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PETITIONER:

STATE OF UTTAR PRADESH AND ORS.

Vs.

RESPONDENT:

DR. ANUPAM GUPTA ETC.

DATE OF JUDGMENT13/02/1992

BENCH:

RAMASWAMY, K.

BENCH:

RAMASWAMY, K.

REDDY, K. JAYACHANDRA (J)

CITATION:

1992 AIR 932 1992 SCR (1) 643

1993 SCC Supl. (1) 594 JT 1992 (4) 422

1992 SCALE (1)332

ACT:

Professional Colleges-Admission to.

U.P. Universities Act, 1973: Section 28(5) & G.O. 4215

dated August 22, 1989-Admission-Medical courses-PG Diploma-

50% marks at entrance examination-Condition precedent.

Practice & Procedure

Professional Colleges-Admission-Vacancies of seats-No

ground for High Court to direct admission of students.

HEADNOTE:

Section 28(5) of the U.P. Universities Act, 1973, as

amended by the Amendment Act of 1980, which came into force

from January 1, 1979 empowered the State Government

necessary with retrospective effect, to regulate by a

notification, the admission to medical and engineering

colleges as well as to courses of instructions and the

number of students therein.

Exercising power under section 28(5) G.O. 4215 dated

August 22, 1989 was issued by the State Government to

enforce junior residency/senior residency and dental

residency scheme in all Government Allopathic Medical

Colleges and affiliated degree colleges and hospitals

prescribing the eligibility for selection/examination and

fixation of seats of various degrees and diploma courses

therein. The procedure for selection of the candidates for

the scheme was prescribed by clause 3 and sub-clause (e)

thereof provided that residents be selected departmentwise

in the colleges under the said scheme and registration shall

take place on the basis of merit-cum-option, merit being

ascertained on the basis of 50% of marks obtained in the

competitive examination and 50% of the total marks obtained

in M.B.B.S. examination. This scheme was further amended by

a notification No. 8390 dated October 9, 1990.

In the Press Note issued inviting application for the

entrance ex-

644

amination of the year 1990, no mention was made that the

candidate shall secure the minimum 50% of the marks in the

entrance examination to be held on May 27, 1990. But,

however, in the subsequent press note issued before holding

of the examination on September 30, 1990, it was stated that

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as per G.O. No. 1259 dated February 20, 1990, the

eligibility criteria for admission to the postgraduate

courses shall be for general candidates a minimum of 50%

marks and for the candidates of the reserved category

(Scheduled Castes and Scheduled Tribes) a minimum of 40%

marks secured at P.G. M.E.E. Candidates belonging to SC/ST

shall also be given weightage of 1.65 % of the maximum marks

of the competitive entrance examination (i.e.50 marks) for

ranking them in the merit lists for admission to the

postgraduate course.

The respondents in the appeals had completed their

internship. They appeared for the Post Graduate Medical

Entrance Examination on September 30, 1990 for admission

into the postgraduate degree and diploma courses in

specialities. The respondents were denied admission in the

post-graduate course due to their failure to secure the

minimum 50% qualifying marks in the Entrance Examinations.

They filed writ petitions in the High Court assailing

the denial thereof, as offending Articles 14,15<1> and 29(2)

of the Constitution. The High Court allowed the writ

petition and directed the State Government to grant

admission in the Allahabad and Agra Medical Colleges in the

Gynaecology and Obsterics degree courses to which they had

given their options. The High court upheld the validity of

the prescription of 50% of the minimum marks as eligibility

criteria. But on the finding that there are vacant seats

available for admission, directed those seats to be given to

the respondents.

The State filed the appeals in this Court. On behalf

of the respondents it was contended that the initial press

note inviting applications for the entrances examination did

not say that 50% minimum marks in the entrance examination

as a condition for admission into the postgraduation, and

therefore denial of admission for non-securing 50% cut off

in entrance examination was illegal.

