Letters Patent Appeal No.344 OF 2006 ----- Against judgment and order dated 24.3.2006 passed by a learned single Judge of this Court in C.W.J.C. No.15979 of 2005. ----- Katihar Medical College, Katihar through its Registrar, at & P.O. Katihar, District- Katihar --------- Appellant Versus 1.Kundan Kishore, son of Motilal Rai, resident of Mohalla- Sasaram Road, Anaith, P.S. Arah, District- Bhojpur 2.Bihar Combined Entrance Competitive Examination Board, through its Controller of Examination, I.A.S. Association Building, near Patna Airport, Patna-14. -------- Respondents ----- For the Appellant : Mr.Dharmeshwar Mishra,Adv. For Respondent No.1 : Mr.Amresh Kumar Singh,Adv. For Respondent No.2 : Mr.P.K.Shahi,Sr.Adv. with Mr.Vikas Kumar,Adv. ----- P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh,J: Katihar Medical College, Katihar through its Registrar (Respondent no.2 in the writ application) has preferred this appeal against judgment and order passed by a learned single Judge of this Court on 24.3.2006 in C.W.J.C.No.15979 of 2005, whereby, learned single Judge directed the Principal of the appellant College to admit writ petitioner (Respondent No.1 herein) in the MBBS Degree course commencing August 2005-06 on payment of prescribed fee and also directed that he shall be allowed to attend the classes to the extent he has missed out in the present Session and to appear at the examination for the Session commencing 2006-07. The Principal was also directed to ensure that the petitioner does not suffer - 2 - at all on account of such belated admission. 2. The conflict between right of the minorities to run Educational Institution to safeguard the interest of minority it represents vis-à-vis public interest in maintenance of its standard, quality of education being imparted and equal opportunity of admission to all deserving and meritorious irrespective of religion, caste or creed fell for consideration by the Apex Court in a number of cases. To balance the same, the Apex Court in the case of Islamic Academy of Education Vs. state of Karnataka, reported in (2003) 6 S.C.C. 697, directed that 50% of the total seats in a Session in a minority institution would be allowed to be filled up by the management of the Institution keeping in mind interest of the minorities represented by it. However, 50% of the seats were directed to be filled up on the recommendation of the competent authority or the Board of the State regulating such admissions in professional Institutions of the State and on the seats available in the Institution outside the concerned State allocated to it. Pursuant to this direction of the Apex Court, the appellant Institution was required to fill up 30 seats of its total 60 seats of MBBS Course in the Sessions 2003-04 onwards from the recommendations made by the Bihar Combined Entrance Competitive Examination Board (Respondent No.2 herein and Respondent no.1 in the writ matter). 3. Facts, as noticed by learned single Judge also, are that, in spite of such direction by the Apex - 3 - Court, in the Sessions 2003-04 and 2004-05 the appellant College did not admit any candidate recommended by the Respondent Board on the 50% quota earmarked as State quota. Hence, in order to make good the loss, the State Government issued a notification dated 9.3.2005 directing the appellant College as well as another College to fill up 100% seats of first year MBBS course for the Session 2005-06 on the basis of recommendation of the respondent Board. This notification was challenged by the Society controlling the appellant College, namely, Al-Karim Educational Trust before the Apex Court through Writ Petition (Civil) No.167 of 2005 in which I.As. were also filed for stay of the operation of the said notification. Before the Apex Court it was contended that the State Government had failed to make recommendations for admission against its quota of 50% in the Sessions 2003-04 and 2004-05 and hence all the seats had to be filled up by the Management on the basis of competitive test held by the Consortium of Private Medical Colleges and therefore State Government was not justified in reserving 100% seat of Session 2005- 06 for being filled up on the basis of recommendation of the respondent Board. However, no interim orders were passed by the Apex court staying the operation of the said notification and as such the same remained operative for Session 2005-06 of MBBS Course in the appellant College. 