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2005 DIGILAW 743 (GAU)

Siddharth Sahewalla v. State of Assam

2005-09-30

I.A.ANSARI

body2005
I. A. ANSARI, J.— The writ petitioner was an examinee in the Higher Secondary Examination conducted by the Central Board of Secondary Education (in short, 'the CBSE') in 2005. The petitioner's result of the said examination was declared on 23.05.2005. While the petitioner passed the said examination with more than 50% marks, in aggregate, in the subjects of Physics, Chemistry, Biology and English in the same sitting, he was put in compartment in the subject of Mathematics in terms of the Examination. Bye-law No. 42 of the CBSE. The requisite compartmental examination was, eventually, held on 29.07.2005. The petitioner appeared in the said compartmental examination and passed the same as per the result declared on 16.08.2005. In the meanwhile, the Common Entrance Examination, 2005, (in short, 'the CEE') for admission into the MBBS/BDS course for the session 2005-06, in Assam, was held on 23.05.2005 and 24.05.2005. However, as the information bulletin of the CEE stipulated that the candidates, who were awaiting their results of the Higher Secondary Examination, were eligible to apply and appear in the CEE, the petitioner had appeared in the said CEE. Following the CEE, provisional select list was published on 21.06.2005. In the provisional select list, so prepared, the petitioner's position was 9th in order of merit. By notice, dated 21.06.2005, the selected candidates were called for inter-view-cum-first counselling to be held, on 04.07.2005, for selection for provisional admission in the MBBS/BDS course for the session 2005-06. Though the petitioner was called for counselling, he was not allowed to fill up the Form-B, which is required to be filled up in respect of the interview-cum-counselling and he was, thus denied participation in the said interview on the ground that he had not duly passed the Higher Secondary Examination conducted by the CBSE. Though the petitioner was called for counselling, he was not allowed to fill up the Form-B, which is required to be filled up in respect of the interview-cum-counselling and he was, thus denied participation in the said interview on the ground that he had not duly passed the Higher Secondary Examination conducted by the CBSE. Aggrieved by such denial, the petitioner has approached this Court, with the help of the present writ petition, seeking, inter alia, issuance of writ (s) commanding the respondents to admit the petitioner in the MDBS course for the session 2005-2006, the case of the petitioner being, in brief, thus: In terms of the relevant rules, a candidate for the MBBS course must pass his qualifying examination in four subjects, namely, Physics, Chemistry, Biology and English in the same sitting with aggregate marks of, at least, 50% in Physics, Chemistry and Biology and this being the qualification required and since the petitioner possessed this qualification, he was allowed to sit in the CEE held for the purpose and since the petitioner had obtained ninth position in the select list, he ought to have been provisionally selected for admission in the said course and since the petitioner's result of the compartmental examination had been announced on 16.08.2005 i.e. long before the last date up to which a student can be admitted to the course, the petitioner ought not to have been denied the interview/counselling on 04.07.2005, particularly, when the relevant bye laws of the CBSE provide that if the candidate, placed in the compartment, passes in the requisite compartmental examination, he shall be treated to have passed the Higher Secondary Examination. In the case at hand, the petitioner, having passed the compartmental examination on 16.8.2005, shall be treated to have passed the Higher Secondary Examination on. 16.08.20,05 and since the petitioner's date of passing of the qualifying examination was long before the last date for counseling for, and/or admission to, the said course, the petitioner ought to have been provisionally selected in the interview-cum-counseling held on 04.07.2005 and he ought to have been admitted to the said course on his passing the qualifying examination. If the petitioner is not allowed to join the course, his entire hard work, preparation and object of becoming a doctor will be set at naught and the petitioner would sustain irreparable loss. 2. If the petitioner is not allowed to join the course, his entire hard work, preparation and object of becoming a doctor will be set at naught and the petitioner would sustain irreparable loss. 2. When the writ petition was moved an order was passed, in this writ petition, on 27.07.2005, directing the State respondents/ authorities concerned to keep reserve one seat in the MBBS course for the session 2005-2006 and not to fill up the same until further order that may be passed in the writ petition. In terms of the directions, so issued, one seat has been kept reserved by the State respondents/authorities concerned in the MBBS course for the session 2005-2006. 3. So far as the private respondent, i.e. respondent No. 5 is concerned, her case is that she has passed her qualifying examination in the year 2004, she is in the waiting list at serial No. 218 in order of merit for admission to the MBBS course for and she would have received the admission, but for the interim directions, which have been passed in this writ petition. As the petitioner had not passed the qualifying examination, he is not qualified for admission into the MBBS course for the session 2005-2006 and, hence, his writ petition has no merit and may, therefore, be dismissed. 