KOKJE, J. - (1.) THE revision petitioner was a candidate for admission to One of the Engineering Colleges in Rajasthan THE non-petitioner University held a test called Pre Engineering Test (PET) for admission of candidates from Rajasthan (at Jaipur, Jodhpur, Kota, Bhilwara and Udaipur ) against seats allotted to the State of Rajasthan in 15 Regional Engineering Colleger in India for the year 1994. THE rules of admission were published by the University and made available to that candidates in the form of a booklet entitled " INFORMATION BOOKLET FOR PRE-ENGINEERING TEST (PET ) 1994". THE rules provided for reservations of certain number of seats for different categories of candidates. One of the reserved categories was that of children of Ex-Servicemen and the revision petitioner applied to be considered in that category. THE non - petitioners held him in-eligible for being considered in that category on the ground that his father was not of Rajasthan origin in the Army which according to the non-petitioners, was a condition of eligibility for the category of children of Ex-Servicemen. THE non-petitioners refused admission to the petitioner as he did not qualify for admission in General category and was not eligible for being considered in 'children of Ex-Servicemen' category.
(2.) THE revision petitioner filed a suit challenging the non- petitioners' refusal to grant him admission and moved an application for grant of temporary injunction directing grant of provisional admission to him. THE trial court granted the temporary injunction but the appellate Court reversed the order and rejected the application for temporary injunction. This Order of the appellate Court is under challenge in this petition. I have heard the learned counsel for both the sides and have carefully gone through the orders of the lower Courts as well as the Booklet containing rules for admission. A bare perusal of the appellate order shows that the appellate Court set aside the order of trial court interpreting the rule in a different way and has actually decided the sole point of controversy finally leaving nothing further to be decided by the trial Court except formally passing a decree in terms of the interpretation put on the rules by the appellate Court. The following extracts from the appellate Court's order would bear this out: *** An Appellate Court deciding an appeal against an interim order passed by trial Court has to be very cautious in wording its verdict. Its Order should not disclose final opinion on merits on any of the points to be decided finally in the suit. The expression of opinion by the trial court itself while deciding an applications for temporary injunctions is tentative and only for the purpose of assessing whether there is a primafacie case in favour of the plaintiff or the applicant for temporary injunction. Likewise the appellate court while deciding an appeal from an order granting or rejecting application for temporary injunction cannot sit in judgment over the merits of the controversy in the suit but has to go into the matter only for the purpose of deciding whether there was prima facie case in favour of the applicant for injunction. It is true that in cases like the present one where the entire controversy is relating to interpretation of a particular set of rules alone and facts are almost all admitted, it is difficult for the trial court or appellate court to express any opinion without touching the merits of the case. But in such a situation, the court instead of pronouncing on merits of the case at interim stage, should try to dispose off the suit finally because in such cases the final arguments in the suit and the arguments on interim application are the same and no prejudice is likely to cause to any of the parties if the suit itself is decided on arguments. If that is not possible for any reasons, utmost care has to be taken in expressing opinion on merits of the matters in controversy in the suit. It is, no doubt, tight-rope walking, a balancing act, but one has to accomplish it to avoid falling down and being accused of prejudging the issues. The appellate Court in this case has failed in the above test and has committed a grave error. It had no jurisdiction to decide the controversy in suit finally on merits by finally interpreting the rules one way or the other. Moreover, it has committed a material irregularity in its approach to the question of balance of convenience and irreparable injury. The question of prima facie case, balance of convenience, and irreparable injury have to be examined independently of each other. Though in some cases considerations may overlap but in no case only because there is prima facie case in favour of the applicant it can be automatically held that balance of convenience has to be in his favour and that irreparable injury would be caused to him if injunction is not granted. Conversely, it also cannot be automatically held that where primafacie case is not found in favour of the applicant, as a necesary corrolory, it has to be taken that the balance of convenience is also not in his favour and irreparable injury would also not be caused to him if injunction is not granted. The appellate court has found the balance of convenience not in favour of the applicant plaintiff and that he would not suffer irreparable injury only because it had concluded that he had no case on merits. The approach is clearly wrong. The suit still survived and there was a chance atleast theoratically, of the plaintiff finally succeeding. The matter related to admission to a College. If provisional admission is not granted, the plaintiff was bound to suffer tremendous inconvenience, if ultimately admitted to the course, in keeping pace with others and in making good for the loss of time already sufferred. If the decision of the suit takes a couple of. years, the loss may be irreparable because in the changed circumstances it might not be possible to direct plaintiffs admission to the Course. In any case, loss of time in such an event would be irreparable. On the contrary grant of provisional admission during the pendency of the suit would not have been more inconvenient to the non-petitioners. It is true that provisional admission has to be granted in rare and exceptional cases but in unavoidable circumstances recourse could be had to it. For the aforesaid reasons, I am of the opinion that the appellate Court's order deserves to be interfered with in revisional jurisdiction of this Court.
