Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
2024 INSC 235
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(S). OF 2024
(Arising out of SLP (C) No(s). 26179-26180 of 2023)
VANSH S/O PRAKASH DOLAS .…APPELLANT(S)
VERSUS
THE MINISTRY OF EDUCATION &
THE MINISTRY OF HEALTH &
FAMILY WELFARE & ORS. ….RESPONDENT(S)
J U D G M E N T
Mehta, J.
1. Leave granted.
2. The appellant has approached this Court for assailing orders
th th
dated 5 September, 2023 and 26 October, 2023 passed by the
Division Bench of the Bombay High Court Bench at Nagpur in Writ
Petition No. 5141 of 2023 and Misc. Civil Application (Review) No.
980 of 2023 in Writ Petition No. 5141 of 2023, respectively.
3. The appellant is a domicile of the State of Maharashtra and
Signature Not Verified
his father is employed in the Border Security Force (BSF) as a Head
Digitally signed by
Narendra Prasad
Date: 2024.03.20
17:32:38 IST
Reason:
Constable (General Duty) [HC(GD)]. Owing to the deployment of his
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father outside the State of Maharashtra, the appellant was
compelled to complete his Secondary School Certificate (Standard
X)(SSC) and Higher School Certificate (Standard XII)(HSC)
education from a school outside the State of Maharashtra.
4. The appellant appeared in NEET-UG, 2023 craving admission
in the undergraduate MBBS course against the State quota and
upon being found meritorious, he was issued a provisional
selection letter (CAP1) by the State Common Entrance Cell,
th
Maharashtra on 4 August, 2023 and was allotted a seat in
respondent No.6-College. The appellant completed the requisite
formalities and paid an amount of Rs.13,500/-by way of admission
fees. It may be noted that the appellant had applied for admission
under the Other Backward Class/Non-Creamy Layer (OBC/NCL)
category as being domicile of the State of Maharashtra.
5. However, without issuing notice and without providing any
opportunity of being heard to the appellant, respondent No.6-
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College issued a letter/communication dated 9 August, 2023
cancelling the admission of the appellant.
6. The letter/communication cancelling the admission was
challenged by the appellant by filing Writ Petition No. 5141 of 2023
before the Bombay High Court, Nagpur Bench raising a pertinent
2
ground that the appellant was entitled to the exception as provided
under clause 4.8 of the NEET UG-2023 Information Brochure
(hereinafter referred to as ‘Information Brochure’) which pertains
to the ‘Children of employees of Government of India or its
Undertaking’ and that cancellation of his admission was totally
illegal and arbitrary.
7. The High Court, after considering the entirety of facts and
circumstances dismissed the Writ Petition No. 5141 of 2023 vide
th
order dated 5 September, 2023 holding that the appellant did not
satisfy the requirements of clauses 4.8 and 9.4.4 of the
Information Brochure. It was held that since the appellant did not
select specified reservation i.e., in the category of Children of
Defence personnel(DEF), while submitting the online application
form, he was precluded from raising such a claim at a belated
stage, as being impermissible in view of the rider contained in
clause 9.4.4 of the Information Brochure.
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8. Being aggrieved and dissatisfied with the order dated 5
September, 2023, the appellant filed Misc. Civil Application
(Review) No. 980 of 2023 which too was rejected vide order dated
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26 October, 2023. These two orders are assailed in the present
appeals.
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9. Mr. Kshitij Kothale, learned counsel representing the
appellant urged that the High Court misconstrued the appellant’s
claim to be one under Children of Defence personnel(DEF) category
because the appellant had sought admission under the OBC/NCL
category as being domicile of the State of Maharashtra.
10. He contended that the appellant and his parents are domicile
of the State of Maharashtra. The appellant fulfils the requisite
criteria for being admitted in the State quota and stood in merit
and was allotted a seat in the OBC/NCL category as a domicile of
the State of Maharashtra and, thus, cancellation of appellant’s
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admission by the order dated 9 August 2023 is absolutely unjust
and arbitrary in addition to being in gross violation of principles of
natural justice.
