# Pankaj Kumar Yadav v. The State of U.P. & Ors

- **Citation:** (2020) 2 ILRA 357
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-12-18
- **Case number:** Writ C No. 31081 of 2018
- **Bench:** Abhinava Upadhya, Pankaj Bhatia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pankaj-kumar-yadav-v-the-state-of-u-p-ors-45291
- **Pages:** 6

## Headnote

A. Constitution of India - Article 226 -
Restitutionary Relief - Reshuffle and Allotment
of Seat - Arbitrary action of authority -
Wherever Court 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.
(Para 17)

Held -

## Text

2 All. Pankaj Kumar Yadav Vs. The State of U.P. & Ors.
357
19. In view thereof, writ petition is
dismissed.
----------
(2020)02ILR A357

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE ABHINAVA UPADHYA, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 31081 of 2018

Pankaj Kumar Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri M.P. Yadav, Sri Mahendra
Pratap

A. Constitution of India - Article 226 -
Restitutionary Relief - Reshuffle and Allotment
of Seat - Arbitrary action of authority -
Wherever Court 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.
(Para 17)

Held -

18. The admission was denied to the petitioner
on account of totally arbitrary consideration by
the respondent authorities and coupled with
the fact that the seats are vacant in the
Medical Colleges as are indicated in the chart
filed by Sri Mahendra Pratap Singh, we hold
that the petitioner being a meritorious student
is entitled to a restitutionary relief and entitled
to be admitted in the College where the seats
are vacant.

Writ Petition allowed. (E-1)
List of cases cited :-

1. S. Krishna Sradha v. The State of Andhra Pradesh
& Others decided on 13.12.2019

2. Asha v. Pt. B.D. Sharma UHS; (2012) 7 SCC 389

3. Chandigarh Administration v. Jasmine Kaur; (2014)
10 SCC 521

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Radha Kant Ojha, learned
Senior Advocate assisted by Sri Shivendu Ojha,
learned counsel for the petitioner, Sri Mahendra
Pratap, learned counsel for the respondent no. 2
and learned Standing Counsel for the Staterespondent.

2. In the present petition, it has been
alleged that for conducting National Eligibilitycum-Entrance Test (NEET) UG-2018, a
brochure was published by the Director
General, Medical Health and Training. The
petitioner applied and appeared in the NEET
UG-2018 and the Roll Number 513812113 was
allotted to the petitioner. It is said that in the said
test conducted by CBSE, the petitioner's all
India ranking was 10092 and the State rank was
1195. It is stated that the petitioner appeared in
the first counselling and an allotment letter was
issued to the petitioner by the Chairman,
counselling Board (Annexure-2 to the petition),
whereby the petitioner was kept in the category
BCOP
and
was
allotted
the
Institute
Government
Medical
College,
Azamgarh for the course of MBBS.
The petitioner in terms of the said
letter appeared before the Principal,
Government Medical College, Azamgarh
on 10.7.2018 and submitted his papers as
358 INDIAN LAW REPORTS ALLAHABAD SERIES
well as deposited an amount of Rs.
31,800/- by demand draft no. 409058,
which was duly received by the Principal
as is perused from the receipt dated
10.7.2018 (Annexure-3 to the petition).

3. The petitioner thereafter sought an
NOC to appear in the second counselling
only with a view to improve and get a
better Institution. The said NOC was given
to the petitioner on 10.7.2018. The
petitioner appeared in the second round of
counselling. In the said second round of
counselling, the petitioner was allotted the
same Medical College i.e. Government
Medical College, Azamgarh. However, in
the said second allotment letter his
category
was
mentioned
as
GNOP,
whereas in the first allotment letter the
allotted category was mentioned as BCOP.
The petitioner, believing that he was
allotted the same college reported for
admission, but no process was conducted
by the College and the petitioner was
throughout under the impression that his
fees and papers had already been deposited
in the College in question, as such no
further steps were to be taken. The
petitioner,
when
he
approached
the
respondent no. 3, the College in question,
was informed that his admission had been
cancelled because the petitioner had
appeared in the second counselling and as
in terms of the allotment letter issued after
the second round of counselling, the
petitioner did not report at the allotted
College on or before 18.8.2018, as such
his admission had been cancelled.

