Javed Akhtar And Anr. vs Jamia Hamdard And Anr.
2006 Latest Caselaw 2190 Del

JUDGMENT

Anil Kumar, J.

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1. The petitioners have sought quashing of letter dated 8th August, 2006 canceling petitioners' admission in 'Pre Tib'. The petitioners have also sought quashing of guidelines fixing upper age limit with respect to admission in 'Pre Tib' in the bulletin of information and prospectus of 2006.

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2. The brief facts to appreciate the controversies between the parties are that respondent No. 1 is a deemed University since the year 1989 and comprises of seven faculties and 24 departments. Respondent No. 1 was accredited by National Assessment and Accreditation Council which is constituted by the University Grants Commission.

3. Respondent No. 2 is a statutory body regulating the courses of Indian Medicines including the course of BUMS 'Bachelor of Unani Medicine and Surgery' which is also an authority to make rules and regulations with respect to admission and discipline among the students admitted to the course.

4. The petitioners applied with respondent No. 2 on an appropriate application form for their admission in one year course called 'Pre-Tib' in order to be eligible for admission to BUMS course. The date of birth of the petitioner No. 1, Sh. Javed Akhtar is 12th August, 1984 and that of Sh. Afzal Hussain, petitioner No. 2, is 1st February, 1984. On admission to 'Pre Tib' course, the respondent No. 1 allotted roll numbers to the petitioners. Petitioner No. 1 was allotted Roll No. 22033 and roll No. 22013 was allotted to petitioner No. 2.

5. The petitioners were given admission after they had appeared in entrance examination conducted by respondent No. 1 and after being declared successful and after counseling. According to the petitioners admission was given to them after verification of their documents. Thereafter, petitioners paid the fees and attended the classes of `Pre Tib' course for about a month.

6. After admitting the petitioners as the students and accepting their fees and allowing them to attend the classes, the respondents by communication dated 8.8.2006 cancelled their admission on the ground that on verification of documents it was found that they were not eligible, as the petitioners did not fulfilll the eligibility criteria in respect of age and, therefore, their admission was treated as cancelled and they were asked to take refund of fees from the accounts section of the University.

7. The petitioners refuted cancellation of their admission by communication dated 8th August, 2006 in reply dated 1st September, 2006 to the communications to the petitioners cancelling their admission, the petitioners contended that they were admitted on 4.7.2006 and they have attended classes from 6.7.2006 to 8.8.2006. It was asserted by the petitioners that in August, 2006 they are unable to get admission anywhere else and, therefore, their case be treated sympathetically to save their life and career.

8. The eligibility condition in respect to age as prescribed in the prospectus is that a candidate should not be more than 22 years of age as on October 1, 2006. The eligibility condition is as under:

Eligibility

A candidate seeking admission to Pre-Tib programme must have:

Passed Fazil from a Madarsa/Institution recognized by Jamia Hamdard and must have studied Arabic and Falsafa.

Appeared in the Entrance Test conducted by Jamia Hamdard Not more than 22 years of age on October 1, 2006.

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9. Though the respondent No. 1 prescribed a maximum age of 22 years as on 1st October, 2006, the rules and regulations issued under Section 36 of Indian Medicine Central Council, respondent No. 2, only prescribes that for admission to one year 'Pre Tib' course the candidates must have passed Oriental qualification equivalent to intermediate examination, recognised by Central Council of Indian Medicine. The qualifications as prescribed by respondent No. 2 are as under:

(2) Qualification for Admission to Pre-Tib Course:

A candidate seeking admission to one year Pre-Tib course must have passed the Oriental qualification equivalent to Intermediate Examination, as specified in the list attached to schedule, recognized by the Central Council of Indian Medicine leading to main Unani Course.

Note:- For Kamil-e-Jurahat Main Course (Urdu Medium) the candidate should have also passed the qualifying examination with Urdu either MIL examination with Urdu.

(3) Minimum Age for Admission:

(a) 17 years on 1st October in the year of admission for admission to main Kamil-e-Tib Jarahat (Bachelor of Unani Medicine and Surgery) Course.

(b) 16 years on 1st October in the year of admission for admission to Pre-Tib Course of one year duration.

