M.M.SUNDRESH, J
Before dwelling upon the issues involved in this appeal, the factual
matrix involved requires a thorough narration.
2.The Honourable Apex Court in MEDICAL COUNCIL OF INDIA vs. MADHU
SINGH AND OTHERS [(2002) 7 SCC 258], in order to regulate, avoid and prevent
admission of students in the midstream of a medical course had issued certain
directions. The directions as issued are apposite and they are extracted
hereunder:
"23. There is, however, a necessity for specifically providing the time
schedule for the course and fixing the period during which admissions can take
place, making it clear that no admission can be granted after the scheduled
date, which essentially should be the date for commencement of the course.
In conclusion
(i) there is no scope for admitting students midstream as that would be against
the very spirit of statutes governing medical education;
(ii) even if seats are unfilled that cannot be a ground for making mid-session
admissions;
(iii) there cannot be telescoping of unfilled seats of one year with permitted
seats of the subsequent year;
(iv) MCI shall ensure that the examining bodies fix a time schedule specifying
the duration of this course, the date of commencement of the course and the last
date for admission;
(v) different modalities for admission can be worked out and necessary steps
like holding of examination if prescribed, counselling and the like have to be
completed within the specified time;
(vi) no variation of the schedule so far as admissions are concerned shall be
allowed;
(vii) in case of any deviation by the institution concerned, action as
prescribed shall be taken by MCI."
3.The said directions have been issued in the appeal filed by the
Medical Council of India, the third respondent herein in a case involving
admissions made to the seats available for the academic year 1997-98.
4.Seemingly complying with the directions issued by the Honourable
Apex Court referred supra, the respondent No.5 has published the following time
schedule for the completion of the admission process for Medical and Dental
Courses. The same is extracted hereunder:
Schedule First MBBS / BDS Course Postgraduate Courses Super-
NOTE: @ Head of the Colleges should intimate the vacancies existing after 15th
July in respect of the All India Quota of seats to the DGHS latest by 25th of
July."
5.The said time schedule has been circulated to all the Government
authorities dealing with the admission process in various parts of the country.
6.The appellant belonging to a backward class (Muslim Community)
made an application for MBBS Course for the academic year 2009-2010. In the
merit list published by the first respondent, he was shown as 2215 covering the
general category and 99 covering his community status. He was called for the
counseling on 14.07.2009 and was waitlisted for the MBBS Course. In the
subsequent counseling also, he was not selected in the Self Financing Medical
Colleges for want of vacancies. On 29.09.2009, another candidate, by name,
Selvi.Shafeequa Jammal expressed her unwillingness to join the medical course
and hence, the appellant was called on 30.09.2009. The seat available in the
Government quota with the respondent No.2 was filled up by way of allotment in
favour of the appellant. The appellant paid a sum of Rs.25,000/- towards the
partial amount of the tuition fee for admission with the second respondent after
paying the processing fee of Rs.500/-. The allotment order was issued on
30.09.2009.
7.After the admission was made, the appellant duly sent a fax
message to the second respondent which was received at about 3.30p.m. An
intimation was also sent by the first respondent to the second respondent. The
appellant could reach the second respondent which is situated at Kulasekaram,
Kanyakumari District only during night time, as the allotment and admission was
made in the afternoon at Chennai by the first respondent. In the meanwhile, the
second respondent has filled up the vacancy after 5.00p.m. on the same day -
30.09.2009. When the appellant approached the second respondent, he was informed
that the seat has been filled up as he failed to turn up to the College on
30.09.2009.
