Research › Browse › Judgment

Himachal Pradesh High Court · body

1998 DIGILAW 116 (HP)

SONIA KAYASTHA v. STATE OF H. P.

1998-07-14

D.RAJU, KAMLESH SHARMA

body1998
JUDGMENT D. RAJU, C J.—The petitioner has filed the above writ petition seeking relief for quashing the proceedings dated 26.5. 1998 and 3.6.1998 filed as Annexures PD and PE, respectively, and to direct the respondents to permit the petitioner to complete the Bachelor of Ayurvedic and Medical Surgery degree course (for short BAMS) to which the petitioner claims to have started attending w.e.f. 20.5.1998. There is no serious controversy about certain vital and relevant facts on which the several legal issues raised are required to be decided. The State Government has issued the combind prospectus for the degree courses relating to MBBS/BDS and BAMS for the session 1997-98 and while providing for distribution of seats for admission, reserved one seat in the Rajiv Gandhi Government Ayurvedic College, Paprola, District Kangra for the wards of freedom fighters stipulating further that the seat so reserved for the ward of freedom fighter in BAMS course if remains unfilled, will go to the children-son-daughter of Ex-servicemen. The petitioner claims that she was eligible and qualified to sit in the combind entrance test held by the 3rd respondent and she also wrote the examination held on 29.6.1997. The result in respect of the same appears to have been declared on 22.7.1997 and the merit list was also said to have been displayed on 5.8.1997. It is also admitted that a note appended in the prospectus also stipulated that in case the seat for BAMS course will remain vacant after 15th November, 1997, the seat shall be filled through advertisement on the basis of CET merit-cum-first-cum-first basis by 30th November, 1997 by the College authority. Accordingly, on 1.5.1998, an advertisement under the heading "Admission notice" appears to have been given in the Punjab Kesari and on 15.5.1998 the candidates desirous for the course of BAMS were directed to make themselves available before the admission Committee before 1.00 PM and the petitioner presented herself accordingly, with the required documents/certificates including the CPET result card. It appears that the petitioner was directed to deposit the tution fee/admission fee etc. on 15.5.1998 itself and she had undergone the required medical examination. Pursuant to the said admission, the petitioner claims to have got admission in the hostel also and for that purpose deposited the dues on 21.5.1998. It appears that the petitioner was directed to deposit the tution fee/admission fee etc. on 15.5.1998 itself and she had undergone the required medical examination. Pursuant to the said admission, the petitioner claims to have got admission in the hostel also and for that purpose deposited the dues on 21.5.1998. On the basis of the above-narrated facts and events, the petitioner claims that she has been wilfully and lawfully admitted to the course in question and, therefore, she was legitimately expecting her to be allowed to complete her BAMS course. 2. While matter stood thus, the father of the petitioner received a telegram from the principal of the college calling upon him to report to the office on or before 30.5.1998 and when he met the Principal of the College, the father was apprised by the Principal that admission to her daughter has been wrongly granted and the expressed regret for the same. Inspite of the father trying to impress upon the Principal that his daughter has not suppressed any material from the college authority and she has been admitted properly and directed to deposit the tution fee and hostel fee, which she also did, and the resultant damage that may be caused if she is sent out, the petitioner was served with the proceedings dated 3.6.1998 informing her that since she was given admission to the course in question provisionally subject to its approval from the University and the University to which the admission matter has been referred to, intimated that the admission of the petitioner on provisional basis against the seat reserved for the ward of freedom fighters category does not fall in the purview of the provisions laid down in the prospectus at page 6 Clause (d) and, therefore, her candidature could not have been considered for admission to the 1st year BAMS course for the year 1997-98. The communication also said that in view of the instructions given by the University, as above, the provisional admission to BAMS course granted to the petitioner is cancelled. Aggrieved, the writ petitioner has filed the above writ petition seeking for the relief, as noticed supra. 3. The communication also said that in view of the instructions given by the University, as above, the provisional admission to BAMS course granted to the petitioner is cancelled. Aggrieved, the writ petitioner has filed the above writ petition seeking for the relief, as noticed supra. 