in the said Medical College. It is the case of the petitioner that she has been so selected by the trustees and intimation of her such selection was made by a letter dated 31.8.98 addressed to the Principal of the said College (annexure 'E' to the writ petition). However, one of the trustees R.N. Maltick, respondent No. 6 herein appears to have addressed a letter to the Principal of the College in question dated 28.8.98 requesting the Principal not to allow the vacant seat to anybody as the nominee of the trust until he (R.N. Malllck) informed the final selection of the candidate. By a letter dated 4.9.98 addressed to the Principal the two remaining trustees i.e. the respondents No. 7 and 8 informed the Principal or the selection of the petitioner herein but the Principal refused to admit the petitioner because of the communication dated 28.8.98 of Shri R. N. Mallick. The petitioner caused a demand of justice notice issued to all the respondents and thereafter filed the present writ petition seeking inter alia, the following reliefs;
"(a) A Rule do issue out of and under the seal of this Hon'ble Court asking the respondents and each one of them to show cause as to why a writ of or a writs in the nature of mandamus should not go commanding the principal, R. G. Kar Medical College & Hospital to admit the petitioner as a Medical Student of 1st year M.B.B.S. course for the year 1998 forthwith and immediately:
(b) A Rule do Issue out of an under the seal of this Hon'ble Court asking the respondents and each one of them to show cause as to why a writ of or a writs in the nature of mandamus should not go asking the respondents to show cause as to while the communication dated 28.8.1998 being annexure 'C' to this application should not be set aside, quashed and cancelled and to show cause as to why the letter dated 31.8.98 being annexure 'E' to this application Issued by majority of trustees should not be acted upon and given effect to."
2. The trustees i.e. the respondent No.6, R. N. Malllck as also the remaining two trustees viz., the respondent Nos.7 and 8 have filed their affidavit-in-opposltlon, as also the respondents Nos.1, 2 and 3. The affidavit-in-reply was filed on behalf of the respondents Nos.7 and 8 to the main affidavit-in-opposition filed by the respondent No.G. The writ petitioner also filed affidavit-in-reply to the affidavit-in-opposition filed by the said respondent No.6.
3. Supplementary affidavit with the leave of court was filed by the respondent No.6.
4. It must also be stated here that R. N. Mallick, respondent No.G took out originating summons and by an order dated 17.9.98 passed by His Lordship Justice P. C. Ghosh ex-parte interim stay was granted, staying the effect of the letter dated 31.8.98 Issued by the remaining two trustees, respondents Nos.7 and 8 recommending the name of the petitioner for admission in the said medical course.
5. By an order dated 23.9,98 a Division Bench of this High Court disposed of the appeal filed by the petitioner herein against the said ad- interim order passed in the originating summons suit. The Division Bench granted leave to the petitioner herein to prefer the said appeal as she was not made a party to the said proceedings' but was held to be a person aggrieved by the said order. The Division Bench, however, has not gone into the merits of the matter. The Division Bench while staying the order appealed from observed as under:
"In our view all these issues could have been raised by the respondent-plaintiff in the writ proceedings to which the respondent-plaintiff was so nominated, a party. We are of the view that in the circumstances of this case, the respondent No. 1 should not have put the very issue which was to be determined by one learned Judge in dispute before another learned Judge in a separate proceeding. Thirdly, the order under appeal was admittedly not passed after giving any notice to the applicant although the applicant would be seriously prejudiced by the order. It may be that Ihe applicant is not as such entitled to be added as a party to the Originating Summon Suit. However, when an inlerlocutary relief is sought for in such a suit affecting third party interest, the established practice in keeping with all principles of Justice, so that a copy of the notice of motion as well as the grounds of notice of motion should have been served on the party sought to be effected by the interim order. This was not done. We accordingly stay the order appealed from. There will also be an order in terms of prayer 'a' of the stay application."
6. By an order dated 28.9.98 in the present writ application Justice Bhaskar Dhattacharjee was pleased to direct to keep the seat in M.B.B.S. Medical course 1998 reserved for the candidate under the B.C. Dey Trust until further orders.
7. Mr. Shaktinath Mukherjce, learned senior counsel appearing for the petitioner contended that the selection of the petitioner having been made, the same is a majority decision of the trustees, the College authorities by virtue of the indenture of trust, being annexure 'A' are bound to honour the same and to admit the petitioner for the course in question. The trust deed, it was submitted specifically provides in Clause 5 that the opinion of the majority shall prevail.