10. According to the petitioners upper age limit has not been prescribed by respondent No. 2 in its rules and regulations and the eligibility condition is a minimum degree of Fazil from institution recognised by respondent No. 2 and must have studied Arabic and Falsafa. The petitioners contended that though Fazil is treated as equivalent to intermediate but to obtain a degree of Fazil a candidate has to study for 9 years after finishing 5th class. A candidate who has obtained a degree of Fazil is supposed to have knowledge of Tafseer, Hadees, Fiqah, Usool-e-Fiqah, Mantique, Falsafa, Arabic Adab, Seerat, Tareekh-e-Islam and General Scientific Awareness.

11. The petitioners, therefore, challenged the fixing of upper age limit of 22 years as not proper and arbitrary. They challenged cancellation of their admission on the ground that in August, 2006 after attending classes for more than one month, they could not get admission in any other course as the admission had been closed. The petitioners challenged the cancellation of their admission on the ground that after allowing the petitioners to appear in the entrance examination, counseling, considering their certificates, accepting their fees and allowing them to attend the classes, respondent No. 1 are estopped from canceling their admission.

12. The fixation of upper age limit has also been challenged on the ground that BUMS and MBBS are both equivalent graduate courses in the respective fields of medicine. Whereas upper age limit for applying for MBBS is 26 years, the upper age limit of 22 years for Pre Tib is without any rational and basis. It was contended that though it is a policy decision but the same is without any rational if one compares the upper age limit fixed in similar other courses. For admission to Pre Tib course a degree of Fazil is required which itself takes very long time, 9 years after 5th and consequently fixing 22 years as Page 0185 upper age limit is ex facie irrational and unreasonable. The upper age limit of 23 years for admission in BUMS course, according to the petitioners have been quashed in a writ petition No. 4819/2003 in Tahzeeb Ahmed v. Jamia Hamdard and Ors. by judgment dated 1.10.2004

13. The petitioners have also challenged the action of the respondent No. 1 in canceling their admission on the ground that there is power of age relaxation with the respondent No. 1 which ought to have been exercised, as the admission of the petitioners have been cancelled mid term when they are unable to take admission any where else and in the circumstances the petitioners' request ought to have been considered and allowed.

14. The petitioners relied on , Sanatan Gauda v. Berhampur University and Ors. , P. Ranjitha v. University Grants Commission and Ors. , Manish Talwar v. Principal, Rajdhani College and Ors. , Manoj Kumar v. Jamia Milia University and Ors. 1995 Supp.(1) SCC 304, Dental Council of India v. Harpreet Kaur Bal and Ors. and , Kanishka Aggarwal v. University of Delhi and Ors. in support of their contention.

15. The respondents have contested the petition and on behalf of respondent No. 1 a counter affidavit of Professor Akhtar Majeed, Registrar of respondent No. 1, was filed and no counter affidavit has been filed on behalf of respondent No. 2. The respondent No. 1 has contested the petition contending that the Academic Council of the University, the highest academic body, has the powers to prescribe the condition or eligibility requirement for any course as offered by the University and this Court should not sit over the decisions of academic council as an appellate body. Fixing of 22 years of age as on 1st October, 2006, according to respondent No. 1, is essentially a policy matter which the academic council is competent to frame and under Article 226 of the Constitution of India the policy issues should not be interfered with by the Courts.

16. The respondent No. 1 asserted that the maximum age limit of 22 years as on 1st October, 2006 was categorically stipulated in the prospectus and despite being aware of the eligibility requirements, the petitioners applied for admission and since the eligibility requirement is sine-qua-non for continuing the studies in the course, the respondent No. 1 is within its right to cancel the admission and the petitioners cannot capitalise on their own mistake in applying for admission despite knowing that they were over age and were not eligible for admission.

17. Justifying the fixation of upper age limit of 22 years as on 1st October, 2006 it was pleaded that the degree of Fazil is equivalent to 12th standard examination and a candidate can retain the basic knowledge needed for the Page 0186 said course for a period of 4-5 years. As a candidate generally passes 12th standard examination when they are around 17 or 18 years of age, consequently such a candidate may retain basic knowledge for about 4-5 years and, therefore, fixing upper age limit of 22 years is rational and has an object sought to be achieved by fixing the upper age limit and can not be termed arbitrary or irrational. Reliance was placed on fixing of upper age limit by National Law School of India University, Bangalore as 21 years; Guru Gobind Singh University fixing 21 years for under graduate programmes and Central Board of Secondary Education fixing upper age limit of 25 years for admission to Engineering/Pharmacy/Architectural course in all India quota.

