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Tuesday, September 9, 2014

Admissions to MBBS & BDS- NRI quota - clause 2 “2. Eligibility and Merit for NRI seats (03 Seats) for MBBS Course: - challanged - Single judge quashed the clause and further held that when the contesting Respondent did not challenge the eligibility criteria before submitting her application for the M.B.B.S. course, ultimately held that the contesting Respondent was not entitled to any relief for getting admission into M.B.B.S. course.- Division Bench held that when once the definition clause of NRI was found to be invalid by the learned Single Judge, the contesting Respondent ought to have been granted admission into M.B.B.S. course. - Apex court held that unless such claims of exceptional nature are brought before the Court within the time schedule fixed by this Court, Court or Board should not pass orders for granting admission into any particular course out of time. In this context, it will have to be stated that in whatever earlier decisions of this Court such out of time admissions were granted, the same cannot be quoted as a precedent in any other case, as such directions were issued after due consideration of the peculiar facts involved in those cases. Therefore, in such of those cases where the Court or Board is not in a position to grant the relief within the time schedule due to the fault attributable to the candidate concerned, like the case on hand, there should be no hesitation to deny the relief as was done by the learned Single Judge. If for any reason, such grant of relief is not possible within the time schedule, due to reasons attributable to other parties, and such reasons are found to be deliberate or mala fide the Court should only consider any other relief other than direction for admission, such as compensation, etc. Since the contesting Respondent pursued her B.D.S. course till this date though she has secured her admission pursuant to the direction of the Division Bench to M.B.B.S. course in the year 2014-15 and as we have found no justification for the direction issued by the Division Bench which we are setting aside, we direct the Chandigarh Administration and the Government Medical College to restore the contesting Respondent’s admission to the B.D.S. course of the academic year 2013-14 and allow her to pursue the said course, if she so chooses.The admission granted to the contesting Respondent in the M.B.B.S. course of 2014-15 under the NRI category stands cancelled and the selection of candidates who applied for the said course in the said category in the academic year 2014-15 shall be finalized by the Chandigarh Administration and the Government Medical College and on that basis proceed with the admission as per the schedule.= CIVIL APPEAL NOS. 8377-8378 OF 2014 (@ SLP (C) NOS.18137-18138 OF 2014) Chandigarh Administration & Another …Appellants VERSUS Jasmine Kaur & others …Respondents = 2014 Sep. Part - http://judis.nic.in/supremecourt/filename=41889

  Admissions to MBBS & BDS- NRI quota - clause 2 “2. Eligibility and Merit for NRI seats (03 Seats) for MBBS Course: - challanged - Single judge quashed the clause  and further held that  when the contesting Respondent did not  challenge the eligibility criteria before submitting her application for the  M.B.B.S. course, ultimately held that the contesting Respondent was not  entitled  to any relief for getting admission into M.B.B.S. course.- Division Bench held  that
when once the definition clause of NRI  was  found  to  be  invalid  by  the learned Single Judge, the contesting Respondent ought to have  been  granted admission into M.B.B.S. course. - Apex court held that unless  such claims of exceptional nature are brought before the Court  within  the  time schedule fixed by this Court, Court or Board  should  not  pass  orders  for
granting admission into any particular course out of time. In this  context, it will have to be stated that in whatever earlier decisions of  this  Court such out of time admissions were granted, the same cannot  be  quoted  as  a precedent in any other case,  as  such  directions  were  issued  after  due consideration of the peculiar facts involved in those cases.  Therefore,  in  such  of  those
cases where the Court or Board is not in a  position  to  grant  the  relief within the time schedule due to the  fault  attributable  to  the  candidate concerned, like the case on hand, there should be no hesitation to deny  the relief as was done by the learned Single JudgeIf  for  any  reason,  such grant of relief is not possible within the time  schedule,  due  to  reasons
attributable to other parties, and such reasons are found to  be  deliberate or mala fide the Court should only consider  any  other  relief  other  than direction for admission, such as compensation, etc. Since the contesting Respondent pursued her B.D.S.  course  till  this  date though she has secured her  admission  pursuant  to  the  direction  of  the Division Bench to M.B.B.S. course in the year 2014-15 and as we  have  found no justification for the direction issued by the  Division  Bench  which  we are  setting  aside,  we  direct  the  Chandigarh  Administration  and   the Government Medical College to restore the contesting Respondent’s  admission to the B.D.S. course of the academic year 2013-14 and allow  her  to  pursue the said course, if she so chooses.The admission granted to the contesting Respondent in  the  M.B.B.S.  course of 2014-15 under the NRI category stands  cancelled  and  the  selection  of candidates who applied for the said course  in  the  said  category  in  the academic year 2014-15 shall be finalized by  the  Chandigarh  Administration and the Government Medical College  and  on  that  basis  proceed  with  the admission as per the schedule.=

  Leave to file Special Leave Petition was  granted  in  SLP(C)  No.18099/2014
considering the grievances expressed by the said Appellant  contending  that
in  the  event  of  the  impugned  orders  of  the  Division   Bench   being
implemented, her chance of getting admission to the course of  M.B.B.S.  for
the academic year 2014-15  under  the  Non-Resident  Indian  (NRI)  category
would be impinged.

The present impugned orders of the Division Bench came to be passed  at  the
instance of the contesting Respondent in both  the  Civil  Appeals  who  was
really aggrieved of a clause in the prospectus issued by the  Appellants  in
SLP(C)  No.18137-18138  of  2014   (hereinafter   called   “the   Chandigarh
Administration  and  the  Government  Medical  College  Chandigarh”),  which
according to her was not valid.
According to the contesting Respondent,  she
being a Canadian Citizen is an NRI, that, therefore,  she  was  entitled  to
seek admission to the M.B.B.S. course in the NRI category quota but yet  the
definition of NRI as specified in the prospectus issued  by  the  Chandigarh
Administration and  the  Government  Medical  College,  Chandigarh  for  the
academic year 2014-15 would denude her of such  status  and,  therefore,  it
was liable to be struck down. 
The said definition, which  was  contained  in
paragraph 2 of the prospectus of 2013-14, was as under:

“2. Eligibility and Merit for NRI seats (03 Seats) for MBBS Course:

In addition to the general conditions  above,  under  the  NRI  Category  03
seats shall be filled up as per preference order of Category 1 and 2,  given
as under:-

First preference will be given to those NRI candidates  who  have  ancestral
background of Chandigarh (Category 1):

For ancestral background of  Chandigarh,  the  grandparents/parents  of  the
candidates should be resident of Chandigarh for a minimum period of 5  years
at anytime  since  the  origin  of  Chandigarh  and  should  have  immovable
property in his/her name in Chandigarh for the last  at  least  5  years.  A
certificate to  this  effect  is  required  from  DC-cum-Estate  Officer  or
Municipal Corporation of Chandigarh.

Second preference will be given to those NRI candidates who  have  ancestral
background  of  States/UTs  other  than  UT  Chandigarh  (Category   2).   A
certificate regarding ancestral background of the other  State/UT  from  the
competent authority is to be submitted in case of  students  with  ancestral
background of other States/UTs.

There will be no separate test/entrance test  for  the  candidates  applying
for NRI/Foreign Indian Student. These candidates will  have  to  obtain  the
eligibility & equivalence certificate for their qualifying examination  from
the Punjab University, Chandigarh. (as mentioned in general condition  point
no.f)”
The contesting Respondent claimed that her grand-father retired as an  Under
Secretary in the year 1994, that when he was in the services  of  the  State
of Chandigarh he resided in  a  Government  house  from  1965  to  1984  and
shifted to another  Government  accommodation  provided  by  the  Chandigarh
Administration  from  1984  to  1994,   that   third   set   of   government
accommodation  was  provided  by  the  Government  to  the  father  of   the
contesting Respondent  which  was  occupied  till  December  2003  and  that
thereafter, her father started living in the house  of  her  grandfather  in
Mohali.
The contesting Respondent claimed  that  she  passed  as  a  regular
student from Mohali, that the prescription contained in paragraph 2  of  the
prospectus providing for eligibility and merit for NRI  seats  for  M.B.B.S.
course stipulating that the grandparents/parents of  the  candidates  should
be resident of Chandigarh for a minimum period of 5 years at any time  since
the origin of Chandigarh and should have immovable property in his/her  name
in Chandigarh for the last at least  5  years  and  a  certificate  to  that
effect  issued  by  DC-  cum-Estate  Officer  or  Municipal  Corporation  of
Chandigarh was not valid.
It was on that footing that a  challenge  came  to
be made by the contesting Respondent in the High Court in  CWP  No.14320  of
2013 (O&M).
The learned Single Judge by order  dated  27.09.2013  held  that
the impugned  clause  was  totally  impracticable,  illegal,  illogical  and
declared as such.
However, the learned Single Judge went  further  into  the
question as to whether the contesting Respondent can  be  granted  admission
at that stage when she  was  already  admitted  into  the  B.D.S  course  in
Chandigarh itself and that when the contesting Respondent did not  challenge
the eligibility criteria before submitting her application for the  M.B.B.S.
course, ultimately held that the contesting Respondent was not  entitled  to
any relief for getting admission into M.B.B.S. course.