11. Learned counsel urged that two Division Benches of the
Bombay High Court, one at Nagpur Bench in Archana Sudhakar
Mandulkar v. Dean, Govt. Medical College, Nagpur and
1
others and the other at Principal Seat at Bombay in Rajiv
Purshottam Wadhwa v. State of Maharashtra(through it’s
2
Dept of Medical Education and Drugs & Others examined a
1
1986 SCC OnLine Bom 262
2
2000 SCC Online Bom 359
4
similar set of rules/guidelines as prevailing in the present case and
while reading down the rules, provided relief to the candidates
therein who were similarly circumstanced as the appellant. He
placed reliance on the following excerpts( infra ) from the judgment
in the case of Archana Sudhakar Mandulkar (supra) and
contended that the impugned orders are bad in the eyes of law and
the appellant herein deserves the relief sought for by directing the
respondents to create an additional seat and thereby protecting
admission of the appellant in the ongoing session of MBBS (UG)
course:-
“3. Shri Kherdekar, the learned counsel for the petitioner,
contended that having regard to the object of the Rules, its
background, the language used in Clause B(5) and the ratio of
various Supreme Court decisions on the validity of various
reservations on region/residence basis, the requirement of
passing Indian School Certificate Examination “from an
institution located in Maharashtra State” is not intended to be
applied to the candidates covered by Rule B(3). It seems to us
that the contention is well-founded. Course and the
examination of the Indian School Certificate Examination is
common all over India. Serviceman has no control on his
posting which can be anywhere. Rule of denial of admission to
a meritorious son/daughter of a serviceman who is domicile of
Maharashtra only because of a fortuitous circumstance of his
being not posted at the time of his ward studying in 12th
Standard within the State of Maharashtra cannot have any
nexus to the object of the Rule. Mere chance cannot be the valid
disqualifying factor. Such a Rule will not only be arbitrary and
unreasonable but will permit discrimination between two
classes of servicemen of Maharashtra domicile lactually posted
at material time (i) in Maharashtra and (ii) outside
Maharashtra. This classification will be clearly invidious having
no nexus whatsoever to the object sought to be achieved.
Supreme Court has repeatedly held against denial of
admissions only on the basis of residence and/or region.
Canons of interpretation mandates that interpretation which
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leads to unconstitutionality has to be avoided, and harmonious
construction to be preferred, if possible. Thus the Rule will have
to be interpreted keeping the above principles in view. The Rule
is not clearly worded and does present some difficulty in
construing it. It is not as if that Clause C applies universally
and without exception to all admissions under the Rule. Take
for example cases covered by Rule B(4)(iii) — reservation for son
or daughter of Non-resident Indians of Maharashtra origin.
Even 20 per cent seats out of category B(3) are reserved for
Defence Personnel transferred to the Maharashtra Region. It is
in this light and background that Rule B(5) has to be read. The
terminology “after excluding validly reserved seats” used in Rule
B(5) is significant. It means that all parts of Clause C do not
universally apply to validly reserved seats under Clause B. This
is not to suggest that no part of Clause C applies to any varieties
of reservations mentioned in Clause B. All will depend upon a
specie of reservation and its intendment. Construed in that
light it seems to us that the last part of Rule C(3)(ii) reading as
“from an institution located in Maharashtra State” is not
intended to be applied to candidate covered by Clause B(3).”
12. Per contra , learned counsel representing the respondents
controverted the submissions advanced by the appellant’s counsel.
He submitted that the appellant could not have been considered
for admission under OBC/NCL category under the State quota
because he is not covered under clauses 4.5, 4.6 & 4.8 of the
Information Brochure. The appellant did not stake a claim for
admission in defence personnel quota and hence, he could not
have been given a seat under the said category by virtue of the
stipulations contained in clause 9.4.4 of the guidelines. On these
grounds, he sought dismissal of the appeals.
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13. We have given our thoughtful consideration to the
submissions advanced at bar and have gone through the
impugned orders.
14. There is no dispute that the appellant and his parents are
domicile of the State of Maharashtra. The appellant’s father is
serving in the Border Security Force(BSF). Owing to deployment of
his father outside the State of Maharashtra, the appellant passed
his SSC and HSC exams from an institution outside the State of
Maharashtra.
15. Clause 4.8 of the Information Brochure provides an
exception/relaxation for claiming seat in the Maharashtra State
quota to Children of employees of Government of India or its
Undertaking who have passed SSC and/or HSC or equivalent
examination from the recognized institutions situated outside the
State of Maharashtra. However, this clause imposes a rider that
such employee of Government of India or its Undertaking being the
parent of the candidate seeking admission in the course under the
State quota “ must have been transferred from outside the
State of Maharashtra at a place of work, located in the State
of Maharashtra and also must have reported for duty and
must be working as on the last date of document verification
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at a place located in the State of Maharashtra ”. The
appellant’s father was deployed outside the State of Maharashtra
in connection with service of the nation and thus, proviso to Clause
4.8 was relied upon by the respondents while cancelling the
admission granted to the appellant in CAP1.
