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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 11974 OF 2016 (arising out of  S.L.P. (Civil) No. 27906 of 2016)

Neeraj Kumar Sainy and Ors. …Appellant(s)

Versus

State of U.P. and Ors. …Respondent(s)

J  U  D  G  M  E  N  T

Dipak Misra, J.

The appellants invoked the jurisdiction of the High Court

of Judicature at Allahabad, Lucknow Bench, Lucknow in Writ

Petition  No.  21038  of  2016  for  issue  a  writ  of  mandamus

commanding  the  opposite  parties,  namely,  State  of  Uttar

Pradesh, King George’s Medical University, Coordinator, U.P.

Post  Graduate  Medical  Entrance  Examination,  2016

(UPPGMEE,  2016)  and  Medical  Council  of  India  (MCI)  to

complete  the  process  of  counselling  by  holding  the  second,

third and mop-up round of counselling as prescribed in the

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Information Brochure issued for the UPPGMEE, 2016 and to

ensure that no seats in any of the courses advertised in the

Information  Brochure  are  allowed  to  go  vacant  for  the

academic year 2016-2017.

2. The facts which are requisite to be stated are that the

appellants had appeared in the written test of UPPGMEE-2016

and after being declared successful, they participated in the

first round of counselling which was held from 04.04.2016 to

08.04.2016.  The  candidates  who  got  selected  in  the  said

counselling joined their respective seats allotted to them.   The

case of the appellants before the High Court was that as per

the  Information  Brochure,  minimum  three  round  of

counsellings are to be held and in case sufficient number of

seats  are  left  unallotted  at  the  end  of  third  round  of

counselling, then a mop-up round of allotment is required to

be organized on the notified date after giving due publicity by

the Director General of Medical Education and Training, U.P.

to ensure that there is no loss of PG seats in the academic

year  2016-2017.   It  was  urged  before  the  High  Court  that

terms and conditions for participating in the mop-up  round of

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counselling are that (i) candidates who are admitted/allotted

but not joined/resigned in any seat in Uttar Pradesh will not

be eligible for participation; (ii) any candidate who had taken

admission in any PG course in any medical college in India

also  will  not  be  eligible  for  participation;  (iii)  the  candidate

must present himself/herself with all original documents, and

(iv) no request for re-allotment of seats already allotted in the

first and second round will be entertained.

3. It was the stand of the appellants before the High Court

that it is obligatory on the part of the respondents to give effect

to the postulates contained in the Information Brochure and

hence,  the  authorities  were  under  obligation  to  hold  the

second and third round of counselling as well as the mop-up

round of  counselling,  but they had failed to  do so by their

erroneous  understanding  of  the  judgment  and  order  dated

16.08.2016 in the case of State of Uttar Pradesh and others

v.  Dinesh Singh Chauhan1.  It  was further  contended that

there was infringement of valuable rights of writ petitioners as

they  had  been  denied  admission  to  the  institution  of  their 1

(2016) 9 SCC 749

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choice in accordance with merit.  It was canvassed with vigour

that such an unacceptable situation had occurred, for despite

the  seats  being  lying  vacant  in  several  medical  colleges  no

steps were being taken to fill them up.  Citing an example, it

was put forth that for  the academic session 2013-2014 the

counselling  was  done  in  the  month  of  August  and  the

admissions  were  given  to  the  meritorious  candidates  and,

therefore, it was necessary to issue appropriate directions to

fill up the unfilled seats.

4. The stand of the appellants before the High Court was

resisted by the respondent No. 2 therein – Director General of

Medical Education and Training, Uttar Pradesh, contending,

inter  alia,  that  seats  had  remained  vacant  because  of  the

directions of the Supreme Court in Mridul Dhar (Minor) and

another v. Union of India and others2  wherein stress was

laid for  adherence to the time schedule and the categorical

command that there should not be midstream admissions.  It

was further held that carrying forward unfilled seats of  one

academic year to another academic year was not permissible. 2

(2005) 2 SCC 65

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Reliance was also placed on the authority in Priya Gupta v.

State of Chhattisgarh and others3 wherein it was directed

that the concerned authority was bound to fill up the seats in

accord with the time schedule stricto sensu and any violation

thereof is to be seriously viewed.

