Decided on February 26,1993

Surinder Koul Appellant
STATE OF JANDK Respondents

Referred Judgements :-



V.K.GUPTA, J. - (1.)NOTICE of show -cause was issued to the respondents on 20 Jan. 1993. After the objections were filed on 3rd Feb. 1993, the parties agreed that this petition could be disposed of finally at the motion hearing stage without formally admitting it. It is on the basis of this agreement between the parties that this petition is being disposed of finally at this stage without being formally admitted to hearing.
(2.)THE petitioner passed MBBS, Final Professional Examination Part -II in the year 1987. He was on that basis eligible and qualified for selection to the Post Graduate Course of M. S. Entrance Examination whereof was conducted by the Competent Authority, Entrance Examinations, J&K. Govt. Jammu. In fact Notification No. 2/PG/CAEE of 1992 dated 24 April 1992 was issued by the Competent Authority Entrance Examinations whereby applications were invited from eligible candidates for admission to entrance test for the various post graduate courses in the Govt. Medical Colleges at Jammu and Srinagar. The last date for submission of the applications forms as per this Notification was 27 July 1992. An information brochure with regard to this entrance examination was also issued by the competent authority. In this Brochure, "eligible candidates" were defined to mean the candidates who fulfill the eligibility requirements as laid down, and "incomplete form" meant the form which was lacking in any documentary proof or was wrongly filled or gave incomplete or false information of any kind. Clause 46 of the Information Brochure contained a stipulation that a candidate with more than two failures in MBBS was not eligible for admission to the Post Graduate MD/MS/Diploma Course. According to clause 6.7 certificate from the concerned University indicating numbers of attempts in which the candidate had cleared various professional examinations was required to be attached along with application form to be submitted by the candidate. An application form which was incomplete, as per the definition given above, viz., which inter -alia was lacking in any documentary proof, was as per clause 8 2 of the Information Brochure was to be summarily rejected. In fact the crisp and clear wording of clause 8.2 may be reproduced below: -
"8.2. incomplete application forms shall be summarily rejected". In pursuance of the aforesaid Notification accordingly, the petitioner submitted his application form for admission to M. S. Course in General Surgery. It is the admitted case if the parties that the petitioners application form was not accompanied by any documentary proof whatsoever indicating the number of attempts in which the petitioner had passed his various professional examinations. It is also the admitted case of the parties that till the last date for submission of the application form i.e. July 27,1992, the petitioner had not submitted such a certificate, even though he was required to do so in terms of the clear requirement for this purpose contained in clause 6.7 of the Information Brochure. As per clause 8,2, as noticed above, read with the definition part of the Information Brochure, the petitioners application form was required to be summarily rejected, la fact on Oct. 13, 1992, the Competent Authority issued a Notification whereby all the concerned people were informed that the application forms of the persons mentioned in the Notification had been rejected for the reasons shown against each one of them. Various categories and classes of persons were mentioned in this Notification whose application forms were rejected for a varieties of reasons, ranging from being those candidates who had more than two failures, to those candidates who had not attached the requisite certificates along with the application forms. Undoubtedly and admittedly, the petitioners name did not figure in this Notification which meant that till the date of issuance of this notification i.e, Oct. 13, 1992, the petitioners application form was not rejected, even though he had not submitted the requisite certificate of attempts, as was required under clause 6.7 of the information brochure. Not only that, when the written entrance test actually commenced on 18 Oct. 1992, the petitioner was issued the "identification card" and the "admit card". In both these cards, the petitioner is shown to have been provisionally allowed to appear in the entrance examination and this provisional permission is shown to have been granted on Oct. 16, 1992 itself. Not only that, based on the aforesaid provisional permission and on the strength of aforesaid "identification card" and "admit card", the petitioner was allowed to take entrance examination, which he actually took. The entrance examination was over and yet the petitioner did not submit the requisite certificate about the attempts. It was only on 23rd Dec. 1992, t hat the certificate of attempts was actually and in fact submitted by the petitioner and received in the office of the competent authority. On Jan. 11, 1993, the result of successful candidates was notified by the competent authority wherein names of the candidates, who had succeeded in obtaining admission in various courses, appeared. Admittedly the petitioners name did not find a place in this list of successful candidates. Because the petitioner failed to notice his name in this list, he made enquiries from the respondents and was told that he was not selected because he was not eligible for selection on the basis of his not having submitted attempts certificate" in time. The refusal on the part of respondents to grant admission to the petitioner brought him to this court for seeking the relief of writ of mandamus for commanding and directing the respondents to declare the result of the petitioner on the basis of the entrance examination taken by him in Oct. 1992 under Roll No. 63119 in the Specialty of General Surgery and upon declaration of such results to further command and direct the respondents to select him in the said Post -graduate Course and allocate him in Medical College, Jammu

