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2021 DIGILAW 1201 (GUJ)

JANI DHYEY GIRISHBHAI v. STATE OF GUJARAT

2021-12-14

BHARGAV D.KARIA

body2021
JUDGMENT : Heard learned advocate Mr.Digant Popat appearing on behalf of learned advocate Mr.Dilip Kanojiya for the petitioner, learned Assistant Government Pleader Mr.Dhawan Jayswal for the respondent No.1 – State and learned advocate Mr.K.M. Antani for the respondent No.2. 2. Learned advocate Mr.Popat has tendered a draft amendment. The same is allowed in terms of the draft. To be carried out forthwith. 3. Having regard to the controversy raised in this petition in narrow compass and considering the future of the petitioner, who is an aspiring student to get admission in the M.B.B.S. course to become a Doctor, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing. 4. To be carried out forthwith. 3. Having regard to the controversy raised in this petition in narrow compass and considering the future of the petitioner, who is an aspiring student to get admission in the M.B.B.S. course to become a Doctor, with the consent of the learned advocates for the respective parties, the matter is taken up for hearing. 4. By this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs : “A. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of Mandamus or any other appropriate writ, order, or direction, directing that the condition that a student has to pass 10th standard from an institution situated in the State of Gujarat as mentioned in Rule 4(3)(iii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, shall not apply to the petitioner who is the domicile of the State of Gujarat and that the petitioner shall be considered as eligible to secure admission under the State Merit List; B. Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions, directing the respondent authorities not to consider the petitioner ineligible for securing admission under State Merit List in Professional Medical Educational Courses as per the Provisions of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 only because he has studied Standard 10th from an institution situated outside the State of Gujarat; C. During the pendency of the petition, your Lordships may be pleased to direct the Respondent Authorities to consider the admission of petitioner in State Merit List for securing admission in the Professional Medical Educational Courses; D. Your Lordships may be pleased to issue a writ of Mandamus or a writ in nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities to grant an exemption to the petitioner by passing a notification akin to notifications dated 25.06.2018, 15.06.2019 and notification dated 09.11.2020 or to extend the effect of such notification till the time the candidate attains the age of 25 years; E. Pass any such other and/or further orders that your Lordship deems appropriate, just and proper, in the facts and circumstances of the present case.” 5. The brief facts of the case are that the petitioner is a domicile of the State of Gujarat. The petitioner studied 10th standard outside the State of Gujarat in the Science stream in the year 2017. 5.1 It is the case of the petitioner that the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (for short “the Rules, 2017”) came into effect in the year 2018. According to the Rule 4(3)(iii), the petitioner is required to pass 10th standard from the Gujarat Board or any school of any other Board situated in the State of Gujarat. The petitioner was eligible for getting the admission in the M.B.B.S. course for the academic year 2020-21. 5.2 It is the case of the petitioner that the petitioner had applied for admission process for the year 2020-21 and was also eligible for admission in management quota, however, because of the financial condition, the petitioner did not opt for the admission in management quota for the academic year 2020-21. 5.3 The petitioner, thereafter, again appeared for National Eligibility cum Entrance Test (UG) (for short ‘NEET’) for the academic year 2021-22. The petitioner preferred Special Civil Application No.14259 of 2021, but the said petition was withdrawn with a liberty to raise grievance at a later stage, as the said petition was a premature petition. The petitioner secured All India Rank of 81190 in NEET, 2021 and therefore, the petitioner is likely to get admission in the institution situated in the State of Gujarat based on the ranking. 5.4 The petitioner has therefore, approached to this Court with the aforesaid prayers. 6. Learned advocate Mr.Digant Popat appearing for the petitioner submitted that the Rules, 2017 came into effect from 23rd June, 2017 and the petitioner took admission in the 10th standard in the school situated outside the State of Gujarat in the month of February, 2017, and therefore, the petitioner is eligible for admission in M.B.B.S. course in view of the orders passed by the Division Bench of this Court in Special Civil Application No.8590 of 2018 as well as Letters Patent Appeal No.799 of 2020, pursuant to which the respondent Government issued notification accepting the students who have undergone 10th standard prior to 23rd June, 2017 for the academic year 2018-19, 2019-20 and 2020-21. 