Allahabad High Court
Yasir Ali Khan vs State Of U.P. And 2 Others on 4 March, 2020
Bench: Bala Krishna Narayana, Ravi Nath Tilhari
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 4 A.F.R. Case :- WRIT - C No. - 44309 of 2017 Petitioner :- Yasir Ali Khan Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Birendra Pratap Singh Counsel for Respondent :- C.S.C.,Mahendra Pratap Hon'ble Bala Krishna Narayana,J.
Hon'ble Ravi Nath Tilhari,J.
(Per: Ravi Nath Tilhari, J.)
1. Heard Sri Birendra Pratap Singh, learned counsel for the petitioner, learned Standing Counsel for respondents-1 and 3 and Sri Mahendra Pratap, learned counsel for respondent-2.
2. The present writ petition has been filed by the petitioner for the following reliefs:
"a) Issue a writ, order or direction in the nature of mandamus commanding and directing the respondents to take admission in Ist year M.B.B.S. Course 2017-18 in the allotted college of respondent no.3 namely T.S. Mishra Medical College and Hospital Lucknow (Private) Co-Education which is allotted in second counseling held by respondent no.2.
(c) Issue a writ order or direction in the nature of mandamus for refunding the counseling fees of Rs.2 lakh to the petitioner deposited to the D.G.M.E. &T, Lucknow through D/D.
b) Issue any other appropriate writ, order or direction which this Hon'ble Court may deems fit and proper in the demand of justice.
c) Allow the writ petition with cost."
3. The facts of the present case are that the petitioner appeared in National Eligibility cum Entrance Test Counseling-2017 NEET 2017 for admission in M.B.B.S//B.D.S. Course conducted by C.B.S.E Board and got NEET marks 170 and NEET Rank 413792 and thereafter he appeared in U.P. NEET U.G. counseling and his registration no. was 1000122, wherein the petitioner's original documents were verified at the document verification center S.N. Medical College Agra. The petitioner submitted a demand draft of Rs.2-00 lac as security money in favour of Director, Medical Education-respondent-2. In the second counseling, the petitioner was allotted T.S. Mishra Medical College and Hospital, Lucknow(Private Co-education) by respondent-2. The total fee for the first year, was Rs.22,01,000/-to be deposited at the time of admission in the allotted college and the security money of Rs.2-00 lac was to be adjusted in it. The Director, General Medical Education/respondent-2, who was the Chairman of the counseling Board, issued a Schedule dated 4.8.2017(Annexure-3 to the writ petition), for the second counseling and as per the said schedule the documents verification was to be done between 9th August and 12th August, 2017 (both dates inclusive) and merit list was to be published on 13th August, 2017. The candidates were required to fill choice on 18th August,2017 and the result was to be declared on 19th August, 2017. The candidate was to download the result and take admission in the allotted institute on 20th and 21st August, 2017.
4. Further case of the petitioner is that the result of the counseling was not published on 19th August, 2017 but was published on 20th August, 2017 at 1-30 P.M. and thereafter, the petitioner acquiring knowledge that he was allotted T.S. Mishra Medical College and Hospital, Lucknow, on 21.8.2017 itself contacted the allotted college for admission and requested that some time for deposit of admission fee be given but the petitioner's request was turned down. The petitioner on 21st August, 2017 reporting about the College, sent messages on g-mail to respondent no.2. On 22nd August, 2017 all India banks were on strike and after opening of the Bank on 23rd August, 2017, the petitioner got prepared the demand draft for Rs.8,50,000/- from Axis Bank. The petitioner again requested the respondent-2 on 28th August, 2017 through g-mail for mop up round but no response was received, although many students were allowed to appear in mop up round who had already availed the earlier counseling and college was also allotted to them. This continued up to 31st August, 2017. On 2nd September, 2017, the petitioner sent a representation via g-mail to the respondent-2 (Annexure-6 to the writ petition) raising all the grievances therein which was followed by representation dated 6.9.2017, but, the respondent-2 neither permitted the petitioner to take admission in the allotted college nor took any decision on the application/representations of the petitioner.
