JUDGMENT <NAME>, J.

1. The first impression which this Court get after concluding the hearing of this case, is that the issues raised in the two writ petitions could have been avoided if those responsible for granting admissions to courses known as super specialities at the medical colleges had not overlooked the decision of <ORG> in re <CITATION> , AIR 1984 SC 1420. Super Specialities is the course for which candidates must have a degree in M. D. or M. S., it is otherwise known as D.M. by <ORG>.

2. The admission to these courses is by merit and no other criteria. <ORG> even went to the extent of observing that in courses like super specialities there would be no reservation whether institutional or other. The reason being, <ORG> laid down, that these Were disciplines where only the best and no other reservation could save a seat for a candidate. Thus, before this <ORG> could examine any other matter, parties were made conscious of the constraints upon this <ORG>, and permit the debate on issues on the admission which have been made in the super specialities Courses (Cardiology) at <ORG>, Kanpur. To be within the confines of the decisions of <ORG>.

3. The contention of the petitioners in the two writ petitions before this Court is that the admissions made to the aforesaid courses are a total negation to the law as has been laid down by <ORG>. The petitioners contend that <ORG> has resorted to institutional reservations by selecting internal candidates first and thereafter considering a solitary external candidate. This, they contend, is illegal. Consequentially, they desire that the admissions as have been made be declared as illegal and, thereafter the Principal of <ORG>, aforesaid, be directed to process the admissions, afresh, but strictly in accordance with the criteria laid down by <ORG> so that it is in accord with <NAME> case (AIR 1984 SC 1420) (supra). The defence on behalf of the contesting respondents, that is, those candidates who have procured admissions, and the <ORG> respondents is faint.

4. The facts for consideration are that nineteen persons applied, in response to an advertisement given in the newspaper inviting applications from students of merit, in the D.M. Courses in Cardiology otherwise known as super speciality course in Cardiology. The advertisement referred to other courses also. The advertisement No. 68/4-4-/87 Stud. P.G. is dated October 21, 1987. The advertisement was sent for publication to <ORG>, New Delhi, <ORG>, Kanpur Edition otherwise published from Allahabad. It was endorsed to the Director, <ORG>, Lucknow, all the Principals of <ORG> of the State Government in Uttar Pradesh, <ORG>, New Delhi, <ORG>, <ORG>, Kanpur, <ORG>, <ORG>, Kanpur, <ORG>, Varanasi, <ORG>, Kanpur and <ORG>, Kanpur.

5. The merit list tor admission to the <ORG> course was drawn up to consider the admission for four seats amongst 19 candidates. The merit list was split into two groups. The first group was of internal candidates. There were 12 in number and the next group was of external candidates containing 7 names. The first three amongst the internal candidates were given admission and the first name amongst the external candidates was also given admission. This implied that the four seats were bifurcated as 75% for internal candidates and 25% for external candidates. The merit list was produced before this Court in the counter-affidavit of the Principal of <ORG>, Kanpur, The list is being reproduced below :

MERIT LIST FOR THE ADMISSION TO THE D.M. (CARDIOLOGY) AT V.S.V.M.

MEDICAL COLLEGE, <ORG> Internal Candidates

1. Dr. <NAME> 64.5%

2. Dr. <NAME> 64.35% Admitted 3, Dr. <NAME> 63.60%

4. Dr. <NAME> 63.46%

5. Dr. <NAME> 63.35%

6. Dr. <NAME> 62.94% Dr. <NAME> 62.73% Dr. <NAME> 62.07% Dr. <NAME> 60.92% Dr. <NAME>

60. 17% Dr. P. C. Tandon 60.00% Dr. Anurag Misra 59.82% LIST OF MERIT OF EXTERNAL CANDIDATES FOR D.M. (CARDIOLOGY)

1. Dr. <NAME> 72.35% Admitted

2. Dr. <NAME> 66.72%

3. Dr. <NAME> 66.29%

4. Dr. <NAME> 66.06%

5. Dr. <NAME> 64.46%

6. Dr. <NAME> 61.44%

7. Dr. <NAME> 58.59% Sd. Principal <ORG> Kanpur.

6. It was conceded by learned <ORG> counsel that in the face of the <ORG> judgment in re. <NAME> case (AIR 1984 SC 1420) (supra) the very criteria adopted is against the grain of the judgment of the <ORG>. Logically learned counsel for the <ORG> could not but help make this submission. This Court has no hesitation in placing on record that the manner and the modality of the selection of candidates is illegal after the <ORG> had set the criteria. One aspect was clear, that there was to be no reservation. In the face of the <ORG> judgment, aforesaid, <ORG>, Kanpur. resorted to institutional reservations. The exercise was not only an irregularity but disrespectful by ignoring the directions of the <ORG>. The lotality of the list had to be taken into account. This meant that the candidates who had been given admission had been virtually inducted into <ORG> irregularly and illegally. The candidate on the top of the merit list was Dr. <NAME> with 72.55%. He has, in the face of his merit, made his position unassailable. The admission granted to the first three so-called internal candidates tumbles. The next in order of merit is Dr. <NAME> with 66.72%. Thereafter Dr. <NAME> with 66.29% and lastly Dr. <NAME> with 66.06%. The merit list, thus, exhausts itself, if there are to be four seats only.

7. There was a faint suggestion to the <ORG> on behalf of the candidates who ought not to have been admitted and whose admissions are liable to be in jeopardy that the Supreme <ORG> judgment in <NAME> case (AIR 1984 SC 1420) be ignored for the academic session 1987-88 and that this <ORG> express its view for the next academic session. This is not possible. This implies that irregularity is accepted by all and is not in issue. There are candidates who are higher in merit who are waiting outside the gates of <ORG> with a judgment of the Supreme <ORG> in their hands and demand an answer in the name of justice why they had been left out. The respondents have no answer to give them except that the admissions are over. This defence will not do here.

8. If the logic of the <ORG> judgment is to be applied and inevitably this <ORG> is obliged to do so, then the three candidates claiming themselves to be internal candidates have been granted admissions illegally. It is for this reason that the <ORG> declined , to grant adjournments and conducted almost day to day hearing. There was a suggestion from those w ho had received illegal and irregular admissions when the <ORG> insisted that the judgment of the <ORG> in re : <NAME> case (AIR 1984 SC 1420) will be implemented, that a solution be found so that all may remain. Neither equity, merit nor law is with the respondents Nos. 4, 5 and 6, the so-called internal candidates who managed admissions irregularly. If there are only four seals then this <ORG> is afraid their admissions must be annulled. When the writ petition of Dr. <NAME> was filed on 8 August, 1988, the eourse had gone on for about six weeks. 'When the writ petition of <NAME> had 5een filed before another Bench the course had gone on for about three weeks.

9. All the respondents desire that they ought not to bo dislodged. If the last of them is to remain, then on merits, he comes at serial No. 8, then the list would read as :

1. Dr. <NAME> 72.55%

2. Dr. <NAME> 66.72%

3. Dr. <NAME> 66.29%

4. Dr. <NAME> 66.06% 5. Dr. <NAME> 64.5%

6. Dr. <NAME> 64.46% (One of the petitioners)

7. Dr. <NAME> 64.35% and S. Dr. <NAME> 63.60% This implies that the seats must be doubled if the last of them is to be accommodated, at present continuing on an irregular admission, and is not to discontinue his course.

10. As the entire ease has been argued in reference to the decision of <ORG> that in Super Specialities there will be no reservations, it would be best to see the observation of <ORG> in <NAME> case (AIR 1984 SC 1420) (supra). <ORG> observed in <NAME> case in paragraph 22 as under :

"We are therefore of the view that so far as admissions to post-graduate courses, such as M.S., M.D. and the like are concerned, it would be eminently desirable not to provide for any reservation based on residence requirement within the <ORG> or on institutional preference. But, having regard to broader considerations of equality of opportunity and institutional continuity in education which has its own importance and value, we would direct that though residence requirement within the <ORG> shall not be a ground for reservation in admissions to postgraduate courses, a certain percentage of seats may in the present circumstances, be reserved on the basis of institutional preference in the sense that a student who has passed MBBS course from a medical college or university, may be given preference for admission to the post-graduate course in the same medical college or university but such reservation on the basis of institutional preference should not in any event exceed 50 per cent of the total number of open seats available for admission to the post graduate course. This outer limit which we are fixing will also be subject to revision on the lower side by <ORG> in the same manner as directed by us in the case of admissions to the MBBS course. But, even in regard to admissions to the post-graduate course, we would direct that so far as super specialities such as neuro-surgery and cardiology are concerned, there should be no reservation at all even on the basis of instil utional preference and admissions should be granted purely on merit on all India basis."