(emphasis supplied)
16. Undisputably, but for the above rider in the guidelines, the
appellant is qualified to seek admission in the State Domicile
(OBC/NCL) category by virtue of clause 4.8 of the Information
Brochure and also stands in merit. However, the proviso creates
a situation which would be impossible for the appellant to
surmount. The appellant who is a domicile of the State of
Maharashtra, cannot control the place of deployment of his father
who is serving in the paramilitary force i.e., Border Security
Force(BSF). Needless to state that the place of deployment cannot
be the choice of the employee serving in the armed forces or a
paramilitary force. Being the child of a soldier serving on the
country’s frontiers, the discriminatory and arbitrary treatment
meted out to the appellant under the guidelines cannot be
countenanced. The High Court, while denying relief to the
appellant held that he had not selected any specified reservation
8
under the head of Children of Defence personnel(DEF) as provided
in Clause 9.4.4 of the Information Brochure. However, the fact
remains that the appellant had submitted his OBC/NCL
credentials/certificates along with the application form and, his
claim for admission was clearly against the Maharashtra State
quota as being a domicile of the State of Maharashtra whose father
was deployed as a Head Constable(General Duty)[HC(GD)] in BSF.
17. The appellant’s application was considered favourably and
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vide communication dated 4 August, 2023, he was granted
admission in respondent No.6-College. He also paid the admission
fees etc. However, without issuing any notice and without
providing opportunity of being heard to the appellant, respondent
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No.6-College issued the letter/communication dated 9 August,
2023 cancelling his admission in the course. The said
letter/communication was promptly challenged by the appellant
by filing the captioned writ petition before the Nagpur Bench of the
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Bombay High Court on the very next day i.e. 10 August, 2023
and he was also provided interim protection by the Court.
18. Before the High Court, the appellant had placed reliance on
the Division Bench judgment in the case of Archana Sudhakar
Mandulkar ( supra ). The relevant guidelines/rules of admission as
9
extracted in the judgment of Archana Sudhakar
Mandulkar ( supra ) are quoted hereinbelow for the sake of ready
reference: -
“ Relevant Clauses of Rules for admission (M.B.B.S.) 1986–
87 :
Clause B deals with “Reservations”.
Sub clause (1) of Clause B refers to Backward Class etc., sub-
clause (2) to Central Government, sub-clause (3) to sons and
daughters of servicemen and ex-servicemen, sub-clause (4) to
miscellaneous other reservations including son/daughter of
Nonresident Indians of Maharashtra origin and sub-clause (5)
to Regional Reservation.
Clause B(3) reads thus:—
“(3) Reservation for sons and daughters of servicemen and
ex-servicemen — 5 percent seats of the intake capacity of the
college limited to five shall be reserved for the children of
servicemen as well as ex-servicemen who are domiciles of
Maharashtra. The seats so reserved are inclusive of merit;
Clause B(5) reads thus:-
“(5) Regional Reservation — Subject to the exception
mentioned in Rule C(6)(iv) below, 70 percent of open seats, after
excluding validly reserved seats, available in Government
Medical Colleges situated within the jurisdiction of any
University in Maharashtra, shall be reserved for the candidates
who are eligible as per Rule C below and have passed the
requisite qualifying examination from the School/College
situated within the jurisdiction of the same University . ”
19. The relevant extract from guidelines/rules of admission
prevailing in NEET-UG, 2023 germane to the controversy at hand
is quoted hereinbelow for sake of ready reference: -
"4.8 Exception for SSC (10th) and HSC (12th) or
equivalent examinations:
Children of employees of Government of India or
its Undertakings:-
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4.8.1 The children of the employees of Government of
India or its Undertaking shall be eligible for admission
even though they might have passed the S.S.C. (Std.X)
and/or H.S.C. (Std. XII) or equivalent exam from the
recognized Institutions situated outside the State of
Maharashtra, provided that such an employee of
Government of India or its Undertaking must have
been transferred from outside State of Maharashtra at
a place of work, located in the State of Maharashtra
and also must have reported for duty and must be
working as on the last date of Document verification
at a place located in Maharashtra.
4.8.2 ….”
