Patna High Court
Miss Zeenat Tej And Ors. vs The Principal Of The Prince Of Wales ... on 1 August, 1969
Equivalent citations: AIR1971PAT43, AIR 1971 PATNA 43
JUDGMENT A.B.N. Sinha, J.
1. These sixteen applications under Article 226 of the Constitution, being analogous, have been heard together, and, though from the point of view of the nature of the reliefs sought, they fall into two distinct groups, the basic facts being common they may be disposed of by one judgment, and, accordingly, this judgment will govern them all.
2. The first group comprises C. W. J. C. Nos. 396/69, 416/69, 420/69 and 447 of 1969, and the remaining twelve cases constitute the second group. The petitioners in the first group cases have obtained a rule nisi calling upon the respondents to show cause why the order dated the 28th April, 1969, cancelling their admissions to the 1st Year Integrated Medical Course passed by the Principal of the Prince of Wales Medical College, Patna, (hereinafter referred to as 'the College'), one of the colleges maintained or controlled by the Patna University (hereinafter referred to as 'the University'), be not quashed. The petitioners in the second group of cases except those in C. W. J. C. Nos. 415/ 69, 417/69, 429/69, 437/69, 438/69, 439/69, 459/69 and 461/69 have likewise obtained a rule nisi calling upon the respondents in those cases to show cause why a writ or direction in the nature of mandamus be not issued requiring the first two respondents, namely, the Principal of the College and the Vice-Chancellor of the University to fill up the six or seven casual vacancies which occurred in the 1st Year M. B. B. S. Class of the College during the academic year 1968-69, in accordance with the relevant Ordinance of the University, and why the petitioner be not either admitted against those vacancies or alternatively their respective applications for admission be not duly considered against the aforesaid casual vacancies. In one case, namely, in C. W. J. C. No. 414 of 1969, there is an alternative prayer for a direction to be issued to the first two respondents for admitting the petitioner, Harendra Kumar Gupta, to one of the two sportsmen seats after cancelling the admission of respondents Nos. 3 and 4, who stand admitted against the two seats reserved for sportsmen. In the eight cases of the second group specified above the only relief claimed is for a direction upon the respondents to admit the petitioners concerned against the casual seats.
3. In cases of the first group and in C. W. J. C. Nos. 444 of 1969 and C. W. J. C. No. 448 of 1969, of the second group, the respondents are only the Vice-Chancellor of the University and the Principal of the College, but in all other cases except the two mentioned above, falling in the second group besides the Principal of the College and the Vice-Chancellor of the University, one or more of the students whose admissions were cancelled on the 28th April, 1969, and, some of whom are petitioners in the first group of cases, or students who stand admitted as sportsmen under Ordinance 2 (e) of the special Ordinance, have also been impleaded as respondents. Cause has been shown on behalf of the Vice-Chancellor and the Principal by either the Principal or one Kishori Prasad, an assistant, working in the college concerned. It is true that no show cause has been filed on behalf of any of the respondents in three cases falling in the second group namely, C. W. J. C. Nos. 444/69, 448/69 and 459/69, but it appears that the petitioners in the former two cases have expressly treated the show cause filed on behalf of the Vice-Chancellor and the Principal in C. W. J. C. Nos. 437, 438, 439 and 447 of 1969, copies whereof were served on their Counsel, as filed in their own cases and have filed rejoinders on that basis and the petitioner in C. W. J. C. No. 459/69 has himself treated his application as connected with C. W. J. C. Nos. 396/69, 415/69, 417/69 and 429/69 in which cases show causes have been filed on behalf of the Vice-Chancellor and the Principal. Of the students-respondents impleaded as mentioned above in most of the cases falling in the second group, show cause has been filed by Shiv Shanker Prasad in C. W. J. C. Nos. 436/69, 437/69, 438/69, 439/69 and 461/69. This Shiv Shanker Prasad is a petitioner in C. W. J. C. No. 420/69, one of the cases under the first group. Cause has also been shown by Saiyed Naiyar Qasim Nassar and Umesh Chandra Roy, respondents Nos. 3 and 4 respectively, in C. W. J. C. 414/69. In some of the cases, particularly in C. W. J. C. Nos. 396/69 of the first group and C. W. J. C. No 414 of 1969 of the second group, more than one supplementary affidavits and replies to the counter-affidavits on behalf of one or another party have been put in, and, it may be necessary to deal with some of them when dealing with the points arising in those cases. On behalf of the Principal and the Vice-Chancellor the original of the correspondence between the Principal and the Vice-Chancellor during the relevant period together with the relevant applications and other documents appended thereto filed by the six applicants whose admissions against casual vacancies as made by the Principal were later cancelled by him and also the original application for admission filed by Miss Zeenat Taj, the petitioner in C. W. J. C. No, 396/69, have been placed on the record, One Jagdhar Prasad Singh whose son Sri Ram Prakash Singh was allegedly an applicant for admission into 1st Year Integrated Medical Course in the session 1968-69, was allowed to intervene in C. W. J. C. No. 416/69, and thereafter, he filed a petition with copies of three letters appended thereto supposed to have been written in the month of January 1969, by one Sri C. L. Kapur to one Sri Ram Ishwar Singh, M. L. C. and a member of the Syndicate of the University in connection with the admission of his son Bishwajit Kapur, the petitioner in that case, into the 2nd Year of the Medical Course; and also appending a copy of a letter purported to have been written on the 27th April, 1969, by aforesaid Sri Ram Ishwar Singh to the Vice-Chancellor on the subject of admission into the Medical College in the month of April, 1969.
4. The cases falling in the first group may first be taken up for disposal. Of the four cases in that group, the case of Miss Zeenat Taj, namely, C. W. J. C. No. 396/69, stands on somewhat different footing than the rest, and, thus the three remaining cases which are more or less identical may first be considered.
5. The case of the petitioners in those three cases, namely, C. W. J. C. Nos. 416/69, 420/69 and 447/69, is that they having been duly admitted and enrolled as students of the 1st Year Integrated Medical Course against certain casual vacancies which had occurred by the 10th of April, 1969, and which had been duly notified in terms of Clause (5) of the General Ordinance of the University, the subsequent order dated the 28th April 1969, passed by the Principal cancelling their admissions, wrongly describing them as provisional without even giving them an opportunity to be heard, was bad in law and fit to be quashed. Their claim is that each of them possessed the requisite minimum qualifications for admission into the 1st Year M. B. B. S. Course, and, that their admissions were strictly in accordance with Clause (5) of the General Ordinance, which deals with the filling up of the casual vacancies, but the Principal acting arbitrarily at the instance of the Vice-Chancellor who had been somehow led into the erroneous belief that there was something unfair and irregular with the admissions made against the casual vacancies, had illegally cancelled the admissions causing grave prejudice and loss to them. The case of Bishwajit Kapur, petitioner in C. W. J. C. No. 416/69, was that his educational attainments qualified him for admission into the 2nd Year M.B.B.S. Course as provided in Clause (6) of the Ordinance of the University entitled "for admission of students to medical course" (hereinafter referred to as the special Ordinance), and, indeed, he had applied for admission into the 2nd Year of the Course, but later when the results of the 1st Year M. B. B. S. Course were published, he applied afresh mentioning therein that he may be considered for admission either to the 1st Year or to the 2nd Year Course as might be possible. Ultimately consequent upon the announcement of the casual vacancies in the 1st Year Course under the notice dated the 12th April 1969, the Principal having considered the petitioner's suitability, admitted him into the said Course whereupon the petitioner deposited fees etc., and was allotted a particular Roll number. The petitioners in these cases have claimed that the notice dated the 12th April, 1969, announcing casual vacancies, was proper and fair in all respects.
6. The respondents in these cases as well as most of the petitioners in the second group of cases have supported the impugned order of cancellation. According to the show cause filed on behalf of the respondents in these cases, the admissions as made on 21-4-1969, were only provisional admissions subject to the final approval of the Vice-Chancellor, and when after due scrutiny of the applications of the candidates who had been admitted and the circumstances in which the notice announcing the casual vacancies had been issued, the Vice-Chancellor came to the conclusion that there were many things connected with those applications, which did not seem to him to be quite fair and regular and that he was not happy about the manner in which the admissions had been made, the admissions were forthwith cancelled. Their further case is that regular admissions to the 1st Year Integrated Medical Course had ceased in October, 1968, except that two sports seats were filled up in January, 1969, and one student, whose mark list was subsequently corrected by the Bhagalpur University and who had thus become eligible for admission, was admitted in February, 1969. The admissions made in January and February, 1969, were all made under the express orders of the Vice-Chancellor. Casual vacancies within the meaning of Clause (5) of the general Ordinance occurred in February for the first time and again in March, but as the University Examination of the 1st Year M. B. B. S. Course was to commence from the 8th April, 1969, and was scheduled to be held in the Wheeler Senate Hall, the Principal had taken the view that admissions against casual seats so close to the date of the examination need not be made and indeed had assured the Vice-Chancellor to that effect. Later when due to a strike of teachers and non-teachers in the University the date of the examination was postponed indefinitely, and when two more vacancies occurred on the 10th April, 1969, the Principal was persuaded by his colleagues to change his view in the hope that the View-Chancellor, who for the time being was out of town, would finally accord his approval to the filling up of the casual vacancies, in the changed circumstances. It was in that context that the notice announcing the existence of casual vacancies was issued and affixed to the notice board of the College on the 12th April 1969, inviting claimants desirous of admission into the 1st Year M. B. B. S. Course to present themselves in the office of the Principal by the 21st of April 3969 latest. Out of several applicants who presented themselves for admission in response to the aforesaid notice, six were admitted provisionally after their applications had been duly scrutinised by the Professor-Incharg-Admission and had been placed before the Principal in due course, who, it has been asserted, bona fide believed that the applications were in order and that the Vice-Chancellor will ultimately accord his approval. Later the Vice-Chancellor, presumably on his return to Patna, having come to know about the admissions against casual vacancies made on the 21st of April 1969, required the Principal under his letter dated the 25th April 1969, to forward to him the names of the students who had been admitted together with their application forms for admission, statement about their marks and copy of the notification issued regarding the casual vacancies. He requested the Principal to treat the matter as extremely urgent. In the correspondence which followed the full details in regard to the admissions made against the casual vacancies and all relevant papers in relation thereto were forwarded to the Vice-Chancellor, who ultimately after carefully going into the materials addressed another letter to the Principal dated the 27th April, 1969, expressing in unmistakable terms his unhappiness over the admissions against the casual vacancies. On receipt of the Vice-Chancellor's letter dated the 27th April, 1969, the Principal passed the impugned order of cancellation and simultaneously informed the Vice-Chancellor about the same in his letter dated the 28th April, 1969. The Principal has sought to explain the circumstances in which he passed the orders of cancellation by stating that when his "attention was drawn to the fact that the Vice-Chancellor considered the admissions not to be regular", he realised that the notice regarding filling up of casual vacancies during the strike period was not very regular, and it was on that account that he directed the provisional admissions of the six candidates to be cancelled and issued orders accordingly. It appears from the brief summary of the case of the respondents that the cancellation order is sought to be supported on mainly two grounds; (1) that the admissions themselves were provisional and (2) that the very notice announcing the casual vacancies having been issued during the period when the University teachers and the staff were on strike, was not quite regular and thus it was quite likely that all candidates eligible for admissions may not have come to know about the existence of the casual vacancies.
