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1981 DIGILAW 344 (KAR)

M. S. SHAMANNA v. STATE OF KARNATAKA

1981-11-09

M.P.CHANDRAKANTARAJ

body1981
M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS petition is disposed of by the following order at the stage of preliminary hearing after notice to respondents. ( 2 ) PETITIONER Dr. M. S. Shamanna applied for a seat in the post-graduate degree course at the Government Dental College in the State. The selection is governed by the Rules made by the government of Karnataka, the first respondent herein. The Rules are called the Karnataka Dental College selection for Post-Graduate Courses Rules, 1980 (hereinafter referred to as the 'the rules' ). Rule-2 of the Rules prescribes eligibility and it is as follows:"2. Eligibility: (a) No person who has not passed the B. D. S. degree examination conducted by the Bangalore Mysore University or an equivalent examination declared as such by the State Government University shall be eligble for admission. (b) No candidate who is above 45 years of age on the last date prescribed for the receipt of applications shall be eligible for admission to post Graduate Courses in Government Dental College. However, in respect of the candiates belonging to Scheduled caste and Scheduled tribe the age limit of 45 years is re- laxable by three years. "similarly, Rule 3 of the Rules provides for domicile as a prerequisite for eligibility. We are not concerned with that aspect in this Writ Petition. In fact we are not concerned at all with the other rules in-as-much as the grievance of the petitioner who has failed to be selected in spite of a writ of mandamus issued by this Court in an earlier petition filed by him is limited to the repetition of the mistake by the Selection committee in selecting respondents 3, 4 and 5 against the rule of eligibility prescribed by the University. ( 3 ) THE regulations framed by the university under S. 39 of the Karnataka State Universities Act (here in after referred to as 'the Act') for post-graduate Degree Courses have prescribed the eligibility of candidates for the course in the following manner:"eligibility.-1. No candidate shall be admitted to the course unless he she satisfied the following pre-requisites: (a) Holds the degree of B. D. S. of the Bangalore University or of any other statutory University in India or abroad or any other qualification declared as equivalent by the Bangalore university and recognised by the dental Council of India. No candidate shall be admitted to the course unless he she satisfied the following pre-requisites: (a) Holds the degree of B. D. S. of the Bangalore University or of any other statutory University in India or abroad or any other qualification declared as equivalent by the Bangalore university and recognised by the dental Council of India. (b) Has completed not less than 12 months as a Houseman or as a teacher in a Dental College or Hospital or has been in the practice of the dental profession for a period of not less than two years". We are not concerned with the other regulations. ( 4 ) IT may be stated that in so far as the selection on the basis of merit is concerned the selection of respondents 3, 4 and 5 would not in any way affect the rights of the petitioner inasmuch as they have secured higher marks in the aggregate at the interview. The sole ground of attack, once again in this writ petition is that respondents 3, 4 and 5 did not have the academic eligibility and therefore, their selection was contrary to the Regulations framed by the university and in that view the petitioner has been denied selection though he is eligible. ( 5 ) THIS Court in WP No. 2846 of 1931 (Dr. Puttaswamy v. The Selection committee) held that the exemption of the regulation prescribing eligibility given by the Syndicate without the approval of the Chancellor, as required under sub-sec. (1) of S. 31 of the Act to be invalid. In fact, respondents 4 and 5 in this writ petition were also respondents in Dr. Puttaswamy's case. But their selection was not disturbed solely on the ground that great hardship would be caused to them as they had completed one year's course by the time the WP 2846 of 1981 came to be decided on 15-6-1981. However, the petitioner therein got the benefit of a writ of mandamus by which a seat was reserved for him in post-graduate degree course at the Dental College, bangalore, for the academic year 1981-82. The position in that respect has not been altered in the present case also, inasmuch as 1980-81 academic year in so far as the degree course is concerned is over and the petitioner has not made another application for the academic year 1981-82. The position in that respect has not been altered in the present case also, inasmuch as 1980-81 academic year in so far as the degree course is concerned is over and the petitioner has not made another application for the academic year 1981-82. For a number of reasons this petition could not be disposed of. ( 6 ) THE only difference between Dr. Puttaswamy's case and this case is that the Regulations of the University prescribing eligibility as extracted above has been relaxed by a notification issued by the Vice-Chancellor purportedly exercising his power under sub-sec. (5) of S. 12 of the Act. The said notification is dated 10th September 1981 admittedly after the judgment in W. P. 2846 of 1981 was pronounced the notification reads as follows bangalore University no. ACA II GZ BOS Dent 81-82 "jnana Bharathi" bangalorer560 056, dated: 10th September 81. Notification subject :-Relaxation of admission to M. D. S. course in the government Dental college, Bangalore during the years 1979-80 and 1980-81. Reference: 1. Resolution of the syndicate at the meeting held on 12. 