11. The foundation of abdicating reservation and relating to merit in courses like super specialities in Cardiology and Neurosurgery had already been laid down by <ORG> in an earlier decision in re. <CITATION> , AIR 1980 SC 820. In this case, <ORG> had held that excellence could not be compromised at the cost of equalisation. In the matter of advance medicine <ORG> said :

"39. If equality of opportunity for every person in the country is the constitutional gurantee, a candidate who gets more marks than another is entitled to preference for admission. Merit must be the test when choosing the best, according to this rule of equal chance for equal marks. This proposition has greater importance when we reach the higher levels of education like postgraduate courses. After all, top technological expertise in any vital field like medicine is a nation's human asset without which its advance and development will be stunted. The role of high grade skill or special talent may be less at the lesser levefs of education, jobs and disciplines of social inconsequence, but more at the higher levels of sophisticated skills and strategic employment. To devalue merit at the summit is to temporise with the country's development in the vital areas of professional expertise. In science and technology and other specialised fields of developmental significance, to relax lazily or easily in regard to exacting standards of performance may be running a grave national risk because in advanced medicine and other critical, departments of higher knowledge, crucial to material progress, the people of India should not be denied the best the nation's talent lying latent can produce. If the best potential in these fields is cold-shouldered for populist considerations garbed as reservations, the victims, in the long run, may be the people themselves. Of course, this unrelenting strictness in selecting the best may not be so imperative at other levels where a broad measure of efficency may be good enough and what is needed is merely to weed out the worthless."

12. The writing was already on the wall since the last eight years when <ORG> gave the guidelines that in advanced courses and sophisticated disciplines in sciences and technology, reservation under the exception of equality must give way to excellence. In 1984 in the matter of <NAME> case (AIR 1984 SC 1420) (supra) <ORG> said so specifically in reference to advance courses like Cardiology and Neurosurgery that merit alone ought to be the basis for granting admissions in the medical colleges.

13. At least immediately after <NAME> case all the medical colleges of the "nation were obliged to set standards for admission for Super Specialities Courses and granted admissions on the basis of merit only. Institutional reservation in the aforesaid courses had already been declared as a bad exercise.

14. It is a sad aspect, that in this <ORG> a decision of <ORG> was put in the cupboard and no directives have been issued to the medical colleges in reference to super specialities courses guiding the Principals of the medical colleges to grant admission on merit alone and not on reservation. Simultaneously, the Principals of the <ORG> medical colleges were obliged, notwithstanding the absence of such state directions to have been conscious of the decision of <ORG> and accept candidates for admissions in super specialities courses not on the basis of institutionalised reservation but strictly on merit. There is a const itutional obligation on the <ORG> and all authorities whether civil or judicial, to fall in line with a decision of <ORG>. Neither the <ORG> of Uttar Pradesh nor the Principals of the <ORG> medical colleges are exceptions to such an obligation. The of forgotten mandate of the Constitution is Article 144. It reads :

"144. Civil and judicial authorities to act in aid of <ORG> All authorities, civil and judicial, in the territory of India shall act in aid of <ORG>."

15. This is in addition to Article 141 , which warns that the law declared by <ORG> shall be binding on all courts within the territory of India.

16. The <ORG> and the <ORG> respondents chose to ignore the <ORG> decision for more than four years. This <ORG> cannot and does not propose to do so, as suggested on behalf of respondents Nos. 4, 5 and 6.

17. The defence on behalf of the respondents, the contesting doctors is feeble and in self-interest only. They received entry into the medical college but cannot withstand the test of merit. They contend that the super specialities course is also a post-graduate course and that unless <ORG> sets down the norms of holding an all India examination, as mentioned in the decisions of <NAME> case, AIR 1985 SC 1059, the admissions granted to them ought not to be disturbed. This is a misconstrued submission by tearing the context out (about) to save the worst of bad situation. To contend that super specialities course is also a postgraduate Course is like saying that a rose is alsoa flower. It is a superior breed. So are the disciplines of super specialities. <ORG> itself had put super specialities into a class apart and indicated that it is a course in advance medicine and standards of excellence in this higher discipline of science cannot he compromised and admissions were to he strictly on merit. The all India examination to which the contesting respondents are referring in reference to <NAME> case is in the context of MBBS course and M.D./M.S. courses in reference to which <ORG> had indicated that either <ORG> must conduct an all India entrance examination or it must be carried through by <ORG>. In effect, pointedly <ORG> observed that institutional reservation in this course must come to an end. What remains is the merit.

18. If all the contesting respondents including those in the list, out of which they were extracted, were to be considered for admission on the criteria set by <ORG> then institutional preference as internal and external candidates will disappear. What will remain for consideration is the process of filtering the candidates on merits. The same criteria of merits which got admissions for respondents Nos. 4, 5 and 6, except that the list will be examined as a whole.

19. Now the matter of a solution. The result must depend largely upon the <ORG> respondent's.

20. Despite the matter having been adjourned to enable the learned Standing Counsel to seek instructions in the face of the situation that at every academic session since 1984 after the judgment of <ORG> in re. <NAME> case (AIR 1984 SC 1420) (supra), the principles were known and clear, no solution was forth-coming. The only statement which the learned Standing Counsel could make was that should the court give directions, then, the <ORG> would comply with them.

21. Simultaneously, learned Standing Counsel was submitting a legal proposition, that seats cannot be increased nor can <ORG> compel an educational institution to increase the strength. This was on the basis of a decision reported in AIR 1985 All 1; <CITATION> . This decision, upon its own facts does not apply. It was a case where the. unfit having being irregularly admitted were putting the plea of estoppel against the <ORG> in cancelling their admission and in the alternative sought increase of seats so that their admissions were not set aside. The Bench -declined the second alternative suggested to perpetuate an irregularity. In the present case the fit and meritorious have been kept out. The context of the citation in Achchey Lal, aforesaid, was misplaced by the learned Standing Counsel. But the strategy of learned Standing Counsel in making the submission is relevant. It amounts to this : seats cannot be increased but should the court give a direction it will he done.

22. This is a deplorable state of affairs and it amounts to 'passing the buck' on to the <ORG>. This ought not to have been so. A direction or principle settled by the Supreme <ORG> hinds the civil and judicial authorities simultaneously. Such is the discipline of the Constitution, and it requires all authorities civil and judicial in the nation to act and follow and not to ignore the decision of the Supreme <ORG>. This is Article 144 of the Constitution. Pronuncement of the Supreme <ORG> is a discipline which is to be kept under Article 144 of the Constitution. The illegalities have been committed in granting admission to those who were below merit; that there were others higher in merit is now a matter of record.

23. Asking the <ORG> to give a direction and giving it confidence that it will be followed is all very nice, but it shows a failing system. The question now arises who should find a solution, the <ORG>, the Principal or the High <ORG>. The <ORG> has no hesitation in finding a solution, hut its implementation must rest with the <ORG> respondents at their initiative. The principal job of this <ORG> is to certify whether the action which has been impugned is correct or not. That the <ORG> is prepared to guide the <ORG> respondents to a solution is different from giving a direction. The difference between the two are not to be forgotten.

24 <ORG> for postgraduate courses has no doubt laid down that the student teacher ratio should be 1:1. But i t has also placed on record in its recommendation of <ORG>, otherwise approved as regulations under Section 33 of the Indian Medical Council Act 1956, that "in exceptional cases, in a unit with one Post-Graduate teacher and another teacher with Post-Graduate qualification a maximum of two students can be admitted per year."

25. In exceptional circumstances, <ORG> permits a student unit ratio of 2:1. This is not student-teacher ratio, but equation between the unit where a speciality is taught. 'Unit' has been explained in the recommendations of <ORG>. Each post graduate unit shall consist of Professor/Associate Professor and Assistant Professor or Reader or other post-graduate teacher. It is in reference to this that the <ORG> has made an exception provided the unit has one post-graduate teacher and another teacher with postgraduate qualification, a maximum of two students can be admitted per year.