3. While ordering notice to the respondents as to why the writ petition be not admitted, a direction has been issued by this Court, though no stay as such was granted to the respondents, not to allot the seat to any other candidate in the meantime. In the meantime, Ms. Kanchan daughter of Shri K.S. Verma, who has been selected for admission as a ward of Ex-servicemen, she having secured 203 marks in CPMT test-1997-98 and was asked to report for admission pursuant to the representation made on her behalf on 23.5.1998, moved an application in this Court to get her impleaded as party-respondent and also sought for vacating the interim order. Respondents No. 1 and 2 have filled their reply. The 3rd respondent- University also filed separate reply. The petitioner filed a rejoinder. The sum and substance of the objections taken by the respondents are that the writ petitioner having secured only 135 marks in the common entrance test, she ought to have known that as per the criteria for eligiblity stipulated in the prospectus in IV Clause (d) at page 6, she was not eligible for admission, having not secured 50% of the marks, being also a candidate belonging to the open category and not to SC/ST category, she could not apply for the course consequently, she was not qualified and was actually ineligible for admission to the course. It was further stated for the respondents that since the seats were proposed to be filled up as per the advice from the University, to whom the College stands affiliated, the admissions were thus made provisional by the Admission Committee and the matter was duly brought to the notice of the University for its approval and inasmuch as a serious infirmity in the admission accorded has been pointed out by the University, which infirmity is beyond controversy and dispute no exception could be taken to the action of the respondents in rectifying the serious error by cancelling the provisional admission granted to the course for the petitioner. The respondents also claimed that such a rectification even at the thershold when it came to light was permissible and the same cannot be challenged. As for the alleged denial of opportunity before cancellation and denial of principles of natural justice, the respondents claimed that the required opportunity has been given by inviting the father of the petitioner and explaining to him the details and the opportunity so accorded sufficiently satisfy the requirement of principles of natural justice to be observed, in this case. The candidate who got selected in the vacancy which arose on account of the cancellation of the admission accorded to the writ petitioner also claimed in the affidavit filed by her that the writ petitioner having secured only 135 marks out of 300 was wholly ineligible to be considered even for admission and she having secured 203 marks out of 300 and also being a ward of the ex-servicemen who in case of there being no ward of freedom-fighter is entitled to be admitted and has been rightly selected for admission should be allowed to join the course and consequently there are no merits whatsoever in the claim of the petitioner and the writ petition is liable to be dismissed. We find from the materials placed before us that the proposed party appears to have been made a representation in this regard bringing all the disparities and infirmities in filling up of the seats through her father by a representation dated 23.5.1998 to the College itself. 4. Before adverting to the submissions of the learned Counsel appearing on either side, we consider it appropriate to advert to certain other vital facts, which also, in our view, are matters of record and is beyond challenge. The College in question immediately after selecting the writ petitioner for admission on the advice of the admission Committee wrote to the University, as evidenced by the communication filed as Annexure R-3/I giving the information about the provisional selection for admission disclosing the roll numbers, names of the candidates and the marks obtained by them in the common entrance examination. The College in question immediately after selecting the writ petitioner for admission on the advice of the admission Committee wrote to the University, as evidenced by the communication filed as Annexure R-3/I giving the information about the provisional selection for admission disclosing the roll numbers, names of the candidates and the marks obtained by them in the common entrance examination. The University is the ultimate authority to approve the admissions by any Institution for the reason that any Institution affiliated to the University must show to the University that their admissions are in accordance with the relevant provisions of law so that such candidates, who undergo the course of studies in the affiliated educational institutions can be admitted to the examinations conducted by the University for awarding the degrees concerned. Hence, no exception could be taken for the course of action adopted by the College, either making the admission only as a provisional one or referring the same to the University, for its approval or the University by its communication dated 1.6.1998 filed as Annexure R-3/2 informing the College that the admission accorded to the petitioner was against the provisions in the prospectus which regulate and govern such admissions. It is only in the light of such indisputable factual position that the College had to inform, by the impugned communication dated 3.6.1998 cancellion of the admission given to the petitioner and thereafter inform the petitioner about her provisional selection and call upon her to report for admission. 