5. Learned counsel for the petitioner has submitted that as the result was not published on 19th August, 2017 the scheduled date, but was published late on 20th August, 2017 at 1-30 P.M. the petitioner could not get reasonable time, as per the schedule, for approaching the college for admission with complete required formalities. If the result had been published as per the schedule, on the website, the petitioner would have got sufficient time to appear for admission on the date fixed along with requisite fee to be deposited. Thus, there was fault on the part of the respondents in not adhering to the time schedule in publication of the result and as such the authorities are bound either to take admission of the petitioner or refund the amount of Rs.2,00,000/- of security money to the petitioner.
6. Sri Mahendra Pratap, learned counsel for respondent-2 has submitted that the second round of counseling of NEET PG 2017 was held as per the prescribed time schedule. On 19th August, 2017, National Informatics Centre(NIC) completed the processing of choice filling and choice lock of the seats, at about 1-00 hrs in the mid-night of 19th August, 2017 and later on cross checking was also done. NIC made the result available to the students on official website on 20th August, 2017 at 02:16:18 hours. Many candidates took admission after downloading their allotment letters on 20th August, 2017 and 21st August, 2017.
7. Learned counsel for respondent-2 has further submitted that there was no change in the time schedule. He submitted that as per the Government Order dated 3rd July, 2017 and brochure, the petitioner was not eligible for mop up round and as per the Supreme Court's judgment as well as the notifications of the Medical Council of India(MCI), no admission was possible after 31st August, 2017. The petitioner himself did not complete the formalities for admission in the allotted Medical College in time and was rightly denied admission.
8. Learned counsel for respondent-2 has further submitted that G.O. No.2234/71-2-17-158/2017 dated 3rd July, 2017 and 02nd August, 2017 (SCA-1 to the counter affidavit) provided for the procedure for depositing the security money and the conditions under which the security money was liable to be returned/refunded and as to when it would be forfeited. In the NEET UP Counseling 2017, Brochure also, there is a specific clause about the security money (Annexure No. SCA-2 ) according to which, if a candidate does not take admission in the allotted college or after taking admission leaves the college, his security money shall be forfeited and cannot be refunded. His submission is that as the petitioner did not take admission in the allotted college, the security money deposited by him was not liable to be refunded/returned, in view of the aforesaid Government Orders. He has further submitted that there is no challenge to the Government Orders and the Brochure, on the point, and as such no relief can be granted to the petitioner for refund of the security money, particularly, when the condition under which it becomes refundable does not exist.
9. Learned Standing Counsel has also submitted that the petitioner not having taken admission in time, is not entitled for refund of the security money and after 31st August, 2017, he cannot be allowed admission.
10. We have considered the submissions advanced by the learned counsel for the petitioner as well as learned counsels for the respondents and have perused the material on record.
11. We are of the considered view that as per the judgment of the Hon'ble Supreme Court, in the case of Ashish Ranjan vs. Union of India, (2016)11 SCC 225, giving the stamp of approval to the schedule for completion of the admission process for First MBBS Course, in the 'Regulations on Graduate Medical Education, 2015', petitioner's prayer 'a)' for giving direction to the respondents to take admission of the petitioner in the first year MBBS Course, 2017, after 31st August, 2017, the last date upto which students could be admitted/joined against vacancies arising due to any reason, is misconceived and liable to be rejected. No such direction can be issued.
12. The learned counsel for the petitioner has vehemently pressed for prayer 'c)' for direction to the respondents to refund security money of Rs.2,00,000/- to the petitioner, which was deposited with D.G.M.O. through demand draft.
13. We now proceed to consider if the security money of Rs.2-00 lac deposited by the petitioner can or cannot be directed to be refunded to the petitioner.
14. The G.O. No.2234/71-2-17-158/2017 dated 3rd July, 2017(Annexure SCA-1 to the supplementary counter affidavit) contains specific clause about the security money. As per clause VIII, the candidate to whom private college is allotted, has to deposit Rs.2-00 lac as security money which shall be refunded to the candidates who take admission in the allotted college but if after allotment of college, any candidate fails to take admission or resigns/leaves the college after taking admission, his security money shall not be refunded.
