Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11974 OF 2016
(arising out of S.L.P. (Civil) No. 27906 of 2016)
Neeraj Kumar Sainy and Ors. …Appellant(s)
Versus
State of U.P. and Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
The appellants invoked the jurisdiction of the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 21038
of 2016 for issue a writ of mandamus commanding the opposite parties,
namely, State of Uttar Pradesh, King George’s Medical University,
Coordinator, U.P. Post Graduate Medical Entrance Examination, 2016
(UPPGMEE, 2016) and Medical Council of India (MCI) to complete the process
of counselling by holding the second, third and mop-up round of counselling
as prescribed in the Information Brochure issued for the UPPGMEE, 2016 and
to ensure that no seats in any of the courses advertised in the Information
Brochure are allowed to go vacant for the academic year 2016-2017.
2. The facts which are requisite to be stated are that the appellants
had appeared in the written test of UPPGMEE-2016 and after being declared
successful, they participated in the first round of counselling which was
held from 04.04.2016 to 08.04.2016. The candidates who got selected in the
said counselling joined their respective seats allotted to them. The case
of the appellants before the High Court was that as per the Information
Brochure, minimum three round of counsellings are to be held and in case
sufficient number of seats are left unallotted at the end of third round of
counselling, then a mop-up round of allotment is required to be organized
on the notified date after giving due publicity by the Director General of
Medical Education and Training, U.P. to ensure that there is no loss of PG
seats in the academic year 2016-2017. It was urged before the High Court
that terms and conditions for participating in the mop-up round of
counselling are that (i) candidates who are admitted/allotted but not
joined/resigned in any seat in Uttar Pradesh will not be eligible for
participation; (ii) any candidate who had taken admission in any PG course
in any medical college in India also will not be eligible for
participation; (iii) the candidate must present himself/herself with all
original documents, and (iv) no request for re-allotment of seats already
allotted in the first and second round will be entertained.
3. It was the stand of the appellants before the High Court that it is
obligatory on the part of the respondents to give effect to the postulates
contained in the Information Brochure and hence, the authorities were under
obligation to hold the second and third round of counselling as well as the
mop-up round of counselling, but they had failed to do so by their
erroneous understanding of the judgment and order dated 16.08.2016 in the
case of State of Uttar Pradesh and others v. Dinesh Singh Chauhan[1]. It
was further contended that there was infringement of valuable rights of
writ petitioners as they had been denied admission to the institution of
their choice in accordance with merit. It was canvassed with vigour that
such an unacceptable situation had occurred, for despite the seats being
lying vacant in several medical colleges no steps were being taken to fill
them up. Citing an example, it was put forth that for the academic session
2013-2014 the counselling was done in the month of August and the
admissions were given to the meritorious candidates and, therefore, it was
necessary to issue appropriate directions to fill up the unfilled seats.
4. The stand of the appellants before the High Court was resisted by the
respondent No. 2 therein – Director General of Medical Education and
Training, Uttar Pradesh, contending, inter alia, that seats had remained
vacant because of the directions of the Supreme Court in Mridul Dhar
(Minor) and another v. Union of India and others[2] wherein stress was
laid for adherence to the time schedule and the categorical command that
there should not be midstream admissions. It was further held that
carrying forward unfilled seats of one academic year to another academic
year was not permissible. Reliance was also placed on the authority in
Priya Gupta v. State of Chhattisgarh and others[3] wherein it was directed
that the concerned authority was bound to fill up the seats in accord with
the time schedule stricto sensu and any violation thereof is to be
seriously viewed.
5. It was also highlighted by the contesting respondent that after the
interim order passed by this Court on 12.05.2016 the merit list was drawn
and counselling was carried out by 30.05.2016 as it was the last date fixed
by the MCI for completion of admission process. It was highlighted that
certain seats are lying vacant on ground of non-joining of the candidates
and no further steps could be taken. Similar arguments were canvassed by
the State of Uttar Pradesh and the Medical Council of India.
6. The High Court adverted to the factual background which was to the
effect that a policy decision was taken by the State of Uttar Pradesh on
16.01.2014 whereby 30% of postgraduate seats had been reserved for those
candidates who had completed three years service in the rural areas and in
pursuance of the same, the Government Order dated 28.02.2014 was issued to
engage Provincial Medical Health Services Cadre members to go for higher
education. In the said order, it was also provided that those members of
Provincial Services who had served in far remote backward areas in
respective Community Health Centre/Primary Health Centre would get the
benefit. After the said policy decision, the Examining Body issued
advertisement and therein the eligibility for admission had been provided
for and as per the same only those incumbents were eligible to apply who
had served for a period of three years in remote areas.
7. The said order was challenged in Writ-C No. 1380 of 2015 titled Dr.
Surya Kant Ojha and others v. State of U.P. and others[4] before the High
Court along with connected matters. The High Court vide order dated
07.04.2016 quashed the Government Order dated 28.02.2014 with a direction
that admissions in postgraduate degree courses be made strictly on the
basis of merit from amongst the candidates who had obtained requisite
minimum marks in the examination in question so prescribed by the MCI.
8. As the factual matrix would uncurtain, the matter travelled to this
Court in Dinesh Singh Chauhan (supra) wherein this Court took note of the
authority in Sudhir N. and others v. State of Kerala and others[5],
referred to Regulation 9 of the Medical Council of India Postgraduate
Medical Education Regulations, 2000 which deals with the method of
selection of candidates for admission to postgraduate courses and also
noted the insertions made in Regulation 9(1)(b) and Regulation 9(2)(d).
The proviso added after Regulation 9(2)(d) in terms of Gazette Notification
published on17.11.2009 reads as follows:-
“Further provided that in determining the merit and the entrance test for
postgraduate admission weightage in the marks may be given as an incentive
@ 10% of the marks obtained for each year in service in remote or difficult
areas up to the maximum of 30% of the marks obtained.”
9. The Court noted the submissions of the learned counsel appearing for
the parties and directed as follows:-
“In the circumstances, we direct that the State Government shall as
expeditiously as possible revise and redraw the merit list of the
candidates keeping in view Regulation 9 of the Medical Council of India
Postgraduate Medical Education Regulations, 2000 and giving to the eligible
candidates such weightage as may be due to them for rendering service in
notified rural and/or difficult areas and to grant admission to the
candidates found suitable for the same on the basis of such redrawn merit
list. This exercise shall be completed before 30-5-2016, the last date
fixed for granting of admission. The entire exercise so conducted shall,
however, remain subject to the outcome of these proceedings”.
10. The matter was finally decided on 16.08.2016. The three-Judge Bench
in Dinesh Singh Chauhan (supra) referred to the decisions in AIIMS
Students’ Union v. AIIMS and others[6], State of M.P. and others v. Gopal
D. Tirthani and others[7], Satyabrata Sahoo and others v. State of Orissa
and others[8] and Sudhir N. (supra) and ruled that Regulation 9 per se
makes no distinction between Government and non-Government colleges for
allocation of weightage of marks to in-service candidates. Instead, it
mandates preparation of one merit list for the State on the basis of
results in NEET and further, regarding in-service candidates, all it
provides is that the candidate must have been in-service of a
Government/public Authority and served in remote and difficult areas
notified by the State Government and the Competent Authority from time to
time. The Court further held that the authorities are obliged to continue
with the admission process strictly in conformity with Regulation 9.
Elucidating the proposition, the Court expressed thus:-
“The fact that most of the direct candidates who have secured higher marks
in the NEET than the in-service candidates, may not be in a position to get
a subject or college of their choice, and are likely to secure a subject or
college not acceptable to them, cannot be the basis to question the
validity of proviso to Clause IV of Regulation 9. The purpose behind
proviso is to encourage graduates to join as medical officers and serve in
notified remote and difficult areas of the State. The fact that for quite
some time no such appointments have been made by the State Government also
cannot be a basis to disregard the mandate of proviso to Clause IV-of
giving weightage of marks to the in-service candidates who have served for
a specified period in notified remote and difficult areas of the State.”
