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2016 DIGILAW 2222 (GUJ)

Mriga Ravi Swamy v. State of Gujarat

2016-12-14

N.V.ANJARIA

body2016
JUDGMENT : N.V. Anjaria, J. All the ten petitioners have approached this Court by filing the present petition seeking a direction to command the respondents to set aside decision of cancelling petitioners' admission to the course of Bachelor of Dental Surgery. It is prayed to direct the respondents to permit the petitioners to prosecute their studies at respondent No.5-Goenka Dental College, Gandhinagar. It is the case of the petitioners that they were admitted on merits in the management quota but subsequently by means of oral communication, allegedly at the instance and instructions of the third and fourth respondents, admission given to them came to be cancelled. 2. The process of admission to the Professional Medical Educational Courses for the Academic Year 2016-17 was undertaken by the third respondent-the Admission Committee for Professional Medical Educational Course (hereinafter referred to as 'the Admission Committee'). At the end of the counselling for the purpose of the vacant seats, reshuffling was undertaken. As authorised by the Admission Committee, respective colleges undertook the task of admission to the students. 3. The petitioners' case is that they applied for admission in the Bachelor of Dental Surgery Course to the respondent No.5 College as they were possessing more than the minimum qualifying marks as envisaged under Rule 4(5) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Under Graduate Course) Rules, 2016. The details of each of the ten petitioners with their percentile and merit number are mentioned in the tabular form as under. Sr. No. Name of Student PCB Gujarat Percentile ACEMEC Merit No. 1 Nehakumari Kailash Gupta 88.59 9621 2 Palak Jitendrakumar Agarwal 75.96 14638 3 Vagmi Troshar Bhatt 73.11 15398 4 Jhanvi Yogesh Patel 78.11 13230 5 Jenil Jagdishbhai Malaviya 79.94 12054 6 Mriga Ravi Swamy 78.45 11786 7 Raj Bharatbhai Patel 64.8 8 Krushna Subodh VYas 79.88 12463 9 Yadi Alap Patel 86.24 10 Hani Amitkumar Patel 88.39. 8972 11 Nihar Lalit Jhabak 86.24 9974 3.1 In exercise of powers under sub-section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act, 2007, the aforementioned Rules of 2016. The seats available for admission are classified into Government seats and Management seats as per Rule 3. Rule 4 deals with eligibility for admission in case of both the categories of the seats. The seats available for admission are classified into Government seats and Management seats as per Rule 3. Rule 4 deals with eligibility for admission in case of both the categories of the seats. Sub-rule (5) of Rule 4 reads as under. "(5) Minimum qualifying standard for admission: A. For Government Seats (1) No candidate shall be admitted in the professional medical educational courses unless he fulfils the eligibility criteria including the minimum qualifying percentage/percentile. (2) The minimum percentage in qualifying examination for admission, obtained in both theory and practical, shall be as follows, namely: (a) For Medical and Dental Courses (MBBS and BDS) and Ayurveda (BAMS): (Physics, Chemistry and Biology) (i) For General Category candidates including EWS : 50.00% (ia) For Physically Disabled Candidate belonging to General Category : 45% (ii) For candidate belonging to Scheduled Castes :Scheduled Tribes and Socially and Educationally Backward Classes (excluding creamy layer) including Physically Disabled candidates of respective categories : 40% (b) For B.Sc. Nursing Courses: (Physics, Chemistry, Biology and English) : 45% (i) For General Category candidates including EWS and Physically Disabled Candidate (ii) For candidate belongs to Scheduled: 40% Castes, Scheduled Tribes and Socially and Educationally Backward Classes (excluding creamy layer) including Physically Disabled candidates of respective categories 40.00% (c) For Homoeopathy/Naturopathy/Physiotherapy/ Orthotics and Prosthetics/ Optometry/Audiology and Speech Language (Physics, Chemistry and Biology) 45.00% (i) For General Category candidates including EWS and Physically Disabled candidate (ii) For Scheduled Castes, Scheduled : 40% Tribes and Socially and Educationally Backward Classes (excluding Creamy layer) including Physically Disabled candidates of respective categories 40.00% (c) For Homoeopathy/Naturopathy/Physiotherapy/Orthotics and Prosthetics/Optometry/Audiology and Speech Language Pathology and Occupationally Therapy Courses: (Physics, Chemistry and Biology) (i) For candidates belonging to all categories : Pass (3) The minimum percentage of aggregate marks obtained in Gujarati Common Entrance Test (GUJCET) for candidates shall be as follows, namely:- a. For Medical and Dental Courses (MBBS and BDS): (I) For General Category candidates including EWS: 50.00% (a) For Physically Disabled candidate: belonging to General Category 45.00% (ii) For scheduled Castes, Scheduled : Tribes and socially and Educationally Backward Classes (Excluding Creamy Layer) including physically disabled candidates of respective categories 40.00% (b). For other Courses (other than the Medical and Dental courses): The candidate shall have appeared in the Gujarat Common Entrance Test (GUJCET) of the current academic