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Gujarat High Court · body

2011 DIGILAW 639 (GUJ)

Shezad Gev Vesuna v. State of Gujarat

2011-08-30

J.B.PARDIWALA, S.J.MUKHOPADHAYA

body2011
JUDGMENT : J.B. Pardiwala, J. As common questions of fact and law are involved in both these petitions, they are being disposed of by this common judgment and order. 2. The petitioners in both the above captioned petition are students. They are Diploma holders from Gujarat Technological University (for short, ‘GTU’). They seek to challenge the preparation of merit list for the purpose of admission to the Degree Engineering Courses in the 2nd Year. The challenge to the merit list is on the ground that Respondent No. 2, - Admission Committee for Professional Courses ought to have prepared the same on the basis of semester Performance Index (‘SPI’, for short), and not by adopting the Semester Theory Performance Index (‘STPI’, for short) system. The grievance appears to be that by adopting SPI system the students have suffered adversely and though they are highly meritorious their numbers of their placement in the merit list is not as per their expectation. It is also the grievance that the decision to adopt STPI system instead of SPI system was taken abruptly by Respondent No.2 and that too without bringing it to the notice of the students and also without framing any rules in this behalf. It is also the case of the petitioners that thereby the respondents have acted in absolutely arbitrary and unfair manner and the fundamental rights of the petitioners have been violated. 3. Facts giving rise to these petitions are as under: 3.1 The petitioners got themselves admitted in the Diploma Engineering Course run by the respondent-GTU in the year 2008. GTU is formed pursuant to the Gujarat Technological Universities Act, 2007. It appears that various colleges are affiliated to the said University for running the engineering and other courses. Diploma Engineering courses are comprising of six semesters which the students have to complete over a period of three years. 3.2 It appears that petitioners herein completed the said six semesters and thereafter grade-sheets were issued to the petitioners by respondent-G.T.U. It also appears that in the grade-sheets/ diploma engineering grade reports the SPI and Cumulative Performance Index (‘CPI’, for short) of the respective students are indicted on the basis of their grades. It also appears that the performance of a student in a semester is indicated by number called the SPI. It also appears that the performance of a student in a semester is indicated by number called the SPI. His SPI is the weighted average of the grade points obtained in all the subjects taken by a student during the semesters. The SPI will be calculated, (after reexamination, if any) upto two decimals placed on the basis of final grades. The CPI is the weighted average of the grade points obtained in all subject taken by the students since they entered the courses. It is calculated in the same manner as the SPI. It appears that the students who cleared the diploma engineering course applied for admission to the engineering decree course by submitting their forms to the respondent-A.C.P.C. 3.3 It is the case on behalf of the petitioners that on 07.07.2011 guidelines for filling up the forms were published on the website wherein it was informed that GTU students shall have to write ACPC CPI in the CPI column. 3.4 It is also the case on behalf of the petitioners that respondent No.2 i.e. The Admission Committee, published a notice on its website dated 14.07.2011 wherein it is clearly stated that for the admission procedure of the academic year 2011-12 from Diploma in Engineering Courses to the 2nd Year (3rd semester) of Bachelor of Engineering and Technology Courses, 2011-12 for the students of GTU are concerned, their individual merit will be considered on the basis of the SPI of the 5th and 6th semesters and the merit list shall be prepared on such basis for all the students. According to the petitioners a common merit list was to be prepared by adopting the S.P.I. system. 3.5 It is the case on behalf of the petitioners that respondent Admission Committee published a notice on its website for students passing from GTU with regard to STPI. STPI means performance index for all theory subjects calculated on the basis of theory marks obtained in theory examinations conducted and evaluated by respective universities. Merit marks is calculated on the basis of STPI obtained in the subjects of last two semesters and where either of last two semesters exclusively having project or training, the STPI of last two semester excluding the semesters having project or training shall be considered for preparation of merit list. Merit marks is calculated on the basis of STPI obtained in the subjects of last two semesters and where either of last two semesters exclusively having project or training, the STPI of last two semester excluding the semesters having project or training shall be considered for preparation of merit list. 3.6 It is because of this decision of Respondent No.2 to adopt the STPI system the petitioners were left with no other option but to challenge this decision b way of these petitions. According to them the theory portion covers only 70 marks. There are 30 marks allotted for mid-semesters exams. 50 marks are allotted for practical. The grievance is that by considering the STPI the students have to suffer grave injustice since only theory marks are considered for arriving at STPI. The marks of the project related work are not taken into account while arriving at STPI and grades on the basis of STPI. According to the students any person who wants to pursue a career in engineering practical knowledge is must required. In future when the students take up career in engineering industry, it is such practical knowledge and the knowledge in field work, which is required and essential rather than mere bookish knowledge. 4. We have heard learned counsel appearing for the petitioners and Mr. Pranav Dave, learned Assistant Government Pleader for respondents No.1 and 2 and Mr. Dipen A. Desai, learned counsel for respondent No.3. 