8.The appellant filed a Writ Petition in W.P.No.9979 of 2009,
seeking a direction to the second respondent to admit him as per the order dated
30.09.2009. An order was passed by the learned single Judge in M.P.(MD) No.1 of
2009 dated 28.10.2009 to protect the interest of the appellant by making
alternative arrangements. Thereafter, by order dated 11.11.2009, based upon the
submission made by the learned counsel appearing for the second respondent a
direction was issued to admit and permit the appellant and attend classes from
12.11.2009 onwards. By a subsequent order in M.P.(MD) No.1 of 2010 dated
14.05.2010, the appellant was permitted to write the examinations. However, the
writ petition was dismissed by the learned single Judge holding that the
appellant having been admitted after 30.09.2009 contrary to the directions
issued in MEDICAL COUNCIL OF INDIA vs. MADHU SINGH AND OTHERS [(2002) 7 SCC
258], the relief sought for cannot be granted.
9.Challenging the dismissal of the writ petition, the appellant
filed this Writ Appeal. At the time of admitting the Writ Appeal, the appellant
was permitted to continue the course. Thereafter, the appellant filed another
application to publish the results. Since all the counsels appearing for the
parties requested this Court to take up the main appeal itself, by consent we
have taken it and a final order is passed.
10.Heard the learned senior counsel appearing for the appellant as
well as the learned counsels for respondents.
11.Ratio decidendi in MEDICAL COUNCIL OF INDIA vs. MADHU SINGH AND OTHERS
[(2002) 7 SCC 258]
11.1.The Honourable Apex Court has expressed its concern about the
midstream admissions in a professional College. The issue involved before the
Honourable Apex Court was as to whether the midstream admission can be made. A
reliance was made upon the judgment rendered in DINESH KUMAR (DR) vs. MOTILAL
NEHRU MEDICAL COLLEGE [(1987) 4 SCC 122] in which it has been held that there is
a necessity for providing the specific time schedule for the medical course. A
further observation was made to the effect that the period will have to be fixed
during which admission can take place and no admission can be made after the
schedule date which should be the date of commencement of the course.
Accordingly, directions were issued towards the fixing of a time schedule
specifying the duration of the course, date of commencement and the last date of
admission.
11.2.We have perused the judgment of the Honourable Apex Court in
detail. It makes it very clear that an admission cannot be made in the
midstream. Therefore, the Honourable Apex Court was concerned with the admission
and not the actual attendance of the class. That is the reason why the time
schedule was prescribed. However, we find that the third respondent has
misconstrued the ratio laid by the Honourable Apex Court.
11.3.It is trite law that a judgment cannot be read like a statute.
A ratio laid down in a decision must be culled out from a entire reading of it
and not from a part. It has been held in SOM MITTAL vs. GOVERNMENT OF KARNATAKA
[(2008) 3 SCC 574] that 'words and phrases' in a judgment cannot be interpreted
like provisions of statute as they should be read and understood contextually.
The following paragraph in the said judgment is apposite:
"9. When the words "rarest of rare cases" are used after the words "sparingly
and with circumspection" while describing the scope of Section 482, those words
merely emphasise and reiterate what is intended to be conveyed by the words
"sparingly and with circumspection". They mean that the power under Section 482
to quash proceedings should not be used mechanically or routinely, but with care
and caution, only when a clear case for quashing is made out and failure to
interfere would lead to a miscarriage of justice. The expression "rarest of rare
cases" is not used in the sense in which it is used with reference to punishment
for offences under Section 302 IPC, but to emphasise that the power under
Section 482 CrPC to quash the FIR or criminal proceedings should be used
sparingly and with circumspection. Judgments are not to be construed as
statutes. Nor words or phrases in judgments to be interpreted like provisions of
a statute. Some words used in a judgment should be read and understood
contextually and are not intended to be taken literally. Many a time a judge
uses a phrase or expression with the intention of emphasising a point or
accentuating a principle or even by way of a flourish of writing style. Ratio
decidendi of a judgment is not to be discerned from a stray word or phrase read
in isolation."
