Dhillon Vs. State of Haryana & Orsz  Insc 25 (10 January 2007)
Sabharwal, C.K. Thakker & R.V. Raveendran
C.K. Thakker, J.
present petition is filed by the petitioner for a writ of Mandamus and/or any
other appropriate writ, order or direction commanding the State of Haryana and
other respondent authorities to grant admission to the petitioner in Bachelor
of Dental Surgery ('BDS' for short) in Open Category in Government Dental
College, Rohtak respondent No. 8 for the academic year 2004-05 and also to
grant other reliefs which this Court deems fit and proper in the facts and
circumstances of the case.
case of the petitioner is that he is a citizen of India and permanent resident of Faridabad. He is pursuing the BDS course in the
first year in M.M.
of Dental Sciences & Research, Mullana respondent No. 5 which is
affiliated to Kurukshetra University, Kurukshetra.
the case of the petitioner that Maharshi Dayanand University, Rohtak ('MDU' for short), respondent No. 2 herein invited
applications for "Common Entrance Examination, 2004" ('CEE' for
short) for admission to MBBS/BDS in medical/dental colleges/institutes of the
State of Haryana. Since the petitioner was eligible
and was desirous of joining medical/dental course, he applied for the aforesaid
examination in the prescribed form to respondent No. 2.
paid the requisite charges and supplied relevant details. The examination was
held on June 21, 2004 in which the petitioner appeared
vide Roll No. 109031. On June
28, 2004, respondent
No. 2 notified the result of CEE, 2004 on Notice Board. Though the Prospectus
provided that result of the Entrance Examination would be notified to the
candidates individually by UPC Post, the petitioner was not intimated. He,
however, found out from the internet that he had secured 128 marks out of 180
marks and was ranked at Sl. No. 418 in the Open Category. The Prospectus
further provided that the date, time and place of Counselling would be
intimated to the candidates by UPC Post calling the candidates for counselling.
The petitioner was again not intimated about the date, time and place of counselling.
Somehow, he came to know that the counselling was to be held at Rohtak on August 9, 2004. He attended the counselling and
submitted all his certificates, marks-sheets etc. He, however, found that he
had been arbitrarily placed at rank No. 423 instead of 418. The petitioner
initially opted for MBBS course in any of the medical colleges mentioned in the
Prospectus. Alternatively, however, he opted for BDS course in Government Dental College, Rohtak. Since the petitioner was
informed that there were no seats available in MBBS anywhere or in BDS course
in Government Dental College, Rohtak, he was constrained to opt
for BDS course in a private Dental College, i.e. M.M. College of Dental
Science & Research, Mullana. It is the assertion of the petitioner that as
per Rule 3 of the Rules of Admission, the petitioner preferred to be
wait-listed for MBBS in any of the colleges in Haryana and if no vacancy is
available in MBBS course, a seat in BDS in Government Dental College, Rohtak.
time of first counselling, the petitioner was asked to report for medical
check-up and to pay tuition fee for admission in BDS open category in private Dental College at Mullana on August 18, 2004. The petitioner accordingly
complied with the directions, paid the fee for medical check-up and upon being
found fit filled in the form for admission by paying Rs.99,000/- towards one
year tuition fees and Rs. 10,000/- towards part-payment of hostel fees of
Rs.30,000/- in private college at Mullana.
seeing the result of the first counselling on the website of PGIMS, Rohtak, the
petitioner was shown to be admitted at the private college at Serial No. 296
showing rank No. 423, while respondent No. 6 was shown at serial No. 300 at
rank No. 442 as the last candidate in the BDS open category in respondent No. 5
college. According to the petitioner, he waited for intimation for the second counselling
which he did not receive, but from his own sources, he came to know about the
second counselling and attended it at PGIMS, Rohtak on August 28, 2004. The Counselling Board informed the
petitioner that no seat was available in MBBS/BDS as per the choice of the
petitioner. As such the petitioner had to retain his seat in BDS in Open
Category at Mullana waiting for the next round of counselling. Since MBBS seats
were reported to have been increased form 100 to 150 at Medical College, Mullana, the petitioner legitimately expected to get a
seat in BDS Open Category in Government Dental College, Rohtak inasmuch as candidates of BDS course in Government Dental College, Rohtak were likely to vacate their
BDS seats to get seats in MBBS course at Mullana.
