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PETITIONER:

DR. KU. NILOFAR INSAF

Vs.

RESPONDENT:

STATE OF MADHYA PRADESH AND ORS.

DATE OF JUDGMENT08/08/1991

BENCH:

RANGNATHAN, S.

BENCH:

RANGNATHAN, S.

FATHIMA BEEVI, M. (J)

OJHA, N.D. (J)

CITATION:

1991 AIR 1872 1991 SCR (3) 429

1991 SCC (4) 279 JT 1991 (3) 433

1991 SCALE (2)262

ACT:

Medical College, admission to M.D. Course in

Radiology--Validity of--Rules for transfer of students from

other medical colleges to Madhya Pradesh Medical

College--Validity of order of transfer and its

relevance/assailment.

HEADNOTE:

The appellant and Dr. Jain, respondent No. 4, completed

their M.B.B.S. course in the years 1983-87. from Gandhi

Medical College, Bhopal. While Dr. Jain had been admitted

into that course in the Gandhi Medical College, Bhopal after

he had passed the entrance test, the appellant first sought

admission to M.B.B.S. course in the M.S. Ramayya Medical

College, Bangalore, after paying the capitation fee and

after completing the first year of the course in that Col-

lege she got herself transferred in 1984 to the Gandhi

Medical College, Bhopal, with the approval of the State

Government and with no objection from the Ramayya College,

Bangalore. After passing M.B.B.S. both of them cleared their

internship of one year and also joined a house job in

Radiology in the same college and completed the same in

August 1989. Both of them then applied for a single seat in

the Master's Degree (M.D.) course in Radiology at Gandhi

Medical College, Bhopal. The appellant having secured higher

marks got admission to this seat in preference to Dr. Jain.

Dr. Jain, thereupon, challenged the admission of the

appellant by means of a writ petition before the High Court

on the ground inter alia that the transfer of the appellant

from the Bangalore Medical College to the Bhopal Medical

College was itself invalid and since the very admission of

the appellant to the M.B.B.S. course degree in the Bhopal

College was invalid, she could not at all have been

considered for admission to the M.D. course which was

available only to the institutional candidates. The High

Court allowed the writ petition, quashed the admission of

the appellant and directed that Dr. Jain, be admitted to

that seat. Hence this appeal by the appellant.

Allowing the appeal, this Court,

HELD: The validity of an order for transfer may be chal-

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lenged

430

contemperaneonsly by a third party whose claim for admission

or transfer is superseded by such order but cannot be al-

lowed to be challenged by a third party because he finds, in

retrospect, at a future point of time, that it has affected

his interests as a result of subsequent events. [437E]

The order of the State of Madhya Pradesh permitting the

transfer of the appellant cannot be struck down as void.

There has been some irregularity hut, in the circumstances

in which it was passed, it was one within the competence of

the State Government. [437F]

There is the need to avoid disturbing settled issues

which affect the life and career of an individual after a

lapse of time or after the interposition of further events,

as a result of which he has rightly developed a sense of

security. [441B]

In the instant case, the merit list of 1989 is nothing

but a reproduction of the merit list of 1988 confined to a

narrower group of students of the same hatch. The latter did

show the appellant to have obtained more marks than Dr. Jain

and, in this sense, was adverse to his interests. The omis-

sion of Dr. Jain to challenge the correctness of the list

then lulled the appellant into a sense of security that the

merit list was acceptable to all. Dr. Jain, should therefore

be barred, on equitable consideration from challenging the

order of merit at the present stage. [441G]

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3447 of

1990.

From the Judgment and Order dated 26.4.1990 of the

Madhya Pradesh High Court in Misc. Petition No. 4059 of

1989.

Rajinder Sachar, Vijay Gupta, Vivek Gambhir, S.K. Gamb-

hir and Surinder Karnail for the Appellant.

B.S. Banthia, S.S. Khanduja and S.K. Agnihotri for the

Respondents.

The Judgment of the Court was delivered by

RANGANATHAN, J. Getting an admission into a professional

course has become so difficult and competitive of late that

litigation instituted by disappointed candidates has become

a regular feature.

431

This appeal, arising out of such a context, throws up for

consideration certain aspects which call for a difficult

exercise in balancing equities. We, therefore, proceed to

discuss the facts and issues at some length.