18. Relying on the minimum age limit being 17 years of age fixed by respondent No. 2, it was contended by respondent No. 1 that it is competent to fix even the upper age limit. The respondent No. 2 categorically asserted that the petitioners have neither challenged the power of the Academic Council to fix the age limit nor has he challenged the policy of fixing the maximum age limit as unconstitutional and the only challenge made by the petitioner is the unreasonableness in comparison to the upper age limit fixed in MBBS course. Reliance was also placed by the respondents on a decision of a Single Judge in W.P(C) No. 4819/2003, Tahzeeb Ahmed v. Jamia Hamdard and Ors. where according to the respondent No. 1 three issues were raised namely the power of the council to prescribe the upper age limit, fixing upper age of 26 years for admission to Pre-Tib and thirdly prescribing a higher age limit for admission in contrast to BUMS which is a degree course and higher than Pre-Tib.

19. The respondents have relied on Medical Council of India v. Sarang and Ors. and the 1984 (1), Supreme Court cases 327 Krishna Priya Ganguly v. University of Lucknow (1980) 4 Supreme Court cases 480 Jawahar lal Nehru University v. B.S. Narwal . Satish Kumar Sharma v. Bar Council of Himachal Pradesh 2005 VIII A D (Delhi) 499 M.I. Hussain v. N. Singh and Ors. 2005 (85) DRJ 196

M. Shefali Pathak v. Indian Institute Technology , Delhi to contend that in academic matters the Courts should not normally interfere with or interpret the rules and should instead leave the matter to the experts in the field provided the decision is not suffering from arbitrariness and unreasonableness. Since the decision to fix upper age limit is neither arbitrary nor unreasonable, jurisdiction under Article 226 of the Constitution of India should not be exercised.

20. The respondents' have also placed reliance on Indian Council of Agricultural Research and Anr. v. T.K. Suryanarayan and Ors. 2004 VII AD (Delhi) 337, Puneet Rana (Dr.) v. All India Institute of Medical Page 0187 Sciences; Jalandhar Improvement Trust v. Sampuran Singh in support of their contention that fixing the upper age limit of 22 years for `Pre Tib' course is justified and the Court should not exercise its discretion.

21. I have heard the counsel for the parties at length and perused the petition, counter affidavit and documents and the judgment relied on by the parties. This is not disputed that the petitioners filled the forms for appearing in the entrance examination and gave their correct date of birth. The forms of the petitioners were considered and they were allowed to appear in the examination. After their names appeared, they were called for counseling and after verifying the documents and certificates of the petitioners, they were given admission. The petitioners were issued identity cards after accepting the fees for the course from them and the petitioners were allowed to attend classes for a month and thereafter by communication dated 8th August, 2006 the admission of the petitioners have been cancelled. Whether the respondent No. 1 can be allowed to cancel the admission mid term in the facts and circumstances, when the petitioners have not concealed any thing nor produced any documents to mislead the respondent No. 1 - Whether the respondent No. 1 will be estopped from canceling the admission of the petitioners in the facts and circumstances.

22. Where a student was allowed to complete the formalities of admission and subsequently allowed to attend the classes though the admission was provisional, cancellation of admission later on was held to be barred by estoppel in Kanishka Aggarwal (Supra). In this case the candidate was given admission to LL.B. course though she had obtained less than the qualifying marks which facts was not suppressed or mis-stated by her in any of her application. After paying fees she started attending classes and completed other formalities and later the admission was cancelled on the ground that she did not have minimum eligible marks, it was held that the University is estopped from cancelling her examination. The Division Bench relied on a number of judgments of Supreme Court where the interest of the students were protected, though the students were found initially ineligible for admission. The Division Bench observed at page 117 as under:

35. Let us assume, the plea of estoppel is not available. Still, should the applicant be allowed to be thrown out 'Should we deprive him of the rainbow of today and make his tomorrow bleak, barren and ominous' Whom shall we be serving thereby 'As inefficient, if not corrupt, system which has been spreading its fangs year after year' The Rip Van Winles who refused to come out of their deep slumber even in the face of the reverberations caused by loud protests of foul play and demand for CBI enquiry 'Those who found it well nigh impossible to even transfer certain clerical staff in spite of pressing demand by the teaching community' Should we serve them or this innocent student who bought a dream with his time and money 'He played no fraud. His only fault was his assumption that vistas of knowledge were being opened to him. Must Page 0188 he suffer for this innocence 'Where lies his fault' How much do we wish, somebody had whispered to the University: Un peu de charite, voyons.

