HIMACHAL PRADESH UNIVERSITY Vs. SUSHIL KUKREJA AND ORS.

JUDGEMENT

(1.) THIS judgment shall dispose of the present appeal and also the cross -objections aforesaid preferred against the judgment and decree dated 28th November, 2002, passed by learned Additional District Judge, Shimla, in Civil Suit No. 22 -S/1 of 2001/96.

(2.) APPELLANT -Himachal Pradesh University, hereinafter referred to as 'defendant No. 2', is aggrieved by the decree for the recovery of Rs. 4 lacs passed by learned trial Court against it. The challenge to the judgment and decree is on the grounds, inter alia, that on account of misreading and mis -appreciation of oral as well as documentary evidence available on record, the judgment and decree under challenge is vitiated and as such, is not legally sustainable. In the absence of any evidence to show that this Court during the course of proceedings in CWP No. 572 of 1984 filed by the plaintiff ever directed defendant No. 2 to re -evaluate and recheck the answer sheets of the plaintiff and rather the writ petition was dismissed by this Court vide judgment dated 28th December, 1994, therefore, the trial Court was not justified in decreeing the suit. The respondent/plaintiff was not a party in CWP No. 514 of 1984, titled Naresh Sharma vs. H.P. University nor CWP No. 572 of 1984 he filed ever consolidated therewith and as such he could have not been granted the benefit of the orders passed in CWP No. 514 of 1984. The plaintiff as per his own admission having been practicing as an Advocate in the High Court, was in touch with the proceedings in CWP No. 514 of 1984. The said writ petition continued to be listed on different dates and ultimately decided on 18th August, 1987. Before that rechecking of answer scripts of the candidates in the waiting list was conducted and the candidates at Sr. No. 32 to 45 of the merit list were admitted to the MBBS course on 28th January, 1985 and 19th July, 1985. Affidavits Exts. D2W -1/J and PW -7/D to this effect were also filed in the High Court in that writ petition. The plaintiff, an Advocate, was, therefore, in touch with the proceedings and as such the findings to the contrary recorded by learned trial Court are not factually sustainable, without any evidence on record that 223 marks were cut -off marks for the purpose of admission to MBBS course during the academic year 1984 -85. The result of rechecking of papers conducted on different occasions by different experts viz -a -viz different key -answers of different subjects is said to be taken into consideration wrongly for equalization and comparison of the results based on such rechecking. The findings that defendant No. 2 -University was negligent in performing its duties are perverse being not supported by the record. The evidence available on record is said to be misread and overlooked. The findings and the conclusions arrived at are based upon surmises and conjectures. The suit was hopelessly time barred and the findings that the same is within time, are also said to be wrong. The Court below allegedly erroneously concluded that the plaintiff was entitled to get admission to MBBS course during the academic year 1984 -85.

(3.) NOW if coming to the factual matrix, the plaintiff sought admission to the MBBS course in the year 1984. The entrance test for the said course was conducted by respondents No. 2 and 3, i.e., State of Himachal Pradesh and Indira Gandhi Medical College and Hospital, respectively, hereinafter referred to as 'defendants No. 1 and 3' through defendant No. 2. After declaration of the result, the plaintiff was shown to have secured 223 marks. Several candidates including the plaintiff challenged the evaluation of question papers so made by filing writ petitions in this Court. The plaintiff filed CWP No. 572 of 1984, titled as Sushil Kukreja vs. H.P. University and others. The question relating to correctness or otherwise of the key -answers was also subject matter of adjudication in CWP No. 514 of 1984, titled Miss Kiran Malhotra vs. H.P. University. Consequent upon interim direction in CWP No. 514 of 1984 the answer sheets of the petitioners in that writ petition and also that of plaintiff were re -evaluated by a committee constituted by defendant No. 2. The plaintiff allegedly secured 225 marks after re -evaluation of his answer -sheets against the cut -off marks of 223. He, therefore, became entitled to be declared successful candidate and ultimately to admission to the course for the academic year 1984 -85. The improvement in his score, however, was neither brought to the notice of this Court by defendants No. 1 and 3 nor defendant No. 2 on different dates during the course of proceedings in CWP No. 514 of 1984. In the affidavit filed by the defendant -University on 18th July, 1987 on the record of CWP No. 514 of 1984, the plaintiff was shown to have obtained 225 marks against the cut -off marks allegedly 223. This Court, however, was informed that one Kashmir Singh, who secured 229 marks could only be admitted to the course and thereby allegedly misled this Court. Said Shri Kashmir Singh was also admitted to the course. During the course of proceedings in CWP No. 514 of 1984, it is petitioner Miss Kiran Malhotra, who was directed to be admitted to the course. The plaintiff allegedly was also entitled to seek admission on the basis of his revised score, however, deprived on account of true facts having not been placed before the Court by the defendant -University and defendant No. 3 -College. The dream of the plaintiff and his parents was that he should join medical profession. He, on account of the negligence attributed to the defendants, however, was constrained to finish his B.Sc. with medical subjects and thereafter did LL.B. He started practice in the year 1990 -91 and allegedly was struggling as a junior Advocate without any independent practice. The first choice of profession by selection was medical and his profession of law is not of his own volition, but by accident caused on account of various acts of omission and commission attributed to the defendants. The writ petition bearing No. 572 of 1984 filed by him came to be dismissed by a Division Bench of this Court vide judgment dated 28th December, 1994 with the observations that the petitioner cannot escape the blame for the aforesaid injustice, though long pendency of this writ petition in this Court is the reason for injustice. He should have taken steps to bring the matter to the notice of this Court at the earliest. Also that had the Court been apprised of the improved standing of the plaintiff in the merit list, the writ petition he filed would have been heard and decided long back and the benefit thereof made available to him. Also that he did not take any interest in the matter at the appropriate time and permitted the petition to remain pending. This judgment further reads as follows: