S. RAVINDRA BHAT, J
(1) THE issue involved in the present Letters Patent appeal, against the judgment of a learned Single Judge dated 27. 9. 2004 in WP 14451/2004, is regarding the entitlement of the private unaided educational institutional to fill "drop out" seats after second counselling. The appellant unsuccessfully assailed the conditions imposed by the second respondent that after second counselling, such vacant seats cannot be filled.
(2) THE appellant, a society registered under the Society Registration Act is a private unaided college imparting education in different courses. The present litigation concerns admission to the first year B. Tech. course. The appellant is affiliated to the first respondent (hereinafter called 'university')which was established under Act 9 of 1998 by the Delhi Legislature.
(3) ADMISSION to courses in different institutions of the University is regulated in terms of the programmes published in the form of Information bulletin by the University and as per the orders and directives of the second respondent (hereafter called "the Government of National Capital Territory of delhi" through the Directorate of Technical Education, hereinafter called "the directorate".
(4) THE admission programmes and procedures formulated by the university detailed the method to be adopted for admission of student of various courses offered by the affiliating institutions. The broad pattern appears to be that a common entrance examination is held in respect of a class of course (e. g. Engineering). The eligibility of candidates is spelt out by the information Bulletin. The schedule for the entrance examination is indicated in the Information Bulletin. The participating candidates are assigned rankings on the basis of performance in the entrance test. Thereafter, the procedure known as "counselling" is undertaken in which every student, according to ranking is offered admission to the course, Institution-wise. The second round of counselling is held after the lapse of an interval of time, from the last date of first counselling. The object of this, second, round of counselling is to minimise vacant seats which occur on account of candidates opting out of the institutions which they initially chose, due to their securing admission in places perceived to be better by them. The other objective is also to endeavour to fill up seats left out in the first round of counselling. The Information Bulletin for the Academic year 2002-03, which governed admissions for that year, by para 14. 8 enabled transfer of vacant seats after the third round of counselling to the management of the self-financing privately managed institutions for the purpose of being filled up by them, an outer limit in time, by way of a last date namely, 23. 8. 2002 however was stipulated in that regard.
(5) AFTER the judgment of the Supreme Court in Islamic Academy v. State of karnataka, 2003 (7) SCC 271, the respondents continued with the existing policy as indicated by the Directorate dated 23. 8. 2003. In that order, the existing procedure for filling up of seats in private unaided institutions was reiterated with the modification that privately managed self financing institutions could fill up remaining/vacant seats available as on that day, namely, 28. 8. 2003 in terms of the judgment of the Supreme Court subject to the restriction that the total number of seats filled by them were not to exceed 50% of the sanctioned intake for each programme.
(6) THE Directorate's order dated 28. 8. 2003 also stated as follows:
"these admission policy guidelines are issued in partial modification of the Govt. orders on the subject only to comply with the orders of the hon'ble Supreme Court as referred above to make certain emergent situations and shall be applicable only for the academic year 2003-2004. This would also be applicable in respect of Institutes under the Department of Training and Technical Education, Govt. of NCT of Delhi affiliated with ggsip University. "
(7) ADMISSIONS to various courses in the appellant institution, were made in tune with the above guidelines by the University. As a result, the appellant could and apparently did fill up vacant seats left over after the second round of counselling.
(8) PURSUANT to the directions of the Supreme Court, in the Islamic Academy case, guidelines were formulated by the Directorate and made known to all concerned on 10. 2. 2004. The relevant portions of that order hereinafter called 'the impugned order') are extracted below:
"a. Admission ggsip University shall conduct the Common Entrance Test (CETs) for all aicte approved Degree Level Programmes offered at its affiliated institutes and shall also conduct admissions in respect of Delhi seats i. e. 85% of the sanctioned intake except for BHMCT for which 15% of all India seats shall also be filled up by the GGSIP University. The merit of students in the CET shall be the criteria for admission. GGSIP University shall ensure that the CET is conducted in a just and transparent manner and the admission of the candidates is done on the basis of their rank and merit. Appropriate counselling up to two rounds, as per the current practice, shall be provided by the University in a manner so that seats in different professional Institutes are filled up through a fair, just and transparent manner. The schedule of counselling be so arranged as to minimise the possibility of drop outs. The drop out seats subsequent to second counselling shall not be filled up by the University or by the concerned Institute in any programme. xxxx xxxx xxxx the admission from the merit list of the Common Entrance Test in various courses/affiliated Institutes will be published on the website of the university. A copy of the same is also to be displayed on the Notice Board of the University for the information of the candidates. The affiliated Institutions will not be authorised to make any admission after the cut-off date fixed by the University for the purpose is announced. The seats remaining vacant subsequent to this cut-off date will remain vacant. . . . . . . . . "
(9) THE appellant's grievance is in respect of the above embargo placed upon the affiliated Institutions entitlement to fill vacant seats after the second round of counselling.