11.4.Similarly the Hon'ble Supreme Court in Commissioner of Central
Excise, Bangalore v. Srikumar Agencies etc., (2009 AIR SCW 942) has held in the
following manner:
"4.Courts should not place reliance on decisions without discussing as to how
the factual situation fits in with the fact situation of the decision on which
reliance is placed. Observations of Courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too taken out of their
context. These observations must be read in the context in which they appear to
have been stated. Judgments of Courts are not to be construed as statutes. To
interpret words, phrases and provisions of a statute, it may become necessary
for judges to embark into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statutes, they do not interpret
judgments. They interpret words of statutes; their words are not to be
interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton (1951 AC 737
at p.761), Lord Mac Dermot observed:
The matter cannot, of course, be settled merely by treating the ipsissima
vertra of Willes,J. as though they were part of an Act of Parliament and
applying the rules of interpretation appropriate thereto. This is not to detract
from the great weight to be given to the language actually used by that most
distinguished judge.
In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said, "Lord
Atkin's speech..... is not to be treated as if it was a statute definition. It
will require qualification in new circumstances." Megarry, J. in (1971) 1 WLR
1062 observed: One must not, of course, construe even a reserved judgment of
Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British
Railways Board (1972(2) WLR 537) Lord Morris said:
There is always peril in treating the words of a speech or judgment as though
they are words in a legislative enactment, and it is to be remembered that
judicial utterances made in the setting of the facts of a particular case.
5. Circumstantial flexibility, one additional or different fact may make a world
of difference between conclusions in two cases. Disposal of cases by blindly
placing reliance on a decision is not proper.
The following words of Lord Denning in the matter of applying precedents have
become locus classicus:
"Each case depends on its own facts and a close similarity between one case and
another is not enough because even a single significant detail may alter the
entire aspect, in deciding such cases, one should avoid the temptation to decide
cases (as said by Cordozo) by matching the colour of one case against the colour
of another. To decide therefore, on which side of the line a case falls, the
broad resemblance to another case is not at all decisive." *** *** ***
"Precedent should be followed only so far as it marks the path of justice, but
you must cut the dead wood and trim off the side branches else you will find
yourself lost in thickets and branches. My plea is to keep the path to justice
clear of obstructions which could impede it."
11.5.A perusal of the schedule provided by the fifth respondent
would show that it is only a time schedule for completion of admission process
for medical course. It has been mentioned therein that the last date up to which
a student can be admitted against the vacancies arising due to any reason is
30th September. Therefore, it makes it clear that 30th September as a last date
for admission and not the date for joining. However, the same time schedule
speaks about the commencement of academic session as between 1st August to 31st
August. We find that the commencement of academic session is made much prior to
the last date of admission and hence not in consonance with the ratio laid down
by the Honourable Apex Court. However, as it has not been put into challenge, we
do not wish to go into the same except by observing that for the next academic
year starting from 2012-2013, the third and fifth respondents will have to apply
their mind and comply with the directions issued by the Honourable Apex Court in
the decision referred supra, in letter and spirit by preparing a time scale for
the completion of the admission process before the starting of the course.
12.Definition of admission, joining and attending:
12.1.In the present case on hand, the order dated 30.09.2009 issued
by the first respondent speaks about the date of joining the College as
30.09.2009 at 10.00 a.m. It is not in dispute that the said order was issued
after 10.00 a.m. The payment of Rs.500/- by the appellant was for a processing
fee for admission. The subsequent payment of Rs.25,000/- is a part of a tuition
fees for admission. The second respondent can only fill up all the seats in the
management quota alone meaning thereby the remaining 50% has to be filled up
under the state quota. Therefore, the second respondent has got no choice to
accept the list of admission provided by the first respondent. When the
appellant has paid the admission fees in pursuant to the order dated 30.09.2009
it would certainly amount to an admission into the second respondent College.
The word 'admission' is nothing but an act of allowing a student to enter into
college. It has been defined in the Oxford Dictionary as,
"the act of allowing to enter a school - college to be placed etc."
Similarly, Webster's Dictionary defines the word "admission" in the following
manner:
"(1) to allow to enter, grant or afford entrance to;
(2) to admit a student to college;
(3) to give right or means of entrance; and
(4) to permit."
