Case: Vikram Dhillon Vs. State Of Haryana &amp; Orsz

infringement of the indefeasible right to life of the citizen is, therefore, useful and at time perhaps the only effective remedy to apply balm to the wounds of the family members of the deceased victim, who may have been the breadwinner of the family. In Chairman, Railway Board v. Chandrima Das, (2002) SCC 465, a poor lady was taken by railway employee to a railway guest house (Yatri Niwas) and was raped. Holding the Union of India vicariously liable, this Court held that for an act of Railway Authorities, a direction can be issued to the authorities to pay compensation to the victim and, accordingly, compensation was awarded. It was also submitted by counsel that in appropriate cases of mis-finance in public office, a direction can also be issued to erring officer(s) to pay such amount of compensation/damages personally or an order can be passed directing the authorities to recover from such officer(s) who is (are) found responsible. In Common Cause, a Registered Society v. Union of India, (1996) 6 SCC 530 , the Petroleum Minister made allotment of petrol pumps arbitrarily in favour of his relatives, friends and kiths and kins. When the matter came up before this Court, not only the allotment was cancelled, but the Court directed the Minister to pay Rs. 50 lakhs as exemplary damages to public exchequer and also Rs. 50,000/- as costs. No doubt a Review Petition was filed against the above decision in Common Cause, a Registered Society vs. Union of India, (1999) 6 SCC 593 , and the order passed earlier was recalled and direction for payment of Rs.50 lakhs was set aside. The learned counsel for the petitioner submitted that the Court in a Review Petition was not right in setting aside the direction for payment of Rs. 50 lakhs personally from the Minister concerned, particularly when the Court had recorded a finding earlier that act was illegal, improper and unconstitutional act on the part of the Minister concerned. It was also submitted that wrong test was applied by the Court in a Review by adopting analogy of criminal trial and referring to provisions of Section 405 and 409 of the Penal Code and by observing that in case of criminal breach of trust, entrustment of property was an essential ingredient, which was not proved. Though we find considerable force in the submission of the learned counsel, in the facts and circumstances of the present case, we are not inclined to enter into larger question in view of the fact that it is not necessary to do so. Since, we are of the view and have held that on September 30, 2004, the petitioner in all probability was not present and admission was granted to respondent No. 6 Anusha Singh and the first complaint was made by him as late as on October 19, 2004 by stating that he had come to know about the illegality of admission in favour of respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under Article 32 of the Constitution, it would not be appropriate for this Court to award compensation to the petitioner either from the authorities or from the respondent No. 9 in his personal capacity. It is, however, open to the petitioner to take appropriate proceedings in accordance with law, if so advised. As and when such eventuality arises, the appropriate authority will pass an appropriate order in accordance with law without being inhibited or influenced by the observations made by us in this judgment. Before closing the matter, we may observe one thing more. As already noted earlier, as early as on November 16, 2005, when the matter was heard by this Court, a grievance was made by the petitioner that though he was higher in rank, admission was illegally given to respondent No. 6 who was lower in rank. It was a back door admission, sacrificing merit and was granted by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel appearing for respondent Nos. 1, 2 and 8 did not seriously dispute the allegation about the back door admission having been granted to respondent No. 6 as alleged by the petitioner. The Court further observed; "Learned counsel further states that, in fact, the said Director had granted other similar admissions as well and some enquiries are pending against him." 32. In the additional affidavit dated November 25, 2005, in para 4, it was stated by the petitioner that as a result of the grave allegation of misuse of public office by Dr. (Maj Gen.) Virendra Singh, he has been removed from the post of Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was arrayed as respondent No. 9 and had filed affidavit after the above additional affidavit filed by the petitioner, it was only stated that para No. 4 was absolutely false, wrong and was denied. It is also clear that he was not holding the post of Director when he filed the said affidavit by admitting that he had left the office. It was also the case of the State as reflected in the order dated November 16, 2005 passed by this Court that illegal admission was granted by respondent No. 9. In the circumstances, it would have been appropriate if the State had filed an affidavit placing necessary facts before this Court. It is the duty of the State Government to see not only that the officers act in consonance with law, but also to ensure that no injustice has been done to meritorious students. Unfortunately however, the State Government has not properly assisted the Court by placing the relevant facts as are expected to be placed by a public authority. But in the light of what has been stated earlier, since we are not in a position to grant relief to the petitioner, we leave the matter there.