Supreme Court of India
S. KRISHNA SRADHAversusSTATE OF ANDHRA PRADESH AND ORS.
- Citation
- [2017] 2 S.C.R. 466
- Decided
- 19 January 2017
- Disposal
- Matter referred to larger bench
- Bench
- DIPAK MISRA
Holding
Compensation cannot be the sole remedy for wrongful deprivation of admission; where merit and authority fault are established, the court may order admission even after the cut‑off date, and the Jasmine Kaur decision requires reconsideration.
Summary
The appellant, S. Krishna Sradha, was denied admission to the MBBS course under the sports quota despite being more meritorious than the candidates selected. The High Court, relying on the two‑judge decision in Jasmine Kaur, refused admission and awarded monetary compensation, holding that the cut‑off date for admissions could not be ignored. The Supreme Court examined whether compensation alone can redress the wrongful deprivation of a professional course and whether a court may order admission after the statutory deadline when the denial is due to the fault of the counselling authority. It held that compensation cannot be the sole remedy for a violation of the fundamental right to education; where the candidate is meritorious and the authorities are at fault, the court may grant admission even after the cut‑off date. Consequently, the High Court's order was set aside, the appellant was directed to be admitted, and the Jasmine Kaur decision was ordered to be reconsidered by a larger bench.
Issues considered
- The adequacy of monetary compensation as the sole remedy for wrongful deprivation of admission to a professional course.
- Whether a court can grant admission beyond the prescribed cut‑off date when the denial is attributable to the fault of the authorities and the candidate is meritorious.
- Whether the decision in Jasmine Kaur (Climbing Administration v. Jasmine Kaur) should be revisited.
Legislation cited
- Constitution of Indias. Art.136, s. Art.14, s. Art.21, s. Art.226, s. Art.32
Subjects
AdmissionMBBSSports quotaMeritCompensationFundamental rightsArticle 14Article 21Cut‑off dateRestitutionConstitutional law
Judgment
[2017] 2 S.C.R. 466
A S. KRISHNA SRADHA
v.
STATE OF ANDHRA PRADESH AND ORS.
(Civil Appeal No, I 081 of2017)
B JANUARY 19, 2017
[DIPAK MISRA AND R. F. NARIMAN, JJ.]
Education:
Admissions - MBBS Course - Wrongful deprivation of
c ad111ission - Duty of constitutional courts u!Arts. 32, 136 and 226 -
Re-consideration of decision in Jasmine Kaur's case holding grant
of monetary compensation as the sole re111edy for non-ad111ission
after lapse of prescribed time schedule when such lapse was a result
of faults commitled by the counselinglad111inistrating authority -
Held: Meritorious students should not face any impedi111ent to get
D
admission for so111e fault on the part of the institution or the persons
involved with it - He/She has no other remedy but lo approach the
Court for getting redressal of grievances - It is a grievance that
pertains to fundamental right - When a !is ()f this nature co111es in a
constitutional court, it beco111es the duty of the court to address
E 11'hether the authority had acted within the powers conferred on it
or deviated from the same as a consequence of which injustice has
been caused to the aggrieved person - Redressal of a fundamental
right cannot be weighed in ter111s of grant of compensation only -
Grant of compensation may be an additional relief - Compensation
cannot be the adequate or sole re111edy for the wrongful deprivation
F
of admission, as it affects the acade111ic career of a student -
Decision in Jasmine Kaur's case requires re-consideration by a larger
Bench-Maxims - "Lex non intend it aliquid impossibile" - Doctrines/
Principles - Doctrine of restitution.
Admissions - MBBS Course - Appellant denied ad111ission
G to MBBS course in sports quota despite being 111ore meritorious
than the selected candidates - High Court placing reliance on Jasmin
Kaur's case denied benefit of admission to appellant and granted
compensation on the ground that the cut-off date for admission
had expired, though, holding that appellant was entitled to get
H
466
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 467
ORS.
priority and there were lapses on part of various authorities involved A
- Held:·Appel/ant-student approached the Court u/Art.226 in quite
promptitude and there was no delay /aches on her part and did not
fault in complying with procedure prescribed under the rules meant
for the process of admission - Appellant directed to be admitted -
Constitution of India - Arts.14 and 21.
B
Referring the matter to be placed before appropriate
Lar~er Bench, the Court
HELD: 1. Jasmine Kaur's case restricts the grant of relief
of admission, if it is within the time schedule prescribed, and
then lays down if the seats are filled up and the scope for granting c
admission is lost due to eclipse of time schedule, then under
such circumstances, the candidate can only be granted appropriate
compensation to off-set the loss caused. [Para 22) [485-C-D)
Chandigarh Administration and Anr. v. Jasmine Kaur
and Ors. (2014) 10 SCC 521 : [2014] 9 SCR 1122 - D
held, needs reconsideration.
2.1 This Court has always laid stress on the merit in the
matters of admissions as meritorious students should not face
any impediment to get admission for some fault on the part of the
institution or the persons involved with it. He/She has no other E
remedy but to approach the Court for getting redressal of his/
her grievances. It is a grievance that pertains to fundamental
right. A right is conferred on a person by rule of law and if he
seeks remedy through the process meant for establishing rule of
law and it is denied to him, it would never subserve the cause of
real justice. When a ii~· of this nature comes in a constitutional F
court, it becomes the duty of the court to address whether the
authority had acted within the powers conferred on it or ,deviated
from the same as a consequence of which injustice has been caused
to the grieved person. The redressal of a fundamental right,
cannot be weighed in terms of grant of compensation only. [Para G
26] [487-C-F]
2.2 Grant of compensation may be an additional relief.
Confining it to grant of compensation as the only measure would
defeat the basic purpose of the fundamental rights which the
Constitution has conferred so that the said rights are sustained.
H
468 SUPREME COURT REPORTS [20 I 7] 2 S.C.R.
A It would be inapposite to recognize the right, record a finding
that there is a violation of the right and deny the requisite relief.
A young student should not feel that bis entire industry to get
himself qualified in the examination becomes meaningless
because of some fault or dramatic design of certain authorities
and they can get away by giving some amount as compensation.
B
It may not only be agonizing but may amount to grant of premium
either to .laxity or evil design or incurable_greed of the authorities.