4. The petitioner thereafter moved an
application dated 28.8.2018 before the
Director General, Medical Education and
Training highlighting his plight, however,
no action was taken but the petitioner was
not allowed to continue his study. As such,
the petitioner approached this Court by
filing
present
writ
petition
on 9th
September, 2018.

5. This Court vide order dated
13.9.2018, allowed three days' time to
obtain instruction and the matter was
directed to be listed on 18th September,
2018. On 18.9.2019, this Court granted
time for filing of counter affidavits mainly
as an statement was made before this
Court that no seat is vacant, on which the
petitioner can be accommodated.

6. The matter was heard on
9.12.2019.

7. Sri R.K. Ojha, Senior Advocate
assisted by Sri Shivendu Ojha, counsel for
the petitioner argued that in terms of the
brochure, there is no provision or
stipulation that in the event of petitioner
appearing
in
the
second
round
of
counselling, his admission granted after
the first counselling was to automatically
come to an end. He has drawn our
attention to the provisions of the brochure
specifying for the counselling procedure,
which is as under:-

**dkamflfyax izfdz;k&%

dkmaflfyax izfdz;k izFke o f}rh;
pdz eas lEiUu dh tk;sxhA vH;FkhZ dks izFke pdz
ls vkoafVr lhV ij izos'k izkIr djuk gksxk]
vkoaVu ds i'pkr izos'k u ysus vFkok izos'k ds
i'pkr R;kxi= nsus dh n'kk eas vH;FkhZ }kjk
tek dh x;h /kjksgj /kujkf'k (Security
Money) tCr dj yh tk;sxhA ,sls vH;FkhZ iqu%
/kjksgj /kujkf'k (Security Money) tek djus
ds i'pkr gh f}rh; pdz dh dkamflfyax ds fy,
vgZ gksxsA

izFke pdz dh dkamflfyax ls
vukoafVr@izosf'kr vH;FkhZ f}rh; pdz dh
dkamflfyax esa izfrHkkx dj ldsxs rFkk bUgsa iqu%
/kjksgj /kujkf'k (Security Money) tek djus
2 All. Pankaj Kumar Yadav Vs. The State of U.P. & Ors.
359
dh vko';drk ugha gksxhA vH;FkhZ izFke pdz dh
dkmaflfyax ls vkoafVr lhV dks f}rh; pdz dh
dkmaflfyax esa Reshuffle dj ldrk gSA f}rh;
pdz dh dkmaflfyax ls Reshuffle gksus ds
mijkUr iwoZ eas vkoafVr lhV fjDr gksdj fdlh
vU; vgZ vH;FkhZ dks vkoafVr gks tk;sxh]
Reshuffle u gksus dh n'kk esa vH;FkhZ }kjk
izFke dkamflfyax ls izos'k yh x;h lhV ;Fkkor
cuh jgsxhA**

8. On the basis of said provision, he
submits that only if there was a reshuffle
in the second round of counselling, the
seat vacated would be allotted to someone
else, whereas in the present case the seat
was not reshuffled as the petitioner was
allotted the same College. He further
submits that even otherwise all the
documents
of
the
petitioner
were
submitted before the College concerned,
which is clear from the perusal of the
receipt dated 10.7.2018 and thus no further
steps had to be taken by the petitioner even
in terms of the allotment of the same
College
in
the
second
round
of
counselling.

