ORDER
V.K. Bali, J.
1. Rumika Yadav daughter of late Lt. Colonel Rajinder Singh Yadav, through Civil Writ Petition No. 12081 of 1992 filed by her under Article 226 of the Constitution of India, had challenged the admission granted tp Ms. Yang Chan Kishore in the M.B.B.S./B.D.S. course notified by theMaharshi Dayanand University, Rohtak (hereinafter to be referred to as the University) for the year 1992 in the reserved category meant for the childern of the deceased/disabled officers (if there was no such case the children of ex-servicemen) on the sole ground that neither Ms. Yang Chan Kishore nor her father was domicile of Haryana State, a condition precedent for admission in MDBS/BDS and had yet successfully sought admission under the reserved category by forging documents evidencing her to be a domicile of Haryana. During the currency of the writ-petition, petitioner Rumika Yadav was allowed provisional admission by an interim order passed in that behalf by the Bench, seized of the matter, which order was challenged by the University through a Special Leave Petition filed by it in the Supreme Court, which appeal, is stated to be still pending. The learned single Judge, vide judgment dated August 29, 1995 returned a firm finding of fact that Ms. Yang Chan Kishore, arrayed in the petition as respondent No. 4, was not eligible to be considered for admission in MBBS course against the reserved seat in pursuance of the advertisement isused by the University and but for the admission granted to her, petitioner would have been admitted. It was further held that Ms. Yang Chan Kishore had secured domicile certificate/bona fide resident certificate by supplying incomplete and incorrect information to the authorities and in terms of para 4 of Circular dated September 10, 1991 her admission was liable to be cancelled. The writ filed by Rumika Yadav was, thus, allowed and she was deemed to have been admitted against the seat reserved for the children of deceased/disabled officers. The admission given to Yang Chan Kishore by the University was, however, protected on the sole ground that she had completed three years of studies and it would be just and proper not to order cancellation of her admission, in view of the judgment of the Supreme Court in Dr. Ku. Nilofar v. State of Madhya Pradesh, AIR 1991 SC 1872.
2. Whereas, the appellant-University has challenged the order of learned single Judge in Civil Writ Petition No. 12081 of 1992 insofar as it protects the admission granted to Ms. Yang Chan Kishore in L.P.A. No. 832 of 1993 filed by it under Clause X of the Letters Patent, Yang Chan Kishore, in turn, through a separate L.P.A. bearing No. 897 of 1995 filed by her under Clause X of the Letters Patent has challenged the findings of the learned single Judge holding that domicile certificate submitted by her for securing admission was procured. We propose to dispose of both these Letters Patent Appeals by a common judgment.
3. As the controversy in the Letters Patent Appeals is limited to the two main issues i.e. as to whether Yang Chan Kishore had secured admission on the strength of valid documents or made up documents with regard to her or her father's domicile being of Haryana as also as to whether, if despite the fact that she had secured the admission in the manner aforesaid, simply because she had continued to study for a period of three years, admission granted to her should be protected or set aside, there is no need at all to give detailed facts of the case. Suffice, however, to mention that 150 seats for admission to MBBS/BDS courses were notified by the University in the year 1992. Of these, 115 seats were in the respondent-University and 35 seats were in Maharaja Agarsen Institute of Medical Research and Education, Agroha. Two seats in Rohtak Medical College and one seat in Maharaja Agarsen Institute were reserved for the children of the deceased/disabled officers. Rumika Yadav (hereinafter to be referred to as the petitioner) in admittedly a daughter of late Shri Rajinder Singh Yadav, who was Lt. Colonel in the Indian Army. Yang Chan Kishore (hereinafter to be referred to as respondent No. 4) is too, concededly, daughter of Lt. Colonel Nand Kishore. Petitioner as well as respondent No. 4 were interviewed and whereas petitioner had submitted her domicile certificate on July 29, 1992, within the time prescribed, respondent No. 4 had submitted the said certificate on August 12, 1992. Inasmuch as respondent No. 4 was admittedly higher in merit, she was preferred over the petitioner. As the petitioner was convinced that respondent No. 4 had secured admission when she did not deserve the same on account of the fact that she or her father was not domicile of Haryana State and that respondent No. 4 had managed the domicile certificate of Haryana, she filed Civil Writ Petition No. 12081 of 1992 which was allowed on August 29, 1995 in the manner, fully indicated above.