4. In the meanwhile, for admission in Medical Colleges in the State in the Session 2005-06, the - 4 - respondent Board started the processes and first stage of examination was held on 17.4.2005 and its results were published on 7.5.2005. Thereafter, second stage of examination was held on 5.6.2005 and merit list was published on 12.7.2005. Counseling for first batch of successful candidates was held from 18.7.2005 to 25.7.2005. On completion of the counseling, 37 candidates were allotted to the appellant College and through letter dated 25.7.2005 respondent Board forwarded the testimonials and other papers of the said 37 candidates to the appellant College for their admission. It was the stand of the appellant College that out of said 37 candidates, only 13 turned up in the College on the date fixed for scrutiny of their testimonials and certificates and for their admission which was held on three dates i.e. 29th, 30th and 31st July, 2005. It is not disputed that out of 13 candidates, only three candidates got themselves admitted in the College. The stand of the appellant College was that since only three candidates could get themselves admitted in the College, it was against the interest of the college to keep other seats of the Session vacant and accordingly, as per deadline fixed by the Apex Court in the case of Mridul Dhar Vs. Union of India, reported in (2005)2 S.C.C. 65, it took provisional admission of candidates recommended by the body of Consortium of Private Medical Colleges against all the remaining seats subject to final result of the aforesaid writ petition of the Management of the College pending before the Apex Court. - 5 - 5. It has been stated by the appellant College before this Court that this fact was duly communicated to the Board vide its letter dated 19.8.2005. Hence, as per the stand of the appellant College, the Board ought to have held second counseling between 25th to 28th August, 2005 for recommendation against its quota as per the Apex Court mandate in Mridul Dhar’s case (supra) and ought to have recommended any other candidate for admission on vacant seat from its quota by 30th August, 2005. However, it is admitted position that second counseling was held by the respondent Board on 16.9.2005 only. Respondent - writ petitioner appeared in the second counseling and he opted for appellant College under B.C. Quota. Accordingly, allotment order was issued on 23.9.2005, pursuant to which the respondent - writ petitioner approached the Principal of the appellant College on 26.9.2005, but he was refused admission by the Principal on the ground that all the seats had already been filled up by 31st August, 2005. The respondent - writ petitioner initially approached the Apex Court through writ petition (Civil) No.575 of 2005 which, however, was withdrawn with liberty to seek appropriate remedy before the High Court. Thereafter, respondent- writ petitioner filed the present writ application for a direction to the appellant College to admit him in the MBBS course on the basis of selection and his allotment to the College by the respondent Board. 6. Learned single Judge has noticed the - 6 - above facts and considered the submissions made on behalf of the appellant College as well as on behalf of respondent Board in his judgment. The stand of the appellant College, that under the scheme as formulated by the Apex Court in Mridul Dhar’s case (supra), all normal admissions were to close positively by 30th August and only stray vacancies in the Course could be filled up till 30th September, was not accepted by learned Single Judge. Learned Single Judge has referred to and quoted paragraph 14 of the judgment of Mridul dhar’s case (supra) in his judgment and has come to a finding that on a plain reading of the judgment it was clear that Supreme Court has permitted admissions upto 30th September. Learned Single Judge has found that as per the scheme formulated by the Apex Court, the main part of the admission is normally required to be closed by 30th August of each year. However, the Apex Court also left it open for admission of candidates against vacancies arising due to any reason by 30th September. Learned Single Judge has noticed that there was no fault on the part of the respondent- writ petitioner and upon his being allotted to the appellant College, he promptly reported to the College for taking admission which was refused. Learned Single Judge has noticed that the stand of the appellant College, giving very narrow meaning to the expression “stray vacancies”, was a hair-splitting view of the matter to defeat the respondent- writ petitioner’s admission and the appellant College should refrain from taking such - 7 - unreasonable, irrational, arbitrary and hair-splitting approach for commercial ends. However, since considerable time had passed and the Session had commenced, learned Single Judge directed the Principal of the appellant College to admit the writ petitioner in the Course commencing August 2005-06 on payment of prescribed fee and to permit him to complete the classes for the missed out period in the Session commencing 2006-07. 7. The factual position clearly supports the view taken by learned Single Judge in the matter, and therefore, while hearing the appeal, this Court is not of the view that good grounds have been made out by learned counsel for the appellant College to interfere in the matter. It is true that the State Government had also not adhered to the time schedule formulated by the Apex Court in Mridul Dhar’s case (supra) and delayed the second counseling, but this does not justify the action of the management of the appellant College to fill up all the available seats of the Session on its own without any further communication from the respondent Board or the State Government in this regard. 