JAGDISH SINGH KHEHAR, J. - (1.) Leave granted in the special leave petitions.
(2.) Orders were passed by the Madhya Pradesh Professional Examination Board (hereinafter referred to as, 'Vyapam'), cancelling the results of the appellants, of their professional MBBS course, on the ground that the appellants had gained admission to the course, by resorting to unfair means, during the Pre-Medical Test. These orders were passed, with reference to candidates, who had been admitted to the above course, during the years 2008 to 2012. A challenge to the orders of cancellation, was raised by the appellants, by invoking the jurisdiction of the High Court of Madhya Pradesh (hereinafter referred to as, 'the High Court') under Article 226 of the Constitution. All writ petitions raising the above challenge were dismissed. Resultantly, the appellants approached this Court. The orders of the High Court were affirmed by a Division Bench (hereinafter referred to as, the 'former Division Bench'), on 12.05.2016. However, in exercise of jurisdiction vested in this Court, under Article 142 of the Constitution, J. Chelameswar, J. (the Hon'ble Presiding Judge, of the 'former Division Bench') expressed the view, that complete justice in the matter would be rendered, if the qualifications successfully acquired by the appellants were not annulled, and the knowledge gained by them, was not wasted. This, for the simple reason, that knowledge could not be transferred to those, who had been wrongfully deprived of admission, and cancellation of the results of the appellants, would not serve any purpose. Abhay Manohar Sapre, J. (the Hon'ble Companion Judge - in the 'former Division Bench') expressed his disinclination for invoking jurisdiction under Article 142, to sustain the benefit of education acquired by the appellants, through a separate order of the same date - 12.5.2016. This, for the simple reason, that those who had adopted unfair means, could not be extended any indulgence.
(3.) On account of the divergence of opinion expressed by the 'former Division Bench', through their separate orders (dated 12.5.2016) referred to above, Hon'ble the Chief Justice of India, constituted this larger Division Bench, to deal with the matter. During the course of hearing, Mr. Shyam Divan, learned senior counsel submitted, that this Court had granted leave, in the petition filed by his client (and many others, similarly situated) on 24.2.2016. It was pointed out, that all these appeals had remained pending before this Court, wherein the correctness of the impugned judgment(s) rendered by the High Court, was under consideration. It was submitted, that leave having been granted, the principle underlying the doctrine of merger would entail, that the judgments rendered by the High Court would eventually merge in the final or operative determination of this Court. It was also pointed out, that in terms of Article 145(5) of the Constitution, no judgment could be delivered by this Court, save with the concurrence of majority of Judges, present and hearing the case. It was submitted, that there was no majority judgment on 12.5.2016, when the two Hon'ble Judges constituting the 'former Division Bench', passed separate orders. According to learned counsel, in the absence of merger, all the civil appeals in hand, must be deemed to have remained on the docket of this Court, awaiting decision by an appropriate bench. It was contended, that the correct course to be followed, where there is a divergence of opinion between the two Hon'ble Judges was, a rehearing of the entire matter by a larger Bench. The above determination, according to learned counsel, emerges from the legal position expressed by this Court in Gaurav Jain v. Union of India, (1998) 4 SCC 270. It was submitted, that in the absence of a majority judgment, in terms of Article 145(5), and consequently in the absence of an effective judgment of this Court (despite the two separate orders passed by the 'former Division Bench' on 12.05.2016), there existed no judgment in the eyes of law. It was accordingly submitted, that the present Division Bench (of three-Judges) by a mandate of law, was required to adjudicate upon the civil appeals fully, on all issues. It is therefore, that this Bench passed the following order on 28.7.2016: "After hearing had gone on for sometime, wherein the limited issue canvassed was, whether this Court was justified in exercising jurisdiction under Article 142 of the Constitution of India, our attention was invited to the mandate contained in Article 145(5) of the Constitution, so as to suggest, that the entire controversy needed to be heard afresh, in view of the following order passed by the Bench on 12th May, 2016: "In view of the divergence of opinion in terms of separate judgments pronounced by us in these appeals today, the Registry is directed to place the papers before Hon'ble the Chief Justice of India for appropriate further orders." We are of the view that the instant issue can be resolved by referring the matter back to the Bench, for a clarification, of the order dated 12th May, 2016, whether the reference required re-hearing of the entire matter, and if not, the limited issue referred for consideration. We have chosen to adopt the above course, so as to save precious time of the Court. In the above view of the matter, the Registry is directed to place the files of this case, before Hon'ble the Chief Justice of India, for seeking clarification of the Division Bench which passed the order dated 12th May, 2016. Post the matters for hearing, after clarification." ;