5. Alive to the factual odds against the writ petitioner, Mr. Rajiv Sharma, learned Counsel appearing for the petitioner contended that the College Admission Committee consisting of eminent Professors have selected the petitioner for admission and the petitioner has been allowed to join and attend the classes by paying the tuition fee and also the hostel dues, and therefore the admission accorded must be considered to be a final one and cannot be claimed to be a provisional one. According to the learned Counsel for the petitioner, the subsequent claim sought to be projected that the admission given was a provisional one was a pure after-thought. According to the learned Counsel for the petitioner, the subsequent claim sought to be projected that the admission given was a provisional one was a pure after-thought. Argued the learned Counsel further that the respondents are estopped by the principle of promissory or equitable estoppel from going back on the admission accorded pursuant to which the writ petitioner was said to have altered her course of conduct by joining the course, paying the fees, getting admission in the hostel and paying hostel dues and unless it is shown that the writ petitioner has secured the admission by making any false claim or suppression or concealment of facts, there is no power or authority in the College or the University to cancel the admission once accorded and consequently the impugned proceedings are liable to be set aside and the petitioner be allowed to continue the course. It was also contended that the prospectus as such does not envisage any provisional admission and, therefore, the admission accorded must be taken to be once and for all final. It was further feebly contended that since for the SC/ST, the minimum eligiblity marks are 40% of the total marks in the competitive examination, which the writ petitioner possessed, it could not be stated that the minimum educational standards or the required standards of merit, would suffer in any manner by allowing the writ petitioner to continue the course. 6. It was further feebly contended that since for the SC/ST, the minimum eligiblity marks are 40% of the total marks in the competitive examination, which the writ petitioner possessed, it could not be stated that the minimum educational standards or the required standards of merit, would suffer in any manner by allowing the writ petitioner to continue the course. 6. Per contra, the learned Advocate-General while inviting our attention to the various details disclosed in the reply filed both by the state and the University pointed out that the admission in this case was on 15.5.1998 and that the telegram was sent even on 26.5.1998 after receiving the intimation from the University and by communication dated 3.6.1998 the mistake committed was rectified after explaining the position and as to the infirmity in the selection and, therefore, having regard to the diligent and timely and effective action taken, there is no basis on facts for claiming shelter under the principle of either equitable or promissory estoppel or the theory of legitimate expectation and that if the petitioner is to be allowed to continue in the course denying a seat to a person, who has not only satisfied the minimum eligiblity norms, but has secured 203 marks out of 300 in addition to being the ward of Ex-Servicemen, it will result in miscarriage of justice and the petitioner, therefore, cannot be allowed to have a premium out of such a grave and vital lapse or mistake and infirmity committed in her selection. While controverting the claim of the learned Counsel for the petitioner that she was not in any manner responsible or that she could not be attributed with having made any false claim or concealed and suppressed any material, the learned Advocate General has contended that the very fact that she has applied for admission though not qualified as per the stipulation contained in the prospectus for applying even for admission, she having not secured 50% marks, being an open category candidate, itself would belie such a claim and she was also according to the learned Advocate General, a party to the mistake or infirmity, committed in the process of selection and allowing her admission and consequently no exception can be taken to the action of the respondents. The learned Advocate General further contended that in a case of the nature, there is no scope for applying the principle of promissory or equitable estoppel since such a principle cannot be pressed into service to defeat the provisions of law and no advantage can be taken or any basis of claim can be made on any alleged or purported offer or promise even if any made in derogation or contravention of any law. The prospectus issued by the Government in exercise of its undisputed executive power of the State is a binding law so far as the admission to the course in question is concerned and a person like the petitioner, who does not satisfy the requirements of law cannot assert a right to be enforced in proceedings under Article 226 of the Constitution of India. The learned Advocate General finally submitted that the petitioner is not entitled to any sympathy or indulgence of this Court and if shown, it would amount to more misplaced sympathy. As for the denial of the principles of natural justice, the Advocate General submitted that the summoning of the father of the petitioner and explaining to him the real position on facts in relation to which the father had no effective answer to get over the infirmity pointed out, constituted sufficient compliance with the principles of natural justice. The learned Counsel for the University also adopted the submissions of the learned Advocate General. 7. Mr. K.D. Sood, learned counsel appearing for the proposed party-respondent, who got selected in the vacancy caused on account of the cancellation of the admission of the petitioner contended that if at all there should be sympathy, it should be in favour of his client, who was not only found to be eligible for admission, but also secured 203 marks out of 300 and as on date inasmuch as the writ petitioner is not attending the classes also, there is no justification to countenance her claim, particularly when she suffers from a basic infirmity in the eligibility qualification itself, not being possessed of the minimum marks stipulated enabling her even to apply to the course. 