In such a situation, justice may be farther away and the knocking
at the doors of a constitutional court, a sisyphean endeavour, an
exercise in futility. It is well known that the law intends not
c anythin~ impossible; "lex non intendit a/iq11id impossibile". But
when it is in the realm of possibility; and denial of relief hurts the
"majesty of justice'', it should not be denied. On the contrary,
every effort has to be made to grant the relief. [Para 26] [487-F-
H; 488-A-B]
D Asha v. Pt. B.D. Sharma University of Health Sciences
& Ors. (2012) 7 sec 389 : [2012] 6 SCR 876;
Harsha/i D/o Sudamrao Wankhede v. State of
Maharashtra & Ors. (2005) 13 SCC 464 - relied on.
2.3 However, there are cases where this Court had granted
E compensation because there was no other option and the only
way of redemption was to grant compensation. It is necessary to
state that grant of relief as lawfully due should be the primary
duty of the court. Where doctrine of restitution can be applied
and there is no impossibility it would be anathema to the cal!se of
justice to deny the same. It is seemly to appreciate that restitution
F as a concept, as is traditionally understood, is the restoration of
an aggrieved party to his condition prior to the wrongdoing. It
could be limited to monetary quantification only if the breach is
not capable of being remedied. That being so, compensation
cannot be the adequate or sole remedy for the wrongful
G deprivation of admission, as it affects the academic career of a
student. There may be cases where restitution may be too harsh.
[Para 27] (488-D-F]
2.4 In view of the aforesaid, the decision in Jasmine Kaur's
case requires re-consideration by a larger Bench. [Para 31] [490-
H
C-D]
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 469
.ORS.
Anee sh D. Lawande & Ors. v. State· of Goa & Ors. A
(2014) 1 SCC 554 : [2013) 17 SCR 55 - explained ..
State v. Falkner Walter Clark, American Jurist, I 921;
MBBS!BDS Selection Board v. Chandan Mishra
(1995) Supp. 3 SCC 77; Chandan Mishra v. MBBSI
EDS Selection Board (1994) 77 Cut LT 624; Deptt. B
of Public Health, UT Chandigarh v. Ku/deep Singh
(1997) 9 SCC 199 : [1997] 1 SCR 454; Jitlius v. Lord
Bishop of Oxford (1880) 5 AC 214; Commr. Of Police
v. Gordhandas Bhanji AIR 1952 SC 16 : [1952) SCR
135; K.S. Bhoir v. State of Maharashtra (2001) 10
SCC 264: [2001] 5 Suppl. SCR 593; Faiza Choudhary c
v. State of J & K (2012) 10 SCC-149 : [2012] 7
SCR 528; Satyabrata Sahoo v. State of Orissa (2012)
8 SCC 203 : [2012) 10 SCR 204; Medical Council of
India v. State of Karnataka (1998). 6 SCC 131 : [1998)
3 SCR 740; Priya Gupta v. State of Chhattisgarh D
(2012) 7 SCC 433 : [2012] 5 SCR 768; Christian
Medical College v. State of Punjab (2010) 12 SCC
167; State of Bihar v. Sanjay Kumar Sinha (1990) 4
SCC 624 : [1989) 2 Suppl. SCR 168; Medical
Council qf India v. Madhu Singh (2002) 7 SCC 258 :
[2002] 2 Suppl. SCR 228; GSF Medical and E
Paramedical Assn. v. Assn. of Self Financing Technical
Institutes (2003) 12 SCC 414; Dwarka Nath v. ITO
AIR 1966 SC 81 : (1965] SCR 536; State of Punjab
v. Sali/ Sabhlok (2003) 5 SCC 1 : [2003] 1 SCR 877; .
S. Nihar Ahamed v. Dean Velammal Medical College F
Hospital and Research Institute & Ors. (2016) 1 SCC
662 : [2015] 10 SCR 242; Punjab Engineeriug
College, Chandigarh through its Principal v. Sanjay
Gulati & Ors. (1983) 3 SCC 517 : [1983] 2 SCR 801;
Rudul Shah v. State of Bihar (1983) 4 SCC 141 : (1983]
3 SCR 508; Sebastian Hongray v. Union of India AIR G
1984 SC 571 : [1984] 1 SCR 904; Chairman, Railway
Board v. Chandrima Das (2000) 2 SCC 465 : [2000]
1 SCR 480; Jang Singh v. Brij Lal & Ors. AIR 1966
SC 1631 : [1964j SCR 145 - referred to.
H
470 SUPREME COURT REPORTS [2017] 2 S:C.R.
A Case Law Reference
[2014] 9 SCR 1122 held, needs
reconsideration Paras 2, 31
[2013] 17 SCR 55 explained Para 19
B (1995) Snpp. 3 sec 77 referred to Para 15
[1997] 1 SCR 454 referred to Para 15
[1952] SCR 135 referred to Para 15
[2001] 5 Suppl. SCR 593 referred to Para 17
c [2012] 7 SCR 528 referred to Para 17
[2012] 10 SCR 204 referred to Para 17
[1998] 3 SCR 740 referred to Para 17
[2012] 5 SCR 768 referred to Para 18
D (2010) 12 sec 167 referred to Para 19
[1989] 2 Suppl. SCR 168 referred to Para 20.
[2002] 2 Suppl. SCR 228 referred to Para 20
(2003) 12 sec 414 referred to Para 20
E
[1965] SCR 536 referred to Para 21
[2003] 1 SCR 877 referred to Para 21
[2015] 10 SCR 242 referred to Para 22
[1983] 2 SCR 801 referred to Para 25
F
[2012] 6 SCR 876 relied on Para 26
(2005) n sec 464 relied ou Para 26
[1983] 3 SCR 508 referred to Para 27
[1984] 1 SCR 904 referred to Para 27
G
[2000] 1 SCR 480 referred to Para 27
[1964] SCR 145 referred to Para 28
CIVIL APPELLATE JURJSDICTION : Civil Appeal No. 1081
of2017.
H
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 471
ORS.
From the Judgment and Order dated 25.01.2016 of the High A
Court of Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh in W. P. No. 327 l 0 of 2015.
