Whether the writ petition before the high court is maintainable under Article 226 of the

Indian Constitution?

It is humbly submitted before this court that the writ under Article 226 of the Indian
Constitution is maintainable.

Article 226(1) of the Indian constitution reads as

Power of High Courts to issue certain writs : Notwithstanding anything in Article 32 every
High Court shall have powers, throughout the territories in relation to which it exercise
jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for
the enforcement of any of the rights conferred by Part III and for any other purpose.

It has been held by the Honourable Apex Court that a writ of mandamus can be granted when
there is a statutory duty is imposed upon the authority concerned and there is a consequential
failure. Therefore, in such a situation, this Court can compel the performance of public
duties1.

When an action of an authority is unreasonable leading to an irreparable injury to the

person wrong then this Court can step in and try to redress the same to the extent possible.
A relief under Article 226 of the Constitution of India can also be moulded when a higher
relief sought for cannot be granted. When there is a civil wrong committed by way of a
violation of law, the same can be remedied as enforcement of a legal right. Therefore, it is
a right of the litigant to get redressed through a court of law is a legal right so also the
violation of a legal right. Thus an equitable right in a given case becomes a legal right2.
Decisions of authorities can be questioned when their acts are mala-fide or biased or
violate the rules of natural justice3.
Mandamus would also be issued where the authority has exercised its discretionary power
unreasonably or without due care4 or arbitrarily5.

1
Oriental Bank of Commerce v. Sunder Lal Jain and Anr. MANU/SC/7039/2008
2
M.S.Muhammed Sheik Abdullah v. The Secretary, MANU/TN/3742/2011
3
Dr Ambedakar Institute of Hotel Management v. Vaibhaw singh Chauhan, (2009) 1 SCC 59
4
Vice Chancellor v. S.K Ghosh, (1954) SCR 983
5
Surendra v. State of Bihar, AIR 1984 SC 87
Mandamus is used to enforce the performance of the public duties by the public authorities.
The essence of mandamus is that it is a command by the court ordering the performance of
the public legal duty6.

The public law remedy of mandamus could be availed of against a person acting in public
capacity as holder of public office in performance of public duty that brings about violation
of principles of natural justice or mala-fides7.

A court may interfere in the working of the educational institution unless act are is mala-fide
or violates principle of natural justice8 or the arbitrary or irrational9.

In the matter of admission of candidates for professional courses, it is for the court to
interfere in order to prevent arbitrariness and denial equal opportunity10

A writ of mandamus can be issued wherever there is an irreparable loss committed by a

party by the violation of a legal right. The power under Article 226 of the Constitution of
India is rather wide. When this Court finds that the Appellant has been wronged and an
irreparable loss has been committed then as a necessary concomitant the appropriate relief
will have to be given. This has been defined as scope of Article 226 of the Constitution of
India in relation to the relief to be granted as held in Food Corporation of India v. Seil
Ltd11.
The facts narrated in the present case clearly demonstrate that in pursuant to the admission
process in the NIMHANS, Bangalore under AIPGMEE, there was a corresponding duty
which is a public duty fastened upon the respondent to complete the admission process and
grant the appellant admission in the MD/DPM course in which the appellants were allotted
seat out of the vacancy as created on 31.05.2016.

6
KVR Shetty v. State of Mysore, AIR 1967 SC 993
7
Gajadhar v. Vice Chancellor, AIR 1966 All 477
8
Prasant v. Lingaraj Law College, AIR 1977 Ori 107
9
St. Stephens College v. University of Delhi, (1992) 1 SC 558
10
Javid Rasool Bhat v. State of J&K , AIR 1984 SC 269
11
(2008) 3 SCC 440
Whether the decision of the director of NIMHANS of rejecting the admission of the
petitioner following up an arbitrary condition to be fulfilled by the petitioner proper?

It is humbly contended before this court that the decision of the director of NIMHANS of
rejecting the admission of the petitioner was following up to an arbitrary condition that is to
be fulfilled by the petitioner was not proper.

Non arbitrariness and fairness are the two immobile and unalterable cornerstone of a legal
behaviour baseline. Every action in the realms of state activity has to be informed fair and
non arbitrary12. An authority, however, has to act properly; he must not act illegally,
irrationally or arbitrarily. Any such illegal, irrational or arbitrary action or decision, whether
in the nature of legislative, administrative or quasi-judicial exercise of power is liable to be
quashed13.

