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Tuesday, March 28, 2017

whether for the purposes of computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of the prosecution or whether the relevant date is the date on which a Magistrate takes cognizance of the offence. Answering the issue, the Court held that for that purpose computing the period of limitation under Section 468 CrPC the relevant date is the date of filing of the complaint or the date of institution of prosecution and not the date on which the Magistrate takes cognizance.; it is well settled in law that no one should suffer any prejudice because of the act of the court - “actus curiae neminem gravabit”.-. Once the said principle is not applicable, the rest of the submissions pertaining to seats going waste or the State losing its investment or the suffering of the students or claim of parity with other students have no legs to stand upon. It is because to give indulgence to the appellants or the interfering with the impugned order would only give rise to chaos; and it is an accepted norm that law does not countenance any chaos and abhors anarchy.

Reportable


                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL NO. 11974 OF 2016
             (arising out of  S.L.P. (Civil) No. 27906 of 2016)


Neeraj Kumar Sainy and Ors.             …Appellant(s)

                                   Versus

State of U.P. and Ors.                  …Respondent(s)



                           J  U  D  G  M  E  N  T

Dipak Misra, J.

       The  appellants  invoked  the  jurisdiction  of  the  High  Court  of
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition  No.  21038
of 2016 for issue a  writ  of  mandamus  commanding  the  opposite  parties,
namely,  State  of  Uttar  Pradesh,  King   George’s   Medical   University,
Coordinator,  U.P.  Post  Graduate  Medical   Entrance   Examination,   2016
(UPPGMEE, 2016) and Medical Council of India (MCI) to complete  the  process
of counselling by holding the second, third and mop-up round of  counselling
as prescribed in the Information Brochure issued for the UPPGMEE,  2016  and
to ensure that no seats in any of the courses advertised in the  Information
Brochure are allowed to go vacant for the academic year 2016-2017.
2.    The facts which are requisite to be stated  are  that  the  appellants
had appeared in the written test of UPPGMEE-2016 and  after  being  declared
successful, they participated in the first round of  counselling  which  was
held from 04.04.2016 to 08.04.2016. The candidates who got selected  in  the
said counselling joined their respective seats allotted to them.   The  case
of the appellants before the High Court was  that  as  per  the  Information
Brochure, minimum three round of counsellings are to be  held  and  in  case
sufficient number of seats are left unallotted at the end of third round  of
counselling, then a mop-up round of allotment is required  to  be  organized
on the notified date after giving due publicity by the Director  General  of
Medical Education and Training, U.P. to ensure that there is no loss  of  PG
seats in the academic year 2016-2017.  It was urged before  the  High  Court
that terms  and  conditions  for  participating  in  the  mop-up   round  of
counselling are that  (i)  candidates  who  are  admitted/allotted  but  not
joined/resigned in any seat in  Uttar  Pradesh  will  not  be  eligible  for
participation; (ii) any candidate who had taken admission in any  PG  course
in  any  medical  college  in  India  also  will   not   be   eligible   for
participation; (iii) the candidate must  present  himself/herself  with  all
original documents, and (iv) no request for re-allotment  of  seats  already
allotted in the first and second round will be entertained.
3.    It was the stand of the appellants before the High Court  that  it  is
obligatory on the part of the respondents to give effect to  the  postulates
contained in the Information Brochure and hence, the authorities were  under
obligation to hold the second and third round of counselling as well as  the
mop-up round of  counselling,  but  they  had  failed  to  do  so  by  their
erroneous understanding of the judgment and order dated  16.08.2016  in  the
case of State of Uttar Pradesh and others v.  Dinesh  Singh  Chauhan[1].  It
was further contended that there was  infringement  of  valuable  rights  of
writ petitioners as they had been denied admission  to  the  institution  of
their choice in accordance with merit.  It was canvassed  with  vigour  that
such an unacceptable situation had occurred, for  despite  the  seats  being
lying vacant in several medical colleges no steps were being taken  to  fill
them up.  Citing an example, it was put forth that for the academic  session
2013-2014  the  counselling  was  done  in  the  month  of  August  and  the
admissions were given to the meritorious candidates and, therefore,  it  was
necessary to issue appropriate directions to fill up the unfilled seats.
4.    The stand of the appellants before the High Court was resisted by  the
respondent No. 2  therein  –  Director  General  of  Medical  Education  and
Training, Uttar Pradesh, contending, inter alia,  that  seats  had  remained
vacant because of the  directions  of  the  Supreme  Court  in  Mridul  Dhar
(Minor) and another v. Union of India  and  others[2]   wherein  stress  was
laid for adherence to the time schedule and  the  categorical  command  that
there should  not  be  midstream  admissions.   It  was  further  held  that
carrying forward unfilled seats of one academic  year  to  another  academic
year was not permissible.  Reliance was also  placed  on  the  authority  in
Priya Gupta v. State of Chhattisgarh and others[3] wherein it  was  directed
that the concerned authority was bound to fill up the seats in  accord  with
the time  schedule  stricto  sensu  and  any  violation  thereof  is  to  be
seriously viewed.
5.    It was also highlighted by the contesting respondent  that  after  the
interim order passed by this Court on 12.05.2016 the merit  list  was  drawn
and counselling was carried out by 30.05.2016 as it was the last date  fixed
by the MCI for completion of admission  process.  It  was  highlighted  that
certain seats are lying vacant on ground of non-joining  of  the  candidates
and no further steps could be taken. Similar  arguments  were  canvassed  by
the State of Uttar Pradesh and the Medical Council of India.
6.    The High Court adverted to the factual background  which  was  to  the
effect that a policy decision was taken by the State  of  Uttar  Pradesh  on
16.01.2014 whereby 30% of postgraduate seats had  been  reserved  for  those
candidates who had completed three years service in the rural areas  and  in
pursuance of the same, the Government Order dated 28.02.2014 was  issued  to
engage Provincial Medical Health Services Cadre members  to  go  for  higher
education. In the said order, it was also provided  that  those  members  of
Provincial  Services  who  had  served  in  far  remote  backward  areas  in
respective Community Health  Centre/Primary  Health  Centre  would  get  the
benefit.   After  the  said  policy  decision,  the  Examining  Body  issued
advertisement and therein the eligibility for admission  had  been  provided
for and as per the same only those incumbents were  eligible  to  apply  who
had served for a period of three years in remote areas.
7.    The said order was challenged in Writ-C No. 1380 of  2015  titled  Dr.
Surya Kant Ojha and others v. State of U.P. and others[4]  before  the  High
Court along  with  connected  matters.  The  High  Court  vide  order  dated
07.04.2016 quashed the Government Order dated 28.02.2014  with  a  direction
that admissions in postgraduate degree  courses  be  made  strictly  on  the
basis of merit from  amongst  the  candidates  who  had  obtained  requisite
minimum marks in the examination in question so prescribed by the MCI.
8.    As the factual matrix would uncurtain, the matter  travelled  to  this
Court in Dinesh Singh Chauhan (supra) wherein this Court took  note  of  the
authority in Sudhir  N.  and  others  v.  State  of  Kerala  and  others[5],
referred to Regulation 9  of  the  Medical  Council  of  India  Postgraduate
Medical  Education  Regulations,  2000  which  deals  with  the  method   of
selection of candidates for  admission  to  postgraduate  courses  and  also
noted the insertions made in  Regulation  9(1)(b)  and  Regulation  9(2)(d).
The proviso added after Regulation 9(2)(d) in terms of Gazette  Notification
published on17.11.2009 reads as follows:-