year. For other Courses (other than the Medical and Dental courses): The candidate shall have appeared in the Gujarat Common Entrance Test (GUJCET) of the current academic year. B. For management seats: The minimum qualifying standard for the management seats of MBBS and BDS courses shall be the percentile obtained in NEET as may be notified from time to time. (6)(a) Sons and Daughters of All India Services Officers viz. Indian Administrative service, Indian Police Service and Indian Forest Service allotted to the Gujarat State and serving outside the Gujarat State on deputation, and (b) Sons and daughters of Gujarat Government Employees, who have been posted outside the Gujarat State for the administrative reasons, shall be treated at par with the candidates under sub-rule (1) provided they have passed the qualifying examination from the respective State Board and have appeared in the Gujarat Common Entrance Test conducted in the current academic year and obtained qualifying marks under item a. of sub-clause (3) of clause A of sub-rule (5) of rule 4. In such cases, his candidature shall be included in the Gujarat Board merit list referred to in clause (a) of sub-rule (2) of rule 11. If such a candidate has passed the qualifying examination from the Central Board of Secondary Education or the Council of Indian School Certificate Examinations, New Delhi his candidature shall be included in the merit list of respective Board referred to in clause (b) of said sub-rule (2) of Rule 11. Notwithstanding, anything contend in these rules, he will be eligible for management seats irrespective of the fact that such candidate has passed qualifying examination from a school located in the state or outside the state of Gujarat." 3.2 As per the case of the petitioners, as they were holding more than 70% percentile against the minimum qualifying percentile of 50%, they could successfully secured admission at respondent No.5 college. They remitted fees of Rs.01,44,500/- towards half-yearly payment and that the petitioners have paid a sum of Rs.02,12,000/- towards total fees. Surreptitiously, as per the petitioners say, on 21st October, 2016 Head of the Department of the fifth respondent instructed the petitioners to collect the original documents and to get refund of the fees stating that their admissions were cancelled. Representation of the guardians of the petitioners did not yield anything, which led the petitioners to file the present petition. 4. Heard learned advocate Mr. Representation of the guardians of the petitioners did not yield anything, which led the petitioners to file the present petition. 4. Heard learned advocate Mr. Shivang Shukla for the petitioners, learned Assistant Government Pleader Mr. Utkarsh Sharma for respondent Nos. 1 to 3, learned advocate Mr. Varun Patel for respondent No.5 and learned advocate Mr. Nikunt Raval for the newly added respondent-Central Council. None appeared for respondent No. 4. Respondent Nos. 3 and 5 have filed their affidavit-in-replies. 4.1. The stand of the third respondent-Admission Committee in its material part is available from the averments in paragraphs 6 and 7 of the affidavit-in-reply, extracted hereunder. "6. ... ... it is clearly coming on record that as many as 26 students who were admitted under the vacant seats as per Rule 17 of Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. However, it is an undisputed fact that such vacant seats are to be filled up by the institute on its own and are subsequently sent for verification to the admission committee. 7. ... ... as the students came to be purely admitted on the basis of minimum percentage in their qualifying examination obtained in theory and practical and the institute completely ignored minimum eligibility as per NEET/GUJCET as the case may be, objections were raised and hence ultimately it has resulted in cancellation of the admission. It is also undisputed fact that there has been complex set of litigation before the Hon'ble Apex Court and ultimately NEET/GUJCET for the current academic year has been held mandatory to grant any admission therefore, there was no question of any exemption under 17(B) and no such exemption has been granted to anyone in view of the direction of the Hon'ble Apex Court. Therefore, nobody can claim any right contrary to the eligibility criteria prescribed under Rule 4(5) and if at all there is any dispute with reference to eligibility criteria, the same has to be addressed to Dental Council of India." 4.2. Therefore, nobody can claim any right contrary to the eligibility criteria prescribed under Rule 4(5) and if at all there is any dispute with reference to eligibility criteria, the same has to be addressed to Dental Council of India." 4.2. A stand is thus taken by the fifth respondent that as far as filling up of the vacant seats is concerned, for the last academic year, that is 2015-16, a clarification was available from third respondent-Admission Committee that vacant seats can be filled up by the college concerned on the basis of inter se merit list of the applicants/institute considering 10+2 H.S.C. Examination qualification as per the criteria of Dental Council, however for the current academic year there was no such clarification, as a result of which the petitioners could not be continued with their admission and the same was cancelled. 