(10) A cumulative reading of the stipulations contained in the Information bulletin 2004-05 published by the University shows that the entrance test was mandated [and held] on 13. 6. 2004. The date of declaration of result, as per schedule-adhered to was 26. 6. 2004. As per para 5. 2, the detailed schedule of counselling/admission, region wise/category wise, depending upon the rank of the candidate in the merit list displayed was to be displayed along with the merit list on 9. 7. 2004. Para 7. 1. l. prescribes that 75% of the sanctioned intake in respect of non-minority self-financing Institutions, like the appellant are reserved for Delhi region candidates; 10% of the sanctioned intake are reserved for managements to be filled by the Institutions separately on the merit drawn on the basis of the CET. The balance 15% was, as per para 7. 1. 2, to be filled from amongst candidates outside the Delhi region.
(11) PARA 15. 3 provided that in respect of, inter alia, the B. Tech Degree course the date of commencement of first round counselling was to be 16. 7. 2004. Paras 15. 5 and 15. 6 deal with the procedure of counselling, and the first round of counselling after declaration of result of the written test/entrance exam. Paras 15. 7 and 15. 8, relevant for the present purposes, are extracted below:
"15. 7. Procedure of Second Counselling the vacancies of all programmes will be notified along with schedule of second counselling on 9. 8. 2004 at 5. 00 pm. The second counselling will be held at the same venues where the first counselling was held. The counselling will commence from rank one onwards for all categories and the seats will be allotted on merit based on the rank of the candidates in the merit list. In the second counselling, even those candidates, who were absent in the first counselling will also be permitted to opt/seek admission against the resultant vacancies. Counselling/registration Fee of Rs. 200/ is payable afresh by every candidate to enter the counselling hall/venue. Candidates who got admission during first counselling are also advised to essentially attend second counselling if they intend to avail the benefit of change of discipline/institute on the basis of their merit during second counselling against drop out/vacant seats. A candidate who fails to exercise the option in person during Second counselling, shall forfeit his/her right for a vacant seat even if he or she had higher rank, for which the University will not be responsible. In case the candidate opts for transfer from one institute to another institute or for change of programme during second counselling, his/her fee will be adjusted after deduction of 20% of the amount of fee already deposited by him/her at the time of admission during the first counselling. However, there will be no deduction of fee for a change of discipline in the engineering programme in the same institute during the second counselling. Dropouts after second round of counselling 15. 8. If any vacancy/vacancies arises after second counselling the same shall not be filled up by University or by the concerned Institute in any programme. The last date of admission including management seats will be 23. 8. 2004. "
(12) THE schedule for the second round of counselling in the present case was published on 9. 8. 2004. The dates for counselling were 18-22, August, 2004 [in respect of reserved category candidates] and 23-28 August, 2004 in respect of general candidates.
(13) THE appellant had total annual intake of 360 students till the end of the academic session 2003-2004. This was increased on 25. 6. 2004 pursuant to approval by the All India Counsel for Technical Education (AICTE).
(14) THE University held the Common Entrance Test (CET) and conducted the various procedures leading to the admission of students in various affiliating institutions, including the appellant. The appellant institution admitted all the candidates so counselled by the University; it also appears to have filled the 10% management quota allowed to it as per the policies of the respondent.
(15) IN this background, the appellant approached this Court under Article 226 by filing WP No. 14451/04 on 28. 8. 2004. An appropriate writ was sought for quashing of the impugned order as laying down under restriction in giving admission to students. The appellant asserted that the condition imposed by the respondents, namely, the prohibition or embargo imposed by the Directorate in its impugned order, violated its fundamental right under Article 19 (i) (g) of the Constitution of India and was also arbitrary.