to the petitioner, the 'third' counselling was held on September 29, 2004. The petitioner was informed at
that time that no seat was available in the course/institute of his choice. He,
therefore, requested to accommodate him in BDS Open Category seat that may fall
vacant due to non-reporting or non-payment of fee by any candidate at Government Dental College, Rohtak as the fee there was less
than the fee at the private Dental College, Mullana.
petitioner has stated that on October 17, 2004, he came to know that though Anusha
Singh-respondent No. 6 had secured rank No. 442, she had been granted admission
on provisional basis in BDS course in Government Dental College, Rohtak and the
petitioner who ranked at Sl. No. 423 was denied admission. The petitioner, in
the circumstances, made representation to the competent authority of PGIMS, Rohtak
complaining about the injustice being done to him. The petitioner was neither
granted admission nor did he receive any reply which constrained him to
approach this Court by filing a writ petition under Article 32 of the
Constitution on November
petitioner has stated that he has directly approached this Court by invoking
Article 32 of the Constitution since his fundamental right guaranteed under
Article 14 had been violated. It is further stated that had he gone to a High
Court, even if he had succeeded, the authorities would have approached this
Court which would have further delayed the admission and the academic year
would have been over.
matter was placed for admission-hearing and notice was issued on December 6, 2004. An affidavit-in- reply was filed
by Dr. (Major General) Virendra Singh, Director of Pt. B.D. Sharma Postgraduate
Institute of Medical Sciences, Rohtak. The said affidavit was filed on behalf
of respondent nos. 1, 2 and 8, i.e. State of Haryana, M.D. University & Government Dental College, Rohtak and the
Director. On January
25, 2005, respondent
No.5, Dental College, Mullana also filed counter-affidavit through its Chairman.
Likewise, affidavit-in-reply was filed by respondent No.6, Anusha Singh on February 21, 2005 who was granted admission though
she had secured rank No. 442 as against rank No. 423 secured by the petitioner.
The petitioner filed rejoinder to the affidavit of respondent No. 2 on July 18, 2005. On July 22, 2005, this Court passed an order to list the petition for final
disposal on a non-miscellaneous day after three weeks. The order dated November 16, 2005 shows that back door admission
sacrificing merit was granted to Anusha Singh (respondent No.6) by the
Director, Pt. B.D. Sharma, Postgraduate Institute of Medical Sciences, Rohtak.
The Court observed;
counsel appearing for respondent Nos. 1, 2 and 8 does not seriously dispute the
allegation about the back door admission having been granted to respondent No.
6, as alleged by the petitioner. Learned counsel further states that, in fact,
the said Director had granted other similar admissions as well and some
enquiries are pending against him. This is also the stand of the petitioner."
The Court also observed that admission for academic year 2004 could not be
granted to the petitioner at that stage. It was, however, made clear that the
question of cancellation of admission of respondent No. 6 would be examined at
the time of final hearing of the writ petition.
On February 16, 2006, interlocutory application seeking impleadment
of Dr. (Maj Gen.) Virendra Singh, Ex-Director of Medical College, Rohtak as party- respondent in his
individual capacity in view of allegations of mala fide levelled against him
submitted by the learned counsel for the petitioner that the petitioner
deserved to be adequately compensated for having been denied admission though
he was entitled to. The newly added respondent was asked to file affidavit in
support of the claim of compensation made by the petitioner. No such affidavit
was, however, filed within the stipulated period and time was sought which was
granted on August 10,
2006 by the Court on
payment of a sum of Rs.5000/- to the petitioner. The affidavit was filed by
respondent No. 9 on August
23, 2006 to which a
rejoinder was filed by the petitioner on September 7, 2006.
have heard the learned counsel for the parties.
learned counsel for the petitioner vehemently contended that the impugned
action taken by the respondent-authorities was totally illegal, unlawful and
unconstitutional. Though the petitioner had obtained 128 marks out of 180 marks
and he was ranked at Sl.