5. Learned counsel for the petitioners would submit as stated below: 5.1 There are admission rules known as the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008 (‘Rules of 2008’, for short). It is submitted that Rule 12 thereof provides for preparation of two merit lists. Vide a Notification dated 05.08.2011 issued by respondent State, an amendment is affected in the aforesaid Rules of 2008 and Rule 12(1) of Rules 2008 is substituted by a new Rule 12(1). The main crux of the argument appears to be that the respondents did not prepare the merit list as per the Rules which existed on the date on which the merit numbers were declared. 5.2 It is further submitted that for the GTU students, there were no specific rules which provide for adoption of STPI system for allotting the merit number. 5.2 It is further submitted that for the GTU students, there were no specific rules which provide for adoption of STPI system for allotting the merit number. 5.3 It is vociferously submitted that the petitioners are aggrieved as their merit numbers are adversely affected due to such change in system with regard to preparation of merit list. 5.4 It is further submitted that merit number ought to have been allotted to the petitioners on the basis of SPI system of the last two semesters as per the Notice dated 14.07.2011 which was published on the website of ACPC during the form submission process. It is further submitted that the students have not been allotted their mark sheets for the last two semesters before the merit numbers were declared and all the students were only given their grade sheets showing their S.P.I. and C.P.I. by the respondent-G.T.U. which was submitted for a registration for the purpose of admission to the degree courses. 5.5 It is further submitted that the SPI system is a much better system for evaluating the merit of the student since it takes into consider the theory as well as practical portion of the university which cannot be a correct yard stick for determining the merit of a student. The students who pursue the Diploma course in GTU are only allotted grades and not separate marks and theory examinations are only comprising of 70 marks in GTU whereas according to the petitioners their Boards or Universities allotted theory marks to the students which comprise of 100 marks. Thus, the petitioners are subjected to discrimination as the grade and STPI is based on theory portion of university examination. 5.6 It is further submitted that due to adoption of STPI system, the petitioners, though they are more meritorious than other students, have got their merit numbers, which is lower and thus, they are not likely to get admission in good colleges though they are deserving. Lastly it is submitted that students who are financially sound will have to suffer because they will not be able to get admission in Government colleges where students get admission only when they are very high on the merit list and thus, such students will have to either forgo studies or to take admission in self-finance college, though they possess the require merit, if the STPI system is adopted. 6. 6. Per contra, learned counsel for respondent submitted that there is no merit in these petitions as the rational behind taking into consideration that theory marks to be considered of all the students is to place all the students of the same Board/University at par for getting admission in Degree Engineering courses. 6.1 It is vociferously submitted that no students of any college/institution can achieve all marks obtained by him or her in internal/ practical/ project in his college/institution as there is no proper system by which it can be regulated and the same could be awarded on the whims of the concerned teachers and professors whereas the theory papers are set by the Board/ University and, therefore, there would be a common yard stick for evaluating the merit of the student. It is further submitted that the students of GTU are governed by Rule 12 for preparation of merit list, and, therefore, the same is prepared only on the basis of theory marks obtained in the respective subjects. 6.2 Lastly it is submitted that this Court may not entertain the petitions if it is a question of educational policy or an issue involving academic matter. 6.3 Learned counsel have relied upon a detailed affidavit in reply filed by Respondent No.2 in Special Civil Application No. 10543 of 2011. In the first affidavit in reply, Respondent No.2 took the following stand, relevant paras: 2 to 9 of which are as under: “5. I respectfully say, at the outset, that in admission to second year (Third Semester) Degree Engineering after Diploma, the merit list of concerned Board/Universities is prepared on the basis of the theory marks obtained in the Board/University Examination and not on the basis of Internal / Practical/ Project marks. To emphasise this fact, the Admission Rules regarding the preparation of merit list for the year 2005-2006, 2006-2007, 2007-2008, 2008-2009 Government Resolutions are submitted which clearly goes to show and indicate that the merit list of Diploma to Degree Courses are prepared only on the basis of Theory marks obtained by students. Copies of Govt. Resolutions are annexed hereto and marked as Annexure R-I. 6. I respectfully say that Gujarat Technological University (herein after referred to as “GTU”) is the Examining & Diploma awarding body. I further say that this is the first batch of Diploma students of GTU. Copies of Govt. Resolutions are annexed hereto and marked as Annexure R-I. 6. I respectfully say that Gujarat Technological University (herein after referred to as “GTU”) is the Examining & Diploma awarding body. I further say that this is the first batch of Diploma students of GTU. In the humble submission, the evaluating of student’s performance of GTU is different than other Board/Universities. I further say that GTU awards the grade in terms of Cumulative Performance Index (CPI) and Semester Performance Index (SPI) on the basis of the performance of students in Theory, Practicals and Internal Examinations in each subject (out of 150 marks i.e. Theory – 70 Marks, Internal – 30 Marks and Practicals-50 Marks). 7. I respectfully say that as the merit list of degree engineering is prepared on the basis of the theory marks and while preparing merit list of Diploma students of GTU, it came to the notice of the Admission Committee that the Semester Performance Index awarded by GTU is based on the total of Theory Marks (out of 70), Internal Marks (out of 30) and Practical Marks (out of 50) in each subjects. So the Committee has demanded from GTU to provide the Theory Marks obtained by their students to prepare the merit list. I further say that accordingly GTU has provided the performance of students in Theory subjects in form of “Semester Theory Performance Index” (STP) to the Admission Committee. I say that Theory Marks of the students have been placed on the website of GTU and on the basis of STPI, merit list of GTU students is prepared. 