9. Sri Mahendra Pratap, learned
counsel appearing on behalf of respondent
no. 2 on the other hand admits that in the
first round of counselling, the petitioner
was allotted the State Medical College,
Azamgarh under the category BCOP,
however
in
the
second
round
of
counselling, the petitioner was allotted the
category GNOP, although the Medical
College remained the same and thus in
terms of the Government Order dated
12.6.2018,
the
seat
allotted
to
the
petitioner stood automatically cancelled.
He further submits that in terms of the
second allotment, the petitioner was
advised to report on or before 18.8.2018
and as the petitioner did not report on or
before the said date, as such he has no
claim to the seat in question. He further
argues that the submission of the counsel
for the petitioner that all the documents
which are required to be submitted were
already deposited on 10.7.2018, is not
acceptable, as the same exercise had to be
completed once again.

10. Sri Mahendra Pratap has relied
upon a System Requirement Specifications
(Second Counselling) issued by Director
General, Medical Education and Training
to stress that in terms of the said guidelines
if a candidate has been allotted a new seat
on the basis of his choice in the second
counselling, the seat allotted in the first
counselling
will
automatically
be
cancelled, however in case he could not be
allotted any seat on the basis of his/her
choice in the second counselling, the seat
allotted in the first counselling will be
retained. Relevant paragraph 3 of the said
circular is quoted hereinbelow:-

"Candidates who have joined in
the institutes on the basis of first allotment
and want to reshuffle his/her seat will take
part in choice submission process. If
he/she has been allotted a new seat on the
basis of his/her choices in second
counselling, the seat allotted in first
counselling
will
automatically
be
cancelled. In case, he/she could not be
allotted any seat on the basis of his/her
choices in second counselling, the seat
allotted in first counselling will be
retained."

11. During the course of the
proceedings, a supplementary counter
affidavit was filed on behalf of Sri
Mahendra Pratap indicating the seats
vacant as on date, which is as under:-

dz0la0
laLFkk dk uke
fjDr lhVks dh la[;k
360 INDIAN LAW REPORTS ALLAHABAD SERIES
1
esfMdy dkyst] vkxjk
1
2
esfMdy dkyst] dkuiqj
0
3
esfMdy
dkyst]
bykgkckn
0
4
esfMdy dkyst] esjB
0
5
esfMdy dkyst] >kWlh
1
6
esfMdy
dkyst]
xksj[kiqj
0
7
esfMdy
dkyst]
dUukSt
0
8
esfMdy dkyst] tkykSu
0
9
esfMdy
dkyst]
vktex<+
0
10
esfMdy
dkyst]
vEcsMdjuxj
0
11
esfMdy
dkyst]
lgkjkuiqj
2
12
esfMdy dkyst] ckWnk
0
13
Mk0 jke euksgj yksfg;k
vk;qfoZKku
laLFkku]
y[kuÅ
1
14
m0iz0
vk;qfoZKku
fo'ofo|ky;]
lSQbZ]
bVkok
2
15
ds0th0,e0;w0] y[kuÅ
0

dqy ;ksx
7

12. The counsel for the petitioner Sri
R.K Ojha argues that he may be allotted
any of the vacant seats in any of the
Colleges as is evident from the chart given
by Sri Mahendra Pratap at the discretion of
the respondent no. 2, to which the
petitioner would have no objection.

13. The sole question to be
considered is whether in terms of the
brochure any fault could be attributed to
the petitioner and whether the petitioner
would be entitled to a relief of admission
keeping in view of his conduct and steps
taken by the petitioner for correction of the
injustice done to him.

14. A perusal of the brochure, which
is the basis for any candidate to apply,
clearly reveals that only on a reshuffle and
the allotment of fresh seat in the second
round of counselling, the admission to the
seat in the first round of counselling can be
held to be lapsed. In fact, the brochure
clearly envisages that in the event of there
being no reshuffle, the seat allotted in the
first found of counselling shall remain as it
is.