418, he was arbitrarily placed at rank No. 423 which was improper. Even if it
is assumed that the said action could not be said to be illegal and he would
have continued at rank No. 423, there was no earthly reason for respondent
authorities and particularly respondent No. 9 to grant admission on the last
day, i.e. September 30, 2004 to respondent No. 6 who was admittedly placed
below at rank No. 442. According to the petitioner, the action of respondent
No. 9 was clearly malicious and mala fide and back door entry was given to
respondent No. 6 on extraneous considerations. From the beginning the modus
operandi of respondent No. 9 was apparent inasmuch as petitioner was never
informed about the counselling which were to take place. It was only through
his own sources that the petitioner came to know about the first, second and
'third' counselling and attended them. He also submitted that he had made it
abundantly clear from the beginning that he wanted to get admission in MBBS
course in any Government college/institute and if he is not in a position to be
accommodated in MBBS course, his first choice would be Government Dental
College, Rohtak. Respondent No.
therefore, aware of this fact and yet he granted illegal admission to
respondent No. 6. The said action was totally illegal, arbitrary and malicious.
The petitioner was, therefore, entitled to get admission in Government Medical College, Rohtak, when respondent No. 6 Anusha
Singh was admitted. Since he was denied admission and his right was ignored, he
is entitled to the difference in payment of fee at Mullana and Rohtak and also
to adequate compensation. So far as the amount of compensation is concerned,
the petitioner has filed additional affidavit on November 25, 2005 wherein the break-ups have been given in differential
amount in tuition fee, hostel charges, etc. He has claimed Rs. 5 lacs towards
loss of better exposure in terms of education and practical training in Government Dental College and better job prospects. Further
amount of Rs.
has been claimed towards acute mental and physical agony, frustration and
feeling of injustice. Cost of Rs. 50,000/- is also claimed. According to the
petitioner, all these amounts are required to be paid at the interest of 10%
from August 18, 2004, the initial date of payment of
tuition fee and hostel charges by the petitioner to respondent No.8.
as respondent Nos. 1, 2 and 8 are concerned, initially an affidavit was filed
on January 12, 2005 by Dr.
General) Virendra Singh, Director of Pt. B.D.
Postgraduate Institute of Medical Sciences, Rohtak in the capacity of Director
of the Institute. In that affidavit, the deponent stated that the petitioner
had secured 128 marks and his rank was 418, but after breaking the tie of
candidates who had secured 128 marks, his rank was changed from 418 to 423
which was proper and in accordance with rules. It was also stated that at the
first counselling on August 9, 2004, the petitioner could not get admission in
BDS course in Government Dental College, Rohtak and was admitted to M.M. Dental
College, Mullana under General Category as per his merit and option. The second
and 'third' counselling were held on August 28, and September 29, 2004 respectively for filling up the vacant seats in different
medical/dental colleges. The petitioner attended second and 'third' counselling,
but 'he neither opted for any change nor got himself wait-listed for any
medical/dental college'. It was then stated that on September 30, 2004, a letter was received from the Principal, Government Dental College, Rohtak regarding vacancy of three
seats in Government Dental College, Rohtak due to non-deposit of fees
by three selected students. September 30 was the last date for admission for
the Academic Session 2004 for all Dental Colleges as held by this Court in
Medical Council of India v. Madhu Singh & Ors., (2002) 7 SCC 258. It was,
therefore, not possible to conduct counselling at the last moment and the only
course available to the authorities was to fill three seats which remained
vacant by admitting "the next wait-listed candidates". The three
candidates including Anusha Singh, respondent No. 6 were, therefore, admitted
on that day.
deponent denied the allegations made by the petitioner against the authorities.
Drawing distinction between the case of respondent No. 6 and the petitioner, the
Director stated that though the petitioner appeared at the 'third' counselling,
he had not opted for any change and secondly there was no vacancy in the Government Dental College, Rohtak on that day.
representation said to have been made by the petitioner, the deponent stated on
oath that no representation from the petitioner was received by his office.