“Further provided that in determining the merit and the  entrance  test  for
postgraduate admission weightage in the marks may be given as  an  incentive
@ 10% of the marks obtained for each year in service in remote or  difficult
areas up to the maximum of 30% of the marks obtained.”

9.    The Court noted the submissions of the learned counsel  appearing  for
the parties and directed as follows:-
“In the  circumstances,  we  direct  that  the  State  Government  shall  as
expeditiously  as  possible  revise  and  redraw  the  merit  list  of   the
candidates keeping in view Regulation 9 of  the  Medical  Council  of  India
Postgraduate Medical Education Regulations, 2000 and giving to the  eligible
candidates such weightage as may be due to them  for  rendering  service  in
notified rural  and/or  difficult  areas  and  to  grant  admission  to  the
candidates found suitable for the same on the basis of  such  redrawn  merit
list. This exercise shall be  completed  before  30-5-2016,  the  last  date
fixed for granting of admission. The entire  exercise  so  conducted  shall,
however, remain subject to the outcome of these proceedings”.

10.   The matter was finally decided on 16.08.2016.   The three-Judge  Bench
in  Dinesh  Singh  Chauhan  (supra)  referred  to  the  decisions  in  AIIMS
Students’ Union v. AIIMS and others[6], State of M.P. and  others  v.  Gopal
D. Tirthani and others[7], Satyabrata Sahoo and others v.  State  of  Orissa
and others[8] and Sudhir N. (supra) and  ruled  that  Regulation  9  per  se
makes no distinction between  Government  and  non-Government  colleges  for
allocation of weightage of  marks  to  in-service  candidates.  Instead,  it
mandates preparation of one merit  list  for  the  State  on  the  basis  of
results in  NEET  and  further,  regarding  in-service  candidates,  all  it
provides  is  that  the  candidate  must   have   been   in-service   of   a
Government/public  Authority  and  served  in  remote  and  difficult  areas
notified by the State Government and the Competent Authority  from  time  to
time.  The Court further held that the authorities are obliged  to  continue
with the  admission  process  strictly  in  conformity  with  Regulation  9.
Elucidating the proposition, the Court expressed thus:-
“The fact that most of the direct candidates who have secured  higher  marks
in the NEET than the in-service candidates, may not be in a position to  get
a subject or college of their choice, and are likely to secure a subject  or
college not acceptable  to  them,  cannot  be  the  basis  to  question  the
validity of proviso to  Clause  IV  of  Regulation  9.  The  purpose  behind
proviso is to encourage graduates to join as medical officers and  serve  in
notified remote and difficult areas of the State. The fact  that  for  quite
some time no such appointments have been made by the State  Government  also
cannot be a basis to disregard  the  mandate  of  proviso  to  Clause  IV-of
giving weightage of marks to the in-service candidates who have  served  for
a specified period in notified remote and difficult areas of the State.”


Thereafter, the three-Judge Bench opined:-
“The provision in the form of granting weightage of  marks,  therefore,  was
to  give  incentive  to  the  in-service  candidates  and  to  attract  more
graduates to join as Medical Officers in the State Health Care  Sector.  The
provision was first inserted in 2012. To determine  the  academic  merit  of
candidates, merely securing high marks  in  the  NEET  is  not  enough.  The
academic merit of the candidate must also reckon the services  rendered  for
the common or public good. Having served in rural  and  difficult  areas  of
the State for one year or above, the incumbent having sacrificed his  career
by rendering services for providing health care facilities in  rural  areas,
deserve incentive marks to be reckoned for determining merit.  Notably,  the
State Government is posited with the  discretion  to  notify  areas  in  the
given State to be remote, tribal or difficult  areas.  That  declaration  is
made on the basis of decision taken at the highest level; and is  applicable
for all the beneficial schemes of the State for such areas and  not  limited
to the matter of admissions to Post Graduate Medical Courses. Not  even  one
instance has been brought to our notice to show that some  areas  which  are
not remote or difficult areas has been so notified. Suffice  it  to  observe
that the mere hypothesis that the State  Government  may  take  an  improper
