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2014 DIGILAW 509 (CAL)

SNEHA SAHA v. STATE OF WEST BENGAL

2014-06-13

PATHERYA, TAPASH MOOKHERJEE

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JUDGMENT PATHERYA, J. : The order under challenge is dated 14th June 2013 whereby the trial court dismissed the writ application on the basis of an unreported decision in MAT 2712 of 2007 (Prabir Kumar Moitra & Anr. Vs. Maitrajee Rooj) and Nazir Hossain vs. State of W. B. & Ors. Counsels for the appellants Rakshit and Saha submit that the decision in Rooj’s case and Nazir Hossain’s case are distinguishable on facts as it was on the ground of fraud and misrepresentation that the writ petition in Rooj’s case had been dismissed. There is no fraud in the instant case and the decisions on which reliance has been placed by the Trial court could not have formed the basis of the order dated 14th June 2013. As the Trial Court has held that no element of fraud was involved in the instant case, therefore, the writ petition ought to have been allowed. For admission to the BHMS course an advertisement was issued. The minimum qualification needed was as follows: “4. Minimum qualification: No candidate shall be admitted to the B.H.M.S (Degree) Course unless he has:- (a) Passed the Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his subject; (b) Attained the age of 17 years on or before 31st December of the year of the admission to the first year of the Course.” The minimum requirement was that the candidate was to have passed the Intermediate Science examination with Physics, Chemistry and Biology as his subject. It is not a requirement that the candidate would have to pass in the said subjects mentioned above. Although the appellants could have objected to the interchange, no such objection has been taken. The compulsory elective subjects of the appellants were Biology, Physics and Mathematics while Chemistry was the optional elective subject on interchange. Chemistry is a subject along with Biology and Physics, therefore, the criteria has been satisfied. Although the appellants could have objected to the interchange, no such objection has been taken. The compulsory elective subjects of the appellants were Biology, Physics and Mathematics while Chemistry was the optional elective subject on interchange. Chemistry is a subject along with Biology and Physics, therefore, the criteria has been satisfied. As per Regulation 2(g)(i) of the 2006 Higher Secondary Education (Examination) Regulations, compulsory subject means:- “(i) Two language subjects and three compulsory elective subjects, as specified in Schedule II and Schedule III, respectively, of the West Bengal Council of Higher Secondary Education (Admission of Allied Matters) Regulations, 2006.” Regulation 2(o) of the said 2006 Regulation has defined optional elective subject as follows: “2(o) “optional elective subject” has the same meaning as in the West Bengal Council of Higher Secondary Examination (Admission and Allied Matters) Regulations, 2006” West Bengal Council of Higher Secondary Examination (Admission and Allied Matters) Regulations 2006 specifically provides the course of study in Regulation 14(2) as follows: “14(2) The curriculum of Higher Secondary Course shall consist of – (a) Two language subjects, one each from Group A and Group B of Schedule II; (b) Three compulsory elective subjects, one each to be chosen from any set of elective subjects specified in column (2) against the nine groups specified in column (1) of Schedule II; (c) One optional elective subject may be chosen from any set of elective subjects remaining after the selection of compulsory elective subjects under clause (b); (d) One compulsory subject of Environmental Education to be studied in accordance with Regulation 15.” Therefore, any compulsory and elective subject could be taken at the higher secondary level by the candidate. The said intent of the legislature was not considered in Rooj’s case though argued. If an argument is advanced which was not canvassed before the Division Bench deciding Rooj’s case, this appeal Court need not be bound by Rooj’s judgment and the principle of sub-silentio will then become applicable. For the proposition of sub-silentio reliance is placed on a passage from Salmond on jurisprudence 12th edn. Page 155 and 156. As per Regulation 4 of the 1983 Regulation three subjects viz. Physics, Chemistry and Biology must be taken by the candidate irrespective of the same being compulsory or optional. The said three subjects can be found as compulsory elective subjects at the Higher Secondary stage. This was not considered in Rooj’s case. Page 155 and 156. As per Regulation 4 of the 1983 Regulation three subjects viz. Physics, Chemistry and Biology must be taken by the candidate irrespective of the same being compulsory or optional. The said three subjects can be found as compulsory elective subjects at the Higher Secondary stage. This was not considered in Rooj’s case. The decision in Rooj’s case is contrary to common law and in view of a third interpretation be ignored. Chemistry remains a subject but the same does not have to be compulsory. Regulation 