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Gujarat High Court · body

2018 DIGILAW 859 (GUJ)

Meetkumar Dineshkumar Patel v. Gujarat University

2018-07-13

R.SUBHASH REDDY, VIPUL M PANCHOLI

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JUDGMENT & ORDER : R. SUBHASH REDDY, J. 1. This Special Civil Application Is Filed Under Article 226 Of the Constitution of India, by the petitioners, who have completed their under- graduation i.e. Bachelor of Science in the field of Physics, have challenged the validity of Rule 10.2 of the Gujarat University Admission Rules, 2018 (Master of Science and P.G. Diploma) ('the Rules, 2018' for short) framed by the 1st respondent-University in exercise of powers under the provisions of Section 4 read with Section 22 of the Gujarat University Act, 1949 ('the Act, 1949' for short) and other consequential reliefs. 2. The petitioners have successfully completed Bachelor of Science (Under-graduate course) in the field of Physics from the 3rd respondent-College, which is autonomous institution, affiliated to 1st respondent-University. As such, they were qualified to seek admission to post graduate courses' offered by various aided and self financed institutions, which are affiliated to 1st respondent-University. Rule 10 of the Rules, 2018 referred above deal with distribution of seats among candidates of Gujarat University and other Universities. Rule 10 of the Rules, 2018 reads as under :- "10. Distribution of seats among candidates of Gujarat University and other Universities. For the purpose of admission, the available seats shall be distributed based on the merit list prepared as mentioned in 12.1: 10.1. 5% seats of available seats for admission shall be reserved for candidate who has passed qualifying examination from other university. 10.2 As per the resolution of Academic Council and Executive council held on 15.02.2018, 5% seats of available seats for admission shall be reserved for candidate who has passed qualifying examination from St. Xavier's College (Autonomous), Gujarat University, Ahmedabad." [2.1] Though Rule 10.2 of the Rules, 2018 referred above reads as if 5% available seats are reserved for candidates who have passed qualifying examination from 3rd respondent-College, (autonomous), Gujarat University will be applied from the current academic year, but it is clarified by the respondent that it is the restriction restricting eligibility of students of 3rd respondent-College to 5% seats available for admission in post graduate course. 3. As Stated In The Petition, Though The Petitioners Secured higher percentage then the cut off marks declared by 2nd respondent Admission Committee, they were shocked and surprised, as their names were not placed in the merit list. 3. As Stated In The Petition, Though The Petitioners Secured higher percentage then the cut off marks declared by 2nd respondent Admission Committee, they were shocked and surprised, as their names were not placed in the merit list. It is stated that on inquiry, they came to know that in view of restriction under Rule 10.2 of the Rules, 2018, separate cut off marks were declared for the students of 3rd respondent College. It is the case of the petitioners that they have completed their under-graduation course from the 3rd respondent-College, which is affiliated to 1st respondent-University, but by virtue of impugned Rule, their claim is restricted to only 5% of available seats. It is the case of the petitioners that there is no discernible difference between the students of 1st respondent University from other colleges and the 3rd respondent -College, which is autonomous college affiliated to 1st respondent-University. It is further stated that after completion of course they get degree from 1st respondent-University and restriction imposed in the impugned Rule is arbitrary and discriminatory amongst equals, as such, it violates rights guaranteed under Article 14 of the Constitution of India. It is the case of the petitioners that all the students who have completed their course from affiliated colleges of 1st respondent-University constitute a class and classifying students of University from other affiliated colleges and that too of 3rd respondent-College is not based on intelligible differentia and same has no rational nexus with the object sought to be achieved by such restriction. It is stated that 3rd respondent College was established in the year 1955 as grant in aid college. However, taking note of consistent and high quality of education provided by 3rd respondent College, the respondent No.1-University in deliberation with University Grants Commission ('UGC' for short), acknowledged and granted the respondent No.3 College status of an autonomous college. It is the case of the petitioners that recognition of a college as an autonomous college merely offers liberty to the said institution to exercise autonomy on certain matters, but the parent University continues to exercise general supervision over such colleges. In that view of the matter, there is no justification for restricting entry only to 5% of available seats for the students who have passed undergraduate course from the 3rd respondent-College. 