6.1 Learned advocate Mr.Popat referred to the three notifications which are passed by the respondent State Government adding proviso to Sub-rule 3 of Rule 4 of the Rules, 2017. It was submitted that the first notification was issued on 25th June, 2018 making eligible the students who have passed 10th standard from the school located outside the State of Gujarat for the academic year 2018-19. It was further submitted that by notification dated 15th June, 2019 the proviso was inserted in Sub-rule 3 of Rule 4 of the Rules, 2017 for admission in the academic year 2019-20, and thereafter, pursuant to the order passed by the Division Bench of this Court on 6th November, 2020 in Letters Patent Appeal No.799 of 2020, notification was issued on 9th November, 2020 to extend the benefits of the earlier amendment for the candidates who have taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat for the academic year 2020-21. It was further submitted that the petitioner did not press the Special Civil Application Nos.14183 and 14320 of 2020 in view of the notification dated 9th November, 2020, wherein, the petitioner prayed to grant the benefit of eligibility for the academic year 2020-21. 6.2 Learned advocate Mr.Popat further submitted that the petitioner is eligible to appear in the NEET examination up to the age of 25 years and therefore, he again appeared for the NEET examination for the academic year 2021-22. It was therefore, submitted that as the petitioner pursued the studies of 10th standard prior to the cut-off date of 23rd June, 2017 when the Rules, 2017 came into effect, the petitioner should be made eligible by the respondent authorities for admission in the course of M.B.B.S. for the year 2021-22 also. 6.3 It was further submitted that this Court should invoke the principle of Casus Omissus in the notification dated 9th November, 2020 so as to direct the respondent authorities to consider the case of the petitioner to be eligible for admission for the academic year 2021-22 as admittedly the petitioner has pursued the 10th standard prior to 23rd June, 2017 and therefore, applying the same principle, as applied by the respondent State Government, for the year 2018-19 to 2020-21, the benefit of eligibility should be granted to the petitioner for admission for the academic year 2021-22. 6.4 In support of his submissions, learned advocate Mr.Popat relied upon the decision of this Court in case of Dr.Sukumar Mehta vs. District Magistrate, Births & Deaths, 1993 (1) GLR 93 . 7. On the other hand, learned advocate Mr.Antani submitted that the petitioner is not entitled to be considered eligible for admission in the course of M.B.B.S. for the academic year 2021-22 in absence of any notification of the State Government, which is a policy decision as held by the Division Bench while upholding validity of Rule 4(3)(ii) in group of petitions being Special Civil Application No.8590 of 2018 and allied matters as well as in the Letters Patent Appeal No.799 of 2020 in Special Civil Application No.3576 of 2020. 7.1 Learned advocate Mr.Antani further submitted that the respondent authorities by order dated 8th December, 2021 has rejected the representation made by the petitioner as the notification dated 9th November, 2020 was only for the academic year 2020-21 and therefore, the petitioner is not eligible for admission in the academic year 2021-2022. 7.2 It was further submitted by learned advocate Mr.Antani that the petitioner is also debarred from being eligible for admission as the petitioner was aware about the notification dated 9th November, 2020 in the month of November, 2020, when the petitioner withdrew the petitions on 25th November, 2020 being Special Civil Application Nos.14183 of 2020 and 14320 of 2020, filed before this Court, in view of the notification dated 9th November, 2020 and therefore, the petitioner took a calculated risk to appear for NEET for the academic year 2021-22 with a hope that the petitioner would be eligible for admission inspite of knowing that there was no notification issued by the State Government for the academic year 2021-22 granting benefit of eligibility to the candidates who have taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat. It was therefore, submitted that, even otherwise, the petitioner is not eligible to get the admission for the academic year 2021-22 for the M.B.B.S. course, as there is no policy of the State Government giving relaxation in the eligibility criteria to the candidates similar to the petitioner, as each year, notification is issued for the particular academic year, and therefore, in absence of any notification of the State Government for the academic year 2021-22 for the candidates who have taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat, such benefits cannot be granted to the petitioner for the academic year 2021-22. 7.3 It was therefore, submitted that the petition is devoid of any merits and is liable to be rejected as held by the Division Bench on two occasions that this Court is not required to interfere in the policy decision of the State Government though the petitioner may be a sufferer because of such absence of the policy or resolution of the State Government. 