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2012 DIGILAW 1370 (BOM)

Sonali Subhash Mitkari v. State of Maharashtra

2012-07-25

B.P.DHARMADHIKARI, SUNIL P.DESHMUKH

body2012
Judgment :- B.P. Dharmadhikari, J. 1. Heard respective Counsel. 2. Rule. Rule made returnable forthwith. Heard finally by consent. 3. In all these petitions, common question arises. The question is, whether petitioners who have secured more than 60 % marks in Diploma in Pharmacy can be treated as candidates who have passed said examination in "first class with condonation", in order to enable them justify/claim admission to 2nd year of Bachelor of Pharmacy, directly. It is not in dispute that all these petitioners have been directly admitted to Bachelor of Pharmacy course and at the end of the year of their course i.e. 2nd year B. Pharm., they have been held not eligible and their admissions have been cancelled mentioning that they did not fulfill requirement of Rule or para 2.1 of the admission brochure. In all these matters, it is claimed that because of interim orders granted by this Court, the petitioners have continued prosecuting B.Pharm. course and have also passed the final degree examination. 4. Adv. Mr. V.D. Salunke, learned Counsel for respective petitioners, has briefly mentioned the facts and then submitted that controversy is covered by Division Bench judgment of this Court, reported in the case of Suyog s/o. Vilasrao Jain Vs. The State of Maharashtra & others, reported at 2009(3) Mh.L.J. 495 . He submits that said Division Bench in identical situation, has found Regulation No. 15 of Pharmacy Council of India relevant and as the petitioners have got more than 60 % marks, they are rightly treated as candidates who satisfied the admission norms for B.Pharm. 2nd year. Learned Counsel submits that the concept of "first class with condonation", is recognized in para 2.1 of brochure and that concept nowhere requires the passing of Diploma examination in single attempt. Merely because petitioners have taken two attempts, they cannot be treated as not eligible. Invoking Rule or para 2.1 in their cases, therefore, is arbitrary and unsustainable. Said admission brochure did not disqualify the petitioners at all. 5. Without prejudice to these submissions, learned Counsel submits that the petitioners have not suppressed any material fact. They had supplied their marks-sheets which were scrutinized before giving them admission. The Committee admitting them was satisfied that they have passed in 'first class with condonation' and hence, their cases were cleared for admission. 5. Without prejudice to these submissions, learned Counsel submits that the petitioners have not suppressed any material fact. They had supplied their marks-sheets which were scrutinized before giving them admission. The Committee admitting them was satisfied that they have passed in 'first class with condonation' and hence, their cases were cleared for admission. At fag end of their study of 2nd year, when their admissions were cancelled, they made inquiries and learnt that they were being treated as candidates who do not possess 'first class' or 'first class with condonation'. Hence, they approached this Court and this Court rightly protected them by passing interim orders. Because of those interim orders, they have successfully completed Bachelor's course. As they are are not at fault, their admissions in terms of brochure cannot be allowed to be cancelled and looking to the performance, they have put in, degree of Bachelor of Pharmacy must be awarded to them. To support this contention, he is relying upon judgment of Hon. Apex Court in the case of Shri Krishnan Vs. The Kurukshetra University, Kurukshetra, reported at (1976) 1 SCC 311 , and the consideration of similar controversy in paragraph 15 of its judgment by Division Bench of this Court in the case of Suyog s/o. Vilasrao Jain Vs. The State of Maharashtra & others (supra). 6. Learned Addl. G.P. Mr. K.B. Chaudhary, for respondent nos.1 and 2, and Adv. Mr. S.S. Jadhavar, for respondent no.5 in Writ Petition No. 994/2010, have strongly opposed the petitions. Adv. Mr. R.A. Tambe, for the management of educational institution in W.P. No. 2165/2010, has attempted to show that the petitioner was not at fault. 7. Adv. Mr. Jadhavar has pointed out that the legal position was not correctly explained to this Court when it decided the case of Suyog s/o. Vilasrao Jain Vs. The State of Maharashtra & others (supra). He submits that the ''first class with condonation'' is concept which is appearing in Regulations framed for admissions to Engineering / Technology course and it is not recognized by Pharmacy Council of India (PCI). For the said purpose, he has invited attention to passing criteria for Diploma in Pharmacy as per ER 1991, as published in Part III Section 4 of the Gazette of India, dated 11th July 1992. For the said purpose, he has invited attention to passing criteria for Diploma in Pharmacy as per ER 1991, as published in Part III Section 4 of the Gazette of India, dated 11th July 1992. He states that the candidate securing 60 % or more marks in aggregate in all subjects in a single attempt at Diploma in Pharmacy, Part 1, or Diploma in Pharmacy, Part 2 examinations, can only be declared to have passed the respective examinations in first class. He contends that the Division Bench of this Court did not receive proper assistance and hence it