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

2. The case of the petitioner is that he is a citizen of India and permanent resident of Faridabad. He is pursuing the BDS course in the first year in M.M. College of Dental Sciences & Research, Mullana - respondent No. 5 which is affiliated to Kurukshetra University, Kurukshetra3. It is the case of the petitioner that Maharshi Dayanand University, Rohtak (MDU for short), respondent No. 2 herein invited applications for "Common Entrance Examination, 2004" (CEE for short) for admission to MBBS/BDS in medical/dental colleges/institutes of the State of Haryana. Since the petitioner was eligible and was desirous of joining medical/dental course, he applied for the aforesaid examination in the prescribed form to respondent No. 2. He paid the requisite charges and supplied relevant details. The examination was held on June 21, 2004 in which the petitioner appeared vide Roll No. 109031. On June 28, 2004, respondent No. 2 notified the result of CEE, 2004 on Notice Board. Though the Prospectus provided that result of the Entrance Examination would be notified to the candidates individually by UPC Post, the petitioner was not intimated. He, however, found out from the internet that he had secured 128 marks out of 180 marks and was ranked at Sl. No. 418 in the Open Category. The Prospectus further provided that the date, time and place of Counselling would be intimated to the candidates by UPC Post calling the candidates for counselling. The petitioner was again not intimated about the date, time and place of counselling. Somehow, he came to know that the counselling was to be held at Rohtak on August 9, 2004. He attended the counselling and submitted all his certificates, marks-sheets etc. He, however, found that he had been arbitrarily placed at rank No. 423 instead of 418. The petitioner initially opted for MBBS course in any of the medical colleges mentioned in the Prospectus. Alternatively, however, he opted for BDS course in Government Dental College, Rohtak. Since the petitioner was informed that there were no seats available in MBBS anywhere or in BDS course in Government Dental College, Rohtak, he was constrained to opt for BDS course in a private Dental College, i.e. M.M. College of Dental Science & Research, Mullana. It is the assertion of the petitioner that as per Rule 3 of the Rules of Admission, the petitioner preferred to be wait-listed for MBBS in any of the colleges in Haryana and if no vacancy is available in MBBS course, a seat in BDS in Government Dental College, Rohtak4. At the time of first counselling, the petitioner was asked to report for medical check-up and to pay tuition fee for admission in BDS open category in private Dental College at Mullana on August 18, 2004. The petitioner accordingly complied with the directions, paid the fee for medical check-up and upon being found fit filled in the form for admission by paying Rs.99,000/- towards one year tuition fees and Rs. 10,000/- towards part-payment of hostel fees of Rs.30,000/- in private college at Mullana5. Upon seeing the result of the first counselling on the website of PGIMS, Rohtak, the petitioner was shown to be admitted at the private college at Serial No. 296 showing rank No. 423, while respondent No. 6 was shown at serial No. 300 at rank No. 442 as the last candidate in the BDS open category in respondent No. 5 - college. According to the petitioner, he waited for intimation for the second counselling which he did not receive, but from his own sources, he came to know about the second counselling and attended it at PGIMS, Rohtak on August 28, 2004. The Counselling Board informed the petitioner that no seat was available in MBBS/BDS as per the choice of the petitioner. As such the petitioner had to retain his seat in BDS in Open Category at Mullana waiting for the next round of counselling. Since MBBS seats were reported to have been increased form 100 to 150 at Medical College, Mullana, the petitioner legitimately expected to get a seat in BDS Open Category in Government Dental College, Rohtak inasmuch as candidates of BDS course in Government Dental College, Rohtak were likely to vacate their BDS seats to get seats in MBBS course at Mullana6. According to the petitioner, the third counselling was held on September 29, 2004. The petitioner was informed at that time that no seat was available in the course/institute of his choice. He, therefore, requested to accommodate him in BDS Open Category seat that may fall vacant due to non-reporting or non-payment of fee by any candidate at Government Dental College, Rohtak as the fee there was less than the fee at the private Dental College, Mullana7. The petitioner has stated that on October 17, 2004, he came to know that though Anusha Singh-respondent No. 6 had secured rank No. 442, she had been granted admission on provisional basis in BDS course in Government Dental College, Rohtak and the petitioner who ranked at Sl. No. 423 was denied admission. The petitioner, in the circumstances, made representation to the competent authority of PGIMS, Rohtak complaining about the injustice being done to him. The petitioner was neither granted admission nor did he receive any reply which constrained him to approach this Court by filing a writ petition under Article 32 of the Constitution on November 16, 20048. The petitioner has stated that he has directly approached this Court by invoking Article 32 of the Constitution since his fundamental right guaranteed under Article 14 had been violated. It is further stated that had he gone to a High Court, even if he had succeeded, the authorities would have approached this Court which would have further delayed the admission and the academic year would have been over9. The matter was placed for admission-hearing and notice was issued on December 6, 2004. An affidavit-in-reply was filed by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak. The said affidavit was filed on behalf of respondent nos. 1, 2 and 8, i.e. State of Haryana, M.D. University & Government Dental College, Rohtak and the Director. On January 25, 2005, respondent No.5, Dental College, Mullana also filed counter-affidavit through its Chairman. Likewise, affidavit-in-reply was filed by respondent No.6, Anusha Singh on February 21, 2005 who was granted admission though she had secured rank No. 442 as against rank No. 423 secured by the petitioner. The petitioner filed rejoinder to the affidavit of respondent No. 2 on July 18, 2005. On July 22, 2005, this Court passed an order to list the petition for final disposal on a non-miscellaneous day after three weeks. The order dated November 16, 2005 shows that back door admission sacrificing merit was granted to Anusha Singh (respondent No.6) by the Director, Pt. B.D. Sharma, Postgraduate Institute of Medical Sciences, Rohtak10. The Court also observed that admission for academic year 2004 could not be granted to the petitioner at that stage. It was, however, made clear that the question of cancellation of admission of respondent No. 6 would be examined at the time of final hearing of the writ petition11. On February 16, 2006, interlocutory application seeking impleadment of Dr. (Maj Gen.) Virendra Singh, Ex-Director of Medical College, Rohtak as party-respondent in his individual capacity in view of allegations of mala fide levelled against him was granted.

Reasoning:
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.