26. Before this <ORG> no material has been placed to warrant a situation for increasing seats so that those who ought to have been admitted, in place of those already admitted, can all be accommodated. The solution lies clearly with the <ORG> respondents regard being had to the circumstances permitting. It would not be appropriate for this <ORG>, to permit a let in the students of higher education by giving a direction to the <ORG> respondents without any material having been placed by them, that a direction be issued, so that it is compatable with the recommendations of <ORG>. Thus, this court has shown the guidelines upon which the <ORG> respondents, if they desire, may act with speed and increase the seats, the numbers of which shall also be at their discretion.

27. This Court after having examined the facts and circumstances, comes to the conclusion that the admissions which have been made at <ORG>, Kanpur, in the D.M. Course (super speciality) in Cardiology is irregular, illegal and against the judgment of <ORG> in re : <NAME> case (AIR 1984 SC 1420) (supra). This court was fully conscious of the fact that the students higher in merit were left out; this was bad in itself. This Court was further conscious that those below in merit have procured admissions upon a criteria which cannot stand the test of reasonableness after <ORG> judgment, aforesaid. This Court is encouraged in finding a solution by a decision of <ORG> reported in re : <CITATION> , AIR 1979 SC 765. Coincidentally this is also a matter relating to admissions in medical colleges. In this very case, <ORG> found from the record that the result of an examination could be writ with. "The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out." In reference to want of material on record in finding a solution to conclude issue <ORG> observed :

"The functional validation of the writ jurisdiction is an appropriate examination of sustainability of the alleged disparity. We do not, however, proceed finally to pronounce on this point with reference to the two universities. Since nothing is available before us, or, for that matter, was before <ORG> to warrant a fair conclusion on the issue."

But, in order that a rigid attitude may not be adopted in a writ jurisdiction the <ORG> ought not to show negativity on such matters after striking down the scheme of the government as ultra vires and leaving an archaic situation. The observation of the Supreme <ORG> in reference to the context are reproduced below :

"34. Nor is law unimaginative, especially in the writ jurisdiction where responsible justice is the goal. The Court cannot adopt a rigid attitude of negativity and sit back after striking down the scheme of <ORG>, leaving it to the helpless <ORG> caught in a crisis to make do as best as it may or throwing the situation open to agitational chaos to find a solution by demonstrations in the streets and worse. We are, therefore, unable to stop with merely declaring that the scheme of admission accepted by <ORG> is ultra vires and granting the relief to the petitioner of admission to the medical college. The need for controlling its repercussions calls for judicial response. After all, law is not a broodingomnipresence in the sky but an operational art in society."

28. <ORG> in the present case has explored the possibility of finding a solution, as it is not forthcoming from the <ORG> respondents. <ORG> also cautioned that flagrant violation of admissions into engineering and medical colleges cannot continue and the <ORG> respondents may not rest in the hope that the <ORG> will find a solution to a situation created between the educational institution and the <ORG>. <ORG> was also seized of a case where it considered the complication of issues before a <ORG> when the academic session was mid-way and the decision of the court beyond that, when it would create anomalous situations to declare wrong admissions as ultra vires implying thereby that the students who have done more than half their courses had to leave the institution. It is for this reason that this <ORG> thought it fit not to grant any unreasonable adjournments. But, the Supreme <ORG> also gave a hint that if admissions are granted contrary to the principles, then there is no occasion for the court to leave admissions intact. The following passages from the judgment of the Supreme <ORG> in re : <CITATION> , AIR 1983 SC 580 : are relevant :

"4. Cases like these in which admissions granted to students in educational institutions are quashed raise a sensitive human issue. It is unquestionably true that the authorities who are charged with the duty of admitting students to educational institutions must act fairly and objectively. If admissions to these institutions are made on extraneous considerations and the authorities violate the norms set down by the rules and regulatioas, a sense of resentment and frustration is bound to be generated in the minds of those unfortunate young students who are wrongly or purposefully left out. Indiscipline in educational institutions is not wholly unconnected with a lack of sense of moral values on the part of the administrators and teachers alike. But, the problem which the courts are faced with in these cases is, that it is not until a period of six months or a year elapses after the admissions are made that the intervention of the court comes into play. Writ Petitioners involving a challenge to such admissions are generally taken up by <ORG> as promptly as possible but even then, students who are wrongly admitted finish one or two semesters of the course by the time the decision of <ORG> is pronounced. A further appeal to this <ORG> consumes still more time which creates further difficulties in adjusting equities between students who are wrongly admitted and those who are unjustly excluded. Inevitably, the <ORG> has to rest content with and academic pronouncement of the true legal position, Students who are wrongly admitted do not suffer the consequences of the manipulations, if any, made on their behalf by interested persons. This has virtually come to mean that one must get into an educational institution by means, fair or foul; Once you are in, no one will put you out. Law's delays work their wonders in such diverse fashions."

"5. We find that this situation has emboldened the erring authorities of educational institutions of various States to indulge in violating the norms of admission with impunity. They seem to feel that the courts will leave the admissions intact, even if the admissions are granted contrary to the rules and regulations. This is a most unsatisfactory state of affairs. Laws are meant to be obeyed, not flouted. Some day, not distant, if admissions are quashed, for the reasons that they were made wrongly, it will have to be directed that the names of students who are wrongly admitted should be removed from the rolls of the institution. We might have been justified in adopting this course in this case itself, but we thought that we may utter a clear warning before taking that precipitate step. We have decided, regretfully, to allow the aforesaid sixteen students to continue their studies, despite the careful and weightly finding of <ORG> that at least eight of them, namely, the seven wards of employees and <NAME>, were admitted to <ORG> in violation of the relevant rules and regulations."

For four years the decision of <ORG> in re : <NAME> case (AIR 1984 SC 1420) (supra) has been ignored by the <ORG> respondents. The 'some day, not distant' has arrived. This decision in re : <ORG> (AIR 1983 SC 580) was a caution to <ORG>, not to condone illegalities.

29. In this very case <ORG> also repelled the contention of <ORG> before it that it cannot increase the seats though it had not kept the criteria in making admissions. In this regard <ORG> observed :

"6. It is strange that in all such cases, the authorities who make admissions by ignoring the rules of admissions contend that the seats cannot correspondingly be increased, since <ORG> cannot meet the additional expenditure which will be caused by increasing the number of seats or that the institution will not be able to cope with the additional influx of students. An additional plea available in regard to <ORG> is that <ORG> will not sanction additional seats. We cannot entertain this submission. Those who infringe the rules must pay for their lapse and the wrong done to the deserving students who ought to have been admitted has to be rectified. The best solution under the circum-stances is to ensure that the strength of seats is increased in proportion to the wrong admissions made."

Thus the solution is in the hands of the <ORG> respondents. The responsibility to let the students who have already been admited, to continue, will now rest on the <ORG> respondent notwithstanding that the first four in order of merit shall be admitted by a direction of this Court.

30. In 1985 in one of its decisions <ORG> was clarifying an aspect and was noticing the difficulties and the hazards faced by those students who have been wrongly denied admission and the difficulties of accommodating those whose admissions are likely to be annulled. <ORG> as conscious of the fact that standards of education as far as possible must not be compromised in disciplines of higer education. Regard being had to the circumstances before it the <ORG> of U.P. was directed to accommodate the post-graduate students who were to be admitted in pursuance of the decision, either at <ORG> or any other five medical colleges in the <ORG> of Uttar Pradesh at the option of <ORG> Thus, in so far as the present case is concerned, the four students in orders of merit shall receive admissions at <ORG>, Kanpur, others, whose admissions will be affected may either be accommodated at the medical college, aforesaid, or any other medical college (or even the said medical college, circumstances permitting) of <ORG> where the super speciality course in Cardiology is available. The option is with the <ORG> respondents. This will be in keeping with the pattern suggested by <ORG> in re : <CITATION> (AIR 1985 SC 1059) (supra).

