TaxTMI 
TaxTMI 
2014 (9) TMI 1144
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....ing 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. 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 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....
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....e 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 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. 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....
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....ing 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. The Chandigarh Administration and the Government Medical College, Chandigarh were aggrieved by the said direction 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. 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....
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....ndent 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. 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 Responde....
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....I 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 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 an....
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....ers - (1986) 4 SCC 268 and Haryana Urban Development Authority and others v. Sunita Rekhi - (1989) Suppl. 2 SCC 169. 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. 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.....
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....ivision Bench cannot be sustained. 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......" 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. To the very same effect was the decision reported in Neelu Arora (Ms) and another v. Union....
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....djusted 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, 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) The decision relied upon by the contesting Respondent reported in Faiza Choudhary (supra), rather than supporting the case of the said contesting Respondent only clar....
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....mit 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 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. 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, cont....
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....rcumstances 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, therefo....
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.... of selection was unfair. 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 subvenit, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate. 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. 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. There cannot be at any point of time a direction given either by the Court or the Board to increase the number of seat....
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....t 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, 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. 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 se....
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....ing Respondent in her decision to work out her remedies in the Court of law. 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 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....
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....pondent, 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. 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 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 analy....
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....est 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. As time and again such instances of claiming admission into such professional courses are brought before the Court, and ....
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.... 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 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. 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 Respond....