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IN THE HIGH COURT OF BOMBAY
(FULL BENCH)
P.D. Desai, C.J., S.P. Kurdukar K. Sukumaran, JJ.
Ashwin Prafulla Pimpalwar... Petitioner
Versus
State of Maharashtra ... Respondent,
Writ Petition No. 2469 of 1990 With W.P. No. 1306 of 1991 With W.P. No. 1652 of 1991, decided on 16-9-1991.
Advocates appeared
S.G. Aney with Z.A. Haq with Ramesh Darda with Mrs. M.P. Pimpalwar with Jyoti Kurani, for the Petitioner in W.P. No. 2469 of 90.
A.S. Bobde, Advocate General, with Ulhas G. Kerkar, Assistant Government Pleader, with B.P. Pandya, for the respondent, in W.P. No. 2469 of 90, W.P. No. 1306 of 91.
R.M. Bhagalia with G.S. Phadke, for the Petitioner, in W.P. No. 1306 of 91.
Bhimrao N. Naik with Nitin Jamdar, for respondents, in W.P. No. 1306 of 91, W.P. No. 1652 of 91.
P.M.Pradhan, for respondent, is W.P. No.1306 of 91.
Y.S. Jahagirdar, for the Petitioner, in W.P. No. 1652 of 91.
Held, it is well established by now the Administrative instructions can also confer rights or impose duties.
Article 226-Admission to higher studies-Abrupt change of rules -Writ petition- Whether Government empowered to change rules arbitrarily.
In relation to policy matters the Courts would not ordinarily interfere with the Government decision does not however, mean that the Government can act arbitrarily. That would be totally destructive of the Rule of Law and the Constitutional Scheme and the peculiar position of the Government in a constitutional set up. Arbitrary decisions would be consistent with Article 14 of the Constitution. The minimum that is therefore, necessary of the adverting to the relevant material, eschewing all irrelevant considerations and a proper exercise of mind. More serious thought process is required, and clearer indication of application of mind is mandated, when the change is striking, and the impact is massive, affecting a considerable segment of the society or an important aspect of life. Therefore when there was no material at all to show that the Government had, at the highest level, considered there matters in all its aspects, it would have to be held that the necessary application of mind and considerations of material required in such a situation were totally absent in the instant case and G. R. would have to be quashed.
Section 115-Doctrine of promissory estoppel-Essential requirement for operation of.
One party by his word or conduct to the other makes a clear and unequivocal premise or representation. Intended to create legal relations or effect a legal relationship to arise in future having regard to dealings which have taken place between parties. Difficult to post such a situation in relation to student prosecuting his studies in Medical College. Held, Doctrine of promissory estoppel not applicable in relation to admission to post graduate courses for higher specialised studies in medical colleges run by or under control of Government.
Before the operation of the doctrine of estoppel/promissory estoppel, the essential conditions will have to be satisfied. One of the essential requirements is that one party by his word or conduct made to the other makes a clear and unequivocal promise or representation which is intended to create legal relations or effect a legal relationship to arise in the future having regard to the dealings which have taken place between the parties. Effecting an export after elaborate organisational arrangements made in that behalf in an Export Promotion Scheme, or setting up a factory on the basis of assurance of exemption from levy of octroi or sales tax and like, are some such examples. The course of dealings constituting the representation unequivocally made in exercise of statutory or executive powers and the alteration of the position acting on the faith of such representation is clearly established in such cases.
It is difficult to pose such a situation in relation to a student prosecuting his studies in the Medical College. He will strive for coming out in the best colours in the ensuing examination. That is irrespetive of the availability or otherwise of further educational prospects. If the government of the day decides for justifiable reasons to discontinue or suspend Post Graduate Courses in the institutions run by it, no student prosecuting studies in these institutions could legitimately say that he had, by studying in or writing M.B.B.S. Examination from those institutions, altered his conditions to his prejudice with the consequent result that the Government is precluded from doing away with the post-Graduate study facilities which were obtaining at the time of his admission to or when he was studying for the medical course.