8. I respectfully say that the rationale and/or reason behind the theory marks to be considered of all the student is to place all the students of same Board/University at par for getting admission in Degree Engineering. I further say that for all the students of the same Board/ University, theory examinations are conducted by the concerned Board/ University whereas the internal marks/practical/ project are taken and awarded by the respective Colleges/ Institutions where the students have been studying. So internal marks/ practical/ project defers from College to College and there are chances of very high variation in evaluation of marks of internal/practical/project given by respective colleges. So internal marks/ practical/ project defers from College to College and there are chances of very high variation in evaluation of marks of internal/practical/project given by respective colleges. No student of any College/Institution can take advantage of marks obtained by him in internal/practical/ project in his own College/Institution as there is no proper system by which it can be regularised and the same could be awarded on the whims of the concerned teachers and professors, whereas the Theory Papers are set by the Board/ University and there is a common yard stick for evaluating students. Thus, by preparing merit list only on the basis of the theory marks, all the students are based at par for getting admission in Degree Engineering which in the humbly submission is just, legal and proper way of arriving at a proper consensus between all the students to be considered for admission in Degree Engineering. 9. I respectfully say that the petitioners are students whose performance in Internal/ Practical (out of 80 marks ) given by the colleges are good but they are lacking in Theory Examination (out of 70 marks) conducted by GTU. I further say that admission process has already been started from 06.08.2011 and the same will be completed on 20.08.2011. It is pertinent here to note that under the “semester theory performance index” system the admission committee has processed 3384 candidates, out of which 2925 candidates have already been given admission in various branches of degree engineering till date and no objections of whatsoever nature has been raised by any student under this new “semester theory performance index” system. A copy of the admission program is annexed herewith and marked as Annexure R 2 to this reply. I further say that the academic term of Third Semester of Degree Engineering have already started from 18.07.2011 and the Diploma students have already lost 4 weeks of their teaching.” 6.4 In the second additional affidavit in reply filed on behalf of respondent No.2,the following stand has been taken. “2. I further say that the academic term of Third Semester of Degree Engineering have already started from 18.07.2011 and the Diploma students have already lost 4 weeks of their teaching.” 6.4 In the second additional affidavit in reply filed on behalf of respondent No.2,the following stand has been taken. “2. I respectfully say that since year 2005 merit list is prepared on the basis of the theory marks obtained (IN LAST TWO SEMESTERS) in the respective subject which were prescribed in the Admission Rules that were published vide notification dated 30.05.2005 which clearly stipulates that merit list shall be prepared only on the basis of the theory marks obtained (IN LAST TWO SEMESTERS) by the candidate. Copy of Notification dated 30.5.2005 is annexed hereto and marked as ANNEXURE R-I. Similarly for subsequent years also, the same procedure was followed. 3. I further say that it is a consistent practise in consonance with the Rules, since then, being followed by the State Government as well as the Admission Committee, to prepare the merit list on the basis of the theory marks for all Technical Examination Board (TEB) (Non-Multi Point Entry & Credit (MPEC)), Indo German Tool Room (IGTR), Central Institute of Plastic Engineering & Technology (CIPET), Dharmasinh Desai Institute of Technology (DDIT), Maharaja Sayajirao University (MSU) and even for TEB (MPEC) & NIRMA University system is prepared on the basis of theory marks obtained in best of top ten subject. Till the year 2007-2008,the entire admission process was done on the basis of Notification issued for the respective year but thereafter the State Government through Education Department has vide notification dated 19.07.2008 framed the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008 (hereinafter referred to as “said Rules, 2008”) wherein Rules 12 prescribes for Preparation of Merit List. 4. I respectfully say that Admission Committee for Professional Course is established for the purpose of Admission of students belonging to Technical Education Board (TEB) (Non-MPEC), TEB (MPEC) as well as un-aided Colleges and Institutions situated in Gujarat State and affiliated to any University like IGTR, CIPET, DDIT, MSU & NIRMA. I further respectfully say that State Government through it notification dated 19.07.2008 frame the aforesaid Rules, 2008 which is annexed as Annexure RI with my earlier affidavit, in which preparation of merit list is done under Rule 12. I further respectfully say that State Government through it notification dated 19.07.2008 frame the aforesaid Rules, 2008 which is annexed as Annexure RI with my earlier affidavit, in which preparation of merit list is done under Rule 12. I respectfully say that Gujarat Technology University (GTU) came into existence in the year 2008 and the first batch of students have passed in the year 2011 which have applied for Bachelor of Engineering and Technology Courses. I further say that as the first batch of students have passed out from GTU and are required to be included for their admission to Degree Courses which is regulated by the Admission Committee as per the said Rules, 2008, the State Government through Education Department had published Notification dated 07.05.2011 for including Gujarat Technical University in the said Rules, 2008 which is annexed as ANNEXURE R-I (page 99). I further say that aforesaid notification provides for the eligibility criteria for admission in Rule 5. It is pertinent here to note that no change/ modification has been made/done with respect to Rule 12 of Preparation of Merit List with regard to the candidates of Gujarat Technical University and those candidate/ students who have passed through Gujarat Technical University were also governed by Rule 12 wherein the merit list was required to be prepared on the basis of the theory marks obtained in the respective subject. 