4.3. A further affidavit-in-reply was filed by the third respondent stating that there was a litigation with reference to NEET Examination and the Supreme Court had passed orders stipulating inter alia that NEET would be mandatory for the purpose of admission to M.B.B.S. And B.D.S. Courses. The Government of India however brought out Ordinance of 2016 whereby it was clarified that for the current year the State Government seats should be filled-in where a particular State has conducted examination. It was, therefore, sought to be submitted that admissions except by adherence to the above two modes would amount to overreaching the directions of the Apex Court. It was however stated that the final clarification has to come from the Dental Council as far as the vacant seats are concerned. 5. From the facts on record it transpires that the issue pertains to filling-up of vacant seats which may remain available after the admission process is declared as completed by the Admission Committee. The Admission Committee completed the admission process to the course in question on 05th October, 2016. The fifth respondent college thereafter intimated that 47 seats had remained vacant after completion of the counselling. The fifth respondent was advised to fill up the said 47 vacant seats as per the relevant Rules. As stated by the fifth respondent, vacant seats were notified and displayed on the official website. In response, the fifth respondent college received 33 applications, of whom five students were qualified as per the criteria of 50% marks. The fifth respondent was advised to fill up the said 47 vacant seats as per the relevant Rules. As stated by the fifth respondent, vacant seats were notified and displayed on the official website. In response, the fifth respondent college received 33 applications, of whom five students were qualified as per the criteria of 50% marks. The remaining 26 seats were offered to the students including the petitioners as they were qualified as per the eligibility criteria as per the Regulations of Dental Council of India for Bachelor of Dental Surgery (BDS) course. The said minimum criteria is that the student has secured 50% in Physics, Chemistry and Biology in 10+2 H.S.C. Examination. 5.1. It is unequivocally stated by the fifth respondent that in the last academic year under the similar circumstances, the third respondent-Admission Committee by letter dated 23rd February, 2016 permitted the fifth respondent college to fill-up the vacant seats considering 10+2 H.S.C. qualifying Examination, that is as per the eligibility criteria prescribed by the Dental Council for Bachelor of Dental Surgery Course. It is further stated, "Awaiting such clarification/permission, since the academic year was about to start on 15.10.2016, the answering respondent college, after informing and counselling the students and their parents about the aforesaid situation (i.e. awaiting clarification/ permission of Admission Committee), had permitted those 26 students to attend classes from 15.10.2016. However, since there was no clarification/permission received from respondent No.3 or the government as also since the admission process for Para Medical Courses was to be started from 24.10.2016, the answering respondent college had no option but to inform those 26 students including the petitioners herein on 21.10.2016 (i.e. 7 days after the start of the academic year), to take admission elsewhere." 5.2. Filling-up of vacant seats is governed by Rule 17 of the Rules, which reads as under. "17. Vacant Seats :-(A) for government seats: After the admission process is declared as completed by admission committee, if the seats remain vacant or vacancy arises due to any circumstances, such vacant seats shall be displayed on the official website, and on the notice board of the office of the Admission Committee and the same shall be intimated to the Colleges or Institutions wherein the seats are vacant. In case any candidate requires admission on such vacant seats he shall apply directly to such Colleges or Institutions. In case any candidate requires admission on such vacant seats he shall apply directly to such Colleges or Institutions. The vacant seats shall be filled by giving priority to the candidates of Gujarat State. The Colleges or Institutions shall admit the candidates on the basis of inter-se merit of the applicants; subject to the eligibility criteria, in respect of the course the candidate is granted admission, as laid down by the respective council or as the case may be, the respective university. (B) For Management seats: If management seats remain vacant in the MBBS and BDS courses after completion of admission process, the government may grant exemption from the provisions of these rules as it deems appropriate. For other courses, Colleges or Institutions shall admit the candidates on the basis of inter-se merit of the applicants; subject to the eligibility criteria, in respect of the course the candidate is granted admission, as laid down by the respective Council or as the case may be, the respective University. The vacant seats shall be filled by giving priority to the candidates belonging to Gujarat State." 