4. Before the matter might proceed any further, it requires to be mentioned that vide Civil Misc. Application Nos. 2443 and 2444 of 1994, the petitioner had filed number of documents before the learned single Judge including a report dated February 11, 1993 submitted by the Sub-Divisional Officer (Civil), Gurgaon to the Deputy Commissioner, Gurgaon and letter dated December 8, 1992 issued by the Secretary, Zila Sainik Board, Gurgaon to the Director, Medical College, Rohtak. The University filed reply to the aforesaid Civil Misc. Applications and admitted that an enquiry had been got conducted in the matter and as per the report dated March 20, 1993 submitted by the Enquiry Officer, certificate of domicile produced by Lt. Col. Nand Kishore, father of respondent No. 4, was not found to be genuine and that the Enquiry Officer had recommended that the admission granted to respondent No. 4 should be cancelled. At this stage, it also requires to be mentioned that it is admitted position between the parties that circular, Annexure P-12, issued by the Government of Haryana, would determine the bona fide residents of Haryana. Relevant extract of the said circular reads thus :--
'After careful consideration, it has been decided that henceforth the following categories of persons would be eligible for the grant of domicile certificates:--
(i) candidates who have passed the examinations qualifications for selection in an institution from a school/college in Haryana;
(ii) childern wards (if parents are not living) dependents:--
(a) of the employees of Haryana State posted in or outside Haryana State or working on deputation;
(b) of the employees of the statutory bodies/ corporation established by or under an Act of the State of Haryana, who are posted in Chandigarh or in Haryana or outside Haryana;
(iii) Children/wards (if parents are not living, dependents persons who after retirement have permanently settled in Haryana and draw their pensions from the treasuries situated in the State of Haryana;
(iv) Children/wards (if parents are not living) dependents of pensioners of the Haryana Govt. irrespective of the fact that the original home of the retirees is in a State other than Haryana or he has settled after retirement in or outside Haryana;
(v) Children/wards (if parents are not living) dependents of persons who have permanent homes in Haryana and include persons who have been residing in Haryana for a period of not less than 15 years or who have permanent home in Haryana but on account of their occupation, they are living outside Haryana.
XXX XXX XXX XXX 4. If a candidate is admitted on the basis of claim that he belongs to the State of Haryana but at any subsequent time it is discovered that his claim was false, the student shall be removed from the institution and all fees and other dues paid up to the date of such removal shall be confiscated. The Principal/Headmaster may take such other action against the student and his/her parents/guardians as he may deem proper in the circumstances of any particular case.
5. These instructions may kindly be noted carefully for compliance.'
5. The positive case of the petitioner was and which continues to be that the domicile certificate issued in favour of respondent No. 4 was not valid at the time of admission as the same was procured by giving incorrect and false information to the concerned authorities. From the pleadings of the parties, it is clearly made out that respondent No. 4 passed 10 + 2 examination from the Central Board of School Education, New Delhi. She was a student of Army Public School, Dhaula Kuan, New Delhi. Her father retired from Army as a Lt. Colonel in the month of May, 1991. Thereafter, he obtained telephone connection bearing No. 634430 at Flat No. 569, Pocket-C, Sarita Vihar. New Delhi, which is owned by his wife Smt. Raj Kishore. On June 22, 1992 her father submitted an application to the Syndicate Bank, South Block Branch, New Delhi to transfer his account with pension file to the State Bank of India, Gurgaon Branch and in the month of August, 1992 he received pension for the months of June and July. 1992 from the State Bank of India, Gurgaon Branch. Respondent No. 4 endeavoured before the learned Judge to cover her case under Clause 1 (iii) of the Circular, which clause has been reproduced above. The only question that, thus, required consideration was us to whether respondent No. 4 was dependent on her father, who in turn had permanently settled in Haryana after retirement and drew his pension from the tresuries situated in the State of Haryana. From the material placed on records, learned single Judge returned a finding that 'it is evident that till the month of August, 1992, respondent No. 3 (father of respondent No. 4), did not receive pension from any place within the State of Haryana. In the application submitted by respondent No. 3, it was given out that his family has been residing in Gurgaon since 1977 and since 1985 they were residing with the brother of his wife. Thus, it is clear that the case of respondent No. 4 was not covered by