JUDGMENT Ajoy Nath Ray, C.J. and Ashok Bhushan, J.
1. This is an appeal from a judgment and order passed by Hon'ble Mr. Justice Arun Tandon on the 1st of May, 2006 granting relief to the writ petitioner in respect of admission to the Post Graduate Course in general medicine in the Banaras Hindu University.
2. We are in respectful agreement with the reasoning given and the order passed by the Hon'ble Single Judge but we have to say a few points only about the moulding of relief by his Lordship.
3. The writ petitioner-respondent has pursued his course in community medicine for two years. He has foregone his two years of study and has now opted for general medicine on the basis of the order of the Hon'ble Single Judge.
4. He has drawn during two years a stipend of Rs. 18,000/- per month and has enjoyed all the infrastructure and facilities which are available to post graduate students. If the order dated 1.5.2006 had been complied with by the University there and then, they would have displaced a general category candidate for general medicine for the academic year 2006-2007 and that would have been done without hearing that person who was being displaced. That would be unjust.
5. However, the non compliance of the Hon'ble Court's order by the University has been some sort of a boon in disguise. Admission was granted to the writ petitioner by a letter dated 16.11.2006 as the University was being threatened with a contempt petition.
6. It was not possible for us to take up the matter although requests had been made and the general principle which we follow in all cases is that the first Court's order should be complied with and if the appeal is ultimately won, we try to set back the clock as far as possible.
7. The copy letter in regard to the admission granted in November, 2006 is to be kept on record countersigned as part of these proceedings. As such the admission granted to the writ petitioner cannot be taken to be any factor against the Banaras Hindu University.
8. However, the grant of admission in November, 2006 (which is after 31.5.2006) cannot go against the writ petitioner as the University cannot be in a more favourale position by not complying with the order than they would have been in, had they complied with it.
9. The year in which the writ petitioner took the post graduate screening test in the Banaras Hindu University was the year 2004. He was an internal candidate.
10. The judgment under appeal makes it amply clear that a reservation was applied midway through the selection process to the extent of 15% for SC and 7.5% for ST and this was done at a stage when the first counselling was about to take place after a fortnight; it was done after the examinations were over and the selection process had been under way for a long time past.
11. Some of the SC/ST candidates who were distributed also amongst the choice disciplines of general medicine, surgery and opthalmology had secured lesser marks than the writ petitioner.
12. The writ petitioner had not done very will in the general category. He was the last general category candidate to get an admission. The discipline that he got was community medicine. It is so bad that he is willing to give it up after two years; apparently all that he has earned is only quite some amount of money during that period.
13. The analysis made by the Hon'ble Single Judge of the facts is sufficiently clear and complete and we need not go into these details unnecessarily once again. There can be no two opinions possible that the sudden imposition of the SC/ST reservation midway during the selection process was thoroughly unsustainable in law. The justification of the Banaras Hindu University, from the moral, although not the legal, point of view that they were faced suddenly with a very serious cutting down of the post graduate seats by reason of the decision given by the Supreme Court in the case of Saurabh Chaudhari, that, previously, the post graduate seats being more in number than MBBS seats and there being SC/ST reservation at the MBBS admission level, the reservation occurred de facto at the post graduate level also because many SC/ST candidates were getting into the Post Graduate Course on the internal quota because of the large number of seats available for them. The Banaras Hindu University felt in the meeting of the post graduate body held on the 10th of May, 2004 that it had to introduce the SC/ST quota at the post graduate level also? now that the number of seats had become less because of the Supreme Court decision.
14. A moral justification there was, but no legal justification at all.
15. Had the writ petition been heard and the affidavits completed the day the writ petition was filed, and had the suddenly included SC/ST candidates appeared with their marksheets before the Court on the very same day, and arguments had also been completed on that day and judgment delivered, there is no doubt that an SC/ST candidate would be removed from one of the disciplines, which are much 'better' than community medicine, and the writ petitioner would have been put there in his place instead.
16. The only point which is against the writ petitioner is the law's delay. The well known principle of law is that actus curias neminem gravabit which means that the Court's act shall oppress no one.
17. The granting of time for affidavits, the time taken for hearing learned Counsel, the time taken by the Court in getting to hear a case, the time like in considering and delivering a judgment these are all steps in the normal legal process in any adversary system in any civilized country and therefore these are all acts of the Court. It is not possible that the Court should oppress or refuse reliefs to the writ petitioner because of these problems which are not his creation and which will remain, do what one might in regard to the law's dynamics.
18. Just as we cannot hold the admission granted by the Banaras Hindu University against them when we are hearing this appeal perhaps a month or two late, so also can we not hold anything against the writ petitioner because the first Court happened to hear the writ petition a little under two years after it was filed and delivered the judgment then.
19. On these grounds, the appeal has to be and is hereby dismissed. We make it clear, and repeatedly clear, with all the emphasis which we have at our command, that this case is not to be treated as precedent, as we would not have compelled the Banaras Hindu University to create in effect, an additional seat in general medicine for the academic session 2006-2007 in the Post Graduate Course in general medicine, had we not been faced with the most judicious (said with respect) use of discretion made by the Hon'ble Single Judge, and had we not also been fully aware of the basic principle followed by the Court of appeal, that the use of discretion by the first Court is not to be interfered with, unless there has been some misdirection of a serious nature on facts, or there has been a misdirection on an important point of law which, if not made, might well have altered the decision of the case wholly or substantially. The appeal is dismissed without any order as to costs.