CWP/5745/2024 on 31 December 2024

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Writ Petition No.5745 of 2024 Reserved on: 23.12.2024 Date of Decision: 31.12.2024 _____________________________________________________________________ Dr. Chirag Sharma

……...Petitioner Versus Union of India and Others

…....Respondents

Coram

Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? Yes. For the Petitioner: Mr. Bhuvnesh Sharma, Senior Advocate, with Mr. Parav Sharma, Mr. Shekhar Badola, Mr. P.K. Chauhan, Mr. Rahul Thakur and Ms. Vishali Lakhanpal, Advocates. For the Respondents: Mr. Shashi Shirshoo, Central Government Counsel, for respondent No.1. Mr. Sunil Mohan Goel, Senior Advocate, with Mr. Paras Dhaulta, Advocate, for respondent No.2. Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C. Verma, Additional Advocates General, with Mr. Ravi Chauhan, Deputy Advocate General, for respondents/State. Mr. Sandeep K. Pandey, Advocate, for respondent No.5. _____________________________________________________________________ Sandeep Sharma, J. Petitioner herein is aggrieved of order dated 22.05.2024 (Annexure P-11) issued by Principal, Dr. Radha Krishnan Government Medical College (Dr. RKGMC), Hamirpur, District Hamirpur, Himachal Pradesh, whereby petitioner, who pursuant to his having cleared NEET PG 2023 examination, was granted admission in Diplomate of National Board (for short, hereinafter ‘DNB’) i.e. post MBBS course

in the Department of Obstetrics and Gynecology in respondent No.6 college i.e. Dr. RKGMC, Hamirpur, came to be relieved on account of his reallocation from afore college to Rajeev Gandhi Medical College and Charitable Shivaji Maharaj Hospital, Thane Belapur Road, Kalwa, Thane, Maharashtra.

2. For having bird’s eye view, facts relevant for adjudication of the case at hand, as emerge from pleadings adduced on record by respective parties, are that petitioner herein though remained successful in NEET PG 2023 examination, but could not get seat in DNB course, as detailed hereinabove, under All India Quota, as such, applied online to participate in State Quota Himachal Pradesh direct seat counselling conducted by National Board of Examination in Medical Sciences (for short, hereinafter ‘NBEMS’) (Annexure P-4). Being successful, petitioner came to be allotted seat in respondent No.6-College in the discipline of Obstetrics and Gynecology vide provisional admission letter (Annexure P-5). Being a direct State quota candidate, petitioner signed an affidavit dated 21.11.2023 deposing therein that he is opting for “no bond, no stipend policy”, as was mentioned in the prospectus (Annexure P-6). Pursuant to admission letter, petitioner joined as Junior Resident (First Year) in DNB in the Department of Obstetrics & Gynecology in respondent No.6-College. Though DNB course, for which petitioner was admitted in respondent

No.6-College, was for the duration of three years, but to utter surprise of the petitioner, Additional Director (SAG), Department of Accreditation, NBEMS, sent an e-mail to respondent No.6-College, thereby intimating that decision has been taken to withdraw the accreditation of the respondent No.6-College. Vide afore communication, it also came to be informed to respondent No.6- College that candidates admitted in DNB courses, pursuant to NEET PG 2023 examination, shall be reallocated to some other Colleges (Annexure P-7). Besides above, petitioner also received an e-mail dated 05.04.2024 from respondent No.2, thereby intimating decision to withdraw accreditation of respondent No.6-College in the specialty of Obstetrics & Gynecology. Vide afore communication, petitioner also came to be directed to submit his preference for reallocation (Annexure P-8). Though petitioner requested respondent No.2 to permit him to continue his course of DNB at respondent No.6-College, but such prayer of him was not considered favourably and ultimately he was reallocated to Medical College at Thane, Maharashtra. Being aggrieved on account of reallocation from respondent No.6-College to Medical College at Thane, Maharashtra, petitioner approached this Court in the instant proceedings, praying therein for following reliefs: “i. That the E-Mail message dated 20.3.2024 at Annexure P-7 addressed by Respondent No.2 to Respondent to Respondent No.6 regarding withdrawal of accreditation for different DNB courses