7. On the pleadings as also on the sub-missions made before us, the first question which falls for determination is whether the admissions were provisional. While the petitioners are insistent that the admissions were by no means provisional, the respondents have, on the other hand, asserted that the admissions were, in fact, provisional. It is well settled that where an enquiry into complicated questions of fact arises in a petition under Article 226 of the Constitution before the right of an aggrieved party to obtain relief claimed may be determined, the Court may in appropriate cases decline to enter upon that enquiry, which might involve investigation of complicated facts and recording of evidence, but the question is always one of discretion and not of jurisdiction of the Court which may in a proper case enter upon a decision on questions of fact raised by the petition, vide State of Orissa v. Murlidhar, AIR 1963 SC 404 and State of Orissa v. Dr. Miss Binapani Dei, AIR 1967 SC 1269. In the cases under consideration no investigation into complicated facts and recording of evidence arises, because all the relevant materials are already on the record and a conclusion on their basis may, therefore, be attempted and reached. As already mentioned, the original applications of all the six candidates admitted against casual vacancies have been placed on the record on behalf of the respondents. In each one of them, there is an endorsement in the hand of the Principal himself reading "Admit provisionally". There is a presumption that every person whether in his private or official character does his duty and unless the contrary is proved, it is presumed that all things are rightly and regularly done. This presumption applies with greater force to official acts. Further it can hardly be controverted that the burden of proof is on the person who maintains that the apparent state of things is not the real state or things. In the cases under consideration, the petitioners, in my opinion, have failed to rebut the presumption or discharge the burden. Mr. Kailash Rai, appearing for the petitioner in C. W. J. C. No. 420/69, at one stage had vaguely suggested that the word "provisionally" appeared to have been written subsequent to the admissions and was in the nature of an interpolation. That suggestion was seriously repudiated on behalf of the respondents and it was asserted that it was an uniform practice with the Principal to endorse all applications for admission with the words "Admit provisionally", whether in the case of regular applicants or applicants against casual vacancies, and in that connection they offered and actually produced for inspection by the learned Counsel for the petitioners several applications including many of those who were admitted against regular vacancies. No notice of the aforesaid vague suggestion was possible to be taken, because there was no averment in the petitions to that effect that even after inspection of the several original applications, which were produced on behalf of the respondents, no supplementary affidavit was filed on behalf of any of the petitioners. It follows that the suggestion that the word "provisionally" was added subsequent to the admissions, must be taken to have been abandoned.
8. Now as to the justification for making the endorsement 'provisionally' on the applications concerned. It is clear that the alleged practice followed by the Principal of endorsing all applications for admission indiscriminately with the word, 'provisional can hardly afford any justification. That practice, if true, blurs the distinction between final and provisional admissions and moreover appears to be unwarranted under the rules for admission or the Ordinances of the University in relation thereto. It is difficult to conceive that in the case of an applicant for admission who has satisfied all the criteria laid down by the Ordinances in that behalf, and, has filed an application for admission accompanied by copies of all the documents required under Rule 6 of the rules for admission of students in the 1st Year Medical Course and his application as well as the documents accompanying the same are otherwise in order and there are vacancies in the course, the Principal must necessarily withhold final admission and treat the applicant as only provisionally admitted. It is only in certain given circumstances, like the application or the documents accompanying the same being not in order, or incomplete, the statements made in the application or the entries in the documents concerned requiring verification, there being no vacancy in the class for the time being or the admission being dependent on the Vice-Chancellor increasing the seats etc., that the Principal can withhold final admission. In the instant cases, however, a perusal of the show cause petitions and the letter of the Vice-Chancellor dated the 27th April, 1969, addressed to the Principal of the College show quite clearly that the Principal while considering the applications for admission against the casual vacancies, was not in a position to admit the applicants finally. It appears that rightly or wrongly after the casual vacancies had occurred in the months of February and March of 1969, and in view of the impending 1st Year M. B. B. S. examination from the 8th April, 1969, some sort of understanding had been reached, either at the instance of the Principal or the Vice-chancellor, that admissions against those vacancies will not be made allegedly on the ground that the academic session was coming to a close. On account, however, of a strike of teachers and non-teachers at the University of which the College was a constituent unit, the examinations scheduled to commence from 8-4-1969 had to be postponed, and in the meanwhile on the 10th of April, 1969, two further casual vacancies had occurred. It was at this stage that, according to the Principal's affidavit, he was advised by his colleagues that the casual vacancies which had occurred uptodate could be filled up. The same affidavit states that as the Vice-Chancellor was out of Patna, his approval for filling up the casual vacancies could not be obtained. The Principal, on the advice of his colleagues, whose names have remained undisclosed, was, however, persuaded to go ahead with the filling up of the casual vacancies without waiting for the Vice-Chancellor's return to Patna, and a notice announcing the existence of the casual vacancies and inviting students desirous of seeking admission against six casual vacancies to present themselves on the 21st April 1969 at 8 a. m. in the office of the Principal was put up on the notice board of the College on the 12th April 1969. We have the word of the Principal that he had issued the notice as aforesaid under the belief that the Vice-Chancellor would not object to the filling up of the casual vacancies in the changed circumstances, namely, the circumstances brought about by the postponement of the 1st Year M. B. B. S. examination. Whether the notice issued on the 12th April 1969, was proper or improper, and whether the said notice was in consonance with Clause (5) of the Ordinances under the head "General" (hereinafter referred to as 'the General Ordinances') or not are questions which will be discussed hereafter, but the circumstances referred to above, in which the Principal had more or less placed himself at the time when the applications for admissions filed in response to the notice issued on the 12th April 1969, were taken up for consideration, hardly left any option to him than admitting the applicants concered only provisionally, that is, subject to the approval of the Vice-Chan-cellor. Even if it were assumed that the applications were complete in all respects and in order, yet the admissions could not but be provisional. The mere fact that fees etc. were accepted from the applicants concerned, does not, in my opinion, alter the character of the admission. It follows that in the three cases under consideration, there was sufficient justification for making only a provisional admission, and the Principal must be taken to have acted bona fide in that regard.
The error of judgment, even if any, on the art of the Principal in allowing himself to be persuaded by his colleagues into taking a decision in regard to the filling up of the casual vacancies without getting into touch with the Vice-Chancellor and into issuing the notice in that behalf during the period of a strike at the University cannot, in my opinion, detract from his bona fides in making the admissions only provisionally. In view of the absence of the Vice-Chancellor from Patna at the relevant time and also in view of the other circumstances alluded to above in which the applications for admission came to be considered by the Principal, the admissions could not, but be provisional.
9. The power to do an act finally, necessarily includes the power to do that act tentatively, and, quite conceivably in the matter of admission into a College, several factors may intervene, which might compel the admitting authority to admit an applicant for admission, only tentatively at the beginning and withhold final admission until the intervening factors are removed. There is thus no substance in the extreme proposition canvassed on behalf of the petitioners that their provisional admission by the Principal was either a contradiction in terms or was without jurisdiction. Nor can it be said that the act of the Principal in admitting the petitioners only tentatively was in any manner arbitrary or capricious. In view of the previous understanding with the Vice-Chancellor that no admissions need be made against the casual vacancies, the Principal could not act but in the manner he did. It might be that all concerned bona fide believed that the act of the head of the institution concerned would meet with the approval of the Vice-Chancellor. In any case, at least the Principal appears to have been under that impression. Much emphasis was laid on the language of the Principal's letter D/- 26-4-1969 addressed to the Vice-Chancellor regarding filling up of the casual vacancies, and it was urged that if, in fact, the admissions were only tentative or provisional, the Principal in his letter instead of saying that the candidates 'were admitted' would have inserted the word 'provisionally' between the words 'were' and 'admitted. This submission, in my opinion, is based on a misreading of that letter. That letter was written in response to the Vice-Chancellor's letter of the 25th April, 1969, making certain enquiries in regard to the filling up of the casual vacancies, and the Principal was rightly confining himself to furnishing relevant data including the fact that the admissions had been made strictly according to the marks of the candidates, who had come up for interview on the date and time specified in the notice. Indeed, it appears from the last sentence of that letter that the applications of the candidates admitted would have been enclosed with the letter itself, but for the fact that duplicate copies of those applications had not been made ready. The original applications bearing the Principal's endorsements would have clearly showed that the admissions were only provisional. I am, therefore, unable to read anything into that letter of the Principal which amounts to acknowledgment on his part that the admissions were final and not tentative or provisional. It may be that the candidates admitted, specially after they had paid the requisite fees etc. were not quite aware that their admissions were only provisional and this factor, I have no doubt, has caused great hardship to some of them; for instance Shiva Shanker Prasad, the petitioner in C. W. J. C. No. 420 of 1969, had already joined B. Sc. Part I class on the 18th August, 1068, after passing Pre-University Science Examination during the Session 1968-69, and was continuing his studies in that Class up to the 28th of April, 1969, when he gave up the same upon his provisional admission to the 1st Year M. B. B. S. Course on the 21st of April, 1969. If he had been informed that his admission was only provisional, he would have perhaps acted otherwise. It is, therefore, unfortunate that the candidates concerned were not apprised to the real position, but that in my opinion neither clothes them with any justifiable rights or alters the legal position. It cannot be said that the Principal was under statutory duty to inform the candidates either about the circumstances attending the admissions or about the facts that the admissions were only provisional. None-the-less the fairness or propriety of acquainting the candidates concerned about the provisional nature of their admission can hardly be disputed. The fact, however, remains that the petitioners were admitted only tentatively, and, until the Vice-Chancellor had approved of the admissions, they could not be considered to have been finally enrolled as students or members of the class. It appears from the Vice-Chancellor's letter of the 27th April, 1969, (an Annexure to these applications) that the Vice-Chancellor far from approving of the admissions felt unhappy about the manner in which the admissions had been made and to him the admissions made against casual vacancies did not seem "to be quite for and regular". Having expressed himself as above, he left the rest to the Principal who by his order passed on the very next day formally cancelled the provisional admissions made by him earlier on the 21st April, 1909. It is this order of cancellation, which has been challenged in all the three cases under consideration.
