DR. KU. NILOFAR INSAF v. STATE OF MADHYA PRADESH AND ORS

Citation: [1991] 3 S.C.R. 429

Court: Supreme Court of India

Bench: S. RANGANATHAN, N.D. OJHA, M. FATHIMA BEEVI

Case summary

Jain successfully challenged the admission granted to the appellant in preference to himself in a writ petition in the Madhya I'radesh High Court. Jain's challenge to the admission granted to the appellant cannot be a direct one as the latter had clearly secured higher...

Judgment text

The Judgment of the Court was delivered by RANGANATHAN, J. Getting an admission into a professional course has become so difficult and competitive of late that litigation instituted by disappointed candidates has become a regular feature. NILOFAR v. STATE OF M. P. [RANGANATIIAN, J. ) 431 This appeal, arising out of such a context, throws up for consideration certain aspects which call for a difficult exercise in balancing equities. We, therefore, proceed to discuss the facts and issues at some length. The appellant Dr. Ku. Nilofar Insaf and respondent no. 4, Dr. Devraj Jain, were competitors fm a single seat in the Master's Degree (M. D. ) course in Radiology at Gandhi Medical College, Bhopal. The appellant got admission to this seat in preference to Dr. Jain because she had obtained average marks of 59. 60 per cent in the examinations of the M. B. B. S. course whereas Dr. Jain had obtained only 58. 50 per cent. Dr.

Jain successfully challenged the admission granted to the appellant in preference to himself in a writ petition in the Madhya I'radesh High Court. Dr. lnsaf, who . has forfeited her admission in consequence of the judgment of the High Court, has filed the present appeal. In order to appreciate the circumstances in which the admission granted to the appellant was quashed by the High Court, though she had admittedly got a higher percentage of marks than Dr. Jain, . it is necessary to set out a few further facts. Dr. Jain and Dr. Insaf both completed their M. B. B. S. course in the years 1983-87. However, while Dr. Jain had been admitted into and completed that course in the Gandhi Medical College, Bhopal, the appellant had initially joined her M. B. B. S. course in the M. S. Ramayya Medical College, Bangalore, wrote the first examination and completed the first year of :he M. B. B. S. course there.

Thereafter, in August 1984, she made an application for her transfer to the Gandhi Medical College, Bh~pal. Her request was granted by the Gandhi Medical College with the approval of the State of Madhya Pradesh and with "no objection" from the Ramayya Medical College. Thereafter she sat in the second and third examinations pertaining to the MBBS degree along with Dr. Jain and completed her MBBS course along with Dr. Jain in 1987 from the Gandhi Medical College, Bhopal. Thereafter, both of them cleared their internship of one year and also joined a house job in Radiology in the same college and completed the same in August 1989. It was at this stage that both of them applied for being admitted to the M. D. course with the result already set out. As already mentioned, 1t 1s not in dispute that, if the total number of marks obtained by the two contestants in all the examinations of the M. B. B. S.

degree are taken and reduced to an "effective" percentage and a common maximum as per the rules, Dr. Nilofar does get a higher percentage of marks than the respondent. In fact, we find from the papers filed before us that another candidate, Dr. Km. lndu Fotedar, had obtained a percentage of 59. 04 which was also higher than the percentage obtained by Dr. Jain. However, she is no longer in the race for a seat in M. D. (Radiology) as she appears to have joined the M. D. course in medicine that was offered to her. Thus it was that the Radiology seat went to Dr. Insaf. Dr. Jain's challenge to the admission granted to the appellant cannot be a direct one as the latter had clearly secured higher percentage of marks than himself in the M. B. B. S. examinations. He, therefore, attacks her candidature for the M. D. course on other grounds which may be described as collateral or indirect. According to him.

the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and he urges that, since the very admission of the appellant to the M. B. B. S. degree in the Bhopal College was invalid, she could not at all have been considered for admission to the M. D. course which was available only to the institutional candidates. The grounds on which the transfer of the appellant from Bangalore to Bhopal is challenged by Dr. Jain are:- -~ (a) The appellant had appeared in the pre-medical test for admission to medical colleges in Madhya Pradesh. It is not known whether she passed the test or did not get a sufficiently high rank but the fact is that she did not get admission in any of the medical colleges in Madhya Pradesh. To overcome this difficulty, she joined the Bangalore Medical College (the admission to which did not perhaps require qualification in a pre-medical .. examination) by paying a capitation fee.