On behalf of the State it was contended that this

contention was not raised before the High Court, and should

be disallowed. It was further contended that the course

started from October 30, 1990 and in terms of

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the orders of this Court it would be deemed to have been

commenced from May 2, 1990, the directions given in the

impugned judgments for admission after more than a year,

were illegal.

Allowing the appeals, this Court,

HELD : 1. Though the first press note omitted, before

conducting examination the second press note specifically

stated that securing minimum of 50% of the marks in the

entrance examination was a condition as eligibility for

admission. What paragraph 3(e) of the first notification

postulates in the computation of 50% of the marks secured

in the entrance examination and 50% of the marks secured at

the M.B.B.S. qualifying examination to determine the

eligibility for admission i.e. 50% total and also in the

order of merit among the candidates that appeared in the

examination. The letter dated February 20, 1990 does not

appear to have been published in the gazette. [654C-D]

2. Undoubtedly, the letter dated February 20, 1990 and

the prescription of qualifications laid down therein are not

notified in terms of Section 28(5) of the Act. So they may

be considered to be administrative instructions. The second

press note, in pursuance of which the entrance examinations

were conducted, did mention them, which came into force from

August 1, 1987. [654G-H]

3. It is settled law that administrative instructions

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would fill in the yawning gaps in the statutory rules.

[654H]

4. The statutory rules in paragraph 8(f) of the

notification dated October 9, 1990 which was given

retrospective effect from August 1, 1987 envisages 50% cut

off marks, Para 3(e) of first notification dated August 22,

1989 merely provides the procedure for calculating the marks

to determine the inter-se order of merit among all the

candidates and nothing more. The instructions issued in the

letter dated February 20, 1990, therefore amplifies

prescribing the eligibility criteria among the candidates

who have taken entrance examination. The prescription of

the minimum of 50% marks as eligibility criteria would be

applicable to the respondents. [654H; 655A-B]

5. The instructions dated February 20, 1990 are legal,

valid and they would supplement the statutory rules. The

candidates who fulfilled that

646

qualification alone would become eligible for admission.

[655C]

6. The prescription of 40% to SCs and STs candidates

obviously was done under Articles 14, 15(1) and (4) and 46

together with 1.65% of total entrance marks i.e. 50 as

weightage to them as a measure of social justice to accord

them equality of opportunity of admission in post-graduate

courses. It is neither a source, nor an analogy to fall

back upon or to rely, as wrongly applied by the High Court,

as a criteria to select general candidates that secured

below 50% of the marks. [655D-E]

7. Securing 50% marks at the entrance examination is

one of the conditions precedent to become eligible for

admission into the postgraduate degree and diploma courses.

[655E-F]

8. Admission after more than a year, is illegal. To

maintain excellence in the academic courses, the delay

defeats the claim for admission, though posts are vacant.

[655H]

9. Exercise of equity jurisdiction and prescription of

minimum cut off are mutually incompatible and counter

productive. It would frustrate the excellence. [656D]

10. To maintain excellence the course have to be

commenced on schedule and to be completed within the

schedule, so that the students would have full opportunity

to study full course to meet their excellence and come at

par excellence. Admission in the midstream would disturb

the courses and also works as handicap to the candidates

themselves to achieve excellence. Considering from this

pragmatic point of view vacancies of the seats would not be

taken as a ground to give admission and directions by the

High Court to admit the candidates into those vacant seats

cannot be sustained. [656E-F]

Pradeep Jain & Ors. v. Union of India & Ors., [1984] 3

SCC 654; Dr.Dinesh Kumar & Ors. v. Motilal Nehru Medical

College, Allahabad & Ors., [1987] 4 SCC 459; Dr. Ajay Kumar

Agarwal & Ors., v. State of U.P. & Ors., [1991] 1 SCC 636;

Dr. Ambesh Kumar v. Principal, LLRM Medical College, Meerut

JUDGMENT:

& Ors., AIR 1988 SC 1812, referred to.

&

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 782-83

and 781 of 1992.

647

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From the Judgment and Order dated 24.8.1991 and

26.8.1991 of the Allahabad High Court in W.P. Nos. 2970 and

3893 of 1991 and C.M.W.P. No. 11812 of 1991.

