ORDER M. K. Mukherjee, C. J.
These special appeals have been preferred against a common judgment passed by a learned Judge of this Court disposing of three writ petitions filed by three students who were denied admission to the M.B.B.S. course of the Banaras Hindu University, Varanasi (hereinafter referred to as the 'University') for the session 1992-93. Facts leading to the filing of the writ petitions and, for that matter, these appeals are as under.
2. In February, 1992, the University issued an advertisement inviting applications from eligible candidates to appear in the pre-Medical Test ('PMT' for short) which was to be held on June 4, 1992, for selection for admission to the 1st year M.B.B.S. course for the ensuing session. The total number of seats for the course open for all students was 50; besides 5 supernumerary seats were earmarked for the students of the University. The eligibility requirements and other details relating to admission to the course were incorporated in an information leaflet issued in connection with the test; and in respect of the supernumerary seats it was stated therein as under:--
"A quota of 5 supernumerary seats is reserved for the bona fide students of degree course who have attended the prescribed courses of studies by having actually studied and pursued the course in accordance with the attendance requirement, that is having a minimum of 65% attendance in the course in 1991-92 session. The minimum attendance of 65% will be computed only at the end of the session for determining whether a student is on the roll of the University on the date of the PMT. A student who does not fulfil the minimum attendance of 65% will not be treated as a bona fide student on the roll of the University on any ground. The student will also be required to submit a 'Bona fide Student Certificate' only in the prescribed pro forma issued by the Institute of Medical Sciences B.H.U. No other certificate issued by any Faculty or College in any other format will be entertained. A separate merit list of such students will be drawn and they will be selected from amongst themselves in order of merit in the PMT. However, their names will also be placed on the general merit list in accordance with the marks obtained by them in PMT and they will be considered for selection against the general seats accordingly as was being done previously. In case of equal marks of the last seat, the selection for the last seat will be made in accordance with the Clause 4 (a, b, c, d) above as applicable to the general candidates."
In the PMT, held pursuant to the above advertisement, the three writ petitioners, namely, Ashish Rai, Anoop Tripathi and Km. Ruchi, all of whom were students of B.Sc. Course (Part I) of the University, figured as candidates, besides many others. In due course the results were declared and separate lists of the successful candidates for the 50% general and 5 supernumerary seats were published along with the names of those who were in the respective waiting lists. In the list of selected candidates for the supernumerary seats, the name of the writ petitioner Km. Ruchi was placed at serial No. 5 while the names of other two writ petitioners, namely, Ashish Rai and Anoop Tripathi, were placed at serial Nos. 7 and 9 respectively. However, as some of the selected candidates out of that list did not join, the writ petitioners improved their positions. In spite thereof they were not granted admission as they did not fulfil the attendance requirement as stipulated in the leaflet, that is, a minimum of 65% attendance in the B.Sc. (Part I) Course of the year 1991-92. They then made representations to the University authorities requesting them to reduce the percentage of attendance on grounds mentioned therein. By a letter dated May 28, 1992, the Deputy Registrar of the University recommended their cases to the Director of the Institution of Medical Sciences of the University pointing out that since the attendance requirement for appearing in B.Sc. examination had been fixed at 60% the attendance requirement for PMT should also be suitably modified. The Director of Institute accepted the proposal and reduced the attendance requirement to 60% as no step was being taken in terms of the decision of the Director, Ashish Rai, one of the three writ petitioners, filed a writ petition in this Court, which was disposed of by a learned Judge of this Court by an order dated July 29, 1992, with a direction that the matter should be placed before the Academic Council for taking appropriate decision in the matter at the earliest. In terms of the said direction the Academic Council held a meeting wherein it resolved not to reduce the mninimum attendance requirement of 65% and communicated its decision to Ashish Rai. Thereafter the three writ-petitioners filed the three writ petitions, out of which these appeals arise, before a learned Judge of this Court, praying for a writ of certiorari quashing the decision of the Academic Council dated August 14, 1992, and for a writ of mandamus directing the University authorities to admit them for the M.B.B.S. course notwithstanding the fact that they had less than the minimum attendance requirement. In the writ petitions Dharmendra Kumar Pandey, Pankaj Verma and Miss Farah Durrani, who were also students of the University and had secured lesser marks in the PMT than some of the writ petitioners, but were admitted as they had fulfilled the attendance requirement were impleaded as party-respondents.