20. On going through the extracted portion of the Division Bench
judgment in the case of Archana Sudhakar Mandulkar ( ),
supra
we find that in an almost identical situation which prevails in the
case at hand, the Division Bench read down the rule/guideline
which provided that the ward of servicemen should have passed
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his/her 12 standard from an institution located in the State of
Maharashtra. The Division Bench held that the servicemen or his
ward desiring admission under the State quota could not have
had any control over his posting which can be anywhere. The
Division Bench held that the rule of denial of admission to a
meritorious son/daughter of a serviceman who is domicile of
Maharashtra only because of a fortuitous circumstance of his
th
being not posted at the time of his ward studying in 12 standard
within the State of Maharashtra cannot have any nexus to the
11
object of the rule. Mere chance cannot be a valid disqualifying
factor. Such rule will not only be arbitrary and unreasonable but
will permit discrimination between two classes of servicemen of
Maharashtra domicile actually posted at the material time (i) in
Maharashtra and (ii) outside Maharashtra. This classification will
be clearly invidious having no nexus whatsoever to the object
sought to be achieved.
21. In the extant admission process, a slight modification has
been made in the guidelines inasmuch as, now as per clause 4.8.1
of Information Brochure, the children of employees of the
Government of India or its Undertaking have been made eligible
for admission even though they might have passed SSC and/or
HSC or equivalent exam from a recognised institution situated
outside the State of Maharashtra. However, while making such
relaxation, a condition has been imposed that the employee of
Government of India or its Undertaking being the parent of the
candidate should have been transferred back to the State of
Maharashtra and also have reported for duty and must be
working as on the last date of the document verification at a place
located in Maharashtra. We feel that this condition as imposed
by the guidelines, creates a stipulation which would be impossible
12
for the candidate or his parent to fulfill. It may be reiterated that
the place of posting is not within the control of the employee or
the candidate. Thus, the distinction drawn by the clause between
two categories of employees in the Government of India services
(i) those posted in Maharashtra and (ii) those posted outside
Maharashtra has no nexus with the intent and purpose of the
guidelines/rules and hence the same deserves to be read down to
such extent. Thus, this Court has no hesitation in providing that
the candidate(s) who are born in Maharashtra and whose parents
are also domicile of the State of Maharashtra and are employees
of the Government of India or its Undertaking, such candidate(s)
would be entitled to a seat under the Maharashtra State quota
irrespective of the place of posting of the parent(s) because the
place of deployment would not be under the control of the
candidate or his parents.
22. The Division Bench of Bombay High Court at Nagpur while
rejecting the writ petition filed by the appellant, fell into manifest
error in not considering case of the appellant in the correct
perspective. For that reason, the impugned judgment is
unsustainable in facts as well as in law. , the
A fortiori
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letter/communication dated 9 August, 2023 issued by
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respondent No. 6 cancelling the admission granted to the
appellant against the Maharashtra State quota in CAP1 without
giving opportunity to show cause is also illegal and arbitrary and
deserves to be quashed and set aside.
23. However, there is a practical hurdle which comes in the way
of the appellant for being provided admission in the MBBS course
in the current session which has progressed significantly from
August, 2023. More than six months have passed by since the
session started. As per the reply of the respondents, no seat is
lying vacant in any college in Maharashtra State quota as on date.
24. Undisputably, the appellant has been illegally deprived from
his rightful admission in the first year of the MBBS course owing
to the insensitive, unjust, illegal and arbitrary approach of the
respondents and so also on account of the delay occasioned in the
judicial process.
25. This Court in the case of Manoj Kumar v. Union of India
3
and Others considered the concept of restitutive relief. Hon’ble
P.S. Narasimha, J. speaking for the Bench, observed that
concomitant duty of the Constitutional Court is to take reasonable
measures to restitute the injured which is the overarching
3
2024 SCC OnLine SC 163
14
Constitutional purpose. The relevant paras from the aforesaid
judgment are extracted below:-
“ 19 . We are of the opinion that while the primary duty
of constitutional courts remains the control of power,
including setting aside of administrative actions that may
be illegal or arbitrary, it must be acknowledged that such
measures may not singularly address repercussions of
abuse of power. It is equally incumbent upon the courts,
as a secondary measure, to address the injurious
consequences arising from arbitrary and illegal actions.
This concomitant duty to take reasonable measures to
restitute the injured is our overarching constitutional
purpose. This is how we have read our constitutional text,
and this is how we have built our precedents on the basis
of our preambular objective to secure justice.
20. In public law proceedings, when it is realised that
the prayer in the writ petition is unattainable due to
passage of time, constitutional courts may not dismiss the
writ proceedings on the ground of their perceived futility.