4. Affidavit in reply is filed by Acting Registrar, Gujarat University on behalf of respondent No.1 and 2. In that view of the matter, there is no justification for restricting entry only to 5% of available seats for the students who have passed undergraduate course from the 3rd respondent-College. 4. Affidavit in reply is filed by Acting Registrar, Gujarat University on behalf of respondent No.1 and 2. In the reply affidavit, it is stated that the University has framed Rules for admission in Master of Science and Postgraduate Diploma for the academic year 2018-19 well in advance. The students were made aware on 29.05.2018 and on-line registrations was to be made between 30.05.2018 to 05.06.2018. Provisional merit list was published on 08.06.2018; merit list was prepared on 14.06.2018 and allotment of students in 1st round was made on 19.06.2018. It is submitted that the petitioners have challenged the Rules after merit list was prepared and Special Civil Application was filed on 26.06.2019. It is further stated that the students are required to submit their preference for admission to various colleges. It is stated that 1st petitioner has been granted admission in Gujarat Arts and Commerce College, Ahmedabad in the subject of physics. It is stated that 2nd petitioner had only shown preference for Department of Physics and Electronics and since he has not shown any other preference, he was not in the merit quota, as such he was denied admission. While denying various allegations made by the petitioners, it is the case of the respondent-University that 3rd respondent is affiliated college and it has applied for autonomy under Section 38B of the Gujarat University Act and was conferred autonomy. It is stated that Section 38B of the Gujarat University Act provides privileges to the autonomous colleges of autonomy in the matter of admission of students, prescribing course of study, imparting instructions and training, holding of examination and power to make necessary rules. It is stated that as 3rd respondent College has complete autonomy in granting admissions, as such, they have separate identity. Normally, University prescribes course of study, eligibility for admission, holding of examination etc., but the 3rd respondent College independently exercises these powers. Except award of degree the University has no regulatory role for admission process. It is stated that in view of the fact that 3rd respondent College is not having uniform standard, it is competent for the University to prescribe quota for the students of the respondent No.3-College. Except award of degree the University has no regulatory role for admission process. It is stated that in view of the fact that 3rd respondent College is not having uniform standard, it is competent for the University to prescribe quota for the students of the respondent No.3-College. It is stated that University has framed Rules after considering facts and circumstances of the case to the effect that 3rd respondent College has kept away itself from main stream of Gujarat University for admission process. In para 12 of the reply affidavit, the respondent University has given particulars of total number of available seats and distribution of seats amongst the students. Para 12 and 12.1 of the reply affidavit reads as under :- "12. Total seats available for admission to the M.Sc. Course of Gujarat University are 1777. Distribution of the seats amongst the students under the rules is as under :- Seats Sr. No. Name of University Seats. 1 Students of Gujarat University 1599 2 Students of St. Xaviers 88 3 Students of other statutory colleges 90 The Committee received 5466 applications for admission. The applications received from the students of Gujarat University, students of respondent No.3 College and the students of other statutory colleges are tabled as under :- Admission with valid rank Sr. No. Name of University Applications 1 Students of Gujarat University 3442 2 Students of St. Xaviers 124 3 Students of other statutory colleges 1900 12.1 I further submit that the allotment in the first round for admission from amongst these students is as under :- First round 1619 seats Sr.No. Name of University Allotment of Seats. 1 Students of Gujarat University 1471 2 Students of St. Xaviers 64 3 Students of other statutory colleges 84 Sr.No. Name of University Allotment of Seats. 1 Students of Gujarat University 1471 2 Students of St. Xaviers 51 3 Students of other Universities. 83 Thus, 53 students of respondent No.3 college sought allotment in the first round." [4.1] Further affidavit is filed by respondent Nos.1 and 2. In the further affidavit, it is stated that the petitioners have not disclosed before this Court of their admission for studying M.Sc. Course in 3rd respondent-College. Xaviers 51 3 Students of other Universities. 