10. The impugned order of cancellation as contained in the Principal's letter dated the 28th April, 1969, to the petitioners is not a speaking order. It, however, appears from a letter written by the Principal on the same date (Annx. 'B' to the counter affidavit filed on behalf of the Principal and the Vice-Chancellor) to the Vice-Chancellor that the cancellation was in pursuance of the findings reached and the observations made in regard to the admissions against the casual vacancies by the Vice-Chancellor as contained in his letter dated the 27th April 1969 to the Principal. Accordingly the order of cancellation has to be read along with the aforesaid Vice-Chancellor's letter dated the 27th April, 1969. That letter of the Vice-Chancellor reads aa under:--
No.64/Vo(Res).
April 27, 1969.
"To Dr. G. Achari, Principal, P. W. Medical College, Patna.
Sub: Filling up of Casual vacancies in 1st Year Medical Course in P. W. Medical College, Patna.
Sir, Kindly refer to your confidential letter No. 919 dated 26th April, 1969.
I am sorry to note that the six candidates whose names are mentioned in your above letter have been admitted at the fag-end of the session though you told me some days back that admissions should not be made now. The original date of the commencement of the 1st Year of the Medical Course was fixed on the 8th April, 1969, which was postponed due to the strike of the teachers. These admissions have been made only a few days back by posting a notice on the Notice Board of the College during the period of strike when all could not have the opportunity to know about it. I find that in two applications the dates mentioned are evidently after the middle of April '69, as certificates dated 16th or 17th April, '69, have been attached to these. Most of the other applications bear no date of application or the date of their receipt in the office of the Patna Medical College. It appears that all the admissions have not been made on the basis of the result of Pre-University, or Higher Secondary or Senior Cambridge examinations, according to Clause 1 of the Ordinances for Admission to the Medical Course.
All these do not seem to me to be quite fair and regular. I am not happy about the manner in which these admissions have been made.
Yours faithfully, Sd/-. K. K. Dutta.
It is apparent that broadly speaking the Vice-Chancellor has given three reasons for coming to the conclusion that the admissions against the casual vacancies did not seem to him to be quite fair and regular. They are: (i) the notice announcing the existence of the casual vacancies and inviting students desi-rous of seeking admission to present themselves on the 21st April, 1969, at 8 a.m. in the office of the Principal had been posted on the Notice Board of the College during the period of strike when all could not have the opportunity to know about it, (ii) at least two out of the applicants who presented themselves for admission had evidently filed their applications after the middle of April, 1969, and most of the other applications bore no date or the date of their receipt in the office of the College and (iii) that some of the admissions had not been made on the basis of the result of the Pre-University, or Higher Secondary or Senior Cambridge Examinations, according to Clause (1) of the Ordinance for Admission to the Medical Course. Strictly speaking it is wholly unnecessary to canvass the correctness or otherwise of any of the aforesaid reasons given by the Vice-Chancellor for coming to the conclusion that the admissions were not quite fair and regular. It is firmly established that Courts have no appellate jurisdiction over decisions of the Universities or Colleges, if arrived at within their jurisdiction and are free from the view of being arbitrary and capricious or mala fides. As to the Vice-Chancellor's jurisdiction, on the scheme of the Patna University Act 1961, and of the Ordinances whether General or Special governing the matter of admissions as also under the Rules for Admission of the students in the 1st Year Medical Course, there can be hardly any doubt. The powers and functions of the Vice-Chancellor have been described in Section 10 of the Act, and Sub-section (6) of Section 10 says that the Vice-Chancellor shall be the principal executive and academic officer of the University. Sub-section (9) confers on him the rights of visiting and inspecting the Colleges. Under Sub-section (10) he is required to exercise general control over the educational arrangements of the University and Sub-section (12) provides that it shall be his duty to see that the proceedings of the University are carried on in accordance with the provisions of the Act, the Statute, the Ordinance, the Regulations and the Rules. Sub-section (13) says that he shall perform such other duty and exercise such other power as may be conferred on him by the Statutes and Ordinances made under the Act. The Ordinances which are made under Section 32 of the Act by the Syndicate and which inter alia provide for the admission of Students to the University and their enrolment as such also confer large powers on the Vice-Chancellor. He has, for instance, the power of final approval in the matter of admission of sportsman students and has within limits the power of relaxing the requirement as to the minimum percentage of marks for admission. He also enjoys under Clause 5 (v) of the Ordinances for admission of students to the Medical Course popularly known as the Special Ordinances wide discretion to refuse admission to an applicant, who, in his opinion, should not be admitted in the best interest of the students of the Medical Course. Under Clause 5 (vi) he has the power of condoning the delay in filing applications for admission or enrolling oneself as a student after he has been selected for admission. In regard to the filling up unfilled seats in the 2nd Year of the Course at the commencement of the Session, Clause 6 of the Special Ordinances confers wide discri-tionary powers on him. The General Ordinances which came into force with effect from the 3rd of September, 1968, relating to admission into all courses of studies assign very large power to the Vice-Chancellor. Indeed out of nine Clauses in that Ordinance, as many as six, namely, Clauses (1), (2), (3), (6), (7) and (9) provide for the exercise of discretion fay the Vice-Chancellor in one or another matter relating to admissions. The Rules for admission of students in the 1st Year Medical Course for the session 1968-69, inter alia provide that admission to the Course shall be made on the basis of the criteria laid down by the Ordinances, and the power of the Vice-Chancellor to refuse to any student who might be eligible for admission under the Ordinance on the ground of misconduct as laid down under Clause (1) of the General Ordinances appears to have been emphasised by repeating the same under Rule 3 of the Rules for admission. The above provisions quite clearly show that the Vice-Chancellor being the Principal and academic Officer of the University and having the right of visiting and inspecting the Colleges etc. and enjoying general control over the educational arrangements of the University with a statu-tory duty to see that the proceedings of the University were carried on in accordance with the provisions of the Act, the Statute, the Ordinances, etc. enjoys wide administrative and academic control over the Colleges and further has very wide discretionary powers in regard to admissions into Colleges. It may be mentioned that it was mainly on an interpretation of one of the Clauses of the Special Ordinance, namely, Clause 5(v) that this Court in the case of Sunil Bhatia v. Patna University 1965 B. L. J. R. 229 came to the conclusion that because the said Clause gave a very wide discretion to the Vice-Chancellor to deny admission to those students who, in his opinion, "should not be admitted in the best interest of the students of the Medical Course" no one could say that he had a right to admission. Clause 5(v) is not alone in the list of Clauses of the Ordinances which confer wide discretionary powers on the Vice-Chancellor in the matter of admission. In the circumstances, the overriding power of the Vice-Chancellor arising, as it does, from his general administrative and academic control over the Colleges and from his specific powers under the Ordinances in relation to admissions appears to me to be clearly established, and indeed was not seriously challenged by learned Counsel appearing for these petitioners. Accordingly, it must be held that the Vice-Chancellor was acting within his jurisdiction in examining the fairness and regularity or otherwise of the admissions made into the 1st Year M. B. B. S Course against casual vacancies and his conclusions or decision on the subject matter of the enquiry as contained in his letter of the 27th April, 1969 to the Principal is not open to challenge on the ground of Want of jurisdiction.
