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STATE OF UTTAR PRADESH AND ORS.  v.  

KM. RAMONA PERHAR  

SEPTEMBER 2, 1994  

[M.N. VENKATACHALIAH, CJ., AND B.P. JEEVAN REDDY, J.)  

Admission to Professional Courses-M.B.B.S.-Transfer from Kar- nataka to Uttar Pradesh-Rejected by U.P. Government in accordance with_  its policy decision-High Court directing tr an sf er without reference to  Government's policy-Held such orders cannot be sustiined.  

Constitution of India, 1950:  

Art. 226-Power of judicial review-Not to be exercised as' a. matter of  course without reference to the legal principles governing the power.  

Practice & Procedure:  

A  

B  

c  

D  

Interim orders-Passing of-Power to do so coupled with duty to  consider all relevant facts and legal principles--Admission to educational  institutions not to· be ~anted by interim orders without fully hearing the other E  side.  

The respondent obtained admission in a private medical college in  Karnataka in 1990. In 1992 she applied for a transfer to Allahabad. The  request was rejected following the U.P. Government's policy that no one  outside the State shall be permitted to be transferred to a medical college F  within the State. The respondent filed a writ petition before the High  Court.  

On 2.4.1992 the Single Judge before whom the m!ltter was listed  asked the Standing Counsel for U.P. to obtain ins~ctions from the G  Gc-:ernment. On 7.4.1992 the matter was ~isted again and the Single Judge  

, granted three more weeks' time to the Standing Counsel for filing counter  affidavit and at the same time passed an order to provisionally admit the  respondent. Ultimately, by order dated 12.11.1992 another Single Judge  before whom the matter was listed allowed the writ petition. Against this  order the State Government preferred the present appeal. H  

75

76 SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.  

A Allowing the appeal, this Court  

B  

HELD : 1. A mandatory Interim order, which had the consequence  of displacing the student from a private college in Karnataka to a govern- ment college in Allahabad was passed as a matter of routine. This court  has emphasised in several decisions that passing of interim orders - more  

particularly of a mandatory natu~ like the present one • is neither a  matter of -course nor a matter of charity. The power to grant interim orders  is coupled with the duty to consider all the relevant facts and legal  principles relevant in that behalf. Admissions to educational institutions  

should not be granted by interim orders • at any rate, not without fully  C bearing the respondents. [78-C-D]  

D  

2. The learned Single Judge who finally disposed of the writ petition  was conscious of the fact that the order of the Government admitting the  petitioner. into a college in U.P. was in obedience to the aforesaid interim  orders of the High Court and yet such order of the govt. was made the  basis for allowing the writ petition. In this order too, there is no reference  to the government's policy. Nor was any effort made to find out how many  others have applied for such transfer and who among them is more  deserving. Again the matter appears to have been dealt with as a matter  of course without reference to the relevant legal principles governing the  

E power of judicial review vested in High Court by Article 226 of the Con- stitution. [79-B]  

F  

G  

H  

3. The respondent has invited the said orders and she bas to take  the consequences flowing from their invalidation. Similar matters are  being heard by the Allahabad High Court now and it is but proper that  this matter too is remitted to the High Court for an appropriate 'decision  on merits in accordance with law. (79-D]  

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5874 of  1994.  

From the Judgment and Order dated 12.11.92 of the Allahabad High  Court in C.M.W.P. No. 11612 of 1992.  

Ms. Rachna Oupta and R.B: Misra for the Appellants.  

Sumi Gupta and H.K. Puri for the Respondent.  

,.

. .\  

.STATE v. RAMONA PERHAR 77  

The following Order of the Court was delivered : A  

Leave granted. Heard counsel for both the parties.  

The appeal is preferred against the judgment of a learned Single  Judge of the Allahabad High Court allowing the writ petition filed by the  respondent. B  

The respondent obtained admission in a private medical college in  Karnataka (J.J.M. Medical College, Devangera) in July, 1990. The said  college is said to be recognised by the Indian Medical Council. Sometime,  in early 1992, the respondent applied to the Government of Uttar Pradesh C  for transferring her to the medical college at Allahabad. This request was  rejected following the policy enunciated by the Government of Uttar  Pradesh that no one from outside the State shall be permitted to be  transferred to a medical college within the State. Thereupon the respon- dent approached the High Court of Allahabad by way of the present writ  petition. On April 2, 1992, it appears, the learned Standing Counsel for the D  State of Uttar Pradesh was asked to obtain instructions in the matter.  Within five days, i.e., on April 7, 1992, the writ petition came up again for  orders before S.C. Verma, J . The learned Judge observed that though the  learned Standing Counsel was asked to obtain instructions, he has neither  filed a counter-affidavit nor has obtained any specific instructions to op- E  pose the writ petition. The learned Judge granted him three more weeks  to file a counter-affidavit and at the same time made the following direc- tion:  

"The Respondent No. 3 is directed to provisionally admit the  petitioner to second professional M.B.B.S. course. The petitioner F  may be allowed to presume (pursue?) her studies in the said  course. The result of the examination shall not be declared until  further orders of this court.  