36. Yes, Wells is right (Situated Decision making, 63 S Cal L Rev 1727 (1990)) in pointing out that judges remain impartial spectators while hearing the witnesses and going through reports, but at the end of the trial they become agents by interacting not only with those who are involved in the case, but with unknown others also whose cases will be decided in accordance with this case and ultimately they become ``situationalists'` or ``formalists'` in spite of their having been trained in the same legal system. John Dewey (Logical Method and Law, in 15th Middle Works 1889-1924, 68 (1983)) quotes Justice Holmes as saying.lm2.5 The whole outline of the law is the resultant of a conflict at every point between logic and good sense - the one striving to work fiction out to consistent results, the other restraining and at last overcoming the effort when the results become too manifestly unjust.

Though Dewey points out that Holmes uses ``logic'` in a narrow ``sylogistic'` sense, and himself advocates ``experimental logic'` (P. 69), let us say, the formalist judge represents logic, while the situationalist judge represents good sense. With respect, it is the situationalist judge we find working in Rajendra Prasad Mathur v. Karnataka University Thaper Institute of Engineering and Technology Patiala v. Abhinav Tanej a and Ashok Chand Singhvi v. Jodhpur University . For, in all these cases, the Supreme Court protected the interests of the students though found having been initially ineligible for admission. Who would not love to be in such august company.

23. In Manoj Kumar (supra) a Single Judge had held that though the University has a right to correct a mistake but it is not an unfettered right, if the mistake was committed by the University itself and the candidate was not directly or indirectly responsible for the mistake. Holding that the correction of mistake committed by the University will result in serious prejudice and injustice to the candidate and, therefore, the notice canceling admission of the candidate was set aside.

24. Similarly in Manish Talwar (Supra) it was held that where the upper age limit was not prescribed a candidate could not be debarred from admission on the basis of guidelines framed later on. Relying on Bandhua Mukti Morcha v. Union of India it was held that Article 21 does take in 'educational facilities' also. The Apex Court in Bandhua Mukti Morcha (Supra) had held that right to education is implicit in and flows from the right to live guaranteed by Article 21. The observation of the Supreme Court is as under:

... It is the fundamental right of everyone in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullin case to live with human dignity, free from exploitation. This right to live Page 0189 with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly Clauses (e) and (f) of Article 39 and Articles 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and human conditions of work and maternity relief. These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State - neither the Central Government nor any State Government - has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Articles 41 and 42 are not enforceable in a Court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State.

25. A Division Bench of this Court in P.Ranjitha (Supra) had held that no doubt it is true that in academic matters, Courts are normally reluctant to interfere, however, when the interpretation of laws are involved and the Courts are called upon to decide the matter it becomes the duty of the Courts to give a correct interpretation of law as it is and they should not be guided by the supposed intention of the provisions, as interpreted by the academic council, when the interpretation does not involve any ambiguity or other interpretation. In this matter it was held that by taking admission to the course the candidate had altered her position and if the respondent University is permitted to back out of the promise and the admission is interfered with, the candidate will definitely suffer injustice and detriment in that sense and in the circumstances the action of the respondents to canceling the admission of the petitioner was quashed and the University and the college were restrained from preventing the candidate from pursuing the course.

26. Similarly the Apex Court in Sanatan Gauda (Supra) had held in a case of a candidate who was admitted to law college where the candidate had submitted his marksheet along with the application for the admission and he was admitted thereafter and he pursued his studies there and he was granted admission card even for Pre-Law and intermediate law examination and was permitted to appear in the examination. At the stage of declaration of result of Pre-Law and Inter Law examination the objection regarding Page 0190 ineligibility to be admitted to the law course was raised. The Apex Court, however, held that the University was estopped from refusing to declare the result of the appellant's examination or from preventing him from pursuing his final year course. The plea that the Principal wrongly assured the respondent authorities that he had verified the position and that all the candidates were eligible, was also not accepted holding that it was the duty of the University to scrutinize the matter thoroughly before permitting the candidate to appear in the examination and not having done so it cannot refuse to publish his result. The observation of the Sharma, J at page 1079 is as under:

14. Mr. P.N. Misra, the learned Counsel for the respondent, contended that the University had informed the Colleges about the necessary condition for admission to the Law course which, it appears, was not respected by the College. When the applications by the candidates for sitting at the examination were forwarded by the College, the University asked the Principal to send the marks of the candidates for the purpose of verification, but the Principal did not comply. The letters Annexures 'F' and 'G' to the counter affidavit have been relied upon for the purpose. The learned Counsel pointed out that instead, the Principal sent a letter Annexure 'I' stating that the marks-list would be sent in a few days for ``your kind reference and verification'` which was never sent. The Principal wrongly assured the University authorities that he had verified the position and that all the candidates were eligible. In these circumstances, the argument is, that the appellant cannot take advantage of the fact that the University allowed him to appear at the examination. I am afraid, the stand of the respondent cannot be accepted as correct. From the letters of the University it is clear that it was not depending upon the opinion of the Principal and had decided to verify the situation for itself. In that situation it cannot punish the student for the negligence of the Principal or the University authorities. It is important to appreciate that the appellant cannot be accused of making any false statement or suppressing any relevant fact before anybody. He had produced his marks-sheet before the College authority with his application for admission, and cannot be accused of any fraud or misrepresentation. The interpretation of the rule on the basis of which the University asserts that the appellant was not eligible for admission is challenged by the appellant and is not accepted by the College and my learned Brother accepts the construction suggested by him as correct. In such a situation even assuming the construction of the rule as attempted by the University as correct, the Principal cannot be condemned for recommending the candidature of the appellant for the examination in question. It was the bounden duty of the University to have scrutinised the matter thoroughly before permitting the appellant to appear at the examination and not having done so it cannot refuse to publish his results.

27. The respondents have placed reliance on judgments which are apparently distinguishable. In Indian Council of Agricultural Research (supra) it was held that erroneous promotion given departmentally by misreading the rules or Page 0191 pursuant to judicial order contrary to rules then such an order does not confer right on other similarly placed person to ask for similar benefits. In Puneet Rana (Dr.)(supra), the plea of the petitioner challenging the 55% minimum in MBBS examination for seeking admission in post graduate course in AIIMS was dismissed since in the application form the petitioner claimed that he had scored 55%(minimum percentage for eligibility) marks in the MBBS examination, whereas he actually scored 54.92% which error the authorities came to know before the allotment of seats after the entrance examination. This case is not of any relevance as there was misrepresentation by the student, however, in the present case there is no misrepresentation of any fact, whatsoever, by the petitioners. In Jalandhar Improvement Trust (supra) it was held that if the allotments were wrongly made in favor of some persons then the allotments may become liable for cancellation, if permissible in law, but that will not create an enforceable right on the part of the respondents to claim similar wrongful allotments in their favor.

28. In Medical council of India v. Saran and ors it was held that period of 18 months' study must be completed in the transferee college alone and not in both, the college from which the student migrated and the transferee college together. In Krishna Priya Ganguly (supra) the Apex Court had held that the practice of lightly granting provisional admission should be discontinued and provisional admission should not be given as a matter of course on the petition being admitted unless the Court is fully satisfied that the petitioner has a cast iron case which is bound to succeed or the error is so gross or apparent that no other conclusion is possible. In Jawahar Lal University (supra) where a student was removed from university rolls on account of unsatisfactory performance, in absence of any allegation of bias or malafides, it was held that the Court should not interfere where qualified academic authorities decide to remove a student from the university on the basis of assessment of his academic performance. In Satish Kumar Sharma (supra) enrolment of an advocate was not on the ground of misconduct but on the ground that enrollment was contrary to law and it was held that such cancellation does not amount to punishment. In M.I.Hussain (supra) it was held that the policy decision of the school in fixing the minimum marks for admission in science stream can not be said to be so outrageous in defiance of logic or accepted moral standards that no sensible person could have arrived at it. In Shefali Pathak (supra) the question was whether the petitioner had completed her practical training and it was held that the decision of the Institute not suffered from arbitrariness and writ petition was dismissed.

29. The decisions relied on by the respondents are apparently distinguishable. A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The Supreme Court in Page 0192 Bharat Petroleum Corporation Ltd and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 778 had observed:

Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

A case is only an authority for what it decides. As observed by the Supreme Court in State of Orissa v. Sudhansu Sekhar Misra :

A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury,LC said in Quinn v. Leathem 1901 AC 495:

Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically Page 2009 from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.

In Ambica Quarry Works v. State of Gujarat and Ors. the Supreme Court observed:

The ratio of any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it.