extended the concept of 'first class with condonation' recognized for admission to Engineering / Technical courses as relevant to direct admissions to 2nd year of degree in pharmacy. He points out that as per RE 5 of those Regulations, dealing with 'Gracing', the candidate can be given grace marks, as also, benefit of condonation. Candidate who fails to pass examination by not more than 10 marks in aggregate in not more than two heads can be extended benefit of condonation, if he has secured at least 50 % marks in aggregate and has not availed of exemption as mentioned in RG 5 of those Regulations. He is then given such marks out of those 10 marks as are sufficient to make up the deficiency and thereby his failure is condoned. Such candidate is then given class on par with other successful candidates. Total number of marks secured by him remain unaltered in marksheet and words 'CON' indicating condonation are used in his marks-sheet. As this is not applicable to Diploma in Pharmacy examination, contention of petitioners that they have passed examination of Diploma with 'first class with condonation', is unsustainable. Cancellation of their admissions is, thus, justified. He has relied upon the judgment of Division Bench of this Court dated 25th March 2010, in Writ Petition No. 1775/2010, to show that in similar circumstances, this Court has refused to show any sympathy. He prays for dismissal of the petitions. 8. Perusal of judgment of Division Bench of this Court, in thecase of Suyog s/o. Vilasrao Jain Vs. He has relied upon the judgment of Division Bench of this Court dated 25th March 2010, in Writ Petition No. 1775/2010, to show that in similar circumstances, this Court has refused to show any sympathy. He prays for dismissal of the petitions. 8. Perusal of judgment of Division Bench of this Court, in thecase of Suyog s/o. Vilasrao Jain Vs. The State of Maharashtra & others (supra), reveals that the petitioner Suyog therein had submitted a statement of marks which clearly disclosed that he had failed once in 2nd year of Diploma in Pharmacy and inspite of that, he was given admission after due scrutiny of the documents. The Division Bench then makes reference to ER 1991 and notices that in order to secure first class, a candidate needs to secure 60 % marks in single attempt. An additional additional affidavit was filed before that Division Bench on 30th July 2008 to explain the meaning of expression 'first class with condonation' employed in Rule 2.1 of the brochure. The Division Bench has then looked into said concept and then notices provisions of Rule 2.3 of the brochure. That paragraph 2.3 stipulated that admission of any candidate shall be provisional subject to acceptance by & production of an eligibility certificate from concerned University. It is in this background, that the Division Bench has proceeded to apply its mind and then made reference to Regulation No.15. Because of paragraph 2.1 noted by it, it found that due to passing of Diploma in Pharmacy examination in 'first class' or 'first class with condonation', as per ER 91 Regulation of Pharmacy Council of India, the petitioner Suyog was eligible for admission. It is noted that the brochure contained administrative instructions and Suyog had admittedly obtained more than 60 % marks considering the result of second attempt. The said Division Bench, in paragraph 9 of its judgment, in this light, has observed, " We are not considering here a case of first class with condonation.". Then, from paragraph 10 onwards, the said judgment concentrates on the point of disclosure of all relevant material by Suyog and absence of any fraud played by him. At the end of paragraph 15, the Division Bench concludes by observing, thus : " ................... The petitioner, therefore, acted to his prejudice based on the promises of the respondents. Then, from paragraph 10 onwards, the said judgment concentrates on the point of disclosure of all relevant material by Suyog and absence of any fraud played by him. At the end of paragraph 15, the Division Bench concludes by observing, thus : " ................... The petitioner, therefore, acted to his prejudice based on the promises of the respondents. In the instant case, the petitioner had obtained more than 60 % marks, but in terms of the Regulations of the Pharmacy Council, he could not be treated as passed in first class. However, in our opinion, once the petitioner was admitted after having disclosed all the facts and allowed to appear for the examination, there is no provision or power in respondents to cancel his admission. In the alternative, even if the admission could be cancelled, we are of the opinion that the authorities were estopped from cancelling the admission in the absence of any inequitable conduct by the petitioner. Therefore, considering the facts on record, we are clearly of the opinion that respondent No.2 could not have directed the cancellation of the petitioner's admission and as they were bound by the doctrine of promissory estoppel." We find that said Division Bench did not receive proper assistance from parties. This judgment nowhere specifically state that a candidate who has passed Diploma in Pharmacy examination in 'first class with condonation' is eligible for direct admission with which we are dealing here. It does not lay down any law in that regard. Reliance by the petitioners upon this judgment is, therefore, misconceived. 