decision whilst notifying the area as remote and difficult,  cannot  be  the
basis to hold that Regulation 9 and in particular proviso to  Clause  IV  is
unreasonable. Considering the above, the inescapable conclusion is that  the
procedure evolved in Regulation 9 in general and the proviso to Clause  (IV)
in particular is just, proper and reasonable and also fulfill  the  test  of
Article 14 of the Constitution, being in larger public interest.”

11.   Lastly, the Court posed the question whether the arrangement  directed
in terms of order dated 12.05.2016 by  the  Court  should  have  prospective
effect or also apply to admissions for  academic  year  2015-2016,  for  the
subject matter of challenge before the High Court pertained to the  academic
year 2015-2016, the dispensation directed in terms of Order  dated  12th May
2016 should apply thereto. However,  considering  the  fact  that  the  said
admission process had been completed and all concerned  had  acted  upon  on
that basis and that the candidates admitted to the respective Post  Graduate
Degree Courses in the concerned colleges had also commenced  their  studies,
the Court held that it would not be appropriate to  unsettle  that  position
given the fact that neither the  direct  candidates  nor  the  eligible  in-
service candidates who had worked in remote and/or difficult  areas  in  the
State had approached the Court for such relief. The Court further held  that
it was only the in-service candidates who had not worked  in  remote  and/or
difficult areas in the State approached the Court  for  equating  them  with
their counterparts who had worked in remote and/or difficult  areas  in  the
matter of reservation of seats for in-service candidates. The Court  was  of
the view that if at that distance of time, the settled  admissions  were  to
be disturbed by quashing the entire  admission  process  for  academic  year
2015-2016, it would inevitably result in all the seats in the  State  almost
over 500 in number remaining unfilled for one academic year;  and  that  the
candidates to be admitted on the basis of fresh list for academic year 2015-
2016 will have to take fresh admission coinciding with  the  admissions  for
academic year 2016-2017 which would necessitate  doubling  the  strength  of
seats  in  the  respective  colleges  for  the  current  academic  year   to
accommodate all those students, which may not be feasible and is  avoidable.
In the peculiar facts of the case, the  Court  moulded  the  relief  in  the
appeals by directing all concerned  to  follow  the  admission  process  for
academic  year  2016-2017  and  onwards  strictly  in  conformity  with  the
Regulations in force, governing the procedure for  selection  of  candidates
for  Post  Graduate  Medical  Degree  Courses  including  determination   of
relative merit of  the  candidates  who  had  appeared  in  NEET  by  giving
weightage of incentive marks to eligible in-service candidates.   The  Court
ruled that the High Court was justified in  quashing  the  Government  Order
providing for reservation  to  in-service  candidates,  being  violative  of
Regulation 9 as in force. It modified the operative direction given  by  the
High Court and instead directed that admission  process  for  Academic  Year
2016-2017 onwards to the Post Graduate Degree Course  in  the  State  should
proceed as per Regulation 9 including by giving incentive marks to  eligible
in-service candidates in terms of proviso  to  Clause  IV  of  Regulation  9
(equivalent to third proviso to  Regulation  9(2)  of  the  Old  Regulations
reproduced in the interim order dated 12th May 2016). The  Court  thereafter
directed:-
“We, accordingly, mould the operative order of the High Court  to  bring  it
in conformity with the  direction  contained  in  the  interim  order  dated
12th May, 2016 but to be made applicable to Academic  Year  2016-17  onwards
on the basis of Regulation 9 as in force. We are conscious of the fact  that
this arrangement is likely to affect some of the direct candidates,  if  not
a large number of candidates whose applications were  already  processed  by
the competent Authority  for  concerned  Post  Graduate  Degree  Course  for
Academic Year 2016-17. However, their  admissions  cannot  be  validated  in
breach of or disregarding the mandate of Regulation  9,  as  in  force.  The
appeals against the judgment of the High Court of  Judicature  at  Allahabad
dated 7th April, 2016 are disposed of accordingly.”




