Chandigarh Administration Vs Jasmine Kaur .

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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 8377-8378 OF 2014 (@ SLP (C) NOS.18137-18138 OF 2014)

Chandigarh Administration & Another …Appellants

VERSUS

Jasmine Kaur & others …Respondents

With

CIVIL APPEAL NO.8376 OF 2014 (@ SLP (C) NO.18099 OF 2014)

Jessica Rehsi …Appellant

VERSUS

Chandigarh Administration & Ors. …..Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. Leave granted.

2. 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 Civil Appeal Nos. of 2014 (@ SLP(C) Nos.18137-18138 of 2014) with connected appeal

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Chandigarh Administration and the Government Medical College

& Hospital, Chandigarh. The Appellant in SLP(C) No.18099 of

2014 has filed the Special Leave Petition with the permission of

this Court, who was not a party, either before the Single Judge or

before the Division Bench of the Punjab and Haryana High Court.

3. Leave to file Special Leave Petition was granted in SLP(C)

No.18099/2014 considering the grievances expressed by the said

Appellant contending that in the event of the impugned orders of

the Division Bench being implemented, her chance of getting

admission to the course of M.B.B.S. for the academic year 2014-

15 under the Non-Resident Indian (NRI) category would be

impinged.

4. The present impugned orders of the Division Bench came

to be passed at the instance of the contesting Respondent in both

the Civil Appeals who was really aggrieved of a clause in the

prospectus issued by the Appellants in SLP(C) No.18137-18138 of

2014 (hereinafter called “the Chandigarh Administration and the

Government Medical College Chandigarh”), which according to

her was not valid. According to the contesting Respondent, she

being a Canadian Citizen is an NRI, that, therefore, she was

entitled to seek admission to the M.B.B.S. course in the NRI Civil Appeal Nos. of 2014 (@ SLP(C) Nos.18137-18138 of 2014) with connected appeal

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category quota but yet the definition of NRI as specified in the

prospectus issued by the Chandigarh Administration and the

Government Medical College, Chandigarh for the academic year

2014-15 would denude her of such status and, therefore, it was

liable to be struck down. The said definition, which was contained

in paragraph 2 of the prospectus of 2013-14, was as under:

“2. Eligibility and Merit for NRI seats (03 Seats) for MBBS Course:

In addition to the general conditions above, under the NRI Category 03 seats shall be filled up as per preference order of Category 1 and 2, given as under:-

First preference will be given to those NRI candidates who have ancestral background of Chandigarh (Category 1):

For ancestral background of Chandigarh, the grandparents/parents of the candidates should be resident of Chandigarh for a minimum period of 5 years at anytime since the origin of Chandigarh and should have immovable property in his/her name in Chandigarh for the last at least 5 years. A certificate to this effect is required from DC-cum-Estate Officer or Municipal Corporation of Chandigarh.

Second preference will be given to those NRI candidates who have ancestral background of States/UTs other than UT Chandigarh (Category 2). A certificate regarding ancestral background of the other State/UT from the competent authority is to be submitted in case of students with ancestral background of other States/UTs.

There will be no separate test/entrance test for the candidates applying for NRI/Foreign Indian Student. These candidates will have to obtain the eligibility &

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equivalence certificate for their qualifying examination from the Punjab University, Chandigarh. (as mentioned in general condition point no.f)”

5. The contesting Respondent claimed that her grand-father

retired as an Under Secretary in the year 1994, that when he was

in the services of the State of Chandigarh he resided in a

Government house from 1965 to 1984 and shifted to another

Government accommodation provided by the Chandigarh

Administration from 1984 to 1994, that third set of government

accommodation was provided by the Government to the father of

the contesting Respondent which was occupied till December

2003 and that thereafter, her father started living in the house of

her grandfather in Mohali. The contesting Respondent claimed

that she passed as a regular student from Mohali, that the

prescription contained in paragraph 2 of the prospectus providing

for eligibility and merit for NRI seats for M.B.B.S. course

stipulating that the grandparents/parents of the candidates

should be resident of Chandigarh for a minimum period of 5 years

at any time since the origin of Chandigarh and should have

immovable property in his/her name in Chandigarh for the last at

least 5 years and a certificate to that effect issued by DC- cum-

Estate Officer or Municipal Corporation of Chandigarh was not

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valid. It was on that footing that a challenge came to be made by

the contesting Respondent in the High Court in CWP No.14320 of

2013 (O&M). The learned Single Judge by order dated 27.09.2013

held that the impugned clause was totally impracticable, illegal,

illogical and declared as such. However, the learned Single Judge

went further into the question as to whether the contesting

Respondent can be granted admission at that stage when she

was already admitted into the B.D.S course in Chandigarh itself

and that when the contesting Respondent did not challenge the

eligibility criteria before submitting her application for the

M.B.B.S. course, ultimately held that the contesting Respondent

was not entitled to any relief for getting admission into M.B.B.S.

course.