15. Clause VIII of the G.O. Dated 03.07.2017 reads as follows:-
" (VIII) flD;ksfjVh euh ¼/kjksgj /kujkf'k½%& uhV ;w0th0 2017 dh vkWuykbZu dkmaflfyax ds ek/;e ls jktdh; [email protected] dkystksa@fo'ofo|ky;ksa@ laLFkkuksa esa vkoaVu izkIr vH;fFkZ;ksa }kjk 20]000@& ¼:i;s chl gtkj ek=½ rFkk futh {ks= ds [email protected] dkysatksa] fo'ofo|ky;ksa] vYila[;d laLFkkuksa] vYila[;d fo'ofo|ky;ksa] MhEM fo'ofo|ky;ksa esa vkoaVu izkIr vH;fFkZ;ksa }kjk :0 2]00]000@& ¼:i;s nks yk[k ek=½ dh /kujkf'k flD;ksfjVh euh ds :i esa ,ykWVesUV ySVj MkmuyksM ds igys vkWuykbZu izfØ;k ¼MsfcV@dzsfMV dkMZ@bUVjusV cSafdx ls gh½ ds ek/;e ls tek djuk vfuok;Z gksxkA ftu Nk=ksa }kjk vkoaVu ds i'pkr lEcfU/kr dkystksa esa izos'k izkIr dj fy;k tk;sxk] mudh flD;ksfjVh /kujkf'k okil dj nh tk;sxhA ;fn dksbZ vH;FkhZ vkoaVu ds i'pkr ikB~;Øe esa izos'k ugha ysrk gS vFkok izos'k ysus ds i'pkr R;kxi= ns nsrk gS ¼uhV LVsV dksVk lhVksa ij iquvkZoaVu dh fLFkfr dks NksM+dj½ rks mls mlds }kjk tek dh x;h /kjksgj /kujkf'k okil ugha dh tk;sxhA "
16. By subsequent Government Order No.2823/71-217-178/2017 dated 02.08.2017 issued for NEET UG 2017 (Annexure SCA-2 to the supplementary affidavit) the earlier G.O. dated 3.7.2017 was modified to some extent, but maintaining the rest of the conditions and provisions as they were. This G.O. dated 2.8.2017 re-scheduled/modified the programme of second round and mop up round counselling. The modified schedule and the provision regarding security money as per G.O. dated 2.8.2017 are being reproduced as under:-
(i) "¼f}rh; jkm.M@eki&vi jkm.M dh dkmaflfyax rFkk izos'k vkfn dh dk;Zokgh fuEufyf[kr ;Fkkla'kksf/kr f'kM~;wy ds vuqlkj djk;h tk;%& Ø0 l0 fooj.k vof/k fnol 1 iqu% iathdj.k fnukad 06 ls 10 vxLr 2017 rd 05 2 f}rh; dkmaflfyax gsrq vfHkys[kksa dk lR;kiu fnukad 09 vxLr 2017 ls 12 vxLr 2017 rd 04 3 esfjV lwph dk izdk'ku fnukad 13 vxLr 2017 01 4 f}rh; pdz dh PokbZl fQfyax 18 vxLr 2017 01 5 Ikfj.kke dh ?kks"k.kk 19 vxLr 2017 01 6 vkoaVu i= MkmuyksM djus rFkk izos'k dh frfFk fnukad 20 ,oa 21 vxLr 2017 02 7 eki&vi jkm.M gsrq iathdj.k fnukad 23 vxLr 2017 01 8 esfjV lwph dk izdk'ku 24 vxLr 2017 01 9 jktdh; lhVksa gsrq ekWi vi jkm.M vkoaVu dh dk;Zokgh ,oa izos'k fnukad 25 vxLr 2017 01 10 futh {ks= dh ,e0ch0ch0,l0 ikB~;dze dh lhVksa gsrq ekWi vi jkm.M dh dk;Zokgh ,oa izos'k fnukad 26 ,oa 27 vxLr 2017 02 11 futh {ks= dh ch0Mh0,l0 ikB~;dze dh lhVksa gsrq ekWi vi jkm.M dh dk;Zokgh ,oa izos'kA Hkkjr ljdkj }kjk ch0Mh0,l0 ikB~;dzeksa esa izos'k gsrq tkjh uohu le;&lkfj.kh ds vuqlkj vkns'k vyx ls fuxZr fd;s tk;sxsaA &
