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1999 DIGILAW 63 (GAU)

Ellora Borthakur v. State of Assam and Ors.

1999-02-25

BRIJESH KUMAR, D.BISWAS

body1999
This writ appeal has been preferred against the judgment and order passed by the learned Single Judge dated 25.6.98 in Civil Rule No. 816 of 1998, filed by petitioners/respondent Nos 7 and 8, directing that in case seat for the session 1995-96 in MD (Radiology) is still lying vacant, the case of the respondent No.7 would be considered for admission. Accordingly, the respondent No.7 was given admission in October, 1998 in the course of MD (Radiology) against a seat for the session 1995-96. 2. The case of the appellant is that she appeared in the entrance examination for admission to the PG course for the session 1995-96 but, she could not secure tier admission, as per her choice in PG course, due to non-availability of the seat. However, subsequently the seats reserved for Central Pool for the session 1995-96 were released. As those released seats were not allotted on the basis of merit, the appellant filed writ petition being Civil Rule No.2870 of 1997, but the same was rejected. She preferred Writ Appeal No.630 of 1997 which was allowed. Accordingly, the appellant was given admission in Radiology Diploma course in pursuance of the judgment rendered in Writ Appeal No.630 of 1997. Later on, the appellant filed another petition being Civil Rule No.816 of 1998 claiming her admission in the Degree course namely, MD (Radiology) on the basis of merit against the vacant seat for the session 1995-96 and an interim order was passed to consider the case of the appellant. In the meantime, the respondent No.7 claimed the said seat as NEC sponsored candidate. On the basis of recommendation, for granting benefit in the matter of admission against reservation under Rule 4 (ii) of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997. 3. Sub-rule (ii) of Rule 4 of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997, relates to reservation of NEC quota reserving two seats in PG Degree course and two seats in Diploma course for the candidates recommended by the North Eastern Council. The respondent No.7 claimed one of the said two seats of PG Degree course under the provisions of Rule 4 (ii) of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997, while the petitioner in Civil Rule No.816 of 1998, as indicated earlier, claimed the same, on merit. The respondent No.7 claimed one of the said two seats of PG Degree course under the provisions of Rule 4 (ii) of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997, while the petitioner in Civil Rule No.816 of 1998, as indicated earlier, claimed the same, on merit. But the respondent No.7 has been given benefit of Rule 4 (ii) of the Rules mentioned above in pursuance of the judgment dated 25.6.98. The present appellant being aggrieved by the aforesaid judgment dated 25.6.98 preferred this appeal. 4. We have heard learned counsel for the appellant as well as the learned counsel appearing for the respondent Nos 7 and 8 respectively namely, Shri KK Dey. 5. On behalf of the respondents, an objection has been raised about the maintainability of the appeal. It is submitted that the appellant not being a party to the writ petition, would not be entitled to file the appeal without the leave of the Court and has placed reliance upon a decision reported in AIR 1985 Calcutta 96 (United Commercial Bank vs. Hanuman Synthetics Ltd). Our attention has been drawn to paragraphs 7 and 8. It has been observed in the said paragraphs that the appellant who is not a party can prefer an appeal only with the leave of the Court. It is admitted that the appellant was not a party to the writ petition. It is also submitted that no leave has been sought for filing appeal. The learned counsel appearing for the respondent Nos 7 and 8 has also placed reliance upon a decision reported in AIR 1998 SC 1872 (Ganabandhu Biswas vs. Krishna Chandra Mohanti). It has been held that the person who is not aggrieved by the judgment of the Tribunal and the persons who are not directly affected cannot challenge the judgment. 6. So far the question, as to whether the appellant is an aggrieved person or not is concerned, in the fact and circumstances of the case, she would be one of the persons aggrieved by the order passed by the learned Single Judge. The appellant had competed for admission to PG course. She was given admission in the Diploma course instead of MD (Radiology). The appellant had competed for admission to PG course. She was given admission in the Diploma course instead of MD (Radiology). It appears that on coming to know that she would be entitled to admission to the Degree course against the vacant seat for the session 1995-96, preferred another writ petition being Civil Rule No.816 of 1998 as indicated earlier. In that petition also, this Court directed the authorities to consider the case of the present appellant. But no order could be passed in that regard, against the seat available in MD (Radiology) for the session 1995-96. Instead, order was passed in favour of the respondent No.7 in pursuance of the impugned judgment, resulting in his admission to MD (Radiology) course. The appellant had shown interest and pursued the remedy seriously through out to get admission in the said vacant seat. Such circumstances lead us only to infer that the appellant would be a person aggrieved, as the vacant seat has been given to other person namely, the respondent No.7 who is far below in merit to the appellant. The appeal would be maintainable at her instance. 7. So far as the next objection about the leave of the Court before filing appeal is concerned, the learned counsel for the appellant submits that at the stage of admission an objection was raised by the respondents and after preliminary hearing, the appeal was admitted for final hearing on merit despite such objection. We, however, feel that, in any case, the question can still be considered at this stage. Considering the facts and circumstances of the case, we are of the view that it is a fit case deserving leave to appeal against the judgment passed by learned Single Judge. The learned counsel for the appellant has also placed reliance on a decision reported in 1993 Supp (4) SCC 595 (S. Nagaraj vs. State of Karnataka). More particularly, our attention has been drawn to paragraph 18 wherein an observation has been made for giving more stress on the substantial justice without sticking to technicalities. The facts averred in the petition have not been disputed that the seats reserved for the Central Pool, were released against the session 1995-96. The appellant was given admission in Diploma course in Radiology. But since a seat for the session 1995-96 was available in MD (Radiology), for getting the same, she filed writ petition. The facts averred in the petition have not been disputed that the seats reserved for the Central Pool, were released against the session 1995-96. The appellant was