31. <ORG> in another case reported in AIR 1988 SC 1445, Mridula Awasthiv. <ORG> in paragraphs of the judgment reiterates and reminds the authorities monitering and implementing education "we reiterate the view expressed by this court on more than one occasion that selection in the higher courses should be on the basis of merit". In the circumstances of that case, and no other, <ORG> issued directions to <ORG>, though not party, as <ORG> is a centrally aided institution, to make provision for more seats which inevitably required <ORG> to provide funds. An understanding was given at <ORG> that <ORG> would agree provided <ORG> came forward with finances. Simultaneously, <ORG> also suggested to <ORG> of India to provide the necessary accommodation by relaxing requirements for the variation of the quota of student teacher ratio. The suggestion by <ORG> was made in the peculiar facts and circumstances of that case.

32. We are not inclined to issue any direction to the <ORG> of Uttar Pradesh on the repercussion which might further follow in the face of wrong admission, which have been made. This court has guided the <ORG> respondents to a solution. The intention of the court was not to harm any student, but if the criteria of admission was merit and no other, then those who have merit and have not been admitted cannot be left out and will be admitted by a direction of this court and will receive admission. If the <ORG> respondents desire to continue the admission, they have already granted, they have the permission of this court to do so, but not at the expense of the four persons who ought to and have to be admitted on merit.

33. To sum up, in the face of circumstances considered by this court, both, the facts as placed and the legal submissions this court directs that :

(a) admissions in <ORG> course, for the session under consideration, will be strictly upon merits and without any reservation;

(b) the admissions granted to the respondents Messrs <NAME>, <NAME> and <NAME> are irregular and illegal, and are annulled;

(c) admit three scholars to the <ORG> course in order of merit only;

(d) Dr. <NAME>, with 72.35% respondent No. 7, in writ petition No. 15005 of 1988, is unaffected by these directions;

(e) the <ORG> respondents are at liberty to consider further admissions in the D. M. Cardiology course, but it is to be in accord with the recommendations of <ORG>, circumstances permitting;

(f) the liberty or permission granted under (e) is subject and after grant of admissions to three further candidates in order of merit, which is to be carried out forthwith :

(g) should any candidate, after Dr. <NAME> declines admission, the next in order of merit in the list of nineteen candidates, aforesaid, shall be granted admission.

34. The writ petition filed by Dr. <NAME>, is allowed with costs as his submissions have been accepted in totality. The writ petition filed by Dr. <NAME> is allowed, with costs on parties as his merit is beyond the prescribed seats at present; legal submission having been accepted by the court.


<NAME>, J.

1. I have had the advantage of reading the judgment of my learned brother and I entirely concur. I would, however, like to add a few words as to the meaning to be given to the words "error apparent on the face of the record". I conceive that in the English cases from which this expression has been borrowed the emphasis is not upon the word "error" but upon the words "apparent on the face of the record", that is to say that error must be such as can be ascertained from the record as it exists or should exist.

2. In 'Walsall Overseers v. <ORG>, 1878-4 AC 30 (A), Lord <NAME>, Lord Chancellor, stated, at_ page 39 :

"If there was upon the face of the order of <ORG> anything which shewed that that order was erroneous, <ORG> might be asked to have the order brought into it, and to look at the order, and view it upon the face of it, and if the <ORG> found error upon the face of it, to put an end to its existence by quashing it."

3. In 'Rex v. <ORG>', 1922-2 AC 128 (B), Lord <NAME> stated, at page 155 of the Report:

"The key of the question is the amount of material stated or to be stated on the record returned and brought into the superior <ORG>. If justices state more than they are bound to state, it may, so to speak, be used against them, and out of their own mouths they may be condemned, but there is no suggestion that, apart from questions of jurisdiction, a party may state further matters to the <ORG>, either by new affidavits or by producing anything that is not on or part of the record." Again, at page 159 of the Report, Lord <NAME> added :

"When the Summary Jurisdiction Act provided, as the sufficient record of all summary convictions, a common form, which did not include any statement of the evidence for the conviction, it did not stint, the jurisdiction of <ORG>, or alter the actual law of certiorari. What it did was to disarm its exercise. The effect was not to make that which had been error, error no longer but to remove nearly all opportunity for its detection. The face of the record "spoke" no longer; it was the inscrutable face of a sphinx."

The same point is clearly brought out in -- 'Rex v. Northumberland Compensation Appeal Tribunal', 1952-1 KB 338 (C), Lord Justice <NAME> states at page 349 of the Report:

"The record had to contain everything necessary to show that the Justices had jurisdiction to deal with the matter, and it had to set out their adjudication; but it was not necessary to set out either the evidence or the reasons. If a point of law arose, however, on which either party desired the ruling of <ORG>, he could ask the justices to make a speaking order, that is, to make a special entry upon the record of the reasons for their judgment. The justices were not bound to do this, but they usually did so if they entertained a doubt about the point. When their reasons thus appeared on the record, <ORG> would on certiorari inquire into their correctness, and, if the reasons were wrong, would quash the decision."

4. Their Lordships of <ORG> have held in -- " <CITATION> ', 1954 SC 440 (AIR V 41) (D), in a passage quoted at length by my learned brother that the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting writs in English law are applicable to India.

5. If any position as to the scope of certiorari other than that laid in the English decisions were adopted, it might well be that <ORG>, having discovered an error on the record, would be bound to allow that error to subsist because it was not one of sufficient gravity to justify interference. Such a position has been negatived by this Court in --' <CITATION> . at Allahabad', 1955 All 557 ((S) AIR V 42) (E), and by <ORG> in -- ' <CITATION> , 1955 SC 425 ( (SJ AIR V 42) (F), in passages which my learned brother has quoted and which it is not necessary for me to repeat.

6. In the present case, therefore, it is open to us to examine the order of the Chancellor which is a "speaking order" to consider the interpretation which he places on the statute & the reasons therefor which he gives and on finding that he misinterpreted the relevant provisions of the statute, to quash his order in the exercise of our power of certiorari.

Mehrotra, J.

7. This is an appeal under Chapter VIII. Rule 5 of the Rules of Court against a judgment of a Single Judge of this Court allowing a petition under Article 226 of the Constitution filed by the respondent, Dr. <NAME>.

8. Briefly, the facts, which gave rise to the petition, are that the respondent, Dr. <NAME>, was a Professor in <ORG>, appellant 2, and the Head of <ORG> until 13-3-1954, the date on which he retired from the service of the <ORG>. He was also a member of the Academic Council of the <ORG> and as such was an ex officio member of the <ORG> under head (vi) of Section 17 of the Allahabad <ORG> Act, 1921.

The <ORG> is the supreme governing body of the <ORG> under the Act and the executive body of the <ORG> is <ORG>. The constitution of <ORG> is laid down in the Statutes which are to be found in Chapter II of the Statutes, Ordinances and Regulations made under the Act. <ORG> consists of twenty members of whom six are members of the <ORG> elected by the <ORG> at its annual meeting. In the annual meeting of the <ORG> held in November 1952, the respondent was elected to <ORG>.

One of the limitations placed by the Statutes on the powers of the <ORG> to elect six of its members to <ORG> is that two of the persons so elected must be members who themselves were elected as members of the <ORG> by the registered graduates. Out of the six persons elected by the <ORG> to the membership of <ORG>, four were persons who had been elected to the <ORG> by the registered graduates but the respondent was not one of those four persons,

9. Under head (xviii) of Section 17 of the Act read with clause (2) of the first Statute relating to the <ORG>, the Chancellor of the University is empowered to appoint not more than 15 persons to be members of the <ORG> and by a letter dated 8-3-1954, the Chancellor, in the exercise of the powers so vested in him, appointed the respondent to be a member of the University <ORG> in place of Sri <NAME>. The express words in the letter of appointment which are relevant for the consideration of the petition are "With effect from the date of the former's retirement (that is, the retirement of the respondent) from the post of Professor and Head of <ORG> of <ORG>, viz. March 12, 1954, for the' residue of the term of office of Sri <NAME>, viz. up to December 14, 1955."

It is admitted by the parties that in this letter reference to March 12 is a mistake for March 13. The respondent admittedly retired from the <ORG> with effect from 13-3-1954 and consequently his nomination to the membership of the <ORG> com-menced with effect from his retirement and was to last till December, 14, 1955.