(iv) flD;ksfjVh euh& 'kklukns'k la[;k&2234@71&2&17&158@2017] fnukad 03-07-2017 }kjk futh {ks= ds [email protected] dkystksa] fo'ofo|ky;ksa] vYila[;d laLFkkuksa] vYila[;d fo'ofo|ky;ksa] MhEM fo'ofo|ky;ksa esa vkoaVu izkIr vH;fFkZ;ksa }kjk :0 2]00]000@& ¼:i;s nks yk[k ek=½ dh /kujkf'k flD;ksfjVh euh ds :i esa ,ykWVesUV ySVj MkmuyksM ds igys vkWuykbu izfdz;k ¼MsfcV@dzsfMV dkMZ@bUVjusV cSafdx ls gh½ ds ek/;e ls tek fd, tkus ds vkns'k fuxZr fd, x;s FksA uhV ;w0th0 2017 dh izFke pdz dh vkWuykbu dkmaflfyax esa futh {ks= ds esfMdy dkystksa dh ,e0ch0ch0,l ikB~;dze dh dqy 2550 lhVksa ds lkis{k 2530 lhVksa ij rFkk ch0Mh0,l0 ikB~;dze dh 2200 lhVksa ds lkis{k 2120 lhVksa ij vkoaVu dh dk;Zokgh dh x;h FkhA ,e0ch0ch0,l dh vkoafVr 2530 lhVksa ds lkis{k 153 lhVksa rFkk ch0Mh0,l0 ikB~dze dh vkoafVr 2120 lhVksa ds lkis{k 254 lhVksa ij gh vH;fFkZ;ksa }kjk ,ykWVesaV ysVj MkmuyksM dj izos'k fy;k x;k gSA blls Li"V gS fd vf/kdrj vH;fFkZ;ksa us izFke pdz dh dkmaflfyax ds ek/;e ls vkoafVr lhVksa ds lkis{k ,ykWVesaV ysVj MkmuyksM dj izos'k ugha fy;k x;k gSa vr% izos'k gsrq bPNqd vH;FkhZ gh lhV ykWd djs blds fy, Pokbl ykfdax ds iwoZ gh lEcfU/kr vH;FkhZ ls flD;ksfjVh dh /kujkf'k :0 2-00 yk[k izfdz;k ¼MsfcV@dzsfMV dkMZ@bUVjusV cSafdax½ rFkk cSad }kjk vkj0Vh0th0,l0 ds ek/;e ls tek djk;h tk;A 2& 'kkluns'k fnukad 03-07-2017 ds fcUnq&V esa mfYyf[kr 'kSf{kd vgZrk dh rkfydk ds dzekad&2] 3 ,oa 4 esa mfYyf[kr vuqlwfpr tkfr@vuqlwfpr tutkfr ,oa vU; fiNM+k oxZ gsrq Neet Percentile ds dkye es 45 ds LFkku ij Neet Percentile 40 le>k tk;A 3& dkmaflfyax@izos'k ds lEcU/k esa iwoZ esa fuxZr 'kklukns'k fnukad 03-07-2017 dks mi;qZDr lhek rd la'kksf/kr le>k tk;A 'ks"k 'krsZ ,oa izfrcU/k ;Fkkor~ jgsxhA 4& egkfuns'kd fp0f'k0 }kjk mi;qZDr vkns'kksa dk O;kid izpkj&izlkj lekpkj i=ksa ds ek/;e ls lqfuf'pr fd;k tk;sxk rFkk futh {ks= ds leLr [email protected] dkystksa] fo'ofo|ky;ksa] vYila[;d laLFkkuksa] vYila[;d fo'ofo|ky;ksa] MhEM fo'ofo|ky;ksa dks iz'uxr 'kkluns'k dh izfr miyC/k djkuk lqfuf'pr fd;k tk;sxkA 'kklukns'k dh izfr osclkbV www.updgme.in ,oa https://upneet.gov.in ij egkfuns'kd] fpfdRlk f'k{kk ,oa izf'k{k.k] y[kuÅ }kjk viyksM dh tk;sxhA d`i;k mijksDrkuqlkj vxzsrj dk;Zokgh le;c) :i ls lqfuf'pr djus dk d"V djsaA"
17. Brochure of NEET U.P. Counseling 2017 also contains specific clause about the security money. It also provides that if a candidate does not take admission after allotment or if leaves the allotted college after taking admission, security money shall not be refunded. It is relevant to reproduce the provision as regards security money in the Brochure as follows:-
राजकीय तथा निजी क्षेत्र के मेडिकल/ डेण्टल कालेजों हेतु धरोहर धनराशि लिये जाने के सम्बन्ध में
1. नीट यू०जी० 2017 की उत्तर प्रदेश की आँनलाइन काउंसिलिंग के माध्यम से राजकीय मेडिकल / डेन्टल कालेजों / विश्वविद्यालयो / संस्थानों में आवंटन प्राप्त अभ्यर्थियों द्वारा रू० 20,000/- (रूपये बीस हजार मात्र) तथा निजी क्षेत्र के मेडिकल / डेण्टल कालेजों / विश्वविद्यालयों / अल्पसंख्यक संस्थानों / अल्पसंख्यक विश्वविद्यालयों / डीम्ड विश्वविद्यालयों में आवंटन प्राप्त अभ्यथियों द्वारा 2,00,000/-(रूपये दो लाख मात्र) की धनराशि सिक्योरिटी मनी के रूप में आनलाईन प्रक्रिया(डेबिट / क्रेडिट कार्ड / इन्टरनेट बैंकिंग से ही) के माध्यम से जमा करना अनिवार्य होगा।
