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PETITIONER: KRISHNA PRIYA GANGULY ETC.

       Vs.

RESPONDENT: UNIVERSITY OF LUCKNOW & ORS. ETC.

DATE OF JUDGMENT07/10/1983

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VARADARAJAN, A. (J) THAKKAR, M.P. (J)

CITATION:  1984 AIR  186            1984 SCR  (1) 302  1984 SCC  (1) 307        1983 SCALE  (2)877

ACT:      Admissions  to   post-graduate  courses   in  medicine- Directions granting  provisional admissions pending disposal of petitions-approach by Courts.      State  Government   orders  laying  down  criteria  for admissions-Whether  of   statutory  effect,  when  they  are consistent with rules framed by Medical Council of India?

HEADNOTE:      This batch of appeals arose out of admissions sought by several candidates  to post-graduate  courses in the Medical Colleges of  Uttar  Pradesh.  While  in  some  of  them  the candidates were the appellants and the State the respondent, in others it was vice versa. By an order dated 3-12-1980 the State Government  had laid  down that  admissions were to be made purely  on the  basis of merit, the criterion being the total percentage  of marks  obtained by the candidate in the M.B.B.S. examination. In as many as 9 out of the 20 appeals, the candidates  who had  been given  provisional  admissions pursuant to  interim orders  made by the Court had completed their courses and only their results were to be declared. In all those  cases,  the  State,  realising  the  futility  of forcing the  candidates to  complete  the  course  all  over again, conceded  that the  results of such candidates may be declared and  on passing  the same they would be admitted to the courses concerned though the candidates in question were lacking in merit and their original rejection was justified. In one  of the  appeals filed by the State, the candidate in question had  obtained only 43 percent marks at the M.B.B.S. examination and  happened to  be the  last candidate  in the list of  persons who  had applied for admission to the post- graduate course.  Although the  candidate had  merely prayed for a  writ directing  the State  or the college to consider his case  for admission,  the High  Court, relying mainly on the fact  that the  candidate had  a diploma  to his credit, straightway issued  a writ of mandamus directing the college to admit  him to  the course applied for, thereby granting a relief which the candidate himself had not prayed for.      HELD: The  practice of forcing the authorities to grant provisional admissions  has been evolved keeping in view the fact that  on account  of huge  accumulation of  arrears  in

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courts it takes a long time for petitions to be disposed of. By the  time the  cases come  up for  hearing, the  rejected candidates might  have completed  their  course  and  become eligible for  admission to  the higher  course although  the court may  ultimately find  that their initial rejection was justified and  they did  not deserve  to be  admitted to the course. Such a situation becomes a sort of fait accompli for those in charge of the institutions 303 as a  result of  which the  candidates are  admitted in  due deference to  the desire  of  the  court  by  increasing  or creating vacancies  even in the absence of proper facilities to train  the extra  candidates. Unless the institutions can provide  complete   facilities  for  the  training  of  each candidate admitted  in the  various disciplines, the medical education will  be incomplete  and the universities would be turning  out   doctors  not   fully  qualified  which  would adversely affect  the  health  of  the  people  in  general. Therefore, the  practice  of  lightly  granting  provisional admissions should be discontinued in future. Whenever a writ petition is filed, provisional admission should not be given as a  matter of course on the petition being admitted unless the court is fully satisfied that the petitioner has a cast- iron case which is bound to succeed or the error is so gross or apparent  that no  other conclusion is possible. In order to test  this fact,  even a  short notice  may be  given  to explore as  to what the other side has to say and thereafter if the court is satisfied that there is a strong prima facie case and  the matter needs thorough examination, provisional admission may be given.      The State  Government order dated 3-12-1980 prescribing the criteria  for  admission  to  post-graduate  courses  in Medical Colleges  made under  s.28(5) of  the  U.  P.  State Universities Act,  1973, is  fully consistent with the tenor and spirit  of the  rules framed  by the  Medical Council of India. The rules framed by the Medical Council of India have a statutory  effect under s.33 of the Indian Medical Council Act,  1956   and  are   binding  on  all  the  colleges  and universities providing for medical education in the country.      The High  Court had  made a  very arbitrary, casual and laconic approach  to the  case  of  the  candidate  who  had obtained 43  per cent marks and based its judgment purely on speculation and  conjectures swept away by the consideration that the  candidate possessed  a diploma to his credit when, in fact, other candidates also had obtained diploma and that could not  be taken  into consideration under the prescribed rules.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal Nos.  133- 134, 137-140, 142-146, 595, 3045-3046 of 1982.      (Appeals by  Special leave  Petitions from the Judgment and Order dated the Ist October, 1981 & 14th August, 1981 of the Allahabad  High Court  (Lucknow Bench)  in Writ Petition Nos. 1834,  3946,  3825,2953,  4177,  4163,4234,  4319,4320, 3591, 3775, 2952 and 1662 of 1981).                             With                Civil Appeal No. 3047 of 1982      Appeal by  Special leave  from the  Judgment and  Order dated the  19th March,  1982 of  the  Allahabad  High  Court (Lucknow Bench) in WP. No. 4245 of 1981. 304      ADVOCATES FOR THE APPEARING PARTIES:

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    S. N. Kacker, Ms. S. Bhandare, T. Sridharan & Ms. C. K. Sudhariata.      K. K.  Jain, M. D. Sagar, P. Dayal, Pankaj Kalra, R. P. Singh, v. A. Bobde, K. J. John, Altaf Ahmed, Kailash Vasdev, Ms. Vrinda, Anil Kumar Gupta, Brij Bhushan, Kapil Sibil, Ms. S.  Dikshit,   Sudhi  Kulshreshtha,   B.R.  Agarwala,   R.H. Pancholi, Vijayalakshmi Menon & B.P. Singh.      The Judgment of the Court was delivered by      Fazal Ali.  J.: Soon  after our  hard won freedom there was a  gradual rise  in the  urban population in view of the process  of   industrialisation  and  setting  up  of  heavy projects and  industries in  order to  make our country more and   more self-sufficient.  This led to a certain spurt and rise in  the urban population as people from the rural areas started pouring  into the  urban cities  which provided  far better opportunities  for education  and employment than the rural areas. This sudden increase in urban population led to the spread  of epidemics  and diseases  resulting in a rapid growth of  educational institutions  both in  the public and private sectors.      In these  appeals,  we  are  concerned  only  with  the medical education;  the Government  had to  face  a  serious problem with the coming up of medical colleges which started growing like  mushrooms and  were charging  huge  capitation fees to  make substantial  profits without  providing proper medical education  and caring  precious little for achieving excellence of  standards  in  medical  education  which,  if denuded of  such standards,  would  pose  a  serious  health hazard to  the people. Surely, we would not wish that people who could  ill-afford to  go in  for well equipped expensive medical practitioners  should be  thrown  at  the  mercy  of quacks. Similar  situation arose  in technical,  engineering and other  kinds of institutions but we would concentrate on the feature  and facets  of medical  education  which  alone forms the subject-matter of these appeals. We have seen from our experience  that each  year there  is a  huge  rush  for admission to  seats in medical colleges for various courses, which being rather few and insufficient to control or absorb all sorts  and kinds of candidates as the well-known Persian proverb "JAYE TANG AST WA MARDUMA BISYAR" (i.e. little space and people  many) seems  aptly to apply in such a situation. However, in order to meet the 305 contingency resulting  from a  heavy rush for admissions the institutions set  up certain standards or tests which had to be complied  with before  candidates could be admitted. Here also, as  in other  spheres, favouritism  and nepotism  have their own  role to  play as a result of which merits suffer. In order  to meet  these contingencies  and  ward  off  such evils, the  Government through its circulars and the Medical Council of  India being alive to this delicate and difficult problem sought  to solve  the problem  by making  rules  and regulations for  admission of  candidates to various courses in different disciplines (subjects) to achieve excellence in medical   standards    keeping   in   view   statutory   and constitutional reservations.  Unfortunately, however,  these rules were often flouted and observed more in breach than in compliance by  those who  were  in  charge  of  the  medical education: the  result  was  again  a  huge  spurt  of  writ petitions in  the High Court to weed out the inefficient and ineligible and absorb the efficient and eligible,      With this  short prelude,  now to the facts of the case which disclose  a sad  story  indeed-not  because  those  in charge of  the institutions  commit errors  but because  the courts start  directing the authorities to grant provisional