2. 81. 2. Decision of the Academic Council at its meeting held on 14. 2. 81. Pursuant to the decision of the academic Council at its meeting held on 14. 2. 81 and in exercise of the powers conferred on him under s. 12 (5) of the Karnataka Universities Act, 1976, the Vice Chancellor is pleased to relax the regulation no. 1 (b) of the regulations for mds course in respect of admissions made to the course in the Government Dental Colleges, bangalore, during the years 1979-80 and 1980-81 by oversight as a special case, in view of the special circumstances". By ORDER, sd|- registrar. " ( 7 ) THOUGH the petitioner in this petition has not challenged the notification (as he could not have inasmuch as he came to, know about the notification only during the hearing of 'the petition), a doubt remains as to whether the Vice Chancellor could use his emergency powers under the S. 12 of the Act to do something to set at nought the decision of this Court and make students eligible for a particular course to which they would not otherwise be eligible. ( 8 ) I have pointed out in WP No. 2846 of 1981 that it is only the Academic Council which can exempt any candidate from the operation of the regulations framed under S. 39 of the act. Indeed, as is apparent from the notification extracted above of the bangalore University, the Academic council has no doubt passed a resolution on 15. 2. 81, but that, as held by me in W. P. No 2846 of 1981 was defective inasmuch as the resolution had not been approved by the Chancellor. Even now one is in ignorance as to whether such an approval to the resplution has been given. But the records bear out that the Vice Chancellor has placed for ratification of his order relaxing the regulation for the academic year 1979-80 and 1980-81 before the Syndicate. The correct procedure envisaged under s. 12 of the Act is to place it for ratification before the Chancellor or before the appropriate authority of the University. Failure of the Vice Chancellor in placing the resolution for approval of the Chancellor as required under S. 39 (1) of the Act is un-understandable. ( 9 ) S. 12 of the Act deals with the powers of the Vice-Chancellor and has already been the subject mattter of intepretation by this Court in more than one decision. S. 12 (5) of the Act deals with a situation of emergency and in such an emergency situation, the vice-Chacnellor must form an opinion that his action is required immediately and thereupon act as he deems necessary at the earliest opportunity and thereafter report the same to the appropriate authority of the University. It is difficult to see how selection of ineligible candidates by the Selection committee which is totally unconnected with the University calls for any action on the part of the Vice-Chancellor except to refuse permission for such ineligible candidates to take up the post-graduate degree course. Such a situation cannot be said to be an emergency which is required to be dealt with under the extraordinary powers conferred on the Vice-Chancellor under s. 12 (5) of the Act. Therefore, one has to come to the irresistible conclusion that the notification issued by the University giving exemptipn in the matter of selection for the academic year 1980- 81 of ineligible candidates does not appear to be in accordance with the act. Therefore, one has to come to the irresistible conclusion that the notification issued by the University giving exemptipn in the matter of selection for the academic year 1980- 81 of ineligible candidates does not appear to be in accordance with the act. One may term it as gross abuse of power to favour a few. This should be discourged. ( 10 ) IN the result, while the selection of respondents 3, 4 and 5 may be sustained on other compassionate grounds, it cannot be sustained on any legal ground. As they have nearly completed the course for more than a year and are required to complete only the academic year 1981-82 to qualify for their degree examination, it would be unfair to disturb them. More so, in the case of respondents 4 and 5 who have already been saved by the order dated 15-6-1981 in WP No 2846/81. The benefit must also be extended to respondent No. 3. It is unnecessary to disturb the,ir selection at this late stage. ( 11 ) HAVING regard to the circumstances it must be pointed out that the petitioner has been solely denied his right to be selected on account of the selection of ineligible candidates. In that view of the matter and having regard to my decision in WP No. 2846 of 1981, i direct the respondent-State and respondent No. 2 the Selection Committee to give a seat in such of the subjects as are available in the post-graduate degree course in Dental Surgery for the current academic year 1981-82 if selections are not over. If selections are over and there is no vacancy then they shall reserve a seat for the petitioner for the academic year 1982-83. Rule will issue accordingly. ( 12 ) THERE will be no order as to costs. --- *** --- .