12.   After so stating, this Court adverted to the  second  set  of  appeals
arising from the judgment of the High  Court  of  Allahabad,  Lucknow  Bench
dated 27.03.16 wherein it had taken the view that the direction  to  prepare
a fresh merit list vide interim order dated 12.05.16 was in respect of  only
such eligible and in service candidates as had  submitted  applications  for
admission to post-graduate courses for relevant  academic  year  within  the
stipulated time and the direction was not to consider all  similarly  placed
persons (eligible in-service candidates) irrespective whether they had  made
applications for admission to post-graduate  degree  courses  or  otherwise.
Concurring with the view of the High  Court,  the  appeals  were  dismissed.
Eventually, the Court clarified the position:-


“We make it clear that we have not examined the  correctness  of  the  fresh
merit list prepared by the concerned Authority in  terms  of  interim  order
dated 12.05.2016.  If  any  candidate  is  aggrieved  on  account  of  wrong
placement in the fresh merit list or being in violation  of  this  decision,
will be free to question the same by way of  appropriate  proceedings.  That
challenge can be considered on its own merit.”


13.   The appellants, as the facts would unroll, filed writ petition  before
the High Court seeking writ of mandamus for holding the  second,  third  and
mop-up round of counselling as prescribed in the  information  brochure  and
to ensure that no seats in any of the courses advertised in the brochure  is
allowed to go vacant in the  academic  session  2016-2017.   The  appellants
contended before the High Court that the  respondents  were  bound  to  give
effect to the prescription contained in the information  brochure  which  is
mandatory and, therefore, the  authorities  are  under  obligation  to  hold
second and third  round  of  counselling  and  that  they  had  misread  and
misapplied the judgment dated 16.08.2016; that  there  was  infringement  of
their rights as they had been denied admission in the institution  of  their
choice in accordance with merit that too when number  of  seats  were  lying
vacant in several medical colleges; that in the  previous  academic  session
2013-2014,  the  counselling  was  done  after  the  cut-off  date  and  the
admissions were given to the candidates  and  hence,  it  would  be  in  the
interest of the students to issue directions for filling up unfilled  seats.