5. It was also highlighted by the contesting respondent that

after the interim order passed by this Court on 12.05.2016 the

merit  list  was  drawn  and  counselling  was  carried  out  by

30.05.2016  as  it  was  the  last  date  fixed  by  the  MCI  for

completion  of  admission  process.  It  was  highlighted  that

certain seats are lying vacant on ground of non-joining of the

candidates  and  no  further  steps  could  be  taken.  Similar

arguments were canvassed by the State of Uttar Pradesh and

the Medical Council of India.

6. The High Court adverted to the factual background which

was to the effect that a policy decision was taken by the State

of Uttar Pradesh on 16.01.2014 whereby 30% of postgraduate

seats  had  been  reserved  for  those  candidates  who  had

completed  three  years  service  in  the  rural  areas  and  in 3

(2012) 7 SCC 433

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pursuance  of  the  same,  the  Government  Order  dated

28.02.2014 was issued to  engage  Provincial  Medical  Health

Services Cadre members to go for higher education. In the said

order, it was also provided that those members of Provincial

Services  who  had  served  in  far  remote  backward  areas  in

respective Community Health Centre/Primary Health Centre

would  get  the  benefit.   After  the  said  policy  decision,  the

Examining  Body  issued  advertisement  and  therein  the

eligibility for admission had been provided for and as per the

same only those incumbents were eligible to apply who had

served for a period of three years in remote areas.  

7. The  said  order  was  challenged  in  Writ-C  No.  1380  of

2015 titled Dr. Surya Kant Ojha and others v. State of U.P.

and  others4 before  the  High  Court  along  with  connected

matters. The High Court vide order dated 07.04.2016 quashed

the Government Order dated 28.02.2014 with a direction that

admissions in postgraduate degree courses be made strictly on

the  basis  of  merit  from  amongst  the  candidates  who  had

4

2016 SCC OnLine All 622

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obtained  requisite  minimum  marks  in  the  examination  in

question so prescribed by the MCI.

8. As  the  factual  matrix  would  uncurtain,  the  matter

travelled  to  this  Court  in  Dinesh  Singh  Chauhan (supra)

wherein this Court took note of  the authority in  Sudhir N.

and  others  v. State  of  Kerala  and  others5,  referred  to

Regulation  9  of  the  Medical  Council  of  India  Postgraduate

Medical  Education  Regulations,  2000  which  deals  with  the

method  of  selection  of  candidates  for  admission  to

postgraduate courses and also noted the insertions made in

Regulation 9(1)(b) and Regulation 9(2)(d).  The proviso added

after  Regulation  9(2)(d)  in  terms  of  Gazette  Notification

published on17.11.2009 reads as follows:-

“Further provided that in determining the merit and the  entrance  test  for  postgraduate  admission weightage  in  the  marks  may  be  given  as  an incentive @ 10% of the marks obtained for each year in  service  in  remote  or  difficult  areas  up  to  the maximum of 30% of the marks obtained.”  

5

(2015) 6 SCC 685

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9. The Court noted the submissions of the learned counsel

appearing for the parties and directed as follows:-  

“In  the  circumstances,  we  direct  that  the  State Government shall as expeditiously as possible revise and redraw the merit list of the candidates keeping in view Regulation 9 of the Medical Council of India Postgraduate Medical Education Regulations, 2000 and giving to the eligible candidates such weightage as  may  be  due  to  them  for  rendering  service  in notified  rural  and/or  difficult  areas  and  to  grant admission to the candidates found suitable for the same on the basis of such redrawn merit list. This exercise  shall  be completed before  30-5-2016, the last date fixed for granting of admission. The entire exercise  so  conducted  shall,  however,  remain subject to the outcome of these proceedings”.

10. The  matter  was  finally  decided  on  16.08.2016.    The

three-Judge  Bench  in  Dinesh  Singh  Chauhan (supra)

referred to the decisions in AIIMS Students’ Union v. AIIMS

and others6, State of M.P. and others v. Gopal D. Tirthani

and  others7,  Satyabrata  Sahoo  and  others  v.  State  of

Orissa and others8 and  Sudhir N.  (supra)  and ruled that

Regulation 9 per se makes no distinction between Government

6

(2002) 1 SCC 428 7

(2003) 7 SCC 83 8

(2012) 8 SCC 203

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and  non-Government  colleges  for  allocation  of  weightage  of

marks  to  in-service  candidates.  Instead,  it  mandates

preparation  of  one  merit  list  for  the  State  on  the  basis  of

results in NEET and further, regarding in-service candidates,

all it provides is that the candidate must have been in-service

of a Government/public Authority and served in remote and

difficult  areas  notified  by  the  State  Government  and  the

Competent Authority  from time to time.   The Court  further

held  that  the  authorities  are  obliged  to  continue  with  the

admission  process  strictly  in  conformity  with  Regulation  9.