5. I respectfully say that upon inclusion of Gujarat Technical University vide Notification dated 07.05.2011 (page 99), advertisement came to be published for all the candidates including candidates including candidates from Gujarat Technical University for admission to Degree of Engineering and Technology Courses on 02.07.2011 calling for applications from respective candidates. The last date for submission and collection application was 17.07.2011. A copy of the advertisement published in Gujarat Samachar, Sandesh, Divya Bhaskar, and Times of India is annexed hereto and marked as Annexure R-II to this reply. I further say that in certain cases, results were declared after 17.07.2011 and therefore, even to include those students whose results have been declared after 17.07.2011 and where eligible to apply for the course of Degree of Engineering and Technology Courses, the admission committee had once again published advertisement on 22.07.2011 in Gujarat Samachar, Sandesh, Divya Bhaskar, and Times of India to submit their application forms on 23.07.2011. A copy of the advertisement dated 22.07.2011 is annexed hereto and marked as Annexure R-III to this reply. 6. I respectfully say that pursuant to advertisement issued on 02.07.2011, the Admission Committee had received applications from respective Colleges and University including Gujarat Technical University. I say that as far as all other University and Colleges other than Gujarat Technical University, students were given marks whereas students of GTU were given grades. I further say that the Admission Committee had also published notice dated 14.07.2011 on its website with regard to the Gujarat Technical University wherein it was mentioned that the merit list shall be prepared on the basis of the Semester Performance Index (AND IT WAS ALSO INCLUDED IN THE SAID NOTICE PUT ON THE WEBSITE THAT THE DATA WILL BE DIRECTLY GETTING FROM GTU) but the Admission Committee (THEREAFTER CAME TO KNOW THAT FOR CALCULATING ONLY THEORY MARKS AND IF THE NAME WILL REMAIN SAME AS SEMESTER PEFROMANCE INDEX WILL MISLEAD TO THE STUDENT. SO A NEW NAME IS GIVEN STPI SEMESTER THEORY PERFORMANCE MARKS ONLY) was not aware of the fact that while calculating the Semester Performance Index, Gujarat Technical University would also include the marks of the internal as well as practical and therefore, Admission Committee had thereafter called for theory marks only that were obtained by the students for Preparation of Merit List as per Rule 12 of Rules, 2008. 7. I respectfully say that to clarify with respect to the preparation of merit list on the basis of the theory marks obtained in the respective subject with regard to the students passing from Gujarat Technical University notice was also published on the website on 4.7.2011 of the Admission Committee which is annexed to the petition as Annexure H clarifying that merit marks is calculated on the basis of the Semester Theory Performance Index (STPI) obtained in the subjects of last two semesters and where either of last two semesters exclusively having project or training, STPI of last two semesters excluding the semesters having project or training shall be considered for preparation of merit list. 8. I respectfully say that students of Gujarat Technical University are governed by Rule 12 of Preparation of Merit List and therefore, the same is prepared only on the basis of the theory marks obtained in the respective subjects. 8. I respectfully say that students of Gujarat Technical University are governed by Rule 12 of Preparation of Merit List and therefore, the same is prepared only on the basis of the theory marks obtained in the respective subjects. I further say that as the Admission Committee was not aware of the fact that while calling for Semester Performance Index, Gujarat Technical University would also include the marks obtained in internal as well as practical and therefore, the admission committee had thereafter called for theory marks only. It is pertinent here to note that the merit list for other TEB (Non-MPEC) IGTR, CIPET, DDIT, MSU as well as TEB (MPEC) & NIRMA are concerned the merit list has been prepared only on the basis of the theory marks obtained in the respective subjects and after preparation of merit list admission have also been given on the basis of the such theory marks only. I say even for GTU same procedure has been followed and merit list has been prepared on the basis of theory marks only. No grievance of whatsoever has been raised by majority of students of GTU who are not before this Hon’ble Court who have secured place in the merit list which is prepared in consonance with Rule 12 of the said Rules, 2008. I say that if practical and internal marks are also included for the students of GTU then it would do great injustice to those bright students of all other Colleges/ Institutions including students of GTU who have secured very good marks in their theory subjects and secured place in the merit list. I reiterate, at the cost of repetition, that theory exams are conducted by the Board/ University and a common yard stick is used to evaluate all the students. As far as practical and internal marks are concerned, the same are given by the respective college/ institution and there is no proper mechanism by which it can be regulated and the same could be awarded on the whims of the teacher/professor. This is the rationale behind considering the theory marks only while preparing the merit list. I further say that even for the candidates and students belonging to Gujarat Technical University merit list has been prepared on the basis of the theory marks by the Admission Committee and admission have already been given in various branches of Degree Engineering till date. This is the rationale behind considering the theory marks only while preparing the merit list. I further say that even for the candidates and students belonging to Gujarat Technical University merit list has been prepared on the basis of the theory marks by the Admission Committee and admission have already been given in various branches of Degree Engineering till date. I further say that entire admission process had started on 06.08.2011 and was completed on 20.08.2011. I say that as many as (6359 STUDENTS REMAIN PRESENT AND OUT OF THEM 5713 STUDENTS ADMITTED IN VARIOUS BRANCHES THROUGH D2D ADMISSION) students of GTU have been given admission in Degree Courses on the basis of Rule 12 which prescribes for preparation of Merit List on the basis of theory marks. 