Karnataka High Court

Ms Tanishq vs Karnataka Examination Authority on 12 October, 2023

Bench: G.Narendar, Vijaykumar A Patil

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                                                     WP No. 22096 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 12TH DAY OF OCTOBER, 2023
                                           PRESENT
                             THE HON'BLE MR JUSTICE G.NARENDAR
                                             AND
                         THE HON'BLE MR JUSTICE VIJAYKUMAR A. PATIL


                          WRIT PETITION NO. 22096 OF 2023 (EDN-RES)


                   BETWEEN:

                   MS TANISHQ
                   AGED ABOUT 18 YEARS,
Digitally signed
by RUPA V          D/O MUKESH KUMAR,
Location: HIGH     R/O NEAR SHIV MANDIR,
COURT OF           MUSTAFAPUR,
KARNATAKA          PATNA,
                   BIHAR - 801105
                                                             ...PETITIONER
                   (BY SRI. KSHAMA NARGUND, ADVOCATE)


                   AND:

                   1.    KARNATAKA EXAMINATION AUTHORITY
                         THROUGH ITS CHAIRMAN OF THE
                         ADMISSION OVERSEEING COMMITTEE,
                         ADDRESS: ADMISSION
                         OVERSEEING COMMITTEE,
                         2ND FLOOR, KEA BUILDING,
                         SAMPIGE ROAD,
                         18TH CROSS,
                         MALLESHWARAM,
                         BANGALORE - 560012
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                                  NC: 2023:KHC:37206-DB
                                  WP No. 22096 of 2023




2.   MEDICAL COUNSELLING COMMITTEE (MCC)
     THROUGH ITS CHAIRMAN
     MINISTRY OF HEALTH AND
     FAMILY WELFARE
     GOVERNMENT OF INDIA
     ADDRESS: NIRMAN BHAWAN,
     NEW DELHI - 110011.

3.   STATE OF KARNATAKA
     DIRECTORATE OF MEDICAL EDUCATION
     THROUGH ITS DIRECTOR,
     DR. B L SUJATHA RATHOD,
     MS-OPHTHALMOLOGY
     ADDRESS:
     BANGALORE MEDICAL COLLEGE
     AND RESEARCH INSTITUTE
     (OLD BUILDING), FORT, K R ROAD,
     BANGALORE - 560002, KARNATAKA

4.   J.N.MEDICAL COLLEGE,
                                            R4 Amended vide court
     KLE UNIVERSITY CAMPUS,
                                            order dated: 05.10.2023
     NEHRU NAGAR,
     BALAGAVI - 590010.

                                        ...RESPONDENTS
(BY SRI. N.K.RAMESH, ADV. FOR R1,
 SRI. SHANTHI BHUSHAN H, DSG FOR R2,
 SRI. M.N.SUDEV HEGDE, AGA FOR R3,
 SRI. P.N.RAJESHWARA, ADV. FOR R4.)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
MANDAMUS OR ANY OTHER APPROPRIATE WRIT AS THIS
HON'BLE COURT MAY DEEM FIT TO THE RESPONDENT No. 1
THEREBY DIRECTING THE RESPONDENT No.1 TO ACCEPT THE
ADMISSION OF THE PETITIONER AS WAS ALLOTTED TO HER
AS PER LIST DATED 27.09.2023 ETC.

     THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
G.NARENDAR J., MADE THE FOLLOWING:
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                                        WP No. 22096 of 2023




                          ORDER

1. Heard the learned counsel for the petitioner, learned

DSG for respondent No.2, learned counsel for respondent

No.1, learned counsel for respondent No.3 and learned

counsel for respondent No.4.

2. The short point that arises for consideration in the

instant writ petition is whether this Court in exercise of

powers under Article 226 of the Constitution of India would

be entitled to condone the delay in payment of fee

pursuant to allotment of seat made to the petitioner prior

to the last date of admission fixed by the Hon'ble Apex

Court ?

3. The petitioner is before this Court in very peculiar

circumstance. The petitioner, an aspirant for a medical

seat participated in the NEET examinations and having

secured qualifying marks and being eligible to be

considered for admission to a medical course, participated

in the counseling conducted by respondent No.2 and

respondent No.1. Stray round counseling was conducted

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by respondent No.2 on 23.09.2023. Subsequent to the

same, on 24.09.2023, respondent No.1 i.e., Karnataka

Examinations Authority also notified stray round of

counseling for unfilled seats after the mop-up round and

also allowed fresh registration till 25.09.2023 and

subsequently, the same came to be extended till

26.09.2023. Pursuant to the Notification issued by

respondent No.1 - KEA, the petitioner also deposited the

caution amount and the petitioner's name was registered

enabling her to participate in the counseling.