(16) AFTER issuance of notice, the University as well as the Directorate appeared and supported the condition imposed in the order dated 10. 2. 2004 as reasonable and in public interest. It was alleged by the Directorate that if a third round of counselling is permitted to be undertaken by the management, the result would to defeat the objective of the scheme inasmuch as the management would proceed to charge capitation fee. The Directorate also averred that the mere possibility of certain drop out vacant seats existing, to an extent of about 2% is not a sufficient ground to invalidate the condition, of no admission after second counselling, which "was designed and put in plea keeping the larger public interest in perspective.
(17) THE appellant, before the learned Single Judge had filed rejoinder on 22. 9. 2004, sought to introduce certain pleas to the effect that vacant seats arising out of the withdrawal of some seven students were to be considered and that out of these, in fact, four vacant seats had occurred during the stage of second counselling itself.
(18) IN the judgment under appeal, the learned Single Judge after noticing the contention of the appellant about existence of a fundamental right to establish and administer the educational institution, under, Article 19 (i) (g) of the Constitution, following the decision of the 11-Judge Bench of the Supreme court in TMA PAI Foundation v. State of Karnataka, VI (2002) SLT 313=2002 (8)SCC 481, held that the subsequent judgment in Islamic case had directed that the drop out seats subsequent to second counselling shall not be filled up by the university/concerned Institute. The learned Single Judge had also relied upon judgment of the Supreme Court in Neelu Arora v. Union of India, I (2003) SLT 802=2003 (3) SCC 366, to the effect that there cannot be any scope for third round of counselling. These findings led to the rejection of the writ petition.
(19) MR. Ravinder Sethi, learned Senior Counsel for the appellant submitted that the judgment under appeal is erroneous inasmuch as it has proceeded on the assumption that a third round of counselling was prohibited as per the decision of the Supreme Court in the Islamic Academy case. For that purpose, he has taken us through the majority judgment in that case. He next submits that in the case of the appellant institution, there are about seven vacant seats after the second round of counselling as on 15. 9. 2004. The learned Counsel submits that if one keeps in mind the previous policy contained in Bulletin for 2003-04 and the declaration of law in the TMA PAI Foundation case, the management of a private unaided institute enjoys far greater autonomy than an aided institute. Hence if there are vacant seats in respect of first year courses, larger public interest would be sub-served if they are filled through another procedure whether it is by way of counselling or any other method adopted by the university itself. He submitted that as far as the mechanics of conducting such a procedure are concerned, there would be no difficulty at all since the university, being in-charge of the CET would have full particulars as to the number of students who opted for various courses in different institutes and therefore, would be in a poition to exactly carry out the procedure without undertaking an elaborate exercise.
(20) LEARNED Counsel further submits that the decision in Neelu Arora's case relied upon by the learned Single Judge was not apposite since it was concerned with admission to the 15% all India quota in medical courses, that do not expressly set apart by the Supreme Court. He laid great stress upon the balancing of the right of the Institute as well as the rights of the students who could not secure admissions and are waiting in large numbers. According to him, the interests of such students is paramount since they stand to lose at least one year on account of the impugned order prohibiting the appellant and other institutes to fill up vacant seats after the second round of counselling.
(21) LEARNED Counsel for the appellant lastly submits that there is no rationale in insisting that seats which fell vacant after the second round of counselling ought not be filled. He submitted that apart from the other considerations mentioned by him, the non-filling of such seats would also adversely impact the economics of the institute itself which would be denied revenue for succeeding years in respect of those vacant seats.