Thereafter, the three-Judge Bench opined:-
“The provision in the form of granting weightage of marks, therefore, was
to give incentive to the in-service candidates and to attract more
graduates to join as Medical Officers in the State Health Care Sector. The
provision was first inserted in 2012. To determine the academic merit of
candidates, merely securing high marks in the NEET is not enough. The
academic merit of the candidate must also reckon the services rendered for
the common or public good. Having served in rural and difficult areas of
the State for one year or above, the incumbent having sacrificed his career
by rendering services for providing health care facilities in rural areas,
deserve incentive marks to be reckoned for determining merit. Notably, the
State Government is posited with the discretion to notify areas in the
given State to be remote, tribal or difficult areas. That declaration is
made on the basis of decision taken at the highest level; and is applicable
for all the beneficial schemes of the State for such areas and not limited
to the matter of admissions to Post Graduate Medical Courses. Not even one
instance has been brought to our notice to show that some areas which are
not remote or difficult areas has been so notified. Suffice it to observe
that the mere hypothesis that the State Government may take an improper
decision whilst notifying the area as remote and difficult, cannot be the
basis to hold that Regulation 9 and in particular proviso to Clause IV is
unreasonable. Considering the above, the inescapable conclusion is that the
procedure evolved in Regulation 9 in general and the proviso to Clause (IV)
in particular is just, proper and reasonable and also fulfill the test of
Article 14 of the Constitution, being in larger public interest.”
11. Lastly, the Court posed the question whether the arrangement directed
in terms of order dated 12.05.2016 by the Court should have prospective
effect or also apply to admissions for academic year 2015-2016, for the
subject matter of challenge before the High Court pertained to the academic
year 2015-2016, the dispensation directed in terms of Order dated 12th May
2016 should apply thereto. However, considering the fact that the said
admission process had been completed and all concerned had acted upon on
that basis and that the candidates admitted to the respective Post Graduate
Degree Courses in the concerned colleges had also commenced their studies,
the Court held that it would not be appropriate to unsettle that position
given the fact that neither the direct candidates nor the eligible in-
service candidates who had worked in remote and/or difficult areas in the
State had approached the Court for such relief. The Court further held that
it was only the in-service candidates who had not worked in remote and/or
difficult areas in the State approached the Court for equating them with
their counterparts who had worked in remote and/or difficult areas in the
matter of reservation of seats for in-service candidates. The Court was of
the view that if at that distance of time, the settled admissions were to
be disturbed by quashing the entire admission process for academic year
2015-2016, it would inevitably result in all the seats in the State almost
over 500 in number remaining unfilled for one academic year; and that the
candidates to be admitted on the basis of fresh list for academic year 2015-
2016 will have to take fresh admission coinciding with the admissions for
academic year 2016-2017 which would necessitate doubling the strength of
seats in the respective colleges for the current academic year to
accommodate all those students, which may not be feasible and is avoidable.
In the peculiar facts of the case, the Court moulded the relief in the
appeals by directing all concerned to follow the admission process for
academic year 2016-2017 and onwards strictly in conformity with the
Regulations in force, governing the procedure for selection of candidates
for Post Graduate Medical Degree Courses including determination of
relative merit of the candidates who had appeared in NEET by giving
weightage of incentive marks to eligible in-service candidates. The Court
ruled that the High Court was justified in quashing the Government Order
providing for reservation to in-service candidates, being violative of
Regulation 9 as in force. It modified the operative direction given by the
High Court and instead directed that admission process for Academic Year
2016-2017 onwards to the Post Graduate Degree Course in the State should
proceed as per Regulation 9 including by giving incentive marks to eligible
in-service candidates in terms of proviso to Clause IV of Regulation 9
(equivalent to third proviso to Regulation 9(2) of the Old Regulations
reproduced in the interim order dated 12th May 2016). The Court thereafter
directed:-
“We, accordingly, mould the operative order of the High Court to bring it
in conformity with the direction contained in the interim order dated
12th May, 2016 but to be made applicable to Academic Year 2016-17 onwards
on the basis of Regulation 9 as in force. We are conscious of the fact that
this arrangement is likely to affect some of the direct candidates, if not
a large number of candidates whose applications were already processed by
the competent Authority for concerned Post Graduate Degree Course for
Academic Year 2016-17. However, their admissions cannot be validated in
breach of or disregarding the mandate of Regulation 9, as in force. The
appeals against the judgment of the High Court of Judicature at Allahabad
dated 7th April, 2016 are disposed of accordingly.”
12. After so stating, this Court adverted to the second set of appeals
arising from the judgment of the High Court of Allahabad, Lucknow Bench
dated 27.03.16 wherein it had taken the view that the direction to prepare
a fresh merit list vide interim order dated 12.05.16 was in respect of only
such eligible and in service candidates as had submitted applications for
admission to post-graduate courses for relevant academic year within the
stipulated time and the direction was not to consider all similarly placed
persons (eligible in-service candidates) irrespective whether they had made
applications for admission to post-graduate degree courses or otherwise.
Concurring with the view of the High Court, the appeals were dismissed.
Eventually, the Court clarified the position:-
“We make it clear that we have not examined the correctness of the fresh
merit list prepared by the concerned Authority in terms of interim order
dated 12.05.2016. If any candidate is aggrieved on account of wrong
placement in the fresh merit list or being in violation of this decision,
will be free to question the same by way of appropriate proceedings. That
challenge can be considered on its own merit.”
13. The appellants, as the facts would unroll, filed writ petition before
the High Court seeking writ of mandamus for holding the second, third and
mop-up round of counselling as prescribed in the information brochure and
to ensure that no seats in any of the courses advertised in the brochure is
allowed to go vacant in the academic session 2016-2017. The appellants
contended before the High Court that the respondents were bound to give
effect to the prescription contained in the information brochure which is
mandatory and, therefore, the authorities are under obligation to hold
second and third round of counselling and that they had misread and
misapplied the judgment dated 16.08.2016; that there was infringement of
their rights as they had been denied admission in the institution of their
choice in accordance with merit that too when number of seats were lying
vacant in several medical colleges; that in the previous academic session
2013-2014, the counselling was done after the cut-off date and the
admissions were given to the candidates and hence, it would be in the
interest of the students to issue directions for filling up unfilled seats.
14. Learned counsel for respondent No.2, opposing the relief sought by
the appellant, submitted before the High Court that this Court in Mridul
Dhar (Minor) (supra) has held that time schedule in respect of admission
in postgraduate courses and super speciality courses should be strictly
adhered to wherever provided; that there should not be midstream
admissions; that admissions should not be in excess of sanctioned intake
capacity or quota and carrying forward of unfilled seats of one academic
year to another is not permissible. Reliance was also placed on the
authority in Priya Gupta (supra), wherein it was directed that if anyone
who fails to comply with the directions stricto sensu shall be liable for
action under the provisions of the Contempt of Courts Act. It was further
contended before the High Court by the respondent No.2 that in terms of the
interim order of this Court, all the seats were allotted to the respective
candidates and the admission process stood completed by 30.05.2016 and as
regards unfilled seats, only 11 seats were lying vacant on account of non-
joining of the candidates and no further steps could be taken on account of
embargo put by the MCI with regard to the last date for completion and the
time frame could only be altered or modified by this Court.
15. Considering the rival submissions, the High Court accepted the
submissions of the respondent and dismissed the writ petition. Hence, the
present appeal.
16. We have heard Mr. Yatindra Singh, learned senior counsel along with
Mr. A.S. Pundir, learned counsel for the petitioners and Ms. Indu Malhotra,
learned senior counsel, Mr. Irshad Ahmad, AAG and Mr. Gaurav Sharma learned
counsel for the respondents.