P. S. Narasimha, ASG(AC), Vikas Singh, Sr. Adv., K.
Parameshwar, Ashwani Kumar N., Guntur Prabhakar, Ms. Prerna Singh,
Y. Raja Gopala Rao, Y. Vismai Rao, Ms. Manjit Kirpal, P. Shadat Kumar, B
Gaurav Sharma, Prateek Bhatia, Dhawal Mohan, Ms. Vara Gaur, Advs.,
for the appearing parties.
The Judgment of the Court was delivered by
DIPAK MISRA, J. I. Leave granted.
c
2. The centripodal issue that emerges for consideration in this
appeal, by special leave, compels us to think and constraints us to ruminate
over the principle whether grant of monetary compensation can be
considered as the sole and adequate remedy for a student who fias been
deprived of admission to the MBBS course, despite he or she being
meritorious, vigilant and diligent and thereby abandoning the path of D
recalcitrance and eventually being found flawless, is forced to suffer
non-admission to the course for which he had aspired for and found
suitable because of lapses committed either by the counselling authority
or the administrating authority intrinsically connected with the process
ofadmission; and the ancillary issue that arises for deliberation is whether E
the constitutional courts, be it High Court or this Court, while exercising
the power under Article 226 of the Constitution or under Article 32 or
136 of the Constitution, would feel handicapped because of expiry of
time schedule fixed by the Court to deny the relief to the candidate by
pronouncing, "relief denied as the time has expired". Mr. Vikas Singh,
learned senior counsel appearing for the Medical Council oflndia would F
support the proposition that grant of compensation is the only possible
remedy on the strength of a two-Judge Bench decision in Clui1111ig"rh
Administmtion & Anr. v. J"smine K"ur & Ors.' which has been
placed reliance upon by the High Court in the impugned judgment and
order to decline the relief to the appellant (as it had no other alternative),
G
and that forces us to cogitate on "superstitious sanctity" as put forth by
Walter Clark in St11te v. F11/kner' and simultaneously also recapitulate
the saying by Oliver Wendell Holmes:-
'(201.\) IOSCC521
2
Walter Clark. American Jurist. 1921 H
472 SUPREME COURT REPORTS (2017] 2 S.C.R.
A "To an imagination of any scope the most far-reaching
form of power is not money, it is the command ofideas"3
And above all we cannot be oblivious to our duty, a sanguine
one, of the constitutional courts to protect and preserve the fundamental
rights of the citizens as the sentinel on the qui vive.
B 3. The facts which are necessary to be stated to appreciate the
controversy lie in a narrow compass. The appellant preferred W.P.
No.32710of2015 before the High Court of Judicature at Hyderabad for
the State of Telangana and State of Andhra Pradesh alleging that the
Dr. NTR University of Health Sciences, the respondent No.2 herein,
c had rejected her candidature fortaking admission to the first year l\ABBS
course for the academic Session 2015-2016 in Sports and Games quota
and granted admission to the respondent Nos.7 and 8 on unacceptable
grounds and on that basis sought issue of a writ of mandamus to the
Universit)' to consider her case by giving priority over others in Sports
and Games quota as she so deserved. We need not advert to the facts
D in detail as neither the University nor the Medical Council of India has
challenged the order passed by the High Court.
4. It is submitted by Mr. K. Parameshwar, learned counsel for
the appellant that from the order passed by the High Court, it is clearly
evident that the appellant was more meritorious in the Sports and Games
E quota than the candidates who have been given admission. He has
drawn our attention to certain passages from the judgment of the High
Court. They read as follows:-
"! I ........ From the material placed before this Court, it is clear
that petitioner participated in World Artistic Skating Championship,
F 2014 held at Reus, Spain under senior division from 28'"
September, to 12"' October, 2014 and certification to that effect
is made by no other than Roller Skating Federation of India.
When there is such certification on record, there is no reason to
deny priority due to the petitioner on the ground that there was
no response from the Sports Authority of India. It is relevant to
G
mention here that 3'd respondent-SAAP has not taken immediate
steps after collecting documents from the 2"d respondent-
university on 22.08.2015. From the averments made in the
counter-affidavit filed by the 200 respondent university, it is clear
'Oliver Wendell Holmes '·The Path of the Law," Collected Legal Papers. 1921
H
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 473
ORS. [DIPAK MISRA, J.]
that academic session for the year 2015-2016 started from A
O1.09.2015 and, further, 8'h respondent was admitted into the
course based on the admission given as per the priority furnished
by the 3'' respondent. It is stated that 8"' respondent started
attending classes from 0I.I0.2015."
And again:- B
"13. Further, in the case of Chandigarh Administration (2 supra),
the Hon'ble Supreme Court has held that there cannot be
teJescoping ofunfilled seats of one year with permitted seats of
the subsequent year i.e. carry forward of seats cannot be
petmitted how much ever meritorious a candidate is and deserved c
admission. In the case of Union Bank of India (3 supra), it is
held by the Supreme Court that Courts should not place reliance
on decisions without discussing as to how the factual situation
fits in with the fact situation of the decision on which reliance is
placed.
D
14. In the case on hand, it is clear that in spite of submitting the
necessary material in support of the claim of the petitioner for
reservation under sports and games category for admission into
MBBS course, she was denied due priority and admission into
MBBS course. Had the participation of the petitioner in World
championship been considered as per the norms notified by the E
Government. she was entitled for priority I 0, in which event she
was also entitled for admission into MBBS course. In spite of
the fact that certificates were collected by the authorities of the
l"' respondent-SAAP on 22.08.2015. they have not acted quickly
and diligently, if at all confirmation was required from the Sports F
Authority oflndia. As per the rules framed by the Government,
confirmation is to be given only by the 3"' respondent. but not by
another body. When there is statutory obligation on the )<J!
respondent for confirmation of certificates. it cannot shirk its
responsibility only on the ground that Sports Authority of India
has not responded to letter dated 18.09.2015. In the absence of G
any dispute with regard to the participation of petitioner in World
Championship, which is supported by the certificate issued by
the Roller Skating Federation oflndia, only on the ground that
there was no response to the letter dated 18.09.2015 addressed
H
474 SUPREME COURT REPORTS [2017] 2 S.C.R.
A by the Jr<! respondent, petitioner ought not to have been denied
due priority. At the same time, having collected certificates on
22.08.2015, there is no reason for the 3'' respondent-SAAP in
addressing to the concerned authority only on 18.09.2015. By
forwarding the priority lists at the fag end, i.e. 28-29.09.2015,
petitioner was deprived of opportunity to put fo1th her grievance.