10. The question which arose before the University authorities was whether the respondent con-tinned to be a member of <ORG> alter 13-3-1954 in view of the provisions of the Statute, Clause (2) of the first Statute relating to <ORG> provides that the members of the <ORG> other than ex officio members shall hold office for a period of three years, but there is a proviso appended to this clause which reads as follows :

"Provided that a member appointed or elected as a member of a particular body or as the holder of a particular post shall hold office so long only within that period as he continues to be a member of that body or the holder of that post, as the case may be."

The question having arisen as to whether the case of the respondent fell within the ambit of this proviso, the Vice-Chancellor referred the matter for decision to the Chancellor under the provisions of Section 42 of the Act. On 20-8-1954, the Chancellor, by an order pf that date, decided that the respondent was not entitled to, continue to be a member, of <ORG>. Thereupon a petition was filed in this Court under Article 226 of the Constitution for the issue of a writ of certiorari to quash that; decision and also for the issue of a writ of mandamus directing the appellants not to interfere with the attendance of the respondent at meetings of <ORG> and in the peformance of his functions as such member.

In the petition, the Registrar <ORG>, the <ORG> through the Vice-Chancellor, the Vice-Chancellor of the <ORG> as holding the office of Vice-chancellor and the Chancellor of the <ORG> were impleaded as opposite-parties. The petition was contested on behalf of all the opposite-parties and the learned Single Judge of this Court, by his order dated 29-10-1954, upheld the contentions raised by the petitioner-respondent and allowed the petition.

A writ of certiorari was issued quashing the order of the Chancellor dated 20-8-1954. The prayer for a writ of mandamus, however., was refused in the circumstances of the case.. The order of the learned Single Judge has, now been challenged in this appeal.

11. The first point to be considered is whether the Chancellor, acting under Section 42 of the Allahabad University Act, constituted a quasi-judicial tribunal and any decision by him under the said section was, therefore, subject to the superintendence of this Court or he was acting only administratively.

12. The question whether a power is judicial or quasi-judicial or it is merely administrative has to be decided upon the language of the Statute, upon the nature of the power and, the consequences of its exercise upon the rights of others and the exigencies of the situation. The main thing to be considered is whether the authority concerned has to decide a dispute between two parties or it has merely to take note of the dispute to inform its mind before it exercises the power conferred upon it in its discretion. In the former case it acts judicially or quasi-judicially but in the latter case it acts administratively.

The principle on which it can be determined whether an authority has acted judicially, quasi-judi-cially or administratively has been considered in the case of <CITATION> , 1950 SC 222 (AIR V 37) (G). In order to decide this question it is necessary to refer to the provisions of Section 42 of the Act which reads as follows:--

"If any question arises whether any person has bteen duly elected or appointed as, or is entitled to be, a member of any authority or other body of the <ORG>, the matter shall be referred to the Chancellor, whose decision thereon shall be final."

The Chancellor has not only to exercise his discretion but he has to take a decision thereon which necessarily implies that, in determining the dispute referred to him, he had to act judicially. The question, which can be referred to him under Section 42 , is also whether any person has been duly elected or appointed, which necessarily implies that the Chancellor has not to consider the question whether in his opinion a person has been elected or appointed but has to determine whether he has been duly elected, that is, in accordance with the provisions of the Statute. It has therefore, been rightly conceded by the Advocate General that the Chancellor constituted a tribunal the decision of which is subject to the superintendence of this <ORG> under Article 226 of the Constitution.

13. The point, which was strongly urged before the Single Judge, was that this Court had no authority under Article 226 of the Constitution to quash, by a writ of certiorari, an order made by a tribunal subject to the superintendence of this Court on the ground that it is, on the face of it, erroneous in law; the jurisdiction of this Court to interfere with orders passed by subordinate tribunals under Article 226 of the Constitution is limited to the cases where a tribunal has exceeded its jurisdiction or has acted against the principles of natural justice in the exercise of its limited jurisdiction; there is no power in this Court to exercise its jurisdiction under Article 226 of the Constitution in cases where the decision by a subordinate tribunal is erroneous in law on the face of the record.

In view of recent decisions of <ORG>, however, the learned Advocate General has conceded that it is open to this Court to quash the decision of an inferior tribunal if it is erroneous in law on the face of the record.

14. Article 226 of the Constitution is couched in very wide terms. It gives power to <ORG> to interfere, Under its supervisory jurisdiction, with the orders of inferior tribunals somewhat in the same manner as the court of <ORG> in England. Whatever restrictions there are, they have been placed by the courts themselves having regard to the fact that the Article gives a discretion to superior courts which is to be exercised OB well-known judicial principles.

The scope of <ORG> to interfere with decisions of inferior tribunals by issuing a writ of certiorari has now been finally determined by <ORG> in the case of <CITATION> , 1955 SC 233 ((S) AIR V 42) (H). Their Lordships, after considering all the Indian authorities as well as the authorities of <ORG>, have laid down that "It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record."

In this very case, their Lordships have approved of the principle laid down by the court of appeal in England in the case of 1952-1 All E R 122 (C). In an earlier case of 1954 SC 440 (AIR V 41) (D) it was observed by their Lordships as follows;

"In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law."

It was also held by this Court in 1955 All 557 ((S) AIR V 42) (E) that "the power of this Court to issue a writ of certiorari is not confined to the grounds where the subordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record."

The main question, therefore, canvassed before us was that the order passed by the Chancellor could not be regarded as an error apparent on the face of the record. At the highest it could only be regarded as a mere error of law and even on the principle laid: down by their Lordships of <ORG> in <NAME>'s case (H), referred to above, it was not liable to be quashed by this Court As has been observed by their Lordships of <ORG> in <NAME>'s Case (H), the real difficulty is not in staring the principle but in its application to the facts of a particular' case. Their Lordships observed as follows:

"When does an error cease to be mere error, and become an error apparent on the face of the record? Learned Counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated.

Mr. <NAME> for the first respondent contended on the strength of certain observations of <NAME>, C. J. in <CITATION> 1953 Bom 133 (AIR V 40) (I) that no error could b(c) said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another.

The fact is that what is an error apparent on the face of the record "cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case."

15. From this statement of law, it is clear that no exhaustive definition can be given to the words 'error apparent on the face of the record'. It will not entirely depend upon the nature of the error or upon the degree of the error. Each case will have to be determined on its own facts. A superior court or tribunal will have to examine an order itself and decide whether the order, in the circumstances of that particular case, can be regarded as erroneous on the face of the record or a mere error of law.

It was contended by the Advocate General that the words 'error apparent on the face of the record occur in Order 47 of the Code of Civil Procedure and it may be useful to refer to cases where the courts have determined the scope and ambit of the words 'error apparent on the face of the record' in Order 47, Rule 1 of the Code of Civil Procedure. In our opinion, it is not a safe guide to rely upon the cases interpreting the words 'error apparent on the face of the record' in Order 47, Rule 1, Civil P. C., in order to determine the scope of these words in connection with the power of: this <ORG> to issue a writ of certiorari under Article 226 of the Constitution.

When a court is asked to review its own order, it may not be a valid ground for the court to say that, as it finds on the reconsideration of its order that it is illegal, it should be set aside as it is an error apparent on the face of the record. It may be different where a superior tribunal is called upon to decide whether any erroneous decision of an inferior tribunal is illegal on the face of it.

It was then contended by the Advocate General that in cases where the inferior tribunal has, in the opinion of the superior tribunal, incorrectly interpreted any Statute, it will only be a mere mistake of law and cannot be regarded as an error apparent on the face of the record. We do not see that that is a test which can be applied in all cases and can be accepted as correct.

16. In '<NAME>'s case (H)', <ORG> quashed the decision of <ORG> on the ground that it had not properly interpreted the scope and ambit of Section 100 of the Representation o the People Act . The respondent before <ORG> in that case had been duly declared elected a member of the <ORG>. 301 votes, which were found in the ballot box of the respondent in that case, had been added to his votes.

If these 301 votes had been deducted from the total votes said to have been obtained by him, he could not have been declared elected and one of the questions, therefore, before <ORG> was whether those votes were proper votes and could be counted for the respondent. By mistake the ballot papers of <ORG> were issued to the electors of the <ORG> and the electors, when voting for the respondent in that case, had placed the ballot papers of <ORG> in his box.