The exercise of discretion should be objective and the test of reasonableness is strict. The
public functionaries should be duty conscious rather than power charged. Its actions and
decisions which touch the common man have to be tested on the touchstone of fairness and
justice and which are not fair and just are unreasonable. And what is unreasonable is arbitrary
and consequently an arbitrary action is ultra vires14.

Actions must be informed by reason and it follows that an act uninformed by reason, is
arbitrary. Rule of law contemplates governance by laws and not by humour, whims or
caprices of the men to whom the governance is entrusted for the time being. Performance of
the act in a manner which does not disclose any discernible principle which is reasonable
may itself attract the vice of arbitrariness15.

Discretion, in general, is the discernment of what is right and proper. It denotes knowledge
and prudence, that discernment which enables a person to judge critically of what is correct
and proper united with caution; nice discernment, and judgment directed by circumspection;
deliberate judgment; soundness of judgment; a science or understanding to discern between
falsity and truth, between wrong and right, between shadow and substance, between equity

12
E. P. Royappa vs.State Of Tamil Nadu & Anr.
13
Neelima Misra vs Harinder Kaur Paintal And Others; AIR 1990 SC 1402
14
Mahesh Chandra vs. Regional Manager, U.P. Financial Corporation And Ors; AIR 1993 SC 935
15
S.G. Jaisinghani vs. Union Of India And Ors., [1967] 2 SCR 703
and colourable glosses and presences, and not to do according to the will and private
affections of persons16.

It is humbly contented before this court that in the case of Asha v. B.D.Sharma University
Of Health17 it was held by the courts in rarest of rare or exceptional cases the court may
mould the relief and make an exception to the cut off date; the Court must first return a
finding that no fault is attributable to the candidate, the candidate has pursued her rights and
legal remedies expeditiously without any delay and that there is fault on the part of the
authorities and apparent breach of some rules, regulations and principles in the process of
selection and grant of admission.

Also the court in Arti Sapru & Others v. State of J&K18 and Chavi Mehrotra v. Director
General Health Services19 it was held that where denial of admission violates the right to
equality and equal treatment of the candidate, it would be completely unjust and unfair to
deny such exceptional relief to the candidate.

In very rare and exceptional cases of discrimination or arbitrariness or pressing emergency,

admission may be permissible but such power may preferably be exercised by the courts.
Further, it will be in the rarest of rare cases and where the ends of justice would be subverted
or the process of law would stand frustrated that the courts would exercise their extra-
ordinary jurisdiction of admitting candidates to the courses after the deadline20.

Appellants could not make it to the admission place before the stipulated time and reached an
hour late of scheduled cut off time and was denied admission on the same ground that she
had failed to reach the place on time. It was held that the appellant could not be denied
admission simply because she was late on the same day without being at fault. She was
compensated with an amount of Rs 10,00,000 and accordingly seat was granted in the next
academic session21.

The court in the same case Respondent 3 i.e MCI (Medical council of India) made a
submission to the Court that there that Regulation does not provide for any such time limit

16
Sharp v. Wakefield, (1891) Appeal Cases 173
17
MANU/SC/0542/2012
18
(1981) 2 SCC 484
19
(1994) 2 SCC 370
20
Aravind Kumar Kankane v. State of UP and Others [(2001) 8 SCC 355]
21
MANU/TN/0124/2011
viz., 5.00 p.m. before which all candidates should get admission and court approved this
submission when it was asked to enquire the time required for admission.

In the case of M.S.Muhammed Sheik Abdullah v. The Secretary 22 the appellant candidate
could reach the respondents college only in the night but the respondent college transferred
the appellants seat to the other person in the waiting list without waiting for the appellant
until the next morning. It was opined by the Madurai bench of Madras High Court that the
respondent should have waited for the appellants till the next morning.
Also in the case of Sri Muthukumaran educational Trust v. Medical Council of India23,
the court upon the deciding upon the dispute regarding not giving the appellant candidate fair
chance to reach the college, it recommended that to avoid these situations the selection
committee should at least give the candidate a ten days prior notice before the cut off date.
In the given set of facts the petitioners who were in Chennai were informed through an email
on 31st May 2016 at 15.11 that he need to reach the respondents college in Bangalore on the
same day to validate the admission process under the seat that had been granted to the
appellants out of the vacancy created. It is arbitrary in nature because the appellants couldnt
have not in any possibility would have reached on the same day before the office got closed.

22
MANU/TN/3742/2011
23
MANU/TN/3057/2011