12.2.The above said definition of the word 'admission' would leave
no doubt in our mind that once a student pays the part of the fees and when a
management does not have any role in the process of allotment, it cannot be said
that it doesn't amount to admission. The compliance of subsequent process is
nothing but a consequential or incidental action on the part of the student.
When once a student pays the amount though in part then he cannot be denied the
seat. It is trite law that while interpreting a word the Courts will have to
give its actual, natural, simple, logical and clear meaning, when it is not
ambiguous.
13.Admission is followed by joining the course:
13.1.Therefore, joining in a course is totally different from
admission. There may be a case in which after admission a student may not join
the course. The Honourable Apex Court was concerned with the admission and not
the joining in a course. There is no law which enjoins a duty of a student to
join on the same day of admission. The Honourable Apex Court was concerned with
the admission because joining is consequential. Therefore, in a case where an
admission is permissible in law then merely because a student has not joined on
the very same date of admission, the admission made already would not be
nullified. When a student once gets admitted then after joining he would start
attending the course. Therefore, the word admission, joining and attending are
to be read one after another.
13.2.Hence, we are of the view that a cumulative consideration of
the allotment order, payment of processing fee and a part of fee would certainly
lead to the irresistible conclusion that the appellant was in fact admitted on
30.09.2009 but only could join on 01.10.2009 as it was impossible for him to do
so on the same day.
14.Role of respondent No.2:
14.1.The matter can be looked from a different angle as well. The
second respondent was aware of the admission of the appellant as discussed
above. What was required to be done is only a reporting. It is the case of the
second respondent that an admission was made by admitting another candidate in
the management quota. However, even that candidate admittedly did not attend the
class on 30.09.2009. In other words, the candidate who has been admitted and
permitted to attend the class was given such a permission only on the next day
in which the appellant was also ready. Further, such a student could have been
admitted only after 5.00 P.M. on 30.09.2009. The second respondent has presumed
that the admission has got cancelled automatically whereas when two candidates
were reporting on the same day, the candidate seeking admission under the
management quota was given permission to attend the class as against the
appellant. The admission of the appellant has not been acknowledged and the
second respondent has got no power to cancel such an admission. Hence, we are of
the view that the second respondent has totally misconstrued the entire issue to
the suffering and misery of the appellant.
14.2.The appellant admittedly gave a fax message on 30.09.2009
intimating about his admission. The message was also received by the second
respondent before 5.00 p.m. on the same day. It is the case of the first
respondent also that an intimation has in fact been given. When that is the
position, the second respondent ought not to have admitted another student in
the management quota. In all fairness, the second respondent ought to have
waited for the appellant to join on the next day of the admission. As a result,
the appellant could not join the course and he was constrained to file the writ
petition. The appellant was permitted to attend the classes only in pursuant to
the orders of this Court in the month of November, 2009 and thereafter permitted
to write the examinations.
15.Now, it has been informed by the learned counsel for the fourth
respondent that the appellant did not have the adequate attendance, for the
first year course conducted in the year 2009-2010 as he is said to have secured
75% as required the mandatory attendance of 80%. Even though the second
respondent has acted fairly before the learned single Judge and before us
through its counsel, we feel that the appellant has been wronged as he was made
to lose the attendance by the wrong approach committed by it. The appellant
should have been in the place of candidate who has admitted under the management
quota from the date of his reporting for joining the course. Hence, we hold that
the second respondent is responsible for the creation of present scenario as the
appellant is not in a position to continue his course due to lack of attendance
over which a court of law has no role to play.
16.Nature of relief:
As discussed above, the records would reveal that the appellant
lacks the required attendance which cannot be condoned. The statute, neither
provides for such a procedure nor this Court can take the role of an authority
which deals with the academic standard of education. Therefore, the only
question to be considered is the nature of relief that can be given to the
appellant who has been wronged for the no fault of his. The appellant would be
losing two years for the mistake committed by others. We have directed the
respondents to produce the examination results attended by the appellant. We
found that the appellant has cleared all the examinations. The appellant has
complied with all the requirements as required by him. He paid the part of the
tuition fees and was ready to pay the remaining amount. He promptly reported to
the second respondent College the very next day. He attended the course
continuously from the date of directions issued by this Court. Hence, we are of
the view that the appellant is entitled to get appropriate and adequate relief
at the hands of this Court.