8. Learned Counsel appearing on either side have invited our attention to some of the decided cases on the issue raised by them and it would be proper to notice the same, before dealing with the various contentions of parties. 8. Learned Counsel appearing on either side have invited our attention to some of the decided cases on the issue raised by them and it would be proper to notice the same, before dealing with the various contentions of parties. The decisions reported in Shri Krishnan v. The Kurukshatra University, AIR 1976 SC 376; Ashok Chand Singhvi v. University of Jodhpur and others, (1989) 1 S.C.C. 399; Sanatan Gauda v. Berhampur University and others, (1990) 3 S.C.C. 23 and Charles K.Skaria and others v. Dr. C. Mathew and others, (1980) 2 S.C.C. 752, in our view, may not apply to the fact situation proved to exist in the case before us. We find, despite certain general observations made therein necessitated in the context of those cases and the relief granted on the permissibility or otherwise for the Authorities of the State or Public bodies going back on the promises or offer earlier made, that those cases related to facts which drastically differ on certain relevant and essential aspects from the one before us, and that in all those cases, after admission to the courses concerned initially and thereafter the persons undergoing the courses of permitting the candidates to write the examinations and thereafter denying further participation when the authorities purported to retrace their steps and go behind their earlier steps, and thereby deny and defeat the rights acquired due to lapse of time, the Apex Court did not allow the authorities to do so. In this case, as pointed out earlier, not only the selection for admission was provisional, but as rightly emphasised by the learned Advocate General, within almost about ten days the petitioners father was called and informed about the infirmity, but in another one week, the admission accorded in contravention of the provisions of law governing such admission was cancelled. The petitioner could not be said to have acquired any vested right or could be said to have so altered her position to her detirment. In any event the petitioner has not only taken a calculated risk but really ventured to gamble for an undeserved benefit and shockingly she managed to win the gamble due to the innocence or indifference of the academicians who purported to select her oblivious to the patent and bristling illegality inherent in such selection, even provisionally. In any event the petitioner has not only taken a calculated risk but really ventured to gamble for an undeserved benefit and shockingly she managed to win the gamble due to the innocence or indifference of the academicians who purported to select her oblivious to the patent and bristling illegality inherent in such selection, even provisionally. Therefore, those decisions relied upon by the learned Counsel for the petitioner cannot be of any avail or assistance to support her case. So far as the other decisions relied upon for the petitioner reported in M/s. Motilal Fadampat Sugar Mills v. State of Uttar Pradesh and others, (1979) 2 S.C.C. 409; Amrit Banaspati Co. Ltd. and another v. State of Punjab and another, (1992) 2 S.C.C. 411; Pawan Alloys and Casting Pvt. Ltd. Meerut v. UP. State Electricity Board and others, (1997) 7 S.C.C. 251; Dr. Ashok Kumar Maheswari v. State of UP. and another, (1998) 2 S.C.C. 502; Registrar, University of Madras v. Sundara Shetti and others, AIR 1956 Mad 309; Dinkar Prabhakar Mahajan v. S.L Agrawal and others, AIR 1976 M.P. 40; K.Jagannadham v. District Collector, Kurnool and another, AIR 1966 AP 59 and K.K. Jacob (Minor) v. The Madurai University and another, AIR 1978 Mad 315, are concerned, they merely deal with or restate certain well settled propositions of law relating to the principle of equitable or promissory estoppel in their application to the peculiar and proved facts of those cases and the ultimate result of those cases or the observations made in the context and the peculiar facts of those cases cannot be said to be in any manner relevant to the case on hand, in which on the proved facts we find no equity or justice when the case of the petitioner is considered in contrast to the case of the proposed party, who has since been selected for admission in the vacancy caused by the cancellation of the admission of the petitioner. It is by now well settled by more than one authority of the Apex Court that the Government or any Department of the Government cannot be I pinned down to its promise, if any, when such promise was shown to have been made against public interest and in derogation or violation of law or beyond their authority or power. It is by now well settled by more than one authority of the Apex Court that the Government or any Department of the Government cannot be I pinned down to its promise, if any, when such promise was shown to have been made against public interest and in derogation or violation of law or beyond their authority or power. (Vide: Kasinka Trading and another v. Union of India and another, (1995) 1 S.C.C. 274; Shabi Construction Company v. City & Industrial Development Corporation & another, (1995) (4) S.C.C. 301. 