83 Thus, 53 students of respondent No.3 college sought allotment in the first round." [4.1] Further affidavit is filed by respondent Nos.1 and 2. In the further affidavit, it is stated that the petitioners have not disclosed before this Court of their admission for studying M.Sc. Course in 3rd respondent-College. It is further stated that as per Rules 20 of the Rules (wrongly mentioned as Ordinance), the petitioners can seek admission at any of the institutions affiliated to the Gujarat University on the basis of merit as seats are thrown open to the colleges themselves. It is stated that the petitioners are not bona fide students interested in seeking studies at Gujarat University. It is submitted that the petitioners have approached this Court lately on 26.06.2018, though rules of admission were notified and published on 29.05.2018 and therefore, prayed for dismissal of the petition. 5. The Learned Counsel Appearing For 3Rd Respondent Argued the matter, but no reply affidavit is filed on behalf of 3rd respondent-College. 6. We Have Heard Mr. Paritosh Gupta, Learned Counsel For The petitioners, Mr. S.N.Shelat, Senior Counsel with Ms.V.D.Nanavati, learned Counsel for respondent No.1-University and Mr. Paresh Dave, learned Counsel for respondent No.3. 7. Mr. Paritosh Gupta, learned Counsel appearing for the petitioners submitted that as per impugned Rule 10.2 of Rules, 2018, there is reservation of 5% of seats to the students of 3rd respondent College, but the respondent no.1 and 2 have prepared merit list to postgraduate course by restricting only to 5% of available seats. It is submitted that there is no ambiguity in the Rules, plain meaning of Rule is to be applied for giving benefit. It is further submitted that if it construed as restriction by restricting 5% of available seats only to 3rd respondent-autonomous College, then it is clearly discriminatory amongst class and is in violation of rights guaranteed under Article 14 of the Constitution of India. It is submitted that though respondent No.3-college was granted permission as autonomous college in the year 2014, present Rule is framed in the year 2018 without any justification. It is submitted that autonomy is given to 3rd respondent College in view of achievement of excellence in imparting education, but still 3rd respondent College is under general supervision of the 1st respondent University. It is submitted that autonomy is given to 3rd respondent College in view of achievement of excellence in imparting education, but still 3rd respondent College is under general supervision of the 1st respondent University. It is submitted that after completing the course, degree is given by 1st respondent University to the students who complete their undergraduate course. It is submitted that there is absolutely no basis for such discrimination and further by classifying amongst equal, there is no nexus which is sought to be achieved, as such, the impugned Rule is fit to be quashed. It is submitted that as the petitioners were deprived by applying impugned Rule, merit list prepared is also fit to be quashed by issuing direction to the respondent University to prepare fresh merit list without applying impugned Rule. Learned Counsel referred to relevant provisions of Gujarat University Act, 1949 and Guidelines issued by UGC. In support of his case, learned Counsel has relied on the judgment of the learned Single Judge of Calcutta High Court in W.P. No.13686(W) of 2009 decided on 11.09.2009 in the case of Suraj Konar and Ors. v/s. University of Calcutta and Ors, judgment of the learned Single Judge of Allahabad High Court in C.M.W.P.No.6951 of 1998 decided on 23.03.1998 in the case of Km. Shruti Chaturvedi and Ors. v/s. Allahabad University, Allahabad and Anr. and judgment of the Division Bench of Allahabad High Court in Special Appeal No.308 of 1998 decided on 31.07.1998 in the case of Allahabad University and Anr. v/s. Km. Shruti Chaurvedi and Ors. 8. On The Other Hand, Mr. S.N.Shelat, Learned Senior Counsel appearing for respondent Nos.1 and 2 has taken us to various provisions of Gujarat University Act, 1949, more particularly, by making special reference to provisions under Sections 38B, 38C and 38D and Section 4(18) of the said Act. It is submitted that there is no illegality or discrimination in the impugned Rule. It is submitted that 3rd respondent College is autonomous college and by virtue of autonomy, it is entitled to have its own admission process and fix curriculum activities, as good as University. It is submitted that the seats available in the 3rd respondent College are not thrown open and clubbed in the available seats of the University, as such, there is no illegality in restricting 5% available seats to the students of 3rd respondent College. It is submitted that the seats available in the 3rd respondent College are not thrown open and clubbed in the available seats of the University, as such, there is no illegality in restricting 5% available seats to the students of 3rd respondent College. It is submitted that though impugned rule is notified on 29.05.2018, the petition is filed on 26.06.2018 