8. Reliance has been placed upon certain judgments, reference to which shall be made at an appropriate juncture.
9. On behalf of the State, Mr. Pradyut Kr. Nandl submitted that the dispute is really one inter se the trustees with respect to the selection of the petitioner and in view of the communication dated 28.8.98 received from the respondent No.6 the Principal of the College in question had informed the remaining two trustees, respondent Nos.7 and 8 when they met him in his Chamber about the same and thereupon, the respondents No. 7 and 8 had informed the Principal that the matter would be sorted out between the parties and their decision would be communicated to the Principal. in short, it is the submission of the State respondents that the question is not one of refusal to admit as alleged but of the inter se disputes between the parlies which need to be resolved. Whatever decision is ultimately taken by the trustees, the College would act in accordance therewith. The matter, it was submitted Is subjudice in the present writ petition as also in the Originating Summons Suit and therefore, no action has been taken with regard to the admission of the petitioner.
10. Mr. Ajoy Kr. Chatterjee, learned counsel appearing on behalf of the respondent No.6, R. N. Mallick, however, contended that the entire selection process with respect to selection of the petitioner is vitiated. The purported decision taken on 30.8.98 is not a decision taken in the meeting of the trustees of B.C. Dey trust which can be said to have any effect or is binding upon the respondent No.6 Mr. Chatlerjee referred to and relied upon the various averments made in the affidavit-in-opposition, affidavit-in-reply and also the supplementary affidavit and the documents enclosed therewith in support of his submission that the selection process has been vitiated. That the criteria to select the candidate in the interview was fixed by the respondents No.7 and 8 in conspiracy and collusion with an oblique motive to unduly favour the petitioner. That the respondent No.8 was absent during the interview of the candidates and there being disagreement between the respondents No.6 and 7 on the scoring of the interview, the purported decision has no legal force. The notice of the meeting said to have been held on 8.8.98 was not received by the respondent No.6. The receipt dated 29.8.98 upon which respondent Nos.7 and 8 have relied pertains to a letter dated 29.8.98 complaining against the cancelling of the meeting scheduled on 29.8.98 as highly motivated. There Is no mention of the meeting fixed for 30.8.98 in that letter. The notice convening the meeting on 30.8.98 was not enclosed therewith or in the cover, receipt for which was issued by the respondent No.6. It was also contended that the respondent No.7 was nominated by one of the retiring trustees in his place by letter dated 30.8.95 and his term of three years expired on 29th August, 1998 and, therefore, all decisions taken by the respondent No.7 after 29.8.98 are ultra-vires the trust deed, unauthorised and bad in law.
11. Mr. Chatterjee, learned counsel for the respondent No.6 further contended that the Issue as to the manner and mode of selection is subject matter of the Originating Summons in the Original Side of this High Court wherein many disputed issues of fact have been raised and need to be decided which cannot appropriately be made in the writ Jurisdiction and. therefore, this court would refrain from deciding such disputed question of facts in its writ Jurisdiction or grant any relief to the writ petitioner in this proceedings.
12. Mr. Milan Bhattacharjee, learned counsel for the respondents No.7 and 8 who are the other trustees have supported the case of the petitioner and also traversed the various allegations made in the affidavlt-ln-opposition filed by the respondent No.6. It was the submission of Mr. Milan Bhatlacherjee that in August. 1998, the Principal of the Medical College in question by his letter dated 12.8.98 requested the respondent No.6 (who was also the Secretary of the trust in question) to nominate one candidate for admission in MBBS course. A meeting was held pursuant to a notice dated 17th August, 1998 Issued by R. N. Malllck and all the three trustees participated in the said meeting held on 20th August. 1998, wherein it was resolved that an interview shall be held on 27th August, 1998 at the office of the SamaJ for selecting a candidate who will be nominated for admission in the said Medical College. in the said meeting, the modalities of the selection were also framed and decided by the trustees. A copy of the minutes of the meeting of the trustees of B. C. Dey trust held on 20th August. 1998 being annexure 'B' to the affidavit-in-opposition filed on behalf of the respondent Nos.7 and 8. Mr. Bhattacharjee further submitted that as decided in the aforesaid meeting, 22 candidates appeared at the interview held on 27th August, 1998 and the petitioner herein secured the highest marks. A copy of the score sheet has been marked as annexure 'C' lo the affidavit-in-opposition. The respondent No.6, however, did not either sign the said score sheet nor record his note of dissent to annexure 'C'. The action of the respondent No.6 in Issuing the letter dated 28lh August, 1998 to the Principal, it was submitted was not depletion of correct state of affairs and that the meeting scheduled to be held on 29lh August, 1998 for making the final selection was postponed at the instance of Mr. R. N. Malllck by a letter dated 28th August, 1998 on the ground of his personal 111 health. The remaining two trustees thereupon Issued a notice dated 29.8.98 informing that there would be an emergent meeting on 30.8.98. The said notice was said to have been served upon the respondent No.6 by hand and even then he did not appear in the meeting held on 30.8.98. Copy of the receipt of notice Is annexure 'F' to the affldavit-in-opposition of the respondents Nos.7 and 8. The remaining two trustees deckled lo select the petitioner who had secured the highest marks at the interview held on 27.8.98 and thereafter by their communication dated 31.8.98, the two trustees viz., respondent Nos.7 and 8 communicated their decision to the Principal of the Medical College in question with regard to the selection of the petitioner for the admission in the Medical College for the year 1998.