Yogeshwar Prasad and R.B. Misra for the Appellants.

Satish Chandra, Atul Sharma, E.C. Agrawala, Ananat

Palli, Ms. Rina Aggarwal, Ms. P. Kak, Rajiv Dhawan and Ms.

Kamini Jaiswal for the Respondents.

The Judgment of the Court was delivered by

K. RAMASWAMY, J. Special leave granted.

As common questions of facts and law arise for

decision, these appeals are disposed of by a common

judgment. Dr. Anupam Gupta, Dr. (Km.) Renu Agarwal and Dr.

Sanjay Agarwal passed their M.B.B.S. course and also

completed internship. The first two appeared for the Post

Graduate Medical Entrance Examination (P.G.M.E.E.) held by

Lucknow University on September 30, 1990 for admission into

postgraduate degree and diploma courses in specialities.

Dr. Sanjay Agarwal had appeared for the year 1991. Dr.

Anupam Gupta secured in his qualifying M.B.B.S. examination

61.8% and 41.6% in Entrance examination. Dr. (Km.) Renu

Agarwal secured 65% in the M.B.B.S. qualifying examination

and 49.1% in Entrance examination. Dr. Sanjay Agarwal

secured 53.60 in qualifying M.B.B.S. examination and 46.6%

in Entrance examination. They were denied admission in

postgraduate courses due to their failure to secure minimum

50% qualifying marks in the Entrance examination. Assailing

the denial thereof, offending Articles 14, 15(1) and 29(2)

of the Constitution they filed the writ petitions. In the

case of first two Doctors, by a common judgment dated August

24, 1991, the High Court allowed the writ petitions and

directed to give them admission in Allahabad and Agra

Medical College in the Gynaecology and Obstristics degree

course to which they had given their options. The High

Court upheld the validity of the prescription of 50% of the

minimum marks as eligibility criteria. But on the finding

that there are two vacant seats available for admission,

directed those seats be given them. Following this ratio Dr.

Sanjay Agarwal was directed to be admitted in the Post

Graduate Degree Course in Anesthesia in Gorakhpur Medical

College in his writ petition. The State filed the appeals

against these judgments.

648

[Section 28(5) of the U.P. Universities Act 10 of 1973,

as amended by the Act 15 of 1980, the later came into force

from January 1, 1979,] for short `the Act' provides that:

"Notwithstanding anything contained in any other

provisions of this Act, admission to medical and

engineering colleges and to course of instruction

for degrees in education of Ayurvedic and Unani

Systems of medicine (including the number of

students to be admitted), shall be regulated by

such orders (which if necessary may be with

retrospective effect, but not effective prior to

January 1, 1979) as the State Government may, by

notification, make in that behalf:

Provided that no order regulating admissions under

this sub-section shall be inconsistent with the

rights of miniorities in the matter of establishing

and administering educational institutions of their

choice."

The non-obstenti clause diffuses the effect of any

inconsistent law in the Act and empowers the State Govt., if

necessary with retrospective effect, to regulate by a

notification, the admission to medical and engineering

colleges as well as to courses of instructions and the

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number of students therein.

In exercise of the power under Sub-S. 5 of S. 28, G.O.

4215 dated August 22, 1989 was issued by the State Govt. to

enforce junior residency/senior residency and dental

residency scheme in all Govt. Allopathic Medical Colleges

and affiliated degree colleges and hospitals prescribing the

eligibility for selection/examination and fixation of seats

of various degrees and diploma courses therein. Clause 3

prescibes the procedure for selection of the candidates for

the aforesaid scheme. Clause 3 (e) is relevant which reads

thus:

"The residents shall be selected departmentwise in

the colleges under the said scheme and their

registration shall take place on the basis of

merit-cum-option. The merit shall be ascertained

on the basis of 50% of marks obtained in the

competitive examination and 50% of the total marks

obtained in M.B.B.S examination (50:50)."