any of the clauses contained in the circular dated 10-9-1991.' For recording the aforesaid findings, learned single Judge, also relied upon the detailed report, Annexure P-12 dated February II, 1993 submitted by the S.D.O. (Civil), Gurgaon, to the Deputy Commissioner, Gurgaon as also Annexure P-13, letter dated December 8, 1992 written by the Secretary, Zila Sainik Board,. Gurgaon, to the Director, Medical College, Rohtak as also report dated March 23, 1993 submitted by the Enquiry Officer appointed by the University to go into the genuineness of the certificate produced by respondent No. 4 wherein it was recommended that the University should proceed to cancel the admission granted to respondent No. 4. Relying upon a decision of this Court in Mrs. Daisy Narula v. Government of Punjab, (1984) 3 Serv LR 690 as also another judgment in Dr. Rekha Chaturvedi v. University of Rajasthan, 1993 Supp(3) SCC, 168 : (1993 AIR SCW 1488), the learned single Judge, thus, held that respondent No. 4 did not have the pre-requisite criteria for admission up to the last date of submission of applications so as to be entitled to be admitted to the course in question against the reserved seat in pursuance of the advertisement issued by the University and that but for admission granted to respondent No. 4, petitioner would have been admitted. Learned single Judge further held that since respondent No. 3 had secured domicile certificate by supplying incorrect and incomplete information to the authorities, in terms of paragraph 4 of the circular dated September 10,1991, admission granted to respondent No. 4 was liable to be cancelled. However, relying upon a judgment of the Supreme Court in Dr. Ku. Nilofer's, case (AIR 199.1 SC 1872) (supra), she was permitted to continue.
6. Mr. Ashok Aggarwal, learned Senior Counsel appearing on behalf of the appellant-University vehemently contends that admission secured on the basis of forged documents cannot be regularised even if the concerned candidate might have completed the whole course and, therefore, despite the fact that respondent No. 4 had already put in three years of her studies, admission granted to her ought to have been cancelled. Dr. Ku. Nilofer's case (AIR 1991 SC 1872) (supra) relied upon by the learned single Judge is wholly inapplicable in the facts of the present case and, in any case, the apex Court has clearly drawn a distinction in the later decisions between a case where admission was granted on account of bona fide mistake accruing on account of no mala fides on the part of the candidate seeking admission and a case where such an admission has been secured by fraud, contends the learned counsel..
7. The contention of the learned counsel needs determination in the light of the judgments cited at the bar. Whereas, learned counsel appearing for respondent No. 4 strongly relies upon the judgment of the Supreme Court in Dr. Ku. Nilofer's case (supra), learned counsel for the appellant-University relies upon Gurdeep Singh v. State of J. & K., AIR 1993 SC 2638 and Manoj Sisodia v. M.D.U., (l994) 2 Serv LR 426. The facts of Dr. Ku, Nilofar Insaf case (supra) reveal that the appellant Dr. Nilofar Insaf and respondent No. 4, in the said case. Dr. Devraj Jain, were competitors for a single seat in the Master's Degree course in Radiology at Gandhi Medical College, Bhopal. The appellant got admission to that seat in preference to Dr. Jain because she had obtained average marks of 59.60 per cent, in the examinations of the MBBS course whereas Dr. Jain had obtained only 58.50 per cent. Dr. Jain successfully challenged the admission granted to the appellant in preference to himself in a writ petition in the Madhya Pradesh High Court. Dr. Insaf, who had, thus, forfeited the her admission in consequence of the judgment of the High Court, had filed an appeal before the Supreme Court. Dr. Jain and Dr. Insaf both completed their MBBS course in the year 1983-87. However, while Dr. Jain had been admitted into and completed that course in the Gandhi Medical College, Bhopal, the appellant had initially joined her MBBS course in the M. S. Ramayya Medical College, Bangalore, wrote the first examination and completed the first year of the MBBS course there. Thereafter, in August, 1984 she made an application for her transfer to the Gandhi Medical College, Bhopal. Her request was granted by the Gandhi Medical College with the approval of the State of Madhya Pradesh and with 'no objection' from the Ramayya Medical College. Thereafter she sat in the second and third examinations pertaining to the MBBS degree along with Dr. Jain and completed her MBBS course along with Dr, Jain in 1987 from the Gandhi Medical College Bhopal. Thereafter, both of them cleared their internship of one year and also joined house job in Radiology in the same college and completed the same in August, 1989. Both of them then applied for being admitted to the MD course. Dr. Jain's challenge to the admission granted to Dr. Insaf was limited on the ground that the transfer of the appellant from Bangalore Medical College