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admissions to students even if they did not deserve the same in some cases. Experience has shown that in view of the huge accumulation of  arrears in courts, it takes a long time for the petitions  to be  disposed of, hence we have evolved the practice of  forcing the  authorities to  grant  provisional admissions which  has resulted  in  a  piquant  and  pungent situation because by the time the case comes up for hearing, the rejected  candidates having  completed their  course and having appeared  at  the  examination  with  every  hope  of success become  eligible for  admission to the higher course in case of success though the Court may ultimately find that their initial  rejection was  justified.  Such  a  situation becomes a sort of a fait accompli for those in charge of the institutions  as  a  result  of  which  the  candidates  are admitted in  due deference  to the  desire of  the court  by increasing or  creating vacancies  even in  the  absence  of suitable  and   proper  facilities   to  train   the   extra candidates. This  results in  an anathema  and a dilemma for which there  is hardly  any remedy.  The present cases are a clear  illustration   of  this   problem  Our   suggestions, therefore,  is  that  whenever  a  writ  petition  is  filed provisional admission  should not  be given  as a  matter of course on  the petition  being admitted  unless the court is fully satisfied  that the  petitioner has  a cast-iron  case which is  bound to  succeed or  the error  is  so  gross  or apparent that  no other  conclusion is  possible. In  order, however, to  test this fact even a short notice may be given to 306 explore as  to what the other side has to say and thereafter if the  court is  satisfied that there is strong prima facie case and  the matter needs thorough examination, provisional admission may  be given.  We hope  and trust  that the  High Courts would  in future  discontinue the practice of lightly granting provisional admission to the candidates at the time of regular  admissions, as observed above. It is needless to state that  this Court  on its  part would also be extremely reluctant to  grant provisional  admission and  would do  so only in a very special case. The fundamental reason for this is that  otherwise the  institutions are  likely  to  become overcrowded by candidates, eligible or ineligible, efficient or inefficient. Unless the Institutions can provide complete and full  facilities for  the training of each candidate who is  admitted   in  the   various  disciplines,  the  medical education will  be incomplete  and the universities would be turning  out   Doctors  not   fully  qualified  which  would adversely affect the health of the people in general.      Out of  these appeals, some of them have been dismissed as not pressed, others were heard on merits. By the time the case was  taken up by this Court, in as many as 9 out of the 20 appeals the candidates had completed their courses and as only the  result had  to be  declared, the  counsel for  the State with  his usual  fairness, realising  the futility  of forcing the candidates to complete the course all over again conceded that the results of such candidates may be declared and on  passing the  same they  would  be  admitted  to  the courses concerned  though the  petitioners were  lacking  in merits and  their original  rejection was justified. We made this direction  by a  formal order, the reasons for which we would give hereafter.      This now  brings us to the consideration of the appeals which survive.  Before dealing  with the individual cases of the appellants/respondents,  it may  be necessary  for us to adjudicate on  the validity  of the  circulars passed by the Government and  the rules  and  regulations  framed  by  the