4 does not postulate that the candidate must have passed all of the three subjects and no bar in express terms is imposed in case the candidate has not passed any of the three subjects mentioned. The alternative argument is that equity will come to the aid of the appellants in such a situation as opposed to law and the same be applied as in Rooj’s case. It is only for the element of fraud that equity was not applied in Rooj's case. There is no element of fraud in the instant case and equity ought to apply. It cannot be disputed that the appellant Rakshit has passed the 2nd, rd and 4th year examination. Marksheet issued is proof of passing of the aforementioned examinations. Section 24 of the 1963 Act specifies the grounds for refusing registration. The third ground for refusing such registration is dehors the statute. Section 30 of the 1963 Act provides for appeal to the State Government from the decision of the Council but in view of the decision in the case of Whirlpool alternative remedy is no bar to filing of a writ petition. As there exists a distinguishing feature in the instant case from Rooj’s case the judgment in Rooj’s case will not apply to the facts of this case. Therefore, the order under appeal be set aside. Counsel for the appellant in MAT 1067 of 2013 submits that the case of Sneha Saha is on a better footing that than of Arpita Rakshit, the appellant in MAT 1060 of 2013. In the case of Sneha Saha internship completion certificate was granted on 9.2.2012. A provisional registration certificate was also issued by the University on 18.5.2012. A degree has also been conferred on the appellant Saha by the West Bengal University of Health Sciences. Therefore, no fraud can be alleged to the appellant. In the case of Sneha Saha internship completion certificate was granted on 9.2.2012. A provisional registration certificate was also issued by the University on 18.5.2012. A degree has also been conferred on the appellant Saha by the West Bengal University of Health Sciences. Therefore, no fraud can be alleged to the appellant. In the admission form filed by the appellant, no misrepresentation was made. The disclosures were honest and on the basis of the disclosures made, the Board and the Government college allowed appellant Saha to take admission and complete the course. The communication dated 24.4.2012 is under challenge and as directed in AIR 1967 SC 376 that a technical flaw be cured, the said decision be made applicable to the facts of this case. Regulation 4(a) of the 1983 Regulation is applicable at the time of admission to the BHMS course. Reliance is placed on AIR 1983 SC 1199 and 2010 SCC 233 . As there is no suppression by the appellant Saha, on the ground of equity, the instant case be considered sympathetically. Reliance is placed on 2012 (3) SCC 430 . Counsel for the Homeopathic Council submits that by this writ petition the appellants writ petitioners are seeking to regularize an illegal admission to the BHMS course. It cannot be regularized at any stage and the Supreme Court in the decision reported in 2011 (6) SCC 145 has held that statute is supreme and refused to regularize an infraction of statute. By the letter dated 24.5.2012, the Homeopathic Council informed the Registry, West Bengal University of Health Science that appellant Saha had taken admission to the BHMS Decree course contrary to the statutory requirement and therefore she would not be entitled to undergo internship course. In spite of receipt of the said letter on 5th June 2012, there is no reply thereto by the University of Health Science. Reliance is placed on the decision in Rooj’s case for the proposition that admission in breach of the statutory regulations cannot be regularized. 2010 (10) SCC 233 is distinguishable as Supreme Court in exercise of powers under Article 142 of the Constitution as a special case granted relief. 2012 (3) SCC 430 is a case where for complete justice orders were passed. AIR 1983 SC 1199 is distinguishable on facts as the authorities had not acted as per the terms of the advertisement. 2010 (10) SCC 233 is distinguishable as Supreme Court in exercise of powers under Article 142 of the Constitution as a special case granted relief. 2012 (3) SCC 430 is a case where for complete justice orders were passed. AIR 1983 SC 1199 is distinguishable on facts as the authorities had not acted as per the terms of the advertisement. As the advertisement is of 2005, the 2002 Circular would apply for entry to the Homeopathic course. The internship completion certificate issued to appellant Saha does not bear any number against provisional registration and the reason is that no provisional registration number was issued by the Council to appellant Saha. In fact, the memo dated 10.5.2011 in the case of appellant Rakshit will not apply as it has been issued after the completion of the Homeopathic course. Section 25A of the 1963 Act will apply and provisional registration is to be granted by the Board. No internship certificate can be issued by the college. As the internship completion certificate in the instant case has been issued by the college, the same is contrary to statute. Therefore, the said