to Bhopal Medical College in itself was invalid and that being so, she could not at all be considered to the admission which was available only to the institutional candidates. We are really not concerned with the details of grounds on which the transfer of the appellant from Bangalore to Bhopal was challenged by Dr, Jain. Suffice, however, it to mention that the appellant was in no way instrumental in securing admission on the strength of false, fabricated or incorrect information to the concerned authorities. She had made an application for her transfer to the Gandhi Medical College, Bhopal and her request was granted with the approval of the State of Madhya Pradesh and with 'no objection' from the Ramayya Medical College, Bangalore. The facts of the aforesaid case clearly reveal that the appellant was not at all herself a defaulting party in any manner whatsoever. It is on these facts that in paragraph 17 of the judgment, the Supreme Court observed that 'by now the appellant had almost completed her course and, to deprive her of her seat at this stage, apart from irretrievably harming her will not benefit Dr. Jain who cannbt now be admitted against the MD seat of 1989'. In our considered view, this judgment is wholly inapplicable to the facts of this case.
8. Learned counsel for respondent No. 4, besides relying upon the judgment of Supreme Court in Dr. Ku. Nilofar Insafs case (AIR 1991 SC 1872) (supra), has also relied upon Krishnan v. Kurukshetra University, AIR 1976 SC 376 and Rajendra Prasad v. Karnataka University, AIR 1986 SC 1448. The facts of Sri Krishan's case (supra) reveal that the appellant Sri Krishran was a teacher in the Government High School in district Jind. The University of Kurakshetra was running law classes for three years'course and had extended the facility to persons who were in service to attend the evening classes and complete the three years' course in that manner. The appellant decided to take the benefit of the facility given by the University and joined the LL.B. Part I classes some time in the year 1971. According to the University Statute a student of the Faculty of Law was given the option to clear certain subjects in which he may have failed at one of the examinations before completing the three years' course. The students were to appear in six papers each year. In April, 1972. the appellant appeared in the annual examination of Part 1 but failed in three subjects, namely. Legal Theory, Comparalive Law and Constitutional Law of India. Subsequently, he was promoted to Part II which he joined in the year 1972. Under the University Statute the appellant was to appear in Part 'II Examination in April, 1973. On April 26, 1973 the appellant applied for his Roll Number to the University in order to reappear in the subjects in which he had failed and to clear them but he was refused permission. The annual examination for Part II was to be held on May 19, 1973 and the appellant approached the University for granting him provisional permission to appear subject to his getting the permission from his employer to attend the Law Facutly. In between the appellant was prpsecuted for offences under Sections 376, 366 and 363, I.P.C. and was suspended during the period when the case was going on against him. He was, however, acquitted and was reinstated by his employer on August 22, 1972. It would, thus, be clear that on May 28,1973 as also on April 25,1973 when he had applied for his Roll Number to clear the subjects, the stigma of criminal case had been completely removed. As mentioned above, the appellant had approached the University on May 18, 1973 and wrote a letter to the University authorities giving an undertaking that if he was not able to get, the requisite permission from his employer to join the Law classes, he would abide by any order that the University may pass. On the basis of this undertaking, he was allowed to appear at the Pan II Examination on May 19, 1973. On June 20, 1973 he wrote to the University authorities that the condition on which he was to get the permission was not at all necessary and that his results may be announced. On June 26, 1973 the respondent informed the appellant that since his percentage was short in Part I, his candidature stood cancelled. Thereafter, there was long drawn correspondence between the appellant and the University but the appellant was refused admission to LL. B. Part III', Classes. It is in these circumstances that he approached the High Court. However, his writ was dismissed by the High Court in limine. The stand of the respondent-University in the High Court as also the Supreme Court was basically that the appellant had been involved in a criminal case and, therefore, the Head of Institution could not give the certificate in the prescribed form that the appellant bore a good moral character. It was also mentioned that since the appellant was short of the requisite percentage in LL.B. Part I, he could not insist on his being admitted to Part II examination and lastly that sicne the evening classes were held to benefit the