6. The order of the learned Single Judge was not challenged

by the Chandigarh Administration or the Government Medical

College of Chandigarh. The contesting Respondent filed Letters

Patent Appeal in LPA No.2051 of 2013 as against that part of the

judgment by which she was denied admission to the M.B.B.S.

course. The Division Bench by its Order dated 13.01.2014 held

that when once the definition clause of NRI was found to be

invalid by the learned Single Judge, the contesting Respondent

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ought to have been granted admission into M.B.B.S. course. By

the time the Division Bench passed its order on 13.01.2014, since

the process of admission to the M.B.B.S. course had already

come to an end and all seats were filled up, the Division Bench

held that in order to do substantive justice to the contesting

Respondent and at the same time without causing any

disadvantage to the already admitted candidates under the NRI

category held that the contesting Respondent should, however,

be held to be entitled to admission in the M.B.B.S. course without

displacing any other candidate by stating that such admission

should be granted even if it required creation of an additional

seat and a direction to that effect was accordingly made.

7. 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

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Division Bench, insofar as it related to the grant of admission to

the contesting Respondent by creating an additional seat.

8. The Division Bench realizing the predicament in which

the Chandigarh Administration was placed, felt that the case of

the contesting Respondent was a rarest of rare one in which the

relief of admission to the M.B.B.S. course should be provided to

her by relying upon the decisions of this Court in Asha v. PT.

B.D. Sharma University of Health Sciences and others

reported in 2012 (7) SCC 389 and Priya Gupta v. State of

Chhattisgarh and others reported in (2012) 7 SCC 433 and

directed that the contesting Respondent be accommodated in the

academic session 2014-15 instead of 2013-14, with a condition

that she should pursue her M.B.B.S. course right from the

beginning without claiming any advantage of the course which

she undertook in the B.D.S. in the year 2013-14. The Division

Bench was conscious of the fact that by issuing such a direction

to be implemented in the academic session 2014-15, it would

result in reduction of one seat for the applicants of that Academic

Session under the NRI category.

9. The Chandigarh Administration and the Government

Medical College, Chandigarh were aggrieved by the said direction Civil Appeal Nos. of 2014 (@ SLP(C) Nos.18137-18138 of 2014) with connected appeal

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and preferred SLP(C) No.18137-18138 of 2014. The Appellant in

SLP(C) No.18099 of 2014 was aggrieved inasmuch as she is an

applicant of the Academic Session 2014-2015 and but for the

direction issued by the Division Bench under the impugned order

dated 21.02.2014, she would get the admission in the M.B.B.S.

course, as she is ranked in the sixth place. Because of the

admission of the contesting Respondent by way of

implementation of the order of the Division Bench, the said

Appellant has been deprived of the seat.

10. One other candidate who got himself impleaded in I.A.

Nos.2-3 of 2014 who supported the stand of the Appellant in

SLP(C) No.18099 of 2014 is in the fifth place of the merit list of

NRI category. According to the said newly added Respondent,

after the decision of the Division Bench dated 21.02.2014, a

corrigendum came to be issued by the Chandigarh Administration

wherein a provision has been made to the effect that one NRI

seat is reserved for Scheduled Caste NRI and that if it could not

be filled up by a Scheduled Caste NRI, then only the said seat

would revert to the Scheduled Caste Union Territory Resident

Pool. The grievance of the said impleaded Respondent is that if

the said corrigendum is given effect to, the total number of seats

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under NRI quota for the open category would get reduced to five

and as a sequel to it, the implementation of the direction of the

Division Bench under the orders impugned in these appeals

would directly affect the said newly added Respondent. It is,

however, submitted that the said newly added Respondent has

challenged the corrigendum issued on 19.06.2014 before the

High Court and that the same has also been stayed by the High

Court by order dated 09.07.2014. It is further submitted that after

granting stay, the High Court also issued directions for the

admission of newly added Respondent as per the list of

successful candidates declared in the proceedings of the

Chandigarh Administration and the Government Medical College,

Chandigarh dated 23.06.2014, in which the name of the said

impleaded Respondent found place at serial No.5.

11. 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

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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.

12. Mr. Nidhesh Gupta, learned Senior Counsel for the

Appellant in SLP(C) No.18099 of 2014 prefaced his submissions

by referring to the belated point of time at which the contesting

Respondent approached the High Court seeking for the relief and,

therefore, even though the learned Single Judge held that the

condition prescribed in paragraph 2 of the prospectus for the first

category of NRI quota was invalid, the relief was not rightly

granted. In fact, the entire submission of learned Senior Counsel

was mainly premised on the belated approach of the contesting

Respondent in seeking for the relief and that to knowing full well

that she was not entitled to seek for admission under the first

category of NRI. Based on the above submission, the learned

Senior Counsel by relying upon various decisions of this Court

contended that the principles laid down in those decisions

certainly did not entitle the contesting Respondent to get any

admission out of turn either in the relevant year in which she

applied, namely, 2013-14 or in the academic session 2014-15.

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According to the learned Senior Counsel, when the contesting