17. Learned senior counsel for the appellants would submit that the maxim
actus curiae neminem gravabit or “an act of the court shall prejudice no
man” is a settled principle of law and applicable in the present case. It
is further contended that the delay in holding counselling was due to the
orders passed by or delay in this Court which should not prejudice the
appellants; that there was no delay on the part of the appellants but on
account of orders passed by this Court or delay was caused in the
proceedings or time taken by the State or by the MCI to file reply; that
the Information Brochure of the examination body provided for holding three
round of counselling and then mop-up round and under the latest amendments
of the regulations, only two rounds of counselling was permitted and in the
case of the appellants only one round of counselling had taken place and
the second round was yet to take place; that the brochure as well as
regulations provide counselling to be held first in which all can
participate and thereafter the mop-up round to be conducted; that in the
instant case, second round of counselling had not taken place and it should
be held first and then, if the need be, the mop-up round should be held;
that 71 seats are lying vacant in the State Government Colleges and non-
filling of these seats will lead to waste of government investment, its
resources and their full potential will not be utilized; that it is in
public interest that further counselling should be held as has been held
for University of Delhi and the States of Telangana and Andhra Pradesh.
18. Per contra, learned counsel for the State submitted that the legal
position with regard to vacant seats after the cut-off date and extra round
of counselling is settled in the decision of this Court in Supreet Batra
and others v. Union of India and others[9], wherein it has been held that
after the expiry of cut-off date, the seats lying vacant cannot be filled
up by way of conducting extra round of counselling. He further submitted
that pursuant to the order of the High Court quashing the policy decision
of the State Government wherein provisions were made for giving reservation
in post graduate courses for the doctors of Provincial Medical Services,
who had worked continuously for three years in notified backward areas
within the State, State of U.P. had preferred special leave petition
wherein this Court vide order dated 12.05.2016 directed the State
Government to revise and redraw the merit list and in pursuance of that
order, State Government had redrawn the merit list and fresh counselling
was held on 27.05.2016 and all the seats were filled up, except 71 seats
which remained vacant due to non-availability of the candidates for the
said courses. Therefore, in such circumstances no further counselling was
required. It is further submitted by the learned counsel for the State
that the seats became vacant after the cut-off date in different Government
Medical Colleges because after taking admission some of the candidates had
either resigned from the allotted seats or not joined the courses after
admission.
19. Be it noted that IA No.3 of 2016 was filed by the applicants seeking
“mop-up” round of counselling for filling up the vacant seats which arose
due to non-joining or resignation after de novo counselling on the basis of
clause 15 of the Information Brochure for the UPPGMEE, 2016. Ms. Indu
Malhotra, learned senior counsel submits that in the present case only one
round of counselling took place as the criteria for preparing the merit
list was changed vide order of this Court. It is further submitted by her
that after de novo round of counselling held on 30.05.2016, large number of
candidates did not join the allotted seats as a result of which almost 100
seats in various Government medical colleges have fallen vacant. To
substantiate her claim, she relied on the order dated 01.09.2016 and
08.09.2016 passed by this Court in S.L.P. (Civil) No. 19633 of 2016 wherein
this Court directed the University of Delhi to conduct one more round of
counselling for vacant seats within a period of two weeks and the States of
Andhra Pradesh and Telangana to conduct one more round of counselling to
fill up all the vacant seats. In effect, the submission of the learned
senior counsel is that the appellants and applicants are similarly situated
and by redrawing the merit list, the right of the applicants to appear in
the second and third counselling is denied.
20. The submission of Mr. Singh, learned senior counsel is fundamentally
entrenched on the principle actus curiae neminem gravabit. The said
submission is structured on the factual score that the time schedule could
not be followed because of the directions of this Court issued vide order
dated 12.05.2016 and eventually it became final on 16.08.2016 for which no
fault can be found with the appellants. The prayer of the appellants to
hold further counselling in respect of 71 seats was done in promptitude
and, therefore, the High Court would have been well advised to direct for
holding counselling or mop-up counselling so that the seats would not
remain vacant and the procedure would have been duly complied with.
Reliance has been placed on certain orders passed by this Court in respect
of the University of Delhi and the States of Telangana and Andhra Pradesh.
21. As far as States of Telangana and Andhra Pradesh is concerned, it is
necessary to note that the High Court had issued certain directions for
filling up the seats. The same was challenged by the Medical Council of
India. Taking note of the peculiar facts and circumstances of the newly
born States, the Court had passed the following order:-
“We take note of the fact that 86 seats in the State of Andhra Pradesh and
32 seats in the State of Telagnana are available in the Government colleges
in both the States. Having regard to the facts and circumstances of the
case, we direct that the University(s) that conducted the last counseling
shall conduct a counseling within two weeks hence after giving due
publicity. A student who has already taken admission will not be eligible
to participate in this counseling. Needless to say, the University shall
follow the procedure as provided in the admission brochure/prospectus. We
further say that the vacant seats are meant only for Government colleges
and Universities. We repeat at the cost of repetition that we have passed
this order in the special features of the case.”
22. The situation in the case of the said two States is totally different
than the present one. In the instant case, the appellants approached the
High Court only on 01.09.2016. They did not choose to move this Court when
the case of Dinesh Singh Chauhan (supra) was pending. They were aware that
such a litigation was pending before this Court. Despite the same, they
chose to maintain a sphinx like silence. It is beyond any trace of doubt
that admission to post graduate courses for the academic session 2016-2017
in the State of Uttar Pradesh stood concluded by this Court as per the
decision in Dinesh Singh Chauhan (supra). Had the grievance been raised
before this Court at the time when the special leave petitions were filed
in respect of the seats lying vacant, the matter could possibly have been
differently perceived. Mr. Gaurav Sharma, learned counsel appearing for
the MCI would submit that the appellants only woke up from the slumber
after this Court, in exercise of power under Article 142 of the
Constitution, permitted the States of Andhra Pradesh and Telangana to hold
counselling concurring with the view of the High Court and also directed
University of Delhi to conduct an extra round of counselling beyond the
cut-off date regard being had to the peculiar facts and circumstances of
the case. It is urged by him that in such a situation, the appellants
cannot be permitted to advance the stand that nobody should suffer for the
fault of the court.
23. It is manifest that effective and complete counselling was held in
the case of Uttar Pradesh on the basis of the verdict rendered by this
Court in Dinesh Singh Chauhan (supra) and the appellants, after certain
orders were passed by this Court, felt to have got the wake up call to
agitate their grievance.
24. The seminal question that is required to be posed is whether the
maxim actus curiae neminem gravabit would be applicable to such a case. In
Jang Singh v. Brij Lal and others[10], a three-Judge Bench noted that there
was error on the part of the court and the officers of the court had
contributed to the said occur. Appreciating the fact situation, the Court
held:-
“…… It is no doubt true that a litigant must be vigilant and take care but
where a litigant goes to Court and asks for the assistance of the Court so
that his obligations under a decree might be fulfilled by him strictly, it
is incumbent on the Court, if it does not leave the litigant to his own
devices, to ensure that the correct information is furnished. If the Court
in supplying the information makes a mistake the responsibility of the
litigant, though it does not altogether cease, is at least shared by the
Court. If the litigant acts on the faith of that information the Courts
cannot hold him responsible for a mistake which it itself caused. There is
no higher principle for the guidance of the Court than the one that no act
of Courts should harm a litigant and it is the bounden duty of Courts to
see that if a person is harmed by a mistake of the Court he should be
restored to the position he would have occupied but for that mistake. This
is aptly summed up in the maxim:“Actus curiae neminem gravabit”.”
25. Noting that there was mistake by the concerned district court, relief
was granted by stating so:-
“………In view of the mistake of the Court which needs to be righted the
parties are relegated to the position they occupied on January 6, 1958,
when the error was committed by the Court which error is being rectified by
us nunc pro tunc.”