649

The competitive examination shall start with new batch

for 75% seats in the institutions and the eligibility

criteria was prescribed in paragraph 4. The details whereof

are not relevant for the purpose of this case. This was

further amended by a notification No. 8390 dated October 9,

1990. It was stated therein that rulings of this court;

rules of Indian Medical Council and the recommendation of

the Committee constituted to reform P.G. Education/Training

in All Govt. Allopathic Medical Colleges and Dental College

of the State necessitated to prescribe the procedure for

fixation of the seats in various degrees and diploma course

eligibility and the marks. The scheme came into effect from

August 1, 1987. In Paragraph 8 (f) it has been stated that

the residents shall be selected departmentwise in the

colleges under such scheme and the registration shall take

place on the basis of merit-cum-option. The merit shall be

ascertained on the basis of the marks obtained in the

"competitive examination". The minimum qualifications for

admission were prescribed in clause (g), the details of

which are not material for the purpose of this case. In the

Press Note issued inviting applications for the entrance

examination of the year 1990, no mention was made that the

candidate shall secure the minimum 50% of the marks in the

entrance examination to be held on May 27, 1990. But,

however, in the subsequent press note issued obviously

before holding of the examination on September 30, 1990, it

was stated that as per G.O. No. 1259(it is only a letter)

dated February 20, 1990, the eligibility criteria for

admission to the above postgraduate courses shall be for

general candidates a minimum of 50% marks and for the

candidates of the reserved category (Scheduled Castes and

Scheduled Tribes) a minimum of 40% marks secured at

P.G.M.E.E. Candidates belonging to SC/ST shall also be given

weightage of 1.65% of the maximum marks of the competitive

entrance examination, (i.e. 50 marks) for ranking them in

the merit list for admission to the postgraduate courses.

Therein it was further stated that:

"1. For admission to postgraduate courses, the

competitive examination shall be organised on the

pattern of All India Institute of Medical Science

or University College of Medical Science.

2. This examination shall have 100% objective

type questions. The eligibility criteria for

admission to postgraduate courses shall be 50%

minimum qualifying marks for candidates of general

category and 40% minimum qualifying marks for can-

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650

didates of reserved categories (SC/ST).

3. Candidates belonging to scheduled caste and

scheduled tribe shall be given an additional

weightage of 1.65% of the total marks.

4. This examination shall be held in the month of

April 1990 on one and the same day for all the

medical colleges but with different sets of

question papers. For institutional seats of

colleges, candidates of the same college shall be

eligible.

5. Candidates who shall be completing their

internship by December 1990 shall be eligible to

appear in this examination."

It is, thus, clear that the Govt. by statutory

notifications dated August 20, 1989 and October 9, 1990

prescribed entrance examination and prescription of 50%

marks therein as a criteria for admission into P.G. degree

and diploma courses in medicine and in the later

notification 50% as a condition precedent. In the letter

dated Feb. 20, 1990 prescribed as minimum 50% to the general

candidates and 40% to SCs/STs together with weightage of

1.65% of the maximum marks i.e. 50 in total.

In Pradeep Jain & Ors. v. Union of India & Ors., [1984]

3 SCC 654. This court laid emphasis for admission of the

candidates into medical colleges on merit to meet excellence

in the medical services thus :

"Anyone anywhere, humble or high, agrestic or

urban, man or woman, whatever be his language or

religion, place of birth or residence, is entitled

to be afforded equal chance for admission to any

secular educational course for cultural growth,

training facility, speciality or employment. It

would run counter to the basic principle of

equality before the law and equal protection of the

law if a citizen by reason of his residence in

State A, which ordinarily in the commonality of

cases, would be the result of his birth in a place

situate within that State, should have opportunity

for education or advancement which is denied to

another citizen because he happens to be resident

in State B. It is axiomatic that talent is not the

monopoly of the residents of any particular State;

it is more or less evenly distributed and given

proper opportunity and environment,

651

everyone has a prospect of rising to the peak.

