HARISH KUMAR MALHOTRA Vs. STATE

JUDGEMENT

(1.) Harish Kumar Malhotra a candidate for admission to Medical College, Simla, has filed this writ petition and has called in question the decision of the Selection Board set up for making admission, whereby he has been rejected and has not been admitted for the first year Medical Course for the year 1970.

(2.) The contentions made on behalf of the Petitioner are, that a prospectus was issued by the State Government for admission to candidates to the first year Medical Course of 1970 and in pursuance to the instructions contained in the prospectus, the Petitioner applied for admission. The Petitioner had passed Pre-Medical examination of the Punjab University in the year 1970 and he obtained 384 marks out of a total of 650 marks and thus the percentage of marks which he obtained was 59.6% in the compulsory subjects, i.e. English, Physics, Chemistry and Biology. The Petitioner had also appeared in the Pre-Medical examination of that University in the year 1969 but could not appear in Biology Practical examination because of acute dysentery for which he obtained a medical certificate. He was, accordingly, placed in the compartmental list and was required to appear in supplementary examination. However, he did not appear in such supplementary examination and rather chose to appear afresh in the Pre-Medical examination of 1970 and obtained the marks stated above. According to Petitioner, his non-appearance in the Pre-Medical examination of 1969 was for the reasons beyond his control and he should not be made subject to any disqualification because of that. According to the terms and conditions laid down in the prospectus, a candidate seeking admission should have obtained 50% of the total marks in the compulsory subjects. Such a candidate could have passed Pre-Medical examination from a recognised college, and the Petitioner fulfilled this condition. As such, he was qualified for selection, but the Selection Board deducted 2% of the total marks of the Petitioner because under para 8 of Part-B(I) of the prospectus such a deduction was to be made because the Petitioner was held to have passed the qualifying examination in the second attempt. According to Petitioner, this provision in para 8 was arbitrary, discriminatory and against principles of nautral justice. After such a deduction of the marks, the Petitioner was placed much below in the list of successful candidates. Although his marks before deduction exceeded the marks obtained by the Respondents 6 to 9, yet they were admitted in the College, while the Petitioner was not admitted. According to Petitioner, the rules and regulations that were enforced in Panjab University were applicable to the admission for Himachal Medical College. This was so, because before 22nd July, 1970, the Himachal Pradesh University Act, 1970, was not in force. Thereafter by a notification the State Government had applied the rules and regulations of the Punjab University to the admissions in Himachal Pradesh University. This they did, because the Ordinances which should contain the rules and regulations for admission, have not yet been made for Himachal Pradesh University. The contention of the Petitioner is, that the 2% deduction rule is not to be found in the rules and regulations of the Punjab University and therefore this rule is ultra vires the Panjab University Act and its regulations. The Petitioner was interviewed on 23rd July, 1970 by the Selection Board which, according to him, was not properly constituted and could not make the selection. Besides this, the various lists of selected condidates were put on the notice board in an illegal manner and these lists did not contain the name of the Petitioner. According to Section 4 of the Himachal Pradesh University Act, 1970, it has been provided that the University shall be open to all persons of either sex and of whatever race, creed, caste or class. Since the Petitioner has been refused admission, there is a violation of this provision contained in Section 4. According to Petitioner, there is no law, rule or regulation which gives sanction to para 8 of Part-B(I) of the prospectus. The said provision is, therefore, unjust and arbitrary and without sanction of a statute. It has definitely prejudiced the Petitioner and should be quashed. At any rate, the Petitioner should not be penalised because he could not appear in the Pre-Medical examination of 1969 due to sudden illness and in the special circumstances, he should not be considered to have passed the qualifying examination in second attempt. In fact, such a concession was granted to a few candidates who sought admission during the year 1967-68 and Miss Hari Priya and Vijay Kumar Kapur are such of the candidates. On these facts and allegations, the Petitioner asked for a writ of certiorari quashing the impugned decision of Respondents 1 to 5 who are the State Government and the Members of the Selection Board. He also asked for a writ of mandamus directing these Respondents to admit him to the first year course of the M.B.B.S. during the current session of the academic year. Further the Petitioner wanted a direction to the Respondents or any other competent authority to make selection of candidates in order of merit without 2% deduction so that admissions are assured to deserving candidates.

(3.) The Respondents 2 to 5 who are Members of the Selection Board, have filed a common return and their allegations are, that the rejection of the Petitioner was made in accordance with rules and regulations and the decision cannot be considered without jurisdiction. According to Respondents, the Selection Board was constituted by the Government. Similarly the prospectus was also approved by the Government. Para 8 of Part-B(I) was based on instructions that were received from the Director-General, Health Services, New Delhi. This para provided for 2% deduction rule which cannot be considered arbitrary or discriminatory. There could be a valid discrimination between candidates who passed in first attempt and those who passed in second attempt. There is a rational basis for this discrimination. Besides this, the discrimination has a reasonable nexus with the object in view, namely, the selection of suitable candidates for a Medical College. The lists of selected candidates were legally put on the notice board and since the Petitioner was rejected, his name did not appear on such lists. After 2% deduction, the marks of the Petitioner were less than the marks of the Respondents 6 to 8 and so the Petitioner could not be selected. The Respondent No. 9, however, possessed more marks as compared to Petitioner even if such a deduction was not made. Therefore, the Petitioner could have no grievance for the admission that was given to Respondents 6 to 9. Regarding the selection that was made in 1967-68, it was governed by the rules and regulations prevailing at that time. The Petitioner cannot take advantage of those rules and regulations. Thus, the admission of Miss Hari Priya or Vijay Kumar Kapur cannot be called in question to benefit the Petitioner. According to para 8, if a candidate appeared in part of qualifying examination, it was to be treated as a failure attempt. Obviously the Petitioner appeared in part of the qualifying examination of 1969. As such, he exhausted his first attempt. When he passed the qualifying examination in 1970 that was definitely a second attempt and 2% deduction was rightly made in the marks. This rule, contained in para 8, is not ultra vires the rules and regulations of the Panjab University. The Government could lay down a further condition for a better selection of candidates. While applying these rules and regulations of the Panjab University, the power to make just exceptions in rules and regulations was made available and as the prospectus was sanctioned by the Government, it could be taken that the 2% deduction rule was imposed by the Government in addition to the rules and regulations of Punjab. It is immaterial that the Petitioner had fallen suddenly sick, as that would not change the character of his attempt for the qualifying examination. Para 8 is abundantly clear on this and no exception is provided therein for such a contingency. Therefore, it is urged that the Petitioner is not entitled to any writ or direction as claimed by him.