3. Before the learned Judge three points were urged in support of the writ petitions. It was first contended that insistence of 65% attendance was against the provisions of the Special Ordinance No. 11 issued by the University laying down, inter alia, the eligibility requirements for PMT. It was next contended that as the Academic Council of the University had passed a resolution on March 25, 1992, reducing the attendance requirement for B.Sc. and other examinations of the University to 60% for the academic year 1991-92 in view of prolonged agitations and strikes therein, the attendance requirement of 65% only for PMT was arbitrary and unreasonable. It was lastly argued that the Director of the Institute of Medical Sciences being the only competent authority to deal with PMT and all matters in connection therewith and he having passed an order on May 29, 1992, reducing the attendance requirement from 65% to 60%, it was not open to the other authorities of the University to refuse admission to the writ petitioners.
4. After hearing the learned Counsel appearing for the parties the learned Judge accepted the first two contentions and declined to decide the third. On such acceptance the learned Judge disposed of the three writ petitions with the following orders and directions:--
"Writ petition No. 30476 of 1992, Km. Ruchi v. B.H.U. & others is allowed. The impugned order refusing her admission to M.B.B.S. course is quashed. The attendance requirement for PMT is declared ultra vires. The respondents are directed to admit the petitioner (Km. Ruchi) to M.B.B.S. course forthwith. The respondents are further directed to give an opportunity to Sri Sumit Samant and Sri Surya Nath 'Tripathi for admission to the above course immediately within a week from the date of receipt of certified copy of this judgment. In case they join, the writ petition No. 28590 of 1992, Ashish Rai v. Banaras Hindu University, will stand dismissed and the admission granted to Sri Pankaj Verma will also stand quashed. However, if the above two persons do not join or do not respond within two weeks from the date of offer made to them by the University admission will be granted to Sri Ashish Rai petitioner in writ petition No. 28590 of 1992 and the admission already granted to Sri Pankaj Verma will be maintained and will not be disturbed. Admission granted to Miss Farah Durrani, respondent No. 7 is quashed. Writ petition No. 28591 of 1992 filed by Sri Anoop Tripathi is dismissed.
Before parting with the case, it may be observed that in case it is possible for the University to admit the petitioner without disturbing the admission of respondents Nos. 6 and 7, the University authorities may do so and the respondents Nos. 6 and 7 may also be permitted to continue their course, as they have already been admitted and are pursuing their studies so far."
5. Assailing the above findings, orders and directions of the learned Judge, Anoop Tripathi and the University have filed two separate appeals while Miss Farah Durrani and Pankaj Verma have jointly filed two appeals arraying there in Ashish Rai and Km. Ruchi as the principal respondent respectively. Ashish Rai has filed an appeal assailing only the above quoted direction of the learned Judge. All the appeals have been heard together and this judgment will dispose of them.
6. To appreciate the contentions raised in these appeals it will be profitable at this stage to refer to the relevant provisions of the Act, Statutes and Ordinances under which the University was constituted and it functions. The university was constituted by the Banaras Hindu University Act, 1915 ('Act' for short). Section 8A of the Act lays down the authorities of the University and one of the authorities mentioned therein is the Academic Council. The role of the Academic Council is delineated in S. 11 of the Act, which reads as under :--
"The Academic Council shall be the academic body of the University and, subject to the Act, the Statutes and Ordinances, shall have charge of the organization of study and research in the University and the Colleges, the courses of study and the examination of students and the conferment of ordinary and honorary degrees and shall exercise such other powers and perform such other duties as may be conferred or imposed on it by the Statutes and Ordinances, and shall the right to advise the Executive Council on ail academic matters."
7. Section 18 of the Act, so far as it is relevant for our present purposes, reads aS follows -
"Subject to the provisions of this Act and the Statutes, the Ordinances may provide for all or any of the following matters, namely:--
8. Under Statute 26, various authorities of the University, including the Academic Council, have been given power to appoint boards or committees consisting of members of the authority making such appointment and such board or committee is empowered to deal with any subject assigned to it subject to subsequent confirmation by the authority which appointed it. In exercise of the above power the Academic Council has constituted various boards including one entitled 'Admissions Co-ordination Board (A.C.B.). The relevant provision relating to the function of the Board reads as under :--
"..... to lay down general admission policy which takes into consideration measures to be adopted for reducing pressures on the University system and laying down minimum eligibility of admissions to different courses in consonance with available resources of the University. The Committee will be concerned with formulation of general admission policy and guidelines and recommendations to the Academic Council regarding
(i) minimum eligibility requirements and principles of weightage and reservation, if permissible, to different courses and hostels and fixing of last dates of admission,
(ii) printing and publication of prospectuses, application forms, bulletins of information and advertisements concerning admission to the University;
(iii) annual review of admissions made in every academic session and submission of reports to the Academic Council;
(iv) investigation in irregularities in admissions and violation of Ordinances referred to it by the Academic Council and or its Chairman and cancellation of such admissions;
(v) proposals to the Academic Council for laying down of Ordinances on admissibles, or their modification, or amendment whenever required for improvement in the quality of standards of admittees on merit;
(vi) any matter pertaining to admission referred to it by the Academic Council and or its Chairman."