9. I respectfully say that vide notification dated 05.08.2011 further amendment was made in the Rules, 2008 wherein theory marks/STPI obtained in last two semester having the theory subjects only shall be considered for the purpose of merit list. I say that even assuming without admitting that such amendment in Rules, 2008 was not made on 05.08.2011 then also students from Gujarat Technical University would be governed by Rule 12 for Preparation of Merit List of considering theory marks. Therefore, what is sought to be clarified by Notification dated 5.8.2011 is that theory marks would be only considered while preparation of merit list and what has been already stated in Rule 12 has been elaborately elucidated. The petitioners are not correct in saying that the advertisement was issued with one set of Rules and at the time of admission the Rules have been amended at later point of time which in the humble submission is trying to interpret and read something which was never the intention which would be completely against the larger interest of the students.” 7. We have given our anxious thoughts and considerations to the rival contentions of the respective parties. Having considered the arguments of both the sides we shall now proceed to decide the matter on merits. 8. Firstly we may look into certain rules relevant so far as the present matter is concerned. The students are governed by rules called the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees), Rules, 2008. 8. Firstly we may look into certain rules relevant so far as the present matter is concerned. The students are governed by rules called the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees), Rules, 2008. The Education Department, State of Gujarat, vide Notification dated 19th July, 2008 framed rules called the Diploma in Engineering Courses to Bachelor of Engineering and Technology (Regulations of Payment and Admission Fees), 2008, in exercise of powers conferred by sub-section (i) of Section 20 read with Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (GUJ.2 of 2008). “Rule.5 Eligibility for Admission : (1) For the purpose of admission, a candidate shall have passed the qualifying examination from the Technical Examination Board (TEB) or a University or institution situated in Gujarat State, in the immediate previous academic year with minimum aggregate marks as prescribed in rule 6. Explanation.-Merit marks shall be determined on the following basis, namely:- (i) where a candidate has secured admission under the MPEC system for Diploma Course, marks of the best of Top Ten subjects shall be taken into consideration; or (ii) where a candidate has secured admission under other than the MPEC system for Diploma Course, aggregate marks of last two semesters shall be taken into consideration. (2) A candidate who have studied under the MPEC system, or Non-MPEC system and have passed the qualifying examination in any previous year conducted by the Technical Examination Board (TEB), Gujarat State shall also be eligible if seats remain vacant. (3) A candidate who has secured admission under these rules in any year shall not be eligible for further admission to any course until the period within which he might have completed the course in which he has secured admission.” “Rule. (3) A candidate who has secured admission under these rules in any year shall not be eligible for further admission to any course until the period within which he might have completed the course in which he has secured admission.” “Rule. 12 Preparation of Merit List :- (1) Two separate course wise merit lists of the candidates who have applied for admission in the prescribed form, within the prescribed time limit and who are found eligible for admission under these rules, shall be prepared in the following manner, namely : (a) The first merit list shall be prepared for the candidates who have passed qualifying examination from the Technical Examination Board, (TEB).- (i) on the basis of theory marks obtained in the best of top ten subjects in case of a candidate who has secured admission in the Diploma Course under MPEC system; and (ii) on the basis of theory marks obtained in the subjects of last two semesters in case of a candidate who has secured admission in the Diploma Course under Non-MPEC system; (b) The second merit list shall be prepared for the candidates who have passed qualifying examination from the Unaided Colleges or Institutions situated in Gujarat State and affiliated with any University on the basis of theory marks obtained in the subjects of last two semesters. (2) The criteria for deciding merit order in case of students having equal merit marks shall be in the following sequence, namely:- (a) The candidate who has passed the Higher Secondary School Certificate Examination (Standard XII, 10+2 pattern) passed in the Science Stream or equivalent examination shall be given priority. (b) Total theory marks obtained in the subjects of Physics, Chemistry and Mathematics of the Higher Secondary School Certificate Examination, (Standard XII, 10+2 pattern) passed in the Science Stream or equivalent examination (c) Total marks obtained in the compulsory subjects of the Secondary School Certificate Examination, (Standard X). (d) Date of Birth (Candidate who is older in age shall be given priority)." Thereafter vide Notification dated 7th May, 2011 issued by the Education Department amending the rules. They are as under: “NOTIFICATION EDUCATION DEPARTMENT Sachivalaya, Gandhinagar. Dated the 7th May, 2011. (d) Date of Birth (Candidate who is older in age shall be given priority)." Thereafter vide Notification dated 7th May, 2011 issued by the Education Department amending the rules. They are as under: “NOTIFICATION EDUCATION DEPARTMENT Sachivalaya, Gandhinagar. Dated the 7th May, 2011. No. GH/SH/15/2011/PVS/102011/335/S:- In exercise of the powers conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Technical Education Colleges or Institutions [Regulation of Admission and Fixation of Fees], Act, 2007 (Guj.2 of 2008), the Government of Gujarat hereby makes the following rules further to amend Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008, namely:- 1. These rules may be called the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2011. 