11. Nor can it be said that there was anything arbitrary, capricious or mala fide on the part of the Vice-Chancellor in either probing into the regularity or otherwise of the admissions made against the casual vacancies or in arriving at his conclusions about them. In the applications under consideration vague allegations have been made that the probe was conducted by the Vice-Chancellor under the influence or coercion of interested and influential persons. In C. W. J. C. 416 of 1969, the petitioner's case is that the step which the Vice-Chancellor took was really at the intervention of the Minister for Education and in this connection a cutting from the issue of the Searchlight dated the 30th April 1969, has been included as one of the Annexures to the application. It must, however, be said that these allegations besides being vague have remained wholly unsubstantiated. The cutting from the newspaper, even if admissible, merely shows that the then Education Minister, Mr. N. E. Horo, in a reported statement to the Searchlight had conveyed the information that the order for cancellation of admissions had followed a probe by the Vice-Chancellor, who according to the report, had found the admissions to be irregular. There is, therefore, nothing on the record to suggest that the probe into the admissions by the Vice-Chancellor was under the influence or coercion of anybody. Indeed, in view of the facts and circumstances of this case, it must be held that the Vice-Chancellor would have failed in his duty if he had not probed into the admissions made by the Principal against the casual vacancies. There is no reason to suppose that in the discharge of his duty he was guided by anything else than the dictates of his own conscience. On the 25th of April, 1969, he wrote to the Principal requesting him to send the names of the students who had been admitted against the casual vacancies, their application forms for admission, a statement about their marks together with a copy of the notice issued regarding the casual vacancies by the following day. The Principal in his letter of the 26th April, 1969, furnished all the information which the Vice-Chancellor had required him to furnish, except that on that date he could not forward the original applications for admission. Those applications along with a statement showing the dates on which casual vacancies had occurred together with reasons due to which vacancies had occurred were duly forwarded on the following day, namely, on the 27th April, 1969. The contents of the Vice-Chancellor's letter of the 27th April, 1969, {Annexure 'A to the counter-affidavit) quite clearly show that on a receipt of all the relevant materials the Vice-Chancellor subjected them to a close scrutiny and thereafter he reached his conclusion that the admissions have not been quite fair and regular and that he was not happy about the manner in which they had been made. Quite clearly the Vice-Chancellor applied that objective test to the matter under enquiry and, as already mentioned above, gave at least three reasons in support of his conclusion. A conclusion reached in the manner as stated above can hardly be described as arbitrary or capricious. Though it is not for this Court in the exercise of its extraordinary jurisdiction under Article 220 of the Constitution to examine the correctness or validity of the reasons given by the Vice-Chancellor for reaching his ultimate conclusion, as much stress was laid on one or another of the reasons so given, their validity may be briefly examined. In regard to the first reason given by the Vice-Chancellor that the notice about the casual vacancies had been posted on the notice Board of the College during the pendency of the strike when all could not have the opportunity to know about it, the main contention on behalf of the petitioners have been that though there was a strike at the relevant time of teachers and non-teachers at the University, there was no strike in the Medical College and as such there was no reason why all concerned could not have come to know about the notice of the casual vacancies which was duly posted on the Notice Board of the College. It is, however, clear that the question posed is such which can hardly be determined by reference to a mere objective standard. Even if the strike was in the University and there was no strike as such in the Medical College the effect of the strike and its bearing on the functioning of the constituent Colleges are matters on which, it is obvious, the authorities concerned alone were the best judges and in the instant cases, according to them, the time when the notice was posted on the Notice Board of the College on account of the strike, was such, when all concerned could not have an opportunity to know about the notice. Courts have repeatedly affirmed their incapacity to substitute their own conclusions on such matters for the conclusions of the authority concerned. Reference, may, however be made to certain broad features which in my opinion, leave no doubt about the ineffectiveness of the notice. It appears to me that when admittedly there were many applicants for admission into the 1st Year M. B. B. S. Course, anxiously awaiting their turn and who had not been able to get themselves admitted at the commencement of the Sessions, because they were lower in the merit list than those who had been admitted, it is rather surprising that only six applicants two of whom had passed the qualifying examination only in the month of April 1969, should have presented themselves for admission in the office of the Principal on the 21st April, 1969, in response to the notice in question. It is not without significance that five out of those six applicants were close relations, being sons or daughters of persons who were admittedly connected with the College or the University, and though the father of the remaining one candidate was not directly connected with the College or the University, he was in a position to keep close contact with one or another person either at the College or in the University. The extremely poor response to the notice against the background of a large number of applicants anxiously waiting for admission is by itself, in my opinion, indicative of the fact that the notice was issued at a time when all concerned may not have come to know about it, in other words, the notice was effective within a very limited range. It is not such a notice which is contemplated under Clause (5) of the General Ordinances. Whenever a certain Rule or Statute requires the doing of an act after giving notice to all concerned of the proposed act, it necessarily implies an adequate and effective notice. The first reason, therefore, as given by the Vice-Chancellor for his conclusions appears to me to be well founded. The second reason as mentioned by the Vice-Chancellor relates to certain formal defects in the relevant applications for admission, and its correctness has rightly been not challenged. The force of the third reason that some of the admissions had not been made on the basis of the results of the Pre-University or other examinations mentioned in Clause (1) of the Ordinance for admission to the Medical Course is vindicated by a reference to the case of Sri Biswajit Kapur, the petitioner in C. W. J. C. No. 416 of 1969. As has been brought out clearly in the affidavit filed on behalf of Jagdhar Prasad Singh, the intervener respondent, in that case and indeed as admitted by the petitioner himself in his application, he was an applicant for admission into the 2nd Year Medical Course and was pursuing that application with all the resources at his command, but after the results of the 1st Year M. B. B. S. Course were announced he filed a fresh application for admission, leaving it, as he says, to the College authorities to admit him either in the 1st Year M.B.B.S. Course or in the 2nd Year M. B. B. S. Course. On the very face of his application for admission, he had not passed in Biology in any of the examinations mentioned in Clause (1) of the Ordinances for admission. The Clause required that admission to the 1st Year Medical Course was to be made in order of merit on the basis of the aggregate marks obtained by the applicants at the Pre-University or the Higher Secondary Examination or at any other examination recognised by the Academic Council as equivalent thereto. The last part of that Clause lays down that no applicant shall be admitted to the 1st Year Medical Course, unless he has passed in English, Modern Indian Language, Physics, Chemistry and Biology in any of the aforesaid examinations. Admittedly Biology was not one of the subjects of Sri Biswajit Kapur at his Pre-University examination, yet his application for admission was considered against one of the casual vacancies and had been accepted provisionally. It follows from what has been discussed above that the conclusion reached by the Vice-Chancellor that the admissions against the casual vacancies were not quite fair and regular, was so reached for good reasons and in any case he cannot be said to have taken any extraneous factors into consideration. The impugned orders of cancellation based, as they are, on the aforesaid decision of the Vice-Chancellor are accordingly good on merits as well. I have already held above that the orders of cancellation have to be read along with the aforesaid Vice-Chancellor's letter of the 27th April, 1969. Learned Counsel appearing for the petitioners taking the letter of the Vice-Chancellor by itself submitted that the said letter read correctly merely amounted to the censure of the conduct of the Principal in the matter of admissions and did not amount to any decision on the part of the Vice-Chancellor in exercise of his overriding powers of control and supervision, cancelling the admissions made. This contention, in my opinion, assumes that there is no distinction between the existence of power and the manner in which the power can be exercised. Once the existence of power is conceded or established, then unless the relevant Statute or Rule conferring that power lays down a particular manner for exercising the same, the repository of power is free to exercise the powers vested in it in any manner that it thinks proper. In the instant cases it has not been shown that a particular manner is prescribed in which the Vice-Chancellor must exercise his powers. In my opinion, it was open to the Vice-Chancellor to give expression to his decision in the form of a letter to the Principal. The Principal to whom it was addressed understood the letter as conveying the decision of the Vice-Chancellor. Accordingly, whatever else the letter might have been intended to be, it cannot but be accepted that it was meant to contain the decision of the Vice-Chancellor reached by him after a thorough probe into the regularity and fairness or otherwise of the admissions, made against the casual vacancies. There is thus no substance in this plea.
12. It was next contended on behalf of the petitioners that assuming that the Vice-Chancellor had made his decision in regard to the fairness and regularity or otherwise of the admissions made against the casual vacancies, his decision was vitiated on the ground that he did not afford any opportunity to the admitted students to be heard before coming to a decision adverse to them. It was contended that the principles of natural justice were accordingly violated. To my mind there is no merit in this contention. In the first place there is no fixed pattern for complying with the rules of natural justice. As discussed above, the decision of the Vice-Chancellor was based on a careful scrutiny of all the relevant mate rials. Accordingly, even if, it were conceded that the Vice-Chancellor acting in administrative capacity was under an obligation to observe the rules of natural justice, in the present cases it must be held that he had fully complied with those rules in so far as he examined the relevant papers before reaching his conclusions. In the second place it must be borne in mind that at no stage the Vice-Chancellor had before him any form of lis and it may be that he was considering the question from the point of view of policy and expediency. In any case the applicants concerned were not being proceeded with in any disciplinary or, punitive action against them. It is only in those cases where a particular student or scholar was being proceeded against by way of disciplinary or punitive measure, that it is a duty of the authority endowed with the power to come to a decision to give notice to the student or scholar concerned.
13. On the finding as reached above that the admissions of the petitioners in all these three cases were only provisional or tentative in the sense that they were subject to the final approval of the Vice-Chancellor, the order of cancellation passed in pursuance of the Vice-Chancellor's disapproval of the admissions in substance amounts to a refusal on the part of the authorities to admit the petitioners. It is now well settled that though an eligible candidate may be said to have a right to get his application for admission considered on its merits and in accordance with law, no applicant for admission has a right to admission. A denial of admission to the petitioners does not, therefore, amount to an infringement of any of their civil rights. The denial itself on the facts and circumstances of the case was justified and proper. It follows, therefore, that no case for issuing any writ or direction at all has been made out by any of these three petitioners whose cases are under consideration. These three applications are, therefore, dismissed, but in the circumstances of the case there will be no order as to costs.
14. In the remaining case of the first group, (C. W. J. C. No. 396 of 1969), different considerations, however, arise. Miss Zee-nat Taj, the petitioner, was admitted on the 7th of April, 1969, which according to the case of the respondents, was a provisional admission for two reasons, namely, (1) that she had not complied with the physical fitness test as enjoined under Clause 5(iv) of the Special Ordinances of the University and (2) that the Vice-Chancellor, who alone had powers to increase the seats, had not expressed his decision one way or the other. Jt will be noticed that the so-called provisional admission of this petitioner was also cancelled by an order dated the 28th April, 1969, just as in the other three cases. It is this cancellation order, which the petitioner has challenged in this case.
15. The petitioner had passed her Pre-University examination in Science from the Patna University in 1968, obtaining 493 marks out of 900 total marks and she had duly applied for admission into the 1st Year M. B. B. S. Course on the 13th July, 1968, with attested copies of all the documents required under Rule 6 of the Rules for Admission of Students in the 1st Year Medical Course, though not required under the said Rules, she had also put in a certificate of physical fitness dated the 7th April, 1969, granted to her by Dr. H. N. Singh, Professor and Head of the Department of Medicine, Patna University. Her marks calculated according to the Ordinance came to a total of 811. Her case is that on the basis of the aforesaid marks, her position amongst the girl candidates for admission from the products of the Patna University was 17th in order of merit, and though under Clause 2(d) of the Special Ordinances on the total number of seats being at that time 170, it was incumbent on the Principal to call 17 girl applicants, including the petitioner for interview and admission, yet the Principal, for reasons as yet undisclosed, called only 14 girls for interview and admission on the 29th July 1968. Out of the 14 girl candidates called for admission as aforesaid, one Miss Asha Agrawal was not considered eligible for admission. Thus only 13 were admitted from amongst the girl candidates from the Patna University. Later two girl applicants, Miss Indira Prasad and Miss Anita Rani Bhawmik were admitted from amongst the girl candidates, who were qualified from the Universities and educational institutions other than the Patna University, bringing the total number of girl candidates admitted to 15. Still later two more girl candidates were admitted, Kumari Lalita Upadhya and Miss Rita Singh, both having the same total marks, namely 821. Meanwhile partly because of the 17th girl candidate having been admitted because she had equal marks with the 16th girl and on account of the Vice-Chancellor having created three extra seats, the total number of seats had got increased from 170 to 174 and twenty per cent of the latter number came to 34.8. Out of 34.8, fifty per cent under the Ordinance had to go to girl applicants who had qualified from the Patna University. The petitioner's case is that even if she was 18th in the order of merit, yet she should have been admitted on the above calculation in the regular course, but the Principal acting contrary to the Ordinances had chosen to admit her only provisionally on wholly erroneous grounds. According to her, none of the two factors enumerated above and alleged on behalf of the respondents as factors which intervened against her final admission, were tenable. The order of cancellation in this case has also been attacked on the ground that it had been passed without the authority concerned applying its mind to any of the rele vant facts, or the law applicable, and in that sense the order being wholly arbitrary was fit to be quashed.
