ion No 467 of 1988
Under Article 32 of the Constitution of India DN Dwivedi BD Aggarwala OP Khadaria Sarva Mitter Bagga Mrs SK Bagga RP Srivastava Ms A Subhashini RK Mehta Ms Sushma Manchanda and Ms Suman Rastogi for the appearing parties
The following Order of the Court was delivered ORDER This petition under Article 32 of the Constitution arises out of implementation of the decision rendered by this Court in Dr Pradeep Jain s case  The petitioner is an unsuccessful candidate for admission to the Post Graduate Medical Course in the All lndia Entrance Examination held by the All India institute of Medical Sciences respondent No 2
In this application he has asked for a declaration that clauses 11 and 15g of the Bulletin of Information published by respondent No 2 in regard to th Post Graduate Medical courses are illegal unconstitutional and incompetent
He has also asked for a writ of certiorari to quash the list of successful candidates for admission in the Post Graduate Medical colleges within the 25 per cent reserved quota and for a writ of mandamus to the respondents to admit the petitioner and similarly placed other candidates against the 1500 and odd seats left out due to the arbitrary decisionaction of the respondents
In Dr Pradeep Jain s case supra this Court decided that admission to 25 per cent of the seats in the different Post Graduate courses in he medical colleges located in the States and Union Territories as also those run by public authorities should be filled up by an All India Entrance examination
Under the Court s directions made from time to time a scheme was evolved by the Union of India in coordination with the Indian Medical Council and the State Governments universities and medical institutions
This Court approved the scheme and directed that the same should be implemented from the Academic year 1988 89 by holding an All India Entrance Examination by the respondent No 2
The scheme contained the provision that cut off base for selection for admission shall be 50 per cent marks
The bulletin prepared by the respondent No 2 is on the basis of the scheme
Since the bulletin is in accordance with the scheme approved by this Court and the PG NO 388 examination has been held following the terms thereof the petitioner is not entitled to the first two reliefs claimed by him namely quashing of a part of the bulletin and quashing of the list of selected candidates
We would like to make it clear that there is no tenable challenge against the examination
It is well settled that judicial determination is not to be tested by the touch stone of Article 14 of the Constitution
Since the matter has come before this Court and from the facts disclosed in the petition we find that in the very first year of implementing the scheme a stalemate has arisen we think it appropriate to give certain directions which may in the facts and circumstances be appropriate and adequate to meet the situation to the extent possible
We gather that 25 per cent reservation as envisaged by the scheme would mean about 2050 to 2100 seats and these were intended to be filled up by the selection tests to be conducted by the respondent No 2
It is said that about 30000 candidates appeared at the selection test but the respondent No 2 found only 500 students fit strictly in terms of the scheme for being admitted as against the 25 per cent reservation
As a result of this about 1600 seats could not be filled up in terms of the scheme
The question for consideration is as to whether these unfilled seats should revert back to the respective States andor institutions or what other method should be adopted to fill up the vacancies
It has been contended on behalf of the petitioner and there is total unanimity amongst all the parties that no seat should go unfilled
It is well known that our country does not have sufficient number of qualified doctors and every step should therefore be taken to turn out as many doctors with Post Graduate qualification as possible
The problem to be resolved therefore is as to what method should be adopted to fill up these unfilled reserved seats
We had given a direction to the Union of India to find out the exact position in regard to the reserved seats
Mr Dwivedi for the respondent No 1 has not been able to give us complete details and has placed a statement in regard to the few States and institutions
At the Bar it has been stated that the total number of seats in regard to this disclosure may not exceed 300
We do not think any useful purpose would be served by further adjourning the matter particularly when respondent No 1 wants a few more weeks to collect the same
We cannot lose sight of the fact that a tight frame of time has been fixed by the previous order of PG NO 389 this Court in regard to admission as also commencement of studies
We have not the least intention to disturb that schedule
It is appropriate at this stage to take note of the fact that one of the medical colleges of Uttar Pradesh moved this Court in the month of May 1988 for a direction that the remainder of the seats from out of the 25 per cent reserved quota should revert back to the college to be filled up by candidates who had applied for the remaining 75 per cent of the seats and had not got admission
Mr Dwivedi for the Union of India has informed us that there has been some confusion as that direction has been construed to be of general application by some and in the case of others instructions have been issued to move this Court to obtain similar orders
Now that about 1600 seats have reverted to the States and the medical colleges located within them these seats have got to be filled up
It is in the interest of the parties that the same should be done as quickly as possible so that the academic time schedule may be stuck to
We are of the view that it would be in the interest of everyone if the respondent No 2 is directed to supply to each State andor Union Territory from where candidates had appeared at the entrance test candidate wise particulars confined to such State within 10 days from now
Once these particulars are available the Selection Committee operating in the State andor Union Territory or in the respective medical colleges covered by the scheme as the case may be shall draw up a list of the remaining candidates seeking admission as against the 75 per cent of the seats and the candidates who had taken the All lndia Entrance examination but have not been found fit on the basis of the marks secured in their respective selection tests and in the event of there being no selection test in the States relating to the 75 per cent quota then at the MBBS examination