including DNB Obstetrics & Gynecology in which the Petitioner has already got admission, may kindly be quashed and set aside. ii. That E-mail message dated 5.4.2024 at Annexure P-8, whereby the Petitioner has been asked to submit three choices for her shifting for DNB Obstetrics & Gynecology course to any of the other institutions mentioned therein, and the E-Mail Dated 20.5.2024 at Annexure P-10, whereby the petitioner has been relocated from Dr. RKGMC Hamirpur to Rajiv Gandhi Medical College and Chhatrpati Shivaji Maharaj Hospital, Thane Bhelpur Road, Kalwa, Thane, Maharashtra, may kindly be quashed and set aside, in the interest of justice. iii. That the reliving order of the petitioner dated 22.5.2024 at Annexure P-11, whereby the petitioner has been relieved from the Respondent No. 6 College from where she was pursuing her DNB Course may kindly be quashed and set aside and the petitioner may kindly be reverted back to the Respondent No. 6 institute i.e. Dr. RKGMC Hamirpur and she may kindly be allowed to continue her DNB in Obstetrics & Gynecology course from the Dr. RKGMC Hamirpur i.e. the Respondent No. 6 institute and the intervening period w.e.f. 22.05.2024 to date, may kindly be treated as continue at DNB Course at Respondent No. 6 College, in the interest of justice. iv. That the Respondents may kindly be directed to produce the entire record pertaining to the present case for kind perusal of this Hon'ble Court. v. Any other Order deemed just and proper in the facts and circumstances of the case, may also kindly be passed in favour of the Petitioner and against the Respondents.”

3. Before afore prayer made on behalf of petitioner could be considered, decision earlier taken by NBEMS to withdraw the accreditation of respondent No.6-College qua DNB courses came to be withdrawn, as a result thereof, petitioner, who admittedly pursuant to his reallocation, stood relieved from respondent No.6-College, again

requested afore College to permit him to continue the DNB course, against which he was admitted, pursuant to his having participated online in Himachal Pradesh State quota direct seat counselling held by NBEMS, which prayer of him has been not acceded to till date. Though now at this stage, main grouse of the petitioner with regard to withdrawal of accreditation ordered by NBEMS stands readdressed, but since he is not being permitted to rejoin at respondent No.6- College, he is compelled to pursue the instant proceedings.

4. Pursuant to notices issued in the instant proceedings, respondents No.2 to 6 have filed replies. Reply on behalf of respondent No.3, 4 and 6 has been filed under the signatures of Principal of respondent No.6-College, whereas, reply on behalf of respondent No.5 has been filed under the signatures of Registrar, Atal Medical & Research University, District Mandi, Himachal Pradesh. NBEMS- respondent No.2 has filed reply through Additional Director (Medical), National Board of Examination in Medical Sciences, Ministry of Health and Family Welfare, Government of India, New Delhi. Facts as noticed hereinabove have been not disputed by the respondents in their respective replies. All the respondents, save and except respondent No.2, have supported the claim of the petitioner.

5. Respondent No.2, while admitting factum of reallocation of petitioner from respondent No.6-College to Medical College at Thane,

Maharashtra, has attempted to defeat the claim of the petitioner on the ground that initial admission of the petitioner to DNB course at respondent No.6-College was not in accordance with law. As per afore respondent, candidature of the petitioner could not have been considered against the seat meant for in-service candidate. It is further stated in the reply filed by respondent No.2 that in case seat reserved for in-service candidate remains unfilled on account of non- availability of an in-service candidate, same shall not be filled by direct candidate, rather that would revert back to All India Quota enabling NBEMS to fill-up the same from the eligible candidates under all India merit-list.

6. Mr. Sunil Mohal Goel, learned Senior Counsel representing respondent No.2 while fairly admitting that decision to withdraw the accreditation of respondent No.6-College stands revoked, strenuously argued that prayer made on behalf of the petitioner to permit him to pursue DNB course in respondent No.6-College cannot be accepted on account of the fact that his initial admission in the College concerned qua the course in question was not in accordance with rules. Mr. Goel, learned Senior Counsel contended that though there appears to be no fault of the petitioner, but any indulgence by this Court in the case of the petitioner may open pandora-box.