The appellant Dr. Ku. Nilolaf Insaf and respondent no.

4, Dr. Devraj Jain, were competitors for a single seat in

the Master's Degree (M.D.) course in Radiology at Gandhi

Medical College, Bhopal. The appellant got admission to this

seat in preference to Dr. Jain because she had obtained

average marks of 59.60 per cent in the examinations of the

M.B.B.S. course whereas Dr. Jain had obtained only 58.50 per

cent. Dr. Jain successfully challenged the admission granted

to the appellant in preference to himself in a writ petition

in the Madhya Pradesh High Court. Dr. Insaf, who has for-

feited her admission in consequence of the judgment of the

High Court, has filed the present appeal.

In order to appreciate the circumstances in which the

admission granted to the appellant was quashed by the High

Court, though she had admittedly got a higher percentage of

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marks than Dr. Jain, it is necessary to set out a few fur-

ther facts. Dr. Jain and Dr. Insaf both completed their

M.B.B.S. course in the years 1983-87. However, while Dr.

Jain had been admitted into and completed that course in the

Gandhi Medical College, Bhopal, the appellant had initially

joined her M.B.B.S. course in the M.S. Ramayya Medical

College, Bangalore, wrote the first examination and complet-

ed the first year of the M.B.B.S. course there. Thereafter,

in August 1984, she made an application for her transfer to

the Gandhi Medical College, Bhopal. Her request was granted

by the Gandhi Medical College with the approval of the State

of Madhya Pradesh and with "no objection" from the Ramayya

Medical College. Thereafter she sat in the second and third

examinations pertaining to the MBBS degree along with Dr.

Jain and completed her MBBS course along with Dr. Jain in

1987 from the Gandhi Medical College, Bhopal. Thereafter,

both of them cleared their internship of one year and also

joined a house job in Radiology in the same college and

completed the same in August 1989. It was at this stage that

both of them applied for being admitted to the M.D. course

with the result already set out.

As already mentioned, it is not in dispute that, if the

total number of marks obtained by the two contestants in all

the examinations of the M.B.B.S. degree are taken and re-

duced to an "effective" percentage and a common maximum as

per the rules, Dr. Nilofar does get a higher percentage of

marks than the respondent. In fact, we

432

find from the papers filed before us that another candidate,

Dr. Km. Indu Fotedar, had obtained a percentage of 59.04

which was also higher than the percentage obtained by Dr.

Jain. However, she is no longer in the race for a seat in

M.D. (Radiology) as she appears to have joined the M.D.

course in medicine that was offered to her. Thus it was that

the Radiology seat went to Dr. Insaf.

Dr. Jain's challenge to the admission granted to the

appellant cannot be a direct one as the latter had clearly

secured higher percentage of marks than himself in the

M.B.B.S. examinations. He, therefore, attacks her candida-

ture for the M.D. course on other grounds which may be

described as collateral or indirect. According to him, the

transfer of the appellant from the Bangalore Medical College

to the Bhopal Medical College was itself invalid and he

urges that, since the very admission of the appellant to the

M.B.B.S. degree in the Bhopal College was invalid, she could

not at all have been considered for admission to the M.D.

course which was available only to the institutional candi-

dates. The grounds on which the transfer of the appellant

from Bangalore to Bhopal is challenged by Dr. Jain are:--

(a) The appellant had appeared in the pre-

medical test for admission to medical colleges

in Madhya Pradesh. It is not known whether she

passed the test or did not get a sufficiently

high rank but the fact is that she did not get

admission in any of the medical colleges in

Madhya Pradesh. To overcome this difficulty,

she joined the Bangalore Medical College (the

admission to which did not perhaps require

qualification in a pre-medical examination) by

paying a capitation fee. She has thus circum-

vented the requirement of a pre-medical test

by getting admitted first at Bangalore and

then getting a transfer to Bhopal;

(b) According to the rules, no transfer of a

candidate to a medical college in Madhya

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Pradesh was permissible to students of medical

colleges outside the State who had secured

admission in a college after paying a capita-

tion fee, development fee or 'donation in any

form. As the appellant had obtained admission

in the Bangalore college by paying a capita-

tion fee, her application for transfer to the

Bhopal Medical College could not and ought not

to have been entertained;

(c) The rules also require, where a person

makes an application for a transfer to a

medical college in Madhya Pradesh, that the

application should state the grounds on which

he got admission

433

in a medical college of another State and

whether he had appeared for a pre-medical test

or similar examination of. that State. The

appellant's application for transfer did not

contain any reference to this crucial aspect

which was fundamental to a valid transfer to

the college in Madhya Pradesh;

(d) Even assuming that the transfer itself was

not bad, a comparison between the marks ob-

tained by the appellant and those obtained by

the respondent was not a fair or proper one.