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The said action was totally illegal, arbitrary and malicious. The petitioner was, therefore, entitled to get admission in Government Medical College, Rohtak, when respondent No. 6 Anusha Singh was admitted. Since he was denied admission and his right was ignored, he is entitled to the difference in payment of fee at Mullana and Rohtak and also to adequate compensation. So far as the amount of compensation is concerned, the petitioner has filed additional affidavit on November 25, 2005 wherein the break-ups have been given in differential amount in tuition fee, hostel charges, etc. He has claimed Rs. 5 lacs towards loss of better exposure in terms of education and practical training in Government Dental College and better job prospects. Further amount of Rs. 5 lacs has been claimed towards acute mental and physical agony, frustration and feeling of injustice. Cost of Rs. 50,000/- is also claimed. According to the petitioner, all these amounts are required to be paid at the interest of 10% from August 18, 2004, the initial date of payment of tuition fee and hostel charges by the petitioner to respondent No.815. So far as respondent Nos. 1, 2 and 8 are concerned, initially an affidavit was filed on January 12, 2005 by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak in the capacity of Director of the Institute. In that affidavit, the deponent stated that the petitioner had secured 128 marks and his rank was 418, but after breaking the tie of candidates who had secured 128 marks, his rank was changed from 418 to 423 which was proper and in accordance with rules. It was also stated that at the first counselling on August 9, 2004, the petitioner could not get admission in BDS course in Government Dental College, Rohtak and was admitted to M.M. Dental College, Mullana under General Category as per his merit and option. The second and third counselling were held on August 28, and September 29, 2004 respectively for filling up the vacant seats in different medical/dental colleges. The petitioner attended second and third counselling, but he neither opted for any change nor got himself wait-listed for any medical/dental college. It was then stated that on September 30, 2004, a letter was received from the Principal, Government Dental College, Rohtak regarding vacancy of three seats in Government Dental College, Rohtak due to non-deposit of fees by three selected students. September 30 was the last date for admission for the Academic Session 2004 for all Dental Colleges as held by this Court in Medical Council of India v. Madhu Singh & Ors., (2002) 7 SCC 258. It was, therefore, not possible to conduct counselling at the last moment and the only course available to the authorities was to fill three seats which remained vacant by admitting "the next wait-listed candidates". The three candidates including Anusha Singh, respondent No. 6 were, therefore, admitted on that day18. The petitioner thereafter stated that if the petitioner had not opted for any change nor had opted himself to be wait listed for any other medical/dental college, there was no reason for him to attend the second and third counselling. From the respondent No. 2s admission that the petitioner had attended the second and third counselling, it is clear that the petitioner wanted to change his college and had opted to be wait listedRegarding representation made by him to respondent No. 2, the Petitioner stated in the rejoinder-affidavit that the said representation was sent on October 19, 2004 by speed post and the same was delivered to respondent No. 2. Alongwith the affidavit in rejoinder, he had produced a copy of the original receipt dated October 19, 2004 issued by the Post Office in the nature of Confirmation Report of service upon the authority. As already stated earlier, the main grievance of the petitioner was that it was the Director who had granted illegal admission by allowing back door entry to respondent No. 6 and the said action was illegal and contrary to law. In the circumstances, the petitioner filed Interim Application No. 4 of 2005 praying for impleadment of Dr. (Major General) Virendra Singh, Ex-Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak which was granted and notice was issued to him directing him to file affidavit in reply. Respondent No. 9, pursuant to the above order filed additional affidavit at a belated stage on August 23, 2006 denying the allegations of mala fide levelled against him. In the said affidavit, he had stated that since he had left the institute, he was not aware as to what was happening in the matter. He also stated that "the deponent alone has no role to play in the admission of the students in the college". He admitted about counselling which took place on August 9, August 28 and September 29, 2004. He also admitted that the last date for filling up of all the seats was September 30 and the admissions were completed. According to him, though the petitioner was at rank No. 418, he was placed at Sl. No. 423 considering the breaking up of tie. He then stated that the petitioner accepted the seat at BDS, Mullana in the first counselling, but did not request for any wait-listing in any particular college or at all. On September 29, 2004, the Counselling Committee after filling up all the available seats in all colleges, had ruled that all admissions should be completed by September 30, 2004. He then stated that in any case, the petitioner had appeared in the first counselling and got his college BDS, Maullana and did not ask for any waitlisting. He appeared in second counselling but did not seek change of the seat/college but asked for wait listing. He appeared in the third counselling also and did not seek any change and did not waitlist. There are many who took seats and wanted to waitlist and then did not change the seats25. In our opinion, there is intrinsic evidence also which goes to show that probably the petitioner was not present on September 30, 2004. Admittedly, respondent No. 6 Anusha Singh was granted admission on September 30, 2006. It is the case of the petitioner from the beginning that on or about October 17, 2004, the petitioner came to know that admission was illegally granted to respondent No. 6 though her rank was 442 and rank of petitioner was 423. He, therefore, submitted a representation on October 19, 2004. Had the petitioner been present on September 30, 2004, he would have objected to the admission of respondent No. 6. Again he would have immediately come to know about her admission. In that case, he would have instantly approached the authorities putting forward his