Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 2238 (GUJ)

Hirendra Ratnashanker Pandey v. Member Secretary

2016-12-26

N.V.ANJARIA

body2016
JUDGMENT N.V.ANJARIA, J. By filing this petition the petitioner seeks a direction against the respondent authorities to consider his case for admission to the course of B.E. Mechanical. It is prayed to declare that the petitioner is eligible for admission to the said course. 2. The second respondent in the array of parties is the College where the petitioner seeks admission. The first respondent is the Admission Committee for Professional Courses formed under Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 and regulates the mechanism of admission as well as fixation of fees for Bachelor of Engineering course and other professional courses. The Rules are framed by the State Government called Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013. 3. The petitioner passed the H.S.C. qualifying examination in Academic Year 2015-16 from one Green Valley High School, Vadodara and aspired to be admitted to the course. It is averred in the petition that he secured 52.6% marks in total subjects. In the theory subjects, which only count for the purpose of admission, he could secured 44.67%. As per the admission procedure published for the academic year concerned, as far as the Management Quota seats was concerned, to which the petitioner wanted to be admitted, it was stipulated that those securing minimum requisite marks and having got their names figured in the merit-list prepared by the first respondent, shall be considered to be eligible for grant of admission. 3.1 Rule 5 of the aforementioned Rules deal with the eligibility for admission. It is provided that for the purpose of admission, a candidate shall have passed the qualifying examination-in petitioner’s case H.S.C. examination-with minimum eligibility criteria of percentage of marks in subjects prescribed by the All India Council for Technical Education (AICTE) from time-to-time. 3.1 Rule 5 of the aforementioned Rules deal with the eligibility for admission. It is provided that for the purpose of admission, a candidate shall have passed the qualifying examination-in petitioner’s case H.S.C. examination-with minimum eligibility criteria of percentage of marks in subjects prescribed by the All India Council for Technical Education (AICTE) from time-to-time. In the AICTE Hand Book titled as “All India Council for Technical Education-Approval Process Handbook (2016-17)’, considered to be a legal document under the provisions of All India Council for Technical Education Act, 1987, copy of which is on record of the petition, inter alia prescribes that for four years duration of full time Engineering and Technology programme being the Under Graduate Degree Programme, the eligibility required is passing of 10+2 examination with Physics and Mathematics as compulsory subjects along with one of the subjects to be amongst Chemistry, Bio-technology, Biology or Technical Vocational subject. As far as the minimum marks is concerned, it is provided thus, “obtained at least 45% marks (40% in case of candidate belonging to reserved category) in the above subjects taken together” 3.2 The first respondent Committee issued advertisement dated 19.05.2016 in the newspapers announcing the admission process specifying the aforesaid criteria of minimum qualifying marks for securing admission. In the Engineering courses for open category, the requirement was, as noted, at least 45% which was equivalent to 135 marks out of 300 marks. The petitioner had secured 134 marks equivalent to 44.67%. It appears that his application was considered and the first respondent Committee after scrutinising the application declared the petitioner as ineligible for Engineering course as the petitioner had not secured the minimum qualifying marks. In the list of ineligible candidates dated 15.06.2016, therefore, the name of the petitioner was published. It appears that the second respondent College had allowed entry to the petitioner in the admission list on 13.09.2016. The list was thereafter submitted by the College to the Admission Committee on 14.10.2016. The admission was not found to be in order and the petitioner-student was called for returning of the fees. 4. The contention of learned advocate for the petitioner Mr.H.N. Sevak could hardly be countenanced that as the list of candidates admitted in the Management Quota was submitted by the second respondent-College and in that the name of the petitioner figured, the Admission Committee could not have disqualified the petitioner. 4. The contention of learned advocate for the petitioner Mr.H.N. Sevak could hardly be countenanced that as the list of candidates admitted in the Management Quota was submitted by the second respondent-College and in that the name of the petitioner figured, the Admission Committee could not have disqualified the petitioner. There is no gainsaying that the authority to consider the admission eligibility finally was the first respondent-Admission Committee. According to the stand of the first respondent as evinced from the affidavit-in-reply filed on its behalf, was that the petitioner had secured 134 marks out of 300 whereas the minimum marks required for securing admission in the Engineering Course was 135. 4.1 Eliciting in the further affidavit filed on behalf of the first respondent, it was contended that as many as five students were found to be having 134 marks out of 300 in the qualifying examination who were competing in the open category, and that they were also declared disqualified with other students on 15.06.2016. It was a case of the first respondent deserving acceptance that the first respondent while carrying out the exercise of admitting the students, the guidelines prescribed in Rule 19 of the Notification dated 30.04.2013 with further amendments dated 18.05.2016 therein. According to the first respondent, securing 134 marks out of 300 marks was not satisfying the minimum eligible criteria to render the petitioner eligible to be admitted to the Course. 