14.   Learned counsel for respondent No.2, opposing  the  relief  sought  by
the appellant, submitted before the High Court that  this  Court  in  Mridul
Dhar (Minor)  (supra) has held that time schedule in  respect  of  admission
in postgraduate courses and super  speciality  courses  should  be  strictly
adhered  to  wherever  provided;  that  there  should   not   be   midstream
admissions; that admissions should not be in  excess  of  sanctioned  intake
capacity or quota and carrying forward of unfilled  seats  of  one  academic
year to another is  not  permissible.   Reliance  was  also  placed  on  the
authority in Priya Gupta (supra), wherein it was  directed  that  if  anyone
who fails to comply with the directions stricto sensu shall  be  liable  for
action under the provisions of the Contempt of Courts Act.  It  was  further
contended before the High Court by the respondent No.2 that in terms of  the
interim order of this Court, all the seats were allotted to  the  respective
candidates and the admission process stood completed by  30.05.2016  and  as
regards unfilled seats, only 11 seats were lying vacant on account  of  non-
joining of the candidates and no further steps could be taken on account  of
embargo put by the MCI with regard to the last date for completion  and  the
time frame could only be altered or modified by this Court.
15.   Considering  the  rival  submissions,  the  High  Court  accepted  the
submissions of the respondent and dismissed the writ petition.   Hence,  the
present appeal.
16.   We have heard Mr. Yatindra Singh, learned senior  counsel  along  with
Mr. A.S. Pundir, learned counsel for the petitioners and Ms. Indu  Malhotra,
learned senior counsel, Mr. Irshad Ahmad, AAG and Mr. Gaurav Sharma  learned
counsel for the respondents.
17.   Learned senior counsel for the appellants would submit that the  maxim
actus curiae neminem gravabit or “an act of the  court  shall  prejudice  no
man” is a settled principle of law and applicable in the present  case.   It
is further contended that the delay in holding counselling was  due  to  the
orders passed by or delay in this  Court  which  should  not  prejudice  the
appellants; that there was no delay on the part of  the  appellants  but  on
account of  orders  passed  by  this  Court  or  delay  was  caused  in  the
proceedings or time taken by the State or by the MCI  to  file  reply;  that
the Information Brochure of the examination body provided for holding  three
round of counselling and then mop-up round and under the  latest  amendments
of the regulations, only two rounds of counselling was permitted and in  the
case of the appellants only one round of counselling  had  taken  place  and
the second round was yet to  take  place;  that  the  brochure  as  well  as
regulations  provide  counselling  to  be  held  first  in  which  all   can
participate and thereafter the mop-up round to be  conducted;  that  in  the
instant case, second round of counselling had not taken place and it  should
be held first and then, if the need be, the mop-up  round  should  be  held;
that 71 seats are lying vacant in the State  Government  Colleges  and  non-
filling of these seats will lead to  waste  of  government  investment,  its
resources and their full potential will not  be  utilized;  that  it  is  in
public interest that further counselling should be held  as  has  been  held
for University of Delhi and the States of Telangana and Andhra Pradesh.

18.   Per contra, learned counsel for the State  submitted  that  the  legal
position with regard to vacant seats after the cut-off date and extra  round
of counselling is settled in the decision of this  Court  in  Supreet  Batra
and others v. Union of India and others[9], wherein it has  been  held  that
after the expiry of cut-off date, the seats lying vacant  cannot  be  filled
up by way of conducting extra round of  counselling.  He  further  submitted
that pursuant to the order of the High Court quashing  the  policy  decision
of the State Government wherein provisions were made for giving  reservation
in post graduate courses for the doctors  of  Provincial  Medical  Services,
who had worked continuously for  three  years  in  notified  backward  areas
within the State,  State  of  U.P.  had  preferred  special  leave  petition
wherein  this  Court  vide  order  dated  12.05.2016  directed   the   State
Government to revise and redraw the merit list  and  in  pursuance  of  that
order, State Government had redrawn the merit  list  and  fresh  counselling
was held on 27.05.2016 and all the seats were filled  up,  except  71  seats
which remained vacant due to non-availability  of  the  candidates  for  the
said courses. Therefore, in such circumstances no  further  counselling  was
required.  It is further submitted by the  learned  counsel  for  the  State
that the seats became vacant after the cut-off date in different  Government
Medical Colleges because after taking admission some of the  candidates  had
either resigned from the allotted seats or  not  joined  the  courses  after
admission.
19.   Be it noted that IA No.3 of 2016 was filed by the  applicants  seeking
“mop-up” round of counselling for filling up the vacant  seats  which  arose
due to non-joining or resignation after de novo counselling on the basis  of
clause 15 of the Information  Brochure  for  the  UPPGMEE,  2016.  Ms.  Indu
Malhotra, learned senior counsel submits that in the present case  only  one
round of counselling took place as the  criteria  for  preparing  the  merit
list was changed vide order of this Court.  It is further submitted  by  her
that after de novo round of counselling held on 30.05.2016, large number  of
candidates did not join the allotted seats as a result of which  almost  100
seats in  various  Government  medical  colleges  have  fallen  vacant.   To
substantiate her claim,  she  relied  on  the  order  dated  01.09.2016  and
08.09.2016 passed by this Court in S.L.P. (Civil) No. 19633 of 2016  wherein
this Court directed the University of Delhi to conduct  one  more  round  of
counselling for vacant seats within a period of two weeks and the States  of
Andhra Pradesh and Telangana to conduct one more  round  of  counselling  to
fill up all the vacant seats.  In effect,  the  submission  of  the  learned
senior counsel is that the appellants and applicants are similarly  situated
and by redrawing the merit list, the right of the applicants  to  appear  in
the second and third counselling is denied.
20.   The submission of Mr. Singh, learned senior counsel  is  fundamentally
entrenched on  the  principle  actus  curiae  neminem  gravabit.   The  said
submission is structured on the factual score that the time  schedule  could
not be followed because of the directions of this Court  issued  vide  order
dated 12.05.2016 and eventually it became final on 16.08.2016 for  which  no
fault can be found with the appellants.  The prayer  of  the  appellants  to
hold further counselling in respect of 71  seats  was  done  in  promptitude
and, therefore, the High Court would have been well advised  to  direct  for
holding counselling or mop-up  counselling  so  that  the  seats  would  not
remain vacant  and  the  procedure  would  have  been  duly  complied  with.
Reliance has been placed on certain orders passed by this Court  in  respect
of the University of Delhi and the States of Telangana and Andhra Pradesh.