Respondent knew full well that she did not satisfy the criteria

prescribed in relation to category I of NRI quota as stipulated in

paragraph 2 of the prospectus, which was published in April

2013, for no comprehensible reason she waited almost till the

last date for filing the application, whereas in actuality, to

challenge the stipulation contained in the said paragraph on the

ground of invalidity, there was no necessity to file the application

nor wait for any response from the Chandigarh Administration or

the Government Medical College. The contention of the learned

Senior Counsel was on the footing that since the contesting

Respondent did not display the required promptness in

approaching the Court, the various decisions of this Court by

which it has laid down that the schedule relating to admission to

the professional colleges, should be strictly adhered to and

should not be deviated under any circumstances had to be

scrupulously followed, which thereby persuaded the learned

Single Judge not to grant the relief of admission to the college

after 30.09.2013. The learned Senior Counsel, therefore,

contended that this was not a case where any of the situations

wherein admission to a candidate was directed to be given for

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certain stated reasons by this Court after the expiry of the

prescribed admission scheduled or for any admission which was

directed to be given in the subsequent academic year could be

followed. In other words, the learned Senior Counsel contended

that there was no exceptional circumstance that was existing in

the case of the contesting respondent in order to deviate from

the schedule fixed in the matter of admission to the professional

courses, which was time and again directed to be adhered to

scrupulously by this Court without any deviation. In support of the

above submissions learned Senior Counsel relied upon the

decisions in Parmender Kumar and others v. State of

Haryana and others – (2012) 1 SCC 177, Madan Lal and

Others v. State of J & K and others - (1995) 3 SCC 486,

Ramana Dayaram Shetty v. International Airport Authority

of India and others - (1979) 3 SCC 489, Dr. Indu Kant v.

State of U.P. and others - (1993) Suppl. (2) SCC 71, Asha

(supra), Rajiv Kapoor and others v. State of Haryana and

others - (2000) 9 SCC 115, Aneesh D. Lawande and others v.

State of Goa and others - (2014) 1 SCC 554, Subhash

Chandra and another v. Delhi Subordinate Services

Selection Board and others - (2009) 15 SCC 458.

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13. As against the above submissions, Mr. Guru Krishna

Kumar, learned Senior Counsel who appeared for the contesting

Respondent in his submissions contended that the direction of

the Division Bench of the High Court has to be considered in light

of the principle of moulding of the relief when injustice was found.

According to him, a distinction must be drawn in the peculiar

undisputed facts of this case wherein, the challenge made by the

contesting Respondent was held to be valid in so far as the

prescription of the condition to seek admission under the first

category of NRI quota and, therefore, when the learned Single

Judge failed to grant the relief, the Division Bench took into

account the extraordinary circumstance which was prevailing in

the interest of justice and gave the directions without causing

any prejudice to other candidates of the relevant academic year,

as well as, in the present academic year where the merit of the

contesting Respondent was far superior to the candidates who

have been enlisted for admission under NRI quota of the first

category. It was then submitted that while issuing such

directions, the Division Bench ensured that there was no carry

forward nor any telescoping into the seats of the subsequent

year. The learned Senior Counsel submitted that the question of

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telescoping would arise only if the unfilled seats of the previous

year are to be accommodated in the subsequent year and that in

the case on hand, it did not relate to any unfilled seat of the

previous year and, therefore, the direction of the Division Bench

cannot be held to fall under the category of telescoping into the

seats of the subsequent year. The learned Senior Counsel

contended that the same principle will apply even to the carry

forward principle and, therefore, when none of the said

allegations are levelled against the contesting Respondent or

directed against the judgment of the Division Bench, the Civil

Appeal does not merit any consideration. The learned Senior

Counsel pointed out that the decision of the learned Single Judge

in having declared the relevant clause as invalid has become final

and neither the Chandigarh Administration nor the Government

Medical College or for that matter the Appellant in SLP(C)

No.18099 of 2014 have raised any challenge. According to him,

the only other aspect to be examined was the entitlement of the

contesting Respondent for M.B.B.S. seat under the NRI quota

under which category the said contesting Respondent secured

the highest marks based on which her rank can be fixed in the

third place in the order of merit for the year 2014-15 and,

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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.

14. In support of the above submissions, the learned Senior

Counsel relied upon the decisions reported in Faiza Choudhary

v. State of Jammu and Kashmir and another - (2012) 10 SCC

149, Madhu Singh (supra), Shafali Nandwani v. State of

Haryana and others - (2002) 8 SCC 152, Rajiv Kapoor

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(supra), Bhawna Garg & another v. University of Delhi &

others - (2012) 8 SCALE 504, Dwarkanath, Hindu Undivided

Family v. Income-Tax Officer, Special Circle, Kanpur and

another - (1965) 3 SCR 536, State of Punjab v. Salil Sabhlok

and others - (2013) 5 SCC 1, Miss Neelima Shangla, PH.D.

Candidate v. State of Haryana and others - (1986) 4 SCC

268 and Haryana Urban Development Authority and others

v. Sunita Rekhi - (1989) Suppl. 2 SCC 169.

15. Having heard learned counsel for the respective

contesting parties, namely, the Appellant in SLP(C) No.18099 of

2014 and the contesting Respondent in both the Civil Appeals

who is the contesting Respondent, since heavy reliance was

placed upon by both the respective counsel on the earlier

decisions of this Court to support their respective contentions

that the case of the contesting Respondent would either fall

under one or the other principles laid down in those decisions or

that the facts of those cases are clearly distinguishable, we feel it

appropriate to refer to the relevant principles contained in those

decisions before venturing to express our decision as regards the

correctness or otherwise of the direction issued by the Division

Bench in favour of the contesting Respondent.

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16. In the decision reported in Parmender Kumar (supra),

it was held that once the process of selection of candidates for

admission had commenced on the basis of the prospectus, no

change could thereafter be effected by government orders to

alter the provisions contained in the prospectus. In the decision

reported in Madan Lal (supra), it was held that if a candidate

takes a calculated chance and appears at the interview then only

because the result of the interview is not palatable to him he

cannot turn around and subsequently contend that the process of

interview was unfair and the selection committee was not

properly constituted. By relying upon the above referred to

decisions, the contention raised on behalf of the Appellant in

SLP(C) No.18099 of 2014 was that the condition relating to the

NRI quota under the first category was prevalent at the time

when the contesting Respondent submitted her application and

having submitted the said application and participated in the

selection process, merely because the said clause was

subsequently found to be not valid, would not, on that ground,

validate the contesting respondent’s right to claim admission.