7. Learned Additional Advocate General representing respondents No.3, 4 and 6 and Mr. Sandeep Pandey, learned counsel representing respondent No.5, while justifying the action of reallocation, inasmuch as admitting petitioner against the seat meant for in-service candidate, stated that the factum of admission of the petitioner in the course concerned, against the seat reserved for in- service candidate, was very much in the knowledge of NBEMS. While referring to Annexures P-4 and P-5 annexed with the petition, above named counsel argued that the factum of petitioner having cleared NEET PG 2023 examination was very much in the knowledge of NBEMS and thereafter information with regard to admission of the petitioner to DNB Course in Obstetrics and Gynecology was also given to NBEMS, which subsequently taking note of dispute inter se respondents-State and some of the candidates with regard to payment of stipend, itself proceeded to order reallocation of the petitioner from respondent No.6-College to Medical College at Thane, Maharashtra.

8. Mr. Sandeep Pandey, learned counsel representing respondent No.5, while making this Court peruse reply filed on behalf of respondent No.5 submitted that State of Himachal Pradesh started admitting post-MBBS DNB candidates under State quota from the academic session 2022-23 and for that purpose a combined roster for allocation of MD/MS/DNB seats was prepared by Committee

constituted on the directions of this Court passed in CWP No.6819 of 2022. He further submitted that counselling Committee conducted the allocation based on that roster and such roster was continued for the academic session 2023-24. Mr. Pandey further submitted that Director, Medical Education and Research, Himachal Pradesh, vide letter dated 04.07.2024, communicated to respondent No.2, that there was misinterpretation of the provisions of State quota seats in DNB through online State centralized/common counselling, because it assumed that State is authorized to apply its postgraduate reservation policy and general provisions of centralized/common counselling, while admitting students in DNB Courses. In nutshell, afore respondent in its reply has admitted its mistake, inasmuch as it proceeded to allot seat meant for an in-service candidate to a direct quota candidate, but also clarified to respondent No.2 that from academic session 2024-25, only in-service candidates would be offered such seat and State quota DNB seats and vacant seats would not be filled-up by direct candidate. While referring to communication dated 04.07.2024 (Annexure R-5/A), Mr. Pandey further submitted that request was made to respondent No.2 to permit candidates admitted under direct quota against the State quota post-MBBS DNB seats in last two academic sessions.

9. I have heard learned counsel representing the parties and perused material available on record.

10. Before considering the rival submissions made on behalf of respective parties, it would be apt to take note of role of respondent No.2, vis-a-vis admission in DNB courses. DNB is a three year, post- graduate course after MBBS. After qualifying NEET PG, counselling for admissions to DNB (Post-MBBS course) is conducted by Medical Counselling Committee (MCC) of DGHS, Ministry of Health and Family Welfare, Government of India, in terms of judgment passed by Hon’ble Apex Court in Alapati Jyotsna Vs. UOI and Others, 2020 (5) SCC

320. As per prevailing policy, maximum of 50% seats in DNB course can be reserved by the State for its in-service candidates, as a result thereof, in-service candidates are not included in all India counselling. The counselling of eligible in-service candidates/Doctor under 50% State quota for DNB courses is conducted by State Government. In case the seats meant for in-service Doctor remain vacant, after the counselling conducted by State Government, same cannot be filled-up by State Government from non-service candidates. Perusal of communication dated 01.06.2002 (Annexure R2/2) placed on record by respondent No.2 along with its reply reveals that there are total 28 NBEMS accredited seats in the Government Hospitals in the State of Himachal Pradesh for 2023 academic session. 50% of total seats i.e.

14 out of 28 were to be filled-up on the basis of all India counselling and the remaining 14 i.e. 50% were for State quota. Clause 6 of said letter provides that 14 seats of DNB course under All India Quota (Central Pool), NBEMS accredited, were to be filled-up on the basis of counselling by MCC, DGHS, Government of India. Said clause reads as under: “6. All India Quota (Central Pool) NBEMS accredited Seats: The remaining Post MBBS DNB seats, Post Diploma DNB seats and Post MBBS Diploma seats shall contribute to the Central Pool of the seats and is tabulated below: DNB Course Diploma Course Particulars Post

MBBS DNB seats Post Diploma DNB seats Post MBBS Diploma seats No. of seats

NIL Counseling Conducting Body Medical Counseling Committee (MCC) DGHS, Govt. of India NBEMS Medical Counseling Committee (MCC) DGHS, Govt. of India Statutory Reservation Status (SC/ST/OBC/EWS/ PWD/Unserved) Not required (shall

be applied by the MCC as per the

roster available for central pool seats) Required to be provided

to NBEMS by the State Government as per Annexure ‘4’ Not Required (shall

be applied

by the MCC as per the roster available for central pool seats) The numbers in the above table (i.e. at Point No.6) will increase if your state opts for lesser number of seats as per the table 8 in Point No.3. Please ensure that the sum of total number of seats in the Table at Point 3 & Table at Point 6 should match table in Point No.2 for each type of seats.