=
The Division Bench by its Order dated 13.01.2014 held  that
when once the definition clause of NRI  was  found  to  be  invalid  by  the
learned Single Judge, the contesting Respondent ought to have  been  granted
admission into M.B.B.S. course.=


   As  time  and  again  such  instances  of  claiming  admission   into   such
professional courses are  brought  before  the  Court,  and  on  every  such
occasion, reliance is placed upon the various decisions of  this  Court  for
issuing necessary directions  for  accommodating  the  students  to  various
courses claiming parity, we feel it appropriate to state  that  unless  such
claims of exceptional nature are brought before the Court  within  the  time
schedule fixed by this Court, Court or Board  should  not  pass  orders  for
granting admission into any particular course out of time.
In this  context,
it will have to be stated that in whatever earlier decisions of  this  Court
such out of time admissions were granted, the same cannot  be  quoted  as  a
precedent in any other case,  as  such  directions  were  issued  after  due
consideration of the peculiar facts involved in those cases.
No  two  cases
can be held to be similar in all  respects.  Therefore,  in  such  of  those
cases where the Court or Board is not in a  position  to  grant  the  relief
within the time schedule due to the  fault  attributable  to  the  candidate
concerned, like the case on hand, there should be no hesitation to deny  the
relief as was done by the learned Single Judge.
If  for  any  reason,  such
grant of relief is not possible within the time  schedule,  due  to  reasons
attributable to other parties, and such reasons are found to  be  deliberate
or mala fide the Court should only consider  any  other  relief  other  than
direction for admission, such as compensation, etc.
In such situations,  the
Court  should  ensure  that  those  who  were  at  fault  are  appropriately
proceeded against and punished in order to ensure that  such  deliberate  or
malicious acts do not recur.

We are, therefore, convinced that the impugned orders of the Division  Bench
in having issued such a direction cannot be approved by this Court. 
When  we
apply the various principles which we have culled out to the case  on  hand,
we find that each one of the principle has been violated by  the  contesting
Respondent.
As stated by us earlier,  there  was  total  lack  of  diligence
displayed by the  contesting  Respondent  right  from  the  stage  when  the
submission of the application was made.
We have noted  that  the  prospectus
which was issued in April, 2013 and the offending clause in  the  prospectus
was not challenged promptly while knowing full  well  that  under  the  said
clause the candidate was not eligible, but yet  for  reason  best  known  to
her, an application was filed and that to three days prior to the last  date
notified for submission of such application. 
There was no reason, much  less
justifiable reason, for not  challenging  the  relevant  clause  before  the
filing  of  the  application.  
There  was  no  reason  for  the   contesting
Respondent to wait for any reply from the Chandigarh  Administration.
After
the order of the learned Single Judge also, the contesting  Respondent  took
her own time to approach the  Division  Bench  for  preferring  the  Letters
Patent Appeal.
A  cumulative  effect  of  the  conduct  of  the  contesting
Respondent has only resulted in disentitling  her  to  claim  any  equitable
relief prejudicial to the interest of other eligible candidates of the  year
2014-15 and whose rights came to be crystallized based  on  the  process  of
selection made for the academic  year  2014-15. 
 If  the  direction  of  the
Division Bench in the above stated background  is  allowed  to  operate,  it
would  amount  to  paying  a  premium  for   the   contesting   Respondent’s
inexplicable delay in working out her remedies.

We are, therefore, convinced that such a recalcitrant attitude displayed  by
the contesting Respondent should not  be  encouraged  at  the  cost  of  the
rights of the other  candidates  for  the  year  2014-15  against  whom  the
contesting Respondent had no axe to grind.
Therefore,  while  setting  aside
the orders impugned in these appeals, we issue the following directions:
Since the contesting Respondent pursued her B.D.S.  course  till  this  date
though she has secured her  admission  pursuant  to  the  direction  of  the
Division Bench to M.B.B.S. course in the year 2014-15 and as we  have  found
no justification for the direction issued by the  Division  Bench  which  we
are  setting  aside,  we  direct  the  Chandigarh  Administration  and   the
Government Medical College to restore the contesting Respondent’s  admission
to the B.D.S. course of the academic year 2013-14 and allow  her  to  pursue
the said course, if she so chooses.


The admission granted to the contesting Respondent in  the  M.B.B.S.  course
of 2014-15 under the NRI category stands  cancelled  and  the  selection  of
candidates who applied for the said course  in  the  said  category  in  the
academic year 2014-15 shall be finalized by  the  Chandigarh  Administration
and the Government Medical College  and  on  that  basis  proceed  with  the
admission as per the schedule.


As far as the claim relating to the impleaded Respondent in I.A.  No.2-3  of
2014 is concerned, since  his  claim  is  subject  matter  of  consideration
before the High Court, the same would be subject to  the  outcome  of  those
proceedings which is left open for consideration by the High Court.


The interim direction issued by this Court on 11.07.2014 is vacated and  the
seats left vacant in B.D.S. and M.B.B.S.  courses  shall  be  filled  up  on
merits.

With the above directions, the appeals filed  by  Chandigarh  Administration
and the Government Medical  College  as  well  as  by  Jessica  Rehsi  stand
allowed.
2014 Sep. Part - http://judis.nic.in/supremecourt/filename=41889
                                                           Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL NOS.  8377-8378 OF 2014
                     (@ SLP (C) NOS.18137-18138 OF 2014)


Chandigarh Administration & Another                …Appellants

                                   VERSUS

Jasmine Kaur & others                        …Respondents

                                    With

                        CIVIL APPEAL NO.8376 OF 2014
                        (@ SLP (C) NO.18099 OF 2014)
Jessica Rehsi                                      …Appellant

                       VERSUS

Chandigarh Administration & Ors.             …..Respondents


                               J U D G M E N T


Fakkir Mohamed Ibrahim Kalifulla, J.

Leave granted.
These appeals have been preferred against the orders passed by the  Division
Bench of the Punjab and Haryana High Court at Chandigarh in LPA  No.2051  of
2013 dated 13.01.2014 and C.M. No.623 of 2014 in RA  No.9  of  2014  in  LPA
No.2051 of 2013. The Appellants in SLP(C) No.18137-18138  of  2014  are  the
Chandigarh Administration and the Government  Medical  College  &  Hospital,
Chandigarh. The Appellant in SLP(C) No.18099 of 2014 has filed  the  Special
Leave Petition with the permission of this  Court,  who  was  not  a  party,
either before the Single Judge or before the Division Bench  of  the  Punjab
and Haryana High Court.

Leave to file Special Leave Petition was  granted  in  SLP(C)  No.18099/2014
considering the grievances expressed by the said Appellant  contending  that
in  the  event  of  the  impugned  orders  of  the  Division   Bench   being
implemented, her chance of getting admission to the course of  M.B.B.S.  for
the academic year 2014-15  under  the  Non-Resident  Indian  (NRI)  category
would be impinged.

The present impugned orders of the Division Bench came to be passed  at  the
instance of the contesting Respondent in both  the  Civil  Appeals  who  was
really aggrieved of a clause in the prospectus issued by the  Appellants  in
SLP(C)  No.18137-18138  of  2014   (hereinafter   called   “the   Chandigarh
Administration  and  the  Government  Medical  College  Chandigarh”),  which
according to her was not valid. According to the contesting Respondent,  she
being a Canadian Citizen is an NRI, that, therefore,  she  was  entitled  to
seek admission to the M.B.B.S. course in the NRI category quota but yet  the
definition of NRI as specified in the prospectus issued  by  the  Chandigarh
Administration and  the  Government  Medical  College,  Chandigarh  for  the
academic year 2014-15 would denude her of such  status  and,  therefore,  it
was liable to be struck down. The said definition, which  was  contained  in
paragraph 2 of the prospectus of 2013-14, was as under:

“2. Eligibility and Merit for NRI seats (03 Seats) for MBBS Course:

In addition to the general conditions  above,  under  the  NRI  Category  03
seats shall be filled up as per preference order of Category 1 and 2,  given
as under:-

First preference will be given to those NRI candidates  who  have  ancestral
background of Chandigarh (Category 1):

For ancestral background of  Chandigarh,  the  grandparents/parents  of  the
candidates should be resident of Chandigarh for a minimum period of 5  years
at anytime  since  the  origin  of  Chandigarh  and  should  have  immovable
property in his/her name in Chandigarh for the last  at  least  5  years.  A
certificate to  this  effect  is  required  from  DC-cum-Estate  Officer  or
Municipal Corporation of Chandigarh.

