Madras High Court
N.Anandan vs The Principal on 10 February, 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.02.2015
CORAM
THE HONOURABLE Mr. JUSTICE K.RAVICHANDRABAABU
W.P.(MD)No.17454 of 2013
and
M.P(MD)No.1 of 2013
N.Anandan
... Petitioner
Vs.
1.The Principal
White Memorial Homoeo Medical College,
Attoor, Veeyannoor Post,
Kanyakumari District ? 629 177.
2.The Registrar,
The Tamil Nadu Dr.MGR Medical University,
No.69, Anna Salai, Chennai 629 177.
3.The Directorate of Indian Medicine &
Homoeopathy,
Chennai 600 106.
... Respondents
Prayer
Writ Petition filed under Article 226 of the Constitution of India to
issue a Writ of Mandamus to direct the respondents to permit the petitioner's
daughter Miss. A.Hema Malini to complete the 1st year senior course in BHMS
in the academic year 2013-2014 and to write the exam schedule to be conducted
in February 2014.
!For Petitioner : Mr.G.Prabhu Rajadurai
For Respondents : Mr.C.Karthick (for R2)
Mr.K.P.Krishandoss (for R3)
No appearance (for R1)
Orders reserved on : 29.01.2015
:ORDER
The petitioner seeks for a Mandamus directing the respondents to permit his daughter A.Hema Malini to complete the 1st year senior course in BHMS in the academic year 2013-2014 and to write the exam schedule to be conducted in February 2014.
2. The case of the petitioner is as follows:-
The petitioner's daughter was born on 14.05.1996. She passed 12th Standard in the year 2012. The third respondent conducted councilling on 18.09.2012 for admission into the post of Homeopathy Medicine. His daughter was selected and allotted a seat in the first respondent college to study the four year degree course in Homeopathy Medicine. The petitioner and his daughter belong to Schedule Caste Community and therefore, the Government has to pay educational fees for his daughter. When the college demanded the educational fees, the petitioner filed a writ petition in W.P(MD)No.9504 of 2013 to restrain the first respondent college from disturbing her studies. The petitioner's daughter completed the first year junior course and passed all the examinations in March 2013. His daughter was undergoing first year senior course and the exams were scheduled to be conducted in February 2014 by the second respondent University. On 20.10.2013, the first respondent called the petitioner's daughter and informed that she was under aged and therefore, the University would not accept her candidature for first year senior examination. Thereafter, the first respondent handed over the original certificates to his daughter and asked her either to redo the first year junior course after obtaining the permission of the second respondent or to go and join in some other college. The petitioner's daughter completed 16 years of age at the time of her admission and and she completed 17 years on 13.05.2013. She did not make any misrepresentation with reference to her age and she was validly admitted and allowed to complete the first year junior course successfully. Therefore, the first respondent college has no right to send her out of the college at this point of time.
3. The second respondent filed a counter affidavit, wherein it is stated as follows:-
The petitioner's daughter joined BHMS degree course in the first respondent institution during the academic year 2012-2013. Her date of birth is 14.05.1996. While registering the candidates of the first respondent institution, it was found that the petitioner's daughter has not completed 17 years of age at the time of admission or would complete the said age on or before 31st December of the year of admission to the first year BHMS degree course. Because of under age, the name of the petitioner's daughter has not been registered in the second respondent University. Under the Regulation for Homeopathy (Degree course) BHMS, Regulations 1983, no candidates shall be admitted to the BHMS degree course unless he or she has attained the age of 17 years on or before 31st December of the year of his/her admission to the first year of the course. As per the above Central Council Regulations as well as the second respondent University's Regulations, the candidates shall be admitted only after attaining the age of 17 years on or before 31st December of the year of his/her admission to the first year of the course. The University is not conducting the junior examination for the candidates doing BHMS degree course and the said examination was conducted by the first respondent institution which is not related with the University examination. The petitioner has not challenged the Regulations of the Central Council and the Regulations of this University. Therefore, the relief sought for in this writ petition is not maintainable.