The counseling for the All India Quota Seats (i.e. the Central Pool Seats) shall be done on all India basis as indicated in TABLE ‘C’ above. For these Central Pool Seats, the State Government is required to indicate the number of seats contributed for All-India Quota Counseling in the format enclosed at Annexure-4. A sample format for a ready reference is at Annexure-5.”

11. Counselling for in-service Doctors/candidates quota seat was to be conducted by State Government in accordance with Clause 5, which reads as under: “5. Counseling for In-Service Doctors Quota Seats: The counseling for admission to the seats reserved for In-Service doctors shall be done by the State Government itself after applying the applicable statutory reservation as per the applicable policy, regulations/eligibility. Seats retained by the State Government to be filled from In-Service doctors will not be included in the All-India counseling, in case such seats remain vacant after the counseling conducted by the State Government. State Government cannot fill these seats from non-service candidates.”

12. Careful perusal of letter dated 01.06.2023 further reveals that in case State Government intends to offer any condition of service, then such fact is required to be apprised to the counselling authority for the purpose of conducting All India Quota counselling by the MCC. In case service bond condition for any Government Hospital is not informed by the State to the concerned Counselling Authority, it would be presumed that there is no service bond condition applicable for DNB course, in that Government Hospital of the State. Clause 7 of

aforesaid letter dated 01.06.2023, which may have no application in the case at hand, deals with the condition of service bond and its consequences. As per aforesaid Clause, where such details are not provided by the State Government before the start of the counselling on the MCC counselling web portal, it shall be presumed that there is no service bond applicable for DNB/diploma course in that Government Hospital.

13. Admittedly, in the case at hand, petitioner herein, after his having cleared NEET PG 2023 examination, was unable to get DNB seat under All India Quota and as such, he applied online under State quota for direct seat candidate, counselling whereof was conducted by State Authority i.e. respondent No.5. Petitioner was allotted seat in respondent No.6-College in the discipline of Obstetrics and Gynecology vide provisional admission letter (Annexure P-5). After his being selected against the course in question, petitioner not only joined as a Junior Resident (First Year) in DNB Course in Obstetrics and Gynecology in respondent No.6-College, but he was permitted to pursue studies in aforesaid College, till the issuance of communication dated 22.05.2024 (Annexure P-11), whereby on account of order of withdrawal of accreditation of respondent No.6- College issued by respondent No.2, petitioner herein was ordered to be reallocated from respondent No.6-College to Medical College at Thane,

Maharashtra. Till the passing of order of reallocation, as detailed hereinabove, no objection, ever came to be raised by respondent No.2 with regard to admission of the petitioner in the course concerned, against the seat meant for in-service candidate. Once issue with regard to direction issued by the respondents-State to the candidates given admission under All India Quota in the course in question to fill- up service bond and not to claim stipend, came in the notice of respondent No.2, decision to withdraw the accreditation qua the course in question from respondent No.6-College, came to be taken by respondent No.2. Since respondents-State had not apprised respondent No.2 with regard to its intention to call upon candidate admitted under All India Quota to fill-up the service bond, respondent No.2, while condemning the action of respondent, inasmuch as not providing stipend to the candidates admitted under All India Quota, also ordered for reallocation of the students admitted in the respondent No.6-College in DNB courses. In the afore background, petitioner herein was also ordered to be reallocated from respondent No.6-College to Medical College at Thane, Maharashtra. Even at the stage of ordering reallocation of petitioner from respondent No.6- College to Medical College at Thane, Maharashtra, no objection, if any, was ever raised by respondent No.2 with regard to admission of the petitioner against seat reserved for in-service candidate. It is only after

respondent No.2 decided not to withdraw the accreditation of respondent No.6-College, objection with regard to admission of the petitioner against seat reserved for an in-service candidate came to be raised by respondent No.2.