6. From the aforesaid Rule what is clear is firstly that if the seats remained vacant after completion of the admission process, the candidates may apply directly to colleges or institutions concerned. As far as management seats are concerned, they remained vacant in the M.B.B.S. And B.D.S. Courses. After completion of the admission process, Government may grant exemption from the provisions of this Rule. In the third place, the colleges or institutions concerned are permitted to admit candidates on the basis of inter se merit of the applicants. Fourthly, this would be subject to eligibility criteria in respect of the course concerned as laid down by the respective Council or the respective University. It is further submitted that the vacant seats shall be filled by giving priority to the students pertaining to Gujarat State. For the purpose of present case, it would be Dental Council and the eligibility criteria fixed by the Dental Council for the B.D.S. Course would apply, if Rule 17 is to operate for filling-up the vacant seats. 6.1. As far as the Dental Council prescription is concerned, B.D.S. Course Regulations contemplate eligibility criteria to be as under, extracting relevant. "2. For the purpose of present case, it would be Dental Council and the eligibility criteria fixed by the Dental Council for the B.D.S. Course would apply, if Rule 17 is to operate for filling-up the vacant seats. 6.1. As far as the Dental Council prescription is concerned, B.D.S. Course Regulations contemplate eligibility criteria to be as under, extracting relevant. "2. He/She has passed qualifying examination as under:- a. The higher secondary examination or the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of Physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than the core course for English as prescribed by the National Council for Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education; introduction of the 10+2+3 years educational structure as recommended by the National Committee on education;" 6.1.1. For selection of candidates and the procedure of selection, it is Rule 5 which reads as under. "5. Procedure for selection to BDS course shall be as follows:- i. In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to BDS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above and must have passing marks in English. ii. In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less that 50% marks in Physics, Chemistry and Biology taken together in competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or any other categories notified by the Government the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above: Provided that a candidate who has appeared in the qualifying examination the result of which has not been declared, he may be provisionally permitted to take up the competitive entrance examination and in case of selection for admission to the BDS course, he shall not be admitted to that course until he fulfils the eligibility criteria as per above regulations." 7. On a careful consideration of the scheme of the aforesaid Rules for admission, in particular operational ambit of Rule 17, it could be seen that Rule 17 operates after the regular admission is declared to be completed by the Admission Committee. It deals with the post-admission situation when the seats are available vacant to be filled-in. For the purpose of filling-up of vacant seats, Rule 17 has an independent operation. The respective college is empowered to effect admissions on the basis of the inter se merits. As the nature of Rule clearly discerns, eligibility criteria for filling-up vacant seats is one as laid down by the Council concerned, in the present case Dental Council-or the University, as may be the case. Admittedly, the petitioners fulfil the criteria and they possess the minimum qualifying eligibility criteria as prescribed by the Dental Council in its Regulations. 7.1. The manner in which Rule 17 was operated for the previous academic year 2015-16 is c clear clue provided. A copy of communication dated 23rd February, 2016 addressed by the Chairman, Admission Committee to the Vice Chancellor of Gujarat University had stated that vacant seats were allowed to be filled-up by the institute itself under Rule 27 of the Admission Rules, 2015-16. It was stated that admission on the vacant seats would be conducted according to inter se merit list of the same institute considering 10+2 H.S.C. qualifying examination. Rule 22 of the Admission Rules of the Academic Year 2015-16, copy of which was given to the Court for perusal, was pari materia with Rule 17 of the Rules of the current academic year dealing with the vacant seats. Rule 22 of the Admission Rules of the Academic Year 2015-16, copy of which was given to the Court for perusal, was pari materia with Rule 17 of the Rules of the current academic year dealing with the vacant seats. The stand of the Admission Committee that litigation in respect of NEET Examination and the Ordinance issued by the Central Government would come in way from operating the Rule for vacant seats. In the same way, is difficult to be countenanced as on a closure consideration the said developments did not interact, nor did have the bearing on the operation of Rule 17 as it stands to operate. The respondent-Dental Council has in its submission through learned advocate, confirmed that the petitioners fulfil the minimum eligibility requirement in terms of the Dental Council's Regulations referred to here-in-above. 