This shall be on the footing that the marks in the respective tests or the test and the examination are at par and admission would be on the basis of merit
There is no doubt that the All India Selection test had been a stricter one
Now it would not be possible for us to direct what weightage is to be added on that score
Once the common list is drawn up on the basis of performance admission to the remaining seats in the Post Graduate courses can be taken up
We make it clear that by our Order we do not propose to vacate the admissions already effected up to today that is 12th August 1988 inclusive in respect of the seats in the reserved quota
The colleges will be closed for the next PG NO 390 three days being Second Saturday Sunday and the Independence Day and the possibility of further admission can only be on the 16th of August 1988
Further admission in respect of unfilled seats as against the 25 per cent quota shall be deferred till the list of eligible candidates on the basis of what has been stated above is drawn up
Since we have allowed ten days  time to the respondent No 2 to supply the particulars seven more days shall be allowed thereafter to the institutions including the State Government to finalise the lists and send out intimations to candidates quickly
In these circumstances admissions may again be taken up three weeks after for the remaining seats and may be kept open for ten days
The Director General of Health Services will communicate this part of the order to every medical college subject to the scheme as also the Governments telegraphically today
A copy of this order shall be made available to Mr Dwivedi forthwith
We reiterate that we have no intention to interfere with the scheme which has been approved except to the extent that the dates of admission and commencement of classes may have to be varied to give effect to the present order
We must take note of the situation that the concern which was shown by this Court while reserving 25 per cent of the total number of seats to be filled up on the basis of the All India Entrance examination has not been effectuated on account of only 500 students having been selected
We hope and trust that such a situation would not recur and a more practical view shall be taken by those who are incharge of the matter
We are cognizant of the position that our direction might give dis satisfaction to some candidates but in the back drop and the present situation perhaps no other arrangement more equitable than what we have indicated could be done
At any rate we declare that this is a final order and no application for varying or modifying the same would be entertained by the Registry
The writ petition is disposed of with these directions but without costs
CMP No 19754 of 1988 is a miscellaneous application in Writ Petition Nos
348 to 352 of 1985 which have long been disposed of
The directions which we have given in the writ petition shall operate to the extent applicable to the facts of the case
NPV Petitions disposed of


Summary:
The petitioner Construction firm entered into agreements with respondent No 3 Superintending Engineer of a Circle for execution of certain civil works
Respondent No 1 Superintending Engineer of another Circle entered into a reference for arbitration and parties filed statements and adduced evidence
Before the adjudication was completed respondent No 1 was transferred and his successor in office entered into the task of adjudication with the knowledge consent and active participation of the petitioner in the proceeding
Since the arbitrator could not complete the award within time be sought extension of time by a letter to the petitioner and the petitioner agreed to such extension by a letter
The petitioner did not ask for any further or fresh opportunity for adducing any evidence
Thereafter the arbitrator made his award
The petitioner challenged the award under sections 30 and 33 of the before the District Judge on the ground that the previous arbitrator having entered into reference his successor in office had no jurisdiction to conclude it and the award was violative of principles of natural justice
The District Judge held that the successor in office to the original arbitrator was competent to pass the award
Upholding this the High Court rejected the challenge to the award
Hence the petitioner filed the Special Leave Petition in this Court contending that once an arbitrator had entered into a reference the next incumbent could not conclude the said arbitration proceedings without a fresh agreement that there was violation of principles of natural justice and PG NO 462 PG NO 463 that the award was bad
Dismissing the Special Leave Petition HELD 1
If the parties to the reference either agree beforehand to the method of appointment or afterwards acquiesce in the appointment made with full knowledge of all the circumstances they will be precluded from objecting to such appointment as invalidating subsequent proceedings
Attending and taking part in the proceedings with full knowledge of the relevant fact will amount to such acquiescence 465G  N Challappan vs Secretary Kerala State Electricity Board and another  relied on
Chowdhury Murtaza Hossein vs Mussumat Bibi Bechunnissa 3 IA 209 and Prasun Roy vs The Calcutta Metropolitan Development Authority and another   referred to
Russell on Arbitration 18th Edition20th Edition pages 105432 435 referred to
In the instant case the petitioner had full knowledge of the change of the incumbent and did not protest and proceedings went on before the new incumbent
Thus the petitioner had knowledge of the alleged defect and had acquiesced in the proceedings before the successor
There was therefore no violation of principles of natural justice
465C F 2
Unless there was a patent mistake of law and gross misstatement of facts resulting in miscarriage of justice or of equity the award remains unassailable
466C Champsey Bhara  Company vs Jivraj Ballo Spinning and Weaving Company Ltd 50 IA 324 and Firm Madanlal Roshanlal Mahajan vs Hukumchand Mills Ltd lndore   referred to
In the instant case the arbitrator gave no reason for the award
There is no legal proposition which is the basis of the award far less any legal proposition which is erroneous
There is no appeal from the verdict of the arbitrator
The Court cannot review in such circumstancesthe award and correct any mistake in the adjudication by the arbitrator
466D PG NO 464 3
In the facts and circumstances of the case the award is unassailable
The High Court was right in upholding the District Judge s dismissal of the challenge to the award
466F