Second preference will be given to those NRI candidates who  have  ancestral
background  of  States/UTs  other  than  UT  Chandigarh  (Category   2).   A
certificate regarding ancestral background of the other  State/UT  from  the
competent authority is to be submitted in case of  students  with  ancestral
background of other States/UTs.

There will be no separate test/entrance test  for  the  candidates  applying
for NRI/Foreign Indian Student. These candidates will  have  to  obtain  the
eligibility & equivalence certificate for their qualifying examination  from
the Punjab University, Chandigarh. (as mentioned in general condition  point
no.f)”

The contesting Respondent claimed that her grand-father retired as an  Under
Secretary in the year 1994, that when he was in the services  of  the  State
of Chandigarh he resided in  a  Government  house  from  1965  to  1984  and
shifted to another  Government  accommodation  provided  by  the  Chandigarh
Administration  from  1984  to  1994,   that   third   set   of   government
accommodation  was  provided  by  the  Government  to  the  father  of   the
contesting Respondent  which  was  occupied  till  December  2003  and  that
thereafter, her father started living in the house  of  her  grandfather  in
Mohali. The contesting Respondent claimed  that  she  passed  as  a  regular
student from Mohali, that the prescription contained in paragraph 2  of  the
prospectus providing for eligibility and merit for NRI  seats  for  M.B.B.S.
course stipulating that the grandparents/parents of  the  candidates  should
be resident of Chandigarh for a minimum period of 5 years at any time  since
the origin of Chandigarh and should have immovable property in his/her  name
in Chandigarh for the last at least  5  years  and  a  certificate  to  that
effect  issued  by  DC-  cum-Estate  Officer  or  Municipal  Corporation  of
Chandigarh was not valid. It was on that footing that a  challenge  came  to
be made by the contesting Respondent in the High Court in  CWP  No.14320  of
2013 (O&M). The learned Single Judge by order  dated  27.09.2013  held  that
the impugned  clause  was  totally  impracticable,  illegal,  illogical  and
declared as such. However, the learned Single Judge went  further  into  the
question as to whether the contesting Respondent can  be  granted  admission
at that stage when she  was  already  admitted  into  the  B.D.S  course  in
Chandigarh itself and that when the contesting Respondent did not  challenge
the eligibility criteria before submitting her application for the  M.B.B.S.
course, ultimately held that the contesting Respondent was not  entitled  to
any relief for getting admission into M.B.B.S. course.

The order of the learned Single Judge was not challenged by  the  Chandigarh
Administration  or  the  Government  Medical  College  of  Chandigarh.   The
contesting Respondent filed Letters Patent Appeal in LPA No.2051 of 2013  as
against that part of the judgment by which she was denied admission  to  the
M.B.B.S. course. The Division Bench by its Order dated 13.01.2014 held  that
when once the definition clause of NRI  was  found  to  be  invalid  by  the
learned Single Judge, the contesting Respondent ought to have  been  granted
admission into M.B.B.S. course. By the time the Division  Bench  passed  its
order on 13.01.2014, since the process of admission to the  M.B.B.S.  course
had already come to an end and all seats were filled up, the Division  Bench
held that in order to do substantive justice to  the  contesting  Respondent
and at the same  time  without  causing  any  disadvantage  to  the  already
admitted  candidates  under  the  NRI  category  held  that  the  contesting
Respondent should, however, be held to  be  entitled  to  admission  in  the
M.B.B.S. course without displacing any other candidate by stating that  such
admission should be granted even if it required creation  of  an  additional
seat and a direction to that effect was accordingly made.

A review  was  filed  at  the  instance  of  the  Chandigarh  Administration
contending  that  when  the  administration  took  steps  to  implement  the
direction of the Division Bench by approaching the Medical Council of  India
(MCI)  for  creating  an  additional  seat,  the  said  requisition  of  the
administration was turned down by the MCI and, therefore, it was  not  in  a
position  to  accommodate  the   contesting   Respondent.   The   Chandigarh
Administration, therefore, sought for review of the order  of  the  Division
Bench, insofar as it related to the grant of  admission  to  the  contesting
Respondent by creating an additional seat.

The Division  Bench  realizing  the  predicament  in  which  the  Chandigarh
Administration was placed, felt that the case of the  contesting  Respondent
was a rarest of rare one in which the relief of admission  to  the  M.B.B.S.
course should be provided to her by  relying  upon  the  decisions  of  this
Court in Asha v. PT. B.D. Sharma University of Health  Sciences  and  others
reported in 2012 (7) SCC 389 and Priya Gupta v. State  of  Chhattisgarh  and
others reported in (2012)  7  SCC  433  and  directed  that  the  contesting
Respondent be accommodated in the academic session 2014-15 instead of  2013-
14, with a condition that she should pursue her M.B.B.S. course  right  from
the beginning without  claiming  any  advantage  of  the  course  which  she
undertook in the  B.D.S.  in  the  year  2013-14.  The  Division  Bench  was
conscious of the fact that by issuing such a direction to be implemented  in
the academic session 2014-15, it would result in reduction of one  seat  for
the applicants of that Academic Session under the NRI category.

  The  Chandigarh  Administration  and  the  Government   Medical   College,
Chandigarh were  aggrieved  by  the  said  direction  and  preferred  SLP(C)
No.18137-18138 of 2014.  The  Appellant  in  SLP(C)  No.18099  of  2014  was
aggrieved inasmuch as she is an applicant of   the  Academic  Session  2014-
2015 and but for the direction  issued  by  the  Division  Bench  under  the
impugned order  dated  21.02.2014,  she  would  get  the  admission  in  the
M.B.B.S. course, as she is  ranked  in  the  sixth  place.  Because  of  the
admission of the contesting Respondent  by  way  of  implementation  of  the
order of the Division Bench, the said Appellant has  been  deprived  of  the
seat.

One other candidate who got himself impleaded in I.A. Nos.2-3  of  2014  who
supported the stand of the Appellant in SLP(C) No.18099 of 2014  is  in  the
fifth place of the merit list of NRI category. According to the  said  newly
added  Respondent,  after  the  decision  of  the   Division   Bench   dated
21.02.2014,  a  corrigendum  came   to   be   issued   by   the   Chandigarh
Administration wherein a provision has been made to the effect that one  NRI
seat is reserved for Scheduled Caste NRI and that if it could not be  filled
up by a Scheduled Caste NRI, then only the said seat  would  revert  to  the
Scheduled Caste Union Territory Resident Pool. The  grievance  of  the  said
impleaded Respondent is that if the said corrigendum  is  given  effect  to,
the total number of seats under NRI quota for the open  category  would  get
reduced to five and as a sequel to it, the implementation of  the  direction
of the Division Bench under the  orders  impugned  in  these  appeals  would
directly affect the said newly added Respondent. It is,  however,  submitted
that the said newly added Respondent has challenged the  corrigendum  issued
on 19.06.2014 before the High Court and that the  same has also been  stayed
by the High Court by order dated 09.07.2014. It is  further  submitted  that
after  granting  stay,  the  High  Court  also  issued  directions  for  the
admission  of  newly  added  Respondent  as  per  the  list  of   successful
candidates declared in the proceedings of the Chandigarh Administration  and
the Government Medical College, Chandigarh dated 23.06.2014,  in  which  the
name of the said impleaded Respondent found place at serial No.5.

In the above stated background, we heard Mr. Nidhesh Gupta,  learned  Senior
Counsel for the Appellant in SLP(C) No.18099 of 2014,  Mr.  Shubham  Bhalla,
learned Counsel for the Appellant in SLP(C)  Nos.18137-18138  of  2014,  Mr.
Guru Krishna Kumar, Senior Counsel for the contesting Respondent  in  SLP(C)
No.18137-18138 of 2014 & Respondent No.4 in SLP(C)  No.18099  of  2014,  Mr.
Narender Hooda,  learned  Senior  Counsel  for  Respondent  No.2  in  SLP(C)
Nos.18137-18138 of 2014 & Respondent No.5 in SLP(C) No.18099  of  2014,  Mr.
Gaurav Sharma, Advocate-on-Record (AOR) for MCI and Mr. Ashok  Mahajan,  AOR
for the newly impleaded Respondents.