members of the services and it was incumbent upon the appellant to have obtained permission of his superior officers and he did not do so, the University was well within its rights in refusing him permission to appear at the Part II examination or in admitting him to Part III Law course. It was urged before the Supreme Court that once the appellant was allowed to appear in LL.B. Part II, Examination held on May 19, 1973 his candidature could not be withdrawn for any reason whatsoever in view of the mandatory provisions of Clause 2 (b) of the Kurukshetra University Calendar Vol. I, Ordinance X under which the candidature could be withdrawn before the candidate took the examination. It was also urged that the order of the University was mala fide because the real reason for cancelling the candidature of the appellant was the insistence of the District Education Officer that the appellant should not have been admitted to the Law Faculty unless he had obtained the permission of his superiors. On the aforesaid facts and contentions, as noticed above, the apex Court held that 'there was ample time and opportunity for the University authorities to have found out the defect. In these circumstances, therefore, if the University authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I Examination in April, 1972 , then by force of the University Statute the University had no power to withdraw the condidature of the appellant.' We do not find from the facts, as have been reproduced above, any fraud, cheating or deliberate mis-statement of facts having been attributed to the appellant and, therefore, are of the considered view that the facts of this case are entirely distinguishable from the case in hand.
9. The facts of Rajendra Prasad's case (AIR 1986 SC 1448) (supra) would reveal that some students from Rajasthan, though ineligible, were admitted in certain Engineering Colleges and the admission in some cases was made for sake of capitation fee. The students had pursued the course for about four years under the orders of the High Court and Supreme Court and it is the Colleges only which were responsible for wrongful admission of the students were ineligible for admission, they were allowed to continue their studies. Suffice it to say that the facts of this case also do not reveal any malpractice indulged in by the students in securing admission. They had not supplied any incorrect information to the University authorities as well and it is the Colleges which, with a view to obtain capitation fee, had ignored the eligibility criteria. The facts of this case as well, in our view, are distinguishable and cannot apply to the facts of the case in hand.
10. In Gurdeep Singh's case (AIR 1993 SC 2638) (supra), the Supreme Court held that 'unduly lenient view of the Courts on the basis of human consideration in regard to selection of candidate for admission to educational institution by adopting illegal means on the part of the authorities has served to create and impression that even where an advantage is secured by stratagem and trickery, it could be rationalized in Courts of law. Courts do and should take human and sympathetic view of matters. That is the very essence of justice. But considerations of judicial policy also dictate that a tendency of thisk kind where advantage gained by illegal means is permitted to be retained will jeopardize the purity of selection process itself; engerder cynical disrespect towards the judicial process and in the last analyses embolden errant authorities and candidates into a sense of complacency and impunity that gains achieved by such wrongs could be retained by an appeal to the sympathy of the Court. Such instances reduce the jurisdiction and discreation of Courts into private benevolence. The facts of the case aforesaid reveal that a sport was not included in the list of approved sports at the cut-off date when applications were invited for admission to MBBS and with regard to a single candidate the same was introduced from retrospective date. It was held by the Supreme Court that 'such an admission was granted only by adopting illegal means.' The same was quashed.
11. While sitting singly, in Manoj Sisodia's case (1994 (2) Serv LR 426) (supra), wherein petitioner of the said case had forged eligibility certificate by mentioning 2.59 marks instead of 237 out of 500, I had held that 'even though he had undergone al most entire course of five years, his admission to B.A.M.S. course should be cancelled.' The question that was posed for answer in the aforesaid matter was as to whether the plea of the petitioner based upon equitable and compassionate grounds as he had completed almost the entire course, deserved to be upheld despite the positive stand of the respondent-University that he had obtained such an admission by forging, the original document with regard to eligibility and, thus, he could not be permitted premium on his fraud. The matter was decided against the petitioner and while doing so, I had relied upon various judgments of the Supreme Court, referred to in the report.