7.2. The operation of Rule 21 for the previous academic year, which Rule was pari materia to Rule 17 applied for the current academic year for filling-up vacant seats, is no less significant aspect. In the field of education, consistency in operation of Rule or the mode adopted for operating a particular rule, becomes guiding principle, for, the emphasise, is on uniform application. It is uniform application of Rules which is to be advocated to bring out of element of certainty in student community. Unless the application, operation and construction of a particular Rule is not noticed to be mischievous or absurd or working against the merit as such, there is no reason why it should not be applied in same way. The Court should lean on the construction which is consistent and uniform. 8. Learned advocate for the petitioner could rely on the decision of the Division Bench of this Court in Association of Self Financing Colleges v. State of Gujarat [ 2013 (3) GLH 500 ] which inter alia read-down Rule 17 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Rules, 2013 in respect of admission to Master of Computer Application Course. The said Rules framed by the State Government was not permitting the vacant seats to be offered to the students who had not appeared in the Common Management Aptitude Test (CMAT). The said Rules framed by the State Government was not permitting the vacant seats to be offered to the students who had not appeared in the Common Management Aptitude Test (CMAT). The Division Bench read down Rule 17(2) for its sub-clause (ii), ruling that candidates who are eligible as per sub-rule (2) of Rule 5 and have appeared in CMAT/CAT/MAT or any other such tests conducted in the corresponding year as prescribed by AICTE, and thereafter to the candidates who are eligible as per sub-rule (2) of Rule 5, but have not appeared at CMAT/CAT/MAT or any other such tests. 8.1. The Division Bench held, reading down and bringing out the purpose of the Rules, that Rule 17 is required to be interpreted to mean that candidates who have appeared in CMAT or any other such test conducted in the corresponding year as prescribed by AICTE may be admitted and thereafter the candidates who are eligible but have not appeared in CMAT, may be admitted. The State Government was directed to permit the colleges and institutes to admit students for the academic year concerned, who were otherwise eligible for admission but had not appeared at CMAT on the seats declared vacant. The view taken by this Court in the present case derive support from the ruling and ratio of the decision of the Division Bench in Association of Self Financing Colleges (supra). 9. The Division Bench in Association of Self Financing Colleges (supra) referred to the decision of the Apex Court in State of Himachal Pradesh v. Himachal Institute of Engineering and Technology, Shimla [ (1998) 8 SCC 501 ], in which management was permitted to fill-up the vacant seats without insisting for appearance of the student at the entrance test. If the vacant seats could be filled up by adhering to the merit criteria and without giving a go-bye to the minimum eligibility criteria prescribed for the purpose of course in question, it would not be unreasonable to offer vacant seats at the end of the regular admission process, to those students who could be admitted from their inter se merit even though they may not have passed the special test. This view is possible, more particularly having regard to the facts of the case and considering the language of Rule 17 allowing its independent operation for giving admission to the students as per eligibility prescribed by the Council or the University concerned, as the case may be. 9.1. The petitioners herein were already offered admissions. They were coming up on merit having secured necessary minimum qualification marks. Undisputedly, the vacant seats were available. It is an admitted position that seats were available and was vacant. Admissions given to the petitioners were subsequently cancelled. It appears that the decision to cancel the admission was actuated by not applying the operation of Rule 17 criteria and in the manner the Rule is intended to apply. 10. For the foregoing reasons and discussion, the petition stands allowed. The decision communicated to the petitioners to cancel their admissions is hereby set aside. The petitioners are declared eligible and entitled to be admitted to the vacant seats under Rule 17 of the Rules and respondent Nos. 3, 4 and 5 shall grant and continue admissions of the petitioners and permit them to continue their studies in the Course of Bachelor of Dental Surgery at the fifth respondent college. The petitioners shall be deemed to have been admitted validly by virtue of this order and the time elapsed for prosecuting the present petition shall be considered for condoning delay in making up the requisite period of studies as may be necessary. If any other formalities are required to be completed at the end of the petitioners, they shall be allowed to be completed immediately by the respondents. 11. Petition is allowed in the aforesaid terms. Direct service is permitted. Petition is allowed.