The appellant had appeared for one examination

at Bangalore and two examinations at Bhopal

whereas Dr. Jain had appeared for all the

three examinations at Bhopal/At Bangalore, for

the first year, the appellant had three papers

whereas in the Bhopal college there were only

two papers in the first year. Having regard to

the disparity in the syllabus, the subjects

for the examination, the standards of valua-

tion and quality of teaching the comparison

between himself and the appellant was not

valid. If at all a comparison had to be made,

it should have been made by excluding the

marks got by both in the first examination and

taking into account Only the marks obtained by

them in the other two examinations which were

common to both.

The above contentions found favour with the High Court

quashed the admission of the appellant and directed Dr. Jain

to be admitted to that seat. Hence the present appeal.

In our opinion, contentions (a) and (d) cannot stand by

themselves and rest, for their validity, on contentions (b)

and (c). While it is true that the appellant does not appear

to have qualified in the premedical test for admission to

colleges in Madhya Pradesh, it cannot be said that she has

circumvented the rules by first getting admitted to the

Bangalore college and then seeking a transfer to Bhopal;

that course, if permissible under the rules, was unobjec-

tionable. So also, the last contention by itself has no

force. It is well-known that, in these competitive days,

students are not able to get admission, in the first in-

stance, in an institution at their own place and have, very

often, to seek admission elsewhere initially and then try to

get a transfer back. This is also envisaged by the rules

which permit the transfer of a student only after the first

year course is completed. In such cases, if a valid transfer

is made, the position is as if the candidate has completed

the course in the second place and the rules (the validity

of which are not in issue) permit a comparison of the aver-

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age of marks obtained by the candidates in all the examina-

tions after reducing them as a

434

percentage of a uniform maximum. There can, therefore, be no

doubt that such transfers and comparisons can be valid and

permissible. The real question, therefore, is whether there

has been a valid transfer on the facts of the present case.

An annexure has been filed before us-it was also before

the High Court-which purports to set out the "rules for

transfer of the students from other medical colleges to

Madhya Pradesh State medical colleges". Though the High

Court and the parties before it proceeded on the basis that

these were "rules" governing transfer, there has been some

controversy before us on this to which we shall advert

later. The following rules are relevant for our present

purpose:

1. The applications from students for transfer

from Medical Colleges outside the State and

studying in 1st M.B.B.S. (Pre-Clinical block)

will not be considered.

2. Applications of those candidates who have

cleared the 1st M.B.B.S. examination of the

university in Anatomy & Physiology (including

Biochemistry) and are studying in higher

classes will be considered provided the Col-

lege in which he was studying was a Medical

Council of India approved College.

3. Applications of only those will be consid-

ered who satisfy the following conditions in

accordance with the premedical examination

rules of Madhya Pradesh--

(a) possessed minimum qualification for ap-

pearing in the pre-medical examination at the

time of admission.

(b) is a bona fide resident of Madhya Pradesh

as per rules of Pre-medical Examination of

M.P.

(c) was within the prescribed age limit as per

rules of Premedical Examination of Madhya

Pradesh at the time of admission.

Government would consider relaxation of rules

in respect of those candidates who are married

to a Government Servant employed in the Madhya

Pradesh State.

4. Applications of those candidates for trans-

fer from

435

Medical Colleges outside the State will not be

considered who have secured admission in a

College after paying capitation, development

fee or donation in any form. Application

should also state the grounds on which he got

admission in a Medical College of another

State and whether he had appeared for pre-

medical test or similar examination of that

State.

9. The appellant will submit a 'No Objec-

tion' Certificate of the concerned Medical

College and the University where he was study-

ing before his transfer.