and it is not bona fide litigation, same is sponsored litigation at the instance of 3rd respondent college. In support of his argument that such restriction can be permissible by the impugned Rule, learned Senior Counsel has placed reliance on the judgments of the Hon'ble Supreme Court in the case of K. Duraisamy and Anr. v/s. State of T. N., (2001) AIR SC 717; Kumari Chitra Ghosh v/s. Union of India, (1970) AIR SC 35 and D.N.Chanchala v/s. The State of Mysore and Ors., (1971) AIR SC 1762. To answer allegation of the petitioners that there was no such restriction so far as seats in postgraduate course in Arts is concerned, it is submitted that there are 1798 vacant seats for the academic year 2018-19 in subject of arts. 9. Mr. Paresh Dave, learned Counsel appearing for 3rd respondent College referring to material papers supplied during the course of hearing submitted that though the 3rd respondent College is autonomous college, but same is affiliated to 1st respondent University and produced copy of degree certificate of Master of Science issued by the University for student of 3rd respondent College. Further, it is submitted that even after grant of autonomous status, 1st respondent University is having overall supervision on the running of the college. There is nominee of the University in the governing body of 3rd respondent College. It is submitted that there nominees of University in various boards of study in the 3rd respondent college. It is submitted that there is no reason for restricting students of 3rd respondent College only to 5% available seats by the University. It is further submitted that in post-graduation course in 3rd respondent college, seats are open for the all the students to apply for admission, as such, there is no reason or justification for restricting only 5% available seats to the students of 3rd respondent College. 10. It is further submitted that in post-graduation course in 3rd respondent college, seats are open for the all the students to apply for admission, as such, there is no reason or justification for restricting only 5% available seats to the students of 3rd respondent College. 10. Before we consider submissions advanced by learned Counsels, we deem it appropriate to refer certain provisions of the Gujarat University Act, 1949 and guidelines for autonomous colleges issued by University Grants Commission. Section 1(B) of the Gujarat University Act, 1949 defines autonomous colleges. It means a college which exercises power conferred on it under Section 38B. Section 38C and 38D of the Gujarat University Act, 1949 reads as under :- "38 C (1) For the purpose of enabling it to exercise the powers conferred on it under section 38B, an autonomous college, autonomous recognized institution or autonomous University Department shall appoint a Standing Committee consisting of- (i) the Principal of the college, or the head of the institution or the Department, as the case may be, as its ex-officio chairman; (ii) Heads of the Departments in the special subjects taught at degree level in the college, institution or Department, as its ex-officio members, and (iii) such other members not exceeding five as the college, institution or Department may think fit to appoint. (2) The standing Committee shall exercise such of the powers of the college, institution or Department under section 38 B as the, college, institution or Department may delegate to it. (3) The Standing Committee may appoint a special committee or committees for the purpose of exercising such powers and performing such functions of an authority of the University other than the Court, the Executive Council and the Academic Council, in relation to the college, institution or Department as the Standing Committee may, subject to such conditions as it thinks fit to impose, assign to it or them. 38 D (1) Every autonomous college, institution or department shall furnish such reports, returns and other information as the Executive Council may require to enable it to judge the efficiency of the college, institution or Department. (2) The Executive Council shall cause every autonomous college, institution or Department to be inspected from time to time by the inspection committee referred to in section 36 or by one or more competent powers authorized by it in this behalf." 11. (2) The Executive Council shall cause every autonomous college, institution or Department to be inspected from time to time by the inspection committee referred to in section 36 or by one or more competent powers authorized by it in this behalf." 