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CASE NO.: Appeal (civil)  652 of 2004

PETITIONER: VIKRAM DHILLON

RESPONDENT: STATE OF HARYANA & ORSZ

DATE OF JUDGMENT: 10/01/2007

BENCH: Y.K. SABHARWAL, C.K. THAKKER & R.V. RAVEENDRAN

JUDGMENT: J U D G M E N T

Hon. C.K. Thakker, J.

       The 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  \026 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.         The 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.  College of Dental Sciences & Research, Mullana \026  respondent No. 5 which is affiliated to Kurukshetra  University, Kurukshetra.           It is 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.   He 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

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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.         At the 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.         Upon 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  \026 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.         According 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.         The 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

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reply which constrained him to approach this Court by  filing a writ petition under Article 32 of the Constitution  on November 16, 2004.         The 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.         The 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;          "Learned 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 was granted.         It was 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

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petitioner on September 7, 2006.         We have heard the learned counsel for the parties.         The 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.  NO. 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.  9 was, 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.  5 lacs 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.         So far as respondent Nos. 1, 2 and 8 are concerned,  initially an affidavit was filed on January 12, 2005 by Dr.  (Major General) Virendra Singh, Director of Pt. B.D.  Sharma 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

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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.         The 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.   Regarding 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.         Respondent 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.           The 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.         It was 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

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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 No. 2.   Alongwith 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.         As 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.   Respondent 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.   He then 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 the seats.           According 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

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available, he could be admitted.         The 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.         The 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.         Having 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.  9, and 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.   Prima 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 ’third’ counselling.           So far 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.  9 in 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.  442, got admission as she was present.         In our opinion, there is intrinsic evidence also  which goes to show that probably the petitioner was not

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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.  6.  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.         It was 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.  442 had 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.         In 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.           The learned counsel for the petitioner in this  connection, invited our attention to several cases.   Particular reference was made to a leading case in M.C.  Mehta 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.           Negativing the contention and holding the Company  liable to pay compensation, this Court, speaking through  Bhagwati C.J. stated;         Law 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.   We have to evolve new principles and lay down new

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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  has undertaken.

       Emphasising underlying object of Article 32, the  Court said;              "If 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.   We 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  32.  The power of the court to grant such remedial  relief may include the power to award  compensation in appropriate cases.

       Reference 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

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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.         Referring 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;          We 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 available.   The 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.   This  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  appropriate.

       Anand, J. (as His Lordship then was) agreed with  the observations of Verma J. and stated;         Adverting 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

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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:                  "No 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.   Just 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;   but  abused they lead  to  a totalitarian  state.   None 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;         "The 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.                  In Chairman, Railway Board v. Chandrima Das,

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(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.         It was 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.           In 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.  50 lakhs 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.         The 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.          Though 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.         Before 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

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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.  B.D. 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.   In the 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.         For 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.