Mr. Nidhesh Gupta, learned  Senior  Counsel  for  the  Appellant  in  SLP(C)
No.18099 of 2014 prefaced his submissions by referring to the belated  point
of time at  which  the  contesting  Respondent  approached  the  High  Court
seeking for the relief and, therefore, even though the learned Single  Judge
held that the condition prescribed in paragraph 2 of the prospectus for  the
first category of  NRI  quota  was  invalid,  the  relief  was  not  rightly
granted. In fact, the  entire  submission  of  learned  Senior  Counsel  was
mainly premised on the belated approach  of  the  contesting  Respondent  in
seeking for the relief and that to  knowing  full  well  that  she  was  not
entitled to seek for admission under the first category  of  NRI.  Based  on
the above submission, the learned Senior Counsel  by  relying  upon  various
decisions of this Court contended that the principles  laid  down  in  those
decisions certainly did not entitle the contesting  Respondent  to  get  any
admission out of turn either in the relevant  year  in  which  she  applied,
namely, 2013-14 or  in  the  academic  session  2014-15.  According  to  the
learned Senior Counsel, when the contesting Respondent knew full  well  that
she did not satisfy the criteria prescribed in relation  to  category  I  of
NRI quota as  stipulated  in  paragraph  2  of  the  prospectus,  which  was
published in April 2013, for no  comprehensible  reason  she  waited  almost
till the last date for filing the  application,  whereas  in  actuality,  to
challenge the stipulation contained in the said paragraph on the  ground  of
invalidity, there was no necessity to file the application nor wait for  any
response from  the  Chandigarh  Administration  or  the  Government  Medical
College. The contention of the learned Senior Counsel  was  on  the  footing
that  since  the  contesting  Respondent  did  not  display   the   required
promptness in approaching the Court, the various decisions of this Court  by
which it has laid down that  the  schedule  relating  to  admission  to  the
professional colleges, should be strictly  adhered  to  and  should  not  be
deviated under any circumstances had  to  be  scrupulously  followed,  which
thereby persuaded the learned Single  Judge  not  to  grant  the  relief  of
admission to the college  after  30.09.2013.  The  learned  Senior  Counsel,
therefore, contended that this was not a case where any  of  the  situations
wherein admission to a candidate  was  directed  to  be  given  for  certain
stated reasons by this Court after the expiry of  the  prescribed  admission
scheduled or for any admission  which  was  directed  to  be  given  in  the
subsequent academic year could be followed.  In  other  words,  the  learned
Senior Counsel contended that there was  no  exceptional  circumstance  that
was existing in the case of the contesting respondent in  order  to  deviate
from the schedule fixed in the  matter  of  admission  to  the  professional
courses, which was time and again directed to be adhered to scrupulously  by
this Court without any  deviation.  In  support  of  the  above  submissions
learned Senior Counsel relied upon the  decisions  in  Parmender  Kumar  and
others v. State of Haryana and others – (2012) 1  SCC  177,  Madan  Lal  and
Others v. State of J & K and others -  (1995)  3  SCC  486,  Ramana  Dayaram
Shetty v. International Airport Authority of India and  others  -  (1979)  3
SCC 489, Dr. Indu Kant v. State of U.P. and others - (1993) Suppl.  (2)  SCC
71, Asha (supra), Rajiv Kapoor and others v. State of Haryana and  others  -
(2000) 9 SCC 115, Aneesh D. Lawande and others v. State of Goa and others  -
(2014) 1 SCC 554, Subhash Chandra and another v. Delhi Subordinate  Services
Selection Board and others - (2009) 15 SCC 458.

As against the above submissions, Mr. Guru  Krishna  Kumar,  learned  Senior
Counsel who appeared  for  the  contesting  Respondent  in  his  submissions
contended that the direction of the Division Bench of the High Court has  to
be considered in light of the principle  of  moulding  of  the  relief  when
injustice was found. According to him, a distinction must be  drawn  in  the
peculiar undisputed facts of this case wherein, the challenge  made  by  the
contesting Respondent was held to be valid in so far as the prescription  of
the condition to seek admission under the first category of NRI  quota  and,
therefore, when the learned Single Judge failed to  grant  the  relief,  the
Division Bench took into account the extraordinary  circumstance  which  was
prevailing in the interest  of  justice  and  gave  the  directions  without
causing any prejudice to other candidates of the relevant academic year,  as
well as, in the present academic year where  the  merit  of  the  contesting
Respondent was far superior to the candidates who  have  been  enlisted  for
admission under NRI quota of the first category. It was then submitted  that
while issuing such directions, the Division Bench ensured that there was  no
carry forward nor any telescoping into the seats  of  the  subsequent  year.
The learned Senior Counsel submitted that the question of telescoping  would
arise  only  if  the  unfilled  seats  of  the  previous  year  are  to   be
accommodated in the subsequent year and that in the case  on  hand,  it  did
not relate to any unfilled seat of the previous  year  and,  therefore,  the
direction of the Division Bench cannot be held to fall  under  the  category
of telescoping into the seats of the subsequent  year.  The  learned  Senior
Counsel contended that the same principle  will  apply  even  to  the  carry
forward principle and, therefore, when none  of  the  said  allegations  are
levelled against the contesting Respondent or directed against the  judgment
of the Division Bench, the Civil Appeal does not  merit  any  consideration.
The learned Senior Counsel pointed out that  the  decision  of  the  learned
Single Judge in having declared the relevant clause as  invalid  has  become
final and neither the Chandigarh Administration nor the  Government  Medical
College or for that matter the Appellant in SLP(C)  No.18099  of  2014  have
raised any challenge.  According  to  him,  the  only  other  aspect  to  be
examined was the entitlement of the contesting Respondent for M.B.B.S.  seat
under the NRI quota under which  category  the  said  contesting  Respondent
secured the highest marks based on which her rank can be fixed in the  third
place in the order of merit for the year 2014-15 and,  therefore,  allotment
of seat ought to have been granted without any hassle.  The  learned  Senior
Counsel further pointed out that the contesting Respondent had  the  benefit
of her application to be entertained by way of an interim direction  pending
her  writ  petition  apart  from  permitting  her  to  participate  in   the
counselling, though subject to the result of the writ petition. The  learned
Senior Counsel, therefore, contended that when the substantive challenge  of
the contesting Respondent was accepted by  the  learned  Single  Judge,  the
only other order that could have been passed was to  direct  the  Chandigarh
Administration and the Government Medical College to consider the  claim  of
the contesting Respondent on merits for the grant of the seat.  The  learned
Senior Counsel, therefore, contended that  when  the  learned  Single  Judge
committed a grave error in not granting the relief, the Division  Bench  had
to staple and issue necessary directions.

In support of the above submissions, the learned Senior Counsel relied  upon
the decisions reported in Faiza Choudhary v. State of Jammu and Kashmir  and
another - (2012) 10 SCC 149, Madhu Singh (supra), Shafali Nandwani v.  State
of Haryana and others - (2002) 8 SCC 152, Rajiv Kapoor (supra), Bhawna  Garg
& another v. University of Delhi & others - (2012) 8 SCALE 504,  Dwarkanath,
Hindu Undivided Family v. Income-Tax Officer,  Special  Circle,  Kanpur  and
another - (1965) 3 SCR 536, State of Punjab v. Salil Sabhlok  and  others  -
(2013) 5 SCC 1, Miss Neelima Shangla, PH.D. Candidate v.  State  of  Haryana
and others - (1986) 4 SCC 268 and Haryana Urban  Development  Authority  and
others v. Sunita Rekhi - (1989) Suppl. 2 SCC 169.

Having heard learned counsel for the respective contesting parties,  namely,
the Appellant in SLP(C) No.18099 of 2014 and the  contesting  Respondent  in
both the Civil  Appeals  who  is  the  contesting  Respondent,  since  heavy
reliance was placed upon by both  the  respective  counsel  on  the  earlier
decisions of this Court to support their  respective  contentions  that  the
case of the contesting Respondent would either fall under one or  the  other
principles laid down in those decisions or that the  facts  of  those  cases
are clearly  distinguishable,  we  feel  it  appropriate  to  refer  to  the
relevant  principles  contained  in  those  decisions  before  venturing  to
express our  decision  as  regards  the  correctness  or  otherwise  of  the
direction  issued  by  the  Division  Bench  in  favour  of  the  contesting
Respondent.