claim, but it was not done. In fact, a representation was made for the first time after about 18 days stating therein that he came to know on October 17, 2004 that admission was given to respondent No. 6 ignoring his legitimate claim. In the circumstances, in our opinion, grant of admission to respondent No. 6 on September 30, 2004 cannot be cancelled at this stageEven though the petitioner had wait-listed himself at first counselling on August 9, 2004, and precisely for that reason, he attended the second and third counselling, overlooking his legitimate claim and without affording an opportunity to get admission, respondent No. 6 who was at rank No. 442 had been admitted. This is, therefore, eminently a fit case, submitted the learned counsel, to direct payment of compensation over and above the difference in payment of tuition fee and hostel fee for Private Dental College as against Government Dental CollegeThe lis in this case cannot be said to be a private dispute between two parties. Respondent No. 9 was acting as a public authority and since he had acted arbitrarily, maliciously and deprived the petitioner of his legitimate and rightful claim and extended un-deserved benefit to respondent No. 6, an order of payment of compensation would serve the ends of justiceWe respectfully concur with the view that the court is not helpless and the wide powers given to this Court by Article 32, which itself is a fundamental right, imposes a constitutional obligation on this Court to forge such new tools, which may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution, which enable the award of monetary compensation in appropriate cases, where that is the only mode of redress available. The power available to this Court under Article 142 is also an enabling provision in this behalf. The contrary view would not merely render the court powerless and the constitutional guarantee a mirage but may, in certain situations, be an incentive to extinguish life, if for the extreme contravention the court is powerless to grant any relief against the State, except by punishment of the wrongdoer for the resulting offence, and recovery of damages under private law, by the ordinary process. It the guarantee that deprivation of life and personal liberty cannot be made except in accordance with law, is to be real, the enforcement of the right in case of every contravention must also be possible in the constitutional scheme, the mode of redress being that which is appropriate in the facts of each case. This remedy in public law has to be more readily available when invoked by the have not, who are not possessed of the wherewithal for enforcement of their rights in private law, even though its exercise is to be tempered by judicial restraint to avoid circumvention of private law remedies, where more appropriateThough we find considerable force in the submission of the learned counsel, in the facts and circumstances of the present case, we are not inclined to enter into larger question in view of the fact that it is not necessary to do so. Since, we are of the view and have held that on September 30, 2004, the petitioner in all probability was not present and admission was granted to respondent No. 6 Anusha Singh and the first complaint was made by him as late as on October 19, 2004 by stating that he had come to know about the illegality of admission in favour of respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under Article 32 of the Constitution, it would not be appropriate for this Court to award compensation to the petitioner either from the authorities or from the respondent No. 9 in his personal capacity. It is, however, open to the petitioner to take appropriate proceedings in accordance with law, if so advised. As and when such eventuality arises, the appropriate authority will pass an appropriate order in accordance with law without being inhibited or influenced by the observations made by us in this judgmentBefore closing the matter, we may observe one thing more. As already noted earlier, as early as on November 16, 2005, when the matter was heard by this Court, a grievance was made by the petitioner that though he was higher in rank, admission was illegally given to respondent No. 6 who was lower in rank. It was a back door admission, sacrificing merit and was granted by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel appearing for respondent Nos. 1, 2 and 8 did not seriously dispute the allegation about the back door admission having been granted to respondent No. 6 as alleged by the petitioner. The Court further observed; "Learned counsel further states that, in fact, the said Director had granted other similar admissions as well and some enquiries are pending against him."32. In the additional affidavit dated November 25, 2005, in para 4, it was stated by the petitioner that as a result of the grave allegation of misuse of public office by Dr. (Maj Gen.) Virendra Singh, he has been removed from the post of Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was arrayed as respondent No. 9 and had filed affidavit after the above additional affidavit filed by the petitioner, it was only stated that para No. 4 was absolutely false, wrong and was denied. It is also clear that he was not holding the post of Director when he filed the said affidavit by admitting that he had left the office. It was also the case of the State as reflected in the order dated November 16, 2005 passed by this Court that illegal admission was granted by respondent No. 9. In the circumstances, it would have been appropriate if the State had filed an affidavit placing necessary facts before this Court. It is the duty of the State Government to see not only that the officers act in consonance with law, but also to ensure that no injustice has been done to meritorious students. Unfortunately however, the State Government has not properly assisted the Court by placing the relevant facts as are expected to be placed by a public authority. But in the light of what has been stated earlier, since we are not in a position to grant relief to the petitioner, we leave the matter there.