16. The first question which arises for determination is the number of seats for women students calculated in accordance with Clause 2 (c) of the Ordinances for admission of students to the Medical Course. That Clause provides that out of the total number of seats twenty per cent will be allotted to women students. It was contended on behalf of the respondents that the 'total number' of seats spoken of in Clause (2) of the aforesaid Ordinances meant, the initially sanctioned number pf seats, which was admittedly 170 only, and did not include the seats which might have been subsequently increased by the Vice-Chancellor. I have no hesitation in rejecting this contention. Sanctioned number of seats, and total number of seats are not interchangeable expressions. The ordinances envisage the initially sanctioned number of seats being increased by the Vice-Chancellor in his discretion. Accordingly, the expression, 'total number' of seats, as used in Clause (2) of the aforesaid Ordinances must necessarily mean the sanctioned number of seats, plus the number of seats, which might have been increased by the Vice-Chancellor. In my opinion, therefore, the word 'total' has to be given its ordinary dictionary meaning and it must be held that for the purposes of calculating the number of seats which had to be allotted to women students the initially sanctioned number of seats plus the seats increased by the Vice-Chancellor will have to be taken and that number admittedly comes to 174. Twenty per cent of 174, it was conceded, came to 34.8 and the rule being that fifty per cent thereof have to be filled up from amongst the applicants who had passed the Pro-University examination from the Patna University and had secured forty-five per cent of the marks or above in the aggregate. (Vide Clause 5 (i) (a) of the Ordinances), the number of girl applicants who had passed the Pre-University examination of the Patna University and has secured the qualifying marks came to 17.4, which in effect meant 18, because the fraction in the above calculation, in view of the character and object of the rule in regard to reservation of seats, has to be regarded as a whole number.
17. It has not been disputed that the petitioner's marks in the aggregate calculated in accordance with the Ordinances came to 811 and her place was 18th in the merit list of girl candidates, being immediately after Miss Rita Singh. It is not the case of the respondents that between Miss Rita Singh and the petitioner, there was any other girl applicant having higher marks in the aggregate than the petitioner. It follows, therefore, that the petitioner should have been admitted as the 18th girl applicant in the usual course against a regular vacancy in the quota for women students, unless there were certain intervening factors which could justify her admission being only provisional. The case of the respondent No. 1 is that the petitioner could have been admitted only provisionally because, in the first place the Vice-Chancellor who alone had powers to in-crease the number of seats could hardly be asked to increase the number of seats as he had been prayed for on behalf of tie petitioner, as he had already given expression to his views on the subject to the contrary by revoking his earlier decision to increase the number of seats, and, in the second place, because the petitioner's application for admission filed on the 13th July, 1968, was itself defective in so far as she had not furnished a report as to her physical fitness from the requisite number of doctors including a lady doctor. The application which the petitioner's father had filed for increasing the number of seats should have been addressed to the Vice-Chancellor and not to the Principal who had no powers to increase the number of seats. Even so, according to the case of the Principal, the application would have been forwarded to the Vice-Chancellor for orders if the latter had not already expressed himself against increasing of the number of seats. It has been categorically stated in paragraph 17 of the counter affidavit filed on behalf of the respondents that the petitioner's provisional admission was both made and cancelled by the Principal on his own responsibility.
18. Though in view of what has been held above that 18 women students including the petitioner whose position was 18th in order of merit in the category to which she belonged and not 17 only, should have admitted in the regular course against the seats reserved for women students under Clause 2 (d) of the Ordinances, the plea that the petitioner could have been admitted only provisionally because the Vice-Chancellor was understood as not inclined to increase the number of seats, is not at all sustainable; the stand taken by the Principal as indicated above appears to me to be regrettable. It may not have been possible for the Principal to prevent the petitioner's father filing the application on the 12th February 1969, but certainly it was not only possible but desirable for the Principal to reject the said application forthwith on the ground firstly that the application had been addressed to a wrong person as the Vice-Chancellor and not the Principal had the power to increase the number of seats and secondly on the ground that in the circumstances then obtaining, the application was not likely to be forwarded to the Vice-Chancellor for necessary orders. The Principal on his own showing knew of the Vice-Chancellor's attitude in the matter of increasing the number of seats. Instead, the Principal by entertaining the application and by keeping it pending all the time from the 12th Feb., 1969, until the 28th April, 1969. when he purported to cancel the so-called provisional admission of the petitioner afforded reasonable grounds for a belief in the Winds of the petitioner or her father that the Principal was doing the needful in the matter when, in fact, right from the beginning, the Principal quite clearly was either not in a position to do anything or worse still had no intention of doing anything. Once the application had been entertained it should have been in all fairness, forwarded to the Vice-Chancellor with or without recommendation as the Principal thought fit, but its retention in the Principal's office indefinitely was both irregular as well as unjustified. It is significant to mention that on the very day on which the petitioner's father had filed the aforesaid application, the Vice-Chancellor had in effect sanctioned an increase of the seats by admitting one Sri Kanti Mohan Singh, a candidate from the Bhagalpur University, and, it may have been that the Vice-Chancellor in the exercise of his discretion, and on a consideration of the petitioner's case increased the number of seats by at least one more. The Principal, however, by not forwarding the said application effectively succeeded in virtually preventing the Vice-Chancellor from exercising his discretion. It follows that there is no satisfactory explanation for the inaction on the part of the Principal in regard to the application which had been filed on behalf of the petitioner by her father. Further, if the Principal already knew on the 12th February, 1969, that there was no prospect of the Vice-Chancellor increasing the number of seats and that on that account he was not going to forward the application filed by the petitioner's father in that behalf to the Vice-Chancellor, it is rather inexplicable why he took the responsibility of admitting the petitioner even provisionally. One cannot help saying that the Head of an important educational institution should have conducted himself more reasonably than he did in the case of this petitioner. It is, however, unnecessary to pursue this matter any further because on the findings reached above the alleged impediment or want of seat in the case of the petitioner was, in fact, illusory and it must be held that there is no force in the contention that the petitioner's admission had to be provisional, because no increase in the number of seats, as had been prayed for on. her behalf, had been sanctioned.
19. The other factor which, according to the respondents, stood in the way of the petitioner's admission is equally untenable in law. The relevant Clause of the Ordinances for admission of students to the Medical Course in Clause (5) (iv) which reads as under:--
"No applicant shall be admitted who may be found physically unfit to undergo train-ing in the Medical Course."
The case of the Principal is that as the peti tioner had not furnished a report as to her physical fitness for undergoing a training in the Medical Course from a panel of doctors consisting of a Physician, a Surgeon, an Op-thalmologist and a Lady Doctor (preferably a lady Gynaecologist) in accordance with the established procedure for testing the physical fitness of a girl applicant for admission, she could not be finally selected and admitted into the College under the Ordinance. For this case, I find no warrant whatsoever either in Clause (5) (iv) of the Ordinances as set out above or in any other Clause of the Ordinances. The meaning of Clause (5) (iv), to my mind, is plain and it is this that no applicant for admission whether boy or girl who is found physically unfit for undergoing' the training in the Medical Course can be admitted. The emphasis is on the words "who may be found physically unfit". Quite clearly, it is for the College or the University authorities to come to their own finding in regard to the physical unfitness of a particular applicant and for that purpose and before admission can be refused to a particular applicant on the ground that he or she was physically unfit for undergoing the training, the authorities have to arrange for an examination of the applicant concerned by one or more than one doctor as they might think fit and proper. It follows that it is not for the applicant concerned to furnish any report of his or her own accord in proof of physical fitness. Clause (5) (iv), as it stands, is not at all attracted to the instant case. The petitioner has never been asked to submit herself to any examination by a Doctor or by a panel of doctors with a view to enable the authorities to find out whether she had the requisite physical fitness for undergoing the training in the Medical Course. That no report as to physical fitness by one or more than one doctors had to be submitted along with the application for admission is clear from the terms of Rule 6 of the Rules for admission of students in the 1st Year Medical Course for the sessions 1968-69. That rule requires copies of several documents to be filed along with the application for admission, but the list of documents required to be filed does not include any certificate or report as to the physical fitness of the applicant for admission. It, therefore, follows, that the application for admission filed by the petitioner was in no manner defective. If in accordance with Clause (5) (iv) of the Ordinance referred to above, the authorities had required the petitioner to submit herself to an examination by a panel of doctors, including a lady Doctor with a view to find out whether she was in any manner physically unfit to undergo the training in the Medical Course and she had either declined or had failed to submit herself to the said examination or if upon an examination it had been found that the petitioner was physically unfit to undergo the training, there would have been some justification for either admitting the petitioner provisionally or refusing admission to a, her altogether. That stage, however, never came. I am, therefore, inclined to hold that the second ground, as mentioned above, which has been put forward on behalf of the Principal for admitting the petitioner only provisionally is not at all sustainable in law. The said impediment must also be held to be wholly illusory.
20. In view of what has been discussed and held above, the case of the Principal of the College that the petitioner had been admitted only provisionally fails. There being no intervening factor or any impediment in the way of the petitioner being finally admitted as a student of the College, her admission though described erroneously as provisional must be treated as final, subject, however, to the authorities being satisfied as to the physical fitness of the petitioner in accordance with Clause (5) (iv) of the Ordinance. The impugned order of cancellation, as in the three other cases disposed of above gives no reason for making the order, but unlike the other cases of this group, the order of cancellation in the present case cannot be read along with the Vice-Chancellor's letter of 27th April, 1969, holding that the admissions made on the 21st April, 1969, against six casual vacancies were unfair and irregular. As already mentioned, the petitioner was not admitted against any of those six casual vacancies, her admission being about a fortnight earlier on the 7th April, 1969; the papers relating to her admission had never been forwarded to the Vice Chancellor nor had the Vice Chancellor asked for them. But the Principal without giving any opportunity to the petitioner to satisfy the authorities about her physical fitness and without even disclosing to her that as the Vice-Chancellor, in the circumstances, could not be reasonably asked to increase the number of seats and as she had failed to furnish a report from a pane of doctors certifying to her physical fitness for undergoing the training in the Medical Course, her provisional admission had to be cancelled, suddenly passed the order of cancellation. It is quite clear that the order has been passed without the Principal applying his mind to the facts and circumstances of the instant case. In the First place there was no good reason why the Principal should not have called the petitioner for admission against one of the regular vacancies in the category of women students and in the second place it is wholly inexplicable why if there were insuperable impediments according to him in the way of the admission of the petitioner, he accorded her, what he has described as a provisional admission. Lastly upon the facts as discussed above, it must be held that he has acted rather arbitrarily in pass-Ing the order of cancellation. For all these reasons, the impugned order of cancellation must be quashed.