13. Mr. Saktlnath Mukherjee, the learned senior counsel appearing for the petitioner, on the other hand contended that the respondent No.6 being one of the trustees, cannot question the action of the remaining trustees and relied upon the judgment of the Supreme Court in Bihar Public Service Commission & Anr. v. Dr. Shiv Jatan Thakur & Ors., 1994(3) SCC 220. It was further submitted that the notice of the meeting having been only served upon the respondent No. 6 and he (respondent No.6) having choosen not to attend the said meeting, the decisions taken at the said meeting are binding upon him and the meeting cannot be said to be illegal. The learned senior counsel relied upon a judgment of the Supreme Court in Shri Iswar Chandra v. Shri Satyanarain Sinha & Ors., 1972 SLR 385.
14. It was further submitted by Mr. Saklinath Mukherjee, learned senior counsel appearing for the petitioner that the writ court in exercise of its jurisdiction of judicial review would refrain from examining the validity of the actions of the trustees which are within their (trustees') exclusive jurisdiction. Unless of course the decisions taken by the trustees at their aforesaid meeting are ultra-vires their power, which Is nobody's case. A writ court, it was further submitted cannot sit in appeal over the decision of the trustees or substitute its views for that of the trustees. More so, when the trustees are not Slate within the meaning of Article 12 of the Constitution of India and is a private body governed by its own rules having no statutory force.
15. In support of his said submissions, Mr. Saktinath Mukherjee retted upon Page v. Hull University Visitor, 1993(1) All England Law Reports at page 97.
16. It may be useful to briefly look at the trust deed whereby power has been conferred upon the trustes to make the selection and also with a view to ascertain the nature of the powers so conferred upon the trustees and the duties enjoined upon them thereby.
17. The indenture dated 20.1.1992. being annexure 'A' to the writ petition was executed between Bolal Chand Dey, Subarnabanik land holder (therein called the founder) on the one part and the Medical Education Society of Bengal, a Society registered under Act 21 of 1960 (therein called Society) on the other part, after reciting that the founder is seized and possessed of several messuage, lands here dilaments and the premises described in the schedule thereunder written and therein described as "endowed property" and that the founder being desirous of promoting medical education and believed that the object can be best attained by making provisions for the free medical education for some students of Subarnabanik parentage uplo the standard of final M.B. Examination of the University of Calcutta or higher standard in the Carmlchael Medical College, being the first recognised non-official Medical College in india affiliated yo the said University at Calcutta or any other similar institution. It was witnessed that the endowed properties were endowed on the conditions upon the trusts therein contained. One of the conditions being that the society shall within three years from the date of the said presents found and open to the public a Cholera and other infectious diseases ward to be appropriated and used in perpetuity and shall maintain the same out of its own funds. in consideration of the premises, the society shall make arrangement for the medical education of some students of Subarnabanik parentage in the Carmichael Medical College according to the rules and regulations set out in the schedule 'B' to the said indenture.
18. In schedule 'B', the rules and regulations as to selection of 6(six) free students have been set out, to the extent relevant for the purpose of the present enquiry, some of the said rules namely. (1), (2), (4), (5) and (6) are extracted hereinbelow for ready reference.