Again, it cannot be denied t hat the Government has the necessary competence and authority to lay down the rules regulating admission to educational institutions run by it. The Government knows best the prevailing conditions, the requirements in relation to the running of the institutions, the conduct of the examination, the standards to be provided therein and other relevant aspects. No doubt, it could entrust consideration of many of these matters to expert bodies including Universities and be guided by their views. Prospectus giving information about details which have to be adverted to by those seeking admission in such institutions are sometimes issued by the Government periodically, even annually. Admissions are made on the basis of the provisions contained in the prospectus in force at the time of admissions.
Admissions to Professional Colleges, Medical, Engineering or other generates regularly and recurringly, an annual spurt of litigation. They raise quite often complex and complicated legal problems. Courts, particularly, the Constitutional, have the duty and responsibility to resolve the controversies. This feature was adverted to in a recent judgment by the Apex Court Vide (Dr. Ku. Nilofar Insaf v. State of Madhya Pradesh and others)1, J.T.1991(3) S.C. 433).
2. The time constraint for rendering the decision is often adverted to by the courts; for that cannot be a retrieval when the sands of time run off. It would be cruelty of a high order to expose indefinitely the flower of intelligent youth to a distressing situation of disconcerting unpredictibility. The rush and hurry required for an expeditious decision, in turn, entail difficulties on para of Counsel, long arguments in courts and serious consideration by the Judges. When numerous cases come before different Benches of the High Court (as in the Present case - Bombay and Nagpur) and when different Benches reach irreconciably opposite conclusions, the exigency of resolution of conflict arises. This Full Bench had to take up these cases in the above background.
Some General Remarks on Maharashtra Medical Education.
3. The State of Maharashtra had advanced considerable, among others, in the medical education. The Universities of Bombay, Nagpur, Marathwada, Shivaji and Pune are the universities much concerned with the medical education. The Municipal Corporation of Greater Bombay runs three medical colleges in the city of Bombay and many are run by the State itself in Maharashtra. Studies at graduate and post-graduate levels are undertaken by the students in those institutions.
4. Admission to the various courses is necessarily to be regulated by provisions properly brought about and effectively published. If statutory rules do not occupy the field, executive instructions can do duty for the same. The State of Maharashtra does not have any statutory rules. Executive instructions, however, there are, governing admission to the various courses including postgraduate courses in Government run medical colleges. These writ petitions directly concern such instructions termed as Government Resolutions (GRs, for short) relating to post-graduate courses in the Government Medical Colleges.
Brief resume of the Rules:
5. It is necessary to have a brief resume of the provisions for admission in Government Medical Colleges, in their proper chronology; for as had been said long ago, chronology nows no calumny.
6. The records show that the first of the exercises in the evolution of the provisions for admission started in the year 1971, evidenced by Government Resolution (GR) UD PH HD No. MCG/257/2541 Q dated 25-6-1971. It has undergone changes effected by the GRs. on 28-9-1983, 7-4-1986 and 10-7-1989 as also by Government Addendum dated 1-8-1989, 9-8-1989,and G.Rs. of 6-1-1990 and 7-1-1991.
7. The material provisions of the various Government Resolutions and the impact on the issues involved in these cases would be adverted to at a later stage. It may, however, be desirable to indicate that the provisions governing admission to the Medical Colleges had been the subject matter of earlier litigations, including one leading to the decision of the Supreme Court (in relation to one of the facets) in (The Greater Bombay Municipal Corporation v. Anjali Deokumar Thukaral and others)2, reported in A.I.R. 1989 S.C. 1194. The decision mainly dealt with the question whether collegewise-institution preference given to the students of post-graduate courses was constitutionally valid. It was held to be violative of Article 14 of the Constitution of India and consequently invalid. The judgment has no direct impact upon the questions raised in the present petitions. Government had, however, necessarily to reframe the relevant provisio
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