No. 5 in his affidavit stated that admission was granted to the petitioner and
other students on the basis of Entrance Test. In rejoinder- affidavit to
counter-affidavit of respondent No. 2 and 5, the petitioner reiterated what he
had stated in the petition. He made grievance that respondent No. 2 had not
placed before the Court the relevant material as to how the rank of the petitioner
was changed from 418 to 423. He also repeated that he got himself wait-listed
and respondent No. 2 had wrongly stated that though the petitioner attended
second and 'third' counselling, he neither opted for any change nor got himself
wait-listed for any other medical/dental college.
petitioner thereafter stated that if the petitioner had not opted for any
change nor had opted himself to be wait listed for any other medical/dental
college, there was no reason for him to attend the second and 'third' counselling.
From the respondent No. 2's admission that the petitioner had attended the
second and 'third' counselling, it is clear that the petitioner wanted to
change his college and had opted to be wait listed.
also stated that respondent No. 2 had not denied that the petitioner at the
time of first counselling itself had intimated his preference for MBBS course
in any of the Medical Colleges or BDS in Government Dental College, Rohtak and
when he was informed that there was no seat available, he opted for BDS in MM
College of Dental Science & Research, Mullana. He further said that he was
allowed to attend all the counselling which also proved that the petitioner
stood wait-listed and wanted to take admission in Government Dental College, Rohtak after the first counselling
in which he got admission at Mullana. Regarding representation made by him to
respondent No. 2, the Petitioner stated in the rejoinder-affidavit that the
said representation was sent on October 19, 2004 by 'speed post' and the same was delivered to respondent
the affidavit in rejoinder, he had produced a copy of the original receipt
dated October 19, 2004 issued by the Post Office in the
nature of Confirmation Report of service upon the authority.
already stated earlier, the main grievance of the petitioner was that it was
the Director who had granted illegal admission by allowing back door entry to
respondent No. 6 and the said action was illegal and contrary to law. In the
circumstances, the petitioner filed Interim Application No. 4 of 2005 praying
for impleadment of Dr. (Major General) Virendra Singh, Ex- Director of Pt. B.D.
Sharma Postgraduate Institute of Medical Sciences, Rohtak which was granted and
notice was issued to him directing him to file affidavit in reply.
No. 9, pursuant to the above order filed additional affidavit at a belated
stage on August 23,
2006 denying the
allegations of mala fide levelled against him. In the said affidavit, he had
stated that since he had left the institute, he 'was not aware as to what was
happening in the matter'. He also stated that "the deponent alone has no
role to play in the admission of the students in the college". He admitted
about counselling which took place on August 9, August 28 and September 29, 2004. He also admitted that the last
date for filling up of all the seats was September 30 and the admissions were
completed. According to him, though the petitioner was at rank No. 418, he was
placed at Sl. No. 423 considering the breaking up of tie.
stated that the petitioner accepted the seat at BDS, Mullana in the first counselling,
but did not request for any wait-listing in any particular college or at all.
On September 29, 2004, the Counselling Committee after
filling up all the available seats in all colleges, had ruled that all
admissions should be completed by September 30, 2004. He then stated that in any case,
the petitioner had appeared in the first counselling and got his college BDS, Maullana
and did not ask for any waitlisting. He appeared in second counselling but did
not seek change of the seat/college but asked for waitlisting. He appeared in
the 'third' counselling also and did not seek any change and did not waitlist.
There are many who took seats and wanted to waitlist and then did not change
to the deponent, around 5.00
p.m. on September 30, 2004, a report was received from the
Principal, Government Dental College, Rohtak that three candidates had
not taken admission and thus three seats were available. Then immediately the
names of the candidates as per the merit list who were in the 'waitlist' were
called and that is how Anusha Singh, respondent No. 6 was granted admission.
Other persons were not present. Since, the petitioner was not present and
respondent No. 6 was present who was a wait-listed candidate, she was admitted.
He also stated that the petitioner did not opt for change and got himself wait-
listed clearly indicated that he was satisfied with the seat allotted to him.
Even if he had wait-listed himself, he was required to remain present at the
time of closing of the admission to take a chance that if some seats remained
vacant and if candidates above him were not available, he could be admitted.
Dental Council of India stated that the case of the petitioner should be
decided by the authorities in accordance with law. But it was submitted that no
admission in the BDS Course for the academic year 2004-05 after September 30, 2004 could be granted.
learned counsel for the authorities submitted that the impugned action could
not be said to be contrary to law. So far as respondent No. 9 is concerned, the
counsel appearing for him submitted that the said respondent acted in
accordance with Admission Rules as also the law laid down by this Court. Since
the petitioner neither 'waitlisted' himself nor was present on September 30, 2004, admission was granted to
respondent No. 6. The petitioner cannot make grievance against such an act.