What is necessary is equality of opportunity and

that cannot be made dependent upon where a citizen

resides. If every citizen is afforded equal

opportunity, genetically and environmentally, to

develop his potential, he will be able in his own

way to manifest his faculties fully leading to all

round improvement in excellence. The philosophy

and pragmatism of universal excellence through

equality of opportunity for education and

advancement across the nation in part of our

founding faith and constitutional creed. The

effort must, therefore, always be to select the

best and most meritorious students for admission to

technical institutions and medical colleges by

providing equal opportunity to all citizens in the

country and no citizen can legitimately, without

serious detriment to the unity and integrity of the

nation, be regarded as an outsider in our

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constitutional set-up. Moreover, it would be

against national interest to admit in medical

colleges or other institutions giving instruction

in specialities, less meritorious students when

more meritorious students are available, simply

because the former are permanent residents or

residents for a certain number of years in the

State while the latter are not, though both

categories are citizens of India. Exclusion of

more meritorious students on the ground that they

are not resident within the State would be likely

to promote substandard candidates and bring about

fall in medical competence, injurious in the long

run to the very region. "It is no blessing to

inflict quacks and medical midgets on people by

wholesale sacrifice of talent at the threshold.

Nor can the very best be rejected from admission

because that will be a national loss and the

interests of no region can be higher than those of

the nation." The primary consideration in

selection of candidates for admission to the

medical colleges must, therefore, be merit. The

object of any rules which admissions to the medical

colleges must be to secure the best and most

meritorious students."

"In Dr. Dinesh Kumar & Ors. v. Motilal Nehru Medical

College, Allahabad & Ors., [1937] 4 SCC 459 at page 462

paragraph 6 this court laid time table for conducting

entrance examination in P.G. courses for All

652

India Quota of 25%. The court held thus :

"What remains now to be dealt with is the

finalisation of Programme relating to the selection

examination. As already decided the selection

examination shall be conducted by the All India

Institute of Medical Sciences, New Delhi. The

announcement for holding of the selection

examination shall be made on October 1 of every

year and a full four weeks' time would be made

available to candidates for making their

applications. After the applications are received

not later than six weeks from October 1, the same

would be scrutinised and duly processed and admit

cards would be issued. Examination shall be held

on the second Sunday of January. The result of the

examination shall be announced within four weeks

from holding of the examination. Admission shall

commence two weeks after the declaration of

results. The last date for taking admission shall

be six weeks from the date of the announcement of

results but the Head of every institution shall be

entitled to condone delay up to seven days for

reasons shown and grounds recorded in special

cases. The courses of study shall commence in

every institution providing such study throughout

the country from May 2. Notification announcing

examination, publication of results and allotment

of place of admission (keeping preference in view

and our directions regarding preference of

candidates) shall be published in two successive

issues of one national paper in English having

large circulation in every State and at least in

two local papers in the language of the State as

quickly as possible."

In Dr. Ajay Kumar Agarwal & Ors. v. State of U.P. &

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Ors., [1991] 1 SCC 636 while approving the procedure laid

down in Dr. Dinesh Kumar's case this court held that

technicality in the issuance of the notification and non-

compliance of statutory notificaiton in terms of s.28(5) of

the Act would not stand in the way, stating thus, "There may

be some force in the submission of the learned counsel, but

we do not think in the present facts and setting of events

and in particular for meeting the problem which has arisen

we need approve a technical stand. "In paragraph 11 this

court further stated, "It is not disputed that in U.P. the

prevailing practice was 50% test for allowing postgraduate

studies to Doctors with M.B.B.S.

653

qualification....... We are of the view that it is in

general interest that the 50% cut off base as has been

adopted should be sustained. "It is, therefore, clear that

technicality of non-compliance of s.28(5) in issuing the

letter dated February 20, 1990 was nailed past and approved

the prescription of 50% cut off minimum marks as

eligibility for admission into P.G. course in medicine for

1990, though plausible to countenance the contention

appeared to be of securing 50% in qualifying examinations in

M.B.B.S. course. But the fact is that U.P. Govt., in fact,

conducted entrance examination in 1990 and adopted 50% cut

off as minimum marks.

