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2017 DIGILAW 1691 (GUJ)

Kotwal Riddhi Dineshbhai v. State of Gujarat

2017-09-25

N.V.ANJARIA

body2017
JUDGMENT : N.V. ANJARIA, J. 1. The present petition under Article 226 of the Constitution is filed by the petitioner who aspires to pursue her studies in Bachelor of Ayurveda Medicine and Surgery. The petitioner has prayed for the relief to hold and declare that the action of the respondents in not allowing the petitioner's admission to the seat in B.Sc. Nursing reshuffled to the seat in the course of Bachelor of Ayurveda Medicine and Surgery or in the Bachelor of Homeopathy Medicine and Surgery. It is next prayed to allow the petitioner the seat in either of the aforesaid course on the basis of merit and further to direct the respondent No. 4 college to issue No-objection Certificate. In the alternative, it is prayed to direct respondent No. 2-Admission Committee to grant admission to the petitioner in accordance with merit-rank of the petitioner without insisting for No-objection Certificate as well as the original mark-sheet which are lying with respondent No. 4. The petitioner now confines her claim to the admission in Bachelor of Homeopathy Medicine and Surgery (B.H.M.S.). 2. In particular in the present case, the relevance, importance and significance of the facts involved cannot be scaled down in any way, rather the facts are the ruling factor in arriving at a proper decision. Therefore they may be set out at the outset. 3. The petitioner herein hailing from Scheduled Caste, having completed her 12th standard examination in March, 2016 with percentile rank of 47.79, and with successful completion of Gujarat Common Entrance Test with percentile rank of 17.58 in May, 2016, registered herself for admission with the Admission Committee for Professional Educational Medical Courses. She was desirous to seek admission in the course of her choice in the said academic year 2016-17. The Committee prepared the provisional merit list on the basis of the registrations. The general merit number of the petitioner was 24765 and the category rank was ST-2260. 3.1 According to the procedure specified by respondent No. 2 - Admission Committee, the colleges are to be ranked as per the preferred choices. The Committee prepared the provisional merit list on the basis of the registrations. The general merit number of the petitioner was 24765 and the category rank was ST-2260. 3.1 According to the procedure specified by respondent No. 2 - Admission Committee, the colleges are to be ranked as per the preferred choices. The petitioner filled-in her choices for colleges in the first round which took place on 24th August, 2016, again in the second round on 08th September, 2016, wherein she gave higher preference to the course of Bachelor of Ayurveda, Medicine and Surgery (B.A.M.S.) and next for the course of Bachelor of Homeopathy Medicine and Surgery (B.H.M.S.). For this purpose, the petitioner indicated preference for Government Colleges as well as Self-Financed Colleges. On 24th October, 2016 a session for counselling was held according to the merit rank. It appears that at that point of time on account of non-availability of courses preferred by the petitioner, she was asked to take admission in B.Sc. Nursing in respondent No. 4 Ekta Nursing College, Sabarkantha, affiliated to respondent No. 3 Hemchandracharya North Gujarat University. By paying fees, etc. the petitioner got admission and deposited the original documents with the college. 3.2 On 07th December, 2016, by giving general public notice, the round of reshuffling of seats was announced. The students desirous to adjust their admission as per choice, were called upon. The reshuffling was scheduled to take place between 09th December, 2016 and 12th December, 2016. For reshuffling the students already admitted to any particular college, were required to give No-objection Certificate. On 08th December, 2016, the petitioner made application in writing to the respondent No. 4 college, and requested to give the No-objection Certificate. The said application was received by the college on the same date, which is evidenced by copy of application forming part of the record of the petition further showing the receipted date. The counselling session of the petitioner was 10th December, 2016. 3.3 As per the specific case of the petitioner, respondent No. 4 college refused to issue No-objection Certificate, even-though that the petitioner was entitled to get such certificate from the college. It turned out to be the day of injustice to the petitioner, inasmuch as the Admission Committee did not give the admission to the course of B.H.M.S. which was her preferred course. It turned out to be the day of injustice to the petitioner, inasmuch as the Admission Committee did not give the admission to the course of B.H.M.S. which was her preferred course. For the sole reason that the No-objection Certificate was issued by the college, the petitioner was deprived of the admission, despite that she was coming on merit; and a candidate with lower merit was selected to be admitted. 