26. Another three-Judge Bench in Jagannath Singh and others v. Dr. Ram
Naresh Singh[11], took note of the fact that the judgment by the High Court
had been rendered ex-parte, and the application for recall did not impress
the High Court. Appreciating the factual matrix that there was an error in
the cause list and accepting that there was an omission to mention the case
correctly in the cause list and treating it as a a mistake of the court,
the Court held that though there was some negligence on the part of the
counsel or of his clerk but it was not so grave as to disentitle the party
to be heard, and in any event, the alleged contemnors could not be punished
for a mistake on the part of their counsel or the counsel’s clerk.
Being of this view, this Court set aside the order with costs.
27. In Atma Ram Mittal v. Ishwar Singh Punia[12], this Court, in the
context of interpretation of Section 13(1) in juxtaposition with Section
1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973,
adopting the purposive interpretation ruled:-
“It is well-settled that no man should suffer because of the fault of the
court or delay in the procedure. Broom has stated the maxim “actus curiae
neminem gravabit” — an act of court shall prejudice no man. Therefore,
having regard to the time normally consumed for adjudication, the ten
years’ exemption or holiday from the application of the Rent Act would
become illusory, if the suit has to be filed within that time and be
disposed of finally. It is common knowledge that unless a suit is
instituted soon after the date of letting it would never be disposed of
within ten years and even then within that time it may not be disposed of.
That will make the ten years holiday from the Rent Act illusory and provide
no incentive to the landlords to build new houses to solve problem of
shortages of houses. The purpose of legislation would thus be defeated.
Purposive interpretation in a social amelioration legislation is an
imperative irrespective of anything else.”
28. The aforesaid authorities deal with three different situations.
There cannot be an iota of doubt that no prejudice shall be caused to
anyone due to the fault of the court, but it is to be seen in what
situations the court can invoke the maxim “actus curiae neminem gravabit”.
In this regard, reference to the authority in Jayalakshmi Coelho v. Oswald
Joseph Coelho[13] would be apt. In the said case, the Principal Judge,
Family Court, Bombay had modified the earlier decree. The same was
challenged in the writ petition which was dismissed. The Division Bench
confirmed the order of the learned Single Judge, which compelled the
appellant to approach this Court. Dealing with the principle of
rectification of decree under Section 152 CPC, the Court opined that there
can be hardly any doubt that any error occurred in the decree on account of
arithmetical or clerical error or accidental slip may be rectified by the
court. It has been further observed that the basis of the said provision
is founded on the maxim that an act of court will prejudice no man. The
Court referred to the authorities in Assam Tea Corpn. Ltd. v. Narayan
Singh[14], L. Janakirama Iyer v. P.M. Nilakanta Iyer[15], Bhikhi Lal v.
Tribeni[16], Master Construction Co. (P) Ltd. v. State of Orissa and
another[17], Dwaraka Das v. State of M.P. and another[18] and
Thirugnanavalli Ammal v. P. Venugopala Pillai[19] and, eventually analysing
the facts, opined that rectification of the decree was totally
misconceived.
29. In this regard, we may usefully refer to a passage from Kalabharati
Advertising v. Hemant Vimalnath Narichania and others[20], wherein it has
been ruled that the maxim actus curiae neminem gravabit, which means that
the act of the court shall prejudice no one, becomes applicable when a
situation is projected where the court is under an obligation to undo the
wrong done to a party by the act of the court. In a case, where any
undeserved or unfair advantage has been gained by a party invoking the
jurisdiction of the court, and the same requires to be neutralized, the
said maxim is to be made applicable.
30. In this regard, reference to the Constitution Bench decision in Sarah
Mathew v. Institute of Cardio Vascular Diseases and others[21] would be
seemly. In the said case, the question for consideration was whether for
the purposes of computing the period of limitation under Section 468 CrPC
the relevant date is the date of filing of the complaint or the date of
institution of the prosecution or whether the relevant date is the date on
which a Magistrate takes cognizance of the offence. Answering the issue,
the Court held that for that purpose computing the period of limitation
under Section 468 CrPC the relevant date is the date of filing of the
complaint or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. In the course of deliberation, the
larger Bench observed:-
“… The object of the criminal law is to punish perpetrators of crime. This
is in tune with the well-known legal maxim nullum tempus aut locus occurrit
regi, which means that a crime never dies. At the same time, it is also the
policy of law to assist the vigilant and not the sleepy. This is expressed
in the Latin maxim vigilantibus et non dormientibus, jura subveniunt.
Chapter XXXVI CrPC which provides limitation period for certain types of
offences for which lesser sentence is provided draws support from this
maxim. But, even certain offences such as Section 384 or 465 IPC, which
have lesser punishment may have serious social consequences. The provision
is, therefore, made for condonation of delay. Treating date of filing of
complaint or date of initiation of proceedings as the relevant date for
computing limitation under Section 468 of the Code is supported by the
legal maxim actus curiae neminem gravabit which means that the act of court
shall prejudice no man. It bears repetition to state that the court’s
inaction in taking cognizance i.e. court’s inaction in applying mind to the
suspected offence should not be allowed to cause prejudice to a diligent
complainant. Chapter XXXVI thus presents the interplay of these three legal
maxims. The provisions of this Chapter, however, are not interpreted solely
on the basis of these maxims. They only serve as guiding principles.”
31. It is noticeable from the aforesaid passage that the interpretation
was made in accordance with the Code and the legal maxim was taken as a
guiding principle. Needless to say, it is well settled in law that no one
should suffer any prejudice because of the act of the court. The
authorities that we have referred to dealt with the different factual
expositions. The legal maxim that has been taken recourse to cannot
operate in a vacuum. It has to get the sustenance from the facts. As is
manifest, after the admissions were over as per the direction of this
Court, the appellants, who seemed to have resigned to their fate, woke up
to have control over the events forgetting that the law does not assist the
non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing
the feeling that forgetting is a virtue, and thereafter, when the time has
slipped through, for it waits for none, wake up and take shelter under the
maxim “actus curiae neminem gravabit”. It is completely unacceptable.
32. Considering the precedents where the legal maxim actus curiae neminem
gravabit has been applied, we are compelled to form the opinion that the
said maxim is not applicable to the factual score of the present case. Once
the said principle is not applicable, the rest of the submissions
pertaining to seats going waste or the State losing its investment or the
suffering of the students or claim of parity with other students have no
legs to stand upon. It is because to give indulgence to the appellants or
the interfering with the impugned order would only give rise to chaos; and
it is an accepted norm that law does not countenance any chaos and abhors
anarchy.
33. Consequently, the appeal, being sans substance, stands dismissed.
There shall be no order as to costs.
..........................................J.
(Dipak Misra)
.........................................J.
(Amitava Roy)
New Delhi;
March 21, 2017
-----------------------
[1]
[2] (2016) 9 SCC 749
[3]
[4] (2005) 2 SCC 65
[5]
[6] (2012) 7 SCC 433
[7]
[8] 2016 SCC OnLine All 622
[9]
[10] (2015) 6 SCC 685
[11]
[12] (2002) 1 SCC 428
[13]
[14] (2003) 7 SCC 83
[15]
[16] (2012) 8 SCC 203
[17]
[18] (2003) 3 SCC 370
[19]
[20] AIR 1966 SC 1631
[21]
[22] (1970) 1 SCC 573
[23]
[24] (1988) 4 SCC 284
[25]
[26] (2001) 4 SCC 181
[27]
[28] AIR 1981 Gau 41
[29]
[30] AIR 1962 SC 633
[31]
[32] AIR 1965 SC 1935
[33]
[34] AIR 1966 SC 1047
[35]
[36] (1999) 3 SCC 500
[37]
[38] AIR 1940 Mad 29
[39]
[40] (2010) 9 SCC 437
[41]
[42] (2014) 2 SCC 62
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11974 OF 2016
(arising out of S.L.P. (Civil) No. 27906 of 2016)
Neeraj Kumar Sainy and Ors. …Appellant(s)
Versus
State of U.P. and Ors. …Respondent(s)
J U D G M E N T
Dipak Misra, J.