21. The operation of the order of cancellation was stayed by this Court on the 1st May, 1969, while admitting this application, and according to one of the affidavits filed on behalf of the petitioner she has been attending practical classes throughout. In view of what has been discussed above, the petitioner must be taken to have been admitted in the regular course against one of the vacant seats reserved for women students from amongst the applicants who had passed the Pre-University examination of the Patna University and had secured the minimum percentage of marks. It will, however, be open to the authorities concerned to get her examined by such number of doctors as they might think fit and proper with a view to find out whether she was physically unfit to undergo a training in the Medical Course, and if the result of the said examination was adverse to the petitioner, her admission will stand cancelled, otherwise she will be allowed to pursue her studies in the said course and all the lectures attended by her whether of practical or of theoretical classes right from the 7th April, 1969, the date on which she was admitted, will be counted to her credit. Whether she will be admitted to the 1st M. B. B. S. examination for the session 1968-69, will however, depend on the provisions of Regulation 7 of Chapter XXVI of the Patna University Regulation (1965), but if on account of the provisions of the said Regulation she is unable to take the 1st M. B. B. S. examination for the session 1968-69, she will be treated as a regular student of the 1st Year Medical Course in the succeeding sessions. It will be open to her to appear at any subsequent 1st M. B. B. S. Examination held for the succeeding sessions subject to the relevant rules in that behalf.
21A. In the result the impugned order of cancellation is quashed and this application succeeds and is allowed subject to the directions and observations made above. In the circumstances of this case, there will be no order as to costs.
22. On the second group of cases comprised of as many as twelve applications, C. W. J. C. Nos. 415/69, 417/69, 429/69, 437/69, 438/69, 439/69, 459/69 and 461/ 69 raise an identical question and may be disposed of first. The petitioners in all these cases have prayed for issuance of a writ in the nature of mandamus directing the Principal of the College and the Vice-Chancellor to admit them into the 1st Year M. B. B, S. Course for the session 1968-69, against the six casual vacancies which existed. That no such writ or direction can be issued is concluded by two decisions of this Court, one reported in 1965 BLJR 229 and the other reported in AIR 1968 Pat 3 (FB), Umesh Chandra Sinha v. V. N. Singh. In Sunil Bhatia's case, 1965 BLJR 229 it was pointed out that while it was true that an applicant for admission was entitled to have his case considered in accordance with law, he could not go beyond that and claim admission as of right. This view was quoted with approval in Umesh Chandra Sinha's case, AIR 1968 Pat 3 by the Full Bench. It follows, that no applicant can claim admission as of right and, accordingly, no application can lie under Article 226 of the Constitution for enforcing a right which does not exist. If the petitioners had prayed for a direction to be issued calling upon the respondents to take their applications for admission, if any, into the 1st Year M. B. B. S. Course, into consideration in accordance with law, the matter would have stood differently but on the relief prayed for as it stands in all these applications, it must be held that the applications themselves are not maintainable and as such they must fail. These applications are, accordingly, dismissed, but in the circumstances of the case, there will be no order as to costs.
23. In C. W. J. C. Nos. 436/69, 444/69 and 448/69, three out of the four remaining cases of the second group, identical questions arise and they may be now taken up for consideration.
24. In these cases, reliefs prayed for are three-fold. They are as follows:--
(i) Prayer for issuance of a writ directing the respondents to admit the petitioners against the casual vacancies.
(ii) Prayer for issuance of a writ commanding or directing the respondents to fill up the six casual vacancies which had occurred in the 1st Year M. B. B. S. Course in accordance with law, and
(iii) Prayer for a direction upon the respondents to consider the petitioner's applications for admission on their merits and in accordance with law against the aforesaid casual vacancies.
25. The first relief is clearly not maintainable and indeed it was not pressed on behalf of the petitioners in these three cases, In regard to the third relief prayed for in [these cases it is now firmly established that an applicant for admission has a right to get his application considered in accordance with law vide 1965 BLJR 229 at p. 235 and AIR 1968 Pat 3 (FB). This right, however, cannot arise unless the following conditions are satisfied: (i) The applicant concerned must have actually applied for admission into an educational institution and (ii) there must be vacancies in the class into which admission is sought for and, further there must be an obligation on the part of the authorities to fill up those vacancies. Now in all these three cases, there is no dispute that the peti-tioners have actually applied for admission into the 1st Year M. B. B. S. Course. Whether their applications are in accordance with law and are otherwise in order is a matter which will fall for consideration when their applications are taken up for due consideration by the authorities concerned and, there fore, that question need not be gone into at this stage. It is also not in dispute that during the session 1968-69, as many as six casual vacancies occurred between the 22nd February, 1969 and the 10th April, 1969, and though the said casual vacancies were filled up on the 21st of April, 1969, by admitting six candidates provisionally, the admissions having been subsequently cancelled on the 28th of April, 1969, the vacancies still existed. The main question for consideration is whether the authorities are under an obligation to fill up those casual vacancies. If it is found on a consideration of the relevant provisions of the Ordinances that the casual vacancies which occur have to be filled up as and when they occur, there will be no escape from the conclusion that the respondents must be directed to duly consider all applications for admission including those of the three petitioners in these three cases which might have been filed, in accordance with law and fill up the casual vacancies by admitting six applicants against them. In some of the applications under consideration, the petitioners have treated the cancellation of the admission of Miss Zeenat Tai as adding one more vacancy to the six casual vacancies which had already occurred. In view, however, of what has been held in the case of Miss Zeenat Taj (C. W. J. C. No. 396 of 1969), no question of there being a seventh vacancy arises.
26. Clause (5) of the Ordinances under the head 'General' (hereinafter described as the "General Ordinances') reads as under:--
"After all the seats are filled up in a particular class, if any subsequent vacancies arise because of students leaving the college such vacancies have to be regarded as casual'. The casual seats are to be allotted after announcing them on the Notice Board of the College and giving seven days time before making admission. Admission shall be made strictly on the basis of merit irrespective of the year in which the applicants have passed or the place from which they have passed the previous examination."
According to Mr. B. C. Ghose, learned counsel appearing for the respondents, there was nothing in Clause (5) of the General Ordinances quoted above or indeed anything any where in either the General or the Special Ordinances to show that there was a statutory obligation on the University authorities to fill up the casual vacancies, even if they existed. Mr. Basudeo Prasad and a number of other lawyers appearing in support of these petitions, on the other hand, contended that on the language of Clause (5) itself it must be held that the necessary intendment was that the casual vacancies if and when they occurred, had to be filled up and indeed, according to them the words 'are to be allotted' meant and implied 'shall be allotted'.
27. In my opinion the contention raised on behalf of the petitioners in these three cases under consideration is well founded and should be accepted. The Patna University as the preamble of the Act shows, is a teaching-cum-residential University. The Prince of Wales Medical College is one of the institutions maintained and controlled by the University. It admits students to a course of medical studies which extends for five and half years. In the ultimate analysis, all educational institutions are meant to subserve a great social need and an institution imparting medical education is no exception. Indeed the need of the society for an adequate number of qualified doctors is widely recognised and progressively medical education is becoming more and more popular. With a view to regulate admission into the medical course, the Syndicate have made Ordinance for admission of students to the said course. These Ordinances are Special Ordinances applicable to admissions to Medical Course. The Syndicate have also made some General Ordinances called Ordinances under the headiag 'General' which as their title, shows, are applicable to all course of study in the different faculties. It is obvious that the General Ordinances of which Clause (5) under consideration forms a part, have to be read in the context of the Special Ordinances applicable to the Medical Course, and to my mind and perusal to the Special Ordinances leaves no doubt that the necessary in-tendment was that throughout the Course extending over five and half years, as mentioned above, a given strength of the classes, equivalent at least to the number of sanctioned seats has to be maintained, in other words, if as in the instant case, the sanctioned seats were 170, there was an obligation on the University authorities to admit at least 170 students and keep up that strength throughout the course. This intendment cannot be carried out unless there was an obligation on the University authorities to fill up all casual vacancies which might arise during the session.
28. Before taking up the question of proper construction of Clause (5) of the General Ordinances some of the relevant Clauses of the Special Ordinances may be referred to for the purposes of ascertaining the intention behind enacting those Clauses. Clause (1) postulates certain number of sanctioned seats in the 1st Year Medical Course against whom admissions have to be made. Under Clause (2) the proportion in which the total number of seats which expression as already held above in C. W. J. C. 396 of 1969, means the sanctioned seats plus the number of seats which might have been increased by the Vice-Chancellor, have to be allotted amongst different categories is laid down. The proviso to the clause states that in case of any seat remaining unfilled in any of the first two categories, the same may be filled up by the applicants from the other categories. The emphasis quite clearly is on not allowing any of the sanctioned seats remaining vacant. The same emphasis is dis cernible in the proviso to Clause (3) which states that if the seats reserved for scheduled caste candidates remain unfilled because of no candidate from that category coming up to the mark as laid down in Clause (3), the Vice-Chancellor may permit relaxation up to fifteen per cent of the marks so that the requisite percentage of scheduled caste candidates may be admitted and none of the seats reserved for them, out of the total number of seats may remain vacant. Clause (4), in my opinion, brings out the intention quite clearly. It states that seats left unfilled in any of the categories mentioned in (a) to (e) under Clause (2) by reason of the fact that no eligible candidates are available shall be filled up by admitting applicants available in accordance with the merit list. The clear intention is not to allow any unfilled seats to remain in the special categories mentioned in Clause (2) and if no eligible candidates from those categories are available, the seats so unfilled have to be filled up from applicants available in the general merit list. To Clause (5) (1) as well there is an important proviso which empowers the Vice-Chancellor, in the event of all the seats not being filled up by reason of the fact that there are no applicants who possess the minimum qualifying marks, to lower the qualifying marks to such limits which he might consider proper and expedient. This again is clearly intended to prevent any of the sanctioned seats remaining vacant. Clause (6) which is the last clause of the Special Ordinances speaks of the Vice-Chancellor's power to fill up any unfilled seats in the 2nd year of the Medical Course by admitting the best available applicants directly into the 2nd year M. B. B. S. Course from either those who have passed B.Sc. Part I examination or an equivalent examination with physics, chemistry and biology as their subjects or from those who might have completed the 1st Year Medical Course of the five year integrated course or the equivalent thereof in any recognised institution in Bihar. Tbe above provisions in my opinion, clearly indicate the anxiety on the part of the Syndicate to see that at least the sanctioned number of students receive instruction in the Medical Course so that at least that number of qualified doctors be turned out at the end of the Course, and no part of the equipment maintained and assembled at the college level for imparting education go to waste. Considered in the light of tbe above intendment it is impossible to conceive that the Syndicate would have left in the Vice-Chancellor any discretion in the matter of filling up of the casual vacancies which might occur during any particular academic session. If as has been contended for on behalf of the respondents, there was no obligation on the Vice-Chancellor to fill up the casual vacancies when they occurred, more or less anomalous and absurd result would follow, for instance, a number of casual vacancies may occur soon after the commencement of the session, and if the Vice-Chancellor were free to either fill up those vacancies or not at his sweet discretion, the result will be that in case he decides not to fill up the casual vacancies, the Course will run with a truncated class only, and to that extent the Syndicate's object and intention would stand defeated. The mere fact that casual vacancies might occur, either during the middle of the term or towards, the end of the term, cannot afford any justification for putting a different construction on Clause (5) than what should be placed on the said clause if the vacancies occur soon after the commencement of the Session. For the above reasons, it must be held that there is an obligation on the Vice-Chancellor to fill up the casual vacancies if and when they occur.
