TMI Blog2014 (9) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 - Appeal allowed. - CIVIL APPEAL NOS. 8377-8378 OF 2014 (@ SLP (C) NOS.18137-18138 OF 2014) With CIVIL APPEAL NO.8376 OF 2014 (@ SLP (C) NO.18099 OF 2014) - - - Dated:- 1-9-2014 - F.M. Ibrahim Kalifulla and Shiva Kirti Singh, JJ. 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 Administr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RI 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Chhattisga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, 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 bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liest. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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