4. On 27.09.2023, respondent No.2 published results of

the counseling in the stray round and the name of the

petitioner was found at Sl.No.761 in the said list and was

allotted a seat in Jawahar Lal Nehru Medical College

(JNMC), Belagavi. The following day i.e., 28.09.2023,

respondent No.1 also released the allotment list, pursuant

to the stray vacancy round counseling and the petitioner's

name was found at Sl.No.5 and was allotted a seat in

Vydehi Institute of Medical Science and Research Centre,

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Bengaluru. The petitioner approached respondent No.1 for

depositing the fee on 30.09.2023 to ensure her admission

with the Vydehi Institute of Medical Science and Research

Centre, Bengaluru and her attempts were repelled by

respondent No.1 on the premise that an allotment had

already been made by respondent No.2.

5. The fact that the petitioner was allotted seat both by

respondent No.2 and respondent No.1, is not in dispute. It

is also not in dispute that the allotments were made before

the last date stipulated by the Hon'ble Apex Court and the

NMC, for closure of admissions. It is also not in dispute

that the petitioner made an attempt to complete the

admission process by paying necessary fee before the cut

off date i.e., by depositing necessary fee and other

charges with respondent No.1 within the last date i.e,

30.09.2023. It is also not in dispute that the case of the

petitioner was examined by respondent No.1 and

admission was refused by respondent No.1 on the ground

that she had already been allotted a seat by respondent

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No.2 and it is also not in dispute that respondent No.1 was

made well aware of the fact that petitioner had not

completed the admission process with respondent No.4

herein in which college respondent No.2 - MCC had

allotted a seat to the petitioner. Despite these undisputed

facts, respondent No.1 - KEA deemed it appropriate to

refuse admission to the petitioner. In these circumstances,

the petitioner was constrained to approach this Court for

necessary relief.

6. It is the case of respondent No.1 that question of

respondent No.1 granting admission in the College allotted

by them would not arise as the petitioner had already

been allotted a seat by MCC one day prior to the allotment

made by respondent No.1 and that as per the instructions

devised and followed by respondent No.1, the students,

who have already been allotted a seat under the AIQ (All

India Quota) are not entitled for an allotment of a seat by

the KEA. Though we are not wholly convinced with the

argument canvassed yet in view of the peculiar and

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precocious circumstance in which the petitioner is placed

and in view of the submissions by learned counsel for the

petitioner that the petitioner may be permitted complete

the admission process against the seat allotted by

respondent No.2 - MCC, we do not consider it necessary

to delve further into the said aspect and a decision on the

correctness of the stand is deferred.

7. The fact remains the last date for completion of

admission as stipulated by the Hon'ble Apex Court is

thirtieth day of the month of September of every year and

the said date has passed-by. Whether in these

circumstances, a student, who is qualified and who has

been allotted a seat, but on account of confusion created

by the authorities, should not be granted condonation of

delay in completing her admission process?

8. In this regard, useful reference could be made to the

observations of the Larger Bench of the Hon'ble Apex

Court in the case of S. Krishna Sradha vs. State of

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Andhra Pradesh and Others1. The observations of the

Hon'ble Apex Court in paragraph Nos.9, 10, 11 and 12 are

relevant for the purpose of adjudicating the point for

consideration. The Hon'ble Apex Court has been pleased to

observe in paragraph Nos.9, 10, 11 and 12 as under:-

"9. Heard the learned counsel for the respective parties at length. The short but an important question of law posed for consideration of this Court is what relief a meritorious candidate is entitled to when it is found that a meritorious candidate is denied an admission arbitrarily and illegally by the authorities concerned and the fault is not attributable to the candidate at all and the candidate has pursued his/her legal rights expeditiously and without delay--whether in such a situation awarding compensation only can be said to be just and an adequate relief? The issue which arises for consideration is whether having fulfilled the aforesaid prerequisites, the Court can grant relief and order admission even after the cut-off date for admission i.e. 30th September is over and whether the Court can grant admission beyond the intake either in the same year or in the next academic year?

9.1. In the case of Asha the following questions were posed for consideration before the Court : (SCC p. 394, para

4) "(a) Is there any exception to the principle of strict adherence to the rule of merit for preference of courses and colleges regarding admission to such courses?