In Dr. Ambesh Kumar v. Principal, LLRM Medical College,

Meerut & Ors., [1987] 1 SCR 661 this court upheld the

Government's power under Art. 162 and held that where the

number of seats for admission to various postgraduate

courses both degree and diploma are limited and large number

of candidates undoubtedly apply for admission to those

courses of study, an order laying down qualifications for

candidates to be eligible for being considered for selection

for admission to the said courses on the basis of merit

specified by regulation cannot be said to be in conflict

with the regulations of All India Medical Council Act. It

does not encroach upon the standard prescribed by the

statutory regulations. Laying down further qualifications

of eligibility promotes and farthers the standard in the

institutions. Thus it could be seen that this court

consistently laid down the criteria for conducting entrance

examination to the postgraduate degree and diploma courses

in Medicine and the best among the talented candidates would

be eligible for admission. 50% cut off marks was also held

to be valid to achieve excellence in postgraduate

speciality. Accordingly we uphold the prescription of 50%

cut off marks to general candidates and 40% to SCs and STs

together with 1.65% weightage of total marks i.e. 50 marks

in total in entrance examination as constitutional and

valid.

Dr. Rajiv Dhavan and Sri Satish Chandra, learned senior

counsel for the Doctors, in fairness, also did not dispute

that prescription of 50% minimum marks as eligibility

criteria to seek admission into the postgraduate courses to

be in any way arbitrary. However, Dr. Dhawan contended that

the initial press note inviting applications for the

entrance examination did not say that 50% minimum marks in

the entrance examination as a condition for admission into

the postgraduation. G.O. 4215 only mentions 50% of

qualifying M.B.B.S. marks and not 50% in entrance as

654

eligibility. Therefore, denial of admission for non-

securing 50% cut off in entrance examination is illegal.

The doctrine of promissory estoppel was also pressed into

service. It is further contended that the Doctors satisfied

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the criteria laid in G.O. 4215. The High Court's order was

justified on this base. Shri Yogeshwar Prasad, learned

senior counsel for the State countered that this contention

was not raised in the High Court and for the first time it

cannot be raised. We find no force in the contention of the

State. Though it was never raised, nor argued, since it is

a pure question of law arises from record, it can be gone

into. But on careful consideration of the record, we find

no force in the Doctor's contention. Though the first press

note omitted, before conducting examination the second press

note specifically stated that securing minimum of 50% of the

marks in the entrance examination was a condition as

eligibility for admission. What paragraph 3(e) of the first

notification postulates is the computation of 50% of the

marks secured in the entrance examination of 50% of the

marks secured at the M.B.B.S. qualifying examination to

determine the eligibility for admission i.e. 50% total and

also in the order of merit among the candidates that

appeared in the examination. The letter dated Feb. 20, 1990

does not appear to have been published in the gazette. We

refrain to give acceptance to the respondent's contentions,

as was laid in Dr. Sanjay Kumar's case, for the scheme and

procedure laid by this court was adopted to have uniformity

of institutional 75% candidates too. The technicality would

not be permitted to outweigh the salutory scheme in the

larger public interest. The contention of Shri Satish

Chandra that merit-cum-option is the criteria and no

criteria to determine 50% of the minimum marks was

prescribed in paragraph 8(f) of the second G.O.

therefore,procedure prescribed in paragraph 3(e) of the

first G.O. 4215 should be followed and in calculating the

candidates securing 50% cut off the marks would be eligible

for admission is also devoid of force. The second G.O.

expressly mentions that 50% minimum in entrance examination

is a must for admission in postgraduate courses.