certificate issued is no certificate in the eye of law. To interpret Regulation 4(a) of the 1983 Regulations the sub-silentio principle has been sought to be made applicable and a purposive approach ought to have been taken in Rooj’s case and not a technical view. The principle of sub-silentio will apply only when there has been no argument on an issue. In a case where inadequate argument was advanced the principle of sub-silentio is not to apply. The word ‘with’ in Regulation 4(a) has been interpreted as ‘in’ in Rooj’s case, therefore, interpretation exists and the principle of sub-silentio will not come to the aid of the appellants. Regulation 4(a) has been interpreted in a purposive manner and technical approach not adopted. Minimum knowledge in Physics, Chemistry and Biology is needed for the BHMS Course and for the course sufficient adequate knowledge is required. Failure in any of the three requisite subjects will not depict knowledge and equity cannot prevail over law, as that is all that the appellants seek. Reliance is placed on 2008 (17) SCC 611 . Failure in anyone of the three subjects will not bring the candidate within the ambit of Regulation 4(a). This is not the intent of the legislature as has been espoused by the appellants. Reliance is placed on 2008 (17) SCC 611 . Failure in anyone of the three subjects will not bring the candidate within the ambit of Regulation 4(a). This is not the intent of the legislature as has been espoused by the appellants. The said is inconsistent with the BHMS course and the provisional certificate is no certificate as it is contrary to statute. The Apex Court in 2006 (13) SCC 673 held that non-recognition of a school though affecting the students admitted no relief can be granted to students. Therefore, the appeals filed be dismissed. None appears on behalf of the college. Counsel for the University submits that the college is affiliated to the University of Health Science. The writ petition suffers from suppression of material facts. Therefore, the element of fraud is apparent. It has been pleaded by appellant Rakshit in her writ petition that she passed the Higher Secondary Examination with combination Physics, Biology, Mathematics and Chemistry. This is an incorrect statement made by her. While interpreting Regulation 4(a) a purposive approach must be adopted and not a technical one. The purpose for mentioning the subject is to ascertain whether the candidate has minimum knowledge. No provisional certificate has been issued and as the memo dated 10.5.2011 will not apply the letter dated 22.5.2011 will also not come to the assistance of the appellants. In reply counsel for the appellants submits that the University cannot espouse the case of the Council. It cannot argue contrary to statute as the university has issued a provisional certificate. On behalf of the Council it has been submitted that 2006 (13) SCC 673 has no application to the facts of this case as qualification of student is not under consideration. 2008 (17) SCC 6611 so also 2011 (6) SCC 145 is not applicable to the facts of this case. There is no breach of the Regulations as no dividing line has been fixed. It has not been stated that the candidate must pass the subjects, therefore the cases relied on for breach of statue will not apply. In the decisions cited the initial entry was wrong and the candidates in the cases cited were stopped from proceeding with their education. It is not so in the instant case. The course has been completed by the appellants. In the decisions cited the initial entry was wrong and the candidates in the cases cited were stopped from proceeding with their education. It is not so in the instant case. The course has been completed by the appellants. No debarring line exists and in the absence of the criteria that the appellants have to pass in all three subjects, the order passed by the Trial Court be set aside. All that was required is the compulsory three subjects and it was not necessary for the appellant to have passed in all of them. Therefore the orders of the Trial court be set aside. Having considered the submissions of the parties as per the information sheet an applicant to be eligible for the Joint Entrance Examination- 2005 for admission to the BHMS Course in Homeopathy was required to have passed, appeared or due to appear in 2005 Higher Secondary Examination with English, Vernacular, Physics, Chemistry & Biology as subjects. Those candidates who had passed B.Sc. I/II Examination with the subjects mentioned in the information sheet would also be eligible to apply provided they passed the previous qualifying examination with English, Vernacular, Physics, Chemistry & Biology. Regulation 4 of the 1983 Regulation provides for the minimum qualifications needed by a candidate for admission to the DHMS (Diploma) Course and is mandatory in nature by the very words used therein. Regulation 4 is set-out below: - “4. Minimum qualifications: No candidate shall be admitted to D.H.M.S. (Diploma) Course unless he has, (a) Passed in the Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as his subjects; Therefore no candidate who has passed the Intermediate Science