4. The State respondents/authorities concerned have also resisted the relief (s), which the petitioner has sought for, their case, in brief, being that in terms of the relevant rules, the petitioner could not have been regarded as duly passed candidate in the qualifying examination for admission in the MBBS course. Having been asked to appear in the compartmental examination by the CBSC, the petitioner was not eligible for admission in the MBBS course, for the relevant rules permit only such candidates who have duly passed the qualifying examination, to be admitted 'to the MBBS courses. As the petitioner had not duly passed the qualifying examination, he was rightly denied the admission. The acts of the respondents do not suffer from any vice, arbitrariness and/or illegality. The writ petition, therefore, beeds to be dismissed. 5. I have heard Mr. N. Dutta, learned Senior counsel, and Mr. A. K. Goswami, learned Senior counsel, appearing on behalf of the petitioner. I have also heard Mr. P.K. Musahari, learned Govt. Advocate, appearing on behalf of the State respondents and Mr. The writ petition, therefore, beeds to be dismissed. 5. I have heard Mr. N. Dutta, learned Senior counsel, and Mr. A. K. Goswami, learned Senior counsel, appearing on behalf of the petitioner. I have also heard Mr. P.K. Musahari, learned Govt. Advocate, appearing on behalf of the State respondents and Mr. P. Khataniar, learned counsel, appearing for the private respondent. 6. Before entering into the merit of the present writ petition, it is pertinent to point out that the facts leading to the present petitioner are not really in dispute. What is in dispute is as to whether the denial by the State respondents to allow the petitioner to participate in the interview, held on 04.07.2005, for the purpose of selecting the candidates for provisional admission to the MBBS course is or is not sustainable in law and as to whether the petitioner, having passed his compartmental examination in Mathematics, on 1 6.08.2005, can be directed to be admitted into the MBBS Course for the Session 2005-2006, 7. For better appreciation of the issues relevant for effective disposal of the present writ petition, it is pertinent to take note of the relevant rules. These rules are called the Medical Colleges of Assam and Regional Dental College (Regulation of Admission of Under Graduate Student) Rules, 1996 (in short, 'the Rules of 1 996'), which underwent amendments by Gazette Notification dated 1 6.6.2004, the amended Rules being called Medical Colleges of Assam and Regional Dental College (Regulation of Admission of Under Graduate Student) (Amendment) Rules, 2004 (in short, "the Rules of 2004'). The Rules of 2004 have come into force on and from 1st March, 2004 and regulate admissions to the MBBS/BDS/BAMS courses in the Medical Colleges of Assam, Regional Dental College, Guwahati and Government Ayurvedic College, Guwahati, respectively. The relevant provisions of Rule 3 of the Rules of 1 996, having undergone amendment under the Amendment Rules of 2004, read as follows : "3. Conditions for admission and eligibility for appearing in the common entrance examination. 2. The relevant provisions of Rule 3 of the Rules of 1 996, having undergone amendment under the Amendment Rules of 2004, read as follows : "3. Conditions for admission and eligibility for appearing in the common entrance examination. 2. No candidate shall be eligible for appearing in the Common Entrance Examination unless lie : (a) ******* (b) (c) (d) ***** (e) (f) (g) Has duly passed the HSSLC examination from Assam Higher Secondary Education Council or its equivalent examination (10+2) i.e. qualifying examination without grace marks in the subjects or Physics, Chemistry, Biology and English individually in the same sitting and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination in case of candidates belonging to the General Category. In respect of candidates belonging to Scheduled Castes/ Scheduled Tribes/Other Backward Classes/ More other Backward Classes the marks obtain in Physics, Chemistry and Biology taken together in qualifying shall be 40%. (h) (i) 8. A careful reading of Rule 3(2) (c) shows that in order to become eligible to appear in the CEE, the candidate must have duly passed the HSSLC examination from the Assam Higher Secondary Education Council or its equivalent examination (10+2). The qualifying examination for the CEE, admittedly, includes Higher Secondary Examination conducted by the CBSE. Rule 3(2) (c) also requires that a candidate, who belongs to the General Category, must have passed the qualifying examination, without grace marks, in the subjects of Physics, Chemistry, Biology and English individually in the same sitting and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology 9. Thus, a cautious reading of Rule 3(2)(c) clearly reveals that only those persons are qualified to appear in the CEE, who have, apart from passing the qualifying examination, must have also obtained, in the qualifying examination, minimum 50% marks, in aggregate, in the three subjects, namely, Physics, Chemistry and Biology in the same sitting. Thus, a cautious reading of Rule 3(2)(c) clearly reveals that only those persons are qualified to appear in the CEE, who have, apart from passing the qualifying examination, must have also obtained, in the qualifying examination, minimum 50% marks, in aggregate, in the three subjects, namely, Physics, Chemistry and Biology in the same sitting. Rule 3(2) (c), thus, imposes three conditions