2. In the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008 (hereinafter referred to as “the said rules”), in rule 2, after clause (d), the following clause shall be added, namely:- “(dd) “GTU” means the Gujarat Technology University established under the Gujarat Technological University Act, 2007 (Guj. 20 of 2007);”. 3. In the said rules, in rule 4, in clause (i), for the words, brackets and figures “ten percentage (10%), the words, brackets and figures “twenty percentage (20%) ” shall be substituted. 4. 20 of 2007);”. 3. In the said rules, in rule 4, in clause (i), for the words, brackets and figures “ten percentage (10%), the words, brackets and figures “twenty percentage (20%) ” shall be substituted. 4. In the said rules, in rule 5,- (1) in sub-rule (1),- (a) after sub-rule (1) and before Explanation, the following proviso shall be inserted namely :- “Provided that a candidate who possesses a degree Bachelor of Science (B. Sc.) with Mathematics as one of the subjects in HSC, shall also be eligible for admission for the courses specified in column 3 of Schedule I, subject to the provisions of sub-rule (3).:’ (b) for the existing Explanation, the following shall be substituted, namely :- “Explanation:-The eligibility shall be determined on the following basis, namely : - (i) where a candidate has studied under the MPEC system in Diploma Course, aggregate marks of the best of Top Ten subjects shall be taken into consideration, or (ii) where a candidate has studied under other than MPEC system in Diploma Course, aggregate marks of final year or Cumulative Performance Index (CPI), from which the class/ grade/ diploma is awarded, shall be taken into consideration.” (2) for sub-rules (2) and (3), the following sub-rules shall be substituted, namely :- “(2) A candidate who has studied under MPEC system or other than MPEC system and has passed the qualifying examination in any previous year conducted by the Technical Examination Board (TEB), Gujarat State or a University or Institution situated in the Gujarat State shall also be eligible if seats remain vacant after granting admission in accordance with the merit list prepared under rule 12. (3) A candidate who has passed B. Sc. Degree examination, with Mathematics as one of the subjects in HSC, from a recognised University situated in the Gujarat State, in the immediate previous academic year, shall also be eligible if seats remain vacant after granting admission under sub-rule (2). (4) A candidate who has passed the qualifying diploma examination from other States shall also be eligible if seats remain vacant after granting admission under sub-rules(2) and (3), giving priority to the candidates who are origin of Gujarat.”. 5. In the said rules, in rule 6, in Table, in the entry at serious number 1 in column 3, for the figures and sign, “40%”, the figures and sign “45%” shall be substituted. 6. 5. In the said rules, in rule 6, in Table, in the entry at serious number 1 in column 3, for the figures and sign, “40%”, the figures and sign “45%” shall be substituted. 6. In the said rules, in rule 11, for sub-rule (3), the following sub-rule shall be substituted namely:- “(2) Whether the candidates of more than one diploma courses are eligible for admission in a particular degree course, then seats shall be distributed on pro-rate basis for the respective diploma courses as prescribed in sub-rule (1)”. 7. In the said rules, in rule 14,- (1) in sub-rule (2), the words “or can be downloaded from the official website of Admission Committee and the candidate shall have to pay the requisite registration fee at the time of submission of downloaded application form” shall be added at the end; (2) in sub-rule (3), after the words “more than one application”, the words “for the same course” shall be inserted. 9. In the said rules, in rule 18, in sub-rule (1), for clause (iv), the following clause shall be substituted, namely"- “(iv) Top Ten or final year mark sheet/ CPI result based on which the class or grade or diploma or degree (for B. Sc.) awarded by the Technical Examination Board or the University;”. 10. In the said rules, in rule 20, in sub-rule (2), for the words and figures “of rule 13”, the words and figures “of rule 15” shall be substituted. 11. In the said rules, in Schedule I, in entry at serial number 11, in column 3 the items (b) and (c) shall be deleted.” 9. Once again vide Notification dated 5th August, 2011, the rules were amended, more particularly rule 12, which has a low bearing so far as the controversy in question is concerned. The same reads as under:- “NOTIFICATION EDUCATION DEPARTMENT Sachivalaya, Gandhinagar. Dated the 7th May, 2011. No. GH / SH/ 40/ PVS/ 102011/ 335/ S:- In exercise of the powers conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Technical Educational Colleges or instructions (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj. 2 of 2008), the Government of Gujarat hereby makes the following rules further to amend the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008, namely :- 1. 2 of 2008), the Government of Gujarat hereby makes the following rules further to amend the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008, namely :- 1. These rules may be called the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) (Second Amendment ) Rules, 2011. 2. In the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008 (hereinafter referred to as “the said rules” 0, in rule 2, after clause (i), the following clause shall be added, namely :- “(j) Semester Theory Performance Index (STPI)” means performance index based only on the marks obtained in theory subjects in qualifying examination conducted and evaluated by respective University.” 3. In the said rules, in rule 11, for sub-rule (1), the following sub-rule shall be substituted, namely:- “(1) For the purpose of admission, the available seats shall be distributed on pro-rata basis amongst the respective boards/ universities on the basis of number of candidates of such boards/ universities who have obtained not less than 50 percentage aggregate marks in qualifying examination conducted by Technical Examination Board (TEB), Gujarat State or by any professional educational college or institution situated in the State of Gujarat.” 