Counsel for Medical Council of India submitted that the statutory time schedule
for commencement of course and admission to medical/dental courses as laid down
by this Court in Mridul Dhar v. Union of India, (2005) 2 SCC 65 is required to
be complied with and failure to adherence strictly to the said time schedule
has created all these problems. He, therefore, submitted that this Court may
again direct the authorities to adhere to the time- schedule in Mridul Dhar.
heard the learned counsel for the parties, we are of the view that in the light
of what has been asserted by the petitioner and denied by respondent No.
in view of order dated November
16, 2005, no admission
could be granted to the petitioner in the Government Dental College, Rohtak. There is word against word so far as
'wait-listing' of the petitioner is concerned. According to the petitioner, he
got himself wait-listed at the first counselling on August 9, 2004 when he was admitted to Dental College at Mullana.
facie, he is right in so submitting keeping in view his subsequent conduct. If
he was satisfied with the admission in Dental College, Mullana and was not
interested in getting himself admitted to Government Dental College, Rohtak or
in changing the institute/college, it was not necessary for him to remain
present at the second and 'third' counselling. It was because of the fact that
though he was admitted to Private Dental College at Mullana, he was seeking admission in Government Dental College, Rohtak that he attended second and
as the factum of attendance at second and 'third' counselling is concerned, the
fact has not been denied. On the contrary, it is admitted by respondent No.
his affidavit. But, the petitioner has not expressly and unequivocally stated
that he was present on September
30, 2004 when respondent
No. 6 Anusha Singh was granted admission. According to respondent No. 9, the
petitioner was not present. Up to September 29, 2004, no vacant seat was available at Government Dental College, Rohtak. It was only on September 30, 2004 that because of default in payment
of fee by three candidates, three vacancies were to be filled in at Rohtak.
According to respondent No. 9, the seats were filled by the candidates who were
present on that day and admission was granted to those students who were eligible.
Respondent No. 6, though she was at Sl. No.
as she was present.
opinion, there is intrinsic evidence also which goes to show that probably the
petitioner was not present on September 30, 2004. Admittedly, respondent No. 6 Anusha Singh was granted admission on September 30, 2006. It is the case of the petitioner
from the beginning that on or about October 17, 2004, the petitioner came to know that
admission was illegally granted to respondent No. 6 though her rank was 442 and
rank of petitioner was 423. He, therefore, submitted a representation on October 19, 2004. Had the petitioner been present on
September 30, 2004, he would have objected to the
admission of respondent No.
Again he would have immediately come to know about her admission. In that case,
he would have instantly approached the authorities putting forward his claim,
but it was not done. In fact, a representation was made for the first time
after about 18 days stating therein that he came to know on October 17, 2004 that admission was given to
respondent No. 6 ignoring his legitimate claim. In the circumstances, in our
opinion, grant of admission to respondent No. 6 on September 30, 2004 cannot be cancelled at this stage.
then contended by the petitioner that it is clearly established from the facts
on record that injustice has been done to him. Initially, the petitioner was at
rank No. 418 which was arbitrarily and without there being rational basis
placed at 423. Even though the petitioner had wait-listed himself at first counselling
on August 9, 2004, and precisely for that reason, he attended the second and
'third' counselling, overlooking his legitimate claim and without affording an
opportunity to get admission, respondent No. 6 who was at rank No.
been admitted. This is, therefore, eminently a fit case, submitted the learned
counsel, to direct payment of compensation over and above the difference in
payment of tuition fee and hostel fee for Private Dental College as against Government Dental College.
this connection, the learned counsel submitted that it is settled law that a
remedy provided by Article 32 (as also by Article 226) of the Constitution is a
'public law' remedy. The lis in this case cannot be said to be a private
dispute between two parties. Respondent No. 9 was acting as a 'public
authority' and since he had acted arbitrarily, maliciously and deprived the
petitioner of his legitimate and rightful claim and extended un-deserved
benefit to respondent No. 6, an order of payment of compensation would serve
the ends of justice.