In exercise of the powers conferred under S. 18 of the Act the University also instituted Special Ordinances for admission to :
(a) The Institute of Medical Sciences, Institute of Technology and the Institute of Agricultural Sciences.
(f) Faculty of Law, Faculty of Education, Faculty of Commerce and Faculty of Management Studies
9. Chapter I of the Special Ordinance, which relates to the Institute of Medical Sciences, lays down eligibility requirements to appear at the PMT for admission to the 1st Year of the M.B.B.S. course of the Institute of Medical Sciences of the University. Besides, it lays down all details relating to conduct of the test, including the syllabus, manner of sending application forms and nature of question papers. Clause 11 thereof reads as under :--
"A quota of 5 supernumerary seats is reserved for the Students who are on roll of the Banaras Hindu University at the time of appearance in the Pre-Medical Test and qualify in the PMT. Such students will be selected from amongst themselves in order of merit in the PMT. In case of equal marks of the last seat, the selection for the last seat will be made in accordance with Clause 10 above as applicable to the general candidates."
10. From a plain reading of the above quoted Clause it is evidently clear that the only requirement for a candidate to avail of the reserved quota is that he must be on the roll of the University at the time of appearance in the PMT and that he has to come within the best five in order of merit in the selection list. In other words, the above quoted ordinance nowhere lays down any requirement regarding attendance. If, therefore, PMT has to be held under this Ordinance, the University cannot insist upon the attendance requirement as laid down in the Information leaflet, which admittedly has been issued at the instance of the A.C.B. constituted by the Academic Council.
11. Mr. Verma, learned counsel appearing for the University, submitted that in view of the powers conferred under S. 11 of the Act read with Statute 26, the Academic Council, through the A.C.B., was fully justified in laying down the minimum eligibility requirements for admission to different courses of the University and for that matter to lay down the criteria regarding attendance. Having given our anxious consideration to the above quoted and other related provisions of law, we are unable to accept the contention of Mr. Verma.
12. When Sections 18(c) and 11 of the Act, quoted earlier, are read in juxtaposition it is seen that while the ordinances may make provisions for the qualification for admission to courses of study for degrees etc. of the University, the Academic Council has the charge of the organisation of study and research in the University and the Colleges, Obviously, therefore, it is under the authority of S. 18(c) that the Special Ordinance has been instituted by the University to lay down the qualification and other requirements for admission to M.B.B.S. course in the University; and it is after passing the PMT when the students enter the threshold of the University that the Academic Council comes into the picture to take charge of the students who have so entered in respect of matters as detailed in S. 11 including courses of study. In the ordinary parlance, 'course' means a programme of instructions, prescribed number of instruction periods or classes in a particular field of study. The powers so exercisable under S. 11 of the Act cannot therefore refer to a stage prior to the students entering into the University or the College as the case may be. As against that, the PMT has been prescribed through the Special Ordinance to entitle a student to get a pass-port to enter into the University. In other words, at the stage of admission to the University, the Academic Council has no power to wield much less to lay down the eligibility criteria. In this connection reliance may be placed on the Division Bench judgment of this Court in the case of Awadhesh Kumar Saxena v. Vice-Chancellor, Banaras Hindu University, reported in (1989) 2 UPLBEC 379, wherein it was observed as under:--
"Section 11 inter alia, provides that the Academic Council shall be the academic body of the University and shall have charge of the organization of study and research in the University and Colleges, the courses of study and the examination of students and conferment of ordinary and honorary degrees and shall exercise such other duties as may be conferred or imposed on it by Statutes and Ordinances, and shall have the right to advise the Executive Council on all academic matters. We have already taken the view that a Pre-Medical Test the purpose of which is to enable a student unlock the doors so as to gain entry into the table of learning is distinct and separate from an examination held by the University for the purpose of conferment of diploma and degrees. We have, therefore, no hesitation in taking the view that a Pre-medical Test cannot be termed as an academic matter within the meaning of Section 11."