17.Law and Equity:
17.1.When an action of an authority is unreasonable leading to an
irreparable injury to the person wrong then this Court can step in and try to
redress the same to the extent possible. A relief under Article 226 of the
Constitution of India can also be moulded when a higher relief sought for cannot
be granted. When there is a civil wrong committed by way of a violation of law,
the same can be remedied as enforcement of a legal right. Therefore, a right of
a litigant to get the redressal through a court of law is a legal right so also
the violation of a legal right. Thus a equitable right in a given case becomes a
legal right.
17.2.Equity becomes part of the law when granting a relief is not
forbidden or contrary to any law. In fact equity is inherent in law and it is
ingrained in the conscience of a man. Therefore, it forms part of a natural law.
That is the reason why equity plays a major role in the enforcement of
fundamental rights under the Constitution of India. Hence, as we feel that the
appellant has clearly made out a case that his legal rights are violated and he
has got a legal right to get it remedied before this Court and the relief to be
granted is not forbidden by law, the relief to the appellant will have to be
suitably modified as a writ court is a court of law and equity.
18.Scope of a writ of mandamus:
18.1.A writ of mandamus can be issued wherever there is an
irreparable loss committed by a party by the violation of a legal right. The
power under Article 226 of the Constitution of India is rather wide. When this
Court finds that the appellant has been wronged and an irreparable loss has been
committed then as a necessary concomitant the appropriate relief will have to be
given. Considering the scope of Article 226 of the Constitution of India in
relation to the relief to be granted it has been held in FOOD CORPORATION OF
INDIA vs. SEIL LTD., [(2008) 3 SCC 440].
"23.Article 14 of the Constitution of India has received a liberal
interpretation over the years. Its scope has also been expanded by creative
interpretation of the court. The law has developed in this field to a great
extent. In this case, no disputed question of fact is involved.
24.The High Court, in an appropriate case, may grant such relief to which
the writ petitioner would be entitled to in law as well as in equity.
25.We do not, thus, find any substance in the contention of Mr Sharan that
while exercising its review jurisdiction, no interest on the principal sum could
have been directed to be granted by the High Court. A writ court exercises its
power of review under Article 226 of the Constitution of India itself. While
exercising the said jurisdiction, it not only acts as a court of law but also as
a court of equity."
18.2.Similarly, in ORIENTAL BANK OF COMMERCE vs. SUNDER LAL JAIN AND
ANOTHER [(2008) 2 SCC 280] it has been held by the Honourable Apex Court that a
writ of mandamus can be granted when there is a statutory duty is imposed upon
the authority concerned and there is a consequential failure. Therefore, in such
a situation ,this Court can compel the performance of public duties. The
following paragraph of the judgment referred supra is apposite.
"12.These very principles have been adopted in our country. In Bihar
Eastern Gangetic Fishermen Coop. Society Ltd. v. Sipahi Singh1 after referring
to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai
Shivendra Bahadur (Dr.) v. Nalanda College3 and Umakant Saran (Dr.) v. State of
Bihar4 this Court observed as follows in para 15 of the Reports (SCC): (Sipahi
Singh case, SCC pp. 152-53)
"15. ? There is abundant authority in favour of the proposition that a
writ of mandamus can be granted only in a case where there is a statutory duty
imposed upon the officer concerned and there is a failure on the part of that
officer to discharge the statutory obligation. The chief function of a writ is
to compel performance of public duties prescribed by statute and to keep
subordinate tribunals and officers exercising public functions within the limit
of their jurisdiction. It follows, therefore, that in order that mandamus may
issue to compel the authorities to do something, it must be shown that there is
a statute which imposes a legal duty and the aggrieved party has a legal right
under the statute to enforce its performance."