4. In the said rules, in rule 12, for sub-rule (1), the following shall be substituted namely :- “(1) Separate course wise and Board/ University wise merit lists of the eligible candidates who have applied for admission in the prescribed form and within the prescribed time limit shall be prepared in the following manner, namely:- (i) on the basis of theory marks obtained in the best of top ten subjects by the candidates who have passed the diploma course under MPEC system; (ii) on the basis of theory marks obtained in the subjects of last two semesters by the candidates who have passed the diploma course under Non-MPEC/ semester system or the STPI system of the last two semesters, as the case may be: Provided that a candidate who has passed the qualifying examination having project/training in the last or preceding semester or both then the marks / STPI obtained by such candidate in such semester/ semesters shall not be : considered for the purpose of merit list and the theory marks/STPI obtained in those last two semesters having theory subjects only shall be considered for the purpose of merit list”. By order and in the name of the Governor of Gujarat, Sd/- Lalit Vyas Under Secretary to Government" 10.It is evident on plain reading of the rules that there is an aggregate system with regard to assessment of student of GTU. This grading system is mainly known as Semester Performance Index (SPI) wherein grade is given on basis of performance to the student in the respective semester having theory, internals and practical whereas Cumulative Performance Index (CPI) is average grade on the basis of the performance of all the semesters. 11. It is also evident that Cumulative Performance Index is considered only for the purpose of Eligibility for Admission as provided under Rule 5 of the Amendment Rules dated 07.05.2011. As far as the Preparation of Merit List is concerned the same is done as per Rule 12 of Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008 and further elaborately elucidated vide notification dated 05.08.2011. The petitioner claimed that the merit number ought to have been allotted to the petitioners on the basis of the Semester Performance Index system of the last two semesters as per notice dated 14.07.2011 which includes marks of theory, practical and internals. The petitioner claimed that the merit number ought to have been allotted to the petitioners on the basis of the Semester Performance Index system of the last two semesters as per notice dated 14.07.2011 which includes marks of theory, practical and internals. As far as the preparation of merit list is concerned, theory marks are only taken into consideration of last two semesters excluding the semester having project or training. The merit list for every University/ Board is prepared individually and therefore separate Merit Lists are prepared for students who have secured marks out of 70 as far as GTU is concerned and separately for those students who have secured marks out of 100. Therefore, there is no question of discrimination between the students of two different Universities when the merit lists are prepared separately. Since year 2005 merit list is prepared on the basis of theory marks obtained in the respective subject which were prescribed in the Admission Rules, 2008 which clearly stipulates that merit list shall be prepared only on the basis of the theory marks obtained by the candidate. It appears that till the year 2007-08, the entire admission process was done on the basis of Notification issued for the respective year but thereafter the State Government through Education Department has vide notification dated 19.07.2008 framed the Diploma in Engineering Courses to Bachelor of Engineering and Technology Courses (Regulation of Admission and Payment of Fees) Rules, 2008 (hereinafter referred to as “said Rules, 2008”) wherein Rule 12 prescribed for Preparation of Merit List. The Gujarat Technology University (GTU) came into existence in the year 2008 and the first batch of students passed in the year 2011 and applied for Bachelor of Engineering and Technology Courses. As First batch of students were required to be included for their admission to Degree Courses as per Rules, 2008, the State Government through Education Department published Notification dated 07.05.2011 for including Gujarat Technical University in the said Rules, 2008 which is annexed as ANNEXURE R-I [Page 99 of petition]. The Notification dated 07.05.2011 provides for the Eligibility Criteria for admission in Rule 5. The Notification dated 07.05.2011 provides for the Eligibility Criteria for admission in Rule 5. It is pertinent here to note that no change/ modification has been made/ done with respect to Rule 12 of Preparation of Merit List with regard to the candidates of Gujarat Technical University and those candidate/students who have passed through Gujarat Technical University were also governed by Rule 12 wherein the merit list was required to be prepared on the basis of theory marks obtained in the respective subjects. The advertisement came to be published for all the candidates including candidates of Gujarat Technical University for admission to Degree of Engineering and Technology Courses on 02.07.2011 calling for applications form respective candidates. The last date for submission and collection application was 17.07.2011. In certain cases, results were declared after 17.07.2011 and therefore, even to include those students whose results have been declared after 17.07.2011 and where eligible to apply for the Degree Course, the admission committee had once again published advertisement on 22.07.2011. Pursuant to advertisement issued on 02.07.2011, the Admission Committee had received applications from respective Colleges and University including Gujarat Technical University. As far as all other University and Colleges other than Gujarat Technical University, students were given marks whereas students of GTU were given grades. The Admission Committee published notice dated 14.07.2011 on its website with regard to the Gujarat Technical University wherein it was mentioned that the merit list shall be prepared on the basis of the Semester Performance Index but the Admission Committee was not aware of the fact that while calculating the Semester