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.=
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.
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.
-----------------------
45 of 45
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.=
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.=
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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