14. Though in the case at hand, objection raised by respondent No.2 appears to be totally valid, for the reason that seat meant for in-service candidate could not have been filled-up from direct quota candidate, rather, admission to direct quota candidate in DNB course could only be granted against one of the seats reserved under All India Quota. In the case at hand, though this Court is convinced that 14 seats of DNB course were to be filled-up under All India Quota, wherein admittedly petitioner was unable to secure seat, on account of his being lower in merit and remaining 50% seats were meant to be filled-up from amongst in-service candidates, however, having taken note of the fact that respondents/State itself permitted petitioner to participate in online counselling conducted by State counselling Authority for filling-up unfilled seats meant for in-service candidates, coupled with the fact that unfilled seats falling in the category of in-service candidates, were being filled by respondents- State from amongst the direct candidates for last two academic sessions, prayer made on behalf of the petitioner to permit him to continue his studies at respondent No.6-College in DNB course,

deserves to be considered, especially when there is nothing to suggest that there was any fault or misrepresentation, on the part of the petitioner.

15. Petitioner herein, pursuant to policy decision taken by State of Himachal Pradesh, registered himself for online counselling under State quota, which application of him was not only accepted, rather, he was given admission in respondent No.6-College. Had issue with regard to filling-up of service bond and stipend, by students admitted under All India Quota, not come to the notice of respondent No.2, no order of reallocation of petitioner or other similarly situate persons would have been passed by respondent No.2 and in that eventuality, probably issue with regard to illegality committed by respondents while considering candidature of the petitioner under State Quota would have also not come into the notice of respondent No.2.

16. In the instant case, respondent-State misinterpreted the provisions contained in letter dated 01.06.2023 and proceeded to grant admission to the petitioner against the seat reserved for in- service candidate. As has been noticed hereinabove, aforesaid practice to give admission to direct candidate against the seat reserved for in- service candidate was not only followed in the academic session 2023- 24, rather, such practice was being followed from academic session

2022-23. No action, if any, was ever taken by respondent No.2 against the students, who though were direct candidates, but were given admission against in-service quota in the academic session 2022-23.

17. Though, having taken note of reply filed by respondent No.2 as well as other material available on record, this Court is convinced that action of respondent inasmuch as giving admission to petitioner against in-service quota, is not in terms of communication dated 01.06.2023, but since there was no fault, if any, on the part of the petitioner and admission to him was given pursuant to his having applied online for counselling under State quota, coupled with the fact that similar admissions made by respondents/State in the past were not interfered by respondent No.2, admission given to petitioner to the course in question, needs to be protected. Moreover, during proceedings of the case, despite opportunity, learned Senior Counsel representing respondent No.2 was unable to place on record material, suggestive of the fact that candidates more meritorious than the petitioner would have become available, in the event of filling-up of unfilled seats meant for in-service candidates through All India Quota. In this regard, reliance is placed upon Vansh S/o Prakash Dolas vs. The Ministry of Education & The Ministry of Health & Family Welfare and others, passed in Civil Appeal No.4427-4428 of 2024, wherein candidate was illegally deprived from his rightful admission in

the first year of MBBS Course, owing to the insensitive, unjust, illegal and arbitrary approach of the respondent. In the afore judgment, Hon'ble Apex Court taking note of its earlier judgment passed in Manoj Kumar vs. Union of India and others, wherein concept of restitutive justice came to be considered, held that a meritorious candidate/student, who has been denied admission in MBBS course illegally or irrationally by the authorities for no fault of his/her, deserves to be granted appropriate relief by increasing the seats. At this stage, it would be profitable to reproduce Paras Nos.22, 23, 24, 27 and 28 of afore judgment herein below:- “22. The Division Bench of Bombay High Court at Nagpur while reject- ing the writ petition filed by the appellant, fell into manifest error in not considering case of the appellant in the correct perspective. For that reason, the impugned judgment is unsustainable in facts as well as in law. A fortiori, the letter/communication dated 9th August, 2023 issued by respondent No. 6 cancelling the admission granted to the appellant against the Maharashtra State quota in CAP1 without giving opportu- nity to show cause is also illegal and arbitrary and deserves to be quashed and set aside.