The contention of the petitioner in that case was that they were invalid votes and could not be counted in favour of the respondent. <ORG> held that they were invalid votes and should have been rejected but, as, in their opinion, the addition of those votes did not materially affect the results of the election, the election could not be set aside. The <ORG>, in holding that the results-of the election were not materially affected by the addition of these votes, relied upon certain extraneous circumstances.

The <ORG> held that although those ballot papers were not valid in view of the provisions o Rule 47, the fact that they were found in the ballot box of the respondent indicated that the electors exercised their choice in favour of the respondent and consequently the result of the election was not materially affected. There were other circums-stances which were considered by the <ORG> in coming to that conclusion.

<ORG>, on the interpretation of Section 100 , Representation of the People Act held that it was, not permissible for the <ORG> to consider the intention of the electors in deciding whether the result of the election had been materially affected. It was observed at page 248 of the Report after referring to Rules 47 and 48 of the Rules framed under the Act that---

''Under this rule quite clearly no candidate can be declared elected on the strength of votes which are liable to be rejected under Rule 47. The expression "the result of the election" in Section 100(l)(c) must, unless there is something in the context compelling a different interpretation, be construed in the same sense as in S. 66 , and there it clearly means the result on the basis of the valid votes."

In my opinion, therefore, in that case it was nothing but an erroneous interpretation of the pro-visions of a Statute which was considered by <ORG> as 'an error apparent on the face of the record.' The determination of the questions as to what is the scope and the ambit of a particular provision of a Statute and what matters can legitimately be determined by a tribunal under the provisions of a particular Statute is nothing else but interpreting a Statute.

17. In the case of 1952-1 All ER 122 (C), which was approved by their Lordships of <ORG>, the facts were that the applicant in that case had been awarded compensation for loss o employment as clerk to a joint hospital board by <ORG> as compensating authority, and he had appealed against the award to the tribunal on the ground that the compensating authority had failed to take into account his service with the district council, as required by the regulations. The tribunal upheld the decision of the compensating authority.

The applicant moved <ORG> of <ORG> for an order of certiorari to remove the decision of the tribunal into <ORG> to be quashed on the ground that the decision was erroneous on the face thereof. In <ORG> both the tribunal and the compensating authority were respondents to the motion. They both admitted that their decisions were wrong and that an error of law appeared on the face of the decision of the tribunal but they contended that the court had no power to make an order of certiorari since the tribunal had not acted without jurisdiction.

In the circumstances of that case a writ of certiorari was issued by <ORG> and that decision was upheld by <ORG>. What was considered to be an error apparent on the face of the record was nothing but interpretation of certain regulations made by the compensating authority and the tribunal.

18. In the case of -- '<NAME> v. <ORG> and <NAME>; Ex Parte Road Haulage Executive', 1953-1 All ER 687 (J), this case was followed and a writ of certiorari was granted by <ORG>. In that case, the second respondent, George James <NAME> was awarded by the tribunal appointed by the Minister of Labour and <ORG> compensation for the loss of emoluments suffered by him when certain transport undertakings of which he was a servant, were acquired by the applicants, <ORG>, under the Transport Act , 1947. The amount of compensation was calculated in accordance with the provisions of the Transferred Undertakings (Compensation to Employees) Regulations, 1950, schedule II, para 5 (2), on the ground that the respondent had a right to the payment of compensation in the event of discharge within the meaning of para 4(1) (i) of the schedule.

It was admitted by the applicants in that case that the respondent had a right to claim damages for wrongful dismissal, but the contention was that such a right was not included in the phrase "compensation in the event of discharge." On that contention a motion was made for an order of certiorari to quash the award which was dismissed by <ORG>. On appeal, <ORG> allowed the appeal and the award of the <ORG> was quashed.

19. In Halsbury's Laws of England, Third Edition, Volume II, page 61, para 118, under the head -- Error on the lace of the proceedings --the law has been laid down that-

"Where upon the face: of the proceedings themselves it appears that the determination of the Iinferior tribunal is wrong in law, certiorari to quash will be granted .... Certiorari to quash will be granted where the charge laid before the magistrates, as stated in the information, does not constitute an offence punishable by the magistrates or where it does not amount in law to the offence of which the defendant is convicted or where an order is made which is unauthorised by the finding of the magistrates."

20. Mr. <NAME>,, on the other hand, contended that the words 'an error apparent on the face of the record' only means that if an error is revealed on the perusal of the judgment itself, it is nothing else but an error apparent on the face of the record. It is the duty of this <ORG> to finally determine the law of the land.

Having declared what the law is on which the decision of a particular controversy depends, it is for the superior court to examine the decision of an inferior tribunal and see if the said law has been correctly followed by the inferior tribunal. If it finds on the face of the order, which is, a speaking order, that it had not observed the law as determined by the superior tribunal inasmuch as it has held contrary to that law, it can quash the order of the inferior tribunal. In this connection reliance was placed on the following observations of this Court in the case of 1955 All 557 ((S) AIR V 42) (E) (at p. 560) :

"This decision, to our mind, clearly lays down that the power of this <ORG> to issue a writ of certiorari is not confined to the grounds where "the subordinate court has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on the face of the record. The difficulty does arise in deciding whether a particular error of law is an error on the face of the record.

To our mind, if a certain order passed by the subordinate tribunal gives the reasons for the decision, that is to say, it is a speaking order as it is termed by English <ORG>s, then it is open to this <ORG>, in the exercise of its power under Article 226 of the Constitution, to scrutinise the reasoning of the subordinate <ORG> so far as can be done without going outside the order itself, examine it and if this <ORG> finds that the reasons are manifestly wrong on a question of law and the conclusions arrived at by the courts below are apparently erroneous then it is open to this <ORG> to exercise its jurisdiction under Article 226 of the Constitution and quash such a decision."

21. Reference in this connection may also be made to the following observations of their Lordships of <ORG> in the case of 1955 SC 425 ((S) AIR V 42) (F). That was a case where <ORG> was dealing with an order passed by <ORG>. One of the contentions raised at the bar was that <ORG> having been constituted for special purposes under the Act of Legislature, any decision arrived at by the said Tribunal should be considered as final and neither the High Court nor <ORG> should interfere with such an order in the exercise of its powers under Article 226 of the Constitution.

Reliance was also placed on' the express provisions of Section 105 of the Representation of the People Act. Dealing with that argument, the following observations were made by their Lordships of <ORG>:

"The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. It is a part of the law of the land which cannot be finally determined or altered by any tribunal of limited jurisdiction. <ORG> and <ORG> alone can determine what the law of the land is vis-a-vis all other courts and tribunals and they alone can pronounce with authority and finality on what is legal and what is not. All that an inferior tribunal can do is to reach a tentative conclusion which is subject to review under Articles 226 and 136 (of the Constitution)."

22. In order, therefore, to see whether the Chancellor has committed an error apparent on the face of the record, I have to consider the relevant provisions of the Statute and the reasonings given by the Chancellor for his decision.

23. The whole of the Statute which provides for the membership of <ORG> and of which the proviso is a part is as follows ;

"1. (1) ............

Class I -- Ex-Officio Members.

<NAME>.

Class II -- Other Members.

(i) Six members of the <ORG>, elected by the <ORG> at its annual meeting of whom two must be from among members of the <ORG> elected by the registered graduates;

(ii) (a) Two Principals, elected by the Principals of Colleges, and

(b) One member elected by the Wardens, the Chairman of the Delegacy and the Proctor from among themselves;

(iii) Two members elected by <ORG> from its own body;

(iv) Three members appointed by the Chancellor.

(2) Members other than ex-officio members shall hold office for a period of three years.

Provided that a member appointed or elected as a member of a particular body or as the holder' of a particular post shall hold office so long only within that period as he continues to be a member of that body or the holder of that post, as the case may be."

Clause (2) of the Statute fixes the tenure of the membership of the members other than the ex-officio members. In the absence of any proviso, the result would have been that all those, who were elected as members of <ORG> by the <ORG> by virtue of their membership of the <ORG>, would have continued to be members of <ORG> for three years even though during that period they may have ceased to be members of that <ORG>. Similar results would have followed in the case of members under Clause (ii) of Class II.