Elucidating the proposition, the Court expressed thus:-

“The  fact  that  most  of  the  direct  candidates  who have secured higher marks in the NEET than the in-service candidates, may not be in a position to get a subject or college of their choice, and are likely to  secure  a  subject  or  college  not  acceptable  to them, cannot be the basis to question the validity of proviso to Clause IV of Regulation 9. The purpose behind proviso is to encourage graduates to join as medical  officers  and  serve  in  notified  remote  and difficult areas of the State. The fact that for quite some time no such appointments have been made by the State Government also cannot be a basis to disregard  the  mandate  of  proviso  to  Clause  IV-of giving  weightage  of  marks  to  the  in-service candidates who have served for a specified period in notified remote and difficult areas of the State.”

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Thereafter, the three-Judge Bench opined:-

“The provision in the form of granting weightage of marks,  therefore,  was  to  give  incentive  to  the in-service candidates and to attract more graduates to join as Medical Officers in the State Health Care Sector. The provision was first inserted in 2012. To determine the academic merit of candidates, merely securing high marks in  the NEET is  not  enough. The  academic  merit  of  the  candidate  must  also reckon  the  services  rendered  for  the  common  or public  good.  Having  served  in  rural  and  difficult areas  of  the  State  for  one  year  or  above,  the incumbent having sacrificed his career by rendering services for providing health care facilities in rural areas, deserve incentive marks to be reckoned for determining merit. Notably, the State Government is posited  with  the  discretion  to  notify  areas  in  the given State  to  be  remote,  tribal  or  difficult  areas. That declaration is made on the basis of  decision taken at the highest level; and is applicable for all the beneficial schemes of the State for such areas and not limited to the matter of admissions to Post Graduate Medical  Courses. Not even one instance has been brought to our notice to show that some areas which are not  remote or  difficult  areas  has been so notified. Suffice it to observe that the mere hypothesis that the State Government may take an improper  decision  whilst  notifying  the  area  as remote  and difficult,  cannot  be  the  basis  to  hold that  Regulation  9  and  in  particular  proviso  to Clause IV is unreasonable. Considering the above, the  inescapable  conclusion  is  that  the  procedure evolved in Regulation 9 in general and the proviso to Clause  (IV)  in  particular  is  just,  proper  and reasonable  and also fulfill  the test  of  Article 14 of the Constitution, being in larger public interest.”

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11. Lastly,  the  Court  posed  the  question  whether  the

arrangement directed in terms of order dated 12.05.2016 by

the  Court  should  have  prospective  effect  or  also  apply  to

admissions  for  academic  year  2015-2016,  for  the  subject

matter  of  challenge  before  the  High Court  pertained  to  the

academic year 2015-2016, the dispensation directed in terms

of Order dated 12th May 2016 should apply thereto. However,

considering the fact that the said admission process had been

completed and all  concerned had acted upon on that  basis

and  that  the  candidates  admitted  to  the  respective  Post

Graduate Degree Courses in the concerned colleges had also

commenced their studies, the Court held that it would not be

appropriate to unsettle that position given the fact that neither

the direct candidates nor the eligible in-service candidates who

had worked in remote and/or difficult areas in the State had

approached the Court for such relief. The Court further held

that it was only the in-service candidates who had not worked

in remote and/or difficult areas in the State approached the

Court  for  equating  them  with  their  counterparts  who  had

worked  in  remote  and/or  difficult  areas  in  the  matter  of

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reservation of seats for in-service candidates. The Court was of

the view that if at that distance of time, the settled admissions

were to be disturbed by quashing the entire admission process

for academic year 2015-2016, it would inevitably result in all

the seats in the State almost over 500 in number remaining

unfilled for one academic year; and that the candidates to be

admitted  on  the  basis  of  fresh  list  for  academic  year

2015-2016 will have to take fresh admission coinciding with

the  admissions  for  academic  year  2016-2017  which  would

necessitate  doubling  the  strength of  seats  in  the  respective

colleges  for  the  current  academic  year  to  accommodate  all

those students, which may not be feasible and is avoidable. In

the peculiar facts of the case, the Court moulded the relief in

the appeals by directing all concerned to follow the admission

process for academic year 2016-2017 and onwards strictly in

conformity  with  the  Regulations  in  force,  governing  the

procedure  for  selection  of  candidates  for  Post  Graduate

Medical  Degree  Courses  including  determination  of  relative

merit of the candidates who had appeared in NEET by giving

weightage of incentive marks to eligible in-service candidates.