3.4 It is in this backdrop of facts that the grievance of the petitioner arose. This Court by order dated 13th February, 2017 issued Rule but no relief was granted, observing inter-alia as under. “3. The only reason why the petitioner could not get her admission reshuffled in the discipline of choice was that, though the seats were available, respondent No. 4 college did not furnish No-objection Certificate. Because of non-giving of No-objection Certificate, the doors of the admission in the subject of choice for the petitioner got closed. 3.1 It was a late awakening of wisdom that respondent No. 4 took stand in the present proceeding that it was ready to issue No-objection Certificate. However because of passage of time and the seats in the discipline concerned having already been filled up, the petitioner's case could not be considered. An exercise was undertaken during hearing of the petition as to whether in any other quota seat is available where the petitioner could be given admission in the choice of her branch as she could not get the admission only for the aforesaid reason of not furnishing No-objection Certificate in time. It was, however, reported that there was no seat available for the petitioner. 5. In the facts and circumstances of the case, a strong prima facie case is made out for the petitioner. Therefore, Rule, returnable on 19th April, 2017. 6. The factual position obtained as on date does not allow grant of any interim relief by the Court as no seats are available. For the very reason the Court is not supposed to go into the question of granting or otherwise of interim relief at present. Therefore, Rule, returnable on 19th April, 2017. 6. The factual position obtained as on date does not allow grant of any interim relief by the Court as no seats are available. For the very reason the Court is not supposed to go into the question of granting or otherwise of interim relief at present. However, it is observed that it would be open for the petitioner to seek consideration of her prayer in accordance with law and on merits, to be admitted to the desired discipline of studies on the available seat in the next academic year and in the process of admission which may be held in the next academic year.” 3.5 The petitioner had moved Civil Application No. 11262 of 2017 seeking direction to keep one seat vacant for the course in question for the current academic year 2017-18 which prayer was not granted on the ground that granting of prayer would amount to adjudicating the main controversy. The main Special Civil Application was ordered to be posted for final hearing as per order dated 31st August, 2017. The petitioner filed Letters Patent Appeal No. 1432 of 2017 against the said order dated 31st August, 2017 which was not entertained by the Division Bench, however liberty was granted to the appellant- petitioner to move application for expeditiously taking up the main petition as the admission process had started. The present petition was taken up for final hearing. 3.6 Contesting the petition by filing the first affidavit, it was contended by respondent No. 2 that admission process for the course of Nursing had concluded on 11th November, 2016 and no seat had remained vacant for the academic year 2016-17. It was stated that even otherwise, the admission process for the course of B.A.M.S. And B.H.M.S. Was concluded, that the petitioner had procured admission elsewhere and that the claim was raised in the reserved category where seats were already filled-up. 3.7 Respondent No. 2 filed Additional affidavit-in-reply and stated that for the current academic year reshuffling is being done and third round thereof was to start on 21st September, 2017. It was submitted that since relief was not granted for the academic year 2016-17 as the seat was not available at that point of time, no relief may be granted to the petitioner now. It was submitted that since relief was not granted for the academic year 2016-17 as the seat was not available at that point of time, no relief may be granted to the petitioner now. It was further stated that from the year 2017, examination called National Eligibility-cum-Entrance Test was made mandatory. 3.8 As far as the stand of respondent No. 4 college was concerned, it was a late awakening to wisdom on its part as it was stated in the affidavit-in reply that “the answering respondent on the very first returnable date on this petition, has made it clear that for the better future of the student, we are ready to give NOC immediately to the petitioner.” 4. Heard learned advocate Mr. Virat Popat for the petitioner, learned Assistant Government Pleader Ms. Snusha Joshi for respondent Nos. 1 and 2, learned advocate Mr. Siddharth Dave for respondent No. 3, learned advocate Mr. P.P. Majmudar for respondent No. 4 and learned advocate Mr. Harsh Parekh for respondent No. 5, at length and on all aspects. 4.1 Learned advocate for the petitioner took the Court through the facts and highlighted that for no fault of hers, the petitioner was deprived of admission despite her merit ranking. He extensively relied on the Apex Court's decision in S. Krishna Sradha vs. State of Andhra Pradesh, (2017) 4 SCC 516 to submit that the petitioner has got a fundamental right to be admitted to the course to further urge for granting the relief. On the other hand, the respondents vehemently opposed the prayer that an year has passed by and no seat could now be offered to the petitioner. 