precedent for a person to be eligible to appear in the CEE, the three conditions being, namely, (i) that the candidate must have duly passed the qualifying examination, (ii) the candidate must have, without grace mark, passed, in each of the four subjects, namely, Physics, Chemistry, Biology and English, in the same sitting and (iii) the candidate must have obtained, at least, 50% marks, in aggregate, in the three of the said four subjects, namely, Physics, Chemistry and Biology. Strictly speaking, therefore, no candidate, who has not passed the qualifying examination or whose result of the qualifying examination has not been announced on or before the date of holding of the CEE, can be eligible to appear in the CEE. To a pointed query made by this Court, Mr. Musahary has, however, candidly conceded that though the result of the Higher Secondary Examination, in the year 2005, has been announced, in Assam, on 26.05.2005, i.e., after holding of the CEE on 23.05.2005 and 24.05.2005, yet candidates, who had appeared in the said qualifying examination, i.e., Higher Secondary Examination, but whose results had not been declared, were also allowed by the State respondents to appear in the said CEE held on 23,05.2005 and 24.05.2005, for, the CEE was really a search for merit and talent and, hence, insistence or adherence to the relevant rules would have left out many of the meritorious candidates, who have been eventually, selected and already admitted into the MBBS course for the session 2005-2006. Not only this, a substantial number of the candidates, who have already been admitted into MBBS course for the session 2005-2006, had, admittedly, not passed their said qualifying examination, when they had appeared in the CEE held on 23.05.2005 and 24.05.2005. 10. Thus, the provisions of Rule 3(2)(c) were not strictly adhered to, when the CEE was held. Not only this, a substantial number of the candidates, who have already been admitted into MBBS course for the session 2005-2006, had, admittedly, not passed their said qualifying examination, when they had appeared in the CEE held on 23.05.2005 and 24.05.2005. 10. Thus, the provisions of Rule 3(2)(c) were not strictly adhered to, when the CEE was held. In other words, notwithstanding the fact that the relevant rules require that a candidate, to be eligible to appear in the CEE, must have duly passed the qualifying examination, the State respondents/authorities concerned did allow candidate, who were not qualified, in terms of the rules, to provisionally appear in the CEE. The question, therefore, is as to whether the relevant rules conceive of a situation, where the rigour of the rules can be so relaxed? My quest for an answer to this question brings me to Rule 9, which embodies the power to relax the rules and provides that where the Government is of the opinion that it is necessary or expedient so to do, it may, by order, not inconsistent with the provisions of these rules and for reasons to be recorded in writing, relax any of the provisions of these rules. Though for the purpose of applying Rule 9, and order, in writing, is required with reasons assigned therefor, the fact remains that in the case at hand, the State respondents/authorities concerned have consciously relaxed the rigour of the rules by allowing a substantial number of candidates to appear in the CEE, who had not duly passed the qualifying examination. In the face of these glaringly noticeable facts, there can be really no escape from the conclusion that the rigour of Rule 3(2Xc) had been relaxed, for, it is this interpretation, which gives the entire system of the present selection some legitimacy and reasonableness. In fact, as the delay in the declaration of the result of the qualifying examination might have disentitled brilliant students from participating in the CEE, it was not unreasonable, for the State respondents/authorities concerned, to allow the person (s), who had appeared in the qualifying examination but had not passed the qualifying examination, to appear in the CEE. The relaxation, so granted, in fact, has not been challenged by way of any writ petition. 11. The relaxation, so granted, in fact, has not been challenged by way of any writ petition. 11. The question, therefore, which, naturally, arises is as to how far and how long the relaxation, so granted, shall be allowed to continue or ought to have been continued. Since the very object of holding of the CEE is to select candidate (s), who are meritorious, subject, of course, to the reservation policy, it will logically follow, if one keeps his attention focused on the object with which the CEE was held, that the relaxation, which has been granted by the State respondents/ authorities concerned, shall be allowed to continue or ought to have been continued until the time, when the final date for admission into the course is/was reached. 12. In the above backdrop, I am, now, required to consider the fate of the present writ petition. The writ petitioner, it is pertinent to note, is not a candidate, who had appeared in the Higher Secondary Examination conducted by the Assam Higher Secondary Education Council, Assam, for, his result had been announced on 23.05.2005. While the petitioner had passed, without grace marks and in the same sitting, in each of the requisite four subjects, namely Physics, Chemistry, Biology and English-and had also obtained more than 50% mark, in aggregate, in the requisite three subjects, namely, Physics, Chemistry and Biology, he had been placed in compartment in the subject of Mathematics. According to Examination Bye-Law 42 of the CBSE, a candidate, who is placed in compartment in any subject (s), may re-appear in the compartmental examination to be held in July/August and if the candidate qualifies in the compartmental examination, he shall be declared as passed. 