The appellants invoked the jurisdiction of the High Court of
Judicature at Allahabad, Lucknow Bench, Lucknow in Writ Petition No. 21038
of 2016 for issue a writ of mandamus commanding the opposite parties,
namely, State of Uttar Pradesh, King George’s Medical University,
Coordinator, U.P. Post Graduate Medical Entrance Examination, 2016
(UPPGMEE, 2016) and Medical Council of India (MCI) to complete the process
of counselling by holding the second, third and mop-up round of counselling
as prescribed in the Information Brochure issued for the UPPGMEE, 2016 and
to ensure that no seats in any of the courses advertised in the Information
Brochure are allowed to go vacant for the academic year 2016-2017.
2. The facts which are requisite to be stated are that the appellants
had appeared in the written test of UPPGMEE-2016 and after being declared
successful, they participated in the first round of counselling which was
held from 04.04.2016 to 08.04.2016. The candidates who got selected in the
said counselling joined their respective seats allotted to them. The case
of the appellants before the High Court was that as per the Information
Brochure, minimum three round of counsellings are to be held and in case
sufficient number of seats are left unallotted at the end of third round of
counselling, then a mop-up round of allotment is required to be organized
on the notified date after giving due publicity by the Director General of
Medical Education and Training, U.P. to ensure that there is no loss of PG
seats in the academic year 2016-2017. It was urged before the High Court
that terms and conditions for participating in the mop-up round of
counselling are that (i) candidates who are admitted/allotted but not
joined/resigned in any seat in Uttar Pradesh will not be eligible for
participation; (ii) any candidate who had taken admission in any PG course
in any medical college in India also will not be eligible for
participation; (iii) the candidate must present himself/herself with all
original documents, and (iv) no request for re-allotment of seats already
allotted in the first and second round will be entertained.
3. It was the stand of the appellants before the High Court that it is
obligatory on the part of the respondents to give effect to the postulates
contained in the Information Brochure and hence, the authorities were under
obligation to hold the second and third round of counselling as well as the
mop-up round of counselling, but they had failed to do so by their
erroneous understanding of the judgment and order dated 16.08.2016 in the
case of State of Uttar Pradesh and others v. Dinesh Singh Chauhan[1]. It
was further contended that there was infringement of valuable rights of
writ petitioners as they had been denied admission to the institution of
their choice in accordance with merit. It was canvassed with vigour that
such an unacceptable situation had occurred, for despite the seats being
lying vacant in several medical colleges no steps were being taken to fill
them up. Citing an example, it was put forth that for the academic session
2013-2014 the counselling was done in the month of August and the
admissions were given to the meritorious candidates and, therefore, it was
necessary to issue appropriate directions to fill up the unfilled seats.
4. The stand of the appellants before the High Court was resisted by the
respondent No. 2 therein – Director General of Medical Education and
Training, Uttar Pradesh, contending, inter alia, that seats had remained
vacant because of the directions of the Supreme Court in Mridul Dhar
(Minor) and another v. Union of India and others[2] wherein stress was
laid for adherence to the time schedule and the categorical command that
there should not be midstream admissions. It was further held that
carrying forward unfilled seats of one academic year to another academic
year was not permissible. Reliance was also placed on the authority in
Priya Gupta v. State of Chhattisgarh and others[3] wherein it was directed
that the concerned authority was bound to fill up the seats in accord with
the time schedule stricto sensu and any violation thereof is to be
seriously viewed.
5. It was also highlighted by the contesting respondent that after the
interim order passed by this Court on 12.05.2016 the merit list was drawn
and counselling was carried out by 30.05.2016 as it was the last date fixed
by the MCI for completion of admission process. It was highlighted that
certain seats are lying vacant on ground of non-joining of the candidates
and no further steps could be taken. Similar arguments were canvassed by
the State of Uttar Pradesh and the Medical Council of India.
6. The High Court adverted to the factual background which was to the
effect that a policy decision was taken by the State of Uttar Pradesh on
16.01.2014 whereby 30% of postgraduate seats had been reserved for those
candidates who had completed three years service in the rural areas and in
pursuance of the same, the Government Order dated 28.02.2014 was issued to
engage Provincial Medical Health Services Cadre members to go for higher
education. In the said order, it was also provided that those members of
Provincial Services who had served in far remote backward areas in
respective Community Health Centre/Primary Health Centre would get the
benefit. After the said policy decision, the Examining Body issued
advertisement and therein the eligibility for admission had been provided
for and as per the same only those incumbents were eligible to apply who
had served for a period of three years in remote areas.
7. The said order was challenged in Writ-C No. 1380 of 2015 titled Dr.
Surya Kant Ojha and others v. State of U.P. and others[4] before the High
Court along with connected matters. The High Court vide order dated
07.04.2016 quashed the Government Order dated 28.02.2014 with a direction
that admissions in postgraduate degree courses be made strictly on the
basis of merit from amongst the candidates who had obtained requisite
minimum marks in the examination in question so prescribed by the MCI.
8. As the factual matrix would uncurtain, the matter travelled to this
Court in Dinesh Singh Chauhan (supra) wherein this Court took note of the
authority in Sudhir N. and others v. State of Kerala and others[5],
referred to Regulation 9 of the Medical Council of India Postgraduate
Medical Education Regulations, 2000 which deals with the method of
selection of candidates for admission to postgraduate courses and also
noted the insertions made in Regulation 9(1)(b) and Regulation 9(2)(d).
The proviso added after Regulation 9(2)(d) in terms of Gazette Notification
published on17.11.2009 reads as follows:-
“Further provided that in determining the merit and the entrance test for
postgraduate admission weightage in the marks may be given as an incentive
@ 10% of the marks obtained for each year in service in remote or difficult
areas up to the maximum of 30% of the marks obtained.”
9. The Court noted the submissions of the learned counsel appearing for
the parties and directed as follows:-
“In the circumstances, we direct that the State Government shall as
expeditiously as possible revise and redraw the merit list of the
candidates keeping in view Regulation 9 of the Medical Council of India
Postgraduate Medical Education Regulations, 2000 and giving to the eligible
candidates such weightage as may be due to them for rendering service in
notified rural and/or difficult areas and to grant admission to the
candidates found suitable for the same on the basis of such redrawn merit
list. This exercise shall be completed before 30-5-2016, the last date
fixed for granting of admission. The entire exercise so conducted shall,
however, remain subject to the outcome of these proceedings”.
10. The matter was finally decided on 16.08.2016. The three-Judge Bench
in Dinesh Singh Chauhan (supra) referred to the decisions in AIIMS
Students’ Union v. AIIMS and others[6], State of M.P. and others v. Gopal
D. Tirthani and others[7], Satyabrata Sahoo and others v. State of Orissa
and others[8] and Sudhir N. (supra) and ruled that Regulation 9 per se
makes no distinction between Government and non-Government colleges for
allocation of weightage of marks to in-service candidates. Instead, it
mandates preparation of one merit list for the State on the basis of
results in NEET and further, regarding in-service candidates, all it
provides is that the candidate must have been in-service of a
Government/public Authority and served in remote and difficult areas
notified by the State Government and the Competent Authority from time to
time. The Court further held that the authorities are obliged to continue
with the admission process strictly in conformity with Regulation 9.
Elucidating the proposition, the Court expressed thus:-
“The fact that most of the direct candidates who have secured higher marks
in the NEET than the in-service candidates, may not be in a position to get
a subject or college of their choice, and are likely to secure a subject or
college not acceptable to them, cannot be the basis to question the
validity of proviso to Clause IV of Regulation 9. The purpose behind
proviso is to encourage graduates to join as medical officers and serve in
notified remote and difficult areas of the State. The fact that for quite
some time no such appointments have been made by the State Government also
cannot be a basis to disregard the mandate of proviso to Clause IV-of
giving weightage of marks to the in-service candidates who have served for
a specified period in notified remote and difficult areas of the State.”