In the decision reported in Parmender Kumar (supra), it was held  that  once
the process of selection of candidates for admission had  commenced  on  the
basis  of  the  prospectus,  no  change  could  thereafter  be  effected  by
government orders to alter the provisions contained in  the  prospectus.  In
the decision reported in Madan Lal (supra), it was held that if a  candidate
takes a calculated chance and appears at the  interview  then  only  because
the result of the interview is not palatable to him he  cannot  turn  around
and subsequently contend that the process of interview was  unfair  and  the
selection committee was not properly constituted. By relying upon the  above
referred to decisions, the contention raised on behalf of the  Appellant  in
SLP(C) No.18099 of 2014 was that the condition relating  to  the  NRI  quota
under the first category was prevalent  at  the  time  when  the  contesting
Respondent  submitted  her  application  and  having  submitted   the   said
application and participated in the selection process,  merely  because  the
said clause was subsequently found to be  not  valid,  would  not,  on  that
ground, validate the contesting respondent’s right to claim admission.

In fact, the other decisions, namely, Om Prakash Shukla  v.  Akhilesh  Kumar
Shukla and others - (1986) Suppl. SCC 285, Vijendra Kumar  Verma  v.  Public
Service Commission,  Uttarakhand  and  others  -  (2011)  1  SCC  150,  K.A.
Nagamani v. Indian Airlines and others - (2009) 5 SCC 515,  Dhananjay  Malik
and others v. State of Uttaranchal  and  others  -  (2008)  4  SCC  171  and
Chandra Prakash Tiwari and others v. Shankuntala Shukla and others -  (2002)
6 SCC 127 were all referred  to  by  the  learned  Senior  Counsel  for  the
Appellant in SLP(C) No.18099 of 2014 to show  that  the  statement  made  in
Madan Lal was relied upon in those decisions.

Mr. Nidhesh Gupta, learned Senior Counsel,  therefore,  contended  that  the
effect of the directions of the  Division  Bench  was  that  the  contesting
Respondent was to be admitted into the M.B.B.S. course in the academic  year
2014-15 without competing with  the  claims  of  the  other  candidates  who
applied for the  said  course  in  the  said  academic  year.  It  was  also
contended that even in the academic year 2013-14, she did not compete  along
with the other similarly placed candidates but was  allowed  to  participate
in the counselling pursuant to the interim direction issued by  the  learned
Single Judge during the pendency of  the  writ  petition  and  that  to  was
subject to the outcome of the writ petition.  The  learned  senior  counsel,
therefore, contended that the contesting Respondent  was  not  entitled  for
any equitable relief. The learned Senior Counsel, therefore, contended  that
the direction of the Division Bench cannot be sustained.

In this context, reliance was placed upon the three-Judge Bench decision  of
this Court reported in Rajiv Kapoor (supra), wherein in  paragraph  16  this
Court has held as under:

“16. The dispute relates to the academic session of the  year  1997  and  we
are in 2000. To utilise the seats  meant  for  the  next  academic  year  by
accommodating those candidates of 1997 vintage would amount  to  deprivation
of the legitimate rights of those who would be in the fray  of  contest  for
selection, on the basis of their inter se merit for  the  session  of  2000,
taking into account the performance  of  the  candidates  of  1997  in  that
year……”




It was submitted that the selection of candidates should  be  based  on  the
inter se merits of the candidates of that year and, therefore,  entertaining
the claim of a candidate who applied in any previous year would cause  grave
injustice, as those who were not in the fray of  competence  would  thus  be
permitted  to  compete  with  the  lawfully  eligible  applicants   of   the
subsequent years, which would certainly cause  serious  prejudice  to  those
candidates.

To the very same effect was the decision reported in Neelu  Arora  (Ms)  and
another v. Union of India and others - (2003) 3 SCC 366, which was  also  by
a three Judge Bench of this  Court.  The  learned  Senior  Counsel  for  the
Appellant in SLP(C) No.18099 of 2014  sought  to  distinguish  the  decision
relied upon by the Division Bench reported in Asha (supra) by  pointing  out
that the said decision turns upon the special  facts  of  that  case,  where
this Court reached a finding of fact that the candidate  concerned  was  not
at fault and the whole  fault  was  on  the  authorities  concerned  in  not
allowing the said candidate to participate in the counselling for  admission
to the M.B.B.S. course in spite of the fact that her merit  as  compared  to
other candidates who were granted admission was far superior  and  that  she
approached the Court for the redressal of her  grievance  at  the  earliest.
The learned Senior Counsel by drawing our attention  to  paragraphs  32,  34
and 37 of the decision submitted that the said  decision  cannot  be  simply
followed as a matter of course as has been done by  the  Division  Bench  in
the case on hand. The learned Senior Counsel also once again brought to  our
notice the manner in which the contesting Respondent herein  approached  the
Court,  made  the  application  and  filed  the  writ   petition   after   a
considerable length of delay and thereby disentitled her  to  seek  for  any
relief much less there was any scope for moulding the  relief  as  had  been
done by the Division Bench by the impugned order.

The recent decision of this Court reported in Aneesh D. Lawande (supra)  was
relied upon by the learned counsel for the Appellant wherein this Court  has
culled out two main principles  to  be  kept  in  mind  in  such  cases.  In
paragraph 30, the said principles have been laid down and in  paragraph  35,
this Court has reiterated  as  to  why  it  will  not  be  proper  to  issue
directions to adjust the students of one academic  year  in  any  subsequent
academic year by pointing out that such a  course  would  affect  the  other
meritorious candidates who would  be  aspiring  to  get  admissions  in  the
subsequent years. It  was  stated  that  for  bringing  equity  to  some  in
praesenti, this Court cannot afford to do injustice  to  others  in  future.
The said paragraph 35 can be usefully referred to which reads as under:

“35. The next submission relates to  the  issue  whether  the  students  who
cannot  be  adjusted  in  the  seats  of  All-India  quota  that  have  been
transferred to the State quota of this  year  can  be  adjusted  next  year.
During the course of hearing though there was some  debate  with  regard  to
giving of admissions to such students in the academic  year  2014-2015,  Mr.
Amit Kumar, learned counsel for the Medical Council of India, has  seriously
opposed the same and, thereafter, has cited the authorities  which  we  have
referred to hereinbefore.  We are bound by the said precedents.  In  certain
individual cases where there is defective counselling and merit  has  become
a casualty, this Court has directed for  adjustment  in  the  next  academic
session but in the case at hand, it is not exactly so.   Though  we  are  at
pains, yet we must  express  that  it  will  not  be  appropriate  to  issue
directions to adjust them in respect of the subsequent  academic  year,  for
taking recourse to the same would affect the  other  meritorious  candidates
who would be aspirant to get admissions next year. For doing equity to  some
in praesenti  we  cannot  afford  to  do  injustice  to  others  in  future.
Therefore, the submission stands repelled.”

                                                       (underlining is ours)

The decision relied upon by the  contesting  Respondent  reported  in  Faiza
Choudhary (supra), rather than supporting the case of  the  said  contesting
Respondent only clarifies the legal  position  without  any  ambiguity.  The
principles have been succinctly explained in paragraphs 14  and  15  to  the
effect that there cannot be any telescoping of unfilled seats  of  one  year
with the permitted seats of the subsequent year.  It  was  also  highlighted
that a medical seat has life only in the year it falls  that  to  only  till
the cut-off date fixed by this Court i.e. 30th September in  the  respective
year and carry forward principle is  unknown  to  the  professional  courses
like medical, engineering, dental etc. It was also stated that there  is  no
power with the Board to carry forward a vacancy to  a  succeeding  year  and
that if the Board or the Court indulges in such an exercise, in the  absence
of any rule or regulation, that will be at the expense of other  meritorious
candidates waiting for admissions in the succeeding  years.  The  principles
laid down in the said decisions have to be,  therefore,  understood  in  the
abovesaid manner and those principles can be applied to the  facts  of  this
case while examining  the  correctness  of  the  impugned  judgment  of  the
Division Bench.

Reliance was placed by the  learned  counsel  for  the  Appellant  upon  the
decision reported in Madhu Singh (supra) apparently to  draw  our  attention
to the effect that even if the  course  adopted  by  the  High  Court  while
directing admission to the unfilled seats after the last scheduled date  for
admission, this Court directed that such admission granted  to  a  candidate
will not be affected even if this Court were to set at naught the  direction
given by the High Court. We do  not  find  any  ratio  or  principle  to  be
followed based on the said fact noted in paragraph 8 of  the  judgment,  but
in paragraph 23 this Court made it clear that a necessity  for  specifically
providing for a time schedule for the course and fixing  the  period  during
which admissions can take place in order to ensure that no admission can  be
granted after the  scheduled  date,  essentially  should  be  the  date  for
commencement of the course. By stating the said principle  in  no  uncertain
terms, this Court has reiterated the position that there  should  be  strict
adherence to the schedule of dates relating to admission  and  there  cannot
be any deviation in adhering to the said schedule.