examination or its equivalent without Physics, Chemistry and Biology as his subjects is eligible for entrance to the said course. In fact, by failing in any one subject the combination is not available and requirement of Regulation 4(a) of the 1983 Regulation not satisfied. On failure the subject gets eclipsed as the marks of such subject is not even counted and to say that the combination exists even on failure will be a fraud on the Regulation and contrary to the legislative intent. The appellant Arpita passed the H.S. Examination with English, Vernacular, Biology, Physics and Mathematics as compulsory subjects and Chemistry as the optional elective subject. The appellant Arpita passed the H.S. Examination with English, Vernacular, Biology, Physics and Mathematics as compulsory subjects and Chemistry as the optional elective subject. Similarly Sneha Saha, the appellant in MAT 1067 of 2013 also passed the HS examination with English, Vernacular, Physics, Biology and Mathematics as her compulsory subjects and Chemistry as her elective optional subject. In reaching the total marks, the marks obtained in the compulsory subject by appellants Arpita and Saha was added. The marks obtained in Chemistry was excluded and the treatment of “with” as “in” in Rooj’s case cannot be faulted. The plea of sub-silentio raised on behalf of the appellants will have no application as the said issue was specifically raised in Rooj’s case which reads as follows:- “The respondent-writ petitioner has reiterated the same argument as advanced before the learned trial Judge by contending, inter alia, that she passed the eligibility qualification, namely, equivalent of Intermediate Science Examination with Physics, Chemistry and Biology. It has been further contended that as Chemistry was her subject though she did not pass in this paper in the Higher Secondary Examination, the Regulation 4 was satisfied.” The said issue was dealt by the Division Bench dealing with Rooj’s case as follows :- “Further from Sub-clause (a) of Regulation 4 it appears that for admission to the said Diploma Course of Homeopathy Medicine, a candidate must have passed Intermediate Science or its equivalent examination with Physics, Chemistry and Biology as subjects. Said Regulation accordingly speaks that even if for equivalent examination a candidate must have passed in the subjects Physics, Chemistry and Biology, which is mandatory provision. In general, in the science stream subjects right from Higher Secondary to Graduation level there are different types of courses, which are called as Pure Science course, wherein the main subjects are Physics, Chemistry and Mathematics, Bio Science course wherein the major compulsory subjects are Physics, Chemistry and Biology (in Higher Secondary level) and in Graduation level, the Bio Science course is Chemistry, Botany and Zoology or Chemistry, Physiology and Botany or Chemistry, Physiology and Zoology etc. West Bengal Council of Higher Secondary Education has set up the different courses of Higher Secondary Examination, wherein in the Pure Science group, a candidate is required to pass with three major Science subjects, namely, Physics, Chemistry and Mathematics. West Bengal Council of Higher Secondary Education has set up the different courses of Higher Secondary Examination, wherein in the Pure Science group, a candidate is required to pass with three major Science subjects, namely, Physics, Chemistry and Mathematics. There is other course in Higher Secondary Science stream, which is not termed as Bio Science stream as such by termed as General stream, wherein the major compulsory Science subjects as are required to be cleared by securing pass marks are Physics, Chemistry and Biology. In the Higher Secondary course in terms of the Examination Regulation, a candidate is required to pass in the three major compulsory elective subjects of any particular stream along with the compulsory subjects of language groups, namely, English and Bengali. A candidate may take one additional subject/optional subject as per his/her choice either from the Science stream or from Arts stream and/or from the Commerce stream. The marks of optional subjects as secured above pass marks of that subject is added for gradation Division.” From a reading of the aforesaid it is clear that the issue raised has been dealt with. The said finding has not been challenged and cannot now be raised on the touchstone of the principle of sub-silentio which principle in view of the aforesaid will not apply. Admittedly the basic requirement was not satisfied by the appellants and they could not have qualified for the entrance to the BHMS Course in Homeopathy but the University has not only allowed her admission in a College but also allowed her to complete her internship. The application for issuance of a Provisional Registration Certificate was rejected by the Homeopathic Council on the ground that appellant Arpita could not have been admitted as she had failed in Chemistry (Theory). This rejection has been upheld by the Trial Court. At the admission stage the Council has no role to play but the college granting admission is affiliated to the West Bengal