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PETITIONER: R.K. KHANDELWAL

       Vs.

RESPONDENT: STATE OF U.P. & OTHERS

DATE OF JUDGMENT11/08/1981

BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) VARADARAJAN, A. (J)

CITATION:  1981 AIR 1673            1981 SCC  (3) 592  1981 SCALE  (3)1149

ACT:      Constitution  of  India  1950  Articles  226  and  136- Admission  to   M.D.  Course-Change   in  the   practice  of admission-Whether discontinuance  of a  mere  Practice  will sustain a charge of injury to legal rights.      Appeal by  special leave-New  Point-Discrimination  not taken  in   writ  petition-Not   argued  in  High  Court-Not mentioned in S.L.P.-Plea not permitted.

HEADNOTE:      The  appellant   applied  for  admission  to  the  M.D. (Paediatrics) Course  for the  academic year 1979-80. He had passed his  M.B.B.S. Examination  in December,  1976.  There were other students who had applied for admission along with the appellant.  Some  of  them  had  passed  their  M.B.B.S. Examination prior  to December  1976 and  had secured higher marks than the appellant. The number of seats being limited, admissions were  given according  to merit and four students who had  secured the  highest number  of  marks  were  given preference to  others regardless  of the  year in which they had passed their M.B.B.S. Examination.      The appellant  filed a  writ petition in the High Court challenging the  E decision  of the  college by which he was denied admission.  The petition was dismissed summarily by a Division Bench  on the  ground that  the relief  of mandamus could not  be granted  since the  appellant had.  failed  to establish that any of his legal rights was violated.      In the  appeal to this Court it was contended on behalf of the  appellant that:  (a) For  many  years  in  the  past candidates  who  had  passed  the  D.C.H.  Examination  were preferred for  admission to  the M.D.  Course but  that  the University suddenly  discontinued that practice, as a result of which  he had to compete with others who had passed their M.B.B.S. Examination, and (b) the ratio 1:1 between teachers and students was relaxed from time to time by the University and that  the appellant  was discriminated  against  by  the arbitrary refusal  of the  authorities to relax the ratio in his favour.      Dismissing the appeal, ^      HELD: The  appellant has  failed to  make out a case of injury to any of his legal rights. Because of interim orders

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passed  by   this  Court   directing  the  College  and  the University  to   admit  the  appellant  to  M.D.  Course  in Paediatrics, the College cancelled the appellant’s admission to the  D.C.H. Course.  If the appellant has passed the M.D. Examination, he  should be  declared to  have passed it like any other  student.  He  should  not  be  subjected  to  any disadvantage for the 284 reason that  he was not entitled initially to be admitted to the M.D.  Course in  Paediatrics. If he has failed he should be permitted  to take  the examination  again (or  again and again) in accordance with the rules of the University. Since the result  of the  other students, who had appeared for the M.D. Examination  along with  the appellant, was declared in February,  1981   the  appellant’s  result  to  be  declared forthwith. [287 B-F]      (a) There  was no  rule at  any time  requiring that an applicant  seeking   admission  to   the  M.D.   Course   in Paediatrics had  to pass his D.C.H. Examination. That such a practice was recognised over many years or that such was the understanding of  all concerned has been denied on behalf of the College.  Besides  discontinuance  of  a  mere  practice cannot sustain  a charge  of injury  to  legal  rights.  The practice had  not ripened into a rule and the University was under no obligation to admit only those who had passed their D.C.H. Examination.  The appellant  therefore cannot  make a grievance of  a change  in the practice for admission to the M.D. Course. [285 G-286 B]      In the  instant case  no one  was admitted  to the M.D. Course who  had secured  lesser marks than the appellant. He was sixth  in order  of merit and there were only four seats available. [286 E]      (b) If  there is a power to relax the ratio, that power must be  exercised  reasonably  and  fairly.  It  cannot  be exercised  arbitrarily   to  favour  some  students  and  to disfavour some others. [286 G]      In the  instant case  this point  of discrimination was not taken  in the writ petition filed in the High Court, not argued in  the High  Court, and  not even  mentioned in  the Special Leave  Petition. The  question  as  to  whether  the authorities have  the power  to  relax  the  ratio  and  the further question as to whether that power has been exercised arbitrarily raise  new points  into which it is difficult to enquire for  the first  time. This  plea cannot therefore be entertained. [286 H-287 A]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2324 of 1980.      Appeal by  special leave  from the  judgment and  order dated the  23rd April,  1979 of  the Allahabad High Court in Civil Misc. Writ No. 2228 of 1979.      Dr. L. M. Singhvi, and S. K. Verma for the Appellant.      Mrs. Shobha Dikshit for Respondent Nos. I & 2.      S. N.  Kacker and  B. R.  Agarwala &  P. G. Gokhale for Respondent No. 4.      The Judgment of the Court was delivered by      CHANDRACHUD, C.  J.:  The  question  which  arises  for consideration in  this appeal  is whether the appellant, Dr. R. K. 285 Khandelwal, is  entitled to  be admitted to the M. D. Course in Paediatrics of the Agra University and whether in denying