Mr. Guru Krishna Kumar, learned Senior Counsel appearing for the  contesting
Respondent submitted that the direction issued  by  the  Division  Bench  to
admit the contesting respondent in the academic session  2014-15,  does  not
in any way violate the principles laid down  in  the  decision  reported  in
Aneesh D. Lawande (supra) wherein, in paragraph 30 this Court has laid  down
the principles to the effect that there cannot be direction for increase  of
seats or telescoping of unfilled seats of one year with the permitted  seats
of the subsequent  years.  According  to  the  learned  Senior  Counsel,  by
implementing the directions of the Division Bench, there is not going to  be
an increase of the seats for the academic  session  2013-14  and  since  the
admission of the Respondent would be based on her  merits  in  the  academic
session 2014-15, the same will not amount to telescoping of  unfilled  seats
of  the  previous  year.  We  will  examine  the  correctness  of  the  said
submission while dealing with the  respective  submissions  of  the  learned
Senior Counsel.

The learned Senior Counsel also submitted  that  the  decision  reported  in
Rajiv Kapoor (supra) is distinguishable since in that case  this  Court  was
concerned with the  candidates  of  the  year  1997  whose  admissions  were
directed to be made  in  the  academic  session  2000.  The  learned  Senior
Counsel, therefore, contended that having regard to the  enormous  time  gap
between 1997 and 2000, the principles stated therein, cannot be  applied  to
the case of the contesting Respondent. The  learned  Senior  Counsel  would,
therefore, contend that as we are concerned with the case of the  contesting
Respondent whose admission related to the immediate preceding year,  namely,
2013-14 and whose legitimate rights were unlawfully  denied  in  that  year,
the direction for her admission in the immediate next academic session 2014-
15 and that to based on her merits following the decision of this  Court  in
Asha (supra) was well justified.

The learned Senior Counsel, therefore,  contended  that  the  said  decision
though rendered by three Judge Bench of this Court  would  not  in  any  way
dilute the decision in Asha (supra) on the principles of per incuriam  where
the facts of the three Judge Bench decision are clearly distinguishable.

While strongly relying upon the  decision  reported  in  Asha  (supra),  the
learned Senior Counsel after referring to the question framed  in  paragraph
4(c) wherein this Court posed the question as to what relief the Courts  can
grant and to what extent they can mould it while ensuring adherence  to  the
rule of merit, fairness and transparency  in  the  matter  of  admission  in
terms of rules and regulations, drew our attention to paragraphs 25 and  32.
In paragraph 25, this Court has held as under:

“25. Strict adherence to the time  schedule  has  again  been  a  matter  of
controversy before the courts.  The courts have consistently taken the  view
that the schedule  is  sacrosanct  like  the  rule  of  merit  and  all  the
stakeholders including the authorities concerned should  adhere  to  it  and
should in no circumstances permit its  violation.   This,  in  our  opinion,
gives rise to dual  problem.   Firstly,  it  jeopardizes  the  interest  and
future of the students. Secondly,  which  is  more  serious,  is  that  such
action would be ex facie in violation  of  the  orders  of  the  court,  and
therefore, would invite wrath of the courts  under  the  provisions  of  the
Contempt of Courts Act, 1971.  In this regard, we  may  appropriately  refer
to the judgments of this Court in Priya Gupta,  State  of  Bihar  v.  Sanjay
Kumar Sinho, Medical Council of  India  v.  Madhu  Singh,  GSF  Medical  and
Paramedical Assn. v.  Assn.  of  Self  Financing  Technical  Institutes  and
Christian Medical College v. State of Punjab.”

In paragraph 32, the exceptional circumstances which can  be  examined  have
been quoted in order to ensure that when any deviation is to  be  made  from
the normal rule, such similar principles should  be  kept  in  mind  by  the
Courts. In paragraph 32, it was highlighted that in the rarest of rare  case
or exceptional circumstances, the Courts may have to mould the  reliefs  and
make an exception to the cut-off date of 30th September but in  those  cases
the Court must first return a finding that no fault was attributable to  the
candidate,  that  the  candidate  pursued  her  rights  and  legal  remedies
expeditiously without any delay and that there was no fault on the  part  of
the authorities and  that  there  was  no  apparent  breach  of  the  rules,
regulations and principles in the process of  the  selection  and  grant  of
admission. It was also highlighted that  where  denial  of  admission  would
violate 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. By relying upon the said part of the  decision,  the  learned
Senior Counsel submitted that the case  of  the  contesting  Respondent  was
squarely covered by the principle of an  exceptional  case  and,  therefore,
the direction of the Division Bench was well justified. The  learned  Senior
Counsel also relied upon the  decisions  in  Dwarkanath  (supra)  and  Salil
Sabhlok (supra) on the principle of moulding  of  the  relief  to  be  made.
Reliance was placed upon the decisions in Miss Neelima Shangla  (supra)  and
Haryana Urban Development Authority (supra) to  support  the  stand  that  a
candidate who approached the Court diligently deserved different  treatment.


Having noted the various decisions relied upon by the Appellant in  SLP  (C)
No.18099 of 2014 and the contesting Respondent, we are able to  discern  the
following principles:
The schedule relating to admissions to the professional colleges  should  be
strictly and scrupulously adhered to and shall not  be  deviated  under  any
circumstance either by the courts  or  the  Board  and  midstream  admission
should not be permitted.




Under exceptional circumstances, if the court finds that there is  no  fault
attributable to the candidate i.e., the candidate has  pursued  his  or  her
legal right expeditiously without any delay and that there is fault only  on
the part of the authorities or there is an  apparent  breach  of  rules  and
regulations as well as  related  principles  in  the  process  of  grant  of
admission which would violate the right to equality and equal  treatment  to
the competing candidates and the relief of admission can be directed  within
the time schedule prescribed, it  would  be  completely  just  and  fair  to
provide exceptional reliefs to the candidate under such circumstance alone.





If a candidate is not selected during a particular academic year due to  the
fault of the Institutions/Authorities and in this process if the  seats  are
filled up and the scope for granting admission is lost  due  to  eclipse  of
time schedule, then under such circumstances, the candidate  should  not  be
victimised for no fault of his/her and  the  Court  may  consider  grant  of
appropriate compensation to offset the loss caused, if any.





 When a candidate does not  exercise  or  pursue  his/her  rights  or  legal
remedies against his/her non-selection expeditiously and promptly, then  the
Courts cannot grant any relief to the candidate in the form of  securing  an
admission.




  If  the  candidate  takes   a   calculated   risk/chance   by   subjecting
himself/herself to the selection process  and  after  knowing  his/her  non-
selection, he/she cannot subsequently  turn  around  and  contend  that  the
process of selection was unfair.



If it is found that the candidate acquiesces  or  waives  his/her  right  to
claim relief before the Court promptly, then in such cases, the legal  maxim
vigilantibus non dormientibus aequitas subvenit,  which  means  that  equity
aids only the vigilant and not the ones who sleep over  their  rights,  will
be highly appropriate.



No relief can be granted even though the prospectus is declared  illegal  or
invalid if the same is not challenged promptly. Once the candidate is  aware
that he/she does not fulfil the criteria of the prospectus he/she cannot  be
heard to  state  that,  he/she  chose  to  challenge  the  same  only  after
preferring the application and after the same is refused on  the  ground  of
eligibility.



There cannot be telescoping of unfilled seats of  one  year  with  permitted
seats of the  subsequent  year  i.e.,  carry  forward  of  seats  cannot  be
permitted how much ever meritorious a candidate is and  deserved  admission.
In such circumstances, the Courts cannot grant any relief to  the  candidate
but it is up to the candidate to re-apply next academic year.



There cannot be at any point of time a direction given either by  the  Court
or the Board to increase the number of seats which  is  exclusively  in  the
realm of the Medical Council of India.



Each of these above mentioned principles should  be  applied  based  on  the
unique and distinguishable facts and circumstances of each case and  no  two
cases can be held to be identical.