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The Court ruled that the High Court was justified in quashing

the Government Order providing for reservation to in-service

candidates,  being  violative  of  Regulation  9  as  in  force.  It

modified the operative direction given by the High Court and

instead  directed  that  admission  process  for  Academic  Year

2016-2017 onwards to the Post  Graduate Degree Course in

the  State  should  proceed  as  per  Regulation 9  including  by

giving  incentive  marks  to  eligible  in-service  candidates  in

terms of proviso to Clause IV of Regulation 9 (equivalent to

third  proviso  to  Regulation  9(2)  of  the  Old  Regulations

reproduced  in  the  interim order  dated  12th May  2016).  The

Court thereafter directed:-

“We, accordingly, mould the operative order of the High  Court  to  bring  it  in  conformity  with  the direction  contained  in  the  interim  order  dated 12th May,  2016  but  to  be  made  applicable  to Academic  Year  2016-17  onwards  on  the  basis  of Regulation 9 as in force. We are conscious of the fact that this arrangement is likely to affect some of the  direct  candidates,  if  not  a  large  number  of candidates  whose  applications  were  already processed by the competent Authority for concerned Post  Graduate  Degree  Course  for  Academic  Year 2016-17.  However,  their  admissions  cannot  be validated in breach of or disregarding the mandate of Regulation 9, as in force. The appeals against the judgment  of  the  High  Court  of  Judicature  at

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Allahabad  dated  7th April,  2016  are  disposed  of accordingly.”

12. After so stating, this Court adverted to the second set of

appeals  arising  from  the  judgment  of  the  High  Court  of

Allahabad,  Lucknow Bench dated 27.03.16 wherein it  had

taken the view that the direction to prepare a fresh merit list

vide interim order dated 12.05.16 was in respect of only such

eligible  and  in  service  candidates  as  had  submitted

applications  for  admission  to  post-graduate  courses  for

relevant academic year  within the stipulated time and the

direction  was  not  to  consider  all  similarly  placed  persons

(eligible in-service candidates) irrespective whether they had

made  applications  for  admission  to  post-graduate  degree

courses or otherwise.  Concurring with the view of the High

Court,  the appeals were dismissed.   Eventually,  the Court

clarified the position:-

“We make it clear that we have not examined the correctness of the fresh merit list prepared by the concerned Authority in terms of interim order dated 12.05.2016.  If  any  candidate  is  aggrieved  on account of wrong placement in the fresh merit list or being in violation of this decision, will be free to

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question  the  same  by  way  of  appropriate proceedings. That challenge can be considered on its own merit.”

13. The  appellants,  as  the  facts  would  unroll,  filed  writ

petition before the High Court seeking writ of mandamus for

holding the second, third and mop-up round of counselling as

prescribed in the information brochure and to ensure that no

seats  in  any  of  the  courses  advertised  in  the  brochure  is

allowed to go vacant in the academic session 2016-2017.  The

appellants  contended  before  the  High  Court  that  the

respondents  were  bound  to  give  effect  to  the  prescription

contained  in  the  information  brochure  which  is  mandatory

and,  therefore,  the  authorities  are  under  obligation to  hold

second  and  third  round  of  counselling  and  that  they  had

misread and misapplied the judgment dated 16.08.2016; that

there was infringement of their rights as they had been denied

admission in the institution of their choice in accordance with

merit  that  too  when number  of  seats  were  lying  vacant  in

several medical colleges; that in the previous academic session

2013-2014,  the  counselling  was  done  after  the  cut-off  date

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and the admissions were given to the candidates and hence, it

would be in the interest of the students to issue directions for

filling up unfilled seats.   