University of Health Sciences and is aware of the criteria which is statutory in nature which must be satisfied by a candidate. If the colleges ignore the Statutory Regulations can the Council be bound to recognize the candidate on principles of equity whose admission is in breach of the Regulations. This proposition of law has been answered in 2001 (10) SCC 264 as follows: – 11. If the colleges ignore the Statutory Regulations can the Council be bound to recognize the candidate on principles of equity whose admission is in breach of the Regulations. This proposition of law has been answered in 2001 (10) SCC 264 as follows: – 11. “…………………………………………………… …………………… It is no doubt true that a large number of students who were already admitted in the colleges and incurred a lot of expenditure in taking admissions were to be dislodged by issue of the revised merit list. In such a situation one can sympathise with the plight of such students who for no fault of their own were to be dislodged. However, compassion and sympathy have no role to play where a rule of law is required to be enforced. ……………………………………………………………………… ……………………………..…………………… Adjusting equities in exercise of extraordinary jurisdiction under Article 226 is one thing, and the High Court assuming the role of the Central Government and the Medical Council under Section 10-A of the Act is a different thing. The Court cannot direct to waive the mandatory requirement of law in exercise of its extraordinary power under Article 226. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law. ……………………………………………………………………… …………………….. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law.” In (2003) 5 SCC 413 it has been categorically stated that in case of conflict between law and equity, the former shall prevail. Courts are bound to apply the cardinal principles of justice, equity and good conscience but without violating the law. In the instant case any application of equity will be in violation of law laid down by statute. Courts are bound to apply the cardinal principles of justice, equity and good conscience but without violating the law. In the instant case any application of equity will be in violation of law laid down by statute. In the instant case there is no doubt that the appellant did not fulfil the eligibility criteria set-out in Regulation 4 of the 1983 Regulations and starting from (1986) 2 SCC 667 wherein it was held as follows : “……………………………………………………………… Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interest of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the law. ………………………………………………………….” through 1993 (4) SCC 401 (Guru Nanak Dev University -vs- Parminder Kr. Bansal) and 1998 (5) SCC 377 (C.B.S.E. & Anr. -vs.- P. Sunil Kumar & Ors.) and as rightly observed in 2003 (7) SCC 719 (Regional Officer CBSE -vs- Ku. Sheena Peethambaran & Ors.) “Condoning the lapses or overlooking the legal requirements in consideration of mere sympathy factor does not solve the problem, rather breeds more violations in the hope of being condoned. It disturbs the discipline of the system and ultimately, adversely affects the academic standards.” Plea of sympathy and concessions in the light of Rules staring us in the face and against legal provisions has been deprecated and any direction to the council to issue the Provisional Registration Certificate will be in transgression of the Act and the 1983 Regulations and the Court cannot be a party to direct the Council to disobey the statute as that would be destructive of the Rule of law. To direct issuance of a provisional Registration Certificate or Registration Certificate to Arpita and Sneha will make a mockery of the Rule of Law as observed in 1998 (3) SCC 5 and promote the “Rule of Man”. To direct issuance of a provisional Registration Certificate or Registration Certificate to Arpita and Sneha will make a mockery of the Rule of Law as observed in 1998 (3) SCC 5 and promote the “Rule of Man”. (2010) 10 SCC 233 and (2012) 3 SCC 430 is of no assistance to the appellants as equity was exercised as a special case under Article 142 of the Constitution of India by the Supreme Court of India in order to do complete justice. No such power is vested in the High Court. AIR (1983) SC 1199 is distinguishable on facts as the application was on basis of advertisement which made the candidate in the reported decision eligible for appointment. In the instant case there is no conflict between the 1983 Regulations and the advertisement. AIR (1976) SC 376 is also distinguishable as it was the university who had acquiesced in the infirmities by grant of admission. In the instant case the colleges were to give admission on basis of criteria. The Homeopathic Council is to issue the Registration Certificate while the admission is given by the colleges affiliated to the West Bengal University of Health Science under the 1963 Act and Regulations framed thereunder. Therefore the regulations were to be followed by the colleges at the time of grant of admission. In not doing so the colleges have acted contrary to Statute and the Regulations. Therefore the order of the Trial Court calls for no interference and these appeals are dismissed.