11. University Grants Commission is issuing guidelines from time to time for autonomous colleges. Latest guidelines are of 2018. From the perusal of the guidelines for autonomous colleges issued by UGC, it appears that Education Commission recommended college autonomy, which, in essence, is the instrument for promoting academic excellence. As per Guideline 3 (3) of the Guidelines, the college on attaining autonomous status will continue to be affiliated to the affiliating University but will enjoy the privileges of autonomy. From reading of various provisions of the Gujarat University Act, 1949 and guidelines issued by UGC, makes it clear that even after granting autonomous status to the college, the college will continue its affiliation to the University, ultimately degrees are conferred by the University on recommendation made by the Colleges for students of such colleges. Further there are representatives/nominees of the University in the governing body and various boards of study and autonomous colleges have to submit periodical reports and other information as Executive Council may require. Autonomy status will be granted for particular period and there is requirement to seek extension from time to time. 12. Though It Is The Case Of The Petitioners That The Impugned Rule is to be construed as reservation of 5% of available seats in addition to normal admission, but it is not the case of the petitioners that they have applied within that reservation. As per the Gujarat University Admission Rules, 2018 (Master of Science and P.G. Diploma), the reservation is separately provided for various categories under Rule 7 and Rule 8. Rule 10 of the Rules, 2018 deals with distribution of seats among candidates of Gujarat University and other Universities. From a reading of Rule 10 of the Rules, 2018, it is clear that available seats are distributed as prescribed in the said Rule. Rule 10.1 of Rules, 2018 prescribe 5% of available seats for the candidates who have passed qualifying examination from other University, similarly, 5% of available seats is reserved to candidates who have passed qualifying examination from 3rd respondent College which is autonomous college. Rule 10.1 of Rules, 2018 prescribe 5% of available seats for the candidates who have passed qualifying examination from other University, similarly, 5% of available seats is reserved to candidates who have passed qualifying examination from 3rd respondent College which is autonomous college. From the composite reading of Rules, 2018 and stand of the respondents, it is clear that what is contemplated under Rule 10.2 of the Rules, 2018 is quota of 5% restriction to the students of 3rd respondent autonomous College but not reservation. Plea of learned Counsel for the petitioners that rule is to be construed as reservation in addition to normal seats, does not deserve acceptance. At the same time, it is the case of the petitioners that even assuming that 5% available seats is to be treated as quota, there is no justification for restricting 5% of seats to 3rd respondent college. It is not in dispute that 3rd respondent College after having autonomous status, continues its affiliation to the 1st respondent University. It is true that by grant of autonomy, 3rd respondent College is given certain powers, for making admissions etc., but the fact remains that overall supervision still continues with the 1st respondent University. 13. As Per Rules And Guidelines Issued By Ugc, It Is Clear That there are representatives/nominees of University in the governing body and in various boards of study of 3rd respondent College. In that view of the matter, the plea of the respondent nos.1 and 2 that respondent no.3 college is almost to be treated as separate University cannot be accepted. All the students who complete their undergraduate course from the institution/colleges affiliated to 1st respondent University constitute a class. There is no reason or justification for allotting 5% available seats only to pass out students of 3rd respondent College and same is illegal, arbitrary and discriminatory. Merely because autonomous status is granted to 3rd respondent College, they cannot discriminate students of 3rd respondent college. It is worth noting that in post-graduation courses, seats available in 3rd respondent College are open to all the students including students of 1st respondent University from other colleges. Similarly, when certain students happened to join 3rd respondent college for undergraduate course, they cannot be restricted to 5% quota in available seats in 1st respondent university in postgraduate course. There is no basis for such classification and intelligible differentia. Similarly, when certain students happened to join 3rd respondent college for undergraduate course, they cannot be restricted to 5% quota in available seats in 1st respondent university in postgraduate course. There is no basis for such classification and intelligible differentia. Further such classification has no nexus with the object sought to be achieved. In that view of the matter, we are of the view that Rule 10.2 of the Rules, 2018 is discriminatory and in violation of rights guaranteed under Article 14 of the Constitution of India and fit to be quashed. 