21.   As far as States of Telangana and Andhra Pradesh is concerned,  it  is
necessary to note that the High Court  had  issued  certain  directions  for
filling up the seats.  The same was challenged by  the  Medical  Council  of
India.  Taking note of the peculiar facts and  circumstances  of  the  newly
born States, the Court had passed the following order:-

“We take note of the fact that 86 seats in the State of Andhra  Pradesh  and
32 seats in the State of Telagnana are available in the Government  colleges
in both the States. Having regard to the  facts  and  circumstances  of  the
case, we direct that the University(s) that conducted  the  last  counseling
shall  conduct  a  counseling  within  two  weeks  hence  after  giving  due
publicity. A student who has already taken admission will  not  be  eligible
to participate in this counseling. Needless to  say,  the  University  shall
follow the procedure as provided in the  admission  brochure/prospectus.  We
further say that the vacant seats are meant  only  for  Government  colleges
and Universities. We repeat at the cost of repetition that  we  have  passed
this order in the special features of the case.”


22.   The situation in the case of the said two States is totally  different
than the present one.  In the instant case, the  appellants  approached  the
High Court only on 01.09.2016.  They did not choose to move this Court  when
the case of Dinesh Singh Chauhan (supra) was pending.  They were aware  that
such a litigation was pending before this Court.   Despite  the  same,  they
chose to maintain a sphinx like silence.  It is beyond any  trace  of  doubt
that admission to post graduate courses for the academic  session  2016-2017
in the State of Uttar Pradesh stood concluded  by  this  Court  as  per  the
decision in Dinesh Singh Chauhan (supra).  Had  the  grievance  been  raised
before this Court at the time when the special leave  petitions  were  filed
in respect of the seats lying vacant, the matter could  possibly  have  been
differently perceived.  Mr. Gaurav Sharma,  learned  counsel  appearing  for
the MCI would submit that the appellants  only  woke  up  from  the  slumber
after  this  Court,  in  exercise  of  power  under  Article  142   of   the
Constitution, permitted the States of Andhra Pradesh and Telangana  to  hold
counselling concurring with the view of the High  Court  and  also  directed
University of Delhi to conduct an extra  round  of  counselling  beyond  the
cut-off date regard being had to the peculiar  facts  and  circumstances  of
the case.  It is urged by him that  in  such  a  situation,  the  appellants
cannot be permitted to advance the stand that nobody should suffer  for  the
fault of the court.

23.   It is manifest that effective and complete  counselling  was  held  in
the case of Uttar Pradesh on the basis  of  the  verdict  rendered  by  this
Court in Dinesh Singh Chauhan (supra)  and  the  appellants,  after  certain
orders were passed by this Court, felt to have  got  the  wake  up  call  to
agitate their grievance.
24.   The seminal question that is required  to  be  posed  is  whether  the
maxim actus curiae neminem gravabit would be applicable to such a case.   In
Jang Singh v. Brij Lal and others[10], a three-Judge Bench noted that  there
was error on the part of the  court  and  the  officers  of  the  court  had
contributed to the said occur.  Appreciating the fact situation,  the  Court
held:-
“…… It is no doubt true that a litigant must be vigilant and take  care  but
where a litigant goes to Court and asks for the assistance of the  Court  so
that his obligations under a decree might be fulfilled by him  strictly,  it
is incumbent on the Court, if it does not leave  the  litigant  to  his  own
devices, to ensure that the correct information is furnished. If  the  Court
in supplying the information makes  a  mistake  the  responsibility  of  the
litigant, though it does not altogether cease, is at  least  shared  by  the
Court. If the litigant acts on the faith  of  that  information  the  Courts
cannot hold him responsible for a mistake which it itself caused.  There  is
no higher principle for the guidance of the Court than the one that  no  act
of Courts should harm a litigant and it is the bounden  duty  of  Courts  to
see that if a person is harmed by a  mistake  of  the  Court  he  should  be
restored to the position he would have occupied but for that  mistake.  This
is aptly summed up in the maxim:“Actus curiae neminem gravabit”.”

25.   Noting that there was mistake by the concerned district court,  relief
was granted by stating so:-
“………In view of the mistake of the  Court  which  needs  to  be  righted  the
parties are relegated to the position they  occupied  on  January  6,  1958,
when the error was committed by the Court which error is being rectified  by
us nunc pro tunc.”