4. Mr.G.Brabhu Rajadurai, learned counsel appearing for the petitioner submitted that the petitioner is a poor cooli and belongs to Schedule Caste community and her daughter has not misrepresented before the respondents at any point of time with regard to her date of birth and therefore, having given admission to his daughter, allowed her to complete the first year junior course and also allowed her to take part in the first year examination, which she has successfully completed, the respondents are not justified in contending that his daughter's admission is bad on the ground that she was under aged at the time of admission. In support of his submissions, he relied on a decision reported in AIR 1990 SC 1075 (Sanatan Gauda vs. Berhampur University), AIR 1987 SC 2305 (A.Sudha vs. University of Mysore), (1976)1 SCC 311 (Shri Krishnan vs. The Kurukshetra University), unreported decision of the Bombay High Court made in W.P(MD)No.2027 of 2008 dated 18.09.2008 and the decision of the Rajasthan High Court reported in 2006(3) WLC 43 (Mohan Lal Sukhadiya University vs. Rajesh kumar Makhija and another).
5. Though notice was served on the first respondent, there was no appearance for the first respondent.
6. The learned Standing Counsel appearing for the second respondent University reiterated the contention raised in the counter affidavit and submitted that the admission of the petitioner's daughter is illegal as she had not completed the age of 17 years on or before 31st December of the year of her admission to the first year of the course and therefore, such admission made against the Rules and Regulations, cannot be condoned or regularized merely because she completed first year and also has written the examination. In support his submission, the learned counsel relied on a decision of the Honourable Supreme Court reported in 2008(4) CTC 741 (Mahatma Gandhi University and another vs. Gis Jose and others), (1993)4 SCC 401, (Guru Nanak Dev University vs. Parminder KR.Bansal and others), unreported decision of this Court made in W.P.No.12698 of 2009 dated 13.07.2009, unreported decision of this Court made in W.P.No.12531 of 2009 dated 05.08.2009 and AIR 1987 Raj 174 (Gautam Kapoor vs. State of Rajasthan and anothers).
7. Heard the learned counsel appearing on either side and perused the materials placed before this Court.
8. The short point that arises for consideration before this Court in this matter is as to whether the admission given to the petitioner's daughter to the first year BHMS degree course is valid when admittedly she has not completed 17 years of age at the time of admission as required under the relevant Rules and Regulations.
9. It is not in dispute that the date of birth of the petitioner's daughter's is 14.05.1996 and that on the date of admitting her in the BHMS degree course she has not completed 17 years of age. It is also not in dispute that under the Regulations for Homeopathy (degree course) BHMS, Regulations 1983, one of the minimum qualification prescribed for the candidates to be admitted to BHMS (Degree) Course is that he/she should have attained the age of 17 years on or before 31st December of the year of his/her admission to the first year of the course. The petitioner herein has not challenged the said regulation contemplating age qualification. On the other hand, this writ petition is filed seeking only for Mandamus as discussed supra. No doubt, the petitioner's daughter was given admission and was allowed to complete the first year course. It is also true that the petitioner's daughter has successfully completed the first year examination. But the perusal of the intimation of allotment/selection of the petitioner's daughter, issued by selection committee, dated 18.09.2012, would show that it was only a provisional selection subject to verification of all the original certificates. Therefore, such provisional selection would not confer her a right to continue the course despite suffering a disqualification as per the Regulations. It is further pointed out by the second respondent that the first year examinations are not conducted by the University and on the other hand, they are conducted by the first respondent college and therefore, those examinations conducted for the first year is not related with the University examination. Whatever the case may be with regard to the examination written by her, the fact remains that as on the date of admission into the first year degree course, admittedly, she has not completed the age of 17 years as required under the Regulations. Therefore, such admission is certainly an irregular admission, even though it was not due to any misrepresentation or fraud played upon by the petitioner's daughter. Whether such irregular admission, made in violation of Rules, can be sustained or not, has been considered by the Honourable Supreme Court in a decision reported in 2008(4) CTC 741 (cited supra), wherein the Apex Court has held that the misplaced sympathies should not have been shown in total breach of the Rules. In that case, a student not having University prescribed cut off marks for admission to M.Sc computer course was admitted to the said course by the college in derogation of University fixed standard and she was further allowed to complete the course and write the examination. The Apex Court pointed out that the permission given to the student therein to allow her to continue with the course was clearly incorrect. After having found show, the Apex Court has observed at paragraph Nos.9 and 10 as follows:- ?9. The misplaced sympathies should not have been shown in total breach of the Rules. In our opinion, that is precisely what has happened. Such a course was disapproved by this Court in Regional Officer, CBSE vs. Ku. Sheena Peethambaran and others, 2003(7) SCC 719. In paragraph 6 of the Judgment, this Court observed as follows:-
?6. This Court has on several occasions earlier deprecated the practice of permitting the students to pursue their studies and to appear in the examination under the interim orders passed in the petitions. In most of such cases, it is ultimately pleaded that since the course was over or the result had been declared, the matter deserves to be considered sympathetically. It results in very awkward and difficult situations. Rules stare straight into the face of the plea of sympathy and concessions, against the legal provisions....?