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Medical  Council   of  India,   to  put  the  matter  beyond controversy so  that a consistent test may be applied to all candidates desiring  admission and  unless rules are adhered to, admissions would be denied in which case this Court will not interfere  in the absence of a plea of prejudice or bias which would be naturally for the candidates to establish.      In some  cases the  candidates are  appellants and in a few the  State is  the appellant and therefore for facility, the candidates  who have  filed appeals  against refusal for admission to the M.D.M.S. 307 Course of  the king  Georges Medical  College, affiliated to the Lucknow  University, will  hereinafter be referred to as the candidates’  and the  State of  Uttar  Pradesh  will  be referred to  as the  ’State’. We  might  also  mention  that before the  appeals were  heard on  merit, C.A. Nos. 132 and 136/82 were  dismissed as  not pressed,  owing  to  lack  of instructions, by  our order dated 17-8-83 and C.A. Nos. 135, 141 and  163/82 were  also dismissed  by this  Court as  not pressed. Thus,  the appeals  filed by  the candidates or the State which  survive, alone  need  be  adjudicated  by  this Court. The  facts of  the case,  the grounds  taken  by  the candidates or  the State  and other  details have  been very clearly set  out in the judgment of the High Court and it is not necessary for us to repeat the same all over again.      The appeals  arise out  of  the  admissions  sought  by several candidates  to the  M.D.M.S. courses  for  the  year 1981-82, the  session starting  from 1.4.1981.  In order  to regulate the  admission of  the candidates  to the  M.D.M.S. course the  Government by  an order  dated 3.12.80 laid down the tests  and criteria  for admitting the candidates to the courses in  various disciplines.  The High Court has rightly pointed out  that there  are diverse  modes  of  determining one’s merit  which, in  our opinion,  is of prime importance because while  admitting candidates  to  M.D.  course  every precaution should  be taken  to  rule  out  inefficiency  or incompetency lest  the candidate  admitted and passed, turns out to  be a  serious health hazard to the people who are to be treated  by him.  The High Court further pointed out that merit should  be determined  with reference to good academic career  or   to  the   performance  at   the  last  M.B.B.S. examination or  at the  last qualifying  examination. It  is common ground  that in  these cases  of the candidates, they had passed  their MBBS  examination securing aggregate marks ranging from  63% to  43% in  various disciplines.  The main disciplines in  which the  admissions  were  sought  by  the candidates  were-M.D.  (obstetrician  &  Gynaecology),  M.D. (Anaesthesia),    M.S.     (Orthopaedic    Surgery),    M.D. (Paediatrics),  M.D.   (Medicine)  and  M.D.  (Tuberculosis) differing from candidate to candidate. The Government by its order dated  3.12.80, as  mentioned above,  chose the safest method to  determine  the  merit  and  suitability  for  the candidates to  be admitted  to the  M.D./M.S. courses on the basis that  the admission  should be made purely on merit as gleaned from  the  marks  obtained  by  them  in  the  total percentage of  the MBBS  examination. The  Government  order dated 3.12.80 may be extracted below because on this depends the entire  fate of  the admissions  to be  granted  to  the competing candidates: 308      "The Governor,  considering it so necessary and keeping in view the recommendations of the Medical Council of India, is pleased  to order that with effect from December 14, 1979 the following  policy and  procedure shall  be followed with regard to  the admission  of candidate  in the Post graduate

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course (Degree  and Diploma)  in the  State Medical Colleges and the King Georges Medical Colleges, Lucknow.      (1)  Admission shall  be made  only  on  the  basis  of           merit.      (2)  The  basis  of  determining  the  merit  shall  be           percentage of marks worked out after deducting one           percent marks  for each  failure in  every subject           from the total percentage of marks obtained in the           M.B.B.S. Examination.  In case  of a candidate who           fails in  a subject  and is declared successful in           second or  subsequent attempt in that subject, the           marks obtained  by him  for day-to-day performance           in the  first examination in that subject shall be           added to  his total marks while preparing the said           index."      The Order  seems to  us to be fully consistent with the tenor and  spirit of the Rules framed by the Medical Council of India, which is a statutory body, whose Rules are binding on  all   the  colleges  and  universities  in  the  country providing for medical education. On an interpretation of the Government order  the High  Court was  of the opinion that a Candidate passing  MBBS examination  in four subjects with a 3rd Division  cannot be  preferred to the one possessing the said degree  in one  subject  only  with  a  first  division because that would decide the index of merit. The Government order was made under s. 28(5) of the U.P. State Universities Act, 1973  (U.P. Act  No. X of 1973) (for short, hereinafter to be  referred to  as  the  ’Act’).  The  High  Court  also correctly found  that merely  because a candidate happens to obtain a  Diploma after  passing  MBBS  Examination  in  any subject he  would not be entitled to weightage for otherwise the entire  complexion of  pure  merit  and  suitability  as intended by the Government order, which does not provide for any such weightage, would be set at naught.      This now  brings us  to the  relevant provisions of the Rules  framed  by  the  Medical  Council  of  India  on  the recommendations 309 of Post-graduate  Medical Education  which were  adopted  in February 1971,  i.e. long  before the present writ petitions were filed  in the  High Court. The relevant portions of the Rules may be extracted thus:      (1)  For M.D./M.S.  Degree in  clinical subjects, there           shall be proper training in basic medical sciences           related to  the disciplines  concerned as  well as           paper in these subjects at the examination. In the           case of  M.D. &  M.S. in  basic  medical  sciences           there should be training in applied aspects of the           subject and a paper on the Subject.      (2)  Thesis should  be a part of the examination in the           degree courses  as this gives training in research           methodology.      (3)  The student  teacher ratio should be such that the           number of  post-graduate teachers to the number of           post-graduate  students   admitted  per   year  be           maintained at 1:1.      For the  proper training of the post-graduate students, there should  be a  limit to  the number of student admitted per year.  For this  purpose every  unit should  consist  of atleast 3 full time post-graduate teachers and can admit not more than 3 students for post-graduate training per year. If the number  of post-graduate  teachers in  the unit  is more than three  then the  number of  students can  be  increased proportionately.  For   this  purpose   one  student  should associate with one post-graduate teacher.