B
At the same time, it is evident from the counter affidavit filed by
the 2"' respondent-university.that academic session for the year
2015-16 commenced from 01.09.2015, candidates under sports
and games quota have started attending classes from 01 . I 0.2015.
As such, no direction can be issued at this point of time for grant
c of admission to the petitioner for the academic session 2015-
2016." .
[Emphasis supplied]
5. From the aforesaid analysis, it is limpid, requiring no deep
dwelling and deliberation that at times can vex the brain, that though the
D High Court has come to a categorical and unequivocal conclusion that
the appellant was entitled to get priority, yet has denied the benefit of
admission placing reliance on the decision in Jasmin Kaur's case and
granted compensation ofRs.5,00,000/- (Rupees five lac only). It is also
noticed that the appellant was not extended the benefit of admission
E despite he was more meritorious than others on the basis of marks
obtained solely on the ground that time had expired. Therefor~, the
pertinent question to be posed has to be, is it just or fair to a student who
has approached the Court under Article 226 of the Constitution in·quite
promptitude and there is no delay and !aches on his part and further
where he had not faulted in complying with any procedure prescribed
F under the rules or regulations meant for the process of admission, to
mitigate his grievance by granting monetary compensation possibly
perceiving the duty of the Court goes so far and no further.
6. When the matter was listed on an earlier occasion, we had
permitted the appellant-student to be admitted and accordingly she has
G been admitted. Mr. Vikas Singh, learned senior counsel being assisted
by Mr. Gaurav Sharma, learned counsel appearing for the Medical
Council of India has fairly conceded that the admission need not be
disturbed and the appellant may be allowed to prosecute the course she
has been admitted to. Therefore, any disputes as regards the appellant's
H
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 475
ORS. [DIPAK MISRA, J.]
admission stands closed. And we record with appreciation the stand of A
Mr. Singh and Mr. Sharma on this score.
7. Having said so, in all possibility, we would have disposed of
the appeal. But Mr. P.S. Narasimha, learned senior counsel, who has
been appointed as Amicus Curiae to assist the Court and Mr. K.
Parameshwar, learned counsel for the appellant submit with all the humility B
and sincerity at their command that it is a recurring problem and by
virtue of the judgment delivered in Jasmin Kaur (supra), an impediment
has been created and as artificial obstruction has been conceived of for
mitigating the real grievance of a meritorious candidate, and, in a way, it
scuttles the power of the constitutional courts to grant real substantive
relief or mould the relief and, therefore, the said decision requires c
reconsideration.
8. Mr. Vikas Singh, learned senior counsel appearing for the
Medical Council oflndia would strenuously support the said authority on
the bedrock that the time fixed for admission by this Court has to be
scrupulously followed and should never be allowed to be derailed, under D
no circumstances.
9. It is submitted by Mr. Narasmiha, learned amicus curiae that
the Court in As/ta v. Pt. B.D. Sharma University of Health Sciences
·& Ors.', has recognized that the procedural sanctity of the admission
process as an insegregable facet of Article 14 of the Constitution of E
India and further ruled that in exceptional circumstances, the deadline of
JQ<h September should not act as an obstacle for grant of full relief of
admission, if three conditions are satisfied. Learned amicus would
contend that a candidate must be meritorious and his approach to the
Court should be unblemished; that he should have approached the Court F
absolutely expeditiously; and that denial of admission must have
occasioned on account of some fault or negligence of the concerned
authorities including the counseling authority. It is propounded by him
that it is the obligation of the authorities while giving admission to higher
educational courses to strictly adhere to the norms of fairness and are
expected to remain totaily vigilant, scrupulously following the principle G
of transparency and when the constitutional court finds that there is
deviation, the candidate cannot be allowed to suffer the deprivation of
admission to the course. It is urged by him that grant of compen~ation in
such cases would be contrary to fundamental principles and values
'(2012) 7 sec 389 H
476 SUPREME COURT REPORTS [2017] 2 S.C.R.
A inherent in Article 14 of the Constitution and is likely to destroy the
essential facet of Article 21 of the Constitution which recognizes right to
life that encompasses manifold rights as expanded by this Court from
time to time including the rightto achieve excellence in life as permissible
in law. According to the learned senior counsel the said expanse siiould
neither be narrowed nor crippled by the Court.
B
I 0. At this juncture, we think it appropriate to have a look at the
decisions that have been cited at the Bar. In Aslta (supra), the Court
observed that it was the need of the hour and demand of justice that this
Court clarified its decisions and stated the principles with greater precision
so as to ensure elimination of colourable abuse and arbitrary exercise of
c power in the process of selection and admission to the professional
courses by all concerned. The Court posed four questions. They are:-
"a) ls 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?
D
b) Whether the cut-off date of30•h 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
E 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 ofregulatior.s and
judgments of this court governing the subject?"
F 11. While dealing with the second question, the Court held, thus:-
"30. There is no doubt that 30'h September is the cut-off date.
The authorities cannot grant admission beyond the cut-off date
which is specifically postulated. But where no fault is attributable
to a candidate and she is denied admission for arbitrary reasons,
G should the cut-off date be permitted to operate as a bar to
admission to such students particularly when it would result in
complete ruining of the professional career of a meritorious
candidate, is the question we have to answer."