14. Learned counsel for respondent No.2, opposing the relief

sought by the appellant, submitted before the High Court that

this Court in Mridul Dhar (Minor)  (supra) has held that time

schedule in respect of admission in postgraduate courses and

super speciality courses should be strictly adhered to wherever

provided; that there should not be midstream admissions; that

admissions  should  not  be  in  excess  of  sanctioned  intake

capacity or quota and carrying forward of unfilled seats of one

academic year  to another  is  not  permissible.   Reliance was

also placed on the authority in Priya Gupta (supra), wherein

it  was directed that  if  anyone who fails  to comply with the

directions  stricto  sensu shall  be  liable  for  action  under  the

provisions  of  the  Contempt  of  Courts  Act.   It  was  further

contended before the High Court by the respondent No.2 that

in terms of the interim order of this Court, all the seats were

allotted  to  the  respective  candidates  and  the  admission

process  stood  completed  by  30.05.2016  and  as  regards

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unfilled seats, only 11 seats were lying vacant on account of

non-joining of the candidates and no further steps could be

taken on account of embargo put by the MCI with regard to

the last date for completion and the time frame could only be

altered or modified by this Court.

15. Considering  the  rival  submissions,  the  High  Court

accepted the submissions of the respondent and dismissed the

writ petition.  Hence, the present appeal.  

16. We  have  heard  Mr.  Yatindra  Singh,  learned  senior

counsel along with Mr. A.S. Pundir, learned counsel for the

petitioners and Ms. Indu Malhotra, learned senior counsel, Mr.

Irshad Ahmad, AAG and Mr. Gaurav Sharma learned counsel

for the respondents.  

17. Learned senior counsel for the appellants would submit

that the maxim actus curiae neminem gravabit or “an act of the

court shall prejudice no man” is a settled principle of law and

applicable in the present case.  It is further contended that the

delay in holding counselling was due to the orders passed by

or  delay  in  this  Court  which  should  not  prejudice  the

appellants;  that  there  was  no  delay  on  the  part  of  the

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appellants but on account of orders passed by this Court or

delay  was  caused  in  the  proceedings  or  time  taken  by  the

State or by the MCI to file reply; that the Information Brochure

of the examination body provided for holding three round of

counselling  and  then  mop-up round  and  under  the   latest

amendments of the regulations, only two rounds of counselling

was  permitted  and  in  the  case  of  the  appellants  only  one

round of counselling had taken place and the second round

was yet to take place; that the brochure as well as regulations

provide counselling to be held first in which all can participate

and thereafter the mop-up round to be conducted; that in the

instant case, second round of counselling had not taken place

and  it  should  be  held  first  and  then,  if  the  need  be,  the

mop-up round should be held; that 71 seats are lying vacant

in the State Government Colleges and non-filling of these seats

will lead to waste of government investment, its resources and

their  full  potential  will  not  be  utilized;  that  it  is  in  public

interest that further counselling should be held as has been

held for University of Delhi and the States of Telangana and

Andhra Pradesh.

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18. Per contra, learned counsel for the State submitted that

the legal position with regard to vacant seats after the cut-off

date and extra round of counselling is settled in the decision of

this Court in  Supreet Batra and others v. Union of India

and others9, wherein it has been held that after the expiry of

cut-off date, the seats lying vacant cannot be filled up by way

of conducting extra round of counselling. He further submitted

that  pursuant to the order  of  the High Court quashing the

policy  decision of  the  State  Government  wherein  provisions

were made for giving reservation in post graduate courses for

the  doctors of  Provincial  Medical  Services,  who had worked

continuously for three years in notified backward areas within

the  State,  State  of  U.P.  had preferred special  leave  petition

wherein this Court vide order dated 12.05.2016 directed the

State Government to revise and redraw the merit list and in

pursuance of that order, State Government had redrawn the

merit list and fresh counselling was held on 27.05.2016 and

all the seats were filled up, except 71 seats which remained

vacant due to non-availability of the candidates for the said 9

 (2003) 3 SCC 370

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courses.  Therefore,  in  such  circumstances  no  further

counselling  was  required.   It  is  further  submitted  by  the

learned counsel  for  the State  that  the seats  became vacant

after the cut-off date in different Government Medical Colleges

because after  taking admission some of  the candidates had

either  resigned  from  the  allotted  seats  or  not  joined  the

courses after admission.  