ऑनलाईन काउंसिलिंग (Online counseling) ऑनलाईन काउंसिलिंग प्रवेश सबंधी सूचनाः (अ) ..................................
(ब) ...................................
(स) ....................................
(द) यदि कोई अभ्यर्थी आवंटन के पश्चात पाठ्यक्रम में प्रवेश नहीं लेता है अथवा प्रवेश लेने के पश्चात् त्यागपत्र दे देता है तो धरोहर धनराशि वापस नहीं की जायेगी।
18. From a conjoint reading of the Government Orders dated 3.7.2017 and 2.8.2017, it is evident that there was no change as regards the provision for refund of security amount. It continued as it existed in G.O. Dated 3.7.2017. However, the schedule was changed and as per this schedule, 19.8.2017 was the date for declaration of result.
19. The Director General, Medical Education and Training, U.P. Lucknow issued letter No.M.E.-3/2017 dated 4.8.2017 for the second counselling and as per this letter, 19.8.2017 was the date for declaration of result and the date for downloading allotment letter and for taking admission in the allotted college was 20th and 21st August, 2017. The said schedule is being reproduced as under:-
"dk;kZy; egkfuns'kd] fpfdRlk f'k{kk ,oa izf'k{k.k] mRrj izns'k] NBk] ry] tokgj Hkou] y[kuÅ la[;k&,e0bZ0&3@2017@ y[kuÅ% fnukad 04 vxLr 2017 jk"Vªh; ik=rk lg izos'k ijh{kk ¼N.E.E.T) 2017 dh f}rh; pdz dh vkWuykbZu dkmaflfyax gsrq vkWuykbZu iathdj.k] vfHkys[kks ds lR;kiu] PokbZl fQfyax rFkk izos'k vkfn ds lac/k esa egRoiw.kZ lwpuk 'kklukns'k la[;k&2823@71&2&17&158@2017 fnukad 02 vxLr 2017 esa fufgr funsZ'kksa ds dze esa NEET- 2017 ds ek/;e ls p;fur Nk=ksa ds 'kS{kf.kd l= 2017&18 esa mRrj izns'k jkT; dh ,e0ch0ch0,l0 ,oa ch0Mh0,l0 ikB~;dze dh lhVksa ij f}rh; pdz dh vkuWykbu dkmaflfyax rFkk eki&vi jkm.M vkoaVu rFkk izos'k vkfn dh dk;Zokgh fuEukuqlkj lEiUu dh tk,xh%& dz0 la0 fooj.k vof/k 1 आनलाईन पुनः पंजीकरण fnukad 06 ls 10 vxLr 2017 rd 2 f}rh; dkmaflfyax gsrq vfHkys[kksa dk lR;kiu fnukad 09 vxLr 2017 ls 12 vxLr 2017 rd 3 esfjV lwph dk izdk'ku fnukad 13 vxLr 2017 4 दिव्यांग छात्रों हेतु मेडिकल बोर्ड का गठन fnukad 08 ls 10 vxLr 2017 rd 5 द्वितीय चक्र की च्वाईस फिलिंग fnukad 18 vxLr 2017 6 Ikfj.kke dh ?kks"k.kk 19 vxLr 2017 7 vkoaVu i= MkmuyksM djus rFkk izos'k dh frfFk fnukad 20 ,oa 21 vxLr 2017 8 eki&vi jkm.M gsrq आनलाईन iathdj.k fnukad 23 vxLr 2017 9 esfjV lwph dk izdk'ku fnukad 24 vxLr 2017 10 jktdh; lhVksa gsrq ekWivi jkm.M vkoaVu dh dk;Zokgh ,oa izos'k fnukad 25 vxLr 2017 11 futh {ks= dh ,e0ch0ch0,l0 ikB~;dze dh lhVksa gsrq ekWi vi jkm.M dh dk;Zokgh ,oa izos'k fnukad 26 ,oa 27 vxLr 2017