5. As already noticed, the material facts are in narrow compass, and are in focus. The petitioner was denied the admission to course of her choice - Bachelor of Homeopathy Medicine and Surgery - in the reshuffling round for the reason of her not being able to produce No-objection Certificate and original mark-sheet which were deposited with respondent No. 4 college who refused to part with the same even-though the petitioner had applied beforehand for returning the same for giving No-objection. The petitioner was denied the admission, her merit position was ignored and was allowed to be surpassed by allowing a candidate with lesser merit to march over the merit-rank and merit-right of the petitioner. The petitioner was denied the admission, her merit position was ignored and was allowed to be surpassed by allowing a candidate with lesser merit to march over the merit-rank and merit-right of the petitioner. The petitioner was prompt to file the writ petition on 20th December, 2016 before this Court. 5.1 In the above backdrop, the following questions arise: (a) When student is deprived of admission to the course of choice without an iota of fault on his part despite having secured the merit position, would the right to be admitted not formulate and fructify into a right akin to and in the nature of fundamental right to be admitted to a course. (b) Whether any relief and if yes, what relief should be moulded in such cases to accord justice. 5.2 Amongst the decisions reflecting on the aspects of the controversy involved in the present case, three decisions of the Apex Court may be prominently considered, which are not only trendsetters, but the principles laid down therein have a beaconing value. 5.2.1 In Asha vs. Pt. B.D. Sharma University of Health Sciences and Others, (2012) 7 SCC 389 the Supreme Court inter-alia considered that where due to inaccurate and inefficient admission process defeats rule of merit and where the meritorious candidate was not able to get admission in her preferred course, what could be the remedial relief. The appellant student before the Apex Court was denied admission on the ground that she was not present before the Counselling Board at the crucial time, however, the attendance register of the Board showed that she was present on that particular date. The assertive averments by the student on this count was not denied. The Court held that the rule of merit should not be allowed to be defeated because of inefficiency or inaccuracy in the process of admission. It was held, “The rule of merit for preference of courses and colleges admits no exception. It is an absolute rule and all stakeholders and authorities concerned are required to follow his rule strictly and without demur.” 5.2.2 In paragraph 21, referring to the judgments spelling out the indispensability to count the merit, it was stated: “..........In fact, merit, fairness and transparency are the ethos of the process for admission to such courses. It is an absolute rule and all stakeholders and authorities concerned are required to follow his rule strictly and without demur.” 5.2.2 In paragraph 21, referring to the judgments spelling out the indispensability to count the merit, it was stated: “..........In fact, merit, fairness and transparency are the ethos of the process for admission to such courses. It will be a travesty of the scheme formulated by this Court and duly notified by the States, if the Rule of Merit is defeated by inefficiency, inaccuracy or improper methods of admission. There cannot be any circumstance where the rule of merit can be compromised.” (Para 21) 5.2.3 It was pertinently observed: “The Court cannot ignore the fact that these admissions relate to professional courses and the entire life of a student depends upon his admission to a particular course. Every candidate of higher merit would always aspire admission to the course which is more promising......... Higher the competition, greater is the duty on the part of the authorities concerned to act with utmost caution to ensure transparency and fairness. It is one of their primary obligations to see that a candidate of higher merit is not denied seat to the appropriate course and college, as per his preference. We are not oblivious of the fact that the process of admissions is a cumbersome task for the authorities but that per se cannot be a ground for compromising merit. The authorities concerned are expected to perform certain functions, which must be performed in a fair and proper manner i.e. strictly in consonance with the relevant rules and regulations.” (Para 24) 5.2.4 If the rule of merit becomes casualty in the facts of a particular case, the cut-off date provided for admission cannot be used as a technical instrument or tool to deny admission to meritorious student, stated the Supreme Court after recording that the appellant was not at fault and she pursued her rights and remedies as expeditiously as possible. In Asha (supra), the Supreme Court did not grant the admission to the appellant to the MBBS Course in the relevant academic year as the student was found to have not pursued her academic year in accordance with rules with diligence. But the Apex Court directed the respondents to grant admission to her in the current academic year subject to condition that she will pursue her MBBS Course right from the beginning. But the Apex Court directed the respondents to grant admission to her in the current academic year subject to condition that she will pursue her MBBS Course right from the beginning. 