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    "Where the  number of  post-graduate teachers  is  less than 3  per unit  then the  number  of  students  should  be reduced so  as to  keep the ratio to one student teacher per year."      It would  be seen  that it  was clearly mandated by the Medical Council  that normally the ratio of student: teacher should  be  one  teacher  to  1  student  per  unit  and  in exceptional  cases   in  a   unit  with   one  post-graduate qualification, a  maximum of two students should be admitted per year. The Rules further lay down that in addition to the students admitted  to M.D./M.S. courses, a maximum number of six students  per year can be admitted to diploma courses in such departments  where diploma  courses are  conducted.  In case the  number of  recognised post-graduate  teachers  was more than three, 310 the number  of students  for admission to the diploma course may be  increased on  a ratio of two students per additional recognised post-graduate  teacher  per  year  subject  to  a maximum of 12 students admitted in the department. Then come the most  important rules  which determine  the selection of post-graduates for degree and diploma courses. Rules 5 and 7 may be extracted thus:      "(5) The selection  of post-graduates  both for  degree           and diploma  courses should  be  strictly  on  the           basis of academic merit.           ...            ...            ...            ...      (7)  Candidates  pursuing  degree  or  diploma  courses           should work  in the  concerned department  of  the           Institution for the full period."      Coming now  to the  criteria laid down by the Rules for selection of  candidates, Paragraph  (1) of  rule (c) may be quoted below:      "They  must   subsequently   have   done   one   year’s      housemanship prior  to admission  to the  post-graduate      degree   or   diploma   course.   Housemanship   should      preferably be  for one  year in the same subject, or at      least  six  months  in  the  same  department  and  the      remaining six  months in an allied department. Provided      that           in            departments           like      Radiology/Aneesthesiology/Physical      Medicine      &      Rehabilitation where  suitable candidates who have done      housemanship  in   the  respective   subject  for   the      respective  speciality   are  not  available  then  the      housemanship in  Medicine and/  or in  Surgery  may  be      considered as sufficient."      The above  rule clearly  provides that  the  candidates must have done one year’s housemanship prior to admission to the post-graduate degree or diploma course preferably in the same  subject,   which  has   been  technically   called  as ’discipline’, or  atleast six  months in the same department and the  remaining six  months in  an allied  department. It further lays down, that in order to determine the merit of a candidate for admission to post-graduate medical courses the following three factors must be taken into consideration:      (1)  his performance at the MBBS examination, 311      (2)  his performance  during the  course of  internship           and housemanship  for  which  a  daily  assessment           chart should be maintained, and      (3)  the report  of the teacher which is submitted from           time to time.      Alternatively, the  authorities concerned  may  conduct competitive entrance examination to determine the merit of a candidate for admission to post-graduate medical courses.