learned counsel for the petitioner in this connection, invited our attention to
reference was made to a leading case in M.C.
v. Union of India, (1987) 1 SCC 395. In M.C.Mehta, a writ petition was filed
in this Court under Article 32 of the Constitution directing Shriram, a Public
Limited Company to pay compensation to victims of escape of oleum gas. It was
contended on behalf of the Company that the petition was not maintainable and
the Company could not be held liable to pay compensation.
the contention and holding the Company liable to pay compensation, this Court,
speaking through Bhagwati C.J. stated;
has to grow in order to satisfy the needs of the fast changing society and keep
abreast with the economic developments taking place in the country. As new
situations arise the law to be developed in order to meet the challenge of such
new situations. Law cannot afford to remain static.
have to evolve new principles and lay down new norms which would adequately
deal with the new problems which arise in a highly industralised economy. We
cannot allow our judicial thinking to be constricted by reference to the law as
it prevails in England or for the matter of that in any
other foreign country. We no longer need the crutches of a foreign legal order.
We are certainly prepared to receive light from whatever source it comes but we
have to build our own jurisprudence and we cannot countenance an argument that
merely because the law in England does not recognise the rule of strict and
absolute liability in cases of hazardous or inherently dangerous activities or
the rule laid down in Rylands v. Fletcher as developed in England recognises
certain limitations and exceptions, we in India must hold back our hands and
not venture to evolve a new principle of liability since English courts have
not done so. We have to develop our own law and if we find that it is necessary
to construct a new principle of liability to deal with an unusual situation
which has arisen and which is likely to arise in future on account of hazardous
or inherently dangerous industries which are concomitant to an industrial
economy, there is no reason why we should hesitate to evolve such principle of
liability merely because it has not been so done in England. We are of the view
that an enterprise which is engaged in a hazardous or inherently dangerous
industry which poses a potential threat to the health and safety of the persons
working the factory and residing in the surrounding areas owes an absolute and
non- delegable duty to the community to ensure that no harm results to anyone
on account of hazardous or inherently dangerous nature of the activity which it
underlying object of Article 32, the Court said;
the Court were powerless to issue any direction, order or writ in cases where a
fundamental right has already been violated, Article 32 would be robbed of all
its efficacy, because then the situation would be that if a fundamental right
is threatened to be violated, the court can injunct such violation but if the
violator is quick enough to take action infringing the fundamental right, he
would escape from the net of Article 32. That would, to a large extent,
emasculate the fundamental right guaranteed under Article 32 and render it
impotent and futile.
must, therefore, hold that Article 32 is not powerless to assist a person when
he finds that his fundamental right has been violated. He can in that event
seek remedial assistance under Article
The power of the court to grant such remedial relief may include the power to
award compensation in appropriate cases.
was also made to another leading decision of this Court in Nilabati Behera vs.
State of Orissa & Ors., (1993) 2 SCC 746. In that case, a young man of 22
years was taken to police custody for investigation of an offence. He was
handcuffed, tied and severely beaten. On the next day, his dead body was found
lying on railway track. Mother of the deceased addressed a letter to this Court
alleging custodial death of his son and claimed compensation on the ground of
violation of right to life guaranteed under Article 21 of the Constitution. The
letter was treated as writ petition and compensation was awarded.
to earlier decisions, Verma J. (as His Lordship then was) spelt out the
principle on which the liability of State arises in such cases. It was held
that award of compensation in a proceeding under Article 32 or 226 of the
Constitution is a remedy available in "public law" based on strict
liability for contravention of fundamental rights to which the principle of
sovereign immunity does not apply. Agreeing with judgments in earlier cases,
His Lordship stated;
respectfully concur with the view that. the court is not helpless and the wide
powers given to this Court by Article 32, which itself is a fundamental right,
imposes a constitutional obligation on this Court to forge such new tools,
which may be necessary for doing complete justice and enforcing the fundamental
rights guaranteed in the Constitution, which enable the award of monetary
compensation in appropriate cases, where that is the only mode of redress
power available to this Court under Article 142 is also an enabling provision
in this behalf The contrary view would not merely render the court powerless
and the constitutional guarantee a mirage but may, in certain situations, be an
incentive to extinguish life, if for the extreme contravention the court is
powerless to grant any relief against the State, except by punishment of the
wrongdoer for the resulting offence, and recovery of damages under private law,
by the ordinary process. It the guarantee that deprivation of life and personal
liberty cannot be made except in accordance with law, is to be real, the
enforcement of the right in case of every contravention must also be possible
in the constitutional scheme, the mode of redress being that which is
appropriate in the facts of each case.