12. After so stating, the Court proceeded to record a finding that
H
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 477
ORS. [DIPAK MISRA, J.]
it was unfortunate but apparently unfair that the appellant therein had A
been denied admission. Thereafter, it stated thus:-
"32. Though there can be rarest of rare cases or exceptional
circumstances where the courts may have to mould the relief
and make exceptiOn to the cut-off date of30'" September, but in
those cases, the Court must first return a finding that no fault is B
attributable to the candidate, the candidate has pursued her rights
and legal remedies expeditiously without any delay and that there
is fault on the part of the authorities and apparent breach of
some rules, regulations and principles in the process of selection
and grant of admission. Where denial of admission violates the
right to equality and equal treatment of the candidate, it would
c
be completely unjust and unfair to deny such exceptional relief
to the candidate. [Refer Arti Sapru v. State of J & K [( 1981) 2
SCC 484]; Chavi Mehrotra v. Director General Health Services
[(1994) 2 SCC 370]; and Aravind Kumar Kankane v. State of
UP [(2001) 8 sec 355]." D
13. The Court added that even ifthe conditions are satisfied, still
the Court wou Id be called upon to decide whether the reliefs should or
should not be granted and, if granted, should it be with or without
compensation. Thereafter, the Court adverted to certain facts and granted
the relief in the following manner:- E
"3 7. From the above data, it is clear that the appellant has
miserably failed to pursue her BOS course in accordance with
Rules and, thus, she has not fulfilled even the pre-requisites for
MBBS course, assuming that the BOS and MBBS courses are
similar for the first six months. In these circumstances and finding F
that the appellant is at fault to this limited extent, we are of the
considered view that the only relief the appellant can bt granted
in the present appeal is a direction to the respondents to give the
appellant admission to the MBBS course not in the academic
year 2011-12 but in the current academic year i'.e. 2012-2013,
that too, subject to the condition that she will pursue her MBBS G
course right from the beginning without any advantage of her
course in the BOS. If any examinations have been held in the
meanwhile, it shall be deemed that she had not appeared in those
examinations and be treated as such for all intent and purpose.
H
478 SUPREME COURT REPORTS (2017] 2 S.C.R.
A While giving her admission to the MBBS course, preferably and
if it is permissible, admission ofnone of the other candidates to
the MBBS course may be disturbed. If for whatever reasons, it
is not possible to do so, in that event, the candidate last in the
merit who has been granted admission to the MBBS course shall
be transferred to the BOS course and appellant shall be admitted
B
to the MBBS course. We also direct that such candidate would
not be required to commence her/his BOS course from the
beginning provided the candidate has satisfied the attendance
requirements of the Dental Council oflndia.
xxx xxx xxx
c
41. For the reasons afore-recorded and with the directions as
mentioned above, we direct the respondents to grant admission
to the appellant to the MBBS course in the current academic
year subject to the condition that she will pursue her MBBS
course right from its beginning and to the conditions afore-noticed.
D However, in the facts and circumstances of the case, we award
no costs."
14. At this juncture, it is necessary to note that the appellant
therein was not granted the benefit of admission for the academic year
201 I-2012 as she had miserably failed to pursue her BOS course in
E accordance with Rules and had not really fulfilled even the pre-requisites
for MBBS course assuming that the BOS and the MBBS courses are
similar for the first six months. It is imperative to note that though the
Court did not grant the benefit of admission for the current year but
directed her admission in the MBBS course in the subsequent academic
F year as it had arrived a definite conclusion that the denial of admission to
the MBBS course was not only unfortunate but apparently unfair.
15. In A11eesh D. Lawll11de & Ors. v. Stllte of Goa & Orl·.'), a
two-Judge Bench was dealing with a sad scenario wherein State of Goa
and its functionaries had allowed ingress of systemic anarchy throwing
G
propriety to the winds. The Court referred to the three-Judge Bench
decision in MBBS/BDS Selectio11 Board v. Chamla11 Mishra' where
the Court had commented on the insensitivity of the authorities
administering medical college admissions and approvingly reproduced a
'(2014) 1 sec 554
H '1995 supp.(3) sec 77
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 479
ORS. [DIPAK MISRA, J.)
sentence from the decision in C/wndlln Misftm v. MBBS/BDS Eelection A
Bollrtf' that proclaimed in sheer anguish "Shakespeare in Othello has
written 'Chaos is come again'." The context in Aneesft 's ·case was
admission to postgraduate courses in a single government medical college
at Goa. It is necessary to state that though the factual score was different,
yet the two-Judge Bench referred to the decision in Ashli (supra} to
B
accentuate the saga of anguish that continued. The Court noted various
irregularities and also the view expressed by the High Court. The Court
referred to the authority in Deptt. Of Public Hell/tit, UT Clwndigllrft
v. Ku/deep Singh' wherein the Court has reproduced the observations
of Farl Cairns L.C. in the House of Lords in Julius v. Lord Bis/top of
Oxford' which was quoted with approval by this Court in Commr. of c
Police v. Gordlumdlls Blu111ji10 • The succinctly stated passage reads
thus:-
"2 7 ... ' ... There may be something in the nature of the
thing empowered to be done, something in the object for which
it is to be done, something in the conditions under which it is to D
be done, something in the title of the person or persons for whose
benefitthe power is to be exercised, which may couple the power
with a duty, and make it the duty of the person in whom the
power is reposed, to exercise that power when called upon to
do so."
E
16. And thereafter the Court proceeded to observe that the State
Government had really crucified the fate of the candidates who had
been protected by the verdict of this Court. After lancinating the order
passed by the High Court, the Court expressed:-
"26. The agony and woe do not end here. The anguish of the F
students who were admitted on the basis of the Rules, in our
considered opinion, deserves to be addressed. True it-is, they
instead of approaching this Court knocked at the doo~s of the
High Court, may be in anxiety, as the counselling for the
candidates qualified in the NEET examination had commenced.
By virtue of the order of the High Court they got provisional G
admissions. They have prosecuted their studies for some time.
'(1994) 77 Cut LT 624
'(l997)9SCC 199
9
(1880) 5 AC 214
"'AIR 1952 SC 16 H
480 SUPREME COURT REPORTS [2017] 2 S.C.R.
A Had the. NEET not been introduced, they would have been
admitted under the Rules. But, presently the situation is totally
different. With the intention to solve the problem we had directed
issue ofnotice to the Medical Council oflndia."
17. After referring to the decisions in K.S. Blwir v. State of
B Maharashtra"; Faiw Cltoadltary v. State of J & K"; Satyal:lrata
Sa/100 v. State of Orissa" and Medical Council of India v. State of
Karnataka'", the Court culled out two principles. They are:-
"30. From the aforesaid decisions two principles emerge:
(i) That there cannot be direction for increase of seats, and
c
(ii) There cannot be telescoping of unfilled seats of one year
with permitted seats of the subsequent years."