17. In fact, the other decisions, namely, Om Prakash

Shukla v. Akhilesh Kumar Shukla and others - (1986) Suppl.

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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.

18. Mr. Nidhesh Gupta, learned Senior Counsel, therefore,

contended that the effect of the directions of the Division Bench

was that the contesting Respondent was to be admitted into the

M.B.B.S. course in the academic year 2014-15 without competing

with the claims of the other candidates who applied for the said

course in the said academic year. It was also contended that

even in the academic year 2013-14, she did not compete along

with the other similarly placed candidates but was allowed to

participate in the counselling pursuant to the interim direction

issued by the learned Single Judge during the pendency of the

writ petition and that to was subject to the outcome of the writ

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petition. The learned senior counsel, therefore, contended that

the contesting Respondent was not entitled for any equitable

relief. The learned Senior Counsel, therefore, contended that the

direction of the Division Bench cannot be sustained.

19. In this context, reliance was placed upon the three-Judge

Bench decision of this Court reported in Rajiv Kapoor (supra),

wherein in paragraph 16 this Court has held as under:

“16. The dispute relates to the academic session of the year 1997 and we are in 2000. To utilise the seats meant for the next academic year by accommodating those candidates of 1997 vintage would amount to deprivation of the legitimate rights of those who would be in the fray of contest for selection, on the basis of their inter se merit for the session of 2000, taking into account the performance of the candidates of 1997 in that year……”

20. It was submitted that the selection of candidates should

be based on the inter se merits of the candidates of that year

and, therefore, entertaining the claim of a candidate who applied

in any previous year would cause grave injustice, as those who

were not in the fray of competence would thus be permitted to

compete with the lawfully eligible applicants of the subsequent

years, which would certainly cause serious prejudice to those

candidates.

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21. To the very same effect was the decision reported in

Neelu Arora (Ms) and another v. Union of India and others

- (2003) 3 SCC 366, which was also by a three Judge Bench of

this Court. The learned Senior Counsel for the Appellant in SLP(C)

No.18099 of 2014 sought to distinguish the decision relied upon

by the Division Bench reported in Asha (supra) by pointing out

that the said decision turns upon the special facts of that case,

where this Court reached a finding of fact that the candidate

concerned was not at fault and the whole fault was on the

authorities concerned in not allowing the said candidate to

participate in the counselling for admission to the M.B.B.S. course

in spite of the fact that her merit as compared to other

candidates who were granted admission was far superior and that

she approached the Court for the redressal of her grievance at

the earliest. The learned Senior Counsel by drawing our attention

to paragraphs 32, 34 and 37 of the decision submitted that the

said decision cannot be simply followed as a matter of course as

has been done by the Division Bench in the case on hand. The

learned Senior Counsel also once again brought to our notice the

manner in which the contesting Respondent herein approached

the Court, made the application and filed the writ petition after a

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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.

22. The recent decision of this Court reported in Aneesh D.

Lawande (supra) was relied upon by the learned counsel for the

Appellant wherein this Court has culled out two main principles to

be kept in mind in such cases. In paragraph 30, the said

principles have been laid down and in paragraph 35, this Court

has reiterated as to why it will not be proper to issue directions to

adjust the students of one academic year in any subsequent

academic year by pointing out that such a course would affect

the other meritorious candidates who would be aspiring to get

admissions in the subsequent years. It was stated that for

bringing equity to some in praesenti, this Court cannot afford to

do injustice to others in future. The said paragraph 35 can be

usefully referred to which reads as under:

“35. The next submission relates to the issue whether the students who cannot be adjusted in the seats of All-India quota that have been transferred to the State quota of this year can be adjusted next year. During the course of hearing though there was some debate with regard to giving of admissions to such students in the academic year 2014-2015, Mr. Amit Kumar,

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learned counsel for the Medical Council of India, has seriously opposed the same and, thereafter, has cited the authorities which we have referred to hereinbefore. We are bound by the said precedents. In certain individual cases where there is defective counselling and merit has become a casualty, this Court has directed for adjustment in the next academic session but in the case at hand, it is not exactly so. Though we are at pains, yet we must express that it will not be appropriate to issue directions to adjust them in respect of the subsequent academic year, for taking recourse to the same would affect the other meritorious candidates who would be aspirant to get admissions next year. For doing equity to some in praesenti we cannot afford to do injustice to others in future. Therefore, the submission stands repelled.”