Having culled out the above broad principles from the various  decisions  of
this Court and before examining the correctness of  the  judgments  impugned
in these appeals, it is necessary to note down certain vital facts  relating
to the case of the contesting Respondent in order to find out whether  there
was any scope at all for granting  the  relief  as  has  been  done  by  the
Division  Bench  by  the  impugned  orders.   Admittedly,   the   contesting
Respondent was not eligible under  the  first  category  of  the  NRI  quota
prescribed under paragraph 2 of the prospectus for academic session of 2013-
14. She was, however, eligible under the second category of  NRI  quota.  At
this juncture, it must be stated that under the second category  though  her
name was first in  the  list,  as  the  eligible  candidates  in  the  first
category got selected for all the seats under NRI quota,  she  did  not  get
the opportunity. The prospectus was issued by the Chandigarh  Administration
and the Government Medical College as early as in the month of April,  2013.
The contesting Respondent  filed  the  application  before  the  last  date,
namely, 24.06.2013 claiming admission under the first  category  or  in  the
alternate, in the second category. The Chandigarh Administration, by  letter
dated  02.07.2013,  informed  the  contesting  Respondent  that  unless  she
enclosed a certificate issued by  the  DC-cum-Estate  Officer  or  Municipal
Corporation of Chandigarh about the fulfillment of  the  condition  relating
to ownership of immovable property, her  application  cannot  be  considered
under the first category of NRI quota. The writ petition was  filed  by  her
on 05.07.2013. A list of eligible candidates was  finalized  on  12.07.2013.
The first counselling was scheduled on 19.07.2013 insofar as NRI  candidates
were concerned.  There was an interim order of  the  High  Court  passed  on
29.07.2013  directing  the  administration   to   receive   the   contesting
Respondent’s application under the first category of NRI  quota,  making  it
clear that at a later point of time, she cannot claim  any  equity  on  that
basis. Subsequently, by another  order  dated  08.08.2013,  the  High  Court
directed the administration to permit  her  to  participate  in  the  second
counselling. The writ petition was ultimately disposed  of  by  the  learned
Single Judge on 27.09.2013. As was noted earlier, the learned  Single  Judge
while upholding the challenge made by the contesting Respondent  as  to  the
validity of the condition imposed in order to be eligible to fall under  the
first category of NRI quota, declined to grant any relief to the  contesting
Respondent holding that she failed to  challenge  the  eligibility  criteria
before submitting her application for M.B.B.S. course after taking  note  of
the fact that she secured admission in the Dental course.

After the learned Single Judge delivered the  judgment  on  27.09.2013,  the
contesting Respondent filed the Letters  Patent  Appeal  on  15.11.2013  and
after rectification of certain defects it was re-filed  on  06.12.2013.  The
Letters Patent Appeal was heard by the Division Bench and  was  disposed  of
by order dated 13.01.2014. As the direction issued  by  the  Division  Bench
for creation of an additional  seat  could  not  be  complied  with  by  the
Chandigarh Administration and the Government Medical College on  the  ground
that the MCI declined to grant permission  for  creation  of  an  additional
seat, at the instance of Chandigarh Administration, the review  came  to  be
filed in which the present impugned order came to be passed by the  Division
Bench on 21.02.2014.

When we analyze the above sequence of events, we find  that  the  contesting
Respondent knew full well when the prospectus was issued in April 2013  that
she did not fulfill the criteria for making an application under  the  first
category of NRI quota as prescribed in paragraph 2 of  the  prospectus.  But
yet there was no immediate challenge to the said provision before  the  High
Court. Knowing full well that she was ineligible  under  the  said  category
after waiting almost till the last date for filing the application,  namely,
24.06.2013, she filed  the  application  on  21.06.2013  claiming  admission
under  the  first  category  and  thereafter,  waited  till  the  Chandigarh
Administration called upon her to  fulfill  the  criteria  of  submitting  a
certificate for proof of ownership of  immovable  property  by  the  DC-cum-
Estate Officer, which she could not have produced even as  on  April,  2013.
Therefore, the contesting Respondent cannot be heard to say that the  filing
of the  writ  petition  on  05.07.2013,  challenging  the  validity  of  the
prescription contained in paragraph 2 of  the  prospectus  relating  to  the
first category of  NRI  quota  was  made  diligently  or  atleast  within  a
reasonable time. When we test the said conduct of the contesting  Respondent
in not having approached the Court at the appropriate  time  in  challenging
the  said  provision,  it  will  have  to  be  stated  that  the  Chandigarh
Administration and  the  Government  Medical  College  having  received  the
applications for admissions for different categories including the  category
under  the  NRI  quota  was  processing  the  applications  segregating  the
different categories and by the time the writ petition filed on  05.07.2013,
the  process  of  finalizing  the  eligible  candidates  was  also   nearing
completion and by 12.07.2013 the  same  was  also  concluded.  If  the  said
factor is noted, it should be stated that  the  conduct  of  the  contesting
Respondent in having fixed her own time limit for approaching the Court,  in
particular, with reference to the  challenge  to  the  eligibility  criteria
with which she had every grievance right from the very first date  when  the
prospectus was issued in April, 2013, it will have to be stated  that  there
was total lack of diligence on the part of the contesting Respondent in  her
decision to work out her remedies in the Court of law.

Keeping the said factor in mind, when we examine the subsequent  development
that had taken place, it is true that the relevant criteria  prescribed  for
claiming admission under the first category of NRI  quota  was  held  to  be
wholly unreasonable and on that ground the learned Single Judge  struck  out
the said clause. Thereafter, since  the  learned  Single  Judge  found  that
there was total lack of diligence displayed on the part  of  the  contesting
Respondent,  he  expressed  his  inability  to  grant  the  relief  to   the
contesting Respondent. After the said decision was rendered by  the  learned
Single Judge on 27.09.2013, when we analyze the subsequent  conduct  of  the
contesting Respondent, we  find  that  she  applied  for  the  copy  of  the
judgment of the learned Single Judge on 19.10.2013 and  the  Letters  Patent
Appeal came to be filed only on 15.11.2013. The Letters  Patent  Appeal  was
defective and it was re-filed only on  06.12.2013.  Ultimately,  the  appeal
came before the Division Bench on 13.01.2014, when the Division  Bench  took
the view that the learned Single Judge ought to have moulded the relief  and
on that footing directed that the  Chandigarh  Administration  to  create  a
seat for  admitting  the  contesting  Respondent  to  the  M.B.B.S.  course.
Thereafter, by the impugned order dated 21.02.2014, the Division Bench  held
that when creation of the seat was impossible of compliance as the  MCI  was
not inclined to grant permission, issued a  direction  that  the  contesting
Respondent should be admitted in the academic year 2014-15 in the NRI  quota
meant for admission.

When we note the above dates, it will have to be stated that the  compliance
of the direction  of  the  Division  Bench  would  certainly  cause  serious
prejudice to  the  Appellant  in  SLP(C)  No.18099  of  2014,  as  the  said
Appellant is stated to have been ranked in the  sixth  place,  i.e.  in  the
sixth vacancy meant for  NRI  category  candidates  for  admission  for  the
academic year 2014-15. It is common ground that  the  contesting  Respondent
was not an applicant for the year 2014-15 under  the  NRI  category.  If  we
consider the claim of the contesting Respondent as to whether her claim  can
be brought under the category  of  exceptional  case,  the  various  factors
noted  above,  namely,  failure  to   challenge   the   relevant   provision
immediately after the issuance of the prospectus in the  April,  2013  would
loom large before the Court. There  was  no  justifiable  reason  stated  on
behalf of the contesting Respondent as to why the  challenge  was  not  made
promptly knowing full well that the said provision disentitled her to  claim
under the said category. It is needless to state that if the  challenge  had
been made diligently and immediately after the issuance  of  the  prospectus
in April, 2013 itself, it would have enabled the Court to examine  the  said
challenge at the earliest point of time and in the  event  of  finding  good
grounds to accept the challenge, there would have  been  no  difficulty  for
the Court to  issue  appropriate  directions  not  only  for  accepting  the
application of the contesting Respondent under the  first  category  of  NRI
quota, but in the event of her scoring the requisite marks  on  merits,  the
grant of admission could have been worked out without infringing the  rights
of any other candidate under the said category. It is relevant to note  that
the invalidity of the relevant clause as  declared  by  the  learned  Single
Judge, which has become final and  conclusive,  would  have  benefitted  all
other candidates who are  similarly  placed  like  that  of  the  contesting
Respondent, had it been challenged at the earliest point of  time,  as  that
would have provided adequate scope for considering the  relative  merits  of
all those candidates who are similarly placed like that  of  the  contesting
Respondent.