18. The Court referred to the authority in Priya Gupta v. State
of Cltltattisgarlt" wherein directions were issued permitting the
D appellants therein to complete the course and thereafter, the Court invoked
the jurisdiction Article 142 of the Constitution to issue a direction so that
it can act as a palliative at least for some of the students who had been
given admission under the Rules. Eventually it held:-
"33. We have been apprised by Mr. Singh, learned senior counsel
for the State and Ms. lndu Malhotra, learned senior counsel for
E
the private respondents, that 21 seats of All India quota in
postgraduate medical course and 7 seats in dental course have
been transferred to the State quota. Mr. Amit Kumar, learned
counsel for the Medical Council of India, while not disputing
the numbers, would submit thatthey are to be fi lied up on different
F parameters. We are absolutely conscious of the said position.
However. regard being had to the special features of the case
and the litigations that have cropped up and the mistake that the
State Government has committed, we are inclined to di rec: that
21 seats transferred to the State quota shall be filled up from
among the students who had taken admissions under the 2004
G
Rules. It needs no special emphasis to state that the admissions
11
(2001) 10 sec 264
"(2012) 10 sec 149
"(2012) s sec 203
'« 1998) 6 sec 131
H "(2012)7SCC433
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 481
ORS. [DIPAK MISRA, J.]
and the allocations of the stream shall be on their inte1 se merit A
as per the Rules. We may hasten to clarify that none of these
candidates shall be allowed to encroach upon the streams that
have already been allotted to the petitioners who were admitted
having been qualified in the NEET examination. We have been
further apprised at the Bar that there are some unfilled seats as
B
some students have left the College. If the vacancies have
occurred, the same can also be filled up regard being h~d to the
merit as stipulated under the Rules.
xxx xxx xxx
35. The next submission relates to the issue whether the c
students who cannot be adjusted in the seats of All India quota
that have been transferred to the State quota of this year can be
adjusted next year. During the course of hearing though there
was some debate with regard to giving of admissions to such
students in the academic year 2014-15, Mr. Amit Kumar, learned
counsel forthe Medical Council oflndia, has seriously opposed D
the same and, thereafter, has cited the authorities which we have
referred to herein before. We are bound by the said precedents.
In certain individual cases where there is defective counselling
and merit has become a casualtv. this Court has directed for
adjustment in the next academic session but in the case at hand. E
it is not exactly so. Though we are at pains, yet we must express
that it will not be appropriate to issue directions to adjust them in
respect of the subsequent academic year, for taking recourse to
the same would affect the other meritorious candidates who would
be aspirant to get admissions next year. For doing equity to some
in praesenti we cannot afford to do injustice to others in future. F
Therefore, the submission stands repelled."
[Emphasi3 added]
19. The aforesaid decision has to be appropriately understood.
The Court did not direct for adjustment of number of students who had
G
to go out to be adjusted in the subsequent year, regard being had to the
principles stated in Faiza Choudhary and Satyubratu Suhoo (supra),
as the factual score was quite different. It needs to be stat~d in an
elaborate manner. The State of Goa had framed a set of Rules, namely,
the Goa (Rules for admission to Postgraduate degree and diploma courses
H
482 SUPREME COURT REPORTS (2017] 2 S.C.R.
A of the Goa University at the Goa Medical College) Rules, 2004 (for
short "the Rules"). Rule 3 dealt with eligibility, preference and order of
merit. Rule 3( I) dealt with eligibility criteria and Rule 3(2) with preference.
The said Rule governed the admission to the singular medical cc.liege
and the lone dental college, both Government colleges affiliated to Goa
University. On 9.8.2012 the Government of Goa in the Department of
B
Public Health, through its Under Secretary (Health) communicated to
the Dean, Goa Medical College to implement Medical council oflndia's
Notification on the NEET for the academic year 2013-14, which was
challenged in Christian Medical College v. State of Punjab". During
the pendency of the matter, the writ petitioners qualified for NEET and
c secured ranks for admission to postgraduate courses. When the matter
was sub-judice before this Court the High Court of Bombay at Goa
entertained Writ Petition No. 366 of2013 by the students, who had failed
to qualify in the NEET examination but were eligible to get admission on
the basis of their aggregate marks as provided under the Rules, and
ordered counselling in respect of both the categories of students and
D
permit admission to the students. On 25.7.2013, Additional
Secretary (Health) directed the Goa Medical College to admit the students
on the basis of aggregate marks and cancelled the admissions bas~d on
NEET. The candidates, who had qualified in the NEET examination
and had been admitted, were compelled to leave the college and the
E students who had qualified under the Rules were admitted. The
dissatisfaction impelled the grieved students to approach this Court under
Article 32 of the Constitution and the Court on 30.7.2013 stayed the
orderofthe State Government and thereafter on 7.8.2013 passed a
mandatory order to the effect that the petitioners shall be permitted
to continue their studies. However, the Court observed that in certain
F
individual cases, there had been a defective counseling and merit had
become a casualty, and accordingly directed for adjustment in the next
academic session which followed the principle laid down in Priya Gupta
(supra).
20. In Jasmin Kaur & Ors. (supra), the two-Judge Bench
G referred to all the authorities in the field, namely, Priya Gupta (supra);
State of Bihar v. Sanjay Kumar Sinha"; Medical Council of lndkt
v. Mad/tu Singh"; GSF Medical and Paramedical Assn. v. Assn. of
"<2010) 12 sec 167
"<1990) 4 sec 624
H "\2002) 1 sec 2ss
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 483
ORS. [DIPAK MISRA, J.]
Se(f Financinf( Technical Institutes"; and Christian Medical Collef(e A
(supra) and distinguished the decision in Asha's case stating as follows:-
"31. In para 32 of Asha case, the exceptional circumstances
which can be examined have been quoted in order to ensure that
when any deviation is to be made from the normal rule, such
similar principles should be kept in mind by the Courts. In para B
32, it was highlighted that in the rarest ofrare cases or exceptional
circumstances, the Courts may have to mould the re!iefs and
make an exception to the cut-off date of 30'h September but in
those cases the Court must first return a finding that no fault
was attributable to the candidate, that the candidate pursued her
rights and legal remedies expeditiously without any delay and
c
that there was fault on the part of the authorities and that there
was no apparent breach of the rules, regulations and principles
in the process of the selection and grant of admission. It was
also highlighted that where denial ofadmission would violate the
right to equal fry and equal treatment of the candidate, it would D
be completely unjust and unfair to deny such exceptional relief
to the candidate. By relying upon the said part of the decision,
the learned Senior Counsel submitted that the case of the
contesting Respondent was squarely covered by the principle of
an exceptional case and, therefore, the direction of the Division
Bench was well justified." E
21. The Court distinguished the decisions in Dwarka Natlt v.
ITO" and State ofPunjab v. Sali/ Sablt/ok" and proceeded to conclude
thus:-
"33 .1 The schedule relating to admissions to the professional F
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.