5.3 A view prevailed in series of judgment of the Supreme Court that the relief should not be granted by directing the authorities to give admission by carrying forward mechanism or after elapsing of the time. If the dictum is that the merit is paramount, the above absolute proposition would militate against the rule of merit. It was perhaps therefore, in Asha (supra) that the Apex Court charted a course to observe that if it is possible to conclude that the student was not at fault at all, in not able to obtain the admission to the preferred course though faring higher on merit, the relief deserves to be granted to such student. It was held: “It is not necessary for the appellant to plead and prove mala-fides, misconduct or favouritism and nepotism on the part of the parties concerned. Failure to do the same could be an error, intentional or otherwise, but in either event, we seen no reason by the appellant should be made to suffer despite being a candidate of higher merit.” (Para 20) 5.4 In Chandigarh Administration vs. Jasmin Kaur, (2014) 10 SCC 521 the Apex Court was again beset with the question as to the relief which may be granted to the student who failed to secure admission on account of procedural snag or omission despite merit position. It was stressed that rule of merit as well as principles of strict adherence to the time schedule, both were important and either cannot be compromised, simultaneously it was held that under exceptional circumstances the Court can give a direction to admit a candidate if there has been violation of right to equality, and the candidate was not at fault in pursuing legal remedies expeditiously. It was a view expressed that if the scope for granting admission is lost due to eclipse of time schedule, Court may consider grant of appropriate compensation to off-set the loss caused. The view was taken that the Court cannot direct telescoping of unfilled seats of one year with permitted seats of the subsequent year, that is carry forwarding of seats, cannot be permitted. The view was taken that the Court cannot direct telescoping of unfilled seats of one year with permitted seats of the subsequent year, that is carry forwarding of seats, cannot be permitted. Referring to the decision in Aneesh D. Lawande vs. State of Goa, (2014) 1 SCC 554 , it was observed that giving direction for adjusting the candidate for subsequent year would affect other meritorious candidates. 5.4.1 In Chandigarh Administration (supra), however, the Court did not grant any relief to the petitioner considering that he had approached the High Court late by three months after issuance of prospectus, by observing that the candidate was not entitled to relief due to her fault in not approaching the Court expeditiously, on account of which the time schedule had expired. In the final direction, as noted above, the Supreme Court found it proper not to give any relief to the said respondent observing in the context that the Court was convinced that as such a recalcitrant attitude is played by the contesting respondent, it should not be encouraged at the cost of rights of other candidates for the year 2014-15. 5.5 In S. Krishna Sradha (supra), the Apex Court elaborately addressed the issues in the sphere of controversy of such nature as is on hand, and considered whether grant of monetary compensation can be considered to be sole and adequate remedy to a student deprived of admission to M.B.B.S. course despite he being meritorious and vigilant, but suffered non-admission to the course without any fault on his part, because of error or fault committed by the authorities. The following were the submissions canvassed before the Apex Court in S. Krishna Sradha (supra) from the law laid down in Asha (supra), which found favour with the court: “.........Learned amicus would contend that a candidate must be meritorious and his approach to the Court should be unblemished; that he should have approached the Court absolutely expeditiously and that denial of admission must have occasioned on account of some fault or negligence of the concerned authorities including the counseling authority. It is propounded by him that it is the obligation of the authorities while giving admission to higher educational courses to strictly adhere to the norms of fairness and are expected to remain totally vigilant, scrupulously following the principle of transparency and when the constitutional court finds that there is deviation, the candidate cannot be allowed to suffer the deprivation of admission to the course. It is urged by him that grant of compensation in such cases would be contrary to fundamental principles and values inherent in Article 14 of the Constitution and is likely to destroy the essential facet of Article 21 of the Constitution which recognizes right to life that encompasses manifold rights as expanded by this Court from time to time including the right to achieve excellence in life as permissible in law. According to the learned senior counsel the said expanse should neither be narrowed nor crippled by the Court.” (Para 9) 5.5.1 The decision in Asha (supra) was considered by the Supreme Court. The Supreme Court however disagreed with view in Chandigarh Administration (supra), in which it was held that there cannot be a telescoping of unfilled seats for one year with permitted seats of subsequent year, and that compensation could be the only relief. In S. Krishna Sradha (supra) the Apex Court disagreed and it was ruled that decision in Chandigarh Administration (supra) required reconsideration by larger bench, referring the same to the larger bench. 