(22) MR. V. K. Shali, learned Counsel for the respondent No. 2, submitted that the appellant cannot take advantage of an inadvertent error which appears to have crept into the judgment under appeal. He fairly conceded that the islamic Academy decision does not, in terms, prohibit the filling up of vacant seats in private unaided institutes, after the second round of counselling. He however submits that such a position itself is not determinative of the issue. According to learned Counsel, the rights of the institution projected under article 19 (i) (g) have to be balanced with the overall public interest in ensuring that cut-off date is conformed to. He submitted that various steps in the admission procedure designed by the respondents ensure that there are a minimum number of vacant seats/drop outs. Such vacant seats/drop out seats were filled up at each succeeding stage in a continuous process which provided sufficient time gap for the filling up of vacant seats between the first round of counselling and second round of counselling. Having regard to this, an overall cut-off date was prescribed, namely, 28. 8. 2004 after which no further admissions were permitted. He drew our attention to the fact that the academic session as per the Information Bulletin actually began, in the present case on 2. 8. 2004. Learned Counsel also submitted that prescription of an embargo upon the filling up of vacant seats after the second round of counselling is neither reasonable nor arbitrary. He has relied upon the decision of the Allahabad high Court reported as Dr. Naveen Jamval v. Dr. Arvind Kumar Kenkane, 2000 all LJ 1552, affirmed by the Supreme Court in Dr. Arvind Kumar v. Dr. Naveen Kamval, (2001) 8 SCC 357. He also relied upon the judgment reported as Supreet Batra, (2003) 3 SCC 370. Learned Counsel also submitted that mere fact about certain number of seats remaining vacant would not render that condition invalid since it is a part of a larger scheme which ensures equitable allocation of seats to candidates on the basis of merit. He submits that as in the case of any scheme, there could be no mathematical precision and the margin of error, namely, certain seats remaining unfilled, alone would not render the scheme unviable. According to him, the permissibility of a third round of counselling would impinge on the principle of finality and result in a demand for further counselling consequent to drop outs seats on the basis of such third round. As far as the submissions with regard to economics of the institute was concerned, learned Counsel pointed out the conditions in the Information bulletin which show that no tuition fee refund is permissible in the case of a student who opts out after the second round of counselling, and only 50% of such refund is permissible after the first round of such counselling.
(23) LEARNED Counsel further submitted that the conduct of the appellant dis-entitles it to any relief since it had indulged in certain malpractices with regard to the admission in the 10% management quota. He lastly submitted that the appellant was in any case guilty of laches and, therefore, not entitled to succeed.
(24) MR. G. D. Goel, learned Counsel for the University adopted the submissions made on behalf of respondent No. 2. He drew our attention to the fact that the total number of 18,000 students had appeared in the CET and that the 2,250 seats available for allocation in the first round of counselling had in fact been allocated; that only drop outs after the first round of counselling were considered and given admission as per the second round of counselling. Mr. Goel also drew our attention to a scheme, of "lateral entrance" whereby students in the diploma courses are permitted admissions to B. Tech courses in the second year, to the extent of 10% over and above the sanctioned intake of the institution. According to him, this would ensure that seats can be filled even at a lafer stage.
(25) THE judgment of the Supreme Court in the TMA PAI Foundation case undoubtedly declares that the right to establish and administer educational institutions, inheres in favour of non-minority communities; it is a part of article 19 (i) (g). Hence, there can be no dispute about the existence of this right to establish and administer educational institutions. That judgment has also directed that private unaided educational institutions ought to enjoy considerable autonomy in functioning. The parameters within which admissions of such institutions could be regulated were indicated in paras 68-71 (SCC reports) of that judgment. These were the subject matter of interpretation by a latter Constitution Bench in the Islamic Academy case.
(26) A reading of the judgment in the Islamic Academy case would indicate that the concerned State Government authorities were empowered to stipulate management quotas having regard to local needs, in respect of minority and non-minority institutions. Furthermore, the judgment also indicated the method of filling up of seats in such private unaided institutions. One such mode was the holding of Common Entrance Test by an association of private unaided institutions. In the absence of such an association, the Court clearly held that each private unaided institution had to admit students from amongst the list drawn up by the State, from among the candidates who take its CET. The Court also directed the setting up of a Committee to monitor the examinations conducted by the association of private institutions and another Committee to approve the fees structure in the private institutions.
(27) BEFORE examining the reasonableness and legality of the conditions in the impugned order, we have to keep in mind that the second respondent had issued the order on 10. 2. 2004. The appellant was aware of the same and had in fact offered its seats for being filled up through the process indicated by the second respondent and conducted by the first respondent. No reservation of grievance was made at the stage when the preliminary steps towards the holding of the CET, publication of results of the examination, first round of counselling etc. were held. In fact, the appellant appears to have admitted the students sent by University without demur. Nothing prevented the appellant from raising the issue of legality of the impugned condition immediately after issuance of the order of 10. 2. 2004, or within reasonable time thereafter. It however, chose to wait till almost the last date of the second round of counselling to approach the Court claiming infraction of its right. This aspect assumes significance in our opinion and by itself would amount to acquiescence, by conduct. A proper administration of the scheme would necessarily imply that rights and expectations of all institutions and all students are balanced in such a manner that the CET scheme ensure admission of maximum number of students within reasonable time after the commencement of classes. The appellant, however appears to have woken up to its rights after all the steps envisioned in the scheme had taken place and then mounted the challenge leading to the present appeal. We, therefore, feel that the writ petition ought to be rejected on the ground of laches and acquiescence itself. The examination of legality of the conditions impugned by the appellant is nevertheless been gone into since the learned Single Judge admittedly considered it and did not reject the petition on the ground of delay.