10. In the present case, the College where the student was admitted, in breach of all possible rules allowed her not only to complete the course but also to write the examination which was totally illegal.
10. In (1993)4 SCC 401 (cited supra), the Honourable Supreme Court has observed at paragraph Nos.6 and 7 as follows:-
?6.Learned counsel for the respondents, however, sought to maintain that the two candidates had now completed the 12 months of their internship and it would be hard on them if their internship is reckoned from the date of their passing the MBBS examination.
7.Shri Gambhir is right in his submission. We are afraid that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does no service to anyone. From the series of orders that keep coming before us in academic matters, we find that loose, ill- conceived sympathy masquerades and interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence. This is subversive of academic discipline, or whatever is left of it, leading to serious impasse in academic life. Admissions cannot be ordered without regard to the eligibility of the candidates. Decisions on matters relevant to be taken into account at the interlocutory stage cannot be deferred or decided later when serious complications might ensue from the interim order itself. In the present case, the High Court was apparently moved by sympathy for the candidates than by an accurate assessment of even the prima facie legal position. Such orders cannot be allowed to stand. The Courts should not embarrass academic authorities by themselves taking over their functions.?
11. The learned Single Judge of this Court considered the very same issue in W.P.No.12698 of 2009 and observed in his order dated 13.07.2009 at paragraphs Nos.7 and 9 as follows:-
?7. The learned counsel appearing for the petitioner had submitted that the petitioner had completed 16 years 11 months and 14 days, as on 31.12.2009. She is 16 days short of the minimum age of 17 years prescribed in the prospectus, for admission to M.B.B.S/B.D.S. Course. The petitioner fulfills all other conditions and she would have had a very good chance of being selected for the medical course. In fact, the petitioner's daughter, Ms.SSwedehini, had been granted the necessary relaxation of age limit, while writing the 10th standard examinations.
9. In view of the submissions made by the learned counsels appearing for the petitioner, as well as the respondents, this Court is of the considered view that the petitioner has not shown sufficient cause or reason for granting the reliefs, as prayed for by the petitioner, in the present writ petition. The minimum age limit prescribed in the prospectus issued by the first respondent, for admission to the M.B.B.S/B.D.S., course, for the academic year 2009-2010, is based on the policy decision of the Medical Council of India. The Medical Council of India has not been made a party t the present writ petition. The age limit prescribed for admission to the M.B.B.S/B.D.S courses cannot be relaxed, merely for the reason that the candidate had been permitted to write the 10th standard examinations, by relaxing the age limit prescribed for writing the said examinations.?