20. There is no dispute that the result was to be declared on 19.8.2017 as per the schedule. However, according to the petitioner, result was declared on the website on 20.8.2017 at about 12 noon or 1-00 P.M. and according to the respondent-2, as per the counter affidavit, paragraph-4, the processing for second round of counseling was completed on 19.8.2017, at about 01-00 midnight and later on cross checking was also done and NIC uploaded the result on the official website on 20.8.2017 at 02:16:18 hours.
Paragraph-4 of the counter affidavit of respondent no.2 is being reproduced as under:-
"4. That, in reply to para 9, 10,11, 12, 13 & 14 of the writ petition it is respectfully submitted that the second round of conseling NEET PG 2017 was held as per procedure prescribed and time schedule according to G.O. Dated 02.08.2017. On 19.08.2017 the NIC completed the processing of choice filing and choice lock of the seats. Processing was completed at about 01.00 in the mid night of 19.08.2017 and later on cross checking was also done. The NIC made the result available to the students on official web site on 20.08.2017 at 02.16.18 Hr. The candidates had taken admission after downloading their allotment letters on 20.08.2017 and 21.08.2017. There was no change in time schedule."
21. Thus, the respondent-2 has admitted that the result of the second counseling was not declared on 19.8.2017, the date fixed as per the schedule, for declaration of result but it was declared on 20.8.2017.
22. In Priya Gupta vs. State of Chhatisgarh and others, (2012) 7 SCC 433, the Hon'ble Supreme Court held that the schedule prescribed have the force of law and are binding on all concerned and it is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation. Paragraph-40 of Priya Gupta case (supra) is being reproduced as under:-
"40. The schedules prescribed have the force of law, in as much as they form part of the judgments of this Court, which are the declared law of the land in terms of Article 141 of the Constitution of India and form part of the regulations of the Medical Council of India, which also have the force of law and are binding on all concerned. It is difficult to comprehend that any authority can have the discretion to alter these schedules to suit a given situation, whether such authority is the Medical Council of India, the Government of India, State Government, University or the selection bodies constituted at the college level for allotment of seats by way of counseling. We have no hesitation in clearly declaring that none of these authorities are vested with the power of relaxing, varying or disturbing the time schedule, or the procedures of admission, as provided in the judgments of this Court and the Medical Council of India Regulations."