Thereafter, the three-Judge Bench opined:-
“The provision in the form of granting weightage of marks, therefore, was
to give incentive to the in-service candidates and to attract more
graduates to join as Medical Officers in the State Health Care Sector. The
provision was first inserted in 2012. To determine the academic merit of
candidates, merely securing high marks in the NEET is not enough. The
academic merit of the candidate must also reckon the services rendered for
the common or public good. Having served in rural and difficult areas of
the State for one year or above, the incumbent having sacrificed his career
by rendering services for providing health care facilities in rural areas,
deserve incentive marks to be reckoned for determining merit. Notably, the
State Government is posited with the discretion to notify areas in the
given State to be remote, tribal or difficult areas. That declaration is
made on the basis of decision taken at the highest level; and is applicable
for all the beneficial schemes of the State for such areas and not limited
to the matter of admissions to Post Graduate Medical Courses. Not even one
instance has been brought to our notice to show that some areas which are
not remote or difficult areas has been so notified. Suffice it to observe
that the mere hypothesis that the State Government may take an improper
decision whilst notifying the area as remote and difficult, cannot be the
basis to hold that Regulation 9 and in particular proviso to Clause IV is
unreasonable. Considering the above, the inescapable conclusion is that the
procedure evolved in Regulation 9 in general and the proviso to Clause (IV)
in particular is just, proper and reasonable and also fulfill the test of
Article 14 of the Constitution, being in larger public interest.”
11. Lastly, the Court posed the question whether the arrangement directed
in terms of order dated 12.05.2016 by the Court should have prospective
effect or also apply to admissions for academic year 2015-2016, for the
subject matter of challenge before the High Court pertained to the academic
year 2015-2016, the dispensation directed in terms of Order dated 12th May
2016 should apply thereto. However, considering the fact that the said
admission process had been completed and all concerned had acted upon on
that basis and that the candidates admitted to the respective Post Graduate
Degree Courses in the concerned colleges had also commenced their studies,
the Court held that it would not be appropriate to unsettle that position
given the fact that neither the direct candidates nor the eligible in-
service candidates who had worked in remote and/or difficult areas in the
State had approached the Court for such relief. The Court further held that
it was only the in-service candidates who had not worked in remote and/or
difficult areas in the State approached the Court for equating them with
their counterparts who had worked in remote and/or difficult areas in the
matter of reservation of seats for in-service candidates. The Court was of
the view that if at that distance of time, the settled admissions were to
be disturbed by quashing the entire admission process for academic year
2015-2016, it would inevitably result in all the seats in the State almost
over 500 in number remaining unfilled for one academic year; and that the
candidates to be admitted on the basis of fresh list for academic year 2015-
2016 will have to take fresh admission coinciding with the admissions for
academic year 2016-2017 which would necessitate doubling the strength of
seats in the respective colleges for the current academic year to
accommodate all those students, which may not be feasible and is avoidable.
In the peculiar facts of the case, the Court moulded the relief in the
appeals by directing all concerned to follow the admission process for
academic year 2016-2017 and onwards strictly in conformity with the
Regulations in force, governing the procedure for selection of candidates
for Post Graduate Medical Degree Courses including determination of
relative merit of the candidates who had appeared in NEET by giving
weightage of incentive marks to eligible in-service candidates. The Court
ruled that the High Court was justified in quashing the Government Order
providing for reservation to in-service candidates, being violative of
Regulation 9 as in force. It modified the operative direction given by the
High Court and instead directed that admission process for Academic Year
2016-2017 onwards to the Post Graduate Degree Course in the State should
proceed as per Regulation 9 including by giving incentive marks to eligible
in-service candidates in terms of proviso to Clause IV of Regulation 9
(equivalent to third proviso to Regulation 9(2) of the Old Regulations
reproduced in the interim order dated 12th May 2016). The Court thereafter
directed:-
“We, accordingly, mould the operative order of the High Court to bring it
in conformity with the direction contained in the interim order dated
12th May, 2016 but to be made applicable to Academic Year 2016-17 onwards
on the basis of Regulation 9 as in force. We are conscious of the fact that
this arrangement is likely to affect some of the direct candidates, if not
a large number of candidates whose applications were already processed by
the competent Authority for concerned Post Graduate Degree Course for
Academic Year 2016-17. However, their admissions cannot be validated in
breach of or disregarding the mandate of Regulation 9, as in force. The
appeals against the judgment of the High Court of Judicature at Allahabad
dated 7th April, 2016 are disposed of accordingly.”
12. After so stating, this Court adverted to the second set of appeals
arising from the judgment of the High Court of Allahabad, Lucknow Bench
dated 27.03.16 wherein it had taken the view that the direction to prepare
a fresh merit list vide interim order dated 12.05.16 was in respect of only
such eligible and in service candidates as had submitted applications for
admission to post-graduate courses for relevant academic year within the
stipulated time and the direction was not to consider all similarly placed
persons (eligible in-service candidates) irrespective whether they had made
applications for admission to post-graduate degree courses or otherwise.
Concurring with the view of the High Court, the appeals were dismissed.
Eventually, the Court clarified the position:-
“We make it clear that we have not examined the correctness of the fresh
merit list prepared by the concerned Authority in terms of interim order
dated 12.05.2016. If any candidate is aggrieved on account of wrong
placement in the fresh merit list or being in violation of this decision,
will be free to question the same by way of appropriate proceedings. That
challenge can be considered on its own merit.”
13. The appellants, as the facts would unroll, filed writ petition before
the High Court seeking writ of mandamus for holding the second, third and
mop-up round of counselling as prescribed in the information brochure and
to ensure that no seats in any of the courses advertised in the brochure is
allowed to go vacant in the academic session 2016-2017. The appellants
contended before the High Court that the respondents were bound to give
effect to the prescription contained in the information brochure which is
mandatory and, therefore, the authorities are under obligation to hold
second and third round of counselling and that they had misread and
misapplied the judgment dated 16.08.2016; that there was infringement of
their rights as they had been denied admission in the institution of their
choice in accordance with merit that too when number of seats were lying
vacant in several medical colleges; that in the previous academic session
2013-2014, the counselling was done after the cut-off date and the
admissions were given to the candidates and hence, it would be in the
interest of the students to issue directions for filling up unfilled seats.
14. Learned counsel for respondent No.2, opposing the relief sought by
the appellant, submitted before the High Court that this Court in Mridul
Dhar (Minor) (supra) has held that time schedule in respect of admission
in postgraduate courses and super speciality courses should be strictly
adhered to wherever provided; that there should not be midstream
admissions; that admissions should not be in excess of sanctioned intake
capacity or quota and carrying forward of unfilled seats of one academic
year to another is not permissible. Reliance was also placed on the
authority in Priya Gupta (supra), wherein it was directed that if anyone
who fails to comply with the directions stricto sensu shall be liable for
action under the provisions of the Contempt of Courts Act. It was further
contended before the High Court by the respondent No.2 that in terms of the
interim order of this Court, all the seats were allotted to the respective
candidates and the admission process stood completed by 30.05.2016 and as
regards unfilled seats, only 11 seats were lying vacant on account of non-
joining of the candidates and no further steps could be taken on account of
embargo put by the MCI with regard to the last date for completion and the
time frame could only be altered or modified by this Court.
15. Considering the rival submissions, the High Court accepted the
submissions of the respondent and dismissed the writ petition. Hence, the
present appeal.
16. We have heard Mr. Yatindra Singh, learned senior counsel along with
Mr. A.S. Pundir, learned counsel for the petitioners and Ms. Indu Malhotra,
learned senior counsel, Mr. Irshad Ahmad, AAG and Mr. Gaurav Sharma learned
counsel for the respondents.