23. However, there is a practical hurdle which comes in the way of the appellant for being provided admission in the MBBS course in the cur- rent session which has progressed significantly from August, 2023. More than six months have passed by since the session started. As per the reply of the respondents, no seat is lying vacant in any college in Maharashtra State quota as on date.

24. Undisputably, the appellant has been illegally deprived from his rightful admission in the first year of the MBBS course owing to the in-

sensitive, unjust, illegal and arbitrary approach of the respondents and so also on account of the delay occasioned in the judicial process.

27. This Court in the case of S. Krishna Sradha v. State of Andhra Pradesh and Others4 examined the issue of wrongful denial of admission in a medical course, and propounded the theory of ‘restitutive justice’ by holding as below:- “13. In light of the discussion/observations made hereinabove, a meritorious candidate/ student who has been denied an admission in MBBS course illegally or irrationally by the authorities for no fault of his/her and who has approached the Court in time and so as to see that such a meritorious candidate may not have to suffer for no fault of his/her, we answer the reference as under:

13.1. That in a case where candidate/student has approached the court at the earliest and without any delay and that the question is with respect to the admission in medical (2017) 4 SCC 516 course all the efforts shall be made by the court concerned to dispose of the proceedings by giving priority and at the earliest.

13.2. Under exceptional circumstances, if the court finds that there is no fault attributable to the candidate and the candidate has pursued his/her legal right expeditiously without any delay and there is fault only on the part of the authorities and/or there is apparent breach of rules and regulations as well as related principles in the process of grant of admission which would violate the right of equality and equal treatment to the competing candidates and if the time schedule prescribed – 30th September, is over, to do the complete justice, the Court under exceptional circumstances and in rarest of rare cases direct the admission in the same year by directing to increase the seats, however, it should not be more than one or two seats and such admissions can be ordered within reasonable time, i.e., within one month from 30th September, i.e., cut off date and under no circumstances, the Court shall order any Admission in the same year beyond 30th October. However, it is observed that such relief can be

granted only in exceptional circumstances and in the rarest of rare cases. In case of such an eventuality, the Court may also pass an order cancelling the admission given to a candidate who is at the bottom of the merit list of the category who, if the admission would have been given to a more meritorious candidate who has been denied admission illegally, would not have got the admission, if the Court deems it fit and proper, however, after giving an opportunity of hearing to a student whose admission is sought to be cancelled.

13.3. In case the Court is of the opinion that no relief of admission can be granted to such a candidate in the very academic year and wherever it finds that the action of the authorities has been arbitrary and in breach of the rules and regulations or the prospectus affecting the rights of the students and that a candidate is found to be meritorious and such candidate/student has approached the court at the earliest and without any delay, the court can mould the relief and direct the admission to be granted to such a candidate in the next academic year by issuing appropriate directions by directing to increase in the number of seats as may be considered appropriate in the case and in case of such an eventuality and if it is found that the management was at fault and wrongly denied the admission to the meritorious candidate, in that case, the Court may direct to reduce the number of seats in the management quota of that year, meaning thereby the student/students who was/were denied admission illegally to be accommodated in the next academic year out of the seats allotted in the management quota.

13.4. Grant of the compensation could be an additional remedy but not a substitute for restitutional remedies. Therefore, in an appropriate case the Court may award the compensation to such a meritorious candidate who for no fault of his/her has to lose one full academic year and who could not be granted any relief of admission in the same academic year.

13.5. It is clarified that the aforesaid directions pertain to Admission in MBBS Course only and we have not dealt with post graduate medical course.” (emphasis supplied)

28. In the light of the above judgment, it would neither be desirable nor justifiable to grant admission to the appellant in the on-going session of the MBBS(UG) course. However, considering the fact that the order cancelling the admission of the appellant herein was issued on 9th August, 2023 and the writ petition came to be filed before the High Court promptly i.e. on 10th August, 2023, without any delay whatsoever, the appellant is entitled to restoration of his seat in the first year of MBBS(UG) course in the same college in the next session, i.e., NEET UG-2024.”