23. In the case of Mridul Dhar vs. Union of India, reported in (2005) 2 SCC 65 the Hon'ble Supreme Court of India emphasized for timely declaration of results, to save the candidates and their parents from facing undesirable hardships. Paragraph 17 of Mridul Dhar (supra) is being reproduced as under:-
17. Another connected aspect is declaration of result of qualifying Examination/Entrance Examination for State quota seats. The State Governments, as per the time schedule are required to declare the said results by 15th June of every year. The timely declaration of result will enable the students to take a decision about participation in All India counseling or State counseling. The Central Government has rightly pointed out that due to late declaration of result of State level entrance examination, candidates and their parents travel from all over the country to participate in All India Quota Counseling which is conducted in Delhi and then travel to allotted medical/dental colleges. Later on, if the candidates get admission in the colleges of their choice in their respective States through State counseling, they have to travel back to the college allotted through All India Quota to get their college leaving certificate and other documents which are deposited with allotted college before joining the State college. By timely declaration of the results of the State level entrance examination i.e. by 15th June, which is before the start of All India Quota counseling, candidates and their parents can be saved from facing undesirable hardships."
24. In Priya Gupta (supra), also the importance of declaration of result for the entire admission process was observed. The Supreme Court while noticing Mridul Dhar case(supra) observed in paragraph-30 as under:-
"30. The Court in Mridul Dhar case(Mridul Dhar v. Union of India, (2005) 2 SCC 65 noticed that the holding of 10+2 examination and declaration of results is also of importance for the entire admission process and, therefore, directed strict adherence to the Schedule in all respects and by all concerned. The date of 30th September was stated not t be the date of normal admission but is to give opportunity t grant admission against stray vacancies. The Court clarified that adherence to the time schedule by everyone was a paramount concern. In that case, the Court issued a specific direction to all the State functionaries, particularly the Chief Secretaries and heads of the Ministries/Departments concerned participating in the States/Union Territories adopting the time schedule and holding he State examination to ensure declaration of results on or before 15.-6.2005.."
In Paragraph 72 of Priya Gupta (Supra) adherence to the time schedule, procedure for selection/admission and strict observance of M.C.I. Regulations by all concerned was emphasized. Paragraph 72 is being quoted as under:-
"72. Balancing of equities by the Court itself is inequitable. Some party or the other would suffer a set back or adverse consequence from the order of the Court. On the one hand, if admissions are cancelled, the students who have practically completed their MBBS course would lose their professional education as well as nearly five years of their life spent in such education. If their admissions are protected, then the standard of education, the merit of the candidates and the desirability of the persons of higher merit becoming doctors is negated. The best solution to such problems is strict adherence to the time schedule, procedure for selection/admission and strict observance of the Medical Council of India Regulations, by all concerned. Once these factors are adhered to, not only would such situation not arise, but also it will prevent avoidable litigation before the Courts. The persons who violate the time schedule to grant admissions in an arbitrary manner and by colourable exercise of power, who are not adhering to Medical Council of India Regulations and the judgments of this Court, should be dealt with strictly by punishment in accordance with law, to prevent such mischief from repeating."
25. Subsequent to Priya Gupta decision, Regulations of M.C.I. were amended empowering the Central Government to modify the Stages and time limits in the schedule to the regulations. In Royal Medical Trust (Regd.) and another vs. Union of India and another (2015) 10 SCC 19, the Hon'ble Supreme Court held that the directions in Priya Gupta case must now be understood in the light of such statutory empowerment and it was declared that it was open to the Central Government to extend or modify the time limits in the schedule to the Regulations.
26. Thus, the schedules prescribed have the force of law and have to be mandatorily followed. The non observance of the schedules may give rise to many mischiefs, including arbitrariness in giving admission to the candidates. However, here, we are concerned with the refund or forfeiture of security money, deposited by a candidate, who could not take admission in time, in the allotted college.