(3.)THE stand and defense which the respondents have raised in answer to the show -cause notice is reflected in the reply filed by the competent authority, respondent No. 2 in the petition supported by the affidavit of Mr. B. A. Shah, Registrar, Competent Authority, Entrance Examinations J&K Jammu. The submissions of the respondents are that the entrance examination commenced on Oct. 18, 1992, the petitioner was required to produce the "attempts certificate" by or before Oct. 26, 1992 and as per his own admission, he produced the certificate on 23rd Dec. 1992. It is admitted that the result was declared on Jan. 11, 1993, but because the petitioner had failed to produce the certificate, as undertaken, by him by or before 26th Oct. 1992, he was not entitled to be included in the list of successful candidates. Reliance is placed by the respondents upon an affidavit filed by the petitioner on Oct. 16, 1992 before the Competent Authority wherein he actually undertook to produce the "attempts certificate" within one week commencing from 19 Oct. 1992.
In the specialty of General Surgery, the last candidate selected had obtained 171 marks in the entrance examination. Even though the petitioners result had not been declared, respondents have made a factual disclosure in the court, by making a statement at the bar that the petitioner had in fact obtained 180 marks in the entrance examination. It will be noticed that even though the last candidate selected in M. S. Surgery had obtained 171 marks, as many as seven candidates having lesser than 180 marks had also been admitted in this course. Undoubtedly therefore, if the petitioner is held eligible, the consequence of his getting selection and gaining admission is inevitable.

