Letters Patent Appeal No.36 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.36 of 2007 (O&M) Date of Decision : 19.02.2009 Medical Council of India ......Appellant VERSUS Gautam Chopra and others ......Respondents CORAM:- HON'BLE MR. JUSTICE UMA NATH SINGH. HON'BLE MR.JUSTICE A.N.JINDAL. ***** Present: Mr.G.S.Sandhawalia, Advocate, for the appellant. Mr.S.C.Sibbal, Senior Advocate with Mr.Ashok Sharma Nabhewala Advocate, for respondent No.1. Mr.Ashish Rawal, Advocoate, for Mr.Anupam Gupta, Standing Counsel, for the respondent-U.T. Mr.Puneet Sekhon, Advocate, for respondents No.4 and 7. ***** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest. ****** A.N.JINDAL, J: This Letter Patent Appeal has been preferred against the order dated 22.11.2005, passed by learned Single Judge in Civil Misc.Nos.18301 Letters Patent Appeal No.36 of 2007 2 and 15227 of 2005 in Civil Writ Petition No.15387 of 2004—Gautam Chopra and others versus State of Punjab and others, permitting respondents No.1 to 3 (hereinafter referred as the respondents-students) to attend the classes of second professional (2nd year) M.B.B.S. Course provisionally. The appeal having been filed after a delay of 263 days, is accompanied by an application under Section 5 of the Limitation Act. Before proceeding to decide the illegality of the order as well as regarding condonation of delay in filing the appeal, a few facts need to be noticed. Gautam Chopra, Vishw Kaushal and Priya Mittal, respondents sought a writ of mandamus directing the respondent No.6-Baba Farid University of Health Sciences, to admit them in the respondents-college affiliated to it, as per their merit secured by them in the entrance examination held by the proforma respondents. The respondents secured very high positions in the entrance examination held on 01.08.2004. The result of the entrance test was declared on 02.08.2004. During the first counseling conducted on 16.08.2004 and 17.08.2004, the respondents were not admitted as no seat was available. Thereafter, the second counseling was conducted on 24.09.2004 and on the basis of their merit, respondents were selected for doing the M.B.B.S. Course in the respondent-Institute. As per directions, the respondents deposited the requisite fee and they were issued the admission slip. On instructions, the respondents were present at the proforma respondent-institute on 27.09.2004 but they alongwith their parents were harassed and turned out of the institute. The respondents were not medically examined and they were not permitted to attend the classes. They were told by the Principal of the respondent-institute that though they were coming within the 25 seats to be filled up by nominees by the Letters Patent Appeal No.36 of 2007 3 Government as per merit being at merit No.23, 24, & 25 yet they would not be admitted against these seats. The respondent-institute further informed the respondents that though there were 25 seats advertised to be filled up from the Govt. nominees but they would fill up only 21 out of them. Since the respondents, who were at Merit No.23, 24 & 25 in the merit list, would not be admitted. Since the admissions of the respondents have been made against the Government quota seat as per notification and prospectus PMET-2004, therefore, the respondent No.3-institute has no business to refuse the admission in its Institute when it had already admitted 21 candidates against quota of 25 candidates prescribed in the prospectus. The petitioners have also submitted that their case is covered by Division Bench Judgment passed in C.W.P.No.13897 of 2004 dated 21.09.2004 whereby the respondent No.7-College was directed to admit the students to the Second professional (2nd year) M.B.B.S in the Government quota seats allocated to it and the question of fee was directed to be decided lateron by the Committee appointed by the Hon'ble Supreme Court in the terms of judgment in Islamic Academy of Education Versus State of Karnataka, JT, 2003 (7) SC, Page 1. During the pendency of the aforesaid writ petition, the respondents filed an application for directing the respondent-Institute to allow the applicant-respondents to attend the classes for the 2nd professional M.B.B.S.Course alongwith the normal batch as they had already attended the classes of the first professional course. However, plea was raised that permission cannot be granted for the reason that as long as the respondents do not clear the first professional course, they cannot be permitted to attend 2nd Professional M.B.B.S.Course. However, learned Single Judge permitted Letters Patent Appeal No.36 of 2007 4 the respondents to attend the second Professional Course classes vide its order dated 22.11.2005. The operative part of the impugned order reads as under:- “However, keeping in view the peculiar facts and circumstances of