remedy in public law has to be more readily available when invoked by the have
not, who are not possessed of the wherewithal for enforcement of their rights
in private law, even though its exercise is to be tempered by judicial
restraint to avoid circumvention of private law remedies, where more
J. (as His Lordship then was) agreed with the observations of Verma J. and
to the grant of relief to the heirs of a victim of custodial death for-the
infraction or invasion of his rights guaranteed under Article 21 of the
Constitution of India, it is not always enough to relegate him to .the ordinary
remedy of a civil suit to claim damages for the tortuous act of the State as
that remedy in private law indeed is available to the aggrieved party. The citizen
complaining of the infringement of the indefeasible right under Article 21 of
the Constitution cannot be told that for the established violation of the
fundamental right to fife, he cannot get any relief under the public law by the
courts exercising writ jurisdiction. The primary source of the public law
proceedings stems from the prerogative writs and the courts have, therefore, to
evolve 'new tools' to give relief in public law by molding it according to the
situation with a view to preserve and protect the Rule of Law. While concluding
his first Hamlyn Lecture in 1949 under the title 'Freedom under the Law' Lord
Denning in his own style warned:
one can suppose that the executive will never be guilty of the sins that are
common to all of us. You may be sure that they will sometimes do things which
they ought not to do: and will not do things that they ought to do. But if and
when wrongs are thereby suffered by any of us what is the remedy? Our procedure
for securing our personal freedom is efficient, our procedure for preventing
the abuse of power is not.
as the pick and shovel is no longer suitable for the winning of coal, so also
the procedure of mandamus, certiorari, and actions on the case are not suitable
for the winning of freedom in the new age. They must be replaced by new and up
to date machinery, by declarations, injunctions and actions for
negligence...This is not the task for Parliament..... the courts must do this.
Of all the great tasks that lie ahead this is the greatest. Properly exercised
the new powers of the executive lead to the welfare state;
abused they lead to a totalitarian state.
such must ever be allowed in this Country." In M. S. Grewal v. Deep Chand Sood,
(2001) 8 SCC 151, Dalhousie public school organized a picnic of young students
at the bank of River Beas. Due to negligence of teachers, 14 students lost
their lives. Teachers were convicted for an offence under Section 304-A IPC. In
a petition under Article 226 of the Constitution, the High Court awarded compensation
of Rs. 5 lakhs to each of the parents with interest @ 12% p.a. When the matter
came up before this Court at the instance of the School Authorities, dismissing
the appeal, the Court quoted with approval the following observations from D.K.
Basu v. State of West Bengal, (1997) 1 SCC 416;
courts have the obligation to satisfy the social aspirations of the citizens
because the courts and the law are for the people and expected to respond to
their aspirations. A court of law cannot close its consciousness and aliveness
to stark realities. Mere punishment of the offender cannot give much solace to
the family of the victim civil action for damages is a long drawn and a
cumbersome judicial process. Monetary compensation for redressal by the court
finding the infringement of the indefeasible right to life of the citizen is,
therefore, useful and at time perhaps the only effective remedy to apply balm
to the wounds of the family members of the deceased victim, who may have been
the breadwinner of the family.
Chairman, Railway Board v. Chandrima Das, (2002) SCC 465, a poor lady was taken
by railway employee to a railway guest house (Yatri Niwas) and was raped.
Holding the Union of India vicariously liable, this Court held that for an act
of Railway Authorities, a direction can be issued to the authorities to pay
compensation to the victim and, accordingly, compensation was awarded.
also submitted by counsel that in appropriate cases of mis-finance in public
office, a direction can also be issued to erring officer(s) to pay such amount
of compensation/damages personally or an order can be passed directing the
authorities to recover from such officer(s) who is (are) found responsible.