The members, who would have been elected by the Principals of colleges, would have claimed membership for three years although during that period they may have ceased to be Principals and to hold that office. In order to avoid this result the proviso seems to have been enacted and on the interpretation of the plain language of the proviso, 'to our mind, it only means that any member elected as a member of <ORG> by virtue of his being a member of a particular body, that is, the <ORG>, he will hold office, that is, he will remain member of <ORG> so long only within that period as he continues to be a member of the <ORG>.

In other words, the condition for the continuance of office as a member of <ORG>, in the case of a member elected by the <ORG>, is his continuance as a member of the <ORG>. It is an admitted fact that on 13-3-1954, the respondent was a member of the <ORG> and also he continued to be a member of the <ORG> on 14-3-1954. It cannot, therefore, be said that at any point of time he ceased to be a member of the <ORG>. On the plain language of the proviso, therefore, he continued to be a member of the <ORG> and as such he did not cease to be a member of <ORG>.

24. The view taken by the Chancellor was that as he was a member of the <ORG> by virtue of his being a member of <ORG>, he belonged to the class of ex-officio members of the <ORG> and his capacity of membership was changed when he was nominated to be a member of the <ORG> by the Chancellor with effect from his retirement. It could not, therefore, be said that he continued to be a member of the <ORG>. In support of the view taken by the Chancellor, it was contended by the Advocate General that if the status of the member changed during his period of membership, e.g. an ex-officio member becomes a life member although his membership of the <ORG> continues without interruption, it is not in the eye of law the same membership and in the eye of law he cannot be regarded to continue to be a member within the meaning of the proviso.

In this connection it was also argued by the Advocate General that in properly construing the intention of the framers of this proviso, it was relevant to consider what could have been the intention of the electors when they elected the respondent to the membership of <ORG>. ....The members of the <ORG>, when they elected him to the membership of <ORG>, must have visualised that the respondent was a member of the <ORG> ex-officio by virtue of his membership of <ORG> and his membership was liable to cease as soon as he ceased to be a member of <ORG>., If the proviso is interpreted in a manner other than that suggested by the Chancellor, the result will be that the respondent will continue to be a member of <ORG> though that may never have been intended by the electors.

25. I do not think that there is any force in this contention of the Advocate General. In interpreting the intention of the framers of the Statute, the primary thing, which is to be considered, is the language of the Statute. The intention has to be deduced from the language. The words are to be given their plain meaning and if the words used by the framers of the Statute are plain in their meaning, it is not permissible to deduce the intention of the framers from considerations extraneous to the meaning of the words used" by the framers of the Statute.

It is not necessary to refer to authorities on this point. It is a well settled principle of interpretation of Statutes that the intent of an enactment has to be determined by the language of the Statute. It is not permissible for courts to travel beyond the language of the Statute and try to fish the intention of the framers from considerations which the courts regard reasonable. It would be really legislating and not interpreting.

Having regard to the plain language of the proviso 1 am of opinion that any person, who continues to be member of the <ORG>, will continue to be a member of <ORG> and a mere change in his capacity, that is, the qualification under which he becomes a member of the <ORG>, will not disentitle him to remain a member of <ORG>, it has been accepted by the Advocate General before us as well as before the learned Single Judge that the interpretation put by him on the proviso will necessarily involve the addition of certain words. The proviso has to be construed as if after the phrase 'a member of that body' there are deemed to be added the words 'in the same capacity as he was elected or appointed to it. It is a well-known rule of construction that in the absence of anything to modify or qualify, the words used in the Statute must be given their plain meaning and that it is not open; to add words to a Statute, it was observed by their Lordships of <ORG> in the case of --' <CITATION> , 1938 PC 281 (AIR V 25) (K) that "the <ORG> cannot put into an Act words which are not expressed and which cannot reasonably be implied on any recognised principle of construction." Nothing should be import-, eel into an enactment merely on the basis of a speculation as to the intention of the <ORG>.

26. The Chancellor has, however, tried to import the concept of capacity from the word 'continue'. In order to examine the reasoning of the Chancellor, it will be necessary to refer to a part of his order. Paragraph 9 of the order of the Chancellor reads as follows :

"The word 'continue' is defined in <ORG> as meaning, 'to carry on; 'keep up'; 'maintain'; 'persist in'; 'to remain in existence or in its present condition'; 'to last, endure or persist in being'; 'to remain (in a specified state or capacity)'. The word 'continue' carries with it the sense of a running nature of things under the same conditions, that is, without a break in capacity, time, sequence, tenure or essence.

While construing the words 'continue in office' Baron <NAME> in -- "<NAME> v. Mayor of Berwick-Upon Tweed', (1856) 5 HLC 856 (805) (L) said that to establish continuance the duties "prima facie must not be changed; its liabilities and checks must not be varied; not even its duration and tenure varied." Mere juxtaposition of two distinct periods of time without persistence of these essential attributes would not, therefore, be continuance."

The case referred to by the Chancellor was a case where the court was called upon to interpret certain words in a security bond and the words used therein were 'to continue in the said office'. In interpreting those words, it was observed that the words 'to continue in the said office' necessarily implied the continuance of the duties, liabilities and checks. In the present case, it has not been pointed out that any change has been brought about in the duties or liabilities or checks of the respondent as a member of the <ORG>. The qualification entitling him to become a member of the <ORG> may have changed but his duties and liabilities as a member of the <ORG> underwent no change.

Nothing has been pointed out in the Statute or in the Act which will go to show that the duties and the liabilities qua the membership of the <ORG> are different of the ex-officio members from that 'of the other members. Even the dictionary meaning quoted by the Chancellor, to our mind, makes no difference so far as the interpretation of the word 'continue' is concerned. Emphasis appears to have been laid by the Chancellor on the words 'in a specified state or capacity within brackets after the words 'to remain.' Even it is be accepted that the part within the brackets forms part of the meaning of the word 'continue', it cannot be said that the 'specified state or capacity' of the respondent 'changed. In our opinion, therefore, the plain meaning of the proviso is that so long as a member of <ORG>, who had been clected by the <ORG>, remains a member of the <ORG>, he continues to be member of <ORG>. There is nothing in the language of the proviso to justify the interpretation that the change of qualification will result in the extinction of his membership of <ORG>.

27. It was lastly contended by the Advocate General that there were various meanings given to the word 'continue' in dictionary and it was open to (he Chancellor to select any one of those mean-Ings and having selected that meaning and interpreted the proviso on the strength of that meaning, it cannot be said that the interpretation placed by the Chancellor is erroneous on the face of the record. I do not see that there is any substance in this contention.

A word may be given different meanings in a dictionary but what is the meaning which is to be given to that word in a Statute has to be determined in the light of the provision of the Statute in which that word has been used. It docs not give any power to the inferior tribunal to just arbitrarily select any meaning given to a word used in the Statute in dictionary but the superior court can examine whether the particular meaning given by the inferior court was the meaning which could be given to that word in that particular provision.

This Court has only to examine the" provisions of the Statute and the reasoning given by the Chancellor to come to the conclusion that the interpretation put by the Chancellor on the word 'continue' is erroneous on the face of it and cannot be accepted. The error committed, therefore, by the Chancellor, in my opinion, was an error apparent on the face of the record and his decision can be quashed by this Court in 'the exercise of its power under Article 226 of the Constitution.

28. Some argument was also addressed by Mr. <NAME> who appeared on behalf of the <ORG>. His contention 'was that as the Chancellor was an inferior tribunal created under the Statute for the specific purpose of determining the matters connected with the <ORG> and as finality has been given to his decision under Section 42 , it is not open to this Court to interfere with the decision of the Chancellor in the exercise of its writ jurisdiction.

In effect, his argument was that, although there is no limitation on the powers of tin's <ORG>, under Article 226 in the exercise of this power, this <ORG> 'will not interfere with the decisions of domestic tribunals. I do not see that there is any force in this contention. So far as the effect of the words 'decision thereon shall be final' occurring in Section 42 is concerned, we have already referred to the case of the Supreme <ORG> wherein the provisions' of Section 105 of the Representation of the People Act were considered end it was argued that as the decision of <ORG> under that section' was final, it was not amenable to the jurisdiction of the High <ORG> under Article 226 of the Constitution. That contention was precisely repelled by the Supreme <ORG>.