Since we are in respectful agreement with the above judgment, we must hold that Section 11 of the Act, or for that matter Statute 26 does not entitle the Academic Council to deal or interfere with PMT as it does not relate to any course of study in the University or examination in connection therewith. That necessarily means that, as the eligibility criteria for PMT does not include the minimum attendance in the University, the Academic Council has no power to insist upon such attendance requirement.
13. Our attention was however drawn by Mr. Verma to the powers and functions of the A.C.B. as earlier quoted, and it was pointed out that the A.C.B. was competent to lay down minimum eligibility requirement. This contention cannot be accepted for if the Academic Council does not possess any power to control the pre-entry stage of the University or the College, its delegatee, namely, the A.C.B., cannot claim any such power. This apart, if the contention of Mr. Verma is considered in context of the powers-provided by the Special Ordinances vis-a-vis the powers of the A.C.B. it would lead to an anomalous situation as the discussion to follow will indicate. The Special Ordinances relating to PMT lay down hot only the eligibility requirements but also the manner in which the application has to be made for appearing in the test, the fees payable in respect thereof nature of questions that would be asked, the syllabus for the test and all other details relating to the manner of holding the test. Now if the A.C.B, is given the power of laying down the admission policy in respect of such test under authority of Statute 26, then it can lay down all norms relating to educational requirements and tests contrary to those in the Ordinances. Such a power cannot be given to the Academic Council and for that matter to the A.C.B. as that would render the Special Ordinances, which has been enacted for a special purpose, otiose. While on this point it is interesting to note that under
- under Clause 8 of the Special Ordinances it is the schedule of the PMT which could only be indicated in the Information leaflet and nothing else.
14. On the conclusion as above, we uphold the first finding of the learned Judge that the attendance requirement for PMT is ultra vires, we, therefore, need not delve into and decide whether the other finding of the learned Judge is correct nor not.
15. From the materials on the record it is apparent that the University had prepared a merit list of the candidates who had become eligible for being considered for admission in the M.B.B.S. course as against the five supernumerary seats reserved for Banaras Hindu University category candidates. This merit list had been prepared on the basis of the performance of the candidates in the Pre-Medi-cal Test. This list contained the names of 1) Sanjaya Kumar Srivastava, 2) Ritesh Kumar Singh, 3) Sumit Samant 4) Surya Nath Tri-pathi and 5) Kumari Ruchi. The University had also prepared a waiting list of five candidates on the basis of merit as indicated above. This waiting list consisted of the names of 6) Dharmendra Kumar Pande, 7) Ashish Rai, 8) Pankaj Varma, 9) Anoop Tripathi and 10) Miss Farah Durrani.
16. As is clear from the letter dated 30-7-92 issued by the Director of Medical Sciences, Banaras Hindu University, Varanasi, a true copy of which has been filed as Annexure 10 to the writ petition of Miss Ruchi, only seven candidates out of the ten referred to above appeared before the Admission Committee for Interview. They were 1) Mr. Tiesh Kumar Singh 2) Miss Ruchi, 3) Mr. Dharmendra Kumar Pande, 4) Mr. Ashish Rai, 5) Mr. Pankaj Varma, 6) Mr. Anoop Tripathi and 7) Miss Farah Durrani.
17. It is noticeable that even though the names of Sumit Samant and Surya Nath Tripathi appeared in the merit list yet they did not appear before the Admission Committee for Interview on 30-7-1992.
18. It appears that after holding the interview of the candidates, the Admission Committee, while preparing the select list, eliminated all those candidates who had to their credit an attendance of less than 65%. The result was that only four candidates viz.
Ritesh Kumar Singh, D. K. Pande, Pankaj Varma and Miss F. Durrani were brought on the select list and granted admission.
19. It was thereafter that the writ petitions giving rise to the present Special Appeals were filed and in one of them, in the writ petition filed by Ashish Rai, this Court passed an order for keeping in reserve one vacant seat.
20. Thus, as against the five supernumerary seats four were filled in by granting admission to candidates whose names appeared in the merit list at serial Nos. 2 and 5 and at serial Nos. 8 and 10 in the waiting list.