(28) IN the present case, there is no dispute about the power of the respondents to prescribe the admission procedure; likewise the extent of the quota (namely 10%) available for admission by the management is not under challenge. What is being challenged is unreasonable and arbitrary is the condition prohibiting filling up of vacant seats after the second round of counselling. These too, in other words, the appellant has no-grievance with regard to the determination of management quota or even the basic procedure stipulated by the respondents for the purpose of filling its seats namely holding of CET, publish of its results, counselling by the respondents and the admission of such students pursuant to the first and second rounds of counselling.
(29) CONSIDERING the complaint for infraction of fundamental right, particularly, any of the terms under Article 19 or the right under Article 14, the court has to keep in mind the nature of the right, the extent of the restriction, the rationale for such restriction and the extent to which the restriction displaces the right. In the case of Article 14, the consideration is whether the state action can be founded on the doctrine of classification and whether it amounts to arbitrariness.
(30) A reading of the policy contained in the scheme, particularly, the significance of chronology of events indicates that the respondents have sought to keep in mind the multi-farious considerations. The holding of an integrated, admission procedure containing the Common Entrance Test and admission through counselling is aimed at ensuring that a candidates is not required to attend admission processes conducted in by individual institutions. The centralized and integrated procedure of an entrance exam and counselling optimizes chances of both the students in securing the best available option of admission in an institution on the one hand and also maximises educational institutions' chances of filling up its seats. Therefore, advisedly the appellants have not challenged the method or procedure stipulated by the respondents.
(31) IN the absence of a basic challenge to the procedure itself, how does a challenge to one of the conditions, namely, prohibition from filling up of vacant seats after second counselling have to be viewed. That condition is again to a cut-off date or point. Similar cut-off dates or points in time have been indicated in the scheme such as the date of the entrance examination; the date on which the results are published; the period within which first counselling was held and the period within which the second counselling was held. Lastly and perhaps importantly, the date on which classes for the course are to commence has also been indicated by the University. If one were to view prohibition from filling up of seats after second counselling as a restriction, even the dates within which the first and second rounds of counselling were held would also for similar reasons be open to scrutiny. However, they have not been challenged.
(32) THEREFORE, the prohibition from filling up of vacant seats after second counselling has to be therefore viewed in the context of the policy evolved by the second respondent. That policy envisions appellants up to the end of the second round of counselling. Inherent in this procedure is the consideration of filling up of vacant/drop out seats as is evident from a reading of paras 15. 6 and 15. 7. The system, if one may say so, is designed in such a manner that the maximum number of students get exposed to the maximum number of chances to secure admissions in the institution of their choice. The second round of counselling and the time gap between the first and second round have been kept with the specific objective of ensuring that students deciding to switch from one institution to the other, make up their mind and the seats left vacant in the first round of counselling are filled up during the second round.
(33) THE system of counselling appears to have been introduced in regard to admissions in the case of the 15% all India quota for medical seats, in the year 1993 by virtue of directions of the Supreme Court in Anand S. Bijli v. State of kerala, 1993 (3) SCC 80 at page 82. The Supreme Court had in that judgment sought to mitigate the hardships faced by the candidates for admission to medical colleges for mandating their option of counselling, in which the students were to be called in the order of merit at specified venues and asked to indicate the choice of their institution. The slot chosen by a candidate would then get closed and the subsequent candidates would be offered a choice from among the remaining seats.