29. On a proper construction of the lan guage of Clause (5) as well, one cannot but reach the above conclusion. The relevant words are, "the casual vacancies are to be allotted." The question is whether the words are to be allotted' in the context of the scheme, and intention of the Syndicate as is apparent from the several clauses of the Special Ordinances, discussed above, should be read as 'have to be allotted or 'shall be allotted. The following quotation from the Crawford "On the Construction of Statutes", at page 516, is quite helpful in this connec tion:--
"The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern; and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other ....."
Reference may also be made to the decisions of the Supreme Court in State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912 at p. 918; State of Uttar Pradesh v. Babu Ram Upadhya, AIR 1961 SC 751 at p. 765 and Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur, AIR 1965 SC 895 at p. 899. In the first two cases their Lordships have quoted the above passage from Crawford with approval and in the last mentioned case Wancnoo J. who delivered majority opinion observed as under:--
The question whether a particular provision of a statute which on the face of it appears mandatory inasmuch as it uses the word "shall" as in the present case or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other conditions which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory." It follows that the words used in a particular provision are by no means the decisive factor. The nature, the design and the consequences which would follow from construing the provision in one way or the other are more decisive. In the instant case, therefore, in view of the design and the scheme relating to admission envisaged in the Special Ordinances, and also in view of the object sought to be achieved, the words "are to be allotted", though not framed in terms of command, must be read as mandatory and they really mean and imply, as, "have to be allotted" or "shall be allotted". The power to fill up the casual vacancies as conferred under Clause (5) is, in my opinion, coupled with a duty to fill up those vacancies. The classical observations of Lord' Cairns L. C. in Lulius v. Lord Bishop of Oxford, (1880) 5 AC 214, may be usefully set out in this connection.
"But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised which may couple the power with a duty, and make it the duty of the persons on whom the power is reposed to exercise that power when called upon to do so."
Quite obviously, the object for which the power to fill up the vacancies has been conferred being in the very nature of things for the benefit of the student community, who might be desirous of admission into the Medical Course, the person in whom the power is reposed must be held to have a duty to exercise that power when called upon to do so. It is impossible to conceive that the Syndicate should have created a power for putting in motion the provisions of a certain Clause of the Ordinance intended to secure a full complement of students for ft particular course of study, and, should have conferred that power upon the Vice-Chan-cellor to enable him to utilise that power for the benefit of the student community, and, yet had left to him an absolute discretion to render that Clause inoperative leading to the total disregard of the interest of the students desirous of admission. The words, "are to be allotted" are, in my opinion, mandatory and they import a duty to act for the benefit of the eligible students. The power to fill up the casual vacancies, as is conferred under Clause (5) was never intend ed to be rendered inoperative at the caprice of any individual, however, highly placed he may be. The only limitation on the exercise of the power is that before the power can be exercised, an occasion for its exercise by reason of casual vacancies occurring, should have arisen. The relevant words used in Clause (5) must in the circumstances receive a construction of obligation and not of discretion, for, even if the words used may be enabling words, they must be held to have a compulsory force where the thing to be done is for the benefit of the public or for a certain defined section thereof. For these reasons I am inclined to accept the contention advanced on behalf of the peti-tioners that there was a statutory obligation on the Vice-Chancellor to fill up the six casual vacancies in question or cause them to be filled up.
30. It follows that the petitioners in all these three cases are entitled to get their application for admission duly considered, in accordance with law, against the aforesaid six casual vacancies, which occurred during the session 1968-69. Let a direction issue to the respondents to that effect. As the petitioner's applications have to be considered strictly on the basis of merit as laid down in Clause (5) of the Ordinance, the respondents must be directed to consider the petitioners' applications for admission along with all other similar applications for admission which might have been filed, either before the 7th of September, 1968 or by the 21st of April, 1969. It is clear that so far as admissions to casual vacancies are concerned, they are to be made irrespective of the year in which and the place from where the applicant for admission might have passed his or her previous examination, and, therefore, even those applicants who might have passed their previous examinations between the 7th September, 1968 and the 21st April, 1969, either from the Patna University or from any other University in Bihar are eligible candidates and have a right to get their applications considered for admission against the casual vacancies along with the applications for admission of these three petitioners. It follows that all students except the petitioner in C. W. J. C. No. 416/69, namely, Bishwajit Kapur, who were admitted provisionally on the 21st April, 1969, but whose provisional admissions were subsequently cancelled may also, if they so like, get their applications for admission if otherwise in order, considered for admission against the casual vacancies on merits and in accordance with law. The application for admission into the 1st Year M. B. B. S. Course which had been filed by Sri Bishwajit Kapur, the petitioner in C. W. J. C. 416/69, cannot, however, be entertained as the same was barred under Rule 6 (d) of the Rules for admission of students in the 1st year Medical Course (session 1968-69) and also under the last part of Clause (1) of the Special Ordinances. It will, however, be open to the Vice-Chan-cellor acting under Clause (6) of the Special Ordinances to consider his application as an application for admission in the 2nd year of the Medical Course against any unfilled seats in that Course which may exist at the commencement of the ensuing session.
31. In the result all these three applications are allowed in the extent indicated above and the rules are made absolute to that extent. In the circumstances of the case, there will be, however, no order as to costs.
32. In C. W. J. C. No. 414 of 1969, the only case out of the second group of cases to be considered, the petitioner has made three alternative prayers. The first prayer is exactly the same, as has been made and allowed in the three applications just disposed of and will be governed by the directions made in them. The third one seeking a direction from this Court commanding the respondents to admit them against one of the six casual vacancies is one which can hardly be entertained for the reasons already pointed out while disposing of the eight cases out of the twelve cases falling in this group. The main relief claimed, however, is the second one, namely, for quashing the admissions made of respondents Nos. 3 and 4 to the two sportsmen seats, and for a direction that the petitioner be deemed to have been admitted against one of those seats. Both respondents Nos. 3 and 4 have shown cause and have claimed that their admissions were validly made. Respondents Nos. 1 and 2 have also supported their case. It was, however, conceded by learned Counsel for the petitioner that so far as respondent No. 3 was concerned, there was no infirmity attached to his admission.
33. In regard to the admission of respondent No. 4, however, it has been seriously contended on behalf of the petitioner that his admission was clearly in violation of the relevant clauses of the Ordinances and as such should be quashed and a direction be issued that the petitioner should be deemed to have been admitted to one of the sportsmen seats.
34. Under Clause (2) (e) of the Special Ordinances, of the total number of seats, two seats are to be allotted to sportsmen, subject to the approval of the Vice-Chancellor, who in the opinion of the Principal of the College had distinguished themselves as players or athletes even though the sportsmen students so selected are not eligible to be included in the merit list of candidates for admission. In the instant case there is no dispute that the Vice-Chancellor had given his approval to the admission of respondent No. 4. It was, however, urged that the Principal having only accepted the choice already made by a committee, appointed by him in respect to the respective merits of the several candidates who claimed admission as sportsmen, IN regard to the candidates having distinguished themselves as players or athletes, it must be held that the selection of the Candidates for admission as sportsmen including that of appellant No. 4 was not an act of the Principal as required under Clause (2) (e) of the Special Ordinances. In my opinion, there is no merit in this contention. It appears that as many as 48 students claimed admission as sportsmen and all of them were asked to submit themselves for a verification of their claim as distinguished players and athletes to an Expert Committee. The said Committee interviewed the several applicants on three dates, namely on the 4th, 6th and 7th December, 1968. There-after the Committee selected six out of the 48 students interviewed and forwarded the names of the six students so selected to the Principal. It further appears that the Principal taking the list of the six candidates selected by the Expert Committee to have been prepared in order of merit, selected the first student in that list who is respondent No. 3 in this case and the third student who is respondent No. 4. According to the Principal the person named as second in order of merit did not qualify under Clause (3) of the Special Ordinances. The Principal thereafter forwarded the names of respondent Nos. 3 and 4 for the approval of the Vice-Chancellor and it was on receipt of the Vice-Chancellor's approval that both of them were admitted. In my opinion, it was open to the Principal to form his opinion about the respective merits of the candidates for admission in regard to their quality as players or athletes on such materials as he might like to collect either directly or through some other agency. It is quite conceivable that the Principal of the College may not be himself a sportsman or atleast may not have the time to conduct the usual tests which are generally necessary to ascertain the respective merits of the candidates concerned as sportsmen. I, therefore, find no infirmity in the selection made by the Principal merely because the Principal had required an Expert Committee to undertake the conducting of the requisite tests. It was next urged that in any case there was nothing to show that the so-called Expert Committee had forwarded the names of the six candidates for admission to the sportsmen seats in order of merit. It is true that the Committee while forwarding the names had not said in express words that the names were being forwarded in order of merit, but there appears to be great substance in the argument of learned Counsel for respondent No. 4 that the very fact that the list had been drawn up seriatim irrespective of alphabetical considerations and were arranged numerically, went to suggest that the Committee had forwarded names in order of Merit. In any case, there can be no doubt that the Principal understood the list in that sense, and he having exercised the discre tion of selection vested in him; it is not open to the Court to interfere with the same unless it can be shown that the discretion has been exercised arbitrarily or mala fide. In paragraph 15 of the application the bona fides of both, the Principal as also of the Expert Committee in making the selection, has been challenged and though paragraph 9 of the show cause filed on behalf of the respondents and sworn to by the Principal himself could have been more explicit than what it is, on the facts brought on the record by respondent No. 4 through his show cause petition, it must be held that the petitioner has failed to make out his allegations of mala fides. Indeed no material has been furnished on behalf of the petitioner in proof of his allegations of mala fide. On the other hand, it appears from the show cause filed by respondent No. 4 that all the 48 candidates for admission were interviewed on three dates as mentioned above and in the circumstances I find no reason to suppose that the selection made by the Expert Committee was based on anything except the respective merits of the performances in sports of the several applicants concerned. Respondent No. 4 has appended to his show cause copies of a number of certificates in proof of his merit in the field of sports, and, there is no allegation that these materials were not before the Expert Committee or for the matter of that before the Principal who made the final selection. On these materials it is difficult to accept the petitioner's case that the selection as made by the Expert Committee or by the Principal was in any manner mala fide.