8. It is admitted by learned counsel for the appellant College that notification dated 9.3.2005 was not stayed by the Apex Court and therefore, for this particular Session all the seats stood reserved for candidates recommended by the State Government. The interpretation of learned counsel for the appellant College that expression “stray vacancies” will cover - 8 - only drop outs or transfer cases is not acceptable to this Court. The expression “stray vacancies” used by the Apex Court in paragraph 14 of the judgment in Mridul Dhar’s case (supra) clearly covers vacancies left out due to any reason after exercise of admission is undertaken by the management of the College on the basis of first round of counseling and recommendations of the Board. The next sentence used by the Apex Court in the same very paragraph makes it clear that the admissions had to finally close only by 30th September and not before. Hence the management of the appellant College was not at all justified in filling up all the vacant seats on its own prior to 30th September, 2005 without waiting for any further communication from the State Government or the respondent Board. 9. As noticed earlier, the notification dated 9.3.2005 of the State Government was operative and therefore, it was incumbent on the part of the management of the appellant College to insist the State Government to release the vacancies for being filled up by the management in case the State Government and the respondent Board was not in a position to recommend sufficient number of candidates for filling up all the vacancies of the Session. Nothing has been brought on record to show that the management of the appellant College made any effort in this regard. On the other hand, from the averments made in paragraphs 9 to 12 of the affidavit filed on behalf of the appellant College in the stay matter before the Apex Court challenging the said - 9 - notification of the State Government, which has been brought on the records of this appeal as Annexure-1/B, it is clear that the management of the College was in a hurry to fill up all the vacant seats of the Session on its own without giving any opportunity to the State Government and the respondent Board to recommend further names of candidates for admission on the remaining vacancies. In paragraph 9 of the said Annexure it has been categorically stated that on 30 seats, candidates belonging to Muslim minority community were admitted on 31st July, 2005 and on remaining 30 seats candidates belonging to general category inclusive of State Government allottees were provisionally admitted on 31st August, 2005. In the said paragraphs of the affidavit it is acknowledged that the respondent Board had sent a letter on 1st September, 2005 received in the appellant College on 2nd September, 2005 by which academic documents of 29 candidates had been forwarded, but the appellant College sent a reply to the same on 4.9.2005 informing the respondent Board that no seat was left vacant as it had already admitted candidates on all the remaining vacancies on 31st August, 2005. It is apparent that the management of the appellant College by all means had made it fait accompli for the State Government, respondent Board as well as for the Apex Court by taking admissions on all the vacant seats in a haste on 31st of August itself notwithstanding the fact that the said notification of the State Government dated 9.3.2005 reserving all the seats of - 10 - the Session for its nominees was still in operation and prayer of the appellant College for stay of the same had been turned down by the Apex Court. 10. However, when the appeal was taken up on the last date, learned counsel for the respondent- writ petitioner informed this Court that due to passage of time, writ petitioner was no longer interested in getting admitted in the MBBS Course in the appellant College and therefore, he submitted that the relief prayed for and granted by learned single Judge in the writ matter may be modified by a direction to the concerned authorities of the College and other respondents authorities to compensate him for the loss which he has suffered in his academic career. Noticing this changed stand on behalf of the respondent- writ petitioner, the appellant College was given an opportunity by order dated 22.1.2009 to produce any relevant records for explaining the alleged lapses on its part and the appeal was put up for further hearing on 28th January, 2009. Accordingly, hearing resumed on 29th January, 2009 and continued on 30th January, 2009. 