(2020) 17 SCC 465

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(b) Whether the cut-off date of 30th September of the relevant academic year is a date which admits any exception?

(c) What relief the courts can grant and to what extent they can mould it while ensuring adherence to the rule of merit, fairness and transparency in admission in terms of rules and regulations?

(d) What issues need to be dealt with and finding returned by the court before passing orders which may be more equitable, but still in strict compliance with the framework of regulations and judgments of this Court governing the subject?"

9.2. After considering a catena of decisions of this Court on the subject in Asha this Court answered the aforesaid questions as under : (SCC pp. 404-405, para 38) "38. Now, we shall proceed to answer the questions posed by us in the opening part of this judgment. 38.1. Question (a) : The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and authorities concerned are required to follow this rule strictly and without demur.

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by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in Priya Gupta and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction. 38.3. Questions (c) & (d) : Wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of rules, regulations and conditions of the prospectus, causing prejudice to the rights of the students, the court shall award compensation to such students as well as direct initiation of disciplinary action against the erring officers/officials. The court shall also ensure that the proceedings under the Contempt of Courts Act, 1971 are initiated against the erring authorities irrespective of their stature and empowerment. Where the admissions given by the authorities concerned are found by the courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not by itself a ground to permit them to continue with the course."

9.3. This Court also cautioned the courts for giving interim orders where admissions are matter of dispute before the court. This Court observed as under : (Asha case, SCC p. 405, para 39) "39. With all humility, we reiterate the request that we have made to all the High Courts in Priya Gupta case that

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the courts should avoid giving interim orders where admissions are the matter of dispute before the Court. Even in case where the candidates are permitted to continue with the courses, they should normally be not permitted to take further examinations of the professional courses. The students who pursue the courses under the orders of the Court would not be entitled to claim any equity at the final decision of the case nor should it weigh with the courts of competent jurisdiction." 9.4. However, subsequently in Jasmine Kaur a contrary view is taken by this Court, contrary to the law laid down by this Court in Asha. This Court has held that in such a situation grant of compensation is the only relief which can be granted and which a candidate is entitled to.

10. In view of the contradictory views and decisions in Asha and in Jasmine Kaur the question which has been referred to the larger Bench is where a student, a meritorious candidate, for no fault of his/her is denied admission illegally and arbitrarily and who has pursued her legal right expeditiously without delay, can be denied admission as a relief, because of cut-off date of 30th September is over and in such a situation the relief which can be given by the Court is to grant appropriate compensation only? Another question which is required to be considered is what relief can be granted by the Court in such a situation?

10.1. The observations and the ultimate conclusion by this Court in Asha and in Jasmine Kaur are required to be referred to and considered.

10.2. After considering a catena of decisions of this Court on the point this Court in Asha ultimately concluded in para 38 as under : (Asha case, SCC pp. 404-405)

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"38. Now, we shall proceed to answer the questions posed by us in the opening part of this judgment. 38.1. Question (a) : The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and authorities concerned are required to follow this rule strictly and without demur.

38.2. Question (b) : 30th September is undoubtedly the last date by which the admitted students should report to their respective colleges without fail. In the normal course, the admissions must close by holding of second counselling by 15th September of the relevant academic year (in terms of the decision of this Court in Priya Gupta). Thereafter, only in very rare and exceptional cases of unequivocal discrimination or arbitrariness or pressing emergency, admission may be permissible but such power may preferably be exercised by the courts. Further, it will be in the rarest of rare cases and where the ends of justice would be subverted or the process of law would stand frustrated that the courts would exercise their extraordinary jurisdiction of admitting candidates to the courses after the deadline of 30th September of the current academic year. This, however, can only be done if the conditions stated by this Court in Priya Gupta and this judgment are found to be unexceptionally satisfied and the reasons therefor are recorded by the court of competent jurisdiction. 38.3. Questions (c) & (d) : Wherever the court finds that action of the authorities has been arbitrary, contrary to the judgments of this Court and violative of rules, regulations and conditions of the prospectus, causing prejudice to the rights of the students, the court shall award compensation to such students as well as direct

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initiation of disciplinary action against the erring officers/officials. The court shall also ensure that the proceedings under the Contempt of Courts Act, 1971 are initiated against the erring authorities irrespective of their stature and empowerment. Where the admissions given by the authorities concerned are found by the courts to be legally unsustainable and where there is no reason to permit the students to continue with the course, the mere fact that such students have put in a year or so into the academic course is not by itself a ground to permit them to continue with the course."

