M.M. Kumar, J.@mdashThis order shall dispose of two revision petitions namely C.R.No. 3750 and 3751 of 2001 as the common questions of law and facts are involved. Both the revision petitions are directed against the orders dated 29.5.2001 passed by the learned Additional District Judge, Rohtak, allowing an appeal of the defendant-respondents in which the order dated 12.3.2001 passed by Civil Judge (Senior Division), Rohtak was challenged. The Civil Judge in his order dated 12.3.2001 had issued interim directions to the defendant-respondents to allow migration of the plaintiff-petitioners from Sh. Baba Mast Natli Dental College, Asthal Bohar, Rohtak (for brevity ''BMN College) and it was further directed to allow them to join the Government Dental College, Rohtak.
2. Brief facts of the case necessary to put the legal controversy in its proper perspective as unfolded in the pleadings of the parties are that the defendant-respondent No. 2 issued the prospectus for holding of an entrance examination for the purposes of admission to the medical/dental colleges in Haryana. In the list of institutions where the admissions were to be permitted. BMN College was also named. The notification issued by the Government of Haryana appointing Maharshi Dayanand University (for brevity MDU) dated 7.4.1997 reads as under:-
"Govt. of Haryana, vide notification No. 16/11/94-34 B-1V dated 7.4.1997, has appointed M.D. University, Rohtak, as competent authority to conduct the entrance examination for admission to MBBS/BDS and M.D./MS/PG Diploma and MDS courses for the institutions in the State of Haryana for the year 1998. There are following six Medical/Dental Colleges in Haryana.
1. Pt. B.D.Sharma PGIMS, Rohtak. Pt. B.E.Sharma PGIMS, Rohtak, an affiliated College of this University, provides facilities for MBBS, MD,and various Post-graduate Diploma Courses.
2. Dental College Rohtak.
The Dental College, Rohtak an affiliated College of this University provides facilities for the MDS & BDS courses.
3. Maharaja Agarsen Institute of Medical Research and Education, Agroha (Distt. Hissar).
The MAIMRE, Agroha provisionally affiliated to this University provides facilities for MBBS course.
4. Sh. Baba Mast Nath Dental College, Asthal Bohar (Rohtak). Sh. Baba Mast Dental College Asthal Bohar (Rohtak) Provisionally affiliated to this University provides the facilities for BDS course.
5. DAV Centenary Dental College, Yamunanagar.
The DAV Centenary Dental College, Yamunangar, an affiliated college of Kurukshetra University, Kurukshetra provides facilities for BDS course.
6. BRS Institute of Medical Sciences, (Dental College & Hospital) Village Kotbilla Punchkula.
BRS Institute of Medical Science, Kotbilla (Punchkula), an affiliated college of Kurukshetra University, Kurukshetra, provides facilities for BDS Course.
3. The aforementioned notification was published at page 2 of the prospectus issued for the year 1998. The plaintiff-petitioners alongwith many other students qualified the entrance test for admission to the BDS course which was conducted by MDU in accordance with the notification. In accordance with their preference and raking, they were allocated to BMN College during counse!ing,which was affiliated to MDU. The MDU invited applications from all eligible candidates for the 3rd year of the BDS course as eight seats has fallen vacant in the 3rd year of the course. The plaintiffs-petitioners alongwith many others applied and a committee consisting of Pro-vice Chancellor, Controller of Examinations MDU, Rohtak and Principal, Government Dental College, Rohtak was constituted to recommend the names of the eligible candidates, The aforementioned committee conducted the interviews on 10.11.2000 and recommended the names of the plaintiff-petitioners apart from others for migration. Despite the recommendations made by the committee, the MDU on the advice of the Dental Council of India (defendant-respondent No. l) refused migration to them, The principal reason for refusing migration as disclosed by the Dental Council of India was that BMN College is not a recognised college and, therefore, it does not fulfill the requirement of migration. It was stated that the rules framed by DCI did not permit migration from a unrecognised institution to a recognised one.
4. Feeling aggrieved by the action of the defendant-respondent No. l, 2 and 3, a civil suit bearing No. 400 was instituted on 28.11.2000 with the averment mentioned in the preceding para and the action of the defendant-respondents in refusing to allow examination was challenged. Along with the suit, the plaintiff-petitioners filed an application under order 39 Rules 1 and 2 of the CPC seeking an interim injunction for provisional migration during the pendency of the suit.
5. The case set up by the defendant-respondents No. 2 and 3 in their written statement is that the University Calender Volume II at Page 257 provides that the migration is not to be permitted to a candidate from a Dental College/Institution which is not recognised one or the degree which is to be conferred by such an institution is not accepted by the Dental Council of India. It has further been asserted by defendant-respondents No. 2 and 3 (MDU) that the recommendations of the selection committee were subject to the approval of the DCI. After the matter was taken up with the DCI which is an Apex Body, the students were informed that they were not eligible for migration as BMN College was not a recognised institution. Further stand taken by the University is that the recommendations of the committee were not binding and after due deliberations were rejected by the Vice Chancellor who refused on the facts that the applications were invited for migration to 3rd year of the BDS course and the seats were available. In their separate reply, the DCI also took the same stand with added emphasis that the MDU is bound by Section 22 of the Dentist Act, 1948 and also the Rules and Regulations framed by the DCI regarding migration of students from one Dental College to another.