26.   Another three-Judge Bench in Jagannath Singh and  others  v.  Dr.  Ram
Naresh Singh[11], took note of the fact that the judgment by the High  Court
had been rendered ex-parte, and the application for recall did  not  impress
the High Court.  Appreciating the factual matrix that there was an error  in
the cause list and accepting that there was an omission to mention the  case
correctly in the cause list and treating it as a a  mistake  of  the  court,
the Court held that though there was some negligence  on  the  part  of  the
counsel or of his clerk but it was not so grave as to disentitle  the  party
to be heard, and in any event, the alleged contemnors could not be  punished
for a mistake on the part of their counsel or the counsel’s clerk.
      Being of this view, this Court set aside the order with costs.
27.   In Atma Ram Mittal v. Ishwar  Singh  Punia[12],  this  Court,  in  the
context of interpretation of Section 13(1)  in  juxtaposition  with  Section
1(3) of the  Haryana  Urban  (Control  of  Rent  and  Eviction)  Act,  1973,
adopting the purposive interpretation ruled:-
“It is well-settled that no man should suffer because of the  fault  of  the
court or delay in the procedure. Broom has stated the  maxim  “actus  curiae
neminem gravabit” — an act of  court  shall  prejudice  no  man.  Therefore,
having regard to the  time  normally  consumed  for  adjudication,  the  ten
years’ exemption or holiday from the  application  of  the  Rent  Act  would
become illusory, if the suit has  to  be  filed  within  that  time  and  be
disposed  of  finally.  It  is  common  knowledge  that  unless  a  suit  is
instituted soon after the date of letting it  would  never  be  disposed  of
within ten years and even then within that time it may not be  disposed  of.
That will make the ten years holiday from the Rent Act illusory and  provide
no incentive to the landlords to  build  new  houses  to  solve  problem  of
shortages of houses. The purpose of  legislation  would  thus  be  defeated.
Purposive  interpretation  in  a  social  amelioration  legislation  is   an
imperative irrespective of anything else.”

28.   The  aforesaid  authorities  deal  with  three  different  situations.
There cannot be an iota of doubt  that  no  prejudice  shall  be  caused  to
anyone due to the fault of  the  court,  but  it  is  to  be  seen  in  what
situations the court can invoke the maxim “actus curiae  neminem  gravabit”.
In this regard, reference to the authority in Jayalakshmi Coelho  v.  Oswald
Joseph Coelho[13] would be apt.  In the  said  case,  the  Principal  Judge,
Family Court,  Bombay  had  modified  the  earlier  decree.   The  same  was
challenged in the writ petition which was  dismissed.   The  Division  Bench
confirmed the order  of  the  learned  Single  Judge,  which  compelled  the
appellant  to  approach  this  Court.   Dealing  with   the   principle   of
rectification of decree under Section 152 CPC, the Court opined  that  there
can be hardly any doubt that any error occurred in the decree on account  of
arithmetical or clerical error or accidental slip may be  rectified  by  the
court.  It has been further observed that the basis of  the  said  provision
is founded on the maxim that an act of court will  prejudice  no  man.   The
Court referred to the authorities  in  Assam  Tea  Corpn.  Ltd.  v.  Narayan
Singh[14], L. Janakirama Iyer v. P.M.  Nilakanta  Iyer[15],  Bhikhi  Lal  v.
Tribeni[16], Master Construction  Co.  (P)  Ltd.  v.  State  of  Orissa  and
another[17],  Dwaraka  Das  v.   State   of   M.P.   and   another[18]   and
Thirugnanavalli Ammal v. P. Venugopala Pillai[19] and, eventually  analysing
the  facts,  opined  that  rectification   of   the   decree   was   totally
misconceived.
29.   In this regard, we may usefully refer to a  passage  from  Kalabharati
Advertising v. Hemant Vimalnath Narichania and others[20],  wherein  it  has
been ruled that the maxim actus curiae neminem gravabit,  which  means  that
the act of the court shall prejudice  no  one,  becomes  applicable  when  a
situation is projected where the court is under an obligation  to  undo  the
wrong done to a party by the act  of  the  court.   In  a  case,  where  any
undeserved or unfair advantage has been  gained  by  a  party  invoking  the
jurisdiction of the court, and the same  requires  to  be  neutralized,  the
said maxim is to be made applicable.
30.   In this regard, reference to the Constitution Bench decision in  Sarah
Mathew v. Institute of Cardio Vascular  Diseases  and  others[21]  would  be
seemly. In the said case, the question for  consideration  was  whether  for
the purposes of computing the period of limitation under  Section  468  CrPC
the relevant date is the date of filing of the  complaint  or  the  date  of
institution of the prosecution or whether the relevant date is the  date  on
which a Magistrate takes cognizance of the offence.   Answering  the  issue,
the Court held that for that purpose  computing  the  period  of  limitation
under Section 468 CrPC the relevant date  is  the  date  of  filing  of  the
complaint or the date of institution of prosecution  and  not  the  date  on
which the Magistrate takes cognizance. In the course  of  deliberation,  the
larger Bench observed:-
“… The object of the criminal law is to punish perpetrators of  crime.  This
is in tune with the well-known legal maxim nullum tempus aut locus  occurrit
regi, which means that a crime never dies. At the same time, it is also  the
policy of law to assist the vigilant and not the sleepy. This  is  expressed
in the Latin  maxim  vigilantibus  et  non  dormientibus,  jura  subveniunt.
Chapter XXXVI CrPC which provides limitation period  for  certain  types  of
offences for which lesser sentence  is  provided  draws  support  from  this
maxim. But, even certain offences such as Section  384  or  465  IPC,  which
have lesser punishment may have serious social consequences.  The  provision
is, therefore, made for condonation of delay. Treating  date  of  filing  of
complaint or date of initiation of proceedings  as  the  relevant  date  for
computing limitation under Section 468 of  the  Code  is  supported  by  the
legal maxim actus curiae neminem gravabit which means that the act of  court
shall prejudice no man. It  bears  repetition  to  state  that  the  court’s
inaction in taking cognizance i.e. court’s inaction in applying mind to  the
suspected offence should not be allowed to cause  prejudice  to  a  diligent
complainant. Chapter XXXVI thus presents the interplay of these three  legal
maxims. The provisions of this Chapter, however, are not interpreted  solely
on the basis of these maxims. They only serve as guiding principles.”