5.5.2 The observations, findings and dictums of the Supreme Court in S. Krishna Sradha (supra) are beaconing in the controversy to be decided in this case. The Supreme Court analysed its own decision of Asha (supra), further referred to the facts etc. of Aneesh D. Lawande (supra) and other decisions including Priya Gupta vs. State of Chattisgarh, (2012) 7 SCC 433 . The Apex Court thereafter proceeded to held emphatically as under: “As is seen, stress has always been laid on the merit in the matters of all admissions as meritorious students should not face any impediment to get admission for some fault on the part of the institution or the persons involved with it. He/She has no other remedy but to approach the Court for getting redressal of his/her grievances. It is a grievance that pertains to fundamental right. He/She has no other remedy but to approach the Court for getting redressal of his/her grievances. It is a grievance that pertains to fundamental right. It has to be remembered that a right is conferred on a person by rule of law and if he seeks remedy through the process meant for establishing rule of law and it is denied to him, it would never sub-serve the cause of real justice. When a lis of this nature comes in a constitutional court, it becomes the duty of the court to address whether the authority had acted within the powers conferred on it or deviated from the same as a consequence of which injustice has been caused to the grieved person. The redressal of a fundamental right, if one deserves to have, cannot be weighed in terms of grant of compensation only. Grant of compensation may be an additional relief. Confining it to grant of compensation as the only measure would defeat the basic purpose of the fundamental rights which the Constitution has conferred so that the said rights are sustained. It would be inapposite to recognize the right, record a finding that there is a violation of the right and deny the requisite relief.” (Para 27) (Emphasis supplied) 5.5.3 The Apex Court expressed its justice-oriented bond with the aggrieved student who was agonised as his academic career was damaged because of laxity of the authorities, in the following words. What was stated in Asha (supra) was approved in S. Krishna Sradha (supra) for the purpose of grant of relief: “A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonizing but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible “lex non intendit aliquid impossibile.” But when it is in the realm of possibility; and denial of relief hurts the “majesty of justice” it should not be denied. It is well known that the law intends not anything impossible “lex non intendit aliquid impossibile.” But when it is in the realm of possibility; and denial of relief hurts the “majesty of justice” it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha vs. Pt. B.D. Sharma University of Health Sciences, (2012) 7 SCC 389 and Harshali vs. State of Maharashtra, (2005) 13 SCC 464 .” (Para 28) (Emphasis supplied) 5.6 A cardinal principle is carved out that the claim of a student to be admitted to educational course on merit is a grievance associated with and pertaining to fundamental right. It was stated that when a constitution court is confronted with lis of such nature, it becomes a bounden duty of the Court to consider whether the authority had deviated from the justice-orientedness, due to which the injustice occasioned to the grieved student. Right to be admitted on the basis of merit when the admission was denied for no fault of the candidate was thus viewed as a fundamental right and it was in term stated that the redressal of fundamental right cannot be by way of grant of compensation only. 5.7 Right to education is a fundamental right in its amorphous form, and the right to be admitted to the course of choice on merits would develop in the given set of facts, as are found in the present case, into a fundamental right with defined contours. This event happens when the candidate is deprived of admission despite his or her merit position and the conduct of such candidate is unimpeachable for being entitled to relief in law. 6. With the positions of law as above holding the field, reverting back to the facts of the present case, petitioner's discipline of choice was B.H.M.S. For which she was got herself duly registered by properly applying. Seat was available in the reshuffling round. She was on merit position to be entitled to get the admission to the said course. Despite she