21. In the facts and circumstances, therefore, if elimination on the ground of percentage of attendance was not permissible, there could be no justification for not granting admission to Ashish Rai who figured at serial No. 7 in the waiting list. This Court had already directed for keeping one seat vacant for accommodating him. He is, therefore, entitled to be admitted as against this vacant seat.
22. As already noticed above, Sumit Samant and Surya Nath Tripathi had not appeared before the Admission Committee for interview on 30-9-92. The University had refused to grant them admission as against the supernumerary seats. These candidates had submitted to this denial by the University. They did not agitate the matter any further and did not approach this Court for any relief. In these circumstances, we are of the clear opinion, that no ground at all had been made out for granting them any relief suo motu as done by the learned Single Judge and the direction issued under the impugned order for giving these candidates an opportunity for admission to the course in question was wholly uncalled for.
23. Further, we notice, that the M.B.B.S. course in question had begun on 1-8-92. Miss Farah Durrani had been granted admission in the said course and there is no dispute that she has been pursuing her studies. From the materials on the record it is apparent that Miss F. Durrani had also been selected for admission to M,B.B.S. course after appearing in the All India Entrance Examination 1992 and had been allotted a seat in the course at Medical College, Aurangabad on 1-10-1992. She could not avail of this opportunity on account of her having been granted the admission which has been challenged in the present proceedings. She had also to forego her admission to B.Sc. (Hon) course for which she had to report by the end of August, 1992. Moreover, she has also executed a bond in favour of the University whereunder she cannot discontinue her studies until she has completed the first year professional course. In such peculiar circumstances, we do not think that the present one was a fit case for the quashing of the admission granted in favour of Miss F. Durrani while exercising the discretionary jurisdiction envisaged under Art. 226 of the Constitution of India,
24. In case the admission granted to Miss F. Durrani was not liable to be disturbed, in that event, there can be no justification for withholding the admission of Anoop Tripathi who had appeared before the Admission Committee on 30-7-1992 and had secured a position above Miss F. Durrani the merit list, being placed at serial No. 9, therein.
25. In the circumstances of the case, since the University itself is responsible for creating such a situation, we think it expedient in the interest of justice that Anoop Tripathi be also granted admission in the M.B.B.S. course in question.
26. It has been urged that as super-numarary seats are only five and if Ritesh Kumar Singh, Miss Ruchi, D.K. Pande, Pankaj Varma and Ashish Rai are accomo-dated against the five seats, it will be difficult to accommodate Ahoop Tripathi and Miss Farah Durrani. This contention is not at all acceptable. Considering the number of admissions granted in the M.B.V.S. course in question both in general and Banaras Hindu University categories, the admission of two more candidates will not be of any substantial effect.
27. In the totality of the circumstances of the present case, we are of the opinion, that the number of the supernumerary seats should not come in the way. As observed by the Apex Court in its decision in the case of Dinesh. Kumar v. M.L.N. Medical College, Allahabad reported in AIR 1985 SC1059, a direction to grant admission can be given as an exceptional case even if the teacher student ratio is violated by granting such an admission. We feel that the University in the present case has itself created a situation where it has become necessary to issue such a direction in the interest of justice.
28. In view of our conclusions indicated hereinabove the Special Appeals of Ashish Rai and Banaras Hindu University succeed in part and the direction issued under the impugned judgment for giving an opportunity to Sumit Samant and Surya Nath Tripathi for admission to the course in question and admit them is set aside. The respondents Nos. 1 to 4 in the Appeal of Ashish Rai are directed to grant admission to Ashish Rai is claimed within a week of the production of a certified copy of this order before them.
29. The Special Appeal of Miss Farah Durrani and Pankaj Varma directed against the admission of Ashish Rai is dismissed.
30. The Special Appeal of Anoop Tripathi succeeds in part and setting aside the impugned judgment dismissing his writ petir tion, respondents Nos. 1 to 4 in this appeal are directed to grant him admission in the course in question within a week from the production of a certified copy of this order before them.
31. The Special Appeal of Miss F. Durrani succeeds in part and the impugned judgment quashing her admission in question is set aside.
32. This appeal is, however, dismissed so faras it relates to the relief directed against the admission of Kumari Ruchi and Sri D.K. Pande.
33. As a consequence, the admissions already granted shall remain Undisturbed.
34. The impugned judgment is modified accordingly.
35. The parties are, however, directed to bear their own costs.
36. Order accordingly