(underlining is ours)

23. The decision relied upon by the contesting Respondent

reported in Faiza Choudhary (supra), rather than supporting

the case of the said contesting Respondent only clarifies the legal

position without any ambiguity. The principles have been

succinctly explained in paragraphs 14 and 15 to the effect that

there cannot be any telescoping of unfilled seats of one year with

the permitted seats of the subsequent year. It was also

highlighted that a medical seat has life only in the year it falls

that to only till the cut-off date fixed by this Court i.e. 30th

September in the respective year and carry forward principle is

unknown to the professional courses like medical, engineering,

dental etc. It was also stated that there is no power with the Civil Appeal Nos. of 2014 (@ SLP(C) Nos.18137-18138 of 2014) with connected appeal

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Board to carry forward a vacancy to a succeeding year and that if

the Board or the Court indulges in such an exercise, in the

absence of any rule or regulation, that will be at the expense of

other meritorious candidates waiting for admissions in the

succeeding years. The principles laid down in the said decisions

have to be, therefore, understood in the abovesaid manner and

those principles can be applied to the facts of this case while

examining the correctness of the impugned judgment of the

Division Bench.

24. 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

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take place in order to ensure that no admission can be granted

after the scheduled date, essentially should be the date for

commencement of the course. By stating the said principle in no

uncertain terms, this Court has reiterated the position that there

should be strict adherence to the schedule of dates relating to

admission and there cannot be any deviation in adhering to the

said schedule.

25. Mr. Guru Krishna Kumar, learned Senior Counsel

appearing for the contesting Respondent submitted that the

direction issued by the Division Bench to admit the contesting

respondent in the academic session 2014-15, does not in any

way violate the principles laid down in the decision reported in

Aneesh D. Lawande (supra) wherein, in paragraph 30 this

Court has laid down the principles to the effect that there cannot

be direction for increase of seats or telescoping of unfilled seats

of one year with the permitted seats of the subsequent years.

According to the learned Senior Counsel, by implementing the

directions of the Division Bench, there is not going to be an

increase of the seats for the academic session 2013-14 and since

the admission of the Respondent would be based on her merits in

the academic session 2014-15, the same will not amount to

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telescoping of unfilled seats of the previous year. We will

examine the correctness of the said submission while dealing

with the respective submissions of the learned Senior Counsel.

26. The learned Senior Counsel also submitted that the

decision reported in Rajiv Kapoor (supra) is distinguishable

since in that case this Court was concerned with the candidates

of the year 1997 whose admissions were directed to be made in

the academic session 2000. The learned Senior Counsel,

therefore, contended that having regard to the enormous time

gap between 1997 and 2000, the principles stated therein,

cannot be applied to the case of the contesting Respondent. The

learned Senior Counsel would, therefore, contend that as we are

concerned with the case of the contesting Respondent whose

admission related to the immediate preceding year, namely,

2013-14 and whose legitimate rights were unlawfully denied in

that year, the direction for her admission in the immediate next

academic session 2014-15 and that to based on her merits

following the decision of this Court in Asha (supra) was well

justified.

27. The learned Senior Counsel, therefore, contended that

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Court would not in any way dilute the decision in Asha (supra)

on the principles of per incuriam where the facts of the three

Judge Bench decision are clearly distinguishable.

28. While strongly relying upon the decision reported in

Asha (supra), the learned Senior Counsel after referring to the

question framed in paragraph 4(c) wherein this Court posed the

question as to what relief the Courts can grant and to what

extent they can mould it while ensuring adherence to the rule of

merit, fairness and transparency in the matter of admission in

terms of rules and regulations, drew our attention to paragraphs

25 and 32. In paragraph 25, this Court has held as under:

“25. Strict adherence to the time schedule has again been a matter of controversy before the courts. The courts have consistently taken the view that the schedule is sacrosanct like the rule of merit and all the stakeholders including the authorities concerned should adhere to it and should in no circumstances permit its violation. This, in our opinion, gives rise to dual problem. Firstly, it jeopardizes the interest and future of the students. Secondly, which is more serious, is that such action would be ex facie in violation of the orders of the court, and therefore, would invite wrath of the courts under the provisions of the Contempt of Courts Act, 1971. In this regard, we may appropriately refer to the judgments of this Court in Priya Gupta, State of Bihar v. Sanjay Kumar Sinho, Medical Council of India v. Madhu Singh, GSF Medical and Paramedical Assn. v. Assn. of Self Financing Technical Institutes and Christian Medical College v. State of Punjab.”

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29. In paragraph 32, the exceptional circumstances which

can be examined have been quoted in order to ensure that when

any deviation is to be made from the normal rule, such similar

principles should be kept in mind by the Courts. In paragraph 32,

it was highlighted that in the rarest of rare case or exceptional

circumstances, the Courts may have to mould the reliefs and

make an exception to the cut-off date of 30th September but in

those cases the Court must first return a finding that no fault was

attributable to the candidate, that the candidate pursued her

rights and legal remedies expeditiously without any delay and

that there was no fault on the part of the authorities and that

there was no apparent breach of the rules, regulations and

principles in the process of the selection and grant of admission.

It was also highlighted that where denial of admission would

violate the right to equality and equal treatment of the candidate,

it would be completely unjust and unfair to deny such exceptional

relief to the candidate. By relying upon the said part of the

decision, the learned Senior Counsel submitted that the case of

the contesting Respondent was squarely covered by the principle

of an exceptional case and, therefore, the direction of the

Division Bench was well justified. The learned Senior Counsel also

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relied upon the decisions in Dwarkanath (supra) and Salil

Sabhlok (supra) on the principle of moulding of the relief to be

made. Reliance was placed upon the decisions in Miss Neelima

Shangla (supra) and Haryana Urban Development

Authority (supra) to support the stand that a candidate who

approached the Court diligently deserved different treatment.