11. In spite of opportunity, learned counsel for the appellant College could not produce any further materials to satisfy this Court about bonafide of the management of the appellant College in filling up all the vacancies of MBBS Course of Session 2005-06 on 31.8.2005 itself in a haste. On the other hand, learned counsel for the appellant College vehemently stuck to his stand that as per the time schedule - 11 - formulated by the Apex Court in Mridul Dhar’s case (supra), all admissions had to close by 30th August and admissions on stray vacancies permitted till 30th September did not include vacancies left out on account of non-joining of recommended candidates in the first round. We have already noticed the fallacy in the said stand on behalf of the appellant College hereinabove and have found that the interpretation given to the expression and spirit underlying in the judgment of the Apex Court in Mridul Dhar’s case (supra) by the learned single Judge while allowing the writ application is perfectly correct and justified. This inference is fortified by Supreme Court’s order dated 26.9.2005 annexed as Annexure-1 to this LPA. That order shows that before the Apex Court, even on 26.9.2005 the appellant College did not take the defence of “stray vacancies” not being available resulting into a direction for admission of two students within the sanctioned intake of the appellant College. But on the same date writ petitioner’s efforts for admission were frustrated by the appellant College by resorting to such defence. Clearly, respondent- writ petitioner deserves to be compensated. 12. However, question arises as to what compensation should be awarded to the respondent- writ petitioner for the loss of his precious academic opportunity and time for no fault of his. It is on record and not disputed that the respondent- writ petitioner could get back his testimonials and - 12 - certificates from the office of the appellant College only sometime after July 2007 and not before, as it appears from the documents annexed with the additional affidavit filed on behalf of the appellant College in this appeal that the respondent- writ petitioner had applied for the same to the Principal of the appellant College on 3rd July, 2007. While producing the said documents through additional affidavit, appellant College has not taken the stand that after close of admissions, testimonials and certificates of the candidates forwarded to it by the respondent Board were returned to the Board for refund of the same to the respective candidates, who had failed to turn up or were not admitted. Thus, it is clear that the appellant College failed to admit the respondent writ petitioner on the basis of recommendation of the respondent Board although he had turned up in the College within the last date of admission laid down under the Scheme formulated by the Apex Court in Mridul Dhar’s case (supra) and also failed to return the certificates of the writ petitioner promptly to the Board to enable him to pursue his career elsewhere. 13. In the circumstances, although precious loss of two years of the respondent writ petitioner on the threshold of his academic pursuit cannot be quantified in terms of money, but by way of some solace, this Court awards cost of Rs.1,00,000/- (Rupees one lakh) to the respondent- writ petitioner payable by the appellant College by way of - 13 - compensation. Besides the management of the appellant College, the State Government and particularly the respondent Board cannot also be held to be blameless in the matter. On its own showing, respondent Board had not adhered to the time schedule formulated by the Apex Court in Mridul Dhar’s case (supra) which resulted into undue opportunity to the management of the appellant College to exploit the situation to its advantage and to frustrate the notification of the State Government and the orders of the Apex Court. Therefore, this Court directs compensation of Rs.25,000/- (Rupees twenty five thousand) to be paid to the respondent- writ petitioner by the respondent Board. The compensations awarded hereinabove shall be paid to the respondent - writ petitioner by appellant College as well as Respondent Board within a period of one month from today. Respondent Board is a statutory authority and the matter is dealt with at different levels in the Board. Therefore, the Controller of Examination is further directed to hold an enquiry, identify the person/persons responsible for frustrating the time schedule formulated by the Apex Court in Mridul Dhar’s case (supra) on his/their own or in connivance with the vested interests enabling undue advantage to the management of a private College and by playing with the career of the students. The Controller of Examination shall complete the enquiry within two months thereafter and shall realize the compensation paid to the writ petitioner, as ordered hereinabove, after due notice, from the salary of the - 14 - said person/persons found responsible. 14. In the result, this appeal is dismissed with modifications in the orders of learned single Judge passed in the writ matter in the manner indicated above. (Jayanandan Singh,J.) Shiva Kirti Singh,J.: I agree. (Shiva Kirti Singh,J.) Patna High Court The 6th March,2009 A.F.R./ Pradeep/