"1. There shall be three trustees who shall in a meeting select the free students or student from among the Subarnabanik:
2. The trustees shall be nominated every three years by the said founder during his lifetime two of them being always Subarna Banik and after his death by his representatives in that behalf as Is hereafter provided.
3. The power of nominating a successor or successors shall be inherent in every original or derivative nominee of the said founder. in any case any Trustee or his nominee dies without making any nomination then the surviving Trustees shall appoint a new Trustees in the place of deceased one.
5. In a meeting of the trustees the opinion of the majority shall prevail.
6. The qualification of the Scholar selected shall be according to the Rules and Regulations of the Carmichael Medical College for the admission of students for the time being."
19. The first trustees nominated by the founder are empowered and authorised by Rule 3 to nominate his or their successor except that the Secretary for the time being of the Calcutta Subarnabanik Samaj shall not have any power to nominate any successor other than his successor in office in the said Calcutta Subarnabanik Samaj.
20. From the above regulations as contained in Schedule 'B' to the indenture referred lo, the qualification of scholar selected shall be according to the rules and regulations of the Carmichacl Medical College for the admission of students for the time being.
21. The said College, it appears has since been taken over by the Slate and there is no dispute that the same is "Stale" within the meaning of Article 12 of the Constitution of India.
22. As to the nature of the functions discharged by the trustees, respondents No. 7 and 8 have in paragraph 5 of their affidavit-in-reply to the main affidavit-in-opposition filed on behalf of the respondent No. 6 stated thus;
"In the instant case, the trust has been discharging a public duty. The nature and functions of the trust in nominating a candidate for undergoing the M.B.B.S. course Is not a private duty. The said duty is a public duly and as such, the body in question Is subject to public law."
23. In the context of admission to an institution imparting higher education in professional course, a question has often arisen whether the Stale can make provision giving preferential treatment lo candidates seeking admission to the institution. in dealing with this question, the approach of Ihe Supreme Court of india has been thai such preferential treatment must be consistent with the mandate of Article 14 of the Constitution guaranteeing equality of opportunity and that though reasonable classification Is permissible, such classification must have a reasonable nexus with object of the rules provldlngs such admission, viz., lo select the most meritorious amongst the candidates to have advantage of such education. Applying the test, the Supreme Court has struck down, as violatlve of Article 14 of the Constitution of india, provision for allotment of seats in Medical College in the Slate amongst the various districts in the Slate in the ratio of the population of the each districts to the population of that Slate (See-Minor P. Rqjcndra v. State of Madras & Ors., ).
24. Similar provisions for distribution of seals on unit basis was also struck down (see A Peria Karuppan v. State of Tamilnadu & Ors., 1973(2) SCR 430).
25. The Supreme Court has insisted that while nominating candidates for admission the concerned aulhorily should follow the criteria of merit and has viewed with disfavour the conferment of discretion in this regard on the founder of the institution or the person/persons in management of the institution. in Suman Gupfa and Ors. v. State ofJ. & K. & Ors., , there was an arrangement among some of the Slates under which a certain percentage of seals in Medical Colleges was reserved for candidates from other Slates on reciprocal basis. The nomination made by the Slate Government against the seats were challenged on the ground that the same were made by the State Government in their absolute and arbitrary discretion. It was held that (he principle adopted by the State Governments of nominating candidates in their absolute and unfettered choice to seats in Medical Colleges outside the State was invalid being violatlve of Article 14 of the Constitution. The apex court directed the Medical Council of India to formulate proper constitutional basis for determining the selection of candidates for nomination to scats in Medical Colleges outside the State and that until a policy was so formulated, it was directed lhat the nomination shall be made selecting the candidates strictly on the basis of merit, the candidate nominated being those in order of merit, immediately below the candidate selected for admission to the Medical Colleges of the home States.
26. In a recent Judgment of the Supreme Court in J.P. Unni Krishnan & Ors. v. State of Andhra Pradesh & Ors., , the Supreme Court evolved a scheme which every authority granting recognition/ affilication shall Impose upon the institution seeking such recognition/ affiliation. It has been observed that the idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission because it is discretion in the matter of admission that is at the root of several ills complained of.
27. It will thus be seen that the Supreme Court has consistently and categorically held that while selecting candidates for admission to professional Colleges like Medical Colleges, the concerned authority should follow the criteria of merit and merit alone.