30. Having noted the various decisions relied upon by the

Appellant in SLP (C) No.18099 of 2014 and the contesting

Respondent, we are able to discern the following principles:

(1) The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted. (2) 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

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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.

(3) 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. (4) When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non-selection expeditiously and promptly, then the Courts cannot grant any relief to the candidate in the form of securing an admission. (5) If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non- selection, he/she cannot subsequently turn around and contend that the process of selection was unfair. (6) If it is found that the candidate acquiesces or waives his/her right to claim relief before the Court promptly, then in such cases, the legal maxim vigilantibus non dormientibus aequitas

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subvenit, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate. (7) No relief can be granted even though the prospectus is declared illegal or invalid if the same is not challenged promptly. Once the candidate is aware that he/she does not fulfil the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility. (8) There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year i.e., carry forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such circumstances, the Courts cannot grant any relief to the candidate but it is up to the candidate to re-apply next academic year. (9) There cannot be at any point of time a direction given either by the Court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India. (10) Each of these above mentioned principles should be applied based on the unique and distinguishable facts and circumstances of each

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case and no two cases can be held to be identical.

31. Having culled out the above broad principles from the

various decisions of this Court and before examining the

correctness of the judgments impugned in these appeals, it is

necessary to note down certain vital facts relating to the case of

the contesting Respondent in order to find out whether there was

any scope at all for granting the relief as has been done by the

Division Bench by the impugned orders. Admittedly, the

contesting Respondent was not eligible under the first category of

the NRI quota prescribed under paragraph 2 of the prospectus for

academic session of 2013-14. She was, however, eligible under

the second category of NRI quota. At this juncture, it must be

stated that under the second category though her name was first

in the list, as the eligible candidates in the first category got

selected for all the seats under NRI quota, she did not get the

opportunity. The prospectus was issued by the Chandigarh

Administration and the Government Medical College as early as in

the month of April, 2013. The contesting Respondent filed the

application before the last date, namely, 24.06.2013 claiming

admission under the first category or in the alternate, in the

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second category. The Chandigarh Administration, by letter dated

02.07.2013, informed the contesting Respondent that unless she

enclosed a certificate issued by the DC-cum-Estate Officer or

Municipal Corporation of Chandigarh about the fulfillment of the

condition relating to ownership of immovable property, her

application cannot be considered under the first category of NRI

quota. The writ petition was filed by her on 05.07.2013. A list of

eligible candidates was finalized on 12.07.2013. The first

counselling was scheduled on 19.07.2013 insofar as NRI

candidates were concerned. There was an interim order of the

High Court passed on 29.07.2013 directing the administration to

receive the contesting Respondent’s application under the first

category of NRI quota, making it clear that at a later point of

time, she cannot claim any equity on that basis. Subsequently, by

another order dated 08.08.2013, the High Court directed the

administration to permit her to participate in the second

counselling. The writ petition was ultimately disposed of by the

learned Single Judge on 27.09.2013. As was noted earlier, the

learned Single Judge while upholding the challenge made by the

contesting Respondent as to the validity of the condition imposed

in order to be eligible to fall under the first category of NRI quota,

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declined to grant any relief to the contesting Respondent holding

that she failed to challenge the eligibility criteria before

submitting her application for M.B.B.S. course after taking note of

the fact that she secured admission in the Dental course.

32. After the learned Single Judge delivered the judgment on

27.09.2013, the contesting Respondent filed the Letters Patent

Appeal on 15.11.2013 and after rectification of certain defects it

was re-filed on 06.12.2013. The Letters Patent Appeal was heard

by the Division Bench and was disposed of by order dated

13.01.2014. As the direction issued by the Division Bench for

creation of an additional seat could not be complied with by the

Chandigarh Administration and the Government Medical College

on the ground that the MCI declined to grant permission for

creation of an additional seat, at the instance of Chandigarh

Administration, the review came to be filed in which the present

impugned order came to be passed by the Division Bench on

21.02.2014.

33. When we analyze the above sequence of events, we find

that the contesting Respondent knew full well when the

prospectus was issued in April 2013 that she did not fulfill the

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quota as prescribed in paragraph 2 of the prospectus. But yet

there was no immediate challenge to the said provision before

the High Court. Knowing full well that she was ineligible under the

said category after waiting almost till the last date for filing the

application, namely, 24.06.2013, she filed the application on

21.06.2013 claiming admission under the first category and

thereafter, waited till the Chandigarh Administration called upon

her to fulfill the criteria of submitting a certificate for proof of

ownership of immovable property by the DC-cum-Estate Officer,

which she could not have produced even as on April, 2013.

Therefore, the contesting Respondent cannot be heard to say

that the filing of the writ petition on 05.07.2013, challenging the

validity of the prescription contained in paragraph 2 of the

prospectus relating to the first category of NRI quota was made

diligently or atleast within a reasonable time. When we test the

said conduct of the contesting Respondent in not having

approached the Court at the appropriate time in challenging the

said provision, it will have to be stated that the Chandigarh

Administration and the Government Medical College having

received the applications for admissions for different categories

including the category under the NRI quota was processing the

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applications segregating the different categories and by the time

the writ petition filed on 05.07.2013, the process of finalizing the

eligible candidates was also nearing completion and by

12.07.2013 the same was also concluded. If the said factor is

noted, it should be stated that the conduct of the contesting

Respondent in having fixed her own time limit for approaching

the Court, in particular, with reference to the challenge to the

eligibility criteria with which she had every grievance right from

the very first date when the prospectus was issued in April, 2013,

it will have to be stated that there was total lack of diligence on

the part of the contesting Respondent in her decision to work out

her remedies in the Court of law.