having already applied for No-objection Certificate from the college in which she had been admitted due to non-availability of seat at the initial stage, did not grant No-objection Certificate. Seat was available in the reshuffling round. She was on merit position to be entitled to get the admission to the said course. Despite she having already applied for No-objection Certificate from the college in which she had been admitted due to non-availability of seat at the initial stage, did not grant No-objection Certificate. The college did not act with expected swiftness pursuant to the application of the petitioner to grant the certificate, which was the duty in law of the college. When the petition was filed, without assigning any reason for granting certificate at the relevant time, the college took a stand with a dawn to belated wisdom that it was ready to grant No-objection Certificate to the petitioner. It is not possible for the Court to lay its finding as to why the college sat tight at the material juncture. In any case, it was an errorsome indolence in the least on its part, whether culpable or otherwise. The Admission Committee also took a woolen approach. Denial of admission though deserving it on merit-rank is to be eschewed as a last resort, as the issue needs to be tackled with human touch and practical face so as to upheld the merit criteria. 6.1 But the essentials for grant of relief are satisfied. The petitioner was holding merit-rank to be entitled to be given admission to the course of her choice. She was not at fault at any stage. It was due to non-issuance of No-objection Certificate by the college for no good reason and the Admission Committee turning its blind eye to the reality and the merit-rank of the petitioner, that the petitioner was deprived of the admission. She was prompt in pursuing the remedy before this Court. When such are the clear circumstances emerging from the facts, denying relief to her would be a travesty of justice. 7. In the facts and circumstances of the case, right of the petitioner to be admitted to the course in question could be said to have formulated into a right in the nature of fundamental right under Article 21 read with Article 14 of the Constitution, which has to fructify into a relief. 8. The next immediate question is what should be the relief to the petitioner. 8. The next immediate question is what should be the relief to the petitioner. In Asha (supra) it was observed and the same was endorsed to in S. Krishna Sradha (supra), that where denial of admission violates the right to equality and equal treatment to the candidate, it would be completely unjust and unfair to deny such exceptional relief to the candidate. Denial of admission to the meritorious candidate without fault of his own, is thus viewed as part of right to equality under Article 14 of the Constitution as well. The Court advocated that in such cases candidate would be entitled to exceptional relief to sub-serve the ends of justice. 9. The moulding of relief is a well-known principle to be applied by the courts, in particular the Writ Court. As observed in paragraph 32 in Asha (supra), once a finding is returned that no fault is attributable to the petitioner-candidate, that the petitioner had pursued her rights and legal remedies expeditiously without delay, it is both necessary and expedient to mould and grant relief. It was said: “This brings us to the last phase of this case as to what relief, if any, the appellant is entitled to. Having returned a finding on merits in favour of the appellant, the Court has to grant relief to the appellant even, if necessary, by moulding the relief appropriately and in accordance with law. This Court must do complete justice between the parties, particularly, where the legitimate right of the appellant stands frustrated because of inaction or inappropriate action on the part of the concerned respondents. In fact, normally keeping in view the factual matrix of this case, we would have directed the admission of the appellant to the MBBS course in the academic year 2011-2012 and would further have directed the respondents to pay compensation to the appellant towards the mental agony and expense of litigation and the valuable period of her life that stands wasted for failure on the part of the respondents to adhere to the proper procedure of selection and admission process. May be the Court would have granted this relief subject to some further conditions. However, we are unable to grant this relief to the appellant in its totality for reason of her own doing. May be the Court would have granted this relief subject to some further conditions. However, we are unable to grant this relief to the appellant in its totality for reason of her own doing. She has completely faulted in pursuing her academic course in accordance with the Rules and like a diligent student should do.” (Para 34) 9.1 In S. Krishna Sradha (supra) the Supreme Court highlighted that grant of relief as lawfully due should be the primary duty of the Court. The doctrine of restitution was advocated as proper relief to be granted in the following words: “Where doctrine of restitution can be applied and there is no impossibility it would be anathema to the cause