(34) IN the judgment reported as Rajiv Mittal v. Maharshi Dayanand university, I (1998) SLT 130=1998 (2) SCC 402 at page 406 the Supreme Court observed upon the system of counselling as follows:
"the system of counselling for the purpose of granting admission to the various medical colleges in the State is now regarded as a most equitable one where options are given of various seats to the students in accordance with their overall merit position in the combined entrance examination is competitive in nature. If as a result of first counselling, all the seats, which are available, are filled then no further counselling takes place. Where however some seats become available, then it appears that second, third or if the need arises fourth counselling does take place but in such a manner that normally there should be no delay into commencement of the course of study. Furthermore unless and until counselling takes place, no candidate who has been granted admission on the basis of the counselling is allowed to change his college merely because a seat in another college has fallen vacant. The seats, if any, which fall vacant, can only be filled if and when counselling takes place where the candidates who have already been selected may have an option of shifting to another college. An appropriate analogy of this system is that of a booking chart for a dramatic performance which has to take place in the future. The people standing in the queue reserve or book their seats out of those which are available according to their preference. Once the chart fills up the booking closes. Only sometimes, if tickets are returned they may be re-issued. But once the dramatic performance starts no one is allowed to enter. Similarly counselling for seats to medical colleges must stop once the courses of study commence. "
(35) IT would thus be clear that the scheme of counselling itself has been looked upon as equitable and reasonable one among the available procedures for admission of students in various institutions.
(36) IN Dr. Naveen Jamval's case (supra), the Allahabad High Court while setting aside the direction of a learned Single Judge, who had required one further round of counselling after the last round of counselling prescribe, commented on the undesirability of that course by stating that it would virtually set a chain reaction in motion whereby candidates participating in the second round of counselling would like to participate in third round of counselling that would further lead to vacancy of certain seats and in turn lead to the demand of a fourth round of counselling ultimately delaying the admission process and also disturbing the entire academic schedule. This decision was upheld by the Supreme Court in Arvind Kumar Kenkane case (supra) with the following obse
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rvation: "it is clear that once an option is exercised by a candidate on the basis of which he is allotted the subject and- thereafter that candidate is allowed to participate in subsequent counselling and his seat becomes vacant, the process of counselling will be endless and, as apprehended by the High court, it may not be possible to complete the academic course within the stipulated period. Similar observations have been reiterated in the judgment reported as neelu Arora (supra) where it is also held that the admission procedure should ensure that broad equality will have to be achieved when insisting upon mathematical exactitude. " (37) IF one keeps above observations in mind, it would be apparent that the system of counselling itself is designed to maximize allocation of seats in various institutions. However, that cannot imply that the process is endless; it has a definite terminus quo in point of time. In the present case, the date of commencement of classes was 2. 8. 2004. In spite of this, the second round of counselling was envisaged and that terminated on 28. 8. 2004. This fact is essential while considering the challenge to the reasonableness of the impunged condition. It shows that outer limit of acceptability of student's absence from class after they commenced in the first term was about four weeks. (38) ANOTHER aspect of the matter is that the prohibition from filling vacant seats after the second counselling, appears to be dictated by certain policy considerations. The permissibility of a further round would mean that there would be further drop outs from other institutions leading to complaints by them and uncertainty in the admission process, as described in the judgment quoted above. Such an uncertainty at the commencement of the academic year itself, in our opinion, is unacceptable. (39) LEARNED Counsel for the appellant is right when he submits that the decisions dealing with counselling essentially relate to medical college admissions in the 15% all India quota. Yet that by itself does not detract from the logic dictated in not having any further admission procedure after the second counselling. Furthermore, the observations of the Supreme Court are a sequel to the admission processes which were introduced by the Courts mandate. This process of admission through counselling has been in place for over 10 years. Whenever there have been challenges or distortions in the scheme, the Supreme Court has dealt with it. The present scheme has to the extent of adoption of the system of counselling, modelled itself on that procedure. We, therefore, find nothing arbitrary or unreasonable so as to warrant interference with the scheme. The impugned condition contained in the order dated 10. 2. 2004 is, therefore, valid. (40) WE make it clear that we have examined only the legality of the prohibition from admitting students after the second round of counselling, in the present appeals. We have not gone into other factual submissions with regard to the seats not been included in the second round of counselling, because they were not pleaded in the writ petition or urged before the learned single Judge. (41) FOR the foregoing reasons, the appeal is dismissed. All pending interlocutory applications are rendered infructuous and are accordingly disposed of in the light of the judgment.