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    The other  methods covered by the Rules are not germane for the purpose of deciding these cases. As these Rules were adopted by  the Medical  Council of  India they became rules made under  s.33 of  the Indian  Medical Council Act of 1956 passed by  the Government  of  India  and,  there-fore,  had doubtless a statutory effect.      The candidates  consist of  students who  had not  been admitted to  the medical  courses and they have assailed the refusal of  their admission as being violative of Art. 14 of the Constitution  and to  the statutory  orders  passed  and rules framed  by the  Government from  time to time. In some cases, the  Government order referred to above has also been challenged as  being arbitrary and outside the scope of Art. 14.      Before dealing  with the  contentions of the parties on merit we might dispose of a few matters as a result of which some of  the appeals  do not  survive at  all.  As  observed above, the  admission sought  by the  candidates were in the session of  1981-82 and  by the time these cases came up for hearing by  the High  Court or  this Court,  the session has completely run  out but  as provisional  admissions had been allowed either  by the  High Court  or  by  this  Court  the candidates had completed their M.D./M.S. courses and in some cases only  the results  were to  be declared. Realising the piquant situation  that arose  in view  of  the  provisional admissions, the  learned counsel  for the  State very fairly agreed to  the declaration  of the  results of the following candidates:      1. Dr. Krishna Priya Ganguly (C.A. 133/82)      2. Dr. Gopal Krishan Goyal (C.A. 134/82)      3. Dr. Pramod Kumar Kohli (C.A. 137/82) 312      4. Dr. Pratap Singh (C.A. 138/82)      5. Dr. Kamal Mehra (C.A. No. 139/82)      6. Dr. R.S. Topwal  (C.A. No. 140/82)      7. Dr. Hari Om Gupta (C.A. No. 3045/82)      8. Dr. R.C. Aggarwal (C.A. No. 3046/82)      9. Dr. Ved Prakash Gupta (C.A. No. 3047/82)      The counsel  for the State further agreed to passing an order that  those candidates  who were refused admission but granted provisional admissions under the orders of the Court may  be  deemed  to  be  admitted  to  complete  the  course according to  the provisions  of the Rules. We might mention that  this   concession  was  made  because  the  candidates concerned had  secured pretty high percentage and since they had  completed   the  course   in  the  peculiar  facts  and circumstances of  the case. As far as C.A. No. 3045/82 filed by the  State against  the decision  of the  High  Court  is concerned,  the   view  taken   by   the   High   Court   is unsustainable. The High Court could not have given a goby to the rules framed by Admission committee. It was a matter for decision of  the academic  body and  since the academic body had applied  the rules  in a  bona fide  manner to  all  the students equally,  there was  no jurisdiction  whatsoever on the part  of the  High Court  to interfere with the internal working of  an academic institution concerned with imparting higher education  in the  field of  post-graduate course  in medicine. The  Rule prescribing that housemanship must be in the same  subject is not inconsistent with the ordinance. It is supplementary  to the  ordinance and  amplifies the same. Hence there  is no  inconsistency and  the  High  Court  was therefore clearly  wrong. However,  as the  counsel for  the State has  agreed to  declare his  result we do not pass any order for  reversing the  directive issued by the High Court as far  as Dr.  Hari Om  Gupta is  concerned though the High

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Court was wrong.      As regards C.A. No. 3047/82 which has been filed by the State, the  view taken  by  the  High  Court  is  altogether untenable. The condition regarding putting in two years work in the  department concerned  could not  have been dispensed with. The  High Court  should not  have interfered  with the decision of  the academic  body. The High Court cannot relax the rules or rewrite them. After the 313 declaration of  his result,  as agreed to by the counsel for the State,  if he  fails at this examination he will have to put in  two years work in the department concerned before he is permitted to appear for the final examination next time.      So far as the above-mentioned appeals are concerned, it is not  necessary for  us to go to the merits or to give the reasons thereof  in view of the fact that the candidates got what they wanted, on the basis of the concession made by the counsel for  the State  and accepted  by this  Court,  as  a result of  which we  passed orders for declaring the results of the  candidates or directing them to complete the course. We  would   however  like   to  make  it  clear  that  after declaration of  the results in case the candidates concerned in appeals  do not  pass or  their thesis  are not approved, they would  have to  do the full course all over again. This position was accepted by the candidates who conceded that in case they failed in the examination the logical consequences will follow.  The candidates who were directed by this Court to be given admission may be listed below:      1. Dr. Aditya Kumar (C. A. No. 142/82)      2. Dr. Manoj Kumar  (C. A. No. 143/82)      The appeals  that remain  for consideration  may now be taken up,  viz.,  C.A.Nos.  144,145  and  595/82.  We  might mention here  that out of the appeals filed by the State the appeal which  has been  seriously pressed  before is that of Dr. V.N.  Sinha (C. A. No. 595/82) and the State has invited us to  give a  final decision in the matter which involves a serious question of principle.      Coming-first to  C.A. No.  144/82 filed  by Dr.  Rachna Saxena it  appears that  she had  obtained an  aggregate  of 53.7% but  the  main  obstacle  in  her  way  was  that  two candidates with  a higher  aggregate had  been admitted  and therefore her  case did  not merit  any consideration.  Even from amongst  those who  did not secure admission there ware four others who had secured higher marks than  her viz., Dr. Ganguly (59.23)%, Dr. Agarwal (57.40%), Dr. Jain (56.9%) and Dr. Upadhyaya (55.33%). She could not therefore have secured admission in  any event.  She cannot  therefore complain  of discrimination. For  these reasons, therefore, we affirm the decision of  the High  Court and dismiss C.A. 144/82 without any order as to costs. 314      C.A. No. 145/82 has been filed by Dr. V.K. Kohli. After going through  the judgment  of the  High Court  and hearing counsel for  the parties  we entirely  agree with  the  view taken  by   the  High   Court  which   seems  to  us  to  be unexceptionable on  merits and must be confirmed. The appeal is therefore dismissed without any order as to costs.      Coming now  to C.A.  No. 595/82 which has been filed by the State  it seems  to us  after hearing  counsel  for  the parties that  the stand  taken by  the State  is  absolutely correct and  for the  reasons that we will give hereafter we find it  impossible to  support the  judgment  of  the  High Court.      To begin  with, Dr.  Vijay Narain  Sinha who  was being considered for  admission to  the M.S. course in Orthopaedic