28. The trustees in the instant case are thus bound in law to select a candidate, under the powers vested in them by virtue of the trust deed to select a candidate of Subarnabanik parentage following the criteria of merit and merit alone. The question, however, aroses and as contended by Mr. Saktinath Mukherjee, learned senior counsel for the petitioner whether the court can judicially review the action of the trustees which is within the execlusive Jurisdiction of the trustees and governed by terms of the trust deed, a non-stalulory document. This question is of some relevance and Importance and has to be considered as according to Mr. Saktinath Mukherjee, the court cannot in its writ Jurisdiction enter upon such enquiry on the basis of ralio of judgment of the House of Lord's in Page v. Hull University Visitor, 1993 (1) All ER 97. Before we consider Ihe ratio in Page's case, it may be useful lo consider Ihe nature of duly enjoined upon the trustees whether any public element is involved in selecting candidates for admission to the Stale Medical College.
29. We have already noticed that admissions made to professional Colleges like Medical Colleges, the preferential treatment--in the instant case power of the trustees lo select and obligating the state to admit one such candidate as selected by the trustees must be consistent with the mandate of Article 14 of the Const! tullon guaranlingequallly of opportunity. Though the trust deed in question has no statutory force and the Iruslees do not fall within the deflnalion of'State' wilhln the meaning of Article 12 of Ihe Constitution, when there is no statutory rules governing Ihe exercise of power vested in the trustees, they are nevertheless performing a public duty. This Is for the reason that selection of students for admission to State Medical College is regulated by rules having the force of law and is a public duty. Where a private body, the trustees in the instant case are allowed to perform such duty of selecting one candidate, the same shall not cease lo be a public duty. That apart, the candidates to be selected for admission to professional course such as the Medical College in question from Subarnabanik parentage, they have a right to be considered for selection by trustees and consequential admission to the State Medical College on the basis of merit. An element of public interest ts thus inherent in the performance of their (trustees) duties. Even though, a private body, the trustees it must be held are performing a public duly when selecting a candidate for admission to the State Medical College and that they owe a positive obligation to the candidates of Subarnabanik parentage to select the most merllotrJous from amongst them.
30. The next question that arises for consideration Is whether any writ or direction can be issued to the trustees a private body and can their action in the matter of selection of the candidate for admission to Medical College be judicially reviewed?
31. It is well established that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the Statute. Under Article 226 of the Constitution of india, writ can be issued to "any person or authority". It can be Issued "for the enforcement of any of the fundemental rights or for any other purpose." in Shri Anandi Mukta Sadguru Shri Muktaji Vandasji Swami Subarna Jayanti Mahafetsav Samarak Trust v. V.R. Rudant, , the Supreme Court observed that the words "any person or authority used in Article 226 of Constitution of india are not confined only to statutory authorities and instrumentalities of the Stale. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duly Imposed on the body. The duty must be judged in the light of posllve obligation owed by the person or authority to the effected party. No matter by what means the duty Is Imposed. If a positive obligation exists mandamus cannot be denied. It was further observed therein that the judicial control over the fast expanding maze of bodies affecting the rlghls of the people should not be put into water tight compartments. It should be flexible to meet the requirements of variable circumstances.
32. The following passage from the said decision Is apposite.
"The law relating to mandamus has made the most spectacular advance. Article 226 conform wide powers on the High Courts to Issue writs in the nature of prerogative writs. This Is a striking departure from the English Law. Under Article 226 writs can he issued to any person or authority. It can be Issued for the enforcement of any of the fundamental rights and for any other purpose. The term 'Authority' used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12, Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to Issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words 'any person or authority' used in Article 226. are, therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very must relevant. What is relevant Is the nature of the duty imposed on the body. The duty must be judged in the light of the postive obligation owed by the person or authority to the affected party. If a positive obligation exists mandamus cannot be denied. It may be pointed out that mandamus cannot be denied on the ground that the duty to be enforced Is not Imposed by the statute. The Judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found. Technicalities should not come in the way of granting that relief under Article 226."
33. Respectfully, following the above, and also keeping in view as noticed above that the trustees in the instant case even though private body are performing a public duty, it must be held that both the selection as also the selection criteria formulated by the trustees based upon which selection was made by the trustees arejustlceable and are not immune from judicial scrutiny under Article 226 of the Constitution of india. The writ court Is not powerless to Issue appropriate writ, order or direction to the trustees for enforcing compliance with the law, if the circumstances of the case so warrant.