of justice to deny the same. It is seemly to appreciate that restitution as a concept, as is traditionally understood, is the restoration of an aggrieved party to his condition prior to the wrongdoing. It could be limited to monetary quantification only if the breach is not capable of being remedied. That being so, compensation cannot be the adequate or sole remedy for the wrongful deprivation of admission, as it affects the academic career of a student. There may be cases where restitution may be too harsh. Then, as we are inclined to think, telescoping albeit reasonably is not an impossible one.” (Para 29) 9.1.1 The Court stated: “But when a right is comatosed by a maladroit design, we think, the right of the person presently aggrieved should matter, not the right of the future candidate. Present cannot be crucified at the alter of the present. Whether the beneficiary who has got in should go out or not, would depend upon the discretion of the Court.” (Para 29) 9.2 Where the facts warrant, the relief of restitution becomes a proper relief, and in the exercise of jurisdiction under Article 226 of the Constitution, where the equitability is an essence of granting relief, the relief of such nature - of restitution - becomes a relief most sought after, to eliminate the injustice on the premise that injustice anywhere is a threat to justice everywhere. In the educational matters, especially in respect of the cases of admission of students to a course of study, the restitutional relief could be said to be the only appropriate and adequate to remedy the injustice done, for, it would be the career of young student which is at stakes. In the educational matters, especially in respect of the cases of admission of students to a course of study, the restitutional relief could be said to be the only appropriate and adequate to remedy the injustice done, for, it would be the career of young student which is at stakes. The loss of it cannot be alternatively remedied or compensated. 9.3 On the same lines of the principles for grant of relief strongly settled in the aforementioned decisions of the Supreme Court, is also the judgment of this Court in Goyal Dipti Rajkumar vs. Principal, Government Akhandanand Ayurved Mahavidyalaya, 1996 (3) GLR 387 which was confirmed in the Letters Patent Appeal No. 996 of 1995 wherein the petitioner was seeking admission in the course of M.D. (Ayurved), and was denied admission form on the ground that she had not completed internship. The Court found the petitioner entitled to be admitted and moulded the relief as per discussion in paragraph 13 of the judgment observing that injustice could not be allowed to be perpetuated in the temple of justice. The respondents were directed to give admission to the petitioner in the course of in the next term. 10. It is also a trite principle that act of the Court should not prejudice anybody. What follows is that merely because the petition was not heard and passage of time intervened due to several reasons, that by itself will not disentitle the petitioner who otherwise possessed an enforceable right to culminate into relief. Therefore, the aspect that the year has passed cannot be an impeding factor. On the contrary, the petitioner has waited for a year and in order to get admission as per choice, she has allowed spending of valuable time in her career. This is not a case where the petitioner has acquiesced or waived her right. She had come to the Court promptly and pursued her case with vigilance. The legal maxim “vigilantibus et non dormientibus jura subveniunt” which means that equity aids only the vigilant and not the ones who sleep over their rights, stands to favour the conduct of the petitioner to make her entitled to the effective relief more particularly when, as held above, right claimed by her to be admitted on merits deserve to be viewed as fundamental one. This right of the petitioner in the facts obtained, had already been crystalised and became enforceable, which has to be now given effect to with a relief, and the same cannot be allowed to be crucified on the spacious plea of mere passage of time. 11. In light of discussion above and for the reasons afore-recorded, respondents including respondent No. 2 Admission Committee, are directed to grant admission to the petitioner to the course of Bachelor of Homeopathy Medicine and Surgery in the current academic year 2017-18, by offering to the petitioner a seat in that discipline, and for that purpose, and by making available such seat, including by creating a seat in the course for this academic year, if so required, so as not to disturb any admission. Such seat shall be offered/admission shall be given in the college/institution where the admission to the course of B.H.M.S. has last ended on merits. The petitioner shall be allowed to pursue the course in question from the current academic year onwards and she will be pursuing her course right from the beginning. 11.1 Respondent No. 4 is directed to forthwith grant No-objection Certificate and further directed to return the original papers and mark-sheets of the petitioner, if not granted or returned. 11.2 The petition stands allowed. Rule is made absolute. Direct service is permitted. Petition allowed.