Common Cause, a Registered Society v. Union of India, (1996) 6 SCC 530, the
Petroleum Minister made allotment of petrol pumps arbitrarily in favour of his
relatives, friends and 'kiths and kins'. When the matter came up before this
Court, not only the allotment was cancelled, but the Court directed the
Minister to pay Rs.
as exemplary damages to public exchequer and also Rs. 50,000/- as costs. No
doubt a Review Petition was filed against the above decision in Common Cause, a
Registered Society vs. Union of India, (1999) 6 SCC 593, and the order passed
earlier was recalled and direction for payment of Rs.50 lakhs was set aside.
learned counsel for the petitioner submitted that the Court in a Review
Petition was not right in setting aside the direction for payment of Rs. 50 lakhs
personally from the Minister concerned, particularly when the Court had
recorded a finding earlier that act was illegal, improper and unconstitutional
act on the part of the Minister concerned. It was also submitted that wrong
test was applied by the Court in a Review by adopting analogy of criminal trial
and referring to provisions of Section 405 and 409 of the Penal Code and by
observing that in case of criminal breach of trust, entrustment of property was
an essential ingredient, which was not proved.
we find considerable force in the submission of the learned counsel, in the
facts and circumstances of the present case, we are not inclined to enter into
larger question in view of the fact that it is not necessary to do so. Since,
we are of the view and have held that on September 30, 2004, the petitioner in
all probability was not present and admission was granted to respondent No. 6 Anusha
Singh and the first complaint was made by him as late as on October 19, 2004 by
stating that he had come to know about the illegality of admission in favour of
respondent No. 6 on October 17, 2004, in exercise of extraordinary powers under
Article 32 of the Constitution, it would not be appropriate for this Court to
award compensation to the petitioner either from the authorities or from the respondent
No. 9 in his personal capacity. It is, however, open to the petitioner to take
appropriate proceedings in accordance with law, if so advised. As and when such
eventuality arises, the appropriate authority will pass an appropriate order in
accordance with law without being inhibited or influenced by the observations
made by us in this judgment.
closing the matter, we may observe one thing more. As already noted earlier, as
early as on November
16, 2005, when the
matter was heard by this Court, a grievance was made by the petitioner that
though he was higher in rank, admission was illegally given to respondent No. 6
who was lower in rank. It was a back door admission, sacrificing merit and was
granted by Dr. (Major General) Virendra Singh, Director of Pt.
Sharma Postgraduate Institute of Medical Sciences, Rohtak. The learned counsel
appearing for respondent Nos. 1, 2 and 8 did not 'seriously dispute the
allegation about the back door admission having been granted to respondent No.
6 as alleged by the petitioner'. The Court further observed; "Learned
counsel further states that, in fact, the said Director had granted other
similar admissions as well and some enquiries are pending against him." In
the additional affidavit dated November 25, 2005, in para 4, it was stated by
the petitioner that as a result of the grave allegation of misuse of public
office by Dr. (Maj Gen.) Virendra Singh, he has been 'removed' from the post of
Director of Pt. B.D. Sharma Postgraduate Institute of Medical Sciences, Rohtak
and enquiry is pending against him. After Dr. (Maj Gen.) Virendra Singh was
arrayed as respondent No. 9 and had filed affidavit after the above additional
affidavit filed by the petitioner, it was only stated that para No. 4 was
absolutely false, wrong and was denied. It is also clear that he was not
holding the post of Director when he filed the said affidavit by admitting that
he had left the office. It was also the case of the State as reflected in the
order dated November
16, 2005 passed by this
Court that illegal admission was granted by respondent No. 9.
circumstances, it would have been appropriate if the State had filed an
affidavit placing necessary facts before this Court. It is the duty of the
State Government to see not only that the officers act in consonance with law,
but also to ensure that no injustice has been done to meritorious students.
Unfortunately however, the State Government has not properly assisted the Court
by placing the relevant facts as are expected to be placed by a public
authority. But in the light of what has been stated earlier, since we are not
in a position to grant relief to the petitioner, we leave the matter there.
the foregoing reasons, the petitioner is not entitled to relief from this Court
under Article 32 of the Constitution. The petition deserves to be dismissed and
is accordingly dismissed, however without any order as to costs.