6. The plaintiff-petitioners succeeded in persuading the Civil Judge to accept their prayer for interim directions for their migration from BMN College to the Government Dental College, Rohtak and also to permit them to attend classes. However, the learned District Judge reversed the order of the Civil Judge. The principal reason given by the learned Additional District Judge is that no migration is possible from an institution which is not recognised to the one which is recognised.
7. 1 have heard Shri Arun Kumar Jain, learned counsel for the plaintiff-petitioners, Shri R.S.Taccoria, learned counsel for MDU defendant-respondents No. 2 and 3 and Shri M.S.Guglani, learned counsel for the ''DCI'' defendant-respondent No. l and have gone through the record carefully.
8. Mr. Jain has argued that the plaintiff-petitioners were admitted to BMN College on the basis of an entrance test held on the basis of a notification issued by the State of Haryana and the MDU, Rohtak was nominated as an agency to hold entrance test. He has further pointed out that reliance of the University on Rule 257 is absolutely misplaced because it is not inter-University migration. According to the learned counsel, the provisions of Rule 260 would apply which deals with inter college migration i.e., from one college to another affiliated to MDU. The learned counsel has placed reliance on a judgment of this Court delivered in C.R.No. 6493 of 2001 decided on 22.1.2002, which is placed on record by C.M.No. 1I744-45-CII of 2002. It has been shown that an SLP No. 6140 of 2002 filed against the aforementioned judgment has also been dismissed and the order has also been placed on record as Annexure A-2.
9. On the other hand, Shri R.S.Taccoria, learned counsel appearing for the MDU has argued that the plaintiff-petitioners have failed to join ''BMN College'' and the Government Dental College, Rohtak as parties respondent who are necessary parties. He has further pointed out that no interim direction could be passed granting migration to the plaintiff-petitioners as it would amount to decreeing the suit which is impermissible in law.
10. Shri M.S. Gugiani, learned counsel for defendant-respondent No. 1 DC1 has argued that according to the Rules and Regulations of the Dental Council of India, approval to colleges is accorded only for one year. Although he has accepted for the year 1998-99, BMN College was accorded annual approval but that approval was accorded on 11.5.2000. Learned counsel has further pointed out that this is being done in accordance with the directions issued by the Constitution Bench in the case of "Unni Krishan J.P.v, State of Andhra Pradesh 1993(1) RSJ 1. He has further pointed out that by way of interim order, the admission cannot be given to the plaintiff-petitioners as it would amount to decreeing the suit. In this regard, the learned counsel has placed reliance on a judgment of the Supreme Court in the case of
11. I have thoughtfully considered the rival contentions made by the learned counsel for the parties and am of the view that these revision petitions merit acceptance because in an earlier order where the learned Additional District Judge has granted the interim order, this Court has upheld that interim order in Civil Revision No. 6493 of 2001 decided on 22.1.2002. In that case also, the students sought migration from ''BMN College'' to the Government Dental College, Rohtak in the 3rd year of the BDS Course. All facts have been identical to the facts of the present cases except that the students in that case were admitted in the session 1997-98 whereas in this case the students have been admitted in the session 1998-99. Relying on a judgment of the Hon''ble Supreme Court in
"Before adverting to the respective contentions raised on behalf of the parties, it is necessary to observe that the petitioner-defendant on the asking of State of Haryana has conducted an entrance examination and allocated the respondent-plaintiff to Sh. Baba Mast Nath College. Even in the prospectus it has been held out to the students that Baba Mast Nath College is a college which provides facilities for DBS course. There is no indication in the prospectus given to the students that it was not recognised or was recognised only for a year or two. It is held out to the students by the State or its functionaries like the petitioner-defendant University that a particular college is on the list of recognised colleges then they are bound by the statements made in the Information Brochure. The candidates at no stage were informed that Shri Baba Mast Nath College was not recognised or was recognised for a limited period. Such a situation has arisen before the Hon''ble Supreme Court in the case of
"The High Court has found on the basis of entries on record and the admitted position of the parties before it, that Diploma in Gynaecology Course being conducted in Maharani Laxmi Bai Medical College, Jhansi was not a course recognised by Medical Council of India and that at the time of counselling when a seat in Diploma in Gynaecology in the said College was offered to the respondent, who opted for it, she was not made aware of the position that the course was not a recognised course. It is also admitted that neither in the brochure nor in the prospectus was it disclosed by the appellants that the Diploma in Gynaecology in that College was not a course recognised by the Medical Council of India. The respondent was apparently misled. It did not behave the appellants to have kept back such vital information from the student seeking admission to the diploma course in the medical college. It was not only concealment of such a material fact in the brochure and prospectus but, even at the time of counseling admittedly information was not imparted to the candidates. The High Court under the circumstances was justified in allowing the writ petition in the following terms:
"The writ petition is allowed and the opposite parties, particularly opposite party No. 2 is directed by a writ of mandamus to offer a course of speciality in either of the medical colleges as course as disclosed by her in her representations dated 20.6.1994 and 10.9.1994 contained in Annexures 6 and 8 respectively, to the writ petition with a period of one month from the date of service of a copy of this order."
