Research › Browse › Judgment

Gujarat High Court · body

1999 DIGILAW 8 (GUJ)

Gujarat University v. Desai Hetal Mohanlal

1999-01-19

C.K.THAKKER, M.C.PATEL

body1999
JUDGMENT : C. K. Thakker, J. Admitted. Mr.B.N. Patel appears and waives service of notice of admission on behalf of the respondent-original petitioner. In the facts and circumstances, the matter is taken up for final hearing today. 2. This appeal is filed against an interim order passed by the learned Single Judge on December 21, 1998 in Special Civil Application No.9568 of 1998. The petition is pending and awaits final hearing. During the pendency of the petition, a direction is issued by the learned Single Judge to admit the petitioner to MPE Part I, aggrieved by which the appellant-University has approached this Court. 3. The respondent was the original petitioner. He passed Bachelor of Arts and Physical Education Examination from the Gujarat University with First Class. He then made an application for admission to the course of Master Degree in Physical Education (MPE) Part I and appeared for admission in the written test. By a letter dated August 17, 1998, the petitioner was informed that she was admitted to MPE Part I and she was asked to pay necessary fees by August 27, 1998. The petitioner accordingly paid admission fees on August 20, 1998. It was asserted by her that she started attending classes regularly. It was averred in the petition that suddenly and shockingly, her admission was cancelled by the University by a communication dated October 7, 1998 on the ground that the admission was given to her inadvertently. A cheque, refunding the fees which was paid by the petitioner, was also sent to her. The petitioner made a representation on October 12, 1998, but since nothing was done by the University, she approached this Court by filing a petition on 16th of November, 1998. On 17th November, 1998, the petition was taken up for admission, Notice was issued and status quo was granted. On December 21, 1998, the impugned order was passed by the learned Single Judge. 4. By way of interim order, the learned Single Judge directed the appellant-University to admit the petitioner to the course of Master Degree in Physical Education (MPE) Part I subject to the result of the petition. 5. Mr.Anjaria, learned counsel for the appellants, raised various contentions. He submitted that during the pendency and final disposal of a petition, no interim relief of a mandatory nature could have been granted. 5. Mr.Anjaria, learned counsel for the appellants, raised various contentions. He submitted that during the pendency and final disposal of a petition, no interim relief of a mandatory nature could have been granted. He also submitted that there was mistake on the part of the University in giving admission to the petitioner and such a mistake can always be corrected by the University. It was also stated that if the order of the learned Single Judge is implemented, prejudice would be caused to other students, who were more meritorious and who could have been granted admission before such admission could be given to the petitioner. He finally submitted that even if the order passed by the learned Single Judge is implemented, the petitioner would not be able to complete necessary attendance in accordance with the University Rules and Regulations. Such an order, therefore, could not have been passed. 6. Mr.Patel, learned counsel for the original petitioner, on the other hand, supported the order passed by the learned Single Judge. He submitted that apart from the fact that the order was legal and valid, it was equitable. According to Mr.Patel, there was no fault on the part of the petitioner in applying for admission to MPE Part I. She was eligible and in accordance with Rules and Regulations, an application form was submitted. She was informed that she was admitted to the course and was asked to pay necessary fees, which was paid. She was accordingly admitted to the course and she attended classes. Suddenly and abruptly, her admission was cancelled. She tried to get justice by filing necessary representation. Unfortunately, however, the University did not do anything and she was constrained to approach this Court. Mr.Patel further submitted that the learned Single Judge also did not grant mandatory order at the initial stage. Merely status quo was granted as the court wanted to know as to whether other persons, who might have been above the petitioner, were interested in getting admission or not. In spite of the said opportunity, nothing was done by the University and taking into account that material circumstance, an order was passed, which is, as observed by the learned Single Judge, subject to the result of the petition. Such an order can be said to be discretionary in nature, which does not call for interference by this Court at this stage. 7. Such an order can be said to be discretionary in nature, which does not call for interference by this Court at this stage. 7. In the facts and circumstances of the case, in our opinion, the learned Single Judge ought not to have granted mandatory order against the University. It is not disputed even by the learned counsel for the petitioner that she got 17 marks out of 50 marks and total 30 marks out of 100 marks. Her seat number was 49. Now, so far as admissions to MPE Part I are concerned, above seat No.49 of the petitioner, there were other students also. Exhibit II, which is produced along with the Letters Patent Appeal, shows the position as under :- "... ... ... 40 0019 Chaudhari Hasmukhbhai Abherajbai 27 35 41 0123 Swami Tushargiri Hansanandgiri 28 35 42 0068 Malek Anishkumar Keshubha 27 34 43 0012 Chaudhari Devendrakumar Motibhai 24 33 44 0042 Chavda Shadevsinh Agarsinh 24 33 45 0016 Chaudhari Devendrakumar Motibhai 25 32 46 0043 Chavda Vijaysinh Jashubhai 23 32 47 0052 Desai Sureshkumar Motibhai 26 32 48 0027 Chaudhari Rameshbhai Hemrajbhai 23 30 49 0049 Desai Hetal Mohanlal 17 30 ... ... ... ." 8. From the above statement, it is clear that there was mistake on the part of the University in giving admission to the petitioner and the said action was sought to be corrected by issuing a letter on 7th of October, 1998. It was also stated by Mr.Anjaria that the petitioner was not allowed to attend classes as soon as the University came to know about the fact that admission was wrongly given, though this was disputed by Mr.Patel. 9. In our opinion, if there were other students who had obtained more marks than the petitioner and the University was satisfied that there was mistake on the part of the University in giving admission and such admission was given inadvertently, can it be said that an action cannot be taken by the University or the action taken by the University is illegal, arbitrary or otherwise unreasonable. In this connection, our attention was invited by the learned counsel for the appellant to the following decisions :- (1) A.P. Christian Medical Educational Trust v. Government of Andhra Pradesh and another, AIR 1986 SC 1492; and (2) Guru Nanak Dev University v. Parminder Kr. Bansal and another, AIR 1993 SC 2412 . 10. In this connection, our attention was invited by the learned counsel for the appellant to the following decisions :- (1) A.P. Christian Medical Educational Trust v. Government of Andhra Pradesh and another, AIR 1986 SC 1492; and (2) Guru Nanak Dev University v. Parminder Kr. Bansal and another, AIR 1993 SC 2412 . 10. Mr.Patel tried to distinguish those decisions on the ground that in those cases, no affiliation was granted to the College in which the students studied and hence, they could not be allowed to appear at the examination. In our opinion, the principle laid down in those cases would apply, particularly when the students who were having more marks and were more meritorious could not get admission. The impugned order passed by the learned Single Judge, therefore, cannot be said to be in accordance with law. For the foregoing reasons, the Letters Patent Appeal deserves to be allowed and it is accordingly allowed. In the facts and circumstances of the case, no order as to costs. 11. We may clarify that we are making all the above observations for disposal of this Letters Patent Appeal and as and when the main matter is taken up for final hearing by the learned Single Judge, the same will be decided strictly on merits without being influenced in any manner by the observations made by the learned Single Judge as well as made by us herein above. 12. Mr.Patel finally prayed that an appropriate direction may be issued to the learned Single Judge to dispose of the main matter. In the facts and circumstances, in our opinion, it would be appropriate to observe that it is open to the learned counsel for the petitioner to request the learned Single Judge to dispose of the petition expeditiously. We have no doubt that as and when such a prayer is made, the learned Single Judge will consider the same and try to decide the petition as expeditiously as possible.