9. The Maharashtra State Board of Technical Education has filed an affidavit in reply before this Court on 3rd July 2012. In the said affidavit, sworn by the Deputy Secretary of the Board, it has been pointed out that the Board has framed examination regulations and RP 1 to RP 13 of the said Regulations pertain to examinations of Diploma in Pharmacy course. The said Regulations are also annexed with the affidavit by respondent no.5. In the said affidavit, sworn by the Deputy Secretary of the Board, it has been pointed out that the Board has framed examination regulations and RP 1 to RP 13 of the said Regulations pertain to examinations of Diploma in Pharmacy course. The said Regulations are also annexed with the affidavit by respondent no.5. RP 13 therein is about scope of Pharmacy Council of India Rules and it reads thus: "The Board shall adopt and apply the Rules, prescribed by the Pharmacy Council of India, for admission to the Pharmacy Course, admission to the Examinations, passing the Examination, etc., from time to time." Accordingly, Clause 15 of ER 1991 framed by Pharmacy Council of India is binding upon the Board and it has been adopted as it is, by the Board in RP-10 (B). Perusal of RP-10(B) shows that candidate securing 60 % of the aggregate marks or above, but less than 75 % marks in a single attempt at Part-1 or Part-2 of Diploma in Pharmacy examination can be declared tohave passed the related examination in 'first class'. The affidavit discloses that the petitioner Ms. Sonali, in Writ Petition No. 994/2010, had failed to clear all subjects of 2nd Part of Diploma in Pharmacy in single attempt and, therefore, she has not been awarded 'first class' though total marks secured by her are 603 out of 1000. She has been awarded 'Pass' class as per RP-10(C), according to this affidavit. The affidavit further discloses that concept of 'first class with condonation' is not adopted by respondent no.5 / Board. The Regulations of Board provide for gracing in RP-11 and the scheme of gracing, as is apparent in Clauses A, B and C of RP-11 is different than the scheme of gracing & condonation shown in RE-5(B) of Regulations of Engineering / Technology. The petitioners have not chosen to controvert the position as disclosed in this affidavit. There is no attempt to show how Regulations framed by Board for Diploma in Pharmacy protect the petitioners' admissions. The documents & affidavit above show that the concept of passing Diploma in Pharmacy examination in 'first class with condonation' is alien to Diploma in Pharmacy course. The petitioners, therefore, cannot in law, be treated as candidates who have passed Diploma examination in 'first class with condonation'. 10. The documents & affidavit above show that the concept of passing Diploma in Pharmacy examination in 'first class with condonation' is alien to Diploma in Pharmacy course. The petitioners, therefore, cannot in law, be treated as candidates who have passed Diploma examination in 'first class with condonation'. 10. It is, however, not in dispute that the respondent no.5 / Board has cancelled admission of respective petitioners by relying upon paragraph 2.1 of the brochure. That brochure is containing rules for admission to direct 2nd year of 4 years Degree course in Pharmacy in Government / Government aided, University managed, University Departments and unaided Pharmacy Colleges for the academic year 2009-10. The petitioners have produced the same as Exhibit "C" and this document is not in dispute. Paragraph 2 therein deals with eligibility and paragraph 2.1 prescribes the requisite educational qualifications. It enables candidates who have passed in 'first class' / 'first class with condonation', post HSC Diploma Course in Pharmacy (as per ER-91 Regulations of PCI), to seek admission to 2nd year degree course directly. Thus, on one hand, respondent no.5 Board has stated that concept of passing in 'first class with condonation' is not adopted by it, while on the other hand, the rules contained in brochure vide para 2.1 expressly mention 'first class with condonation' as accepted norm and entitles the candidate who passes accordingly to claim admission to 2nd year of degree course directly. The facts at hand need to be viewed in this background. We have already noted the concept of 'first class with condonation' as appearing in RE 5(B) of Regulations for Engineering / Technology. If in this situation that concept is extended to the petitioners, it is not disputed by respondents before us, that they can be treated to have passed Diploma in Pharmacy examination in 'first class with condonation'. The provisions of RE 5(B) nowhere specify that to be eligible to claim benefit of said scheme of condonation, candidate must have passed in first attempt. It only shows that candidate can be given marks not exceeding total 10 as grace marks to make up deficiency if he has secured at least 50 % marks in aggregate. In that event, the marks-sheet has to disclose and use the word "CON", meaning condonation. However, it is necessary to see whether these petitioners are in fact given the benefit of such condonation. 11. In that event, the marks-sheet has to disclose and use the word "CON", meaning condonation. However, it is necessary to see whether these petitioners are in fact given the benefit of such condonation. 