given admission in Diploma course in Radiology. But since a seat for the session 1995-96 was available in MD (Radiology), for getting the same, she filed writ petition. She has better merit. But in pursuance of the order under appeal, the admission has been granted to respondent No.7 by giving benefit of reservation under Rule 4 (ii) of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997. It may be mentioned that the virus of the said rule was challenged in Civil Rule Nos 3493 of 1997 and 3544 of 1997 and ultimately, by judgment dated 20.5.98, reported in 1998 (2) GLT 364 (Pankaj Kumar Lahkar vs. State of Assam) (1999 (1) GLJ 493), Rule 4 (ii) of the aforesaid Rules, was struck e down. Paragraph 14 of the judgment is quoted below : “14. In view of the foregoing discussion Rule 4 (ii) relating to NEC Quota seats, as it now stands, cannot be allowed, it is liable to be struck down as arbitrary and unfettered and accordingly struck down.” The consequence of the decision rendered in Pankaj Kumar Lahkar (supra), the provision relating to reservation for NEC sponsored candidates stood quashed on merit on 20.9.98. The judgment under appeal was rendered on June 25, 1998 ie after the decision striking down Rule 4 (ii) of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997. We feel that at the time when the learned Single Judge decided the matter, no direction could be issued giving benefit of reservation under the provisions which were already struck down as ultra virus. We find that at the time when the matter was decided, this point was noticed and discussed by the learned Single Judge and it is observed that the application of the respondent No. 7 for admission in MD (Radiology) course, as recommended by the NEC, was under process at the time when the rules were existing. It is observed that the respondent's case was sponsored by the NEC by letter dated 28.11.97 and the writ petition was filed by the respondent No.7 on 19.2.98. It is observed that the respondent's case was sponsored by the NEC by letter dated 28.11.97 and the writ petition was filed by the respondent No.7 on 19.2.98. It is further observed that the "decision of the Division Bench striking down the rule was not retrospective ie to say, there is no direction regarding the fate of those candidates who has been given priority before the said decision. It is further observed that if the process had already a been started for admission as NEC sponsored candidates for the session 1995-96 and if the seat is lying vacant, the respondents could consider the case of the petitioner accordingly. The learned counsel appearing for the respondent No. 7 also argued on the same lines. We, however, feel it difficult to accede to the submission made in this regard. 8. The mere fact that the applicant who had moved an application under certain provisions of law then existing would acquire no right under the Rules when such provision is no more there in existence at the time when the order is passed. The Rule was struck down on 20.5.98. The benefit under the provision already struck down was given by order dated 25.6.98. The processing of the application before the Rules were struck down will in no way extend the life of the provision already held to be ultra virus, so long the application is finally disposed of. On striking down of the provision, the whole processing of the application, if going on, will stand dropped and finished. No right would be vested by merely moving an application or processing of the application, even though Rules no more remain in existence. In this view of the matter, we find that the respondent No.7 has been granted relief under the non-existent provisions. On behalf of the respondent Nos 7 and 8 it has been indicated that as the interim order was passed in the case, a seat was kept vacant although the other seats were filled up as per the judgment of this Court in Writ Appeal No. 630 of 1997. 9. Apart from the above point, it has been submitted that the reservation rules came into force on 1.7.96 and the admission relates to session 1995-96. 9. Apart from the above point, it has been submitted that the reservation rules came into force on 1.7.96 and the admission relates to session 1995-96. The said vacancy against the session 1995-96 would obviously be filled up in accordance with rules was then prevailing and no benefit in that regard can be given under the aforesaid rules framed much after the vacancy in the seat was available. The appellant had appeared for admission in the competitive examination for the seat against the session 1995-96 according to the rules then prevailing. For respondent No.7 it is submitted that even though the admission granted to respondent No. 7 was not in accordance with niles when the order was passed, yet he has already been accorded admission in August, 1998 so he should be allowed to continue and complete the course. It is a three years course. The learned counsel for the appellant, however, submits that the appellant is already undergoing the Diploma course in Radiology which is a two-year course. It is submitted that two-year Diploma course and 1st two years of the three-year Degree course of MD (Radiology) are same. Hence, it is submitted for the appellant that she can pursue the Degree course in case she gets admission on the basis of merit and the admission on the basis of reservation is struck down as illegal. In the circumstances, more particularly, when the appellant had been pursuing to get admission in MD (Radiology) throughout seriously she can pursue the said course in MD (Radiology) if she deserves on merit. The respondent No.7, no doubt, may have pursued the course for 6 (six) months but it is abundantly clear that the admission had been given giving benefit under Rule 4 (ii) of the Assam Medical Colleges (Regulation of Admission to Post Graduate Courses) Rules, 1997 which was not in existence at all either at the time when the direction was issued or at the time admission was given to him. Such an admission is against the law and a nullity and cannot be sustained. 10. In view of the discussion held, above, the appeal is allowed and the judgment and order passed by the learned Single Judge is set aside. It is further directed that the seat in question pertaining to session 1995-96 in MD (Radiology) shall be filled up on the basis of merit. 10. In view of the discussion held, above, the appeal is allowed and the judgment and order passed by the learned Single Judge is set aside. It is further directed that the seat in question pertaining to session 1995-96 in MD (Radiology) shall be filled up on the basis of merit. Admission of respondent No.7 in MD (Radiology) in pursuance of the order of the learned Single Judge is also set aside. , 11. Since a considerable time has already passed, it is directed that the respondents concerned shall complete the exercise within a period of one month and pass appropriate order of admission on the basis of the merit of the candidates. No order as to costs.