17. Learned senior counsel for the appellants would submit that the maxim
actus curiae neminem gravabit or “an act of the court shall prejudice no
man” is a settled principle of law and applicable in the present case. It
is further contended that the delay in holding counselling was due to the
orders passed by or delay in this Court which should not prejudice the
appellants; that there was no delay on the part of the appellants but on
account of orders passed by this Court or delay was caused in the
proceedings or time taken by the State or by the MCI to file reply; that
the Information Brochure of the examination body provided for holding three
round of counselling and then mop-up round and under the latest amendments
of the regulations, only two rounds of counselling was permitted and in the
case of the appellants only one round of counselling had taken place and
the second round was yet to take place; that the brochure as well as
regulations provide counselling to be held first in which all can
participate and thereafter the mop-up round to be conducted; that in the
instant case, second round of counselling had not taken place and it should
be held first and then, if the need be, the mop-up round should be held;
that 71 seats are lying vacant in the State Government Colleges and non-
filling of these seats will lead to waste of government investment, its
resources and their full potential will not be utilized; that it is in
public interest that further counselling should be held as has been held
for University of Delhi and the States of Telangana and Andhra Pradesh.
18. Per contra, learned counsel for the State submitted that the legal
position with regard to vacant seats after the cut-off date and extra round
of counselling is settled in the decision of this Court in Supreet Batra
and others v. Union of India and others[9], wherein it has been held that
after the expiry of cut-off date, the seats lying vacant cannot be filled
up by way of conducting extra round of counselling. He further submitted
that pursuant to the order of the High Court quashing the policy decision
of the State Government wherein provisions were made for giving reservation
in post graduate courses for the doctors of Provincial Medical Services,
who had worked continuously for three years in notified backward areas
within the State, State of U.P. had preferred special leave petition
wherein this Court vide order dated 12.05.2016 directed the State
Government to revise and redraw the merit list and in pursuance of that
order, State Government had redrawn the merit list and fresh counselling
was held on 27.05.2016 and all the seats were filled up, except 71 seats
which remained vacant due to non-availability of the candidates for the
said courses. Therefore, in such circumstances no further counselling was
required. It is further submitted by the learned counsel for the State
that the seats became vacant after the cut-off date in different Government
Medical Colleges because after taking admission some of the candidates had
either resigned from the allotted seats or not joined the courses after
admission.
19. Be it noted that IA No.3 of 2016 was filed by the applicants seeking
“mop-up” round of counselling for filling up the vacant seats which arose
due to non-joining or resignation after de novo counselling on the basis of
clause 15 of the Information Brochure for the UPPGMEE, 2016. Ms. Indu
Malhotra, learned senior counsel submits that in the present case only one
round of counselling took place as the criteria for preparing the merit
list was changed vide order of this Court. It is further submitted by her
that after de novo round of counselling held on 30.05.2016, large number of
candidates did not join the allotted seats as a result of which almost 100
seats in various Government medical colleges have fallen vacant. To
substantiate her claim, she relied on the order dated 01.09.2016 and
08.09.2016 passed by this Court in S.L.P. (Civil) No. 19633 of 2016 wherein
this Court directed the University of Delhi to conduct one more round of
counselling for vacant seats within a period of two weeks and the States of
Andhra Pradesh and Telangana to conduct one more round of counselling to
fill up all the vacant seats. In effect, the submission of the learned
senior counsel is that the appellants and applicants are similarly situated
and by redrawing the merit list, the right of the applicants to appear in
the second and third counselling is denied.
20. The submission of Mr. Singh, learned senior counsel is fundamentally
entrenched on the principle actus curiae neminem gravabit. The said
submission is structured on the factual score that the time schedule could
not be followed because of the directions of this Court issued vide order
dated 12.05.2016 and eventually it became final on 16.08.2016 for which no
fault can be found with the appellants. The prayer of the appellants to
hold further counselling in respect of 71 seats was done in promptitude
and, therefore, the High Court would have been well advised to direct for
holding counselling or mop-up counselling so that the seats would not
remain vacant and the procedure would have been duly complied with.
Reliance has been placed on certain orders passed by this Court in respect
of the University of Delhi and the States of Telangana and Andhra Pradesh.
21. As far as States of Telangana and Andhra Pradesh is concerned, it is
necessary to note that the High Court had issued certain directions for
filling up the seats. The same was challenged by the Medical Council of
India. Taking note of the peculiar facts and circumstances of the newly
born States, the Court had passed the following order:-
“We take note of the fact that 86 seats in the State of Andhra Pradesh and
32 seats in the State of Telagnana are available in the Government colleges
in both the States. Having regard to the facts and circumstances of the
case, we direct that the University(s) that conducted the last counseling
shall conduct a counseling within two weeks hence after giving due
publicity. A student who has already taken admission will not be eligible
to participate in this counseling. Needless to say, the University shall
follow the procedure as provided in the admission brochure/prospectus. We
further say that the vacant seats are meant only for Government colleges
and Universities. We repeat at the cost of repetition that we have passed
this order in the special features of the case.”
22. The situation in the case of the said two States is totally different
than the present one. In the instant case, the appellants approached the
High Court only on 01.09.2016. They did not choose to move this Court when
the case of Dinesh Singh Chauhan (supra) was pending. They were aware that
such a litigation was pending before this Court. Despite the same, they
chose to maintain a sphinx like silence. It is beyond any trace of doubt
that admission to post graduate courses for the academic session 2016-2017
in the State of Uttar Pradesh stood concluded by this Court as per the
decision in Dinesh Singh Chauhan (supra). Had the grievance been raised
before this Court at the time when the special leave petitions were filed
in respect of the seats lying vacant, the matter could possibly have been
differently perceived. Mr. Gaurav Sharma, learned counsel appearing for
the MCI would submit that the appellants only woke up from the slumber
after this Court, in exercise of power under Article 142 of the
Constitution, permitted the States of Andhra Pradesh and Telangana to hold
counselling concurring with the view of the High Court and also directed
University of Delhi to conduct an extra round of counselling beyond the
cut-off date regard being had to the peculiar facts and circumstances of
the case. It is urged by him that in such a situation, the appellants
cannot be permitted to advance the stand that nobody should suffer for the
fault of the court.
23. It is manifest that effective and complete counselling was held in
the case of Uttar Pradesh on the basis of the verdict rendered by this
Court in Dinesh Singh Chauhan (supra) and the appellants, after certain
orders were passed by this Court, felt to have got the wake up call to
agitate their grievance.
24. The seminal question that is required to be posed is whether the
maxim actus curiae neminem gravabit would be applicable to such a case. In
Jang Singh v. Brij Lal and others[10], a three-Judge Bench noted that there
was error on the part of the court and the officers of the court had
contributed to the said occur. Appreciating the fact situation, the Court
held:-
“…… It is no doubt true that a litigant must be vigilant and take care but
where a litigant goes to Court and asks for the assistance of the Court so
that his obligations under a decree might be fulfilled by him strictly, it
is incumbent on the Court, if it does not leave the litigant to his own
devices, to ensure that the correct information is furnished. If the Court
in supplying the information makes a mistake the responsibility of the
litigant, though it does not altogether cease, is at least shared by the
Court. If the litigant acts on the faith of that information the Courts
cannot hold him responsible for a mistake which it itself caused. There is
no higher principle for the guidance of the Court than the one that no act
of Courts should harm a litigant and it is the bounden duty of Courts to
see that if a person is harmed by a mistake of the Court he should be
restored to the position he would have occupied but for that mistake. This
is aptly summed up in the maxim:“Actus curiae neminem gravabit”.”
25. Noting that there was mistake by the concerned district court, relief
was granted by stating so:-
“………In view of the mistake of the Court which needs to be righted the
parties are relegated to the position they occupied on January 6, 1958,
when the error was committed by the Court which error is being rectified by
us nunc pro tunc.”