The provisional admission is required to be made on 5 percent G  vacancies in accordance with the provisions of Regulations framed  under the Indian Medical Council Act."  

The ord.'!r speaks for itself. To expect the Standing counsel to obtain  instructions in the matter within five days was really not practicable nor  was the matter of such urgency that it could not wait for three more weeks H

78 SUPREME COURT REPORTS (1994] SUPP. 3 S.C.R.  

A which was granted to the learned Standing counsel on that .. date to file the·  counter-affidavit. The learned Judge has ~ot even indicated prima facie that  the policy of the Uttar Pradesh Government not to permit transfer of  students form outside the State is bad and, if so, why. Assuming that such  a transfer is permissible, the question .would arise, who among all the  

B applicants is more deserving. No effort was made by the learned Judge to  find out whether there are any other students similarly placed who-may be  seeking such transfer and who among them is mor~ deserving or more  meritorious, as the case may be. A mandatory Interim order, which had  the consequence of displacing the students from a private college in  Karnataka to a government college in All!lhabad was passed as a matter  

C of routine. This court has emphasised in several decisions that passing of  inerim orders - more particularly of a mandatory nature like the present  one - is neither a matter of course nor a matter of charity. The power to  grant interim orders is coupled with the duty to consider all the relevant  facts and legal principles relevant in that behalf. Admissions to educational  

D institutions should not be granted by interim orders - at any rate, not  without fully hearing the respondents.  

. E  

F  

G  

The writ petition ultimately came up before V. Bahuguna, J. on  November 12, 1992. The writ petition was allowed under a short order  which reads thus:  

"Heard learned counsel for the parties. The State Government  allowed the transfer of the petitioner, consequently the Principal  passed an order on 13-8-1992 admitting the petitioner in MLN  Medical College, for the ll Professional Course of MBBS. This  order of State Government has been passed in subsequent to the  order of this court dated 7.4.1992. This court has permitted a  provisional admission to the petitioner with the right to appear in  the examination. As the State Government has permitted the  petitioner to pursue her studies in aforesaid course in the college  and she also appeared in aforesaid examination her result shall be  declared under the aforesaid observations. The writ petition· is  disposed of."  

A reading of the order shows that the main reason for allowing the  writ petition is the permision granted by the State Government to the  

H respondent (writ petitioner) to pursue her studies in the Allahabad college.

STATEv. RAMONAPERHAR 79  

The learned Judge has himself recognised that the said order of the A  Government was passed "subsequent to the order of this court dated  7.4.1992". In other words, the learned Judge was .conscious of the fact that  the said order of the Government was in obedience to the aforesaid interim  orders of the High Court and yet such permission was made the basis for  allowing the writ petition. In this order too, there is no reference to the B  government's policy. Nor was any effort made to find out many others have  applied for such transfer and who among them is more deserving. Again  the ma~ter appears to have been dealt. with as a matter of course without  reference to the relevant legal principles governing the power of judicial  

review vested in High Court by Article 226 of the Constitution.  

In view of the above, it is not possible to sustain either of the orders  aforesaid. Both the orders are accordingly set aside.  

Sri Sunil Gupta, learned counsel for the respondent submitted that  

c  

the respondent was admitted in Allahabad college as far back as April,  1992, that she is about to complete her course and that it would not be just D  and proper to disturb her at this stage. We are not impressed by this plea.  The respondent has invited the said orders and she has to take the  consequnces flowing from their invalidation. Be that as it may, similar  matteres are being heard by the Allahabad High Court now and it is but  proper that this matter too is remitted to the High Court for an appropriate E  decision on merits in accordance with law.  

The appeal is allowed with costs. The High Court shall dispose of  the writ petition in accordance with law. Appellants' costs assessed at Rs.  5000 consolidated.  

G.N. Appeal allowed.