34. For the above reasons, I respectfully refrain from making any comments on the ratio as laid down in the judgment of the House of Lords in page v. Hull University Visitor wherein it was held that;
"If there were a statutory provision that the decision of a visitor on the law applicable to internal disputes of a charity was to be 'final and conclusive' courts would have no jurisdiction to review the visitor's decision on the grounds of error of law made by the visitor within his Jurisdiction (in the narrow sense). For myself, I can seen no relevant distinction between a case where a statute has conferred such final and oncluslve jurisdiction and the case where the common law has for 300 years recognised that the visitor's decision on questions of fact and law are final and conclusive and are not to be reviewed by courts. Accordingly, unless this House Is prepared to sweep away long established law, there Is no Jurisdiction in the court to review a visitor's decision for error of law commuted within his Jurisdiction."
35. However, on this aspect of the matter and as to the jurisdiction of the writ court apart from the Rudani's case ciled supra, reference need to be made to one of the earliest Judgment of the Supreme Court in Dwarkanath's case as also to the recent constitution Bench judgment in Chandra Kumar's case.
36. In Dwarkanath v. income Tax Officer, Special Circle, it has been observed that High Court can Issue writs in the nature of prerogative writs, as Is understood in England but it can, in addition to such, also Issue directions, orders or writs other than prerogative writs. It was further observed therein that Article 226 of the Constitution of india is designedly couched in wide language in order not to confine the power conferred on it to Issue writs as understood in England, such wide language being used to enable the High Courts to reach in Justice wherever it is found, to mould reliefs to peculiar and complicated requirements of this country.
37. In L. Chandra Kr. v. Union of India , a Constitutional Bench of the Supreme Court considered the concept of Judicial review in India, its place and significance in our constitutional scheme as also components of power of judicial review and held that the power of Judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution Is an integral and essential feature of the Constitution, constituting part of its basic nature. As to the power vested in the High Courts to exercise Judicial superintendence over decisions of all courts and Tribunals within their respective jurisdiction was also held to be a part of the basic structure of the Constitution.
38. The power of Judicial review Is, however, circumscribed by certain conditions. Judicial review is not concerned with the decision itself but with the decision making process with a view to ascertain whether the decision arrived at is based on relevant consideration and that the repository of the power has not allowed itself to be influenced by Irrelevant considerations and that the decision arrived at Is in consonance with the law.
39. Judged in the light of the above, let us now consider whether the trustees have adhered to ihe principle of "merit and merit alone' in making the selection, or whether the selection process is vitiated on any grounds.
40. The modalities of selection framed and decided by the trustees at the meeting held on 20.8.98, being annexure 'B' to the affidavit-in-opposition filed on behalf of the respondents No. 7 and 8 shows that marks were to be allotted under the following heads;
1. Parental,
2. Personality;
3. Family status;
4. Physical personality and
5. Academic excellance."
41. Annexure 'C' shows that marks were accordingly awarded based on the said criteria. It is, however, not clear what percentage of marks have been allocated under each of the said 5 heads.
42. The said annexure 'C' which Is said to be the scoring sheet awarding marks to candidates who appeared at the interview the marks have been awarded under 5 heads that is to say, 1) Parental, 2) Familial, 3) Personality, 4) intelligence and 5) Academic. "Key to interview" appended to annexure 'C' perhaps refers to the maner of allolement of marks and reads as under;
"I) Parental : Doctor Father (5) Doctor Mother (5), Close Relation (2);
(II) Familial : Outstanding (10) Medicore (5) Poor (2);
(III) Personality : Excellent (10) Average (5) Poor (2);
(IV) intelligence : Excellent (10) Average (5) Poor (2);
(V) Academic : Above 60% (10) Above 50% (5) Below 50% (2);
Extra Plus : B.Sc. (5), State Player (5), Dist. Player. (5), Award Holder (5) Recommendation (5)."
43. From the above, it will be apparent that merits has been relegated to the last place If not entirely Ignored. "Parental", 'familiar and "personality" which are wholly irrelevant considerations have been given primacy. The criteria determined by trustees for awarding marks under these heads do not satisfy the test of relevance and reason. Relevance in relation to the object sought to be achieved and reason in regard to the maner it attempts to do so.