The time gap between April, 2013 and  July,  2013  nearly  three  months  is
certainly a long period as the process of admission to professional  courses
are regulated by the Selection Authorities such as the  Medical  Council  of
India, All India Council  for  Technical  Education,  National  Council  for
Teacher Education, State Government Authorities as  well  as  the  concerned
affiliated  universities  each  one  of  whom  have  got   to   play   their
corresponding roles in regulating the admissions  and  also  monitoring  the
subsequent course of study  for  the  purpose  of  ultimately  granting  the
degrees of successful candidates after the completion of the course. As  the
process being a continuous one,  any  delay  in  working  out  the  remedies
promptly will have to be viewed very seriously or otherwise the  same  would
impinge upon the rights of other candidates apart from  causing  unnecessary
administrative hardship to the regulatory bodies. When the said factors  are
kept in mind while analyzing the case on hand, it will  have  to  be  stated
that even though the contesting Respondent was successful in  her  challenge
to the concerned provision relating to the NRI quota in  the  prospectus  of
2013-14, on that sole ground it cannot  be  held  that  every  other  factor
should be kept aside and her claim for admission to M.B.B.S.  course  should
be ensured by issuing directions unmindful of the infringement of rights  of
other candidates and the other statutory bodies. We are, therefore,  of  the
view that the conduct of the contesting Respondent in having fixed  her  own
time limit in making the  challenge,  namely,  after  three  months  of  the
issuance of the prospectus and thereafter,  in  filing  the  Letters  Patent
Appeal which process resulted in the Division Bench in deciding  the  appeal
only in the month of January, 2014 by which time  the  substantial  part  of
the academic year had been crossed, the question remained as to whether  the
Division Bench was justified in directing the admission  of  the  contesting
Respondent to the M.B.B.S. course in the academic  year  2014-15  by  merely
stating that she was already undergoing  the  B.D.S.  course  and  that  the
course content of the first six months of B.D.S and  M.B.B.S.  are  more  or
less identical.  Beyond that we do not find any  other  good  grounds  which
weighed with the Division Bench in issuing the  direction  for  creating  an
additional seat.

The Division Bench did rely upon the decision of this Court in Asha  (supra)
and Priya Gupta (supra). Subsequently,  when  it  came  to  light  that  the
direction for admission by creation of an additional seat was impossible  of
compliance, the impugned order came to be issued by the  Division  Bench  on
21.02.2014 by which time half of the academic year had  almost  come  to  an
end. In our considered view, at least at that stage  since  the  process  of
issuance of the prospectus for 2014-15 was  on  the  anvil,  the  contesting
Respondent ought to have been allowed to work out and claim  under  the  NRI
quota in the said academic year. Since by the order of learned Single  Judge
the restriction in claiming admission under the first category of NRI  quota
having been removed, there would have been no impediment for the  contesting
Respondent to apply under the said category and staked her claim along  with
the other competing candidates. It was unfortunate  that  the  case  of  the
contesting Respondent was considered to be rarest of  rare  case,  which  in
our considered opinion, does not have the required support. As was noted  by
us earlier, the contesting Respondent  did  not  display  due  diligence  in
making a challenge to the relevant clause relating to first category of  NRI
quota of the 2013-14 prospectus. Further, as she had already secured a  seat
in  the  Dental  course  and  the  creation  of  an  additional   seat   was
consistently not encouraged by this Court, the direction for creation of  an
additional seat in the month of January, 2014 for the academic year  2014-15
by the Division Bench could not  be  implemented.  Therefore,  the  ultimate
direction  of  the  Division  Bench  in  having  directed   the   Chandigarh
Administration and the Government Medical College to  provide  admission  to
the  contesting  Respondent  without  her  participation  in  the  admission
process of the year 2014-15 and thereby causing prejudice  to  the  rightful
claims of the candidates who validly made their  applications  in  the  said
academic year cannot be countenanced as that would amount to  setting  up  a
bad precedent in all future cases.

As  time  and  again  such  instances  of  claiming  admission   into   such
professional courses are  brought  before  the  Court,  and  on  every  such
occasion, reliance is placed upon the various decisions of  this  Court  for
issuing necessary directions  for  accommodating  the  students  to  various
courses claiming parity, we feel it appropriate to state  that  unless  such
claims of exceptional nature are brought before the Court  within  the  time
schedule fixed by this Court, Court or Board  should  not  pass  orders  for
granting admission into any particular course out of time. In this  context,
it will have to be stated that in whatever earlier decisions of  this  Court
such out of time admissions were granted, the same cannot  be  quoted  as  a
precedent in any other case,  as  such  directions  were  issued  after  due
consideration of the peculiar facts involved in those cases.  No  two  cases
can be held to be similar in all  respects.  Therefore,  in  such  of  those
cases where the Court or Board is not in a  position  to  grant  the  relief
within the time schedule due to the  fault  attributable  to  the  candidate
concerned, like the case on hand, there should be no hesitation to deny  the
relief as was done by the learned Single Judge.  If  for  any  reason,  such
grant of relief is not possible within the time  schedule,  due  to  reasons
attributable to other parties, and such reasons are found to  be  deliberate
or mala fide the Court should only consider  any  other  relief  other  than
direction for admission, such as compensation, etc. In such situations,  the
Court  should  ensure  that  those  who  were  at  fault  are  appropriately
proceeded against and punished in order to ensure that  such  deliberate  or
malicious acts do not recur.

We are, therefore, convinced that the impugned orders of the Division  Bench
in having issued such a direction cannot be approved by this Court. When  we
apply the various principles which we have culled out to the case  on  hand,
we find that each one of the principle has been violated by  the  contesting
Respondent. As stated by us earlier,  there  was  total  lack  of  diligence
displayed by the  contesting  Respondent  right  from  the  stage  when  the
submission of the application was made. We have noted  that  the  prospectus
which was issued in April, 2013 and the offending clause in  the  prospectus
was not challenged promptly while knowing full  well  that  under  the  said
clause the candidate was not eligible, but yet  for  reason  best  known  to
her, an application was filed and that to three days prior to the last  date
notified for submission of such application. There was no reason, much  less
justifiable reason, for not  challenging  the  relevant  clause  before  the
filing  of  the  application.  There  was  no  reason  for  the   contesting
Respondent to wait for any reply from the Chandigarh  Administration.  After
the order of the learned Single Judge also, the contesting  Respondent  took
her own time to approach the  Division  Bench  for  preferring  the  Letters
Patent Appeal.  A  cumulative  effect  of  the  conduct  of  the  contesting
Respondent has only resulted in disentitling  her  to  claim  any  equitable
relief prejudicial to the interest of other eligible candidates of the  year
2014-15 and whose rights came to be crystallized based  on  the  process  of
selection made for the academic  year  2014-15.  If  the  direction  of  the
Division Bench in the above stated background  is  allowed  to  operate,  it
would  amount  to  paying  a  premium  for   the   contesting   Respondent’s
inexplicable delay in working out her remedies.

We are, therefore, convinced that such a recalcitrant attitude displayed  by
the contesting Respondent should not  be  encouraged  at  the  cost  of  the
rights of the other  candidates  for  the  year  2014-15  against  whom  the
contesting Respondent had no axe to grind. Therefore,  while  setting  aside
the orders impugned in these appeals, we issue the following directions:
Since the contesting Respondent pursued her B.D.S.  course  till  this  date
though she has secured her  admission  pursuant  to  the  direction  of  the
Division Bench to M.B.B.S. course in the year 2014-15 and as we  have  found
no justification for the direction issued by the  Division  Bench  which  we
are  setting  aside,  we  direct  the  Chandigarh  Administration  and   the
Government Medical College to restore the contesting Respondent’s  admission
to the B.D.S. course of the academic year 2013-14 and allow  her  to  pursue
the said course, if she so chooses.


The admission granted to the contesting Respondent in  the  M.B.B.S.  course
of 2014-15 under the NRI category stands  cancelled  and  the  selection  of
candidates who applied for the said course  in  the  said  category  in  the
academic year 2014-15 shall be finalized by  the  Chandigarh  Administration
and the Government Medical College  and  on  that  basis  proceed  with  the
admission as per the schedule.


As far as the claim relating to the impleaded Respondent in I.A.  No.2-3  of
2014 is concerned, since  his  claim  is  subject  matter  of  consideration
before the High Court, the same would be subject to  the  outcome  of  those
proceedings which is left open for consideration by the High Court.


The interim direction issued by this Court on 11.07.2014 is vacated and  the
seats left vacant in B.D.S. and M.B.B.S.  courses  shall  be  filled  up  on
merits.

With the above directions, the appeals filed  by  Chandigarh  Administration
and the Government Medical  College  as  well  as  by  Jessica  Rehsi  stand
allowed.


                                                  …...…..……….…………………………...J.
                                          [Fakkir Mohamed Ibrahim
Kalifulla]


                                                       ……………….………………………………J.
                               [Shiva Kirti Singh]



New Delhi;
September 01, 2014.
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