13. The applicant will submit his applications

with all the required information first to the

Dean, Medical College where he wants to be

transferred and the application will then

be routed through the Chairman, Pre-Medical

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Examination Board to Government for final

orders.

On the basis of these rules, the objec-

tions to the transfer raised on behalf of Dr.

Jain may now be considered:

(a) A submission was made that the Bangalore

college is not an approved medical college

(vide rule 2 above) but this is not substanti-

ated. The document relied upon in support of

this contention is only a list of medical

colleges in India published by the Health

Ministry of the Central Government. There is

no mention in it that only these colleges and

none else have been approved by the All India

Medical Council. Also, the list does not bear

a date. It appears to be an old one and does

not refer to any college recognised after

1979. There is nothing to show that the Banga-

lore medical college was established before

that. That apart, it appears that the Banga-

lore college is affiliated to the Bangalore

University, and there is no reason to believe

that it was not an approved medical college.

(b) The objection that the transfer is bad

because the appellant had not qualified in a

pre-medical test, conducted either in Madhya

Pradesh or in Bangalore, does not appear to be

well founded. While the rules no doubt contain

a reference to premedical tests, rules 3, 5

and 13 make it clear that the passing of a

pre-medical test is not a pre-requisite for a

transfer. No doubt rule 4 requires that the

application for transfer should say whether

the applicant had appeared for a pre-medical

or similar

436

test in the State from which a transfer is

sought. The omission of the appellant in the

present case to mention this in her applica-

tion may be a defect but, in the absence of

any clear rule to the effect that a pass in a

pre-medical test is an essential condition for

transfer, it cannot be treated as a vital

defect vitiating the transfer.

(c) There is, however, force in the contention

that the transfer in the present case was

violative of the first part of rule 4. This

clearly precludes the consideration of an

application for transfer from a person who had

gained admission to a medical college on

payment of a capitation fee, development fee

or donation. Neither the appellant nor the

State contradicted Dr. Jain's averment in the

writ petition that the appellant had secured

admission in the Bangalore college only on the

basis of such payment. There is, therefore, an

infringement of rule 4-atleast in part-and we

shall proceed to consider the effect of the

same. But before we proceed to do so, we

should like to digress a little to make some

general observations.

From the facts stated earlier, it is not clear how, in

the face of the specific provisions contained in the rules,

the appellant's transfer was considered and sanctioned,

particularly when the application had to be scrutinised by a

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number of authorities: the Bhopal medical college, the

Chairman of the Pre-medical Board referred to in rule 13,

the University of Bhopal and the State Government. It is

difficult to believe that they were not conscious that the

limitations imposed by the rules operated in this case. The

application of the appellant (a copy of which has been

placed before us) contained a bare and simple request for

transfer and nothing more and the authorities did not even

care to call for the details required under the rules before

taking a decision. The respondent has alleged that this was

done by reason of the influence exerted by the appellant's

father but this is not substantiated. All that has been

brought out is that the appellant is a resident of Bhopal

and her father is a doctor practising at Bhopal. In the

circumstances we think that the authorities must have acted

bona fide on considerations of sympathy towards, and the

hardship of, the appellant in pursuing her course of study

for a number of years at distant Bangalore. They must have

thought that their decision would only help the appellant

and harm no one. But the facts of the present case show how

even well-meant decisions, which seem innocuous at the time

they are taken, can rebound in the long run and affect the

interests of others in manner that could not have been even

conceived of earlier. It is,

437

therefore, necessary to emphasise that, in matters of this

type, the authorities should carefully and strictly apply

the relevant rules.

Now reverting to the question as to the impact of this

infringement of the rules on the situation in the present

case, Sri Sachar, appearing for the appellant, puts forward

two aspects for consideration. In the first place, he sub-

mits that the rules relied upon for the respondent are

merely internal guidelines or instructions not having the

force of law and that a deviation therefrom here or there

would not affect the validity of the order accepting the

application for transfer. Sri Sachar may be right in saying

this but unfortunately, both parties and the High Court have

proceeded on the basis that there were "rules" i.e. some

instruments having statutory force. No material has been

placed before us either to support or repel this assumption

and so we will not be justified in treating them to be

otherwise. However, we think that, even if they are viewed

as "rules" they should not be treated as rigid, inflexible

and mandatory, having in mind the context and purpose in

which they are made. These are rules setting out circum-

stances in which the application for transfer will be grant-

ed and deal with a matter primarily concerning the applicant

and the authorities.