8. Having heard the learned advocates for the respective parties and having gone through the Rules, 2017, which were modified / amended by the notifications issued in the year 2018-19 and 2019-20, pursuant to the order passed by this Court in Special Civil Application No.8590 of 2018 and allied matters as well as Letters Patent Appeal No.799 of 2020, it appears that this Court after upholding the validity of Rule 4(3) of the Rules, 2017 in view of the practical difficulties faced by the students, who are though domicile of the State of Gujarat but who have passed 10th standard outside the State of Gujarat would not satisfy the eligibility criteria of domicile in view of the description under Rule 4(3)(ii) of Rules 2017 to pass the 10th standard examination from the school located in the State of Gujarat, as in the facts of the case, the petitioner took admission in 10th standard in the month of February, 2017 in the school situated outside the State of Gujarat and therefore, he would not otherwise be eligible to get the admission but for the notification issued by the State Government pursuant to the observations made by the Division Bench of this Court in the aforesaid two matters. 8.1 It is therefore, germane to refer to the provisions of the Rules, 2017 as well as the observations made by the Division Bench in the aforesaid two matters. Rule 4(3) of the Rules, 2017 reads as under : “4. Eligibility for Admission,- A candidate who desires admission shall- (1) be a citizen of India : Provided that a candidate whose parents are origin of India, and do not hold Indian citizenship and have applied for Indian citizenship, shall produce the proof of submission of such application to the Admission Committee before the date of counseling. Such candidates shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian citizenship on or before 31st July, of next year, failing which their provisional admission shall be treated as cancelled without any notice. Provided further that candidates seeking admission on Non-Resident India seat shall be Non-Resident Indian or children or wards of a Non-Resident Indian. (2) have completed 17 years of age on the 31st December of the Academic Year for which the admissions are being conducted; (3) have passed the 10th and 12th qualifying examination with “B-group” or “AB-group” from - (i) The Gujarat Board; or (ii) The Central Board of Secondary Education provided that the school in which the candidate has studied, is located in the State of Gujarat; or (iii) The Council of Indian School Certificate Examination Board, New Delhi provided that the school in which the candidate has studied, is located in the State of Gujarat: Provided that a candidate seeking admission on Non- Resident Indian seat must have passed the qualifying examination from anywhere with Physics, Chemistry and Biology.” 8.2 The validity of the aforesaid Rules was challenged before this Court by a batch of writ petitions being Special Civil Application No.8590 of 2018 and other allied matters. The Division Bench of this Court (Coram: Hon’ble The chief Justice Mr.R. Subhash Reddy and Hon’ble Mr.Justice Vipul M. Pancholi) by order dated 25th June, 2018 upheld the validity of the Rule 4(3) of the Rules, 2017 but, at the same time, it was observed by the Court as under, taking into consideration the plight of the students who are affected by the insertion of the Rule 4(3) of Rules, 2017 w.e.f. 23rd June, 2017 : “[32] Having regard to defence put forth by the respondents, further considering that the eligibility criteria and qualification to be prescribed for making admission, is a matter primarily within the domain of the respondents, in absence of demonstrating that the impugned rules are arbitrary, we cannot grant any relief, as prayed for, by the petitioners in these petitions filed under Article 226 of the Constitution of India. At the same time, as it is the case of some of the petitioners that they are permanent residents of State of Gujarat and having passed 11th and 12th Standard from the schools situated in State of Gujarat, they are not fitting into eligibility criteria only on the ground that they have studied 10th Standard from the schools situated outside State of Gujarat, we deem it appropriate that said matter is required to be considered by the respondents. [33] In view of aforesaid discussion and reasons, we do not find any merit in these petitions for grant of any relief as prayed for, to strike down Rule 4(3)(ii) and Rule 4(1A) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, in exercise of powers under Article 226 of the Constitution of India. [34] At the same time, as it is noticed that after Rule 4(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 referred above, is upheld by this Court, in view of dismissal of the petition challenging the aforesaid Rule earlier, there is change in the Rules by introducing Rule 4(1A) which is inserted by way of amendment to the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, by Notification dated 04.05.2018. In view of insertion of Rule 4(1A) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, which prescribe the candidate to be domicile of Gujarat, whether requirement of passing of 10th Standard from the school situated in the State of Gujarat, as contemplated under Rule 4(3)(ii) of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, as existed earlier to be continued or not, needs consideration by the respondent State. It is the case of some of the petitioners that though they fulfill criteria of domicile and passing requirement of 12th Standard from the school situated in Gujarat, but they are excluded from the eligibility criteria only on the ground that they have studied 