14. Judgment of the learned Single Judge of Calcutta High Court in the case of Suraj Konar v/s. University of Calcutta in W.P.13686 of 2009 decided on 11.09.2009 supports the case of the petitioners. In the aforesaid judgment, the learned Single Judge of Calcutta High Court has considered the identical situation and held that the University has to treat students of autonomous colleges on par with the students of affiliated colleges directly under its control. It is further held that to treat students of the colleges differently from the students of other colleges would amount to hostile discrimination and same is in violation of Article 14 of the Constitution of India. We agree with such view expressed in the above judgment. 15. Further The Case Of Km. Shruti Chaturvedi V/S. Allahabad University of Allahabad High Court [C.M.W.P.No. 6951 of 1998], also supports the case of the petitioners. In identical situation the learned Single Judge of Allahabad High Court has held that petitioners of affiliated colleges cannot be discriminated with other students of colleges in making admission to postgraduate courses. 16. Though, Mr. Shelat, Learned Senior Counsel Has Sought To defend the impugned Rules on the ground that by virtue of grant of autonomous status, they have their own procedure for fixing syllabus and making admission etc., but at the same time, by virtue of statutory provisions under the Gujarat University Act, 1949 and guidelines of UGC, it cannot be regarded as separate university. Even after grant of autonomous status, they continue under the supervision of 1st respondent University. Representative/nominees of the University are in the governing body and in various boards of study of the respondent College. Further, autonomy status is to be renewed from time to time. After completing course from 3rd respondent college, degree is awarded in the name of University. Even after grant of autonomous status, they continue under the supervision of 1st respondent University. Representative/nominees of the University are in the governing body and in various boards of study of the respondent College. Further, autonomy status is to be renewed from time to time. After completing course from 3rd respondent college, degree is awarded in the name of University. In that view of the matter, quota which is restricted to 3rd respondent college is holistic discrimination and is not based on intelligible differentia to make separate class of students. All the students of University including students of affiliated colleges constitute one single class and there cannot be separate classification within the class. The judgments of Hon'ble Supreme Court in the case of K. Duraisamy and Anr. v/s. State of T. N., (2001) AIR SC 717; Kumari Chitra Ghosh v/s. Union of India, (1970) AIR SC 35 and D. N. Chanchala v/s. The State of Mysore and Ors., (1971) AIR SC 1762 will not support the case of the respondents. 17. Having regard to facts of the present case, the short question which fall for consideration is to examine discrimination amongst students of the same university i.e. students from colleges affiliated to the university to that of autonomous colleges. In that view of the matter, the judgments relied by Mr. Shelat, learned Senior Counsel would not support the case of the University. We are of the view that the impugned Rule is fit to be quashed. 18. At The Same Time, Further Relief Is To Be Granted Or Not Is To be examined. In this case, it is not in dispute that the University has notified Rules on 29.05.2018. The petition is filed on 26.06.2018 after first round of admissions are over. By that time, merit list was already published. It is clear from the reply affidavit and additional affidavit filed by the respondents that courses were scheduled to commence from 19.06.2018. In any event, it is also to be noticed that though the petitioners were already admitted in 3rd respondent college even before the petition is filed, but same is not disclosed in the petition. We would have rejected the petition on this short ground, but as the impugned Rules will have repulsive effect in every academic year for the students of 3rd respondent college, as such, we have considered the validity of the Rules. We would have rejected the petition on this short ground, but as the impugned Rules will have repulsive effect in every academic year for the students of 3rd respondent college, as such, we have considered the validity of the Rules. Further taking into consideration that admission is already secured by the petitioners in postgraduate course and further noticing that there is no acceptable explanation for filing this petition at belated stage after 1st round of merit list is prepared, we decline to grant all other reliefs except relief as prayed for in paragraph No.7(A) of the petition. 19. In View Of Above Discussion And Reasons Recorded Above, We allow the petition in part by granting relief as prayed for in paragraph No.7(A) of the petition and quash the impugned Rule 10.2 of the Gujarat University Admission Rules, 2018 (Master of Science and P.G.Diploma) by declaring the same as arbitrary and in violation of Article 14 of the Constitution of India. We reject all other reliefs as sought in the petition. The petition is allowed in part to the extent indicated above. No order as to costs.