Undoubtedly, the letter dated February 20, 1990 and the

prescription of qualification laid down therein are not

notified in terms of s.28(5) of the Act. So they may be

considered to be administrative instructions. The second

press note, in pursuance of which the entrance examinations

were conducted, did mention them, which came into force from

August 1, 1987. It is settled law that administrative

instructions would fill in the yawning gaps in the statutory

rules. The statutory rules in

655

paragraph 8(f) of the notification dated Oct. 9, 1990 which

was given retrospective effect from August 1, 1987 envisages

50% cut off marks. Para 3(e) of first notification dated

August 22, 1989 merely provides the procedure for

calculating the marks to determine the inter-se order of

merit among all the candidates and nothing more. The

instructions issued in the letter dated February 20, 1990,

therefore amplifies prescribing the eligibility criteria

among the candidates who have taken entrance examination.

The prescription of the minimum of 50% marks as eligibility

criteria would be applicable to the respondents. Fairly,

the respondents had not disputed before us that the

instructions in the letter dated Feb. 20, 1990 were issued

much earlier to the date of holding of the examination and

as notified in the second press note. Therefore, the

instruction dated Feb. 20, 1990 are legal, valid and they

would supplement the statutory rules. We hold that the

candidates who fulfilled that qualification alone would

become eligible for admission. The learned counsel in

fairness conceded that the prescription of minimum marks is

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valid. The prescription of 40% to SCs and STs candidates

obviously was done under Arts. 14, 15 (1) and (4) and 46

together with 1.65% of total entrance marks i.e. 50 as

weightage to them as a measure of social justice to accord

them equality of opportunity of admission in postgraduate

courses. It is neither a source, nor an analogy to fall

back upon or to rely, as wrongly applied by the High Court,

as a criteria to select general candidates that secured

below 50% of the marks.

Accordingly we hold that securing 50% marks at the

entrance examination is one of the conditions precedent to

become eligible for admission into the postgraduate degree

and diploma courses. This is also consistent with the view

expressed by this court in Dr. Ajay Kumar Agarwal's case.

In the view we refrain to go into whether there actually

exist vacant seats (if need be we would decide/get decided

and suitable directions would follow).

It is next contended by Sri Yogeshwar Prasad that the

courses were started from October 30, 1990 and in terms of

the orders of this court it shall be deemed to have been

commenced from May 2, 1990, the direction as given in the

impugned judgements for admission after more than a year, is

illegal. To maintain excellence in the academic courses,

the delay defeats the claim for admission, though posts are

vacant. In Pramod Kumar Joshi v. Medical Council of India,

Writ Petition No. 1154 of 1990 dated February

656

19, 1991 this court held that the course for the year 1991

is almost completed and it would be proper to allow

admission belatedly. In Dr. Subodh Nautial v. State of

U.P., (Writ Petition No. 1215 of 1990 dated January 10,

1991) there is a delay of four months in giving admission,

and this court held that, "even according to Mr. Pandey the

course has started in September for the session. This is

technical course and to admit a student four months after

the commencement would not at all be correct."

Dr. Dhawan placed reliance on Jeevak Almast v. Union of

India & Ors., AIR 1988 SC 1812 wherein there was flux in

selection of the candidates for M.B.B.S. course on all India

basis and large number of vacancies left unfilled. Under

these circumstances this court, instead of allowing them to

go waste, directed to maintain A list and B list and the

direction was given to admit the candidates in A list who

secured on merit and thereafter to admit in the order of

merit from less meritorious candidates in the B list. That

peculiar situation would not help to the respondents herein

in postgraduate specialised courses. That was for M.B.B.S.

course arose in the peculiar situation and does not afford

as a precedent. Exercise of equity jurisdiction and

prescription of minimum cut of are mutually incompatible and

counter productive. It would frustrated the excellence.

Considering from this point of view, to maintain

excellence the courses have to be commenced on schedule and

to be completed within the schedule, so that the students

would have full opportunity to study full course to reach

their excellence and come at par excellence. Admission in

the midstream would disturb the courses and also works as

handicap to the candidates themselves to achieve excellence.

Considering from this pragmatic point of view we are of the

considered opinion that vacancies of the seats would not be

taken as a ground to give admission and direction by the

High Court to admit the candidates into those vacant seats

cannot be sustained.

Accordingly, the appeals are allowed and writ petitions

stand dismissed, but in the circumstances without costs.

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S.B. Appeals allowed.

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