19. Be  it  noted  that  IA  No.3  of  2016  was  filed  by  the

applicants seeking “mop-up” round of counselling for filling up

the vacant seats which arose due to non-joining or resignation

after  de  novo counselling  on  the  basis  of  clause  15  of  the

Information  Brochure  for  the  UPPGMEE,  2016.  Ms.  Indu

Malhotra, learned senior counsel submits that in the present

case only one round of counselling took place as the criteria

for  preparing  the  merit  list  was  changed  vide  order  of  this

Court.  It is further submitted by her that after de novo round

of counselling held on 30.05.2016, large number of candidates

did not join the allotted seats as a result of which almost 100

seats  in  various  Government  medical  colleges  have  fallen

vacant.   To substantiate  her  claim,  she relied on the order

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dated  01.09.2016  and  08.09.2016  passed  by  this  Court  in

S.L.P. (Civil)  No. 19633 of 2016 wherein this Court directed

the  University  of  Delhi  to  conduct  one  more  round  of

counselling for vacant seats within a period of two weeks and

the States of Andhra Pradesh and Telangana to conduct one

more round of counselling to fill up all the vacant seats.  In

effect, the submission of the learned senior counsel is that the

appellants  and  applicants  are  similarly  situated  and  by

redrawing the merit list, the right of the applicants to appear

in the second and third counselling is denied.    

20. The submission of Mr. Singh, learned senior counsel is

fundamentally  entrenched  on  the  principle actus  curiae

neminem gravabit.  The said submission is structured on the

factual  score  that  the  time  schedule  could  not  be  followed

because of the directions of this Court issued vide order dated

12.05.2016 and eventually it became final on 16.08.2016 for

which no fault can be found with the appellants.  The prayer

of the appellants to hold further counselling in respect of 71

seats was done in promptitude and, therefore, the High Court

would have been well advised to direct for holding counselling

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or  mop-up counselling  so  that  the  seats  would  not  remain

vacant  and  the  procedure  would  have  been  duly  complied

with.  Reliance has been placed on certain orders passed by

this Court in respect of the University of Delhi and the States

of Telangana and Andhra Pradesh.

21. As  far  as  States  of  Telangana  and  Andhra  Pradesh  is

concerned,  it  is  necessary to note  that  the High Court  had

issued certain directions for filling up the seats.   The same

was challenged by the Medical Council of India.  Taking note

of  the  peculiar  facts  and  circumstances  of  the  newly  born

States, the Court had passed the following order:-

“We take note of the fact that 86 seats in the State of  Andhra  Pradesh  and  32  seats  in  the  State  of Telagnana are available in the Government colleges in both the States. Having regard to the facts and circumstances  of  the  case,  we  direct  that  the University(s)  that  conducted  the  last  counseling shall conduct a counseling within two weeks hence after  giving  due  publicity.  A  student  who  has already  taken  admission  will  not  be  eligible  to participate in this counseling. Needless to say, the University shall follow the procedure as provided in the admission brochure/prospectus. We further say that  the  vacant  seats  are  meant  only  for Government colleges and Universities. We repeat at the cost of repetition that we have passed this order in the special features of the case.”

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22. The situation in the case of the said two States is totally

different  than  the  present  one.   In  the  instant  case,  the

appellants  approached  the  High  Court  only  on  01.09.2016.

They  did  not  choose  to  move  this  Court  when  the  case  of

Dinesh  Singh  Chauhan (supra)  was  pending.   They  were

aware that such a litigation was pending before this  Court.

Despite the same, they chose to maintain a sphinx like silence.

It  is  beyond  any  trace  of  doubt  that  admission  to  post

graduate courses for the academic session 2016-2017 in the

State of Uttar Pradesh stood concluded by this Court as per

the  decision  in  Dinesh  Singh Chauhan (supra).   Had  the

grievance been raised before this Court at the time when the

special leave petitions were filed in respect of the seats lying

vacant,  the  matter  could  possibly  have  been  differently

perceived.  Mr. Gaurav Sharma, learned counsel appearing for

the MCI would submit that the appellants only woke up from

the slumber after this Court, in exercise of power under Article

142  of  the  Constitution,  permitted  the  States  of  Andhra

Pradesh and Telangana to hold counselling concurring with

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the  view  of  the  High  Court  and  also  directed  University  of

Delhi  to  conduct  an extra  round of  counselling  beyond the

cut-off  date  regard  being  had  to  the  peculiar  facts  and

circumstances of the case.  It is urged by him that in such a

situation, the appellants cannot be permitted to advance the

stand that nobody should suffer for the fault of the court.   