31.   It is noticeable from the aforesaid passage  that  the  interpretation
was made in accordance with the Code and the legal  maxim  was  taken  as  a
guiding principle. Needless to say, it is well settled in law  that  no  one
should  suffer  any  prejudice  because  of  the  act  of  the  court.   The
authorities that we have  referred  to  dealt  with  the  different  factual
expositions.  The legal  maxim  that  has  been  taken  recourse  to  cannot
operate in a vacuum.  It has to get the sustenance from the  facts.   As  is
manifest, after the admissions were  over  as  per  the  direction  of  this
Court, the appellants, who seemed to have resigned to their  fate,  woke  up
to have control over the events forgetting that the law does not assist  the
non-vigilant.  One cannot indulge in luxury of lethargy, possibly  nurturing
the feeling that forgetting is a virtue, and thereafter, when the  time  has
slipped through, for it waits for none, wake up and take shelter  under  the
maxim “actus curiae neminem gravabit”. It is completely unacceptable.
32.   Considering the precedents where the legal maxim actus curiae  neminem
gravabit has been applied, we are compelled to form  the  opinion  that  the
said maxim is not applicable to the factual score of the present case.  Once
the  said  principle  is  not  applicable,  the  rest  of  the   submissions
pertaining to seats going waste or the State losing its  investment  or  the
suffering of the students or claim of parity with  other  students  have  no
legs to stand upon. It is because to give indulgence to  the  appellants  or
the interfering with the impugned order would only give rise to  chaos;  and
it is an accepted norm that law does not countenance any  chaos  and  abhors
anarchy.
33.   Consequently, the appeal,  being  sans  substance,  stands  dismissed.
There shall be no order as to costs.

                                ..........................................J.
                                        (Dipak Misra)




.........................................J.
                                      (Amitava Roy)
New Delhi;
March 21, 2017
-----------------------
[1]

      [2] (2016) 9 SCC 749
[3]

      [4] (2005) 2 SCC 65
[5]

      [6] (2012) 7 SCC 433
[7]

      [8] 2016 SCC OnLine All 622
[9]

      [10] (2015) 6 SCC 685
[11]

      [12] (2002) 1 SCC 428
[13]

      [14] (2003) 7 SCC 83
[15]

      [16] (2012) 8 SCC 203
[17]

      [18]  (2003) 3 SCC 370
[19]

      [20]  AIR 1966 SC 1631
[21]

      [22]  (1970) 1 SCC 573
[23]

      [24]  (1988) 4 SCC 284
[25]

      [26]  (2001) 4 SCC 181
[27]

      [28]  AIR 1981 Gau 41
[29]

      [30]  AIR 1962 SC 633
[31]

      [32]  AIR 1965 SC 1935
[33]

      [34]  AIR 1966 SC 1047
[35]

      [36]  (1999) 3 SCC 500
[37]

      [38]  AIR 1940 Mad 29
[39]

      [40]  (2010) 9 SCC 437
[41]

      [42] (2014) 2 SCC 62


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