Performance Index, Gujarat Technical University would also include the marks of internal as well as practical and therefore, Admission Committee had thereafter called for theory marks only that were obtained by the students for Preparation of Merit List as per Rule 12 of the Rules, 2008. The Merit List dated 3.8.2011 is prepared on the basis of the theory marks obtained in the respective subject with regard to the students passing from Gujarat Technical University, notice was published on the website on 4.8.2011 of the Admission Committee which is annexed to the petition as Annexure H clarifying that Merit Marks is calculated on the basis of the Semester Theory Performance Index (STPI) obtained in the subjects of last two semesters and where either of last two semesters exclusively having project or training. STPI of last two semesters excluding the semesters having project or training have been considered for preparation of merit list. Students of Gujarat Technical University are governed by Rule 12 of Rules, 2008 for Preparation of Merit List and therefore the same is prepared only on the basis of the theory marks obtained in the respective subjects. If practical and internal marks are also included for the students of GTU then it would do great injustice to those bright students of GTU who have secured very good marks in their theory subjects and secured place in the merit list. Theory exams are conducted by the Board/ University and a common yard stick is used to evaluate all the students. As far as practical and internal marks are concerned, the same are given by the respective college/institution and there is no proper mechanism by which it can be regulated and the same could be awarded on the whims of the teacher/professor. This is the basic rationale behind considering the theory marks only while preparing the merit list. 12. Vide Notification dated 05.08.2011 further substitution was made n the Rules, 2008 wherein theory marks / STPI obtained in last two semester having the theory subjects only shall be considered for the purpose of merit list. Even assuming without admitting that such substitution vide Notification dated 5.8.2011 in Rules, 2008 was not made, then also students from Gujarat Technical University would be governed by Rule 12 for Preparation of Merit List of considering theory marks. Therefore, what is sought to be clarified by Notification dated 5.8.2011 is that theory marks would be only considered while preparation of merit list that has been already stated in Rule 12 which has been further elaborately elucidated. 13. The policy adopted appears to be that if practical and internal marks are also included for the students of GTU then it may result into injustice to those students of GTU who have secured very good marks in their theory subjects and have secured place in merit list. Theory examinations are conducted by the Board/ University, and, therefore, a common yard stick is adopted to evaluate the merit of all the students. Theory examinations are conducted by the Board/ University, and, therefore, a common yard stick is adopted to evaluate the merit of all the students. As far as practical and internal marks are concerned, the same are allotted by respective College/ University and there is no proper mechanism by which it can be regulated and the same could be awarded at times on certain extraneous considerations also. This Court can not ignore this fact. This appears to be the basic rationale behind considering theory marks only while preparing the merit list. 14. It is brought to our notice that on the basis of Rules, 2008 and substituted Rule 12, merit list is prepared on the basis of theory marks and as many as 5713 students of the very Gujarat Technical University have secured admission in degree courses. 15. We may also quote judgment of Division Bench of this Court in the case of State of Gujarat and another v. Brij Kishore Garg reported in 2000 (1) GLR 884 , relevant para:11 of which reads as under: “The Court cannot in absence of any legal or constitutional infirmity, substitute its judgment for that of academicians as if sitting in appeal. By catena of decisions of Supreme Court, it is well settled that the High Court cannot, in exercise of its jurisdiction under Article 226 of the Constitution, (a) relax rules governing admission to educational institutions or rewrite the, (b) devise a scheme of its own relating to admission in place of that made by statutory authority, and (c) direct the educational institution to admit a particular candidate to a course contrary to rules. In matters relating to internal working of an educational institution and more particularly, in the matter of admissions, the Court will not interfere unless the act complained of is clearly beyond jurisdiction or contrary to the statutes, rules or regulations governing the institution, or there is a statutory duty which the authority has failed to perform or the impugned act is mala fide or arbitrary.” 16. The role of statutory expert bodies on education and role of Courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the Courts keep their hands off. If any provision of law has to be interpreted, applied or enforced, with reference to or connection with education, courts will step in. If it is a question of educational policy or an issue involving academic matter, the Courts keep their hands off. If any provision of law has to be interpreted, applied or enforced, with reference to or connection with education, courts will step in. In Dr. J.P. Kulshreshtha v. Chancellor, Allahabad University, reported in (1980) 3 SCC 418 , the Supreme Court observed : “Judges must not rush in where even educationists fear to tread.. While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.” 17. In Maharashtra State Board of Secondary and Higher Secondary Education v. Paritosh Bhupeshkumar Sheth, reported in (1984) 4 SCC 27 the Supreme Court has reiterated :- “.... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those forumlated by professional men possesing technical experitse and rich experience of actual day-today working of educational institutions and the departments controlling them.” 18. In the above view of the matter, the petitioners are not entitled to any reliefs from this Court in exercise of the powers under Article 226 of the Constitution of India. Petitions being without any merit, are accordingly dismissed with no order as to costs. Petition dismissed.