23. It is manifest that effective and complete counselling was

held in the case of Uttar Pradesh on the basis of the verdict

rendered  by  this  Court  in  Dinesh Singh Chauhan (supra)

and the appellants, after certain orders were passed by this

Court,  felt  to  have  got  the  wake  up  call  to  agitate  their

grievance.   

24. The  seminal  question  that  is  required  to  be  posed  is

whether the maxim  actus curiae neminem gravabit would be

applicable to such a case.  In  Jang Singh v. Brij Lal and

others10, a three-Judge Bench noted that there was error on

the  part  of  the  court  and  the  officers  of  the  court  had

10

 AIR 1966 SC 1631

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contributed to the said occur.  Appreciating the fact situation,

the Court held:-

“……  It  is  no  doubt  true  that  a  litigant  must  be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does  not  leave  the  litigant  to  his  own devices,  to ensure that the correct information is furnished. If the  Court  in  supplying  the  information  makes  a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court.  If  the  litigant  acts  on  the  faith  of  that information the Courts cannot hold him responsible for  a  mistake  which  it  itself  caused.  There  is  no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person  is  harmed  by  a  mistake  of  the  Court  he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim:“Actus curiae neminem gravabit”.”

25. Noting that there was mistake by the concerned district

court, relief was granted by stating so:-

“………In view of  the  mistake  of  the  Court  which needs to be righted the parties are relegated to the position they occupied on January 6, 1958, when the error was committed by the Court which error is being rectified by us nunc pro tunc.”

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26. Another  three-Judge Bench in  Jagannath Singh and

others v. Dr. Ram Naresh Singh11, took note of the fact that

the judgment by the High Court had been rendered ex-parte,

and the application for recall did not impress the High Court.

Appreciating the factual matrix that there was an error in the

cause  list  and  accepting  that  there  was  an  omission  to

mention the case correctly in the cause list and treating it as a

a mistake of the court, the Court held that though there was

some negligence on the part of the counsel or of his clerk but

it was not so grave as to disentitle the party to be heard, and

in any event, the alleged contemnors could not be punished

for  a  mistake on the  part  of  their  counsel  or  the  counsel’s

clerk.

Being of  this view, this Court set  aside the order with

costs.  

27. In  Atma  Ram Mittal  v.  Ishwar  Singh  Punia12,  this

Court,  in  the  context  of  interpretation  of  Section  13(1)  in

11

 (1970) 1 SCC 573 12

 (1988) 4 SCC 284

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juxtaposition with Section 1(3) of the Haryana Urban (Control

of  Rent  and  Eviction)  Act,  1973,  adopting  the  purposive

interpretation ruled:-

“It is well-settled that no man should suffer because of the fault of the court or delay in the procedure. Broom has stated the maxim “actus curiae neminem gravabit” — an act of court shall prejudice no man. Therefore,  having  regard  to  the  time  normally consumed for adjudication, the ten years’ exemption or  holiday  from  the  application  of  the  Rent  Act would become illusory,  if  the suit  has  to  be filed within  that  time  and  be  disposed  of  finally.  It  is common knowledge that unless a suit is instituted soon  after  the  date  of  letting  it  would  never  be disposed of within ten years and even then within that time it may not be disposed of. That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses. The purpose  of  legislation  would  thus  be  defeated. Purposive  interpretation  in  a  social  amelioration legislation is an imperative irrespective of anything else.”

28. The  aforesaid  authorities  deal  with  three  different

situations.  There cannot be an iota of doubt that no prejudice

shall be caused to anyone due to the fault of the court, but it

is  to  be  seen  in  what  situations  the  court  can  invoke  the

maxim  “actus  curiae  neminem  gravabit”.   In  this  regard,

reference to the authority in Jayalakshmi Coelho v. Oswald

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Joseph Coelho13 would be apt.  In the said case, the Principal

Judge, Family Court, Bombay had modified the earlier decree.

The  same  was  challenged  in  the  writ  petition  which  was

dismissed.   The  Division  Bench confirmed the  order  of  the

learned  Single  Judge,  which  compelled  the  appellant  to

approach this Court.  Dealing with the principle of rectification

of decree under Section 152 CPC, the Court opined that there

can be hardly any doubt that any error occurred in the decree

on account of arithmetical or clerical error or accidental slip

may be rectified by the court.  It has been further observed

that the basis of the said provision is founded on the maxim

that an act of court will prejudice no man.  The Court referred

to  the  authorities  in  Assam Tea Corpn.  Ltd.  v.  Narayan

Singh14,  L.  Janakirama  Iyer  v.  P.M.  Nilakanta  Iyer15,

Bhikhi Lal v. Tribeni16, Master Construction Co. (P) Ltd. v.