27. Clause VIII of the G.O. Dated 3.7.2017 as well as the Brochure, as reproduced above, provide that if a candidate after allotment does not take admission in the allotted college or if after taking admission leaves the college, the security amount shall not be refunded/returned. However, we cannot read Clause VIII, in isolation. The other provisions of the G.O dated 03.07.2017, particularly, the final schedule for declaration of result, as fixed and modified by G.O. Dated 2.8.2017, are also be read. When we read the aforesaid provisions, together, we are of the considered view that the security amount can be forfeited or not refunded to a candidate, if the time schedule for declaration of result, is strictly adhered to by the authorities. If the result is declared as per the time schedule, on the date fixed for declaration of result, and in spite thereof the candidate to whom college is allotted does not take admission, the security money, deposited by the candidate shall not be refunded to the candidate. But, if the result is not declared in time and is delayed, as in the present case, it was declared on 20.8.2017 instead of 19.8.2017, Clause VIII cannot be invoked to forfeit the security money, if the candidate fails to take admission in the allotted college in time as per the time schedule for taking admission.
28. We are of the considered view that as per the schedule, the authorities in their own wisdom allowed two complete days' time to the candidate for taking admission in the allotted college, after the date of declaration of the result, considering such time as a reasonable time. The delay in declaration of one day necessarily reduced the period of 2 days for taking admission in the allotted college. On the face of the schedule and the actual date of declaration of result , the petitioner did not get that reasonable time of 2 days for admission in the allotted college. The petitioner cannot be held to have failed to take admission in the allotted college in time, in terms of Clause VIII of the Government Order dated 3.7.2017. Any such failure to take admission by the petitioner is referable to the act of the respondents in failing to declare result as per the schedule, in time.
29. It is well settled in law that an authority cannot take advantage of its own wrong. In the case of Kusheshwar Prasad Singh vs. State of Bihar, reported in (2007)11 SCC 447 the Hon'ble Supreme Court has held that an authority cannot be allowed to take advantage of its own wrong giving favourable interpretation of law. It is relevant to reproduce paragraphs 13 to 16 of the report as under:-
"13. The appellant is also right in contending before this Court that the power under Section 32B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32B. The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of its own default in failure to act in accordance with law and initiate fresh proceedings.
14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani & Another v. Narmada Bala Sasmal & Another, AIR 1961 SC 1353, wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim 'Commodum ex injuria sua nemo habere debet' (No party can take undue advantage of his own wrong).
15. In Union of India & Ors. v. Major General Madan Lal Yadav (Retd.), (1996) 4 SCC 127, the accused-army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time-barred. This Court referred to Broom's Legal Maxims (10th Edn.) p. 191 wherein it was stated;
"it is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure".
16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned. To put it differently, "a wrong doer ought not to be permitted to make a profit out of his own wrong"."
30. We are not convinced with the submission of the learned counsel for respondent-2 that in the absence of any challenge to the G.O.s dated 3.7.2017 and 2.8.2017, with respect to the security money clause contained therein, any relief of refund of the security amount cannot be granted to the petitioner, inasmuch as the manner in which we have read the aforesaid Government Orders and Brochure, make the provisions relating to security money, its refund/forfeiture, equitable and reasonable. On the other hand, if we read the above provisions in the manner suggested by the learned counsel for respondent-2, i.e. in isolation from the schedules prescribed for declaration of result and taking of admission in the allotted college, that would confer arbitrary powers on the authorities to forfeit the security money in all the cases, including those cases where the fault does not lie on the part of the candidate but lies on the authorities. This would be inequitable and would render the provision arbitrary as well as conferring arbitrary power on the authorities. It is settled in law that arbitrariness in State action is negation of rule of law and violates the right of equality as enshrined in Article 14 of the Constitution of India.
31. In view of the above reading of the Government Orders relating to security money clause, the same does not require any challenge by the petitioner for the relief of refund of the security amount.
32. We, therefore, allow this petition in part and direct the respondents to refund the amount of security money of Rs.2,00,000/-, deposited with respondent-2, within a period of two weeks from the date of production of a certified copy of this judgment before the said authority.
33. No orders as to costs.
Order Date :- 4.3.2020 mt