The validity of an order for transfer may be challenged

contemporaneously by a third party whose claim for admission

or transfer is superseded by such order but cannot be al-

lowed to be challenged by a third party because he finds, in

retrospect, at a future point of time, that it has affected

his interests as a result of subsequent events. We would,

therefore, hold that the order of the State of Madhya Pra-

desh permitting the transfer of the appellant cannot be

struck down as void. There has been some irregularity but,

in the circumstances in which it was passed, it was one

within the competence of the State Government.

The second answer, furnished on behalf of the appellant

to Dr. Jain's challenge is that Dr. Jain was aware, even as

early as 1987, that in the order of merit of M.B.B.S. candi-

dates the appellant ranked higher than the respondent. Apart

from the fact that this was just a matter of arithmetic, an

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"order of merit" had indeed been published by the University

at the time the medical graduates of 1987 were being consid-

ered for house-jobs. Reference is made in this context to a

chart entitled "Merit list for the selection of House Offi-

cers, Gandhi Medical College, Bhopal, for the year 1988"

placed at p. 68 of the paper book before us- This list is

incomplete but it contains the names, in order of merit, of

58 students who had completed M.B.B.S. in 1987

438

who had, apparently, applied for house jobs in the college.

It sets out their aggregate marks in the M.B.B.S. examina-

tions with certain adjustments and also the effective per-

centage thereof. The appellant's percentage is shown as

59.60 and his rank as 37; Dr. Indu Fotedar is at 44 with a

percentage of 59.04; and Dr. Jain is no. 49 with a percent-

age of 58.50 Sri Sachar invites our attention to the "Rules

for Postgraduation (M.D./M.S. course) in clinical, para

clinical and nonclinical disciplines, in medical colleges in

Madhya Pradesh". These rules provide a scheme whereby (a)

the marks obtained by candidates in the M.B.B.S. examina-

tions (sometimes at different colleges and universities

which have different maxima for the examinations) are to be

standardised to a common maximum; (b) adjusted by giving

certain penalty marks (for example, where a candidate has

made extra attempts in any examination) and bonus marks

(where he has some special distinctions in academics or

extra curricular activities: for example, distinction in a

subject or National Cadet Corps certificates); and (c)

determining the "effective marks" and their percentage. The

process of selection of merit candidates for the post gradu-

ate course is outlined in rules 8.1 to 8.3. They read thus:

"8.1 Merit candidates in clinical subjects

shall be selected from out of those who are

completing their house jobs within that ca-

lender year.

8.2 Candidates under 8.1 shall be selected by

the Dean of the Medical College, strictly on

the basis of merit from amongst the students

passing from that college, on the recommenda-

tion of the college and Hospital Council or

the P.G. Committee of the college.

8.3 The merit list of candidates under 8.1 and

8.2 would be prepared by each Dean of the

College every year and notified on the College

Notice Board. Any objection or representation

received within 10 days of notification would

be considered by the Dean of the College who

shall make modifications, if necessary, after

placing the objection or representation before

the College and Hospital Council or P.G.

Committee."

On the strength of these rules, Sri Sachar contends that the

respondent, not having preferred objections to the merit

list referred to earlier, is now estopped from challenging

the merit list.

439

We find that there is a good deal of confusion about the

relevant facts in this regard. In the High Court, the re-

spondent's case was that he had duly filed his objections to

the merit list of 1989 in July 1989 and well within time.

The list that is relied upon by him is a list published by

the Dean which bears the heading "Particulars of the candi-

dates who have applied for registration in M.D. Radiology

for the year 1989" placed at page 49 of the paper book. It

contains 9 names (including Drs. Insaf, Jain and Fotedar)

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and the details of their period of study and internship. The

last two columns are headed "Effective Marks" and "Effective

Percentage". They are not, however, arranged in order of

merit but are arranged on a different basis. The first four

names are of candidates who had applied for the M.D. course

in Radiology, whereas the others had applied also for admis-

sion to M.D. courses in other subjects. It is on the basis

of this list apparently, that the selections were made and,

in his petition for special leave before us, the appellant

also admitted this position. Sri Sachar, however, contends,

that the earlier list produced by him (p. 68) is the merit

list referred to in the rules and not this one which does

not even purport to be a "merit list".