12. In another unreported decision made in W.P.No.12531 of 2009 dated 05.08.2009, the learned Single Judge of this Court has observed at paragraph No.15 as follows:-
?15. Since the petitioner would not be completing 17 years of age, on or before 31.12.2009, he is not qualified to apply for the M.B.B.S./B.D.S Courses, for the academic session 2009-2010. Merely for the reason that the petitioner had been permitted to write the 10th Standard and the plus two examination, it cannot be a ground for granting the exemption in favour of the petitioner, in respect of the age limit prescribed under Clause 4 of the prospectus issued by the second respondent. In view of the decisions cited supra it is clear that the Courts of law ought to be reluctant to interfere in matters relating to education, especially, when certain conditions of admission to medical courses are prescribed by the experts in the medical and its allied fields. In such view of the matter, this Court is not inclined to grant the relief, as prayed for by the petitioner. As the writ petition is devoid of merits, it stands dismissed. No costs. Consequently, connected writ petition misrepresentation petition is closed.?
13. In AIR 1987 Raj 174 (cited supra), the Full Bench of Rajasthan High Court has observed at paragraph No.4 that minimum age limit prescribed for entering into the Medical College as 17 is being followed through out the country for a long time and there is no invalidity attached to the provisions prescribing the minimum age of 17 years.
14. No doubt, the learned counsel for the petitioner in support of his submission, relied on the following decisions:-
(i)In AIR 1990 SC 1075 (cited supra), it was observed that the refusal to declare results of examinations by University on ground of ineligibility to be admitted to law course is barred by principles of estoppel.
(ii) Likewise in (1976)1 SCC 311 (cited supra) the Honourable Supreme Court has observed that power to withdraw the candidature before examination cannot be exercised after the candidate has appeared at the examination.
(iii) In AIR 1987 SC 2305 (cited supra), the Honourable Supreme Court has observed that the students who are innocents were admitted to the colleges for the sake of capitation fee in some cases, should not be penalised and should be allowed to continue their studies in the respective Engineering Colleges in which they were granted admission.
(iv) In AIR 1989 SC 823 (cited supra), the Honourable Supreme Court has found that admission of a student, who had secured less than 60% of the marks in diploma examination cannot be kept in abeyance subsequently as the application has been accepted after considering all facts.
(v) In the other two decisions of Bombay High Court and Rajasthan High Court were also relied on similar lines.
15. It is to be seen that all the above decisions relied on by the learned counsel appearing for the petitioner were earlier in point of time while considering the later decision of the Honourable Supreme Court in Mahatma Gandhi University case reported in 2008(4) CTC 741. In the above decision, the Apex Court has categorically observed that the students who were admitted in breach of all possible Rules and allowed to continue and complete the course and also to write the examination are totally illegal. When that being the categorical pronouncement made by the Honourable Supreme Court, I find that the above decision is directly applicable to the case on hand.
16. More over, in the other two unreported decisions of the learned single Judge of this Court in W.P(MD)No.12531 of 2009 and W.P(MD)No.12698 of 2009 dated 05.08.2009 and 13.07.2009 respectively as discussed supra, the very same issue was considered and found that the admission so made against the Regulations and Rules cannot be sustained. Therefore, I am constrained to follow the above decisions of the Honourable Supreme Court reported in 2008(4) CTC 741 (cited supra) and other unreported decisions of the learned single Judge. Consequently, I find no merits in this writ petition and accordingly, the same is dismissed. However, dismissal of this writ petition will not preclude the respondents from considering the case of petitioner's daughter for redoing the first year course at the first respondent college, if such course of action is viable and permissible, by taking into consideration of the present facts and circumstances of the case. No costs. Consequently, connected Miscellaneous Petition is closed.
.02.2015 Index:Yes/No Internet:Yes/No skn To
1.The Principal White Memorial Homoeo Medical College, Attoor, Veeyannoor Post, Kanyakumari District ? 629 177.
2.The Registrar, The Tamil Nadu Dr.MGR Medical University, No.69, Anna Salai, Chennai 629 177.
3.The Directorate of Indian Medicine & Homoeopathy, Chennai 600 106.
K.RAVICHANDRABAABU, J skn Order made in W.P.(MD)No.17454 of 2013 and M.P(MD)No.1 of 2013 10.02.2015