35. The substantial grounds urged against the admission of respondent No. 4 are, however, based on Clauses (3) and (5) (ii) of the Special Ordinances. Clause (3) of the Special Ordinances reads as under:--
"No student shall be admitted who has secured less than 10% of the total marks lower than the marks secured by the last applicant admitted in accordance with the list of eligible candidates on the basis of merit under category (f) of Clause (2)."
According to the petitioner he as well as three others including respondent no. 4 were non-Patna University boys and the last applicant admitted according to the list of the eligible candidates from non-Patna University boys had 997 marks in aggregate, calculated in accordance with the Ordinance. Taking 997 as the basis, it was urged that respondent No. 4 having obtaining only 777 marks (calculated according to the Ordinance) did not qualify under Clause (3). and his admission was, therefore, wholly illegal as being contrary to the said clause. The contention of the University as also respondent No. 4 on the other hand, is that Clause (3) does not warrant taking the list of eligible applicants separately. Both the lists, namely, one for Patna University boys and the other for foreign University had to be taken together and once that was done, the argument proceeded, that the last applicant admitted having only 912, the admission of respondent No. 4 was fully in accordance with Clause (3). Paragraph 7 of the Principal's affidavit reads as under:--
"For determining as to who is the last candidate admitted in Medical Course, it is not merely confined to students in category which is commonly known, category of students belonging to the Patna University, but to both the categories, the last student admitted in the Patna University category had secured 60.8%"
To the same effect is the statement made by respondent No. 4 in paragraph 9 of his show cause petition, as corrected by an affidavit filed on behalf of respondent No. 4 by his father. According to the case of the University and respondent No. 4, therefore, respondent No. 4, whose total marks as calculated under the Ordinances came to 807, namely, 53.8% could not be said to have secured less than 10% marks lower than the marks secured by the last student admitted as per the list of eligible candidates. In An-nexure 'A' of the show cause filed on behalf of respondents Nos. 1 and 2 which is the letter of the Principal addressed to the Vice-Chancellor on the 7th of December, 1968 the Principal on the interpretation or construction of Clause (3), as mentioned above, had excluded Sri Hridaya Eanjan Pd. Gupta, who figured as the second person in order of merit amongst the sportsmen, as selected by the Expert Committee.
36. The question before us is one of construction of Clause (3). It is quite clear that Clause (3) is of general application and applies to all the categories enumerated in Clause (2) without exception. It is a rule which prohibits admission and is, therefore, a rule of limitation and should be strictly construed. The disability imposed under the said Clause cannot be extended beyond such limits as the Clause warrants. The object of this Clause appears to restrict admission of ah students, belonging to whatever category, whose academic records are so poor that they have secured less than 10% of the total marks, than the marks obtained by the last student, who had secured his admission in the Medical Course. In one sense this provision is a limitation on the powers of the Vice-Chancellor to reduce the minimum percentage of marks for the purposes of admission. The proviso to this Clause which, in my opinion, throws some light on the purpose behind the main Clause, provides that it is open to the Vice-Chancellor to relax the limit of 10% in the case of scheduled caste candidates by another 5% provided however, that in no case even a scheduled caste candidate can be considered for admission if his marks be lower than the 40% of the total marks. It appears to me, therefore, that the Clause contemplates the totality of the applicants admitted into the Medical Course and a student who has obtained less than 10% of the total marks than the marks secured by the last student admitted in the said course, cannot be admitted obviously because the Ordinance making authority felt that a student whose academic records were so poor as that, did not deserve admission. The last student "on the rolls of a particular College, irrespective of the source from which he was recruited" connotes a clear and specific idea and, therefore, in our opinion, the construction placed on Clause (3) by the Principal appears to be fully warranted, both on the language of Clause (3) as also on the object and purpose behind the said Clause. There is no dispute that if the construction put by the University authorities and by respondent No. 4 on Clause (3) was correct, the marks obtained by respondent No. 4 calculated in accordance with that Clause came within the permissible limits. The last student admitted had secured 912 only. Ten per cent of the total marks which stand at 1500, is 150. If 159 is deducted from 912, it comes to 762 only and respondent No. 4 had obtained if not 807, at least 777. The contention against the legality of the admission of respondent No. 4 in so far as the same is based on Clause (3) of the Ordinance must, therefore, fail.
37. The attack against the legality of the admission of respondent No. 4 on the sportsman seat in so far as the same is based on Clause (5) (ii) of the Special Ordinances, however, in my opinion presents a more difficult hurdle. Clause (5) (ii) reads as under:--
"(ii) Admission of students under each category mentioned in Clause 2 shall be on the basis of merit inter se amongst the applicants of the particular category."
This is one of the restrictions and conditions subject to which the admissions are made. It has been urged that the word 'merit' in the aforesaid clause implies and connotes academic merit and not merit as a sportsman. According to this contention, the petitioner having secured 995 marks in the aggregate, being the highest amongst the marks secured by the six sportsmen selected by the Expert Committee, against only 807 or 777 secured by respondent No. 4, the petitioner and not respondent No. 4 should have been admitted against one of the two sportsmen seats, the other seat going to respondent No, 3 who had obtained 941, the next highest marks. If the word 'merit' in Clause (5) (ii) connotes academic merit, there can be no doubt that that particular provision of the Special Ordinances has been clearly violated in the case of respondent No. 4 who had only 807 or 777 marks in the aggregate as against 995 obtained by the petitioner. On behalf of respondent No. 4, it was strenuously contended that the word 'merit' in Clause (5) (ii) of the Special Ordinances must be ascribed a special meaning, namely, merit in respect of sportsmanship and not merit in respect of academic attainments. I confess that this question is not free from difficulty, but after giving to it my most anxious consideration, I have come to the conclusion that the submission made on behalf of the petitioner must be accepted. The word "merit" has been used at several places in the Ordinances and every where it denotes and implies academic merit. It may be mentioned that under Clause (2) after exhaustive five Special categories comprised of students belonging to scheduled castes, scheduled tribes, backward classes, women students and sportsmen, category (f) in clearest words speaks of providing seats to students who are included in the merit list of candidates prepared in accordance with the provisions of the Ordinance. It is difficult to conceive that the Ordinance makers provided for merit test within its accepted connotation, i.e., merit judged on the basis of aggregate marks obtained by the applicants concerned for category (f) and gave a complete go-by to that test so far as categories (a) to (e) were concerned. It appears to me that by inserting Clause (5) (ii) in the Special Ordinance the Syndicate has provided for the operation of the Rule or test of merit in the academic sense for admission under categories (a) to (e) of Clause (2) as well. The only relaxation of the Rule of merit which is naturally given the price of place in selecting candidates for admission into an educational institution, in the case of sportsmen applicants, is that they have not to compete on merits with the non-sportsmen students, but as between themselves inter se, the test of merit in the academic sense has been insisted upon. It follows, therefore, that even though the petitioner may be said to be sixth in order of merit as sportsman, his aggregate marks being the highest amongst the six persons selected by the Expert Committee, he should have been admitted along with respondent No. 3, who had the next highest marks. The failure on the part of the University authorities to comply with one of the mandatory restrictions applicable to admissions into the Medical Course in the case of respondent No. 4, clearly invalidates his admission, but in view of the fact that this situation has been brought about for no fault of respondent No. 4, and also in view of the fact that respondent No. 4 has been a regular student of the College from the 2nd January, 1969, onwards and has not only been sent up to appear at the 1st Year M. B. B. S. Examination, but has in fact appeared at the said examination except in one or two papers, examinations in which have been postponed for the time being, we direct that his enrolments as a student of the College will continue though not against one of the sportsmen seats. The petitioner of this case will, however, be treated as admitted to that seat by virtue of CI. (5) (ii) of the Special Ordinances. Respondent No. 4, in the circumstances referred to above, will however be not unseated, and, as his admission in effect has to be deemed to have been against one of the regular seats, the Vice-Chancellor is directed to treat him as such, by increasing, if necessary, one more seat in the 1st Year M. B. B. S. Course for the session in question.
38. In the result C. W. J. C. No. 414 of 1969 succeeds and is allowed in terms of the directions made above. In the circumstances of the case, however, there will be no order as to costs.
39. It follows that five out of these sixteen cases namely, C. W. J. C. Nos. 396/69, 436/69, 444/69, 448/69 and 414/69, are allowed in terms indicated above and the rest are dismissed. We direct the respondents, namely, the Vice-Chancellor and the Principal to take proper and due steps to comply with the aforesaid directions by the end of this month.
40. Before parting with these cases, it may be pointed out that, firstly, on account of not filling up the casual vacancies as and when they occurred, and, then ultimately filling up those vacancies in an irregular manner and in pursuance of and on the basis of an improper and irregular notice dated the 12th April, 1969, resulting in the eventual cancellation of the provisional admissions made against those vacancies, the Principal has caused, though bona fide, but obviously without any fault on the part of the students who were prima facie eligible and desirous for admission into the Medical Course, some hardships to at least some of them. By way of illustration reference may be made to the case of the petitioner in C. W. J. C. No. 420 of 1969. He was admitted as a regular student in B.Sc. Part I, in B. N. College and was prosecuting his studies there when in response to what was later found to be an irregular and improper notice under Clause (5) of the General Ordinances, applied for admission against one of the six casual vacancies and was provisionally admitted. By reason of the cancellation of his admission which has been confirmed by this Court, he may not have been able to complete his studies in B.Sc. Part I of three years Degree Course in Science, and, surely has not been able to prosecute his studies in the 1st year M. B. B. S. Course as desired by him. There might be other instances of similar hardship. We hope that the Universities will try to mitigate the hardship so caused as far as possible within the framework of the Ordinances and the limits of the law, and the Vice-Chancellor will consider the desirability of accommodating all such students by exercising his wide discretionary powers of increasing the number of seats, it considered feasible.
B.D. Singh, J.
41. I agree.