26. Another three-Judge Bench in Jagannath Singh and others v. Dr. Ram
Naresh Singh[11], took note of the fact that the judgment by the High Court
had been rendered ex-parte, and the application for recall did not impress
the High Court. Appreciating the factual matrix that there was an error in
the cause list and accepting that there was an omission to mention the case
correctly in the cause list and treating it as a a mistake of the court,
the Court held that though there was some negligence on the part of the
counsel or of his clerk but it was not so grave as to disentitle the party
to be heard, and in any event, the alleged contemnors could not be punished
for a mistake on the part of their counsel or the counsel’s clerk.
Being of this view, this Court set aside the order with costs.
27. In Atma Ram Mittal v. Ishwar Singh Punia[12], this Court, in the
context of interpretation of Section 13(1) in juxtaposition with Section
1(3) of the Haryana Urban (Control of Rent and Eviction) Act, 1973,
adopting the purposive interpretation ruled:-
“It is well-settled that no man should suffer because of the fault of the
court or delay in the procedure. Broom has stated the maxim “actus curiae
neminem gravabit” — an act of court shall prejudice no man. Therefore,
having regard to the time normally consumed for adjudication, the ten
years’ exemption or holiday from the application of the Rent Act would
become illusory, if the suit has to be filed within that time and be
disposed of finally. It is common knowledge that unless a suit is
instituted soon after the date of letting it would never be disposed of
within ten years and even then within that time it may not be disposed of.
That will make the ten years holiday from the Rent Act illusory and provide
no incentive to the landlords to build new houses to solve problem of
shortages of houses. The purpose of legislation would thus be defeated.
Purposive interpretation in a social amelioration legislation is an
imperative irrespective of anything else.”
28. The aforesaid authorities deal with three different situations.
There cannot be an iota of doubt that no prejudice shall be caused to
anyone due to the fault of the court, but it is to be seen in what
situations the court can invoke the maxim “actus curiae neminem gravabit”.
In this regard, reference to the authority in Jayalakshmi Coelho v. Oswald
Joseph Coelho[13] would be apt. In the said case, the Principal Judge,
Family Court, Bombay had modified the earlier decree. The same was
challenged in the writ petition which was dismissed. The Division Bench
confirmed the order of the learned Single Judge, which compelled the
appellant to approach this Court. Dealing with the principle of
rectification of decree under Section 152 CPC, the Court opined that there
can be hardly any doubt that any error occurred in the decree on account of
arithmetical or clerical error or accidental slip may be rectified by the
court. It has been further observed that the basis of the said provision
is founded on the maxim that an act of court will prejudice no man. The
Court referred to the authorities in Assam Tea Corpn. Ltd. v. Narayan
Singh[14], L. Janakirama Iyer v. P.M. Nilakanta Iyer[15], Bhikhi Lal v.
Tribeni[16], Master Construction Co. (P) Ltd. v. State of Orissa and
another[17], Dwaraka Das v. State of M.P. and another[18] and
Thirugnanavalli Ammal v. P. Venugopala Pillai[19] and, eventually analysing
the facts, opined that rectification of the decree was totally
misconceived.
29. In this regard, we may usefully refer to a passage from Kalabharati
Advertising v. Hemant Vimalnath Narichania and others[20], wherein it has
been ruled that the maxim actus curiae neminem gravabit, which means that
the act of the court shall prejudice no one, becomes applicable when a
situation is projected where the court is under an obligation to undo the
wrong done to a party by the act of the court. In a case, where any
undeserved or unfair advantage has been gained by a party invoking the
jurisdiction of the court, and the same requires to be neutralized, the
said maxim is to be made applicable.
30. In this regard, reference to the Constitution Bench decision in Sarah
Mathew v. Institute of Cardio Vascular Diseases and others[21] would be
seemly. In the said case, the question for consideration was whether for
the purposes of computing the period of limitation under Section 468 CrPC
the relevant date is the date of filing of the complaint or the date of
institution of the prosecution or whether the relevant date is the date on
which a Magistrate takes cognizance of the offence. Answering the issue,
the Court held that for that purpose computing the period of limitation
under Section 468 CrPC the relevant date is the date of filing of the
complaint or the date of institution of prosecution and not the date on
which the Magistrate takes cognizance. In the course of deliberation, the
larger Bench observed:-
“… The object of the criminal law is to punish perpetrators of crime. This
is in tune with the well-known legal maxim nullum tempus aut locus occurrit
regi, which means that a crime never dies. At the same time, it is also the
policy of law to assist the vigilant and not the sleepy. This is expressed
in the Latin maxim vigilantibus et non dormientibus, jura subveniunt.
Chapter XXXVI CrPC which provides limitation period for certain types of
offences for which lesser sentence is provided draws support from this
maxim. But, even certain offences such as Section 384 or 465 IPC, which
have lesser punishment may have serious social consequences. The provision
is, therefore, made for condonation of delay. Treating date of filing of
complaint or date of initiation of proceedings as the relevant date for
computing limitation under Section 468 of the Code is supported by the
legal maxim actus curiae neminem gravabit which means that the act of court
shall prejudice no man. It bears repetition to state that the court’s
inaction in taking cognizance i.e. court’s inaction in applying mind to the
suspected offence should not be allowed to cause prejudice to a diligent
complainant. Chapter XXXVI thus presents the interplay of these three legal
maxims. The provisions of this Chapter, however, are not interpreted solely
on the basis of these maxims. They only serve as guiding principles.”
31. It is noticeable from the aforesaid passage that the interpretation
was made in accordance with the Code and the legal maxim was taken as a
guiding principle. Needless to say, it is well settled in law that no one
should suffer any prejudice because of the act of the court. The
authorities that we have referred to dealt with the different factual
expositions. The legal maxim that has been taken recourse to cannot
operate in a vacuum. It has to get the sustenance from the facts. As is
manifest, after the admissions were over as per the direction of this
Court, the appellants, who seemed to have resigned to their fate, woke up
to have control over the events forgetting that the law does not assist the
non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing
the feeling that forgetting is a virtue, and thereafter, when the time has
slipped through, for it waits for none, wake up and take shelter under the
maxim “actus curiae neminem gravabit”. It is completely unacceptable.
32. Considering the precedents where the legal maxim actus curiae neminem
gravabit has been applied, we are compelled to form the opinion that the
said maxim is not applicable to the factual score of the present case. Once
the said principle is not applicable, the rest of the submissions
pertaining to seats going waste or the State losing its investment or the
suffering of the students or claim of parity with other students have no
legs to stand upon. It is because to give indulgence to the appellants or
the interfering with the impugned order would only give rise to chaos; and
it is an accepted norm that law does not countenance any chaos and abhors
anarchy.
33. Consequently, the appeal, being sans substance, stands dismissed.
There shall be no order as to costs.
..........................................J.
(Dipak Misra)
.........................................J.
(Amitava Roy)
New Delhi;
March 21, 2017
-----------------------
[1]
[2] (2016) 9 SCC 749
[3]
[4] (2005) 2 SCC 65
[5]
[6] (2012) 7 SCC 433
[7]
[8] 2016 SCC OnLine All 622
[9]
[10] (2015) 6 SCC 685
[11]
[12] (2002) 1 SCC 428
[13]
[14] (2003) 7 SCC 83
[15]
[16] (2012) 8 SCC 203
[17]
[18] (2003) 3 SCC 370
[19]
[20] AIR 1966 SC 1631
[21]
[22] (1970) 1 SCC 573
[23]
[24] (1988) 4 SCC 284
[25]
[26] (2001) 4 SCC 181
[27]
[28] AIR 1981 Gau 41
[29]
[30] AIR 1962 SC 633
[31]
[32] AIR 1965 SC 1935
[33]
[34] AIR 1966 SC 1047
[35]
[36] (1999) 3 SCC 500
[37]
[38] AIR 1940 Mad 29
[39]
[40] (2010) 9 SCC 437
[41]
[42] (2014) 2 SCC 62