the case i.e. that the result of the petitioner was declared after holding of the supplementary examination by order of this Court, therefore, the petitioner, obviously could not appear in the supplementary examination. In case his result would have been declared earlier then obviously he would have appeared in the re-appear examination.” In view of the above, I allow the petitioner to attend the classes for the 2nd Professional M.B.B.S.Course alongwith normal batch and the petitioner shal also be allowed to sit in the re- appear examination as and when held by the University. C.M. disposed of.” After this, C.M.No.15227 of 2005 for listing the case for an early actual date, was allowed and the writ petition was listed for final hearing on 19.01.2006. The present L.P.A., instead of filing within the stipulated period of 30 days, has been initially filed after a delay of four months i.e. on 21.04.2006 and ultimately after removing the objections, it was refiled complete in all respects after a delay of 263 days in all when the period of 2nd professional of M.B.B.S. Course was out to be completed. The appellant has sought to condone 263 days including 61 days delay in refiling the L.P.A. Order in this case was passed by the learned Single Judge on 22.11.2005. The appellant applied for taking the Letters Patent Appeal No.36 of 2007 5 copy of the order on 23.11.2005 which was prepared on the same day and was received on 25.11.2005 but the L.P.A. was filed on 21.04.2006 whereas the limitation was to expire on 25.12.2005. The appellant did not file any application for condonation of delay at the first instance. However, on objections being raised by the Registry, the appeal was not refiled. Again when the appellant was in the process of refiling the appeal during the summer vacation, it was realized that there were large number of civil miscellaneous applications and short reply filed by different parties. However, these documents i.e. amended writ petition and civil miscellaneous applications filed by the respondents and reply filed by some of the parties were not available. Therefore, after removing the objection, L.P.A. was filed on 12.09.2006 but again due to some objections raised by the Registry, L.P.A. was returned. Ultimately, the L.P.A. was filed on 08.12.2006. Therefore, delay being not intentional is required to be condoned. While pleading that due to removal of the objections raised by the Registry, the appellant could not file the appeal within time, therefore, limitation in filing and refiling the appeal be condoned. Having given our thoughtful consideration, we are of the opinion that L.P.A., in the ordinary course, was required to be filed within 30 days after excluding the period of preparation of the copies but that was not done even at the initial stage. The appeal, instead of filing in the month of December, 2005, was initially filed on 21.04.2006. The objections so raised by the Registry at the most could be removed within a week or so. Yet the appellant committed contumacious negligence and did not file the appeal for five months and thereafter again for three months for which the explanation set Letters Patent Appeal No.36 of 2007 6 up by it is not sufficient. The appellant had a big team of advocates at its disposal, therefore, it cannot be said that it started preparing S.L.P. on the basis of innocent, illegal or mistaken advice. Rather from the facts and circumstances, the inference could easily be drawn that appeal was intentionally delayed for the reasons best known to it and at the fag end of the completion of the 2nd professional M.B.B.S. Course of respondent No.1, this appeal has been preferred. Thus, such long unexplained delay, in the given circumstances of the case, does not deserve to be condoned. Similar view has been taken in case of P.K.Ramchandran vs. State of Kerala and another, (1997)7 S.C.C.556 wherein it has been held as under:- “The law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the miscellaneous first appeal shall stand dismissed as barred by time.” In similar circumstances, in the case of Bhagwna v. Tara Chand and others, (2008-2) 150 P.L.R. 73, (C.M.No.11634-C of 2007 in Letters Patent Appeal No.36 of 2007 7 R.S.A.No.4122 of 2007) decided on 18.01.2008, application for condonation of delay in re-filing the appeal has been dismissed. Even otherwise the present appeal is against an interim order, allowing respondent No.1 to attend the classes for 2nd professional M.B.B.S. Course alongwith the normal batch and it is still to be decided on merits. Even otherwise, it has been informed that the respondents have already passed out the course. Therefore, the appeal being unmerited and having become infructuous deserves to be dismissed. Ordered accordingly. (UMA NATH SINGH) (A.N.JINDAL) JUDGE JUDGE February 19 , 2009 mamta-II