44. In Ajay Hasia v. Khalid Mujib Sehravardi, on the question of allocation of marks for oral interview, the Supreme Court observed that allocation as high a percentage as 33 1/3 of the total marks for interview should be regarded as infecting the admission procedure of arbitrariness and selection of candidates made on the basis of such admission procedure could not be sustained.
45. In the instant case, the percentage of marks as allocated under various heads such as "Parental". "Familial" and "Personality" are based upon interview and even if it is assumed that marks were allotted under the heading 'intelligence' and 'academics' pertain to the results of the candidates at the written examination, the percentage of marks for the former category far exceed the percentage of marks allocated for the latter category. This Is impermissible in view of the law laid down by the Supreme Court in Ajay Hasla's case.
46. That apart, the object of any rules which may be made for regulating admissions to Medical Colleges must be lo secure the best and most meritorious students. [See Dr. Pradeep Jain v. Union of india, ].
47. Judged, in the light of the above the selection criteria adopted by the trustees and based upon which the selection has been made cannot be sustained nor the relief, for that reason, as prayed for, can be granted lo the writ petitioner.
48. In the view that I have taken in the matter as above, it Is not necessary to consider the other contentions as to the legality or validity of the meeting of the truslees held on 27.8.98 or as to the validity of the emergent meeting of the trustees held on 30.8.98 wherein decision was taken for selecting Ihe petitioner. It Is also not necessary to consider or decide in this proceedings, the faclual dispute as to the service of the notice of emergent meeting upon the respondent No. 6. Similarly the queslion as to whether the term of respondent No. 7 expired on 29.8.98 as contended by the respondent No. 6. or the question whether in the light of Rules 4, the respective trustees has the right to nominate his successor, need nol be considered or decided in this proceedings. The said questions are accordingly left open as they are considered neither relevant nor necessary to be decided in this proceedings for the reasons that nothing turms upon them. The fact remains that the selection criteria adopted by the truslees Is not one in consonance with the law and has been held to be arbitrary. in making the selection based on the said criteria, Ihe truslees have taken into consideration mailers which in my view are neither material nor relevant.
49. The trustees are now required to make the selection of a candidate from the Subarnabanik parentage for being admitted to the Cnrmlchael Medical College strictly following the criteria of merit and merit alone.
50. With respect to the decision relied upon by Mr. Saktlnath Mukherjee, 1994 Suppl. (3) SCC 220 (Bihar Public Service Commission & Anr. v. Dr. Shiv Jatan Thakur & Anr.) suffice it to stale that the same has no application to the instant case for the reason that the dlscrelionery remedy of writ under Article 226 of the Constitution has been invoked not by any trustee but by a candidate-petitioner, herein. The nature of relief claimed by the petitioner in the instant case necessarily involved the consideration of the question as to whether the selection process adopted by the trustees was valid in law.
51. In the view that I have taken in the matter as above, the dicta laid down in Shri Iswar Chandra v. Shri Satya Narain Sinha, 1972 SLR 385 (SC) is also not relevant as the question of the validity of the meeting has not been gone into by this court.
52. On the facts of the case and for the reasons staied above, a direction shall issue to the trustees respondents No.6, 7 and 8 herein to hold a meeting of the trustees of the trust in question within two weeks from date hereof and to select a candidate in the light of the observations contained supra and to intimate the College that Is the respondent No. 3 herein of their said selection whereupon the College authorities shall admit the candidate so nominated by the trustees in M.B.B.S. Medical Course 1998 for the seat that has been kept reserved for the candidate under B.C. Dey trust.
There shall, however, be no order as to costs.
53. Order accordingly C.A.N No. 8382 of 1998.
Ms. Arpita Baral ... Petitioner.
54. This application has been filed for impleadlng the applicant as party respondent to the writ petition on the ground that the writ petitioner is not entitled to be granted admission to the Medical College in question and to oppose the relief prayed for by the writ petitioner.
55. In the view that I have taken and the direction Issued in that behalf in the said writ petition, there is no need, in my view to implead the applicant as parly respondent. That apart, the applicant had an indepen-denl cause of action, if he was aggrieved by any action of the trustees in not recommending his name for admission. It was open to the petitioner to question the same by independent proceedings.
C.A.N. No. 8382 of 1998 is accordingly dismissed without any order as to costs.
56. Petition dismissed