Mr. D. C. Raina, learned counsel appearing for the respondents submitted that because of the clear stipulation in the Notification dated April 24 1992 that the last date for submission of the application forms was 27 July 1992, read with the terms and conditions of the Information Brochure, v it was incumbent and obligatory upon the petitioner to have produced the "attempts certificate" before the last date, i.e; 27 July 1992 and his failure to do so would entail rejection of his application form. Mr. Raina further submitted that, in any event, the petitioner had himself admitted and undertaken to produce the "attempts certificate" before Oct. 26, 1992 and because, once again he did not stick to his undertaking, he was not entitled to any advantage. In support of his aforesaid submission, Mr. Raina relied upon a Division Bench Judgment of Madhya Pradesh High Court in the case of Chandra Kant vs. Madhya Pradesh public service Commission and Ors. Reported in AIR 1982 M. P. 104. He also relied upon a Single Bench judgment of this court to the case of Anjum Ara vs. State of J&K. & Ors -reported in 1986 KLJ, 539. There is absolutely no doubt that the language used in the Notification dated 24 April 1992 and in the information brochure was most un -ambiguous, un -equivocal and categoric; 1 and did not admit of any confusion or doubt. There is thus no dispute whatsoever that, if one went strictly by the letter and spirit of the Notification and the Informa -4ion Brochure, the application form of the petitioner ought to have been straightway rejected and the petitioner consequentially deprived of taking entrance examination. It was incumbent upon the petitioner to have enclosed with his application form the "attempts certificate" and this he ought to have done before July 27, 1992, the last date for the receipt of the application forms. The relevant clauses of the Information Brochure noticed above, left no option with the respondents, but to reject his application form, the same being incomplete. The petitioner would have had no legitimate grievances or complaint, if his form had thus been rejected. Had he approached this court at that point of time, he surely would have been denied any relief, without any doubt whatsoever. That however, was not to be. For the reasons best known to respondents, and more importantly for the reasons totally un -explained either in their Return or in the submissions at the bar, the respondents acquiesced in entertaining the petitioners "incomplete form". They not only entertained the "incomplete form", but when the time come for its scrutiny and when in fact a Notification was issued on Oct. 13, 1992, informing the public at large about the rejection of candidature on a numbers of grounds, they chose not to reject the petitioners application form. Till Oct. 13, 1992, therefore, the position, which existed, was that the petitioners application form had admittedly not been rejected. The respondents did not stop there. The Entrance Examination was scheduled to be held on Oct. 18, 1992, the date when it actually also commenced. On Oct. 16, 1992, the respondents allowed the petitioner to take the examination starting from Oct. 18, 1992, even though provisionally and to enable him to do so, issued him the "identification card" and the "admit card". It was because of the facilities granted and extended by the respondents and it was because of the explicit acquiesce aces of the respondents and only on the basis of courtesy shown by them to the petitioner, that he was able to take the examination. Till Oct. 16, 1992, when he was provisionally allowed to appear in the examination, no strings were attached to this provisional admission. Even if there were strings, riders of conditions, perhaps these were not enforceable because, once the respondents allowed the dead -Hue of July 27, 1992 to expire without rejecting the petitioners application form and once they did not specifically, alter due application of mind choose to reject his application form as was dons in the case of large number of other candidates vide Notification dated 13 Oct. 1992, they could not be allowed to back -track and turn round and refuse to accommodate the petitioner any further. It was because of their own act of commission that they allowed the petitioner to take the examination and even though the petitioner had undertaken to give "attempts certificate" before Oct. 26, 1992, his not actually giving it would not have made any difference. Not until the result had actually been declared. Yes, had the result been declared without the petitioner having submitted the "attempts certificate", that without the respondents being in possession of the same, surely no one could have at that time been permitted to accuse the respondents of not treating the petitioner well. Once the respondents allowed the petitioner provisional permission, allowed him to take examination and also allowed him time till Oct 26, 1992, they could not be permitted to fix any deadline of their own, either on arbitrary or imaginary bases. Either the application form would have been rejected, straightway and on the expiry of 27th July 1992 or respondents acquiesced in the petitioner being allowed to take examination and if, therefore, they acquiesced him in doing so, they had to take this acquiesce to its logical conclusion. The logical conclusion, after the examination had been taken, surely would have been the culmination of the examination process, viz, the declaration of the result. Admittedly the petitioner did not submit the "attempts certificate" before 26 Oct. 1992, as was admittedly undertaken by him. Had the respondents rejected the petitioners case for consideration on 26 Oct. 1992, and on being communicated this rejection, had the petitioner approached this court at that point of time also, surely a right had stood vested in him to seek the logical culmination of the examination process and I have no doubt in my mind that this court would have come to the aid of the petitioner at that time also. The reason simply is that, a right had steed vested in the petitioner after 27 July 1992 and that right could not have been taken away by any imaginary or arbitrary self fixing of an extended date, especially after he had been allowed to take examination. The two judgments of Madhya Pradesh High Court and of this court cited by Mr. Raina are of no help whatsoever to him because, both deal with entirely different and distinguishable subjects. Whereas the Madhya Pradesh High Court was dealing with a case of non -possession of the requisite qualification as on the last date of submission of application form, this court in Anjum Ara a case was dealing with the case of non -submission of a certificate belonging to a Reserved category before the last date of receipt of application forms and rejection of the form on this basis The legal prepositions laid down in both these judgments are un -exceptional, but unfortunately have no bearing whatsoever to the facts of present case.

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