10.3. Thereafter in para 39 this Court observed and directed as under : (Asha case, SCC p. 405) "39. With all humility, we reiterate the request that we have made to all the High Courts in Priya Gupta case that the Courts should avoid giving interim orders where admissions are the matter of dispute before the Court. Even in case where the candidates are permitted to continue with the courses, they should normally be not permitted to take further examinations of the professional courses. The students who pursue the courses under the orders of the Court would not be entitled to claim any equity at the final decision of the case nor should it weigh with the courts of competent jurisdiction." 10.4. However, in the subsequent decision in Jasmine Kaur after considering the decision of this Court in Asha ultimately in para 33, it is observed and held as under : (Jasmine Kaur case , SCC p. 539) "33.1. The schedule relating to admissions to the professional colleges should be strictly and scrupulously adhered to and shall not be deviated under any circumstance either by the courts or the Board and midstream admission should not be permitted.

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33.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate i.e. the candidate has pursued his or her legal right expeditiously without any delay and that there is fault only on the part of the authorities or there is an apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right to equality and equal treatment to the competing candidates and the relief of admission can be directed within the time schedule prescribed, it would be completely just and fair to provide exceptional reliefs to the candidate under such circumstance alone.

33.3. If a candidate is not selected during a particular academic year due to the fault of the institutions/authorities and in this process if the seats are filled up and the scope for granting admission is lost due to eclipse of time schedule, then under such circumstances, the candidate should not be victimised for no fault of his/her and the court may consider grant of appropriate compensation to offset the loss caused, if any.

33.4. When a candidate does not exercise or pursue his/her rights or legal remedies against his/her non- selection expeditiously and promptly, then the courts cannot grant any relief to the candidate in the form of securing an admission.

33.5. If the candidate takes a calculated risk/chance by subjecting himself/herself to the selection process and after knowing his/her non-selection, he/she cannot subsequently turn around and contend that the process of selection was unfair.

33.6. If it is found that the candidate acquiesces or waives his/her right to claim relief before the court

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promptly, then in such cases, the legal maxim vigilantibus et non dormientibus jura subveniunt, which means that equity aids only the vigilant and not the ones who sleep over their rights, will be highly appropriate. 33.7. No relief can be granted even though the prospectus is declared illegal or invalid if the same is not challenged promptly. Once the candidate is aware that he/she does not fulfil the criteria of the prospectus he/she cannot be heard to state that, he/she chose to challenge the same only after preferring the application and after the same is refused on the ground of eligibility. 33.8. There cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year i.e. carry-forward of seats cannot be permitted how much ever meritorious a candidate is and deserved admission. In such circumstances, the courts cannot grant any relief to the candidate but it is up to the candidate to reapply in the next academic year.

33.9. There cannot be at any point of time a direction given either by the court or the Board to increase the number of seats which is exclusively in the realm of the Medical Council of India.

33.10. Each of these abovementioned principles should be applied based on the unique and distinguishable facts and circumstances of each case and no two cases can be held to be identical."

11. However, it is required to be noted that in the case before this Court in Jasmine Kaur it was specifically found by this Court that there was a delay on the part of the candidate. It was specifically found that the conduct of the candidate in having fixed her own time-limit in making the challenge, namely, after three months of the issuance of the

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prospectus and thereafter in filing the letters patent appeal which process resulted in the Division Bench in deciding the appeal only in the month of April 2014 by which time the substantial part of the academic year has been crossed, disentitles the candidate any relief and the case would not fall in any extraordinary circumstances.

12. However, the question is with respect to a student, a meritorious candidate for no fault of his/her has been denied admission illegally and who has pursued his/her legal rights expeditiously without delay is entitled to any relief of admission more particularly in the courses like MBBS the relief of compensation as held by this Court in Asha ? The aforesaid question is required to be considered only to the cases where (i) no fault is attributable to the candidate; (ii) the candidate has pursued her rights and legal remedies expeditiously and without delay; (iii) where there is fault on the part of the authorities and apparent breach of rules and regulations; and (iv) candidate is found to be more meritorious than the last candidate who has been given admission.