18. Reliance is also placed upon the judgment of Hon’ble Apex Court in case titled as Sanatan Gauda Vs. Berhampur University and Others, [1990] 3 SCC 23, which reads as under: “15. This is apart from the fact that I find that in the present case the appellant while securing his admission in the Law College had admittedly submitted his marks-sheet along with the application for admission. The Law College had admitted him. He had pursued his studies for two years. The University had also granted him the admission card for the Pre-Law and Intermediate Law examinations. He was permitted to appear in the said examinations. He was also admitted to the final year of the course. It is only at the stage of the declaration of his results of the Pre-Law and Inter-Law examinations that the University raised the objection to his so-called ineligibility to be admitted to the Law Course. The University is, therefore, clearly estopped from refusing to declare the results of the appellant's examination or from preventing him from pursuing his final year course.

16. For all these reasons, I am of the view that the University is not justified in refusing to declare the appellant's results of the Pre-Law

and Intermediate Law examinations. The appeal, therefore, succeeds. The respondent-University is directed to declare the said results as well as the result of the final examination if the appellant has appeared for the same. The appeal is allowed accordingly. In the circumstances of the case, there will be no order as to costs.”

19. Further, in case titled as Ashok Chand Singhvi Vs. University of Jodhpur and Others, [1989] SCC 1 399, Hon’ble Apex Court held as under: “17. It is submitted on behalf of the University that it was through mistake that the appellant was admitted. We are unable to accept the contention. It has been already noticed that both the Dean and the Vice- Chancellor considered the objections raised by the Officer-in-Charge, Admissions, and thereafter direction for admitting the appellant was made. When after considering all facts and circumstances and also the objections by the office to the admission of a candidate, the Vice- Chancellor directs the admission of such a candidate such admission could not be said to have been made through mistake. Assuming that the appellant was admitted through mistake, the appellant not being at fault, it is difficult to sustain the order withholding the admission of the appellant. In this connection, we may refer to a decision of this Court in Rajendra Prasad Mathur v. Karnataka University [1986 Supp SCC 740] . In that case, the appellants were admitted to certain private engineering colleges for the BE degree course, although they were not eligible for admission. In that case, this Court dismissed the appeals preferred by the students whose admissions were subsequently cancelled and the order of cancellation was upheld by the High Court. At the same time, this Court took the view that the fault lay with the engineering colleges which admitted the appellants and that there was no reason why the appellants should suffer for the sins of the management of these engineering colleges. Accordingly, this Court allowed the appellants to continue their studies in the respective engineering colleges in which they were granted admission. The same

principle which weighed with this Court in that case should also be applied in the instant case. The appellant was not at fault and we do not see why he should suffer for the mistake committed by the Vice- Chancellor and the Dean of the Faculty of Engineering.”

20. Division Bench of this Court in case titled as Akash Bhawra Vs. Secretary Technical Education and Others, HLJ 2005 HP 1188, held as under: “22. In this case, we also find that the University awake form its deep slumber more than one year after the admission had been granted. Even then, the University did not send any letter to the College or to the petitioner and correspondence was exchanged between the University and the Director of Technical Education. Later copies of some letters were sent to the College and there is exchange of correspondence between the College and the University. However, neither the University nor the Director, Technical Education nor the College though it appropriate to inform the petitioner as to what was being contemplated with regard to his life and future. It was only some time in December, 2004 that the result of the petitioner was withheld due to non-registration. Thereafter, also the petitioner was permitted to attend the 3rd Semester classes and permitted to appear in the examination under provisional Roll Number. We feel that it is too late in the date for the University to cancel the admission of the candidate.

23. In view of the above discussion, we feel that in the facts and circumstances of the present case, the writ petition has to be allowed and the respondents are directed to permit the petitioner to continue studying in the course of B.E. (Computer Science and Engineering) in respondent No.4 - College. We further direct that respondent No.3- University shall register the name of the petitioner in the course of B.E. (Computer Science and Engineering) and issue him requisite certificate and also declare his results for the previous three semesters.”

21. Perusal of the aforesaid judgments reveals that a student cannot be made to suffer on account of mistake committed by a College/University. Hon'ble Apex Court has held in the aforesaid judgments that for a mistake committed by the institution in admitting a student to a particular course, such student cannot be allowed to suffer, especially, when there is no fault on the part of such student in taking admission to a particular course and in a particular institution. Hon'ble Apex Court in aforesaid cases, held the action of the institutions in rejecting candidature of the students concerned for admission to the courses bad in law and directed such institutions to give admission to the concerned students. In the case at hand also, there is no fault on the part of the petitioner and therefore, for the mistake committed by the respondents/State, he cannot be made to suffer, by denying admission to petitioner in DNB course.