Similarly in Bhavnagar University v. Palitana Sugar Mills Pvt. Ltd. (2003) 2 SC 111 (vide para 59), the Supreme observed:

It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

30. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lord Denning Page 0193 in the matter of applying precedents have become locus classicus:

Each case depends on its own facts and a close similarity between one case and anr. is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to Anr. case is not at all decisive.

31. Precedent should be followed only so far as it marks the path of justice, but one must cut the dead wood and trim off the side branches else one will find oneself lost in thickets and branches, yet some of the precedents relied on by the parties required consideration and have been considered hereinbefore.

32. Admission was granted to both the petitioners' on 4.7.2006 and it was cancelled on 8.8.2006, after more than a month. The prospectus stipulated the eligibility conditions. Relevant extract of the Prospectus:

1. The applicants are advised to read carefully the content of the prospectus and familiarize themselves with the relevant rules governing the Admission/entrance Test/Interview, of Jamia Hamdard. They should also check all the eligibility criteria including age requirement for a particular programme. Marks obtained which are less even by a fraction shall not be rounded off to the next whole number to determine the eligibility. University will not be responsible if a candidate is denied admission for not fulfillling the eligibility criteria even if he/ she has cleared the Entrance Test and has been issued offer letter of the admission to a particular programme of study.

3. In the Prospectus, information regarding admission is given only in brief. The rules of eligibility are followed strictly. The University, however, reserves the right to refuse admission to individual without assigning any reason. A candidate shall not be entitled to claim admission as a matter of right even if he /she is otherwise eligible. Further more, if any error/ omission in the processing/the verification of certificates/documents of a candidate are made by the University at the time of admission, the University has the right to cancel such admission at any stage when such an error is discovered.

4. By obtaining the admit card and appearing in Entrance test, a candidate does not confer any right to claim admission if the candidate does not fulfilll all the eligibility conditions prescribed by Jamia Hamdard.

Perusal of the prospectus reveals that if any error/ omission is committed by the respondents at the time of the admission during the verification of the documents etc. then the respondents can cancel the admission granted. It further stipulates that issuance of admit card and appearance in the Entrance test does not confer any right to claim admission if the candidate does not fulfilll the eligibility conditions. The respondents can cancel the admission of the student and rectify its mistake committed while granting Page 0194 admission but it is not an unfettered right. As has been held in Manoj Kumar (supra), if the mistake was committed by the respondents themselves and the petitioner was not directly or indirectly responsible for the mistake and if the correction of mistake will result in serious prejudice and injustice to the petitioner. The student cannot be made to suffer if he is not directly or indirectly responsible for the mistake.

33. The petitioners have raised the plea of promissory estoppel being applicable against the respondents. The doctrine of Promissory Estoppel is a rule of equity. It is a rule of law of evidence. It can not be utilised or relied upon to defeat or nullify a provision of law. Estoppel arises only if there has been representation by the persons sought to be estopped and the persons setting up estoppel has shifted his position to his detriment on account of that representation.

34. Petitioners while applying for Admission to 'Pre Tib' had clearly disclosed their date of birth correctly and during counseling all the documents/certificates were verified and only then the petitioners were given admission. The respondents have not contended that the petitioners did not fill their correct/actual age in the application form for admission. It is not in dispute that as on 1st October, 2006 both the petitioners were over age in terms of the maximum age limit prescribed in the prospectus. The petitioner No. 1 was 22 yrs and 2months old and Petitioner No. 2 was 22 yrs and 8 months old. Further there is no allegation of suppression or concealment of any information which they were required to furnish in the application forms which fact would have been important for determining the eligibility of the petitioners for admission to a particular stream. Therefore on account of absence of any allegation in this respect, the petitioners cannot be held liable. On perusal of the documents, it becomes evident that there is lapse on the part of the respondents if the maximum age is 22 years as on 1st October, 2006. The respondents were duty bound to scrutinize the application forms meticulously prior to giving admission to the petitioners so that any undeserving student, who did not fulfilll the eligibility criteria, was not given admission. In this case there is nothing evidencing any concealment or fraud on the part of the petitioners. Authorities having failed to carefully scrutinize the forms at the initial stage, are themselves to be blamed for and are estopped from canceling the admission after permitting the petitioners to attend classes for more than a month. The petitioners are contending that the maximum age for the course can not be 22 years and therefore, error was committed by the respondents themselves and the petitioners can not held responsible.