33 .2 Under exceptional circumstances, if the court finds that
there is no fault attributable to the candidate i.e., the candidate G
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
"(2003) 12 sec 414
"AIR 1966SC81
"(2003) s sec 1
H
484 SUPREME COURT REPORTS [2017] 2 S.C.R.
A is an apparent breach of rules and regulations as well as related
principles in the process of grant ofadmission 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
B
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
c circumstances, the candidate should not be victimised for nc 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
D promptly, then the Courts cannot grant any relief to the candidate
in the form of securing an admission.
33.5 Ifthe 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
E contend that the process of selection was unfair.
33 .6 If it is found that the candidate acquiesces or waive.s his/
her right to claim relief before the Court promptly, then in. such
cases, the legal maxim vigilantibus et 11011 dormientibus Jura
subveniunt, which means that equity aids only the vigilant and
F 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 ifthe same is not challenged promptly.
Once the candidate is aware that he/she does not fulfill the criteria
of the prospectus he/she cannot be heard to state that, he/she
G 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
H
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 485
ORS. [D!PAK MISRA, J.]
candidate is and deserved admission. In such circumstances, A
the Courts cannot grant any relief to the candidate but it is up to
the candidate to re-apply in 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. B
33. I 0 Each of these above mentioned 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."
[Underlining is ours}
c
22. The aforesaid authority, as the underlining portion would show,
restricts the grant ofrelief of admission, if it is within the time schedule
prescribed, and then lays down ifthe seats are filled up and t:1e scope
for granting admission is lost due to eclipse of time schedule, then under
such circumstances, the candidate can only be granted appropriate
compensation to off-set the loss caused, if any. The said authority has D
been followed in S. Nilwr Alwmedv. Dean Ve/amnwl Medical College
Hospital and Research Institute & Ors".
23. In this context, a reference to the pronouncement by a three-
Judge Bench in Harslwli Dlo Sudamrao Wankhede v. State of
Maharashtra & Ors. 23 would be apt. In the said case, the appellant E
was denied admission in MBBS first year course in academic year 2004-
05 despite obtaining higher marks in the entrance test. The appellant
therein had approached the High Court which had dismissed the writ
petition on the ground that direction for grant of admission to the appellant
could not be issued after the cut-off date, i.e. 30'h September 2004 in
F
view of the decision of this Court in Madhu Singh (supra). T11e Court
accepted the stand of the appellant with regard to her merit and directed
as follows:-
"6. Learned Counsel for the college submits that the appellant
can be granted admission in the present Academic Year 2005-
G
2006 out of the sanctioned intake of the college. Learned Counsel
also states that the appellant would be required to pay only that
fee which was required to be paid if admission had been granted
against a government quota seat in Academic Year 2004-2005.
"(2016) 1sec662
"(2005) 13 sec 464 H
486 SUPREME COURT REPORTS [2017] 2 S.C.R.
A Further, it is stated that whatever fee has been paid by the appellant
for getting admission into dental course for the last year or this
year, due adjustment would be made while calculating payment
of fee by her for the admission in the first year MBBS course in
the present Academic Year 2005-2006.
B 7. The question which still requires to be examined, which would
be examined later, would also be about the loss of one year of
career of the appellant. In view of the aforesaid, we direct that
the appellant be granted admission in the first year MBBS course
by 30.09.2005."
24. The concern of the Court from the aforesaid two passages
c is writ large. As we understand the ratio, the three-Judge Bench was
concerned with the non-granting of admission and the loss of one year
of career of the student.
25. Mr. Parameshwar, learned counsel has drawn our attention
to a passage from a three-Judge Bench decision in Punjab Engineering
D College, Chandigarh through its Principal v. S1111jay Gulati & Ors.".
The said passage reads as under:-
"Cases like these in which admissions granted to students in
educational institutions are quashed raise a sensitive human issue.
It is unquestionably true that the authorities who are charged
E with the duty of admitting students to educational institutions must
act fairly and objectively. If admissions to these institutions are
made on extraneous considerations and the authorities v;olate
the norms set down by the rules and regulations, a sense of
resentment and frustration is bound to be generated in the minds
of those unfortunate young students who are wrongly or
F
purposefully left out. Indiscipline in educational institutions is not
wholly unconnected with a lack of sense of moral values on the
part of the administrators and teachers alike. But the problem
which the courts are faced with in these cases is, that it ;snot
until a period of six months or a year elapses after the admissions
G are made that the intervention of the court comes into play. Writ
Petitions involving a challenge to such admissions are generally
taken up by the High Courts as promptly as possible but even
then, students who are wrongly admitted finish one or two
semester of the course by the time the decision of the High
------
H "(1983)3 SCC517
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 487
ORS. [DIPAK MISRA, J.]
Court is pronounced. A further appeal to this Court c0nsumes A
still more time, which creates further difficulties in adjusting
equities between students who are wrongly admitted and those
who are unjustly excluded. Inevitably, the Court has to rest content
with an academic pronouncement of the true legal position.
Students who are wrongly admitted do not suffer the
B
consequences of the manipulations. if any, made on their behalf
by interested persons. This has virtually come to mean that one
must get into an educational institution by means, fair or foul:
once you are in, no one will put you out. Law's delays work their
wonders in such diverse fashions."