22. This Court cannot lose sight of the fact that petitioner has already undergone studies in the course in question for approximately ten months and till date, he has been regularly attending the classes through online mode. Otherwise also, once respondent No.2 had no objection qua reallocation of the petitioner from respondent No.6- College to Medical College at Thane, Maharashtra, it cannot be permitted to defeat the rightful claim of the petitioner on the ground that his initial admission in the course in question was irregular.

Fault, if any, in the case at hand is clearly on the part of respondents- State and in that regard, petitioner herein cannot be made to suffer. No doubt, in the case at hand, petitioner has not laid challenge to action of respondent No.2, inasmuch said respondent has attempted to declare his admission in DNB course illegal, for the reasons taken note hereinabove, but once no formal order till date has been issued by respondent No.2, thereby declaring admission of the petitioner to be illegal, petitioner otherwise could not have been expected to lay challenge to the order, which has not seen the light of the day. In this regard, reliance is placed upon recent judgment of Hon’ble Apex Court in case titled Vashist Narayan Kumar Vs. The State of Bihar & Ors., Civil Appeal No.1 of 2024 (Arising out of SLP(C) No.12230 of 2023, decided on 02.01.2024, relevant portion of which is reproduced as under: “25. On the peculiar facts of this case, considering the background in which the error occurred, we are inclined to set aside the cancellation. We are not impressed with the finding of the Division Bench that there was no prayer seeking quashment of the results declared over the web. A reading of the prayer clause in the writ petition indicates that the appellant did pray for a mandamus directing the respondents to consider the candidature treating his date of birth as 18.12.1997 and also sought for a direction for issuance of an appointment letter. A Writ Court has the power to mould the relief. Justice cannot be forsaken on the alter of technicalities.”

23. Reliance is also placed upon judgment rendered by the Hon’ble Apex Court in M. Sudakar Vs. V. Manoharan and Others, Civil Appeal No.10319 of 2010 (arising out of SLP(C) No.19040 of 2009), relevant Para of which is reproduced hereinunder: “9. We have bestowed our serious consideration to the submissions advanced and we are of the opinion that the Division Bench of the High Court erred in setting aside the order of the learned Single Judge. It is an admitted position that the bye-laws which governs the Trust do not provide for debarring any member of the Trust from holding a post for specified period. Bye-laws provide for removal of the membership in accordance with the procedure prescribed therein in case a member is found to be indulging in activities prejudicial to the Trust. The power to remove the member in 8 our opinion shall not include power to debar the member from holding an office of the Trust. As the resolution of the Governing Body debarring the appellant from holding the office of the Trust was valid and operative when the matter was pending before the learned Single Judge, he did not err in quashing the resolution. The power to mould relief is always available to the Court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief, depending upon the facts and circumstances of the case. In the facts of a given case a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the Writ Court to grant such other relief which he is otherwise entitled. Further delay and latches does not bar the jurisdiction of the Court. It is a matter of discretion and not of jurisdiction. The learned Single Judge had taken note of the relevant facts and declined to dismiss the writ petition on the ground of delay and latches.”

24. In view of the above exposition of law, this Court is convinced that wherever subsequent events of fact or law, which have

a material bearing on the case, are brought to the notice of Court, the Court is not precluded from taking cognizance of such subsequent change in circumstances and moulding the relief. Hon’ble Apex Court has time and again held that the High Court, while exercising extra- ordinary jurisdiction under Article 226, can mould the relief in a just and fair manner, as required by the situation, and as such, this Court, in exercise of its inherent power under Article 226 of the Constitution of India, taking into consideration the facts and circumstances of the case, is inclined to mould the relief, even though no specific prayer is made in the present writ petition.

25. Consequently, in view of the above, this Court finds merit in the present petition and accordingly the same is allowed. Respondent No.6-College is directed to permit the petitioner to continue his studies in DNB course in the Department of Obstetrics and Gynecology. Needless to say, respondent No.2 shall not cause any obstruction, while issuing requisite Certificate to the petitioner, after completion of his Course from respondent No.6-College, as detailed hereinabove. In the aforesaid terms, petition stands disposed of, along with pending applications, if any. December 31, 2024 (Sandeep Sharma), Rajeev Raturi

Judge