She has thus circumvented the requirement of a pre-medical test by getting admitted first at Bangalore and then getting a transfer to Bhopal; (b) According to the rules, no transfer of a candidate to a medical college in Madhya Pradesh was permissible to students of medical colleges outside the State who had secured admission in a college after paying a capitation fee, development fee or donation in any form. As the appellant had obtained admission in the Bangalore college by paying a capitation fee, her applicaion for transfer to the Bhopal Medical College could not and ought not to have been entertained; (c) The rules also require, where a person makes an application for a transfer to a medical college in Madhya Pradesh, that the application should state the grounds on which he got admission NILOFAR v. STATE OF M. P. [RANGANATIIAN, J. l 433 t in a medical college of another State and whether he had appeared for a pre-medical test or similar examination of. that State.

The appellant's application for transfer did not contain any reference to this crucial aspect which was fundamental to a valid transfer to the college in Madhya Pradesh; (d) Even assuming that the transfer itself was not bad, a comparison between the marks obtained by the appellant and those obtained by the respondent was not a fair or proper one. The appellant had appeared for one examination at Bangalore and two examinations at Bhopal whereas Dr. Jain had appeared for all the three examinations at Bhopal. At Bangalore, for the first year, the appellant had three papers whereas in the Bhopal ~Ilege there were only two papers in the first year. Having regard to the disparity in the syllabus, the subjects for the examination, the standards of valuation and quality of teaching the comparison between himself and the appellant was not valid. If at iii!

comparison had to be made, it should have been made by excluding the marks got by both in the first examination and taking into account 0nly the marks obtained by them in the other two examinations which were CO! Dmon to both. The above contentions found favour with the High Court quashed the admission of the appellant and directed Dr. Jain to be admitted to that seat. Hence the present appeal. In our opinion, contentions (a) and (d) cannot stand by themselves and test, for their validity, on contentions (b) and (c). While it is true that t. he appellant does not appear to have qualified in the premedical test for admission to colleges in Madhya Pradesh, it cannot be said that she has circumventedthe rules by first getting admitted to the Bangalore college and then seeking a transfer to Bhopal; that course, if permissible under the rules, was unobjectionable. So also, the last contention by itself has no force.

It is well-known that, in these competitive days, students are not able to get admission, in the first instance, in, an institution at their own place and have, very often, to seek admission elsewhere initially and then try to get a transfer back. This is also envisaged by the rules which permit the transfer of a student only after the first year course is completed. In such cases, if valid transfer is made, the position is as if the candidate has completed the course in the second place and the rules (the validity of which are not in . issue) permit a comparison of the average of marks obtained by the candidates m all the ex,aminations after reducing them as percentage of a uniform maximum. There can, therefore, be no doubt that such transfers and comparisons can be valid and permissible. The real question, therefore, is whether there has been a valid transfer op the facts of the present case.

An annexure has been filed before us-it was also before the High Court-which purports to set out the "rules for transfer of the students from other medical col,leges to Madhya Pradesh State medical colleges". Though the High Court and the parties before it proceeded on the basis that these were "rules" governing transfer, there has been some controversy before us on this to which we shall advert later. The +-· following rules are relevant for our present purpose: I. The applications from students for transfer from Medical Colleges outside the State and studying in ! st M. B. B. S. (Pre-Clinical block) will not be considered. 2. Applications of those candidates who have cleared the ! st M. B. B. S. examination of the university in Anatomy & Physiology (including Biochemistry) and are studying in higher classes will be considered provided the College in which he was studying was a Medical Council of India approved College. 3.

Applications of only those will be considered who satisfy the following conditions in accordance with the premedical examination rules of Madhya Pradesh- .. (a) possessed minimum qualification for appearing in the pre-medical examination at the time of admission. (b) is a bona fide resident of Madhya Pradesh as per rules of Pre-medical Examination of M. P. (c) was within the prescribed age limit as per rules of Premedical Examination of Madhya Pradesh at the time of admission. Government would consider relaxation of rules in respect of those candidates who are married to a Government Servant employed in the Madhya Pradesh State. 4. Applications of those candidates for transfer from