13. It is, thus, clear that if a candidate, placed in compartment in any subject, appears and passes the compartmental examination, he will be declared as duly passed. In the case at hand, the petitioner, as already indicated hereinabove, passed his compartmental examination and his result of the qualifying examination was accordingly declared on 16.08.2005. In short, it was on 16.08.2005 that the petitioner had become duly qualified to pursue the MBBS/BDS course for the session 2005-2006. 14. In the case at hand, the petitioner, as already indicated hereinabove, passed his compartmental examination and his result of the qualifying examination was accordingly declared on 16.08.2005. In short, it was on 16.08.2005 that the petitioner had become duly qualified to pursue the MBBS/BDS course for the session 2005-2006. 14. Though the State respondents/authorities concerned, initially, resisted this writ petition by baldly saying that no one, who had not passed the qualifying examination, was eligible to appear and was allowed to appear in the CEE held on 23.05.2005 and 24.05.2005, the fact remains that when confronted with the reality of the situation and when it transpired that a substantial number of the candidates, who had appeared in the CEE, were persons, whose results had not even been declared, the State respondents/ authorities concerned backtracked their steps by saying that at the time, when the candidate, in question, was called for interview/ counseling, he was required to fill up the Form-B and this Form-B required the candidates to produce all their testimonials including pass certificates. Thus, according to Mr. Musahary, on the date of the first counseling, a candidate, to have become eligible for admission, must have passed in all the subjects in the qualifying examination. In the case at hand, as the petitioner, according to Mr. Musahary, had not passed his qualifying examination, when the interview/first counseling for provisional selection was held, he was rightly denied participation in the interview/ counseling. 15. What emerges, now, to be the case of the respondents is that the petitioner has been denied counseling not on the ground that he was not qualified to appear in the CEE, but on the ground that he had not duly passed in all the subjects in the qualifying examination on 04.07.2005, i.e.., the date, when the first counseling was held. This contention of the respondents needs to be tested in the light of the relevant rules and the facts of the present case. 16. While considering the above aspect of the matter, it needs to be noted that the Medical Council of India, in terms of the directions given by the Apex Court, has formulated the time schedule for completion of admission process in the medical and dental courses. 16. While considering the above aspect of the matter, it needs to be noted that the Medical Council of India, in terms of the directions given by the Apex Court, has formulated the time schedule for completion of admission process in the medical and dental courses. According to this time schedule, entrance examination for State quota should be conducted in the month of May, the result thereof shall be declared by 25 June, the 1st round of counseling shall be over by 17th July, the 2nd round of counseling shall be held from 25th to 28th August and the last date for joining the course for the candidates, who have been allotted seats in the second round of counseling or from waiting list, shall be 23rd August and the commencement of academic session shall between 1st and 31st August. A dispassionate and microscopic reading of the time schedule, so prepared, show that the second round of counseling shall be between 25th and 28th August and admission of candidates from the second round of counseling and the waiting list shall be 30th August. In short, thus, the second round of the counseling takes place from 25th to 28th August and the last date of admission is 30th August. 17. In the light of the above time schedule, when we consider the entire admission process, what emerges is that since the object of holding the CEE is to select the best of the candidates, subject, however, to the reservation policy, it is obvious that the more meritorious a candidate is, the higher will be his position in the merit list and, consequently, he is likely to be called in the first round of counseling as against a candidate, who is lower in the merit list and who will be called, if called at all, in the second round of counseling. If the contention of the State respondents/authorities concerned is taken is its logical end, the situation will be that a person, who is more meritorious, maybe disqualified and denied admission; whereas a person, who is less meritorious, can be selected and receive ad-mission, for, it is possible that the result of the qualifying examination has been announced after the first counseling, but before the second round of counseling or before the last date fixed for the admission. In the present case, the petitioner's position in the merit list was 9th and he was, therefore, called for the first round of counseling on 04.07.2005. Had he been lower in the merit list, such as the private respondent No. 5, whose position in the merit list is 218, he would have been called for the second round counseling. 