34. Keeping the said factor in mind, when we examine the

subsequent development that had taken place, it is true that the

relevant criteria prescribed for claiming admission under the first

category of NRI quota was held to be wholly unreasonable and on

that ground the learned Single Judge struck out the said clause.

Thereafter, since the learned Single Judge found that there was

total lack of diligence displayed on the part of the contesting

Respondent, he expressed his inability to grant the relief to the

contesting Respondent. After the said decision was rendered by

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the learned Single Judge on 27.09.2013, when we analyze the

subsequent conduct of the contesting Respondent, we find that

she applied for the copy of the judgment of the learned Single

Judge on 19.10.2013 and the Letters Patent Appeal came to be

filed only on 15.11.2013. The Letters Patent Appeal was defective

and it was re-filed only on 06.12.2013. Ultimately, the appeal

came before the Division Bench on 13.01.2014, when the Division

Bench took the view that the learned Single Judge ought to have

moulded the relief and on that footing directed that the

Chandigarh Administration to create a seat for admitting the

contesting Respondent to the M.B.B.S. course. Thereafter, by the

impugned order dated 21.02.2014, the Division Bench held that

when creation of the seat was impossible of compliance as the

MCI was not inclined to grant permission, issued a direction that

the contesting Respondent should be admitted in the academic

year 2014-15 in the NRI quota meant for admission.

35. When we note the above dates, it will have to be stated

that the compliance of the direction of the Division Bench would

certainly cause serious prejudice to the Appellant in SLP(C)

No.18099 of 2014, as the said Appellant is stated to have been

ranked in the sixth place, i.e. in the sixth vacancy meant for NRI

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category candidates for admission for the academic year 2014-

15. It is common ground that the contesting Respondent was not

an applicant for the year 2014-15 under the NRI category. If we

consider the claim of the contesting Respondent as to whether

her claim can be brought under the category of exceptional case,

the various factors noted above, namely, failure to challenge the

relevant provision immediately after the issuance of the

prospectus in the April, 2013 would loom large before the Court.

There was no justifiable reason stated on behalf of the contesting

Respondent as to why the challenge was not made promptly

knowing full well that the said provision disentitled her to claim

under the said category. It is needless to state that if the

challenge had been made diligently and immediately after the

issuance of the prospectus in April, 2013 itself, it would have

enabled the Court to examine the said challenge at the earliest

point of time and in the event of finding good grounds to accept

the challenge, there would have been no difficulty for the Court

to issue appropriate directions not only for accepting the

application of the contesting Respondent under the first category

of NRI quota, but in the event of her scoring the requisite marks

on merits, the grant of admission could have been worked out

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without infringing the rights of any other candidate under the

said category. It is relevant to note that the invalidity of the

relevant clause as declared by the learned Single Judge, which

has become final and conclusive, would have benefitted all other

candidates who are similarly placed like that of the contesting

Respondent, had it been challenged at the earliest point of time,

as that would have provided adequate scope for considering the

relative merits of all those candidates who are similarly placed

like that of the contesting Respondent.

36. The time gap between April, 2013 and July, 2013 nearly

three months is certainly a long period as the process of

admission to professional courses are regulated by the Selection

Authorities such as the Medical Council of India, All India Council

for Technical Education, National Council for Teacher Education,

State Government Authorities as well as the concerned affiliated

universities each one of whom have got to play their

corresponding roles in regulating the admissions and also

monitoring the subsequent course of study for the purpose of

ultimately granting the degrees of successful candidates after the

completion of the course. As the process being a continuous one,

any delay in working out the remedies promptly will have to be

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viewed very seriously or otherwise the same would impinge upon

the rights of other candidates apart from causing unnecessary

administrative hardship to the regulatory bodies. When the said

factors are kept in mind while analyzing the case on hand, it will

have to be stated that even though the contesting Respondent

was successful in her challenge to the concerned provision

relating to the NRI quota in the prospectus of 2013-14, on that

sole ground it cannot be held that every other factor should be

kept aside and her claim for admission to M.B.B.S. course should

be ensured by issuing directions unmindful of the infringement of

rights of other candidates and the other statutory bodies. We are,

therefore, of the view that the conduct of the contesting

Respondent in having fixed her own time limit in making the

challenge, namely, after three months of the issuance of the

prospectus and thereafter, in filing the Letters Patent Appeal

which process resulted in the Division Bench in deciding the

appeal only in the month of January, 2014 by which time the

substantial part of the academic year had been crossed, the

question remained as to whether the Division Bench was justified

in directing the admission of the contesting Respondent to the

M.B.B.S. course in the academic year 2014-15 by merely stating

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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.

37. The Division Bench did rely upon the decision of this

Court in Asha (supra) and Priya Gupta (supra). Subsequently,

when it came to light that the direction for admission by creation

of an additional seat was impossible of compliance, the impugned

order came to be issued by the Division Bench on 21.02.2014 by

which time half of the academic year had almost come to an end.