18.3.The facts narrated above would clearly demonstrate that in
pursuant to the admission made there was a corresponding duty which is a public
duty fastened upon the second respondent to complete the process and permit the
appellant to continue the course and for the failure of the same, this Court can
certainly issue appropriate directions.
18.4.Admittedly, the appellant does not have the attendance for the
academic year 2009-10. When the statute prescribes minimum attendance then this
Court cannot issue any direction over the same which is impermissible in law.
However, the appellant was admitted to the second respondent College and
underwent the course. As discussed above, absolutely there in no fault on the
part of the appellant. Considering the identical situation the Honourable Apex
Court in MEDICAL COUNCIL OF INDIA vs. G.UDHAYA BHARATHI AND OTHERS and MEDICAL
COUNCIL OF INDIA vs. NAINA VERMA AND OTHERS, has held that the students involved
in those cases will have to be given a seat in the next academic year. In fact,
the third respondent was a party in all those cases as found in the counter
affidavit filed by it. Even though the said judgments have been rendered in
exercise of the power under Article 142 of the Constitution of India,
considering the peculiar facts of the case, coupled with the further fact that
the third respondent was also a party and after taking note of the submissions
made by the learned counsel for all the parties, we are of the view that the
appellant will have to be provided a medical seat for the ensuing year 2011-2012
in the Government quota in the second respondent College.
18.5.When this Court in MINOR S.KIRUTHIKA vs. THE STATE OF TAMIL
NADU [2011 (1) CTC 385] imposed a cost of Rs.10,00,000/- on the management for
not providing a seat and issued a direction permitting the student to appear for
the next academic year, the Honourable Apex Court in Civil Appeal No.2197 of
2011 has issued a direction to admit the student concerned to the MBBS Course
during academic year 2011-2012. Considering the fact that the second respondent
has in fact admitted only 99 students in the year 2010-2011 and also taking note
of the further fact that the appellant cannot continue in pursuant to the
admission made the year 2009-2010, we are of the view that the respondents 1 and
2 will have to admit him in the Government quota for the academic year 2011-
2012.
19.Conclusion:
Considering the over all situation and taking note of the plight of
the appellant who being a student having been put into untold misery and in the
interest of justice, we issue the following directions which we feel would be
the appropriate relief.
(i) The respondents 1 and 2 shall admit the appellant in the Government quota in
the second respondent college for the academic year 2011-2012.
(ii) The fees paid by the appellant already will have to be adjusted for the
fees payable by him.
(iii) As there was a mistake on the part of the second respondent resulting in
the present situation and the appellant has lost two valuable years in his
career with the mental agony of redoing the course done already, we direct the
second respondent not to charge any tuition fees from the appellant till the
completion of the course. Insofar as the fee payable by the appellant to the
university is concerned, the same shall be paid by him.
(iv) A direction is issued to the 3rd and 5th respondents to take appropriate
steps to comply with the directions issued by the Honourable Apex Court in
MEDICAL COUNCIL OF INDIA vs. MADHU SINGH AND OTHERS [(2002) 7 SCC 258] for the
academic year 2012-2013 onwards, so as to avoid any such anomalous situation
like the case on hand.
21.The Writ Appeal is ordered accordingly. No costs. Consequently,
connected miscellaneous petitions are closed.
sri/sj
To
1.The Secretary
Selection Committee
Director of Medical Education
Chennai - 600 010.
2.The Dean
Sree Moogambigai Medical College
Kulasekaram
Kanyakumari District.
3.The Medical Council of India
Sector - 8, Pocket 14
Dwarka-1, New Delhi - 110 077.
4.The Registrar
Dr.M.G.R.Medial University
69, Anna Salai, Guindy
Chennai - 600 032.
5.The Secretary
Union of India
Department of Health
Central Secretariat
New Delhi.