11. Because of this position, we have examined the marks-sheets of respective petitioners. Minimum passing marks are 40 % in each subject separately in theory and practical. The petitioner in Writ Petition No. 994/2010 has secured 673 marks out of total 1100 and she is shown to have passed in 'Pass' class. Her marks-sheet for 1st year of Diploma in Pharmacy dated 11-7-2008 nowhere shows any condonation or need of grace marks. Her marks-sheet dated 15-2-2009 for final examination reveals that she has passed in 'Pass' class and secured 603 marks out of 1000. Again, it does not show need of any grace marks to her. The petitioner Shipla, in Writ Petition No. 2165/2010, has secured 555 marks out of 1100 in 1st year and her marks-sheet dated 14-2-2007 does not show need of any grace marks and does not use word 'condonation'. On the contrary, it is shown that she has passed the examination in 'Pass' class. Her marks-sheet for final examination dated 15-2-2009 shows that she has secured 609 marks out of 1000 and places her in 'Pass' division. All observations made above in relation to her first marks-sheet also hold good in relation to this later marks-sheet. The petitioner Mrunal, in Writ Petition No. 1668/2010, has secured 650 marks out of 1100 and her marks-sheet dated 13-7-2007 places her in 'second' class with percentage as 59.09. Her final year marks-sheet dated 15-2-2009 shows that she has secured 713 marks out of 1000 and places her in 'Pass' division. This marks-sheet reveals no occasion to grant any grace marks and also does not employ word "CON". The petitioner Sumit, in Writ Petition No. 1669/2010, has produced his marks-sheet of 1st year dated 13-7-2007 which shows that he has secured 627 marks out of 1100. The marks-sheet shows that said marks are 57 % and expressly places him in 'second' class. His final year marks-sheet dated 15-2-2009 shows that he has secured 634 marks out of 1000 and it places him in 'Pass' division. This marks-sheet does not warrant grant of any grace marks for passing and also does not carry word "CON". 12. The marks-sheet shows that said marks are 57 % and expressly places him in 'second' class. His final year marks-sheet dated 15-2-2009 shows that he has secured 634 marks out of 1000 and it places him in 'Pass' division. This marks-sheet does not warrant grant of any grace marks for passing and also does not carry word "CON". 12. Perusal of all marks-sheets of respective petitioners do not show that they have been given any grace marks or that their failure has been condoned. Their marks-sheets when viewed in the background of legal provisions, only show that they have not passed final year examination in single attempt. This fact is not in dispute even at the instance of the petitioners. The concept of passing in 'first class with condonation' as contained in RE 5 of Regulations in Engineering / Technology is, therefore, not relevant even otherwise. The Regulations framed by respondent no.5 Board do not contain any provision for passing in 'first class with condonation'. It only envisages passing in 'first class' in single attempt. The petitioners have not passed accordingly in single attempt and hence they cannot be treated as candidates who have passed in 'first class'. But then, the stand of respondent no.5 Board before this Court on affidavit is contrary to the Rules and information made available by it to the petitioners in admission brochure. Paragraph 2 therein specifically deals with eligibility and paragraph or Rule 2.1 stipulates required educational qualifications. The candidate passing Diploma examination in 'first class with condonation' as per ER-1991 Regulation of Pharmacy Council of India is held & made eligible by respondent no.5 as per this brochure. If concept of 'first class with condonation' is not adopted by respondent no.5 Board, its mention in para 2.1 was uncalled for and also unsustainable. Those words "first class with condonation", as used in para 2.1 obviously cannot be interpreted by taking recourse to RE-5(B) of Regulations for Engineering and Technology. The Regulations of respondent no.5 Board do not define said idea at all and still use it in para 2.1. The reason for cancellation of admissions of the petitioners, as communicated by Dr. S.K. Mahajan, in-charge Director of respondent no. 5, to the office of Secretary, Admission Controlling Committee of State Government, is that the petitioners are disqualified as Rule 2.1 is not fulfilled. The reason for cancellation of admissions of the petitioners, as communicated by Dr. S.K. Mahajan, in-charge Director of respondent no. 5, to the office of Secretary, Admission Controlling Committee of State Government, is that the petitioners are disqualified as Rule 2.1 is not fulfilled. In other words, according to Board requirements of para 2.1 above are not fulfilled. That paragraph / Rule also employs the words "first class with condonation". All marks-sheets of the petitioners perused by us, show that they have passed final year examination with more than 60 % marks. Though in the light of RP-10 prescribing standard of passing and award of class, petitioners cannot be declared to have passed the related examination in first class. When concept of 'first class with condonation' is not defined and still being held out by respondent no.5 Board, we have to attempt to understand it. 13. It is important to note that a third agency, namely, Admission Controlling Committee, has found petitioners eligible for admission and after looking into