In our considered view, at least at that stage since the process of

issuance of the prospectus for 2014-15 was on the anvil, the

contesting Respondent ought to have been allowed to work out

and claim under the NRI quota in the said academic year. Since

by the order of learned Single Judge the restriction in claiming

admission under the first category of NRI quota having been

removed, there would have been no impediment for the

contesting Respondent to apply under the said category and

staked her claim along with the other competing candidates. It

was unfortunate that the case of the contesting Respondent was

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considered to be rarest of rare case, which in our considered

opinion, does not have the required support. As was noted by us

earlier, the contesting Respondent did not display due diligence

in making a challenge to the relevant clause relating to first

category of NRI quota of the 2013-14 prospectus. Further, as she

had already secured a seat in the Dental course and the creation

of an additional seat was consistently not encouraged by this

Court, the direction for creation of an additional seat in the month

of January, 2014 for the academic year 2014-15 by the Division

Bench could not be implemented. Therefore, the ultimate

direction of the Division Bench in having directed the Chandigarh

Administration and the Government Medical College to provide

admission to the contesting Respondent without her participation

in the admission process of the year 2014-15 and thereby

causing prejudice to the rightful claims of the candidates who

validly made their applications in the said academic year cannot

be countenanced as that would amount to setting up a bad

precedent in all future cases.

38. As time and again such instances of claiming admission

into such professional courses are brought before the Court, and

on every such occasion, reliance is placed upon the various

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decisions of this Court for issuing necessary directions for

accommodating the students to various courses claiming parity,

we feel it appropriate to state that unless such claims of

exceptional nature are brought before the Court within the time

schedule fixed by this Court, Court or Board should not pass

orders for granting admission into any particular course out of

time. In this context, it will have to be stated that in whatever

earlier decisions of this Court such out of time admissions were

granted, the same cannot be quoted as a precedent in any other

case, as such directions were issued after due consideration of

the peculiar facts involved in those cases. No two cases can be

held to be similar in all respects. Therefore, in such of those

cases where the Court or Board is not in a position to grant the

relief within the time schedule due to the fault attributable to the

candidate concerned, like the case on hand, there should be no

hesitation to deny the relief as was done by the learned Single

Judge. If for any reason, such grant of relief is not possible within

the time schedule, due to reasons attributable to other parties,

and such reasons are found to be deliberate or mala fide the

Court should only consider any other relief other than direction

for admission, such as compensation, etc. In such situations, the

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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.

39. We are, therefore, convinced that the impugned orders of

the Division Bench in having issued such a direction cannot be

approved by this Court. When we apply the various principles

which we have culled out to the case on hand, we find that each

one of the principle has been violated by the contesting

Respondent. As stated by us earlier, there was total lack of

diligence displayed by the contesting Respondent right from the

stage when the submission of the application was made. We have

noted that the prospectus which was issued in April, 2013 and

the offending clause in the prospectus was not challenged

promptly while knowing full well that under the said clause the

candidate was not eligible, but yet for reason best known to her,

an application was filed and that to three days prior to the last

date notified for submission of such application. There was no

reason, much less justifiable reason, for not challenging the

relevant clause before the filing of the application. There was no

reason for the contesting Respondent to wait for any reply from

the Chandigarh Administration. After the order of the learned

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Single Judge also, the contesting Respondent took her own time

to approach the Division Bench for preferring the Letters Patent

Appeal. A cumulative effect of the conduct of the contesting

Respondent has only resulted in disentitling her to claim any

equitable relief prejudicial to the interest of other eligible

candidates of the year 2014-15 and whose rights came to be

crystallized based on the process of selection made for the

academic year 2014-15. If the direction of the Division Bench in

the above stated background is allowed to operate, it would

amount to paying a premium for the contesting Respondent’s

inexplicable delay in working out her remedies.

40. We are, therefore, convinced that such a recalcitrant

attitude displayed by the contesting Respondent should not be

encouraged at the cost of the rights of the other candidates for

the year 2014-15 against whom the contesting Respondent had

no axe to grind. Therefore, while setting aside the orders

impugned in these appeals, we issue the following directions:

(11) Since the contesting Respondent pursued her B.D.S. course till this date though she has secured her admission pursuant to the direction of the Division Bench to M.B.B.S. course in the year 2014-15 and as we have found no

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justification for the direction issued by the Division Bench which we are setting aside, we direct the Chandigarh Administration and the Government Medical College to restore the contesting Respondent’s admission to the B.D.S. course of the academic year 2013-14 and allow her to pursue the said course, if she so chooses. (12) The admission granted to the contesting Respondent in the M.B.B.S. course of 2014-15 under the NRI category stands cancelled and the selection of candidates who applied for the said course in the said category in the academic year 2014-15 shall be finalized by the Chandigarh Administration and the Government Medical College and on that basis proceed with the admission as per the schedule. (13) As far as the claim relating to the impleaded Respondent in I.A. No.2-3 of 2014 is concerned, since his claim is subject matter of consideration before the High Court, the same would be subject to the outcome of those proceedings which is left open for consideration by the High Court.

41. The interim direction issued by this Court on 11.07.2014

is vacated and the seats left vacant in B.D.S. and M.B.B.S.

courses shall be filled up on merits.

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42. With the above directions, the appeals filed by

Chandigarh Administration and the Government Medical College

as well as by Jessica Rehsi stand allowed.

…...…..……….…………………………...J. [Fakkir Mohamed Ibrahim Kalifulla]

………………. ………………………………J.

[Shiva Kirti Singh]

New Delhi; September 01, 2014.

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