Madras High Court
M. Shakur Chathik (Minor) Represented ... vs Association Of Private Schools ... on 14 August, 1992
Equivalent citations: (1993)1MLJ125
JUDGMENT Mishra, J.
1. Before we order whether to grant leave to the petitioner, who is claimed to be a third party to seek review of the judgment in W.P. Nos. 7656 etc. of 1992, we propose to hear the respondents and accordingly order notice of motion returnable in one week as to why leave be not granted.
2. It has been brought to our notice that a number of writ petitions in W.P. Nos. 10337 etc. of 1992 have been ordered by a learned single Judge of this Court on 10.8.1992, it appears, for collaterally and indirectly seeking a review of our judgment in W.P. No. 7656 of 1992 and other analogous cases. Our attention has been drawn to the order of the learned single Judge dated 10.8.1992, who it seems, has not passed any positive order, but has stated as follows:
A Division Bench of this Court in Rathnaswamy, Dr. V. v. Director of Medical Education 1986 Writ L.R. 207, considered the scope and effect of the conditions prescribed in the Prospectus and held, Then the question is what is the place and significance of a prospectus with regard to admissions to educational courses. We shall not mix up and confuse the prospectus as understood in Company law parlance with the prospectus for educational courses...Forgetting the notion of the prospectus in the Company law parlance, we must deal with the matter from the practical angle of selection of candidates for educational courses offered by institutions run by the State. The principle has been uniform that violation of the norms of admission laid down and rules and regulations governing the same with impunity have been frowned upon and many times have been struck down. These rules and norms are there to be strictly and solemnly adhered to. They alone should be the guidelines for such admissions. In fact, the very decision of the Supreme Court in Punjab Engineering College, Chandigarh v. Sanjay Gulati , relied on by the learned Counsel for the petitioner, countenances the principles. The word prospectus is derivative from the word prospect. One of the dictionary meanings for the word prospect is to look around, to make a search, to explore. A prospectus issued with regard to admission to educational courses is a declaration to the candidates that a field for development of educational potentialities is available for exploration and that there could be a chance of success. It is a piece of information. But, at the same time, we shall not belittle the significance of the need to set out in the prospectus itself a summary or an essence of the norms and rules which should guide and which will be adopted for selection of the competitors in the field of exploration in educational development or at least indicate in the prospectus that there are norms and rules which shall govern. It is highly desirable that a summary or an essence of the relevant norms and rules governing such admissions are set out in the prospectus themselves or their existence at least is indicated therein. But an omission to do so shall not be taken advantage of by any one to negate and ignore the very norms and rules. The very rules and norms have come to be laid down only to govern and to be adhered to and not to be ignored and breached. It is true that if the relevant norms and rules are set out or referred to in the prospectus, a controversy of the present nature would have been very wisely avoided. But the omission in the prospectus is not an omission or erosion or deletion of the very norms and rules themselves. The norms and rules subsist and they have to hold the field.
(emphasis supplied).
In view of the above decision of the Division Bench of this Court reported in Rathnaswamy, Dr.V. v. Director of Medical Education 1986 Writ L.R. 207, the claims of the petitioners that the conditions prescribed in the prospectus should be followed, cannot be ignored. The cases referred to hereinabove, not only relate to the scope and effect of the conditions laid down in the prospectus, but also relate to the other points raised, as set out hereinabove. The later decision of the Division Bench of this Court dated 24.7.1992 in a batch of writ petitions (W.P. No. 7656 of 1992 etc.) has had no occasion to consider the scope and effect of the conditions laid down in the prospectus and the other points set out hereinabove. It cannot be said that these two decisions of two Division Benches of this Court are in conflict with each other with reference to the same issue. In order to set an uniform criteria to be followed, having due regard to the law as laid down by the two Division Benches with reference to the points considered and decided therein, the Registry is directed to place the above cases before My Lord, the Chief Justice for orders for being posted before a larger Bench for final disposal.
3. It seems, attention of the learned single Judge was not brought to the fact that a judgment of the Court is final subject to appeal and if there is any mistake or error therein is found, it is corrected by the appellate Court or by way of review in accordance with the procedure prescribed therefor and constructively recognised by the Courts in India and accordingly applied to the writ proceedings. A Full Bench of this Court has gone into the issue of review of an order passed in a writ proceeding in the case of Mayavaram Financial Corporation Limited, Maviladuthurai v. The Registrar of Chits, Pondicheny 1991 Writ L.R. 519. This completely rules out any collateral review and interference thus in the orders or directions issued by a Bench of the Court. The collateral proceedings, unless are in the nature of review petitions, are incompetent and no court can make any order of any kind in such proceedings, whether a single Judge or a larger Bench.
