TMI Blog2017 (3) TMI 1796X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Civil Procedure, 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. 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-vigila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Judge Bench in Dinesh Singh Chauhan (supra) referred to the decisions in AIIMS Students' Union v. AIIMS and Ors. (2002) 1 SCC 428, State of M.P. and Ors. v. Gopal D. Tirthani and Ors. (2003) 7 SCC 83, Satyabrata Sahoo and Ors. v. State of Orissa and Ors. (2012) 8 SCC 203 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 colleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 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 vacan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Ors. v. Dr. Ram Naresh Singh (1970) 1 SCC 573, 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 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 (1988) 4 SCC 284, this Court, in the cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M. Nilakanta Iyer AIR 1962 SC 633, Bhikhi Lal v. Tribeni AIR 1965 SC 1935, Master Construction Co. (P) Ltd. v. State of Orissa and Anr. AIR 1966 SC 1047, Dwaraka Das v. State of M.P. and Anr. (1999) 3 SCC 500 and Thirugnanavalli Ammal v. P. Venugopala Pillai AIR 1940 Mad 29 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 Ors. (2010) 9 SCC 437, 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 Ors. (2014) 2 SCC 62 would be seemly. In the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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