their merits, they were admitted. The respondent no.5 Board has itself stipulated a concept not adopted by it as a eligibility norm for admission. Said concept of passing in 'first class with condonation' can not be associated with RE-5(B) & its ingredients are not met with here. Hence, said concept is required to be interpreted on a clean slate in the present facts. One need not confuse it with a known concept of passing in 'first class with condonation' as understood in engineering or technology disciplines by Board. An open & un-prejudiced approach is essential. “First class” & 'first class with condonation' are two phrases placed in juxtaposition and in alternative to each other. Both occupy & operate in different spheres. Both are neither synonymous nor overlapping. Thus construed, it is manifest that a candidate who cannot satisfy the requirement of RP-10(B) framed by Board to regulate diploma courses, (18) though he secures more than 60 % marks, can only be treated as a candidate who has passed in 'first class with condonation'. 14. Condonation itself implies grant of some concession, dilution of a mandate or then, extending some benefit as an exception. In law, said benefit may be available subject to stipulated terms & conditions. First class requires 60% or more marks. Here, law requires that percentage in single attempt. 14. Condonation itself implies grant of some concession, dilution of a mandate or then, extending some benefit as an exception. In law, said benefit may be available subject to stipulated terms & conditions. First class requires 60% or more marks. Here, law requires that percentage in single attempt. Hence, in present case, what is available for condonation is only number of attempts and nothing else. A student otherwise securing more than 60% marks and taking second attempt for it or a student securing less than 60% marks can not be treated to have passed in first class due to specific requirement of law. But then there is no bar to treat a student securing more than 60% marks in more than one attempt as having passed the related examination in first class with condonation. If this is not accepted as contingency in which the concept of “first class with condonation”, its mention in Rule or para 2.1 of the brochure is rendered nugatory. In facts & law as presented to us, we do not see anything inconsistent with this line of appreciation & interpretation. No other circumstance more befitting than instant one can be visualized to apply said concept. Admission Committee had expertize to understand the marksheets of petitioners and it definitely could not have treated petitioners as candidates who have passed in first class. It was duty of the respondents to explain how & why petitioners have been admitted by an expert Admission Committee. No records of said process are produced before us. The situation at hands may necessitate an attempt to resolve confusion in interpretative exercise, if any, in favour of the petitioners. All petitioners were treated by the Admission Controlling Committee as candidates who have passed Diploma course in Pharmacy in 'first class with condonation' in terms of Ruel or para 2.1 of the brochure. We, therefore, also hold that they were rightly admitted by that Committee. 15. In any case, the petitioners can not be blamed for bringing about a situation in which they are admitted. Their mark-sheets were available to Admission Committee & there is nothing to show that said mark-sheets were mis-interpreted by that committee. Their bonafides are not in dispute. We, therefore, also hold that they were rightly admitted by that Committee. 15. In any case, the petitioners can not be blamed for bringing about a situation in which they are admitted. Their mark-sheets were available to Admission Committee & there is nothing to show that said mark-sheets were mis-interpreted by that committee. Their bonafides are not in dispute. The events are genuine enough to lean in favour of the students even if sympathetic view is deemed necessary, Hence, following the reasons in & course adopted by this Court in Suyog s/o. Vilasrao Jain Vs. The State of Maharashtra & others (supra), admissions, studies & performance of all petitioners in B.Pharm, degree course needs to be recognized as valid. In Division Bench judgment relied upon by the Adv. Jadhvar, admission was denied & thus controversy arose at very early stage. It therefore has no relevance in present matter. 16. In this situation, the directions issued by respondent no.5, cancelling the admissions of the petitioners before us are unsustainable. Same are accordingly quashed and set aside. There is no defect in direct admissions given to them in 2nd year of B.Pharm. Degree course. The petitioners have been protected by interim orders of this Court. We hereby confirm those interim orders. Thus, their results, if withheld, shall be declared within a period of two months from today, if there is no other legal impediment. (20) 17. If respondent no.5 has not adopted the concept of "first class with condonation", we direct it to immediately remove the same from its next brochure to be supplied for admission to direct 2nd year of four years' Degree course in Pharmacy. 18. In the peculiar facts, though we allow the petitions and make rule absolute in the above terms, we are not inclined to award costs. Rule made absolute accordingly in terms of paragraph 16 above. No costs.