12. Learned counsel appearing for the appellant-University has also relied upon various judgments of the Supreme Court in State of Maharashtra v. Minno Noazer Kavarana, 1990 (1) RSJ 814 : (AIR 1989 SC 1513). The State of Punjab v. Renuka Singh, (1993) 6 JT (SC 524 : (AIR 1994 SC 595) and State of U.P. v. KM Ramona Perhar, 1995 (1) RSJ 95 : (1994 AIR SCW 4390), to contend that additional seat could not be created even by interim orders passed by this Court. These judgments have been cited for the sole reason that the appellant-University is unable to cater for an additional seat and if the petitioner succeeds in getting her provisional admission regularized and which, even as per the stand of the University, should be regularized, respondent No. 4, having obtained admission by fraud, admission by University to respondent No. 4 should be cancelled.
13. In view of the detailed discussions made above, we thus, hold that admission granted to respondent No. 4 by the University could not be ordered to be regularized and to that extent only the judgment of the learned single Judge deserve modification.
14. Coming now to the appeal filed by Ms. Yang Chan Kishore, it appears to us that the same has been filed during the pendency of the Letters Patent Appeal filed by the University and, perhaps, on an inclination that the order regularizing her admission passed by the learned single Judge is likely to be set aside. It is only faced with this situation, it appears that she filed the Letters Patent Appeal L.P.A. No. 832 of 1995 filed by the University came up for motion hearing before this Bench on Now. 28, 1995 when notice of motion returnable for Dec. 11, 1995 was issued. It was ordered that the appellant might serve the respondents' counsel. On the adjourned date, matter was further adjourned to December 18, 1995 by consent after hearing the matter for sometime. L.P.A. No. 897 of 1995 by the appellant (respondent No. 4 Yang Chand Kishore) came to be filed on Dec. 16, 1995. Not only that, the learned single Judge has returned a firm finding of fact, based upon the pleadings of the parties, that before the month of August, 1992, father of respondent No. 4 did not receive pension from any treasury in the State of Haryana and that respondent No. 4 was not a bona fide resident of Haryana State. The findings to the effect aforesaid are also based upon the detailed report, Annexure P-12, dated Feb. 11, 1993 submitted by the S.D.O. (Civil), Gurgaon, to the Deputy Commissioner, Gurgaon as also Annexure P-13, letter dated Dec. 8, 1992 written by the Secretary, Zila Sainik Board, Gurgaon to the Director, Medical College, Rohtak, as also reported dated March 23, 1993 submitted by the Enquiry Officer appointed by the University to go into the genuiness of the domicile certificate produced by respondent No. 4. We have even independently gone through the pleading of the parties and the findings in the reports, detailed above and are absolutely convinced that father of respondent NO. 4, who was actually residing at Delhi, had made all out efforts to clothe his daughter with the eligibility criteria i.e. bona fide resident of Haryana State simply with a view to secure admission for her and in fact and reality neither he nor his daughter were bona fide residents of Haryana State nor were they covered under any clause, referred to in circular dated Sept. 10, 1991. This Letters Patent Appeal is totally devoid of merit and thus, deserves to be dismissed and is accordingly dismissed.
15. Before we conclude, we would like to express sympathy for the predicament of respondent No. 4 but the situation that she is faced with is the result of her own making or that of her father. With a view to uphold the purity in the academic process, we have no choice but for to quash the admission granted to respondent No. 4 subject, only to the discretion of the Vice-Chancellor of the University, who, in the light of the relevant Rules, if permissible and feasible, might crate an additional seat after seeking approval from the Indian Medical Council. All that we might further observe is that if such a permission is sought from the Indian medical Council, the said Council would consider the matter sympathetically. Our observation with regard to discretion of the Vice-Chancellor in creating an additional seat after obtaining approval from the Indian Medical Council is based upon only one reason, i.e., it is primarily the father of respondent No. 4, who, even though wanting otherwise, has landed his daughter in such a predicament that her whole career is at stake.
16. Parties are, however, left to bear their own costs.
17. Order accordingly.