15. We are not impressed with the
submission of Sri Mahendra Pratap that
merely because there was a change of
category, it would amount to allotment of
a new seat and would render the admission
to the first seat as lapsed. In the present
case, it is not disputed that the petitioner
was allotted the same College in the
second round of counselling also, he has
deposited all his testimonials and the fees
at the time of first round of counselling
and thus we have no hesitation in holding
that merely because a new category was
allotted from BCOP to GNOP, the same
would amount to a reshuffle and allotment
of a new seat. Thus, we hold that the
petitioner has been meted with manifest
arbitrariness and despite the petitioner
being
meritorious
has
been
denied
admission.

16. Now, considering the question as
to what relief can be granted in the facts of
the present case, it is essential to note that
the petitioner approached this Court with
expedition by filing present writ petition
on 9th September, 2018 and no order
could be passed in favour of the petitioner
only on account of a statement made that
no seats are vacant as recorded by this
Court in its order dated 18.9.2018.
2 All. Pankaj Kumar Yadav Vs. The State of U.P. & Ors.
361

17. A three Judge bench of the
Hon'ble Apex Court very recently in Civil
Appeal No. 1081 of 2017 in the case of S.
Krishna Sradha v. The State of Andhra
Pradesh & Others decided on 13.12.2019
answered on a reference the questions
which arose on account of a conflict
between
the
pronouncement
of
the
judgments of the Apex Court in the case of
Asha v. Pt. B.D. Sharma UHS; (2012) 7
SCC 389 and Chandigarh Administration
v. Jasmine Kaur; (2014) 10 SCC 521. The
Apex
Court
after
considering
the
submissions advanced before it, answered
the reference as under:-

"9.
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:

(i) 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 course all the efforts
shall be made by the concerned court to
dispose of the proceedings by giving
priority and at the earliest.

(ii)
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 - 30 th 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 30 th
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.

(iii) 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
362 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

(iv) 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.

(v) It is clarified that the
aforesaid directions pertain for Admission
in MBBS Course only and we have not
dealt with Post Graduate Medical Course.

10. In view of the above, the
decision of this Court in the case of
Jasmine Kaur (Supra) or any other
decisions contrary to the above stand
overruled. The decision of this Court in the
case of Asha (Supra) is hereby affirmed to
the aforesaid extent. The reference is
answered accordingly."

18. Considering the ratio of the
judgments of the Apex Court and the fact
that we have already held that the
admission was denied to the petitioner on
account of totally arbitrary consideration
by the respondent authorities and coupled
with the fact that the seats are vacant in the
Medical Colleges as are indicated in the
chart filed by Sri Mahendra Pratap Singh,
we hold that the petitioner being a
meritorious student is entitled to a
restitutionary relief and entitled to be
admitted in the College where the seats are
vacant to be decided by the respondent no.
2 within a period of 15 days from today
subject to the petitioner complying with
the other formalities.

19. The writ petition is allowed in
terms of the said direction.
----------
(2020)02ILR A362

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2020

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE SAURABH SHYAM
SHAMSHERY, J.

Writ C No. 31586 of 2016
&
Writ C Cases No. 52602 of 2011, 59955 of
2012, 59958 of 2012, 59962 of 2012, 59964 of
2012, 47504 of 2017, 50821 of 2017, 50824 of
2017, 51857 of 2017, & 57562 of 2017

Kamal Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kumar Mishra, Sri Anurag
Khanna

Counsel for the Respondents:
C.S.C., Sri Anuj Pratap Singh, Sri Kuldeep
Singh
Chauhan,
Sri
Neeraj
Kumar
Srivastava, Sri Prabhakar Awasthi, Sri
Yogesh Kumar, Sri Sudhanshu Srivastava,
Sri Saurabh Srivastava, Sri M.D. Singh
Shekhar, Sri H.N. Singh

A. Land Acquisition Act,1894-initiated for
establishing
Growth
Centre
by
UPSIDCcompensation
paid-land
not
vacated
by
farmers-land to be transfered by UPSIDC by