35. There are so many students who apply for admission every year, at times knowing that they may not be eligible to get admission in terms of the eligibility criteria provided under the prospectus but they apply thinking that they might have a chance and relaxation may be granted to them. The onus is, thereafter, on the university / authorities to select only those candidates who are eligible for admission by scrutinizing the application form properly and carefully. If after scrutinizing the application form the student is admitted to a particular course by the University, fees is accepted from him and he is Page 0195 allowed to attend the classes after the completion of all the necessary formalities, then the authorities are estopped from canceling the admission of such an student on the ground that he did not fulfilll the eligibility criteria clearly specified in the prospectus. For the lapse on the part of the authorities a student cannot be made to suffer who is challenging the eligibility criteria of maximum age limit. Had it been the case that there was suppression or misrepresentation of a material fact which the student was suppose to provide in the application form and which the authorities came across later on then the university's act of canceling the admission could have been justified.

36. It is clear that the petitioners' in terms of the prospectus were not eligible for admission as they were overage, which fact is not disputed, but the respondents not scrutinizing the application form carefully, issued not only the admit card but granted admission and issued an Identity card and also allowed the petitioners' to attend classes. Further date of birth was clearly mentioned on the admit card and the identity card issued to the petitioners' by the respondents making it very evident that the respondents carried on the admission process mechanically not strictly following the procedure laid down in their own prospectus. If that be so the respondents can not be allowed to turn around and cancel the admission when the student is not left with any other alternative to go and get admission in any other course.

37. In Miss Sangeeta Srivastava v. Prof. U.N. Singh, where the petitioner having secured less than the minimum marks required for admission to the M.A. history course in the said university applied for registration to the M.A. course and correctly gave the particulars of marks and the percentage obtained by her in the application. The petitioner was declared successful in the entrance examination and obtained admission and attended classes regularly and paid the fees and other dues up to the commencement of the examination when she was informed that her admission had been cancelled. The Division bench observing that normally the question of eligibility for admission to University are matters which are pre-eminently fit to be decided by the University authorities and Court should not interfere held that the principle of equitable estoppel will be applicable and that the University can not refuse the petitioner from appearing in the examination when the candidate had placed all the facts before the University and had not committed any fraud or misrepresentation. The Court observed as under:

(7) We may emphasise that it is after a great deal of anxious consideration that we are interfering in this matter because we feel that normally the question of eligibility for the admission to the university are matters which are pre-eminently fit to be decided by the university authorities. Normally this Court would be very reluctant to interfere in these matters because we have no doubt that the academic discipline will be preserved best by all concerned including the Executive and even the courts excepting in the rarest of cases whereas in the present not to interfere will perpetuate injustice and cause irreparable in- jury to a young student, leading to bitterness); abstaining from encroaching upon the autonomy Page 0196 and internal discipline within the portals of university and academic institutions after all they are temples of learning. We feel somewhat assured at our interference when we find that the standing committee of the Academic Council and the principal of the college were of the view that in the circumstances of the case and considering all the circumstances, this was a case where relaxation should be given by the Academic Council. We regret that this matter had to be voted upon and the Academic Council felt unable to grant relaxation. We very much wish that the Academic Council had exercised its power in granting relaxation in which case this Court would have been spared the not so very pleasant task of quashing the order of the university. We also notice that the petitioner in the admission test had obtained second place in the second list, apparently indicating that she was a serious student and it was not a case where had the Academic Council exercised its power in favor of relaxation, it would have permitted an underserving candidate to get admission. Be that as it may, the Academic Council did not so exercise its power. We have therefore no option but to give our decision on merits.

38. Therefore, while granting the admission if the academic body has acted inattentively and mechanically, then they cannot be allowed to take the plea that the admission was never valid and that the petitioners' were ineligible from the very inception and knowing the ineligibility they applied for admission. The respondents cannot be allowed to cancel the admission at their own convenience at any time of the year without considering the fact that if they cancel the admission after the session has started then the entire year of the petitioners' will be spoiled as the petitioners' would not be in a position to take admission in any other college/University. If this fact of their ineligibility for admission was conveyed to them at the very start they would have taken admission in some other college/University.