12.1. At the outset, it is required to be noted that the question is with respect to a student/candidate seeking admission in the medical course more particularly in MBBS course. For a student/candidate seeking admission in professional courses more particularly the medical course each year is very important and precious. Similarly, getting admission in medical course itself is very important in the life of a candidate/student and even a dream of man. In light of the above, the question for consideration is whether compensation for a meritorious candidate, who has been denied the admission illegally and arbitrarily having

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approached the court in time can be said to be just and equitable relief?

12.2. The right to equal and fair treatment is a component of Article 14 of the Constitution. As held by this Court in Asha that a transparent and fair procedure is the duty of every legal authority connected with admissions. In such cases, denial of fair treatment to the candidate would not only violate his/her right under Article 14 but would seriously jeopardise his/her right under Articles 19 and 21 of the Constitution of India. A natural corollary of declaring that an administrative act more particularly the denial of admission illegally and for no fault of a candidate/student violates principles of Article 14 is that the citizen injured must be put back to his/her original position. In that sense, the primary relief is restitutionary. As observed hereinabove, for a meritorious student seeking admission in medical course is very important in the life of student/candidate and denial of admission to a meritorious candidate though for no fault of his/her violates his/her fundamental rights. Compensation could be an additional remedy but not a substitute for restitutionary remedies. In case of medical admissions, even the restitutionary remedy of providing a seat in the subsequent year would lead to loss of one full academic year to a meritorious candidate, which cannot be compensated in real terms. Thus compensation for loss of year could be provided, but denial of admissions to a meritorious candidate cannot be compensated in monetary terms. Thus denial of admission in medical course to a meritorious candidate for no fault of his/her and though he/she has approached the Court in time and despite the same not granting any just and equitable relief, would be denial of justice. Therefore, the question is what relief the Court can grant by which right to equal and fair treatment to

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a candidate is protected and at the same time neither there is injustice to other candidate/student and even compromising with the quality education. Therefore, a balance is required to be struck. However, at the same time it can safely be said that the view taken by this Court in Jasmine Kaur that the only relief which can be granted to such a candidate would be the compensation only is not good law and cannot be accepted. Even granting a relief to such a candidate/student in the next academic year and to accommodate him/her in the next year and in the sanctioned intake may even affect the right of some other candidate/student seeking admission in the next academic year and that too for no fault of his/her. Therefore we are of the view that in the exceptional and in the rarest of rare cases and in case where all the conditions stipulated in para 33.3 in Jasmine Kaur are satisfied, the Court can grant exceptional relief to the candidate of granting admission even after the cut-off date is over"

9. From a reading of the above, it is apparent that the

Hon'ble Apex Court has deemed it equitable to condone

the delay where in a given circumstance, the cause for the

delay is attributable to the authorities and where the

candidate is not to be blamed for the delay.

10. We have examined the law as expounded by the

Hon'ble Apex Court as noted supra and the facts and

circumstances involved in the instant case. It is not in

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doubt that the mandatory stage of allotment of seat has

been completed before the last date/cut-off date stipulated

by the Hon'ble Apex Court and what remains is merely a

ministerial act of receipt of fee and charges,

11. The selection of the candidate, verification of

testimonials, including marks cards to establish the

eligibility of the candidate, have all been completed prior

to the cut-off date. The fact remains that the petitioner

has immediately rushed to the Court and preferred the

writ petition on 03.10.2023. The cut off date i.e.,

30.09.2023 fell on Saturday and the succeeding two days

i.e., 1st October, 2023 was a Sunday and 2nd October,

2023 was a National Holiday and the preceding day, that

is, 29.09.2023, was marred by a bandh and hence, it

cannot be said that the petitioner was lagging or was

indolent in asserting her rights.

12. In that view of the matter and in the light of the fact

that only a few days have passed i.e., in all about 8

working days have passed and much out of which, we

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believe would have been utilized for holding orientation

course for the fresh students, we are of the considered

opinion that equity and justice requires that the petitioner,

who is a qualified meritorious student be granted an

opportunity to pursue her career by condoning the delay in

depositing the fees. In fact, it can be said that the fee was

tendered in time, that is, on 30.09.2023 but was refused

by the authorities. In that view, we proceed to pass the

following:-

ORDER

i) The writ petition is disposed of with a direction to respondent No.4 to receive the fee if the same is deposited by the petitioner on or before 16.10.2023.



       ii)    In the event of the petitioner depositing
              the   fee   within      the   stipulated    date,

respondent No.4 shall forward the name of the petitioner to respondent No.2/concerned authorities along with the names of other students admitted by them.