As regards the contention that this <ORG> will not interfere with the decision of a domestic tribunal in the exercise of its power under Article 226 of the Constitution, we are of opinion that when under some Statute creating a tribunal, the tribunal is called upon to act judicially, any decision by such tribunal can be interfered with by this <ORG> in appropriate cases and no general rule can be laid down that all decisions of such tribunals, which can be called domestic tribunals, cannot be interfered with'; by this <ORG>.

29. It was also contended by Mr. <NAME> that the final jurisdiction given to <ORG> and <ORG> to determine the law of the land does not apply to the cases where the law which is determined is a law which is liable to be changed by the domestic authorities and is not an enactment of any <ORG>. I do not think that any such distinction can be drawn. Any order passed by the Chancellor had the result of affecting the right of the respondent as a member of <ORG> and consequently such a determination was subject to the supervisory jurisdiction of this <ORG>.

30. Mr. <NAME>, who appeared for the respondent, further contended that the respondent was also nominated as a member of the <ORG> on behalf of <ORG>. As that nomination became effective before he retired from the University, on the strength of that nomination it was open to him to contend that he continued to be a member of the <ORG> within the meaning of the proviso. The learned Single Judge did not go into this question as he was going to allow the petition on the other point. As we are also agreeing with the view of the learned Single Judge, on the other question, it is not necessary for us to go into this question.

31. In the result, therefore, I would dismiss this appeal with costs.


JUDGMENT <NAME>, J.

1. In pursuance of the directions of this court in T.C. P. No. 186 of 1984, dated December 4, 1934, <ORG>, Madras, has referred the following question of law under section 256(2) of the Income-tax Act for the assessment year 1980-81 for our opinion :

"Whether, on the facts and in the circumstances of the case, <ORG> was justified in holding and had valid materials to hold that the assessee is entitled to the deduction under section 35B in respect of the commission paid to <ORG> and also on its share of contribution paid to <ORG> for participating in a trade exhibition ?"

2. The question referred to us consists of two parts one regarding the claim of the assessee for weighted deduction in respect of the commission paid to <ORG>, and another in respect of its share of its contribution paid to <ORG> for participating in an international trade exhibition.

3. The assessee is a company and the assessee claimed weighted deduction under the provisions of section 35B of the Income-tax Act, 1961 (hereinafter referred to as 'the Act'), in its assessment proceedings for the assessment year 1980-81 and the claim of the assessee for weighted deduction in respect of the commission paid to <ORG>, and another in respect of its share of its contribution paid to <ORG> for participating in an international trade exhibition.

4. The assessee is a company and the assessee claimed weighted deduction under the provisions of section 35B of the Income-tax Act 1961 (hereinafter referred to as "the Act"), in its assessment proceedings for the assessment year 1980-81 and the claim of the assessee related to the following items of expenditure.

Rs.

1. Share of Australian office expenditure 12,000 paid to <ORG> 2. Share of export promotion division 3,600 expenditure paid to <ORG> 3. Commission paid to <ORG> on export sales 4. Share of expenditure for participation 32,450 in Second Asian Automotive and Accessories Exhibition at Singapore --------- 65,480 --------- 1/3rd thereof Rs. 21,827.

5. The Income-tax Officer rejected the claim of the assessee for weighted deduction in so far as it related to the commission paid to <ORG>, on export sales and the share of its expenditure for participation in Second Asian Automotive and Accessories Exhibition at Singapore on the ground that the assessee has not established the link between the expenditure and the items enumerated under section 35B of the Act. The assessee preferred an appeal before <ORG>) against the order of <ORG> denying its claim for weighted deduction on the share of export promotion division expenditure and the commission paid to <ORG> and on the share of the expenditure for participation in the second Asian Automotive and Accessories Exhibition. The Commissioner of Income-tax (Appeals) held that the commission paid to <ORG>, was not covered by any of the provisions of section 35B of the Act, and further the commission was also paid in India and hence the assessee was not entitled to claim weighted deduction. In so far as the share of expenditure for participation in the Second Asian Automotive and Accessories Exhibition is concerned, he held that the assessee has not participated in the said exhibition and, therefore, the assessee was not entitled to claim weighted deduction.

6. The assessee carried the matter in appeal before <ORG>. In so far as the claim of the assessee relating to the commission paid to <ORG> is concerned, <ORG> followed its earlier order passed for the assessment years 1976-77 and 1979-80 and held that the assessee is entitled to weighted deduction in respect of the commission paid to <ORG> As regards the claim of the assessee for weighted deduction in respect of the share of expenditure in participating the Second Asian Automotive and Accessories Exhibition is concerned, the Tribunal has found that on the basis of the bills produced by the assessee, the assessee had participated in the exhibition and, therefore, the assessee is entitled to weighted deduction under section 35B of the Act in respect of the sum of Rs. 32,450 also. <ORG> thus allowed the appeal preferred by the assessee as regards the two items claimed by the assessee for weighted deduction.

7. Mr. <NAME>, learned counsel for the <ORG>, submitted that the assessee is not entitled to weighted deduction in respect of both the items as the expenditure incurred cannot be brought in within in any of the items enumerated under section 35B of the Act and there is no nexus between the expenditure and the items mentioned under section 35B of the Act, and the assessee is not entitled to weighted deduction. He however, fairly brought to our notice an earlier unreported decision of this court in <CITATION> . 245 of 1984, dated February 11, 1997 - since reported at  240 ITR 59), wherein this court has held that the assessee was entitled to weighted deduction in respect of the commission paid to <ORG>, Mr. <NAME>, learned counsel for the assessee, submitted that the decision of this court in <CITATION> .  240 ITR 59 cited supra would apply to the commission paid to <ORG> As regards the share of expenditure incurred by the assessee in the participation in the Second Asian Automotive and Accessories Exhibition is concerned, learned counsel for the assessee submitted that the assessee had participated in the exhibition by exhibiting its goods in the foreign country and thereby it has incurred an expenditure towards either advertisement or publicity of the goods or for obtaining information regarding the market outside India, and, therefore, the assessee is eligible to claim weighted deduction in respect of its share of expenditure incurred for participating in the exhibition.

8. We have carefully considered the submissions of learned counsel. In so far as the commission paid to <ORG> is concerned, this court in <CITATION> .  240 ITR 59 cited supra rendered in the assessee's own case, has held that the assessee is eligible to claim weighted deduction in respect of the commission paid to <ORG> This court in the above judgment has upheld the view of <ORG> that the assessee was eligible for weighted deduction in respect of the said expenditure. We are of the view that since the facts prevailing in the earlier decision rendered in the assessee's own case are the same, we hold that <ORG> was right in holding that the assessee is entitled to weighted deduction under section 35B of the Act in respect of the commission paid to <ORG>

9. In so far as the claim of the assessee for weighted deduction in respect of his share of contribution paid to <ORG> is concerned, the Income-tax Officer has not allowed the claim of the assessee on the ground that there was no nexus between the expenditure and the items enumerated under section 35B of the Act. The Commissioner of Income-tax (Appeals) disallowed the claim on the ground that the assessee had not participated in the said exhibition The order of the assessment clearly shows that the exhibition was held in a foreign country, viz., Singapore. <ORG> on a perusal of the material came to the conclusion that the assessee had participated in the exhibition. The logical inference that flows from the above finding of <ORG> is that the assessee had displayed its articles in the Second Asian Automotive and Accessories Exhibition held at Singapore and since there was a display of the assessee's articles in a foreign country, it would amount to either advertisement of its goods or publicity of its goods outside India. The purpose behind the act of the assessee in participating in the exhibition also shows that it was inviting trade enquiries about the assessee's products in the foreign country which would enable the assessee to obtain information regarding the markets outside India and it is significant to note that the expenditure was incurred only in connection with the export of the assessee's products. Since by the display of the goods made in an international exhibition there was a publicity or advertisement of its products eliciting information regarding markets outside India, we are of the view that the claim of the assessee would fall either under sub-clause (i) or sub-clause (ii) of clause (b) of sub-section (1) of section 35B of the Act. We are, therefore, of the view that there is no infirmity in the order of <ORG> in holding that the assessee is entitled to weighted deduction in respect of the share of contribution by <ORG>, when it participated in the international trade exhibition held in the foreign country.

10. We answer the question of law referred to us in the affirmative and against the <ORG>. No costs.