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him that  opportunity, the  State has  violated any  of  his legal rights.      The appellant  passed his M.B.B.S. Examination from the S. N.  Medical College, Agra, in December 1976 and completed his  internship   in  December   1977.  Being   desirous  of prosecuting post-graduate  studies in Paediatrics, he took a year s  house job in the Paediatrics Department of the S. N. Medical College  Hospital, which  he  completed  in  January 1979. He  then applied  for admission to the M. D. Course in Paediatrics for  the academic  year 1979-80. He was admitted to the  D.C.H. Course  but he  was refused  admission to the M.D.  Course   on  two  grounds:  First,  that  amongst  the applicants for  the M.  D. Course  in Paediatrics there were four students  who had  secured higher marks than him in the M.B.B.S. Examination,  and second,  that on the basis of the 1:1 ratio  between teachers  and students,  there were  only four  seats   available  for  the  post-graduate  course  in Paediatrics.      The appellant  filed a  writ petition in the High Court of Allahabad  challenging the  decision of  the  College  by which he  was denied  admission to  M.D. (Paediatrics). That petition was  dismissed summarily by a Division Bench of the High Court  on the ground that the relief of mandamus sought by the  appellant could  not be  granted to him since he had failed to  establish  that  any  of  his  legal  rights  was violated. This  appeal by  special leave is directed against the High Court’s order dated April 23, 1979.      The appellant,  as stated  earlier, was admitted to the D.C.H. Course  after  he  had  finished  his  house  job  in Paediatrics. His  case is  that for  many years in the past, candidates  who  had  passed  the  D.C.H.  Examination  were preferred for  admission to  the M.  D. Course  but that the University suddenly  discontinued that practice, as a result of which  he had to compete with others who had passed their M.B.B.S.  Examination.   There  is   no  substance  in  this contention and  in any  case the  appellant  cannot  make  a grievance of  a change  in the practice for admission to the particular course. Admittedly, there was no rule at any time requiring that  an applicant  seeking admission  to the M.D. Course in  Paediatrics had  to pass  his D.C.H. Examination. All that  is alleged  is that such a practice was recognised over many  years or  at least,  that  such  was  the  under- standing  of  all  concerned.  Both  the  practice  and  the understanding have been denied on behalf of the College. But apart from that, 286 discontinuance of a mere practice cannot sustain a charge of injury to  legal rights. The practice had not ripened into a rule and  the University  was under  no obligation  to admit only those  who had passed their D.C.H. Examination. We also feel some difficulty on the facts before us in accepting the contention  of   the  appellant   that  passing  the  D.C.H. Examination was a passport for admission to the M.D. Course. It may,  at the  highest, be  said that  it was  easier  for students to  get admitted  to the  M.D. Course after passing the additional  examination of  D.C.H.  after  the  M.B.B.S. Examination.      The  appellant   applied  for  admission  to  the  M.D. (Paediatrics Course  for the  academic year  1979-80. He had passed his M.B.B.S. Examination in December 1976. There were other students  who had  applied for  admission to  the M.D. Course in Paediatrics along with the appellant. Some of them had passed their M.B.B.S. Examination prior to December 1976 and had  secured higher marks than the marks obtained by the appellant in  the December  1976 Examination.  The number of