The merit list of 1988 (p. 68) was clearly one prepared

in the context of selection for house jobs in 1988. The

rules regulating admissions for that purpose have not been

placed before us. We can only guess from the contents and

columns in the list that they apparently run on the same

lines as the rules for admission for M.D. If this be treated

as the merit list referred to in rule 8.3, of the relevant

rules, Dr. Jain is clearly precluded from challenging it

after one year. But rule 8.3 refers to merit list for selec-

tion of candidates for the diploma course being published

every year. None of the parties including the college au-

thorities have been able to clarify whether (apart from the

list at p. 49 of the paper book) any "merit list" for the

year 1989 in respect of admission to M.D. courses, on the

pattern of the list at p. 68, had at all been published by

the Dean of the college. In this context, we should' point

out that the list earlier published (p. 68) contained all

the relevant details for preparation of such a merit list.

There is nothing before us to show that the procedure for

adjustment, standardisation and averaging were not the same

for preparing a merit list for selection of house officers

as for the selection of candidates to the M.D. courses

outlined in rule 8.5 (and this appears to be so from the

adjustment columns in the list at p. 68). The only differ-

ence is that this list is restricted only to the nine candi-

dates seeking admission to the M.D. course in radiology.

Apparently, having regard to the small number of applicants

for the course in question, the authorities merely.

440

prepared a short list containing the relevant extracts

regarding effective marks and percentage from the earlier

list--without calling it a merit list--and made the selec-

tions. In the circumstances, we think that there can be no

practical or legal difficulty in treating the list at p. 49

as the relevant merit list for the present purpose. Learned

counsel for Dr. Jain is, therefore, correct in saying that,

in this view, he could and did lodge his objections within

the time specified in rule 8.3 and he cannot be precluded

from contesting the correctness or validity of the list on

the grounds of delay. On strictly legal considerations,

therefore, the respondent cannot be shut out from raising

his objections at this stage.

But, it seems to us, questions of this nature cannot be

decided on considerations of pure law. Granting that it is

open to Dr. Jain to challenge the merit list, one has to

examine whether there are any limits to the scope of such

challenge on grounds, if not of law, of justice and equity.

Of course, he can challenge the correctness of the order of

merit, he can challenge any errors in the marks taken into

account or the adjustments made thereto, and he can even

challenge the eligibility of any of the candidates for

consideration. But there are abvious limitations to such

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challenge. For example, it would seem difficult to say that

one can challenge the correctness of the marks that one of

the other candidates has obtained in the examinations and

call for the revaluation of some or all of his papers or to

permit a contention that one of the candidates has not been

properly awarded the M.B.B.S. degree and that, therefore,

his application should be ignored. Their having obtained the

marks noted in the list or a degree of a university or

secured a transfer are actual events that have happened.

There may have been some irregularity at some earlier stage

but it does not go to the root of the matter so as to render

the qualification void abinitio capable of being ignored,

without anything more, at any time for any purpose. The

position may be different where a person is claiming under a

bogus degree. The appellant has obtained the degree after a

regular course; the only grievance is that she should not

have been permitted to do part of it in a particular col-

lege. The legality or validity of such qualifications must

be directly challenged and got set aside in independent

proceedings. To permit a collateral attack on them in other

proceedings, as here, will be beset with problems and com-

plications of a far-reaching magnitude. For obvious reasons,

limitations have to be imposed on the grounds available for

such challenge. The need for such circumspection will be

better appreciated if another situation of a similar nature

is considered. Suppose the competition between the two

present contestants had arisen,

441

not, as it has, just two years after the M.B.B.S. degree,

but, say, fifteen years later, when they both apply for a

post in a hospital or Government open to M.B.B.S. graduates.