4. We are informed at the Bar that a number of Special Leave Petitions have been filed in the Supreme Court (S.L.P. No. 9481 of 1992) against our judgment in W.P. No. 7656 etc. of 1992. It goes without saying that if our judgment is affirmed by the Supreme Court, it will merge in the judgment of the Supreme Court. This Court then shall not be competent to review the judgment. If, however, our judgment is reversed by the Supreme Court, nothing will survive for a review. Any attempt, however, at this stage to review the judgment may be found incompetent for another reason that some interim orders where sought for in the Special Leave Petitions before the Supreme Court and the Supreme Court has declined the same.
5. Mrs. Nalini Chidambaram, appearing for one of the petitioners in the batch of writ petitions aforementioned in which orders have been passed by the learned single Judge, has tried to convey that there is no attempt in the writ petitions to seek any review of our order and that all that the petitioners have mainly asked for is a direction to accommodate them in accordance with the prospectus, for they prepared themselves for the prospectus, for they prepared themselves for admission to the professional courses only in accordance with the representations in the prospectus. Since Mrs. Nalini Chidamabaram, however assisted only as amicus curiae, if we pronounce our opinion upon this, that may prejudice the case of the petitioners in the writ petitions. We, however, cannot desist from saying that the plea that the representations in the prospectus is binding upon the respondent/ State Government has been raised under some serious misapprehensions. Representation, if any, in the prospectus was not confined to the H.S.C. students only. It was equally applicable to the C.B.S.C. students. We have already noticed in our judgment that the equations between the C. and H.S.C. students stood seriously disturbed on account of the doubts that were created as to the extra marks allotted to the C.B.S.C. students. Where then the representation in the prospectus existed?
6. It is the above argument upon which learned single Judge has thought that a conflict has arisen on account of our directions in W.P. No. 7656 and etc. of 1992 and a Division Bench of this Court in Rathnaswamy, Dr. V. v. Director of Medical Education 1986 Writ L.R. 207. If we may point out, a Judge sitting in a collateral proceeding can go into the question of any obiter dicta or the judgment being per incuriam only for the purpose whether he would be bound by one or the other judgment as the rule of obiter dicta and per incuriam arc the rules attached to the ratio decidenti of the judgment and thus for deciding whether one or the other judgment is a binding precedent and not for the purpose of review of any of the two judgments on the plea that one is wrong and the other is right.
7. It is unfortunate that it was not clarified to the learned single Judge by any party that the judgment in the case of Rathnaswamy, Dr. V. v. Director of Medical Education 1986 Writ L.R. 207, in which this Court said that the norms and rules in the prospectus have alone to be obeyed, was not concerned with the issue how far the promise or representation in the prospectus would hold the field in view of the charged circumstance that the Government of the State found that a reservation should be applied confining consideration of the C.B.S.C. students to 2% of the seats only and the court in W.P. Nos. 7656 and etc. of 1992 found that the equations which alone could enable the candidates seeking admission in accordance with the prospectus between the C.B.S.C. students and H.S.C. students had been seriously disturbed, a situation in which norms and rules in the prospectus could not be applied.
8. For the reasons as above, since we are of the opinion that there could be no review of our judgment in W.P. Nos. 7656 and etc. of 1992 in the collateral proceedings and the review proceedings have not been started at the instance of any party except the instant petitioner, it will be necessary to hold that the proceedings in W.P. Nos. 10337 and etc. of 1992 are not competent in so far as they attempt to get the review of the judgment in W.P. Nos. 7656 and etc. of 1992 and they are not maintainable. The proceedings in the said writ petitions to the said extent thus must remain stayed. This, however, will not mean that any person aggrieved, cannot approach the Supreme Court against our judgment in W.P. Nos. 7656 and etc. of 1992. If there is a proper case for review, any person can move this Court for the review of our judgment in W.P. Nos. 7656 and etc. of 1992. It will he appropriate, however, that since the Supreme Court has already passed some orders in the Special Leave Petition with respect to the current admission, no attempt is made to interfere with that.