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seats being  limited, admissions  were  given  according  to merit and  the four  students who had secured highest number of marks  were given  preference to others regardless of the year in which they had passed their M.B.B.S. Examination. No one  was admitted  to the  1979-80 academic  year for the M.D. Course  in Paediatrics,  who had  secured lesser  marks than the  appellant. The four students who secured admission had obtained  marks varying  between 60.06%  to 65.80% while the appellant had secured 58.56% marks only. He was sixth in order of  merit amongst  the applicants  and there were only four seats  available bearing  in  mind  the  ratio  of  1:1 between the teachers and the students.      Dr. Singhvi,  who appears  on behalf  of the appellant, raised a  further contention  that the ratio 1:1 was relaxed from time  to time  by the University and that the appellant was discriminated  against by  the arbitrary  refusal of the authorities to  relax  the  ratio  in  his  favour.  We  are prepared to  accept that  if there  is a  power to relax the ratio, that  power must  be exercised reasonably and fairly. It cannot  be exercised  arbitrarily to favour some students and to  disfavour some others. But the difficulty in the way of the  learned counsel is that this point of discrimination was not  taken in  the Writ  Petition which was filed in the High Court,  it was  not argued in the High Court and is not even mentioned  in the Special Leave Petition before us. The question as  to whether  the authorities  have the  power to relax the  ratio and the further question as to whether that power has  been exercised arbitrarily in this case raise new points 287 into which  it is  difficult for us to enquire for the first time. We  are therefore  unable to  entertain the submission made by the counsel.      The appellant  has thus  failed to  make out  a case of injury to  any of  his legal  rights, for  which reason  the appeal must  fail. The  appeal is accordingly dismissed. But considering that  under interim  orders passed by this Court from time  to time  the appellant  has appeared for the M.D. Examination on  the completion  of the  Course, we hope that the University  and the  S.N. Medical  College will  take  a sympathetic view of the appellant’s case and have his result declared. It  may be  mentioned that  because of the interim orders passed  by this  Court directing  the College and the University to  admit the  appellant to  the M.D.  Course  in Paediatrics, the College cancelled the appellant’s admission to the  D.C.H. Course.  That may  have been right because no student can  do the  D.C.H.  Course  and  the  M  D.  Course simultaneously. But  the point of the matter is that if this Court were  not to  direct as  an interim  measure that  the appellant should be allowed to prosecute his studies in M.D. Paediatrics (subject  to the  result of  this  Appeal),  the appellant  might  have  completed  his  D.C.H.  Course  and, subject to  being admitted  to the M.D. Course within a year or so  from now  he would  have taken  his M.D.  Examination after  passing   the  D.C.H.  Examination.  The  authorities concerned will bear in mind that the appellant should not be placed in  a worse  position than he would have been in, had he not  filed this  appeal. Therefore,  if the appellant has passed the examination, he should be declared to have passed it like any other student. He should not be subjected to any disadvantage  for  the  reason  that  he  was  not  entitled initially to  be admitted to the M.D. Course in Paediatrics. If he  has failed,  he  should  be  permitted  to  take  the examination again  (or again  and again)  in accordance with the rules  of the  University. Since the result of the other

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students, who  had appeared  for the  M.D. Examination along with the  appellant, was  declared in February 1981, we hope that the appellant’s result would be declared forthwith.      There will be no order as to costs. N.V.K.                                     Appeal dismissed. 288