4.2 Learned advocate for the petitioner submitted that notwithstanding the above, the petitioner had secured 44.67% marks and that his 44.67% marks was required to be rounded off to 45%. In his submission, 44.67% marks was required to be treated equivalent to 45% to confer the petitioner with the eligibility. Learned advocate forcefully pressed into service the decision of the Division Bench of this Court in Virenbhai Vs B.Ed. Centralise Admission Committee being Special Civil Application No.8606 of 2009 decided on 03.12.2009. In that case, the Division Bench referred to and relied on another decision of this Court in Patel Amitaben Amrutlal Vs Hemchandracharya North Gujarat University being Special Civil Application No.5854 of 2008 decided on 14.07.2008, and further took into account the decision of the Apex Court to place reliance thereon, in State of U.P. Vs Pawan Kumar Tiwari [ (2005) 2 SCC 10 ], to hold in paragraph 7 as under. “We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one-half or more, its value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment.” (Para 7) 5. The aforesaid law could remain no longer a good law in view of subsequent decision of the Division Bench in Bhanushali Parth Bipinbhai Vs Admission Committee for Professional Medical Education being Special Civil Application No.13584 of 2011 decided on 07.10.2011. In Bhanushali Parth Bipinbhia (supra), the reliance was placed by the said petitioner on Pawan Kumar Tiwari (supra) and the Division Bench considered the said decision. Notably, another Supreme Court decision in Mridul Dhar (Minor) Vs Union of India [ (2005) 2 SCC 65 ] was taken into account. Before the Division Bench other decisions of other High Courts. 5.1 Bhanushali Parth (supra) surveyed the decisions on the point and held thus, “Having considered the entire issue threadbare and also having considered the authoritative pronouncement of the Apex Court and other High Courts, we are of the view that the petitioner is not entitled to any relief. When eligibility criterion has been fixed by statutory rules which lays emphasis to the minimum marks to be obtained, then in such a case, there cannot be a question of 'rounding off'. We hold that there is no power provided in the rules permitting any such rounding off or giving grace marks so as to bring up a candidate to the minimum requirement. The rules are statutory in nature and no dilution or amendment to such rules is permissible or possible by adding some words to the said statutory rules for giving the benefit of rounding or relaxation.” 5.2 About the Division Bench decision in Amitaben Amrutlal (supra), the Bench in Bhanushali Parth (supra) recorded that in Amitaben’s (supra) case, the petitioner had even appeared in the B.Ed. examination after getting admission, therefore the Division Bench held that the objection and the issue was rendered academic, therefore the Division Bench thought it fit not to disturb the petitioner. The Division Bench in Bhanushali Parth (supra) negative the contention that there was a vacancy in the Management Quota, therefore on that singular consideration of vacancy, the student should be granted admission by giving benefit of rounding-off. 6. A vain attempt was made by learned advocate for the petitioner to submit that the decision in Virenbhai Jayantibhai Jani (supra) was required to be followed and the petitioner ought to have been given benefit of rounding-off on the basis of the said decision. The argument was that the Division Bench in Bhanushali Parth (supra) considered and relied on the decision of the Supreme Court in Mridul Dhar (supra), whereas in Virenbhai Jayantibhai Jani (supra) decision also of Apex Court in Pawan Kumar Tiwari (supra) was relied on. It was submitted that though both the decisions were by the Apex Court, the decision in Pawan Kumar Tiwari (supra) was by a Three Judge Bench of the Supreme Court whereas the decision in Mridul Dhar (supra) was a Bench comprised of two judges. It was contended on such reasoning that this Court would have to follow the decision in Jayantibhai Jani (supra) in which a three judge Bench decision of the Supreme Court was relied on, instead of the decision in Mridul Dhar (supra) which considered and relied on a two judge decision of the Apex Court. 6.1 What learned advocate wanted to convey by aforesaid submission was that for the aforesaid reason he supplied, the decision in Jayantibhai Jani (supra) was required to be treated with higher degree of binding effect. It was a novel submission unknown to the law of precedent. The contention could not be accepted that a single judge would be bound by a Division Bench judgment in which a particular decision of the Supreme Court delivered by three judges as against the later judgment of the Division Bench taking a contrary view which, but, was on the basis of another Supreme Court judgment of a two judge Bench. Such a distinction is not maintained while applying the doctrine of precedent and is not tenable. Such a distinction is not maintained while applying the doctrine of precedent and is not tenable. When binding value of the Division Bench judgment vis-a-vis the another Division Bench judgment is to be considered, more particularly by a Bench of single judge, it cannot be decided on the basis of the criteria of strength of Supreme Court decisions respectively relied on by the two Division Benches. It is no argument in the arena of law of precedent that the Division Bench which relied on the Supreme Court decision with larger strength of number of judges, is binding to single judge, though the subsequent judgment of the Division Bench relying on the Supreme Court decision takes a contrary view but in that case the Supreme Court decision was with lesser strength. 6.2 The decision in Bhanushali Parth (supra) was not only a Division Bench decision later and subsequent in point of time, in that the Division Bench had considered the decision in Pawan Kumar Tiwari (supra) and after considering the same and by relying on another decision of the Supreme Court in Mridul Dhar (supra), took a contrary view to the previous decision of the Division Bench in Jayantibhai Jani (supra). It is the judgment of the Division Bench later point of time which would be required to be followed. As far as single judge is concerned, the binding would be the later decision, namely in Bhanushali Parth (supra). 6.3 It was a naive argument that single judge Bench should weigh the degree of binding nature of two Division Bench judgments on the basis of the strength of number of judges in the Supreme Court decision respectively relied on by the Division Benches and that one which relied on the judgment of the Supreme Court with larger strength has to be preferred over the other one. 7. For the foregoing discussion and reasons, the present petition is liable to be dismissed. Accordingly the same is dismissed. Notice is discharged. (Petition dismissed)