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surgery had  obtained only  43% marks  in the  aggregate and happened to be the last candidate in the list of persons who had applied  for admission  to the  M.D./M.S.  course.  This important handicap  relating to Dr. Sinha seems to have been completely glossed  over by  the High  Court by  saying that though he  has not  secured very  high marks but he could be almost equal  in all respects to the candidates who had been granted admission.  This, however,  was  not  so.  The  main argument of  the High  Court was that in determining the six admissions which were made in consonance with the prescribed instructions indicated that the ratio of admission should be with respect  to the  strength of the staff in the concerned department. The  main complaint of the respondent (Dr.Sinha) was that  while there were six teachers in the Department of Orthopaedic surgery,  nine  admissions  were  made  in  that particular session. The State had clearly explained that the usual number  of candidates  to be admitted was six and as a special case  due to  fortuitous circumstances  an exception was made only in one session for good reasons which had been given by  the State.  Thereafter no  such departure had been made in  any other  session. What  the High Court completely over-looked was that even if nine students were admitted Dr. Sinha could not have secured admission as he was on the very bottom of  the list  in view  of  the  very  low  percentage secured by  him. The  stand taken  by the State has not been refuted by the counsel for the respondent who submitted that since the State had agreed to declare the results of all the candidates  the  respondent  may  also  be  given  the  same facility.  We  are,  however,  unable  to  agree  with  this argument because  to grant  admission to  a  person  who  is appreciably below the required merit would be to play 315 with the  lives of  the people whom the candidate would have to treat after getting the M S. degree. The High Court seems to have  relied mainly  on the  fact that  in  view  of  the increase in  population and  orthopaedic cases  the  college must have  persons with  special qualifications  and as  the respondent had  a diploma  that should  be treated  to be  a special  qualification.   A  mere   diploma  however  cannot override the  consideration regarding the merit as disclosed in the  low aggregate  obtained by  him  in  the  last  MBBS examination. If  the college  authorities went  by the  pure test of  merit, the  diploma could  not be a good substitute for admitting the lowest and the last candidate in the list.      The High  Court could  not devise its own criterion for admission. Since  the  academic  body  has  made  the  marks obtained in MBBS examination the criterion, admission had to be made  by such  a criterion. The High Court could not have introduced its  own notions  in such an academic matter. The High  Court   was  not   competent  to  do  so  and  had  no jurisdiction to import its own ideology.      The High  Court further  observed that  the  respondent appears to  be a  very dedicated  worker having  acquired  a diploma and  would have  proved an  invaluable asset  to the Institution. We  do not  see any  proper material  for  this conclusion to which the High Court has suddenly jumped apart from the  fact that  admissions were  not to be given by the High Court according to its own notions. Finally, in his own petition in the High Court, the respondent had merely prayed for a  writ directing  the State  or the college to consider his case  for admission  yet the  High  Court  went  a  step further and straightaway issued a writ of mandamus directing the college to admit him to the M.S. course and thus granted a relief to the respondent which he himself never prayed for and could  not have  prayed for. Such a gross discrimination

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made in  the case  of  a  person  who  had  obtained  lowest aggregate and  lowest position  seems to  us to be extremely shocking. Although much could be said against the view taken by the  High Court  yet we  would not  like to say more than this that  the High  Court had made a very arbitrary, casual and laconic  approach to  the case  and based  its  judgment purely on  speculation and  conjectures swept  away  by  the consideration that  Dr. Sinha  possessed a  diploma when  in fact other  candidates also  had obtained  diploma but  that could not be taken into consideration, because the rules did not so provide. 316      For these  reasons, therefore, we allow this appeal and set aside the judgment of the High Court issuing mandamus to the State  to admit  the respondent  to the M.S. course. His writ petition in the High Court thus stands dismissed. H.L.C. 317