In view of the admitted fact situation, we see no reason to interfere. This appeal therefore, fails and is dismissed with costs."
Therefore, the respective contention of the parties have to be analysed in the light of the stipulations made by the petitioner-University in its prospectus issued for the Session 1997-98."
12. The observation made in the earlier revision petition would go to show that it is absolutely improper for MDU, Rohtak or DCI to first accord approval albeit on year to year basis allure the students to take admission and then to claim that the institution was not recognised. A perusal of the relevant clause of the prospectus issued for admission to BDS course for the session 1998-99 reveals that no intimation has been given to the Students that BMN College has not been recognised or that it has been approved on year to year basis. Believing the prospectus and the fact that the BMN College which is listed in the notification of the State of Haryana as a recognised institution, the plaintiff-petitioners took admission and started their studies. In the 3rd year when some seats fell vacant at the Government Dental College, Rohtak, they succeeded before the selection committee for their migration from BMN College. On the premise that BMN College institution is not recognised, they were not permitted to migrate to Government Dental College, Rohtak It is absolutely unfair for defendant-respondents to take this stand. They firstly allure the students by holding out that after the entrance test, they can be admitted to any institution which is mentioned in the prospectus and also in the notification of the State of Haryana, they then also allow them to participate in the counselling and further more permit them to study in that institute for two sessions and then turn a volte face to take the stand that the recognition having been withdrawn by DCI, they are not entitled for migration. Therefore, the view taken by the Additional District Judge declining the request of the plaintiff-petitioners in the 7th semester of BDS course to my mind cannot be upheld. Moreover, this case is quarely covered by the judgment rendered in Civil Revision No. 6493 of 2001. The principles of consistency would also require that the earlier view should be followed.
13. The argument raised by learned counsel for DCI that no interim direction could be issued as such and Courts are prohibited by the judgment of the Hon''ble Supreme Court in State of Maharastra''s case (supra) does not merit any serious consideration because in that case the students were admitted to an education shop which was neither recognised at any point of time nor it was given out to the students by the State that the students would be admitted to a recognised institution. It was in these circumstances that the Hon''ble Supreme Court criticised the mushroom growth of ill equipped and under staffed unrecognised institution in the State of Andhra Pradesh, Bihar, Tamil Nadu, Maharashtra and other States. Therefore, the principle laid down in that case do not have any application to the facts of the present case. I find that the principle laid down by the Hon''ble Supreme Court in Reena Singhal''s case (supra) would be applicable and that view has already been taken by this court in Civil Revision No. 6493 of 2001 and even SLP against that order stands dismissed.
14. Another argument raised by the learned counsel for the DCI is that already CWPs No. 1056 of 2001 and 1003 of 2001 are pending before this Court in which the controversy raised by the students of BMN College is for their enblock re-allocation to other recognised institutions. I am not impressed with the contention raised because the writ petition does not involve any controversy with regard to the migration. Therefore, I have no hesitation even in rejecting this contention of the learned counsel.
15. The learned counsel has raised another point that interim relief under Order 39 Rules 1 and 2 Code of the Civil Procedure should not be granted as it would be absolutely unfair and undesirable. He has placed reliance on Union of India v. Erra Education Trust''s case (supra). In that case also the principles laid down are entirely different than the one arise for consideration in the present petition. In that case, Allahabad High Court exercising jurisdiction under Article 226 has granted mandatory relief to run the medical college despite the fact that the Central Government had rejected such permission after obtaining recommendation from the Medical Council. The interim order was issued without allowing the respondents to file counter affidavit and also violating the principles of natural justice. The Hon''ble Supreme Court observed that when the petition was presented for admission, the Court straight away granted mandatory order. Condemning the practice of granting such interim order. Their Lordships observed that such a course should not have been adopted by the High Court. I am afraid that the judgment in Erra Educational Trust (supra) is not even remotely relevant to the controversy raised in the present petition. Therefore, the revision petitions deserve to be allowed.
16. For the reasons recorded above, these revision petitions are allowed. The order dated 29.5.2001 passed by the learned Additional District Judge, Rohtak is set aside and it is directed that the plaintiff-petitioners would be allowed to join the Government Dental College, Rohtak provisionally and should also be promoted in the next higher class subject to the result of the civil suit. The Civil Judge (Senior Division), Rohtak is directed to proceed with the civil suit and dispose of the same expeditiously preferably within a period of six months. The Civil Judge shall be at liberty to take up the hearing of the civil suit on the day basis as most of the evidence required to be tendered in the suit is documentary evidence.
17. Copy of this order be given dasti to the parties on payment of usual charges.