[Emphasis added]
c
26. As is seen, stress has always been laid on the me~it in the
matters of all admissions as meritorious students should not face any
impediment to get admission for some fault on the part of the institution
or the persons involved with it. He/She has no other remedy but to
approach the Court for getting redressal of his/her grievances. It is a D
grievance that pertains to fundamental right. It has to be remembered
that a right is conferred on a person by rule of law and if he seeks
remedy through the process meant for establishing rule of law and it is
denied to him, it would never subserve the cause ofreal justice. When
a /is of this nature comes in a constitutional court, it becomes th~ duty of E
the court to address whether the authority had acted within the powers
conferred on it or deviated from the same as a consequence of which
injustice has been caused to the grieved person. The redressal of a
fundamental right, if one deserves to have, cannot be weighed in terms
of grant of compensation only. Grant of compensation may be an
additional relief. Confining it to grant of compensation as the only measure F
would defeat the basic purpose of the fundamental rights which the
Constitution has conferred so that the said rights are sustained. It would
be inapposite to recognize the right, record a finding that there is a violation
of the right and deny the requisite relief. A young student should not feel
that his entire industry to get himself qualified in the examination becomes G
meaningless because of some fault or dramatic design of certain
authorities and they can get away by giving some amount as compensation.
It may not only be agonizing but may amount to grant of premiem either
to laxity or evil design or incurable greed of the authorities. We are
disposed to think, in such a situation, justice may be farther away and
H
488 SUPREME COURT REPORTS [2017] 2 S.C.R.
A the knocking at the doors of a constitutional court, a sisyphean endeavour,
an exercise in futility. It is well known that the law intends not anything
impossible; "lex 11011 i11te11dit a/iquid impossibile". But when it is in
the realm of possibility; and denial ofreliefhurts the "majesty ofjustice'',
it should not be denied. On the contrary, every effort has to be made to
grant the relief. Needless to say, to get the relief, conditions precedent
B
are to be satisfied; and that is what has precisely been stated in As/ta
(supra) and Harslwli (supra).
27. In this context, Mr. Narasimha, learned friend of the court
submitted that the court in Jasmine Kaur (supra) has been guided by
the principle adopted by this Court in the cases of constitutional tort. He
c has drawn our attention to the authorities in Rudu/ Shaft v. Stflte of
Bi/tar", Sebastian Hongray v. Union of India" and Clwirnum,
Railway Board v. Cftandrima Das", where the Court granted
compensation because there was no other option and the only way of
redemption was to grant compensation. It is necessary to state that
D grant of relief as lawfully due should be the primary duty of the court.
Where doctrine ofrestitution can be applied and there is no impossibility
it would be anathema to the cause of justice to deny the same, It is
seemly to appreciate that restitution as a concept, as is traditionally
understood, is the restoration of an aggrieved party to his condition prior
to the wrongdoing. It could be limited to monetary quantification only if
E the breach is not capable of being remedied. That being so, compensation
cannot be the adequate or sole remedy for the wrongful deprivation of
admission, as it affects the academic career of a student. There may be
cases where restitution may be too harsh. Then, as we are inclined to
think, telescoping albeit reasonably is not an impossible one. In Anees/1
F D. Lawande (supra) some of the candidates were adjusted as the
government had played possum and telescoping was not allowed as the
candidates had got into the course in contravention of the decision of
this Court. The factual score was different. But when a right is
comatosed by a maladroit design, we think, the right of the person
presently aggrieved should matter, not the right of the future candidate.
G Present cannot be crucified at the alter of the present. Whether the
beneficiary who has got in should go out or not, would depend upon the
discretion of the Court.
"<I983)4 sec 141
"'AIR 1984 SC 571
H "(2000) 2 sec 465
S. KRISHNA SRADHA v. STATE OF ANDHRA PRADESH AND 489
ORS. [DIPAK MISRA, J.]
28. In this regard, we may, with profit, refer to the dictum laid A
down in Ja11g Singh v. Brij Lal & Ors."· In the said case, t~1e Court
applied the principle actus curiae neminem gravabit, namely, an act of
the Court shall prejudice no one and in that context held:-
"lt is no doubt true that a litigant must be vigilant and take care
but where a litigant goes to Court and asks for the assistance of B
the Court so that his obligations under a decree might be fulfilled
by him strictly, it is incumbent on the Court, if it does not leave
the litigant to his own devices, to ensure that the correct
information is furnished. Ifthe Court in supplying the information
makes a mistake the responsibility of the litigant, though it does
not altogether cease, is at least shared by the Court. If the
c
litigant acts on the faith of that information the Courts cannot
hold him responsible for a mistake which it itself caused. There
is no higher principle for the guidance of the Court than the one
that no act of Courts should harm a litigant and it is the bounden
duty of Courts to see that if a person is harmed by a mistake of D
the Court he should be restored to the position he would have
occupied but for that mistake. This is aptly summed up in the
1naxim: "Actus curiae 11e111ine111 gravabit'~.
29. And thereafter moulded the relief, set aside the judgment of
the High Court by observing thus:- E
"The mistake committed by the Court must be set right. The
case must go back to that stage when the mistake was committed
by the Court and the appellant should be ordered to deposit the
additional rupee for payment to Bhola Singh. lfhe fails to make
the deposit within the time specified by us his suit may be F
dismissed but not before. We may point out, however, that we
are not deciding the question whether a Court after passing a
decree for premption can extend the time originally fixed for
deposit of the decretal amount. That question does not arise
here. In view of the mistake of the Court which needs to be
righted the parties are relegated to the position they occupied on G
January 6, 1958, when the error was committed by the Court
which error is being rectified by us nw1c pro tune."
[Emphasis s•.1pplied]
'"AIR 1966SC 1631 H
490 SUPREME COURT REPORTS [2017] 2 S.C.R.
A 30. The three words that have been proclaimed in the said
judgment, namely, nunc pro tune, is basically in the realm of doctrine of
relation back and it is applied because of the fault of the .Court, the
litigant should not suffer. At this juncture, we are obliged to sa;1 that
when the courts have gone to the extent of saying that for the fault of
the court, the litigant should not suffer, it is unimaginable that fur the
B
fault of the administrators or the counselling body or for some kind of
evil designer, grant of compensation should be regarded as the lone
remedy. We think not; as we are reminded o_f what Justinian had said
"Justice is the constant and perpetual wish to render to everyone, his
due". Needless, "his due" only can mean "due in law in praesenti."
c 31. In view of the aforesaid, we think the decision in Clumdig(/rh
(ldministration (supra) requires re-consideration by a larger Bench.
Papers be placed before Hon 'ble the Chief Justice oflndia for constitution
of the appropriate larger Bench.
D
Divya Pandey Matter referred to Larger Bench.
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