18. What necessarily follows from the above discussion is that same as Rule 3, which requires a candidate to appear in the CEE only after having duly passed the examination, Form-B also requires a candidate to fill up the form in all respects and submit his testimonials. Since the State respondents/authorities concerned had already relaxed the rigour of the rule and allowed the candidates, whose results had not been declared, to appear in the CEE, there is no reason why filing up of the Form-B in all respects should have been insisted upon on the first day of counseling or should have been made a condition precedent for the interview/counseling. Such adherence to the form will be adherence to mere form and not to the real purpose or object thereof. Since the object of the CEE is to select the best, the steps, which are taken during the course of the selection process, shall be interpreted in consonance with this object. Since the adherence to the filling up of the said form, on the first date of counseling itself, will defeat the object with which the CEE was held and the ineligible candidates, i.e., the candidates, who had not even qualified, were allowed to appear, reasonable, non-arbitrary, justified and rational it would be to hold that the candidate, who has been called for counseling even in the first round counseling, shall be interviewed for the purpose of provisional selection and if he is, otherwise, found fit, his name shall be included in the provisional list for admission and the admission shall be granted to him if he qualifies within the last date of joining, i.e. 30th August or, at least, till the last date of second round of counseling, i.e., 28th August. Such a course will if adopted, be reasonable and, in fact, rational, for, such an interpretation will not defeat the real object of holding of the CEE. Any other interpretation of the said selection process would make the entire selection process irrational, arbitrary and otiose. 19. Such a course will if adopted, be reasonable and, in fact, rational, for, such an interpretation will not defeat the real object of holding of the CEE. Any other interpretation of the said selection process would make the entire selection process irrational, arbitrary and otiose. 19. The above interference gets strengthened from the fact that the notice dated 21.06.2005, whereby candidates including the writ petitioner had been called for the first round of counseling, clearly stated that the interview had been called and the candidates were required to appear for an interview for "provisional selection for admission" subject to fulfilment of the prescribed eligibility conditions of the Medical Colleges/Regional Colleges of Assam. The counseling on 04.07.2005 was, thus, held for the purpose of selection for provisional admission and if the selection was provisional, there is no rational in insisting that though the list for admission shall be prepared provisionally, yet a candidate, who is, otherwise, more meritorious, shall not be included in this select list for provisional admission. 20. The Court, exercising writ jurisdiction, aims, primarily, at preventing denial of justice, and, therefore, acts as a Court of equity. A writ Court shall, therefore, interpret the law, which will be more consistent with the ends of justice, and an interpretation, which will be inconsistent, irrational, or unreasonableness, shall be eschewed. Considered thus, it is abundantly clear that when a candidate, who has passed in the four subjects, namely, Physics, Chemistry, Biology and English in the same sitting and has obtained qualifying marks in one sitting in the three subjects, namely, Physics, Chemistry and Biology, shall be allowed to be interviewed and if in the interview, he succeeds, he shall be provisionally kept in the select list for admission and he should be denied admission only if he fails to pass the qualifying examination in all the subjects before the date of closure of the admission. Such a course will be consistent with the maxim 'equity does not know half the way'. When, on equitable considerations, the petitioner's appearance in the CEE is not interfered with, imperative and justified it is that the relaxation granted to the candidate (s) for enabling them to appear in the CEE be allowed to be taken to its logical conclusion in the manner as indicated hereinabove. 21. When, on equitable considerations, the petitioner's appearance in the CEE is not interfered with, imperative and justified it is that the relaxation granted to the candidate (s) for enabling them to appear in the CEE be allowed to be taken to its logical conclusion in the manner as indicated hereinabove. 21. What crystallizes from the above discussion is that the denial by the State respondents/authorities concerned to allow the petitioner to sit for counseling or interview on the 4th July, 2005, was arbitrary, irrational and unreasonable and must, therefore, be interfered with. 22. Considering the matter in its entirety and in the interest of justice, it is hereby directed that the respondents/authorities concerned shall consider the petitioner's case for admission in the MBBS course for the session 2005-2006 treating him as eligible for consideration on 4th July, 2005, when he was called for the interview/counselling. If found, otherwise, fit for selection, the petitioner shall be admitted into the MBBS course for the said session before the expiry of the deadline set forth in the time schedule, as indicated hereinabove, i.e. 30th September, 2005. 23. With the above observations and directions, this writ petition shall stand disposed of. 24. No order for costs.