(3.) AS the only point in controversy between the parties is as to the interpretation of the rules of admission and as the essential facts are not in dispute the suit itself could have been disposed off finally. In the matters like this where delay in decision of the suit may be fatal to the interest of the parties and when the case involves discussion on the merits of case also, it is in the interest of both the parties and of justice to dispose off the suit after hearing arguments finally rather than hearing arguments on the interim applications and deciding the same. However, since in this case an interim application was decided by the trial court and the appellate Court but the appellate Court pronounced finally on merits of the case, I have no option but to deal with the merits of the case. Not doing so would be furthering the agony of the parties and throwing them to another round of avoidable litigation. I have enquired from the parlies, as to whether any other evidence in the case apart from the copy or the rules would be required and both sides candidly admitted that they did not want to lead any oral evidence in the case. The copies of rules produced by both the sides before me are identical and therefore, could be taken into consideration as an admitted document. The only point to be determined is as to whether the revision petitioner-plaintiff was eligible as per the rules for admission under the quota reserved for children of Ex-Servicemen and I proceed to decide that. A perusal of the rules in the booklet shows that the reserved categories are neither specifically created nor eligibility criteria for each category is specifically provided. The relevant provision of the rules relied upon by the parties are reproduced hereunder :. " INSTRUCTIONS FOR THE GUIDANCE OF CANDIDATES INTENDING TO APPEAR AT THE PRE-MEDICAL TEST,1994" 2. The application form shall not be entertained (a ). . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . (c) If it is not accompanied by the following: (i ). . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . (iii) In case of candidates belonging to the category of physically handicapped/children of Ex-Servicemen/children of Defence Personnel/para Military Forces - killed or permanently disabled in action during the hostilities/wars or during peace time, the certificate from the competent authority in proof of his/her being of that category. (iv) In case of candidates belonging to Scheduled Caste/scheduled Tribes, a certificate from the District Magistrate/adm/sdm in proof of his/her being a'* Scheduled Caste/scheduled Tribe candidate". INSTRUCTIONS FOR ADMISSION TO FIRSt B. E. /b. Sc. (Engg.)/b. TECH. /b. TEXT. /barch. DEGREE COURSE FOR THe SESSION 1994-95 1. Number of Seats The number of seats in various branches of different categories of study for candidates in all the participating Engineering Colleges in Rajasthan and other Regional Engineering Colleges in India are given in Appendices I and II. 2. Eligibility A candidate must fulfil the following conditions for admission to Engineering Colleges : (a) (i) Candidates seeking admission in Engineering Colleges at Jodhpur, Kota, Bhilwara and Udaipur should note that they will be eligible for admission only if they fulfil any of the following conditions: He/she has studied for the last two years continuously as a regular student in a recognised educational institution in Rajasthan. OR His /her natural father (if natural father is not alive then natural mother has continuously resided in Rajasthan for the last 10 years, and the candidate has studied for at least 5 years in a recognised educational institution in Rajasthan. Candidates discontinuing studies and dropping from the examinations will have to produce a certificate as detailed below; Mr. . . . . . father/mother of. . . . . . . has been residing in Rajasthan continuously for the last 10 years and the candidate has studied atleast for five years in a recognised educational institution in Rajasthan. OR He/she is a son/daughter of a serving employee who has put in atleast three years service on the last date for submission of appliction or retired employee of : (i) Government of Rajasthan including officers of All India Service borne on the State Cadre of Rajasthan, Or (ii) Undertakings/corporation/improvement Trusts/municipal Boards/ Panchayat Samitis /co-operative Bodies duly constituted by the Government of Rajasthan, Or (iii) Statutory Bodies and Corporations formed under the Indian Companies Act incorporated in Rajasthan. OR He/she is a son/daughter of an employee of any of the University in Rajasthan or Higher Secondary Board of Education (Rajasthan) or Engineering Colleges at Jaipur, Bhilwara and Kota who has put in atleast three years service on the last date for submission' of application in any of the above bodies. OR He/she is a son/daughter of an Indian Defence or Central Government Services or Public Sector undertaking or National Institutes financed by Government of India employee of Rajasthan origin who has put in atleast three years service on the last date for submission of application irrespective of his/her place of posting provided a certificate is submitted by the employee from the employer to this effect stating the State of origin and the home town as given by him at the time of his entry in service. OR He/she is a son/daughter of an employee of Central Government or Institutions of the Central Government including Public Sector Undertakings or Corporation and who is on the regular rolls and he/she is serving in the State of Rajasthan on the date of the application. (b ). . . . . . . . . . . . . . . . . . . (c ). . . . . . . . . . . 3. Pre-Engineering Test (a ).------- -. . . . . . . . . . . . . . (b) Application for admission and examination should be accompanied by the following documents: (i) Attested/photo Copy of mark-sheet of the qualifying examination of the concerned University/board. (ii) Certificate/undertakings in the prescribed forms; (a) Certificate : Eligibility for admission. (b) Certificate : From the Principal of College/head of Institution last attended. (c) Certificate : Parent/guardian (d) Certificate : Regarding Scheduled Caste/scheduled Tribe,if applicable. (e) Certificate : Regarding Physically handicapped/children of Ex-Servicement/children of Defence Personnel/para Military Forces, killed or permanently disabled in action during hostilities/wars or during peace time, if applicable. ;