39. In such situation, in view of the decision in Sangeeta's case(Supra), the petitioners' cannot be penalized for the negligence of authorities. It is important to appreciate that the petitioners' in the facts and circumstance cannot be accused of making any false statement or suppressing any relevant fact before anybody. They clearly mentioned their Date of Birth in the application form for admission, and are not guilty of any fraud or misrepresentation. It was the duty of the University to have scrutinized the application form and the certificates thoroughly before granting admission to the petitioners' and permitting them to attend the classes and not having done so they cannot cancel the admission thereafter. By accepting the application form and subsequently granting admission representation was made by the respondents that the petitioners' were eligible for admission and the petitioners' acting upon the same took admission and thus the petitioners' suffered a detriment. Had the respondents not made the representation that the application had been approved and granted admission the petitioners' would have applied and taken admission else where. Therefore the respondents are estopped from pleading that the petitioners were not entitled to a seat from the inception Page 0197 and that the admission is void ab initio and that the admission without fulfilllment of the eligibility criteria is a nullity.

40. In the facts and circumstance of the case the respondents cannot be allowed to take advantage of their own wrong and cannot be permitted to take the plea that under the prospectus they had the power to cancel the admission of ineligible student and the principle of estoppel will operate against them. The respondents are estopped from canceling the admission of the petitioners' and further from preventing them from pursuing the 'Pre Tib' course in the present facts and circumstances.

41. The order of cancellation of the admission of the petitioners cannot be sustained for another reason because earlier the maximum age limit for admission to Pre-Tib course was 25 years. The learned Counsel for the respondents submitted that the rational for having maximum age limit of 22 years is that a student who passes the 12th Standard examination of Fazil which is equivalent to 12th Standard examination, for admission to Pre Tib, can retain the basic knowledge needed for the said course for a period of 4 or five years. According to him a candidate usually passes 12th standard when he is around 17- 18 years. The minimum age by which a student who passes 12th standard is 17 years or 18 years is not accepted by the petitioner who has given his own reasoning. What has not been explained by the counsel for the respondent is that if the maximum age for admission was 25 years earlier, till the maximum age for admission to BUMS which is 23 years was challenged, how the maximum age can be reduced for admission to Pre Tib course. This is not the case of the respondents that the maximum age limit for Pre Tib course was not fixed on the basis of some rational. If the fixing of age limit of a higher course was challenged which was upheld, then the respondents could enhance the maximum age limit of higher course, BUMS from 23 to any age above 25 which was the maximum age limit for Pre Tib, but without any empirical data with them, the respondents could not reduce the age limit of `Pre Tib' course from 25 to 22 years. This is not the case of the respondents that the maximum age limit of 25 years was fixed by them without any rational or arbitrarily earlier. If earlier maximum age limit was fixed because of whatsoever rational they had, the same could not be reduced by them because of the maximum age limit of a higher course was challenged and was allowed.

42. Another significant factor is that the Central Council had found favor in fixing the upper age limit in the case of admission to first year of BUMS course to be 26 years instead of 23 years. The relevant observation in Tahzeeb Ahmed case (supra) in case of BUMS maximum age is as under:

14. The anomaly of the situation has been noticed even by the Central Council as is evident from the following paragraph appearing in its counter affidavit.

However it is strange to note that the age limit for admission to Pre- Tib is 25 years as prescribed by the University. Pre Tib is a one year course which is done prior to I-BUMS and is meant for those students who have passed Fazil from institutions recognized by the Jamia Hamdard. Page 0198 Therefore, if the age limit for admission to I-BUMS course should be one year more that is 26 years, and in no case less than that, otherwise it shall amount to discrimination of students passing from Institutions other than that recognized by Jamia Hamdard.

15. A plain reading of the above would show that even the Central Council does not find the fixation of the upper age limit to be based on any sound or rational basis and that the Council favors upper age limit in the case of admission to first year BUMS course to be 26 years instead of 23 years as stipulated by the University.

43. No doubt the prescription of eligibility condition for admission to professional course is a matter which should be left by the Courts to the academicians but in case where the condition of eligibility prescribed on judicial review to be wholly irrational or discriminatory and contrary to the rational given by the academic body itself, as in the present case, the Court would be justified and obliged to interfere and set aside such an anomaly. Consequently the maximum age limit of 22 years for the course `Pre Tib' in the respondent's university is set aside for the aforesaid reasons.

44. In totality of facts and circumstances, the writ petition is allowed and the letters dated 8th August, 2006 canceling the admission of the petitioners are set aside and it is held that the petitioners are eligible for studying in the course of ` Pre-Tib' and the respondents are directed to allow them to study and attend classes in the said course forthwith. The upper age limit of 22 years for the said course is also quashed for the reasons stated herein before. However considering the facts and circumstances the parties are directed to bear their own costs.