In the life of litigation, passage of time can stand both as
an ally and adversary. Our duty is to transcend the
constraints of time and perform the primary duty of a
constitutional court to control and regulate the exercise of
power or arbitrary action. By taking the first step, the
primary purpose and object of public law proceedings will
be subserved.
21. The second step relates to restitution. This operates
in a different dimension. Identification and application of
appropriate remedial measures poses a significant
challenge to constitutional courts, largely attributable to
the dual variables of time and limited resources.
22. The temporal gap between the impugned illegal or
arbitrary action and their subsequent adjudication by the
courts introduces complexities in the provision of
restitution. As time elapses, the status of persons,
possession, and promises undergoes transformation,
directly influencing the nature of relief that may be
formulated and granted.
23. The inherent difficulty in bridging the time gap
between the illegal impugned action and restitution is
certainly not rooted in deficiencies within the law or legal
jurisprudence but rather in systemic issues inherent in
the adversarial judicial process. The protracted timeline
15
spanning from the filing of a writ petition, service of notice,
filing of counter affidavits, final hearing, and then the
eventual delivery of judgment, coupled with subsequent
appellate procedures, exacerbates delays. Take for
example this very case, the writ petition was filed against
the action of the respondent denying appointment on
22.05.2017. The writ petition came to be decided by the
Single Judge on 24.01.2018, the Division Bench on
16.10.2018, and then the case was carried to this Court
in the year 2019 and we are deciding it in 2024. The
delay in this case is not unusual, we see several such cases
when our final hearing board moves. Appeals of more than
two decades are awaiting consideration. It is distressing
but certainly not beyond us. We must and we will find a
solution to this problem. ”
26. Seen in the light of the above judgment, it is now to be
considered as to the measures of restitutive relief which can be
provided to the appellant in the present case.
27. This Court in the case of S. Krishna Sradha v. State of
4
Andhra Pradesh and Others examined the issue of wrongful
denial of admission in a medical course, and propounded the
theory of ‘restitutive justice’ by holding as below:-
“13. 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 :
13.1. 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
4
(2017) 4 SCC 516
16
course all the efforts shall be made by the
court concerned to dispose of the
proceedings by giving priority and at the
earliest.
13.2. 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 – 30th 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
th
beyond 30 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.
13.3. 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
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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 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.
13.4. 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.
13.5. It is clarified that the aforesaid
directions pertain to Admission in MBBS
Course only and we have not dealt with post
graduate medical course.”
(emphasis supplied)
28. In the light of the above judgment, it would neither be
desirable nor justifiable to grant admission to the appellant in the
on-going session of the MBBS(UG) course. However, considering
the fact that the order cancelling the admission of the appellant
18
th
herein was issued on 9 August, 2023 and the writ petition came
th
to be filed before the High Court promptly i.e. on 10 August,
2023, without any delay whatsoever, the appellant is entitled to
restoration of his seat in the first year of MBBS(UG) course in the
same college in the next session, i.e., NEET UG-2024.
29. We further direct that until a suitable rectification is made in
the guidelines/rules, candidate(s) domicile of the State of
Maharashtra having acquired SSC and/or HSC qualification from
any recognized institution: -
(i) Whose parent(s) are domiciles of Maharashtra and employed
in the Central Government or its Undertaking, defence
services and/or in paramilitary forces viz. CRPF, BSF, etc.
and;
(ii) Such parent(s) are posted at any place in the country as on
the last date of document verification,
shall be entitled for a seat in MBBS Course in the
Maharashtra State quota.
30. It is further directed that the appellant shall be provided
admission in the ‘OBC category domicile of State of Maharashtra
child of person serving the Government of India’ in the first year of
the MBBS(UG) course commencing from the year 2024 by creating
19
an additional seat so as to ensure that there is no reduction in the
quota of seats to the candidates who succeed in the NEET UG-
2024.
31. The impugned orders are set aside. The appeals are
accordingly allowed.
32. We also direct respondent No.6-College and respondent No.5-
State of Maharashtra to pay compensation to the tune of Rs.1
lakh(Rs. 50,000/- each) to the appellant for the deprivation of one
year and harassment on the account of illegal and arbitrary
cancellation of his admission.
33. Pending application(s), if any, shall stand disposed of.
..….………………………J.
(B.R. GAVAI)
..………………………….J.
(RAJESH BINDAL)
…..……………………….J.
(SANDEEP MEHTA)
NEW DELHI
March 20, 2024.
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