13

 (2001) 4 SCC 181 14

 AIR 1981 Gau 41 15

 AIR 1962 SC 633 16

 AIR 1965 SC 1935

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State of Orissa and another17,  Dwaraka Das v. State of

M.P.  and  another18 and  Thirugnanavalli  Ammal  v.  P.

Venugopala  Pillai19 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 others20, 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

17

 AIR 1966 SC 1047 18

 (1999) 3 SCC 500 19

 AIR 1940 Mad 29 20

 (2010) 9 SCC 437

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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 others21 would be seemly. In the said case, the

question for  consideration was  whether  for  the  purposes  of

computing the period of limitation under Section 468 CrPC the

relevant date is the date of filing of the complaint or the date of

institution of the prosecution or whether the relevant date is

the  date  on  which  a  Magistrate  takes  cognizance  of  the

offence.   Answering  the  issue,  the  Court  held  that  for  that

purpose computing the period of limitation under Section 468

CrPC the relevant date is the date of filing of the complaint or

the  date  of  institution  of  prosecution  and  not  the  date  on

which  the  Magistrate  takes  cognizance.  In  the  course  of

deliberation, the larger Bench observed:-  

“…  The  object  of  the  criminal  law  is  to  punish perpetrators  of  crime.  This  is  in  tune  with  the well-known legal  maxim  nullum  tempus  aut  locus occurrit regi, which means that a crime never dies.

21

(2014) 2 SCC 62

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At the same time, it is also the policy of law to assist the vigilant and not the sleepy. This is expressed in the  Latin maxim  vigilantibus  et  non dormientibus, jura  subveniunt.  Chapter  XXXVI  CrPC  which provides  limitation  period  for  certain  types  of offences for which lesser sentence is provided draws support from this maxim. But, even certain offences such as Section 384 or 465 IPC, which have lesser punishment may have serious social consequences. The provision is, therefore, made for condonation of delay. Treating date of filing of complaint or date of initiation  of  proceedings  as  the  relevant  date  for computing limitation under Section 468 of the Code is  supported  by  the  legal  maxim  actus  curiae neminem gravabit which means that the act of court shall prejudice no man. It bears repetition to state that  the court’s  inaction in taking  cognizance  i.e. court’s inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a  diligent  complainant.  Chapter  XXXVI  thus presents the interplay of these three legal maxims. The  provisions  of  this  Chapter,  however,  are  not interpreted  solely  on  the  basis  of  these  maxims. They only serve as guiding principles.”

 31. It  is  noticeable  from  the  aforesaid  passage  that  the

interpretation was made in accordance with the Code and the

legal maxim was taken as a guiding principle. Needless to say,

it is well settled in law that no one should suffer any prejudice

because of the act of the court.  The authorities that we have

referred to dealt  with the different  factual  expositions.   The

legal maxim that has been taken recourse to cannot operate in

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a vacuum.  It has to get the sustenance from the facts.  As is

manifest, after the admissions were over as per the direction of

this  Court,  the appellants,  who seemed to have resigned to

their fate, woke up to have control over the events forgetting

that  the  law does  not  assist  the  non-vigilant.   One  cannot

indulge in luxury of  lethargy,  possibly nurturing the feeling

that forgetting is a virtue, and thereafter, when the time has

slipped  through,  for  it  waits  for  none,  wake  up  and  take

shelter under the maxim “actus curiae neminem gravabit”. It is

completely unacceptable.

32. Considering the precedents where the legal maxim actus

curiae neminem gravabit has been applied, we are compelled to

form the opinion that the said maxim is not applicable to the

factual score of the present case. Once the said principle is not

applicable,  the  rest  of  the  submissions  pertaining  to  seats

going waste or the State losing its investment or the suffering

of the students or claim of parity with other students have no

legs to  stand upon.  It  is  because to  give  indulgence  to  the

appellants or the interfering with the impugned order would

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only give rise to chaos; and it is an accepted norm that law

does not countenance any chaos and abhors anarchy.

33. Consequently, the appeal, being sans substance, stands

dismissed.  There shall be no order as to costs.  

..........................................J.              (Dipak Misra)

    .........................................J.     (Amitava Roy)

New Delhi; March 21, 2017