If, in that situation, it should be contended for Dr. Jain

that the appellant cannot be considered for the post because

her transfer to the Bhopal medical college was bad and,

consequently, that the M.B.B.S degree obtained by her was

not valid, we think the answer to the contention must pat-

ently be in the negative. The need to avoid disturbing

settled issues which affect the life and career of an indi-

vidual after a lapse of time or after the interposition of

further events, as a result of which he has rightly de-

veloped a sense of security, has been emphasised by this

Court in Mudgal v. Singh, [1984] 4 S.C.C. 53 1 relying on

the earlier decisions in Makashi v. Menon, [1982] 2 SCR 69

and Malcolm Lawrence Cecil D'Souza v. Union, [1975] Supp SCR

409. What should be a reasonable period beyond which, or the

intervening developments because of which, such challenge

cannot be permitted must depend on the facts and circum-

stances of each case.

In the present case, there are valid considerations why

Dr. Jain should not be allowed to challenge the merit list

at this point of time. We have referred earlier to the plea

of Dr. Jain that he has challenged the merit list of 1989

within the period of time mentioned in the rules. Technical-

ly, he is right, as we have already held. But if we look at

the position more closely, we find that the precedence of

the appellant over Dr. Jain crystallised as soon as the

M.B.B.S. results were published. We do not know whether any

merit list of the results of the examination were published

or not at that time but it cannot be that Dr. Jain was not

aware that the appellant had got higher percentage of marks

than himself. At any rate, this became clear when the merit

list was published for the house jobs in August 1988. It is

true that the place accorded to the appellant in that list

did not prejudice Dr. Jain in his selection for the house

job. Still, the rules of the university make it clear that

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the aggregate and average marks in the M.B.B.S. course would

also be material for admission to the M.D. course. The merit

list of 1989 is nothing but a reproduction of the merit list

of 1988 confined to a narrower group of students of the same

batch. The latter did show the appellant to have obtained

more marks than Dr. Jain and, in this sense, was adverse to

his interests. The omission of Dr. Jain to challenge the

correctness of the list then lulled the appellant into a

sense of security that the merit list was acceptable to all.

We, therefore, think that Dr. Jain should be barred, on

equitable considerations, from challenging the order of

merit at the present stage.

Another important consideration which prevents us from

giving

442

any relief to Dr. Jain--even if we accept all his conten-

tions-is this. The M.D. course, admission to which is the

bone of controversy, started in August 1989 and is coming to

a close shortly. Though the appellant lost in the High

Court, she was permitted by this Court--though, obviously,

subject to the result of this appeal--to continue attending

the classes for M.D. in Radiology. Now she has almost com-

pleted her course and, to deprive her of her seat at this

stage, apart from irretrievably harming her, will not bene-

fit Dr. Jain who cannot now be admitted against the M.D.

seat of 1989. This again is a development which militates

against the grant of any relief to Dr. Jain.

Before we conclude, we should like to touch upon one

more aspect. The course of events narrated above will show

that Dr. Jain has been the victim, partly, of a lapse on the

part of the medical college authorities in properly applying

the rules governing transfer and, partly, of courts' delay

in disposing of his writ petition and the present appeal. In

the course of the hearing, therefore, we were tempted to

consider whether we should give some relief to Dr. Jain by

directing the authorities to consider his case for admission

to the M.D. course atleast this year. On careful thought,

however, we find it difficult to make any specific direc-

tions or recommendations for a number of reasons. In the

first place, we are told that Dr. Jain has, in the meantime,

undergone and completed a diploma course in Radiology and,

in terms of a rule recently promulgated, is not eligible to

apply for the M.D. course for another three years, even if

he is interested to do so. Secondly, as noted already, the

rules permit admission in M.D. in any year only to candi-

dates who have finished their house jobs in that year and,

Dr. Jain having completed his house job in 1989, may not be

eligible to be considered for admission this year. Thirdly,

if any direction of the above nature is given by us, it will

operate to the prejudice of some other candidate who is

eligible for admission to that course in the normal course.

Fourthly, it would not also have been possible for us-even

if we had come to the conclusion that Dr. Jain and not the

appellant should have been admitted in 1989--to direct the

University to carry forward that vacancy and grant him

admission to it now. We therefore refrain from giving any

directions to the authorities in the matter as had been

mooted in the course of the hearing.

For the reasons above mentioned, we have come to the

conclusion that the appeal should be allowed and the appel-

lant's admission to the M.D. Radiology course 1989-91 should

be upheld. We direct accordingly. No costs.

Y.L. Appeal

allowed.

443

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