UNIVERSITY OF CALCUTTA Vs. SUBRATA MUKHOPADHYAY AND ORS.

JUDGEMENT

(1.) The University of Calcutta, its Vice-Chancellor and another have preferred these two appeals against the interim orders dated 30th Nov. 1984 passed by Bhagabati Prosad Banerjee, J. dirseting that Rajib Sarkar and Subrata Mukhopadhaya, who are respectively the respondent no. 1 in the said two appeals be admitted to Master of Surgery (Orthopaedic) Course of the University of Calcutta, for the year 1984, provisionally and on ad-hoc basis. Said Rajib Sarkar and Subrata Mukhopadhayay, who were both medical graduates, had appeared at the Entrance Examination for admission to the Master of Surgery (Orthopaedic) Course, 1984. But they were not selected Said two candidates have filed two writ petitions in this Court, inter alia, for a writ of Mandamas commanding the respondents to forbear from giving effect to the results of the said Entrance Examination and to cancel the same and for declaring that the petitioner of the respective writ petition had been selected and was eligible for admission to the said course.

(2.) Before considering the met its of these two appeals, we may first deal with the preliminary objection of the appellants as regards the maintainability of the writ petition in the Appellate Side of this Court. Mr. Gupta learned Additional Advocate General appearing on behalf of the appellants, submitted that the entire cause of action pleaded by the petitioners had arisen within the Ordinary Original Civil Jurisdiction of this court and excepting the respondent No. 4 all the respondents to the two writ petitions had their offices within the limits of the said jurisdiction of this Court The respondent No. 4 was not a necessary patty. Therefore, according to Mr. Gupta, the trial judge sitting in the Appellate Side could not have entertained the writ petitions and passed the impugned interim orders.

(3.) We find no substance in the aforesaid preliminary objection about the maintainability of the two writ applications in question in the Appellate Side of this Court. It would not be quite correct to decide the said question of maintainability of writ applications by referring only to the provisions regarding the Civil Jurisdiction of this Court contained in the Letters Patent. We also fail to see how provisions of Art. 226 of the Constitution support the appellants' submission that the writ applications ought to have been moved in the Original Side of this court Art. 226 preserved prior jurisdiction of High Court in Part A. State and its power to make rules of Court subject to the provisions of the Constitution and to the provisions of any law of the appropriate legislature (vide majority judgment delivered by Chakravarti, C.J., in the case of Chairman, Budge Municipality Vs. Mongru Mia AIR 1953 Cal. 433 (S.B). The majority decision in tho said reported case was that a judgment of single Judge on an application under Art. 226 whether arising within the Original Side or outside, Was a judgment pursuant to Sec. 108 of the Government of India Act, 1915 and was therefore appealable under clause 15 of the Letters Patent. Chakravarti, C.J. in the aforesaid case had also pointed out that this court's Rule making power for distribution of business was also ultimately derived from Sec. 108 of the Government of India Act, 1915 Chakravarti, C. J in paragraph 28 of his judgment in the aforesaid case had however conceded that to certain extent and in a certain sense the jurisdiction under Art. 226 was a new jurisdiction. The said Art. applied of its own force to all High Courts. Such a power of the High Court was undoubtedly a new power. According to Chakravarti, C.J. while it was new in the sense that the power to act, to give relief in such manner or according to such procedure did rot exist before but it was not new or special in the sense that it vested the High Court with a new function outside and unrelated to the jurisdiction of the High Court Chakravarti, C.J., expressly laid down that jurisdiction under Art. 226 of the Constitution was not original, in the case of the Presidency High Courts in the limited and technical sense of Ordinary Original Civil Jurisdiction of the Letters Patent which carried certain territorial limits.