9. In our view the principle of equitable or promissory estoppel cannot be relied upon for the petitioner for the reason that she cannot be absolved also of her complicity or contribution in the infirmity or mistake committed in wrongly selecting her for the reason that she should have been aware that, as the prospectus stands, which governs the admission to the course in question, she is not eligible even to apply to the course and we fail to understand or comprehend her temerity in making such application and manage to get away with an admission, be it even provisional, in derogation of the rights of other legitimate and eligible candidates like the one, who has since been selected for admission to the course. If cases of the nature, on the mere pretended innocence of the beneficiary of a serious mistake and lapse, are to have the seal of approval of this Court, it will not only encourage in future such manipulations, to make it recur boldly under some pretext or other, but embolden the authorities or the Committees concerned entrusted with selection, to wishfully turn their blind or Nelsons eye to the realities of the situation, from whom great sense of responsibility is expected to be demonstrated, to often repeat such benevolent mitakes to benefit their chosen few. The courts of justice cannot, at any rate, lend their helping hand to such persons to earn and continue to enjoy a premium on mistakes of serious nature in violation of law, be it of their own or in complicity with others and brought about by clever and ingenuous manipulations. The courts of justice cannot, at any rate, lend their helping hand to such persons to earn and continue to enjoy a premium on mistakes of serious nature in violation of law, be it of their own or in complicity with others and brought about by clever and ingenuous manipulations. Public interest would be better served and miscarriage of justice with the assistance of Courts, too could be averted only by the Courts handling such situations with iron hand and not by allowing them to be carried away by misguided or misplaced sympathies. Such a person also in our view cannot be allowed to claim any relief in proceedings invoking the jurisdiction of this Court under Article 226 of the Constitution of India which is meant to uphold the majesty of Courts and enforce the rule of law. At any rate, the extra-ordinary jurisdiction should not be allowed to be used as a shield to cover up such patent violations of law with impunity. Consequently, we are of the view that neither the principles of promissory of equitable estoppel nor the theory of legitimate expectations could be pressed into service or render any help or assistance to the petitioner. The case of the petitioner has no equities and so called promise could not be said to be a promise at all being not only opposed to law but being one in the form of an admission, that too provisional admission which is always subject to the ultimate approval of the University to which all educational institutions concerned are to be affiliated. To plead the principle of legitimate expectation, when there is no legal basis for the same, has no merit and such a claim cannot be countenanced in our hands. Equally devoid of force is the claim of the petitioner regarding the alleged violation of the principles of natural justice. The principles of natural justice have been held to be not mere principles or doctrines in abstract and the question of their observance in a given case is a relative factor, the satisfaction or sufficiency of which mainly depend upon the facts and circumstances of each case. The principles of natural justice have been held to be not mere principles or doctrines in abstract and the question of their observance in a given case is a relative factor, the satisfaction or sufficiency of which mainly depend upon the facts and circumstances of each case. So far as the facts and circumstances of the case before us are concerned, the father of the petitioner has been summoned and apprised of the serious infirmity and irregularity in the selection, which has undermined the very process of selection, even for the provisional admission made and he had no reason whatever to deny the factual basis, since the infirmities pointed out are beyond controversy or dispute. Hence, in our view, the principles of natural justice commensurate to the requirements of the case before us have been sufficiently complied with and no infirmity whatsoever could be alleged in the proceedings of the respondents in this regard. 10. We are also unable to agree with the learned Counsel for the petitioner in his claim that the prospectus issued by the State Government containing guidelines and instructions for regulating admissions cannot be elevated to the Status of law, and a contravention of which could be said to be a serious violation undermining the decisions arrived at in derogation of the same. We need refer the claim to reject it only, since it is covered by more than one Division Bench judgments of this Court reported in Km. Manju and another v. State, AIR 1972 H.P. 37 and Anil Nag v. State of Himachal Pradesh and others, 1978 I.L.R. H.P. Series 667, against the petitioner We are in entire agreement with the reasoning of the earlier two Division Bench judgments, and this plea shall also stand rejected. 11. For all the reasons stated above, there are no merits in the above writ petition. The writ petition, therefore, fails and shall stand dismissed. CM.P. No. 793 of 1998 is allowed and the applicant is impleaded as fourth respondent. The interim order already passed comes to an end with the dismissal of the writ petition and CMP No. 762/98 stands also dismissed. No costs. Petition dismissed. -