10th Standard from the school outside State of Gujarat. In that view of the matter, as object of the Rules is to give benefit to the candidates who are domicile of the State of Gujarat, we direct the respondent State to take decision forthwith on the said issue whether to continue Rule 4(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 in the same form or not and take appropriate decision accordingly, without loss of any time.” 8.3 Pursuant to the aforesaid order passed by the Division Bench, the State Government was candid enough to come out with the notification dated 25th June, 2018 for the academic year 2018- 19 and the notification dated 15th June, 2019 for the academic year 2019-20 providing that the candidates who have studied and passed 10th standard from the school located outside the State of Gujarat shall also be eligible for admissions and thereby granting relaxation in the operation of the Rule 4(3) of the Rules, 2017 for the two academic years. 8.4 As there are many students who have taken admission in the 10th standard prior to 23rd June, 2017 and have pursued their studies for standard 10th, 11th and 12th and such students would have passed out in 12th standard in the academic year 2020-21, Special Civil Application was filed by one of such students being Special Civil Application No.3576 of 2020 before this Court with a prayer to permit to be eligible to take admission for M.B.B.S. course as per the Rules, 2017. 8.5 The Special Civil Application No.3576 of 2020 was rejected and therefore, the Letters Patent Appeal No.799 of 2020 was preferred by the petitioner before this Court and the Division Bench of this Court (Coram: Hon’ble The Chief Justice Mr.Vikram Nath and Hon’ble Mr.Justice J.B. Pardiwala) by order dated 6th November, 2020 after considering the judgment and order dated 25th June, 2018 passed in Special Civil Application No.8590 of 2018 passed by the Division Bench, reiterated the hope that the State Government should consider the case of the petitioner for the academic year 2020-21 and observed as under : “25. We may only observe that the rule as such could have been made operative only from the academic term commencing from March-April 2021 or from the date of commencement of the academic term for the standard- 10 commencing from the year 2021. If the rule is not made operative from the academic term commencing from the year 2021, the same will exclude many students much to their disadvantage and without any fault on their part. This is precisely the reason why the two notifications came to be issued by the State of Gujarat, referred to above. The inclusion of Standard-10 in the amended Rule 4(3)(ii) dated 23.06.2017 makes the rule operative for the next three years, i.e., till the academic year 2020-21 and in this regard, the State Government rightly interpreted and amended the Rule 4(3)(ii) for the past two academic terms, i.e., 2018-19 and 2019.20. 26. In the aforesaid context, we may reiterate the observations made by the Supreme Court in the case of S. Krishna Sradha (supra) as contained in Para-28 of the judgment; “28. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonising but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intendit aliquid impossible. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intendit aliquid impossible. But when it is in the realm of possibility; and denial of relief hurts the “majesty of justice”, it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha and Harshali.” 27. Ms. Manisha Luvkumar Shah, the learned Government Pleader may be justified in making all the submissions as noted above from Paras-14 to 17 respectively. We accept that it would be within the discretion of the State whether to issue appropriate notification for the academic term 2020-21. However, we expect the State to reconsider the issue in light of what has been observed by this Court in this judgment. In exercising the power of judicial review, there is theoretical prohibition on the courts that it must not replace its ideas against the wisdom behind the legislation. The policy matters fall under the domain of the legislature's functions. Nevertheless, the responsibility of the courts is to adjudicate on the validity of the legislations and whether they are in consonance with or in violation of the provisions of the Constitution. 28. Although we are leaving to the better discretion of the State Government, yet we may only remind the State that here is a case of a bright student aspiring to become a Doctor and any decision at this point of time may be a guiding factor so far as the career of the student is concerned.” 8.6 Pursuant to the aforesaid order passed by the Division Bench on 6th November, 2020, the respondent State Government issued a notification within two days on 9th November, 2020 granting eligibility to the students for the academic year 2020-21 who had taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat for the purpose of admission in M.B.B.S. course. The amendment carried out by the three notifications are reproduced as under : Notification Dated 25th June, 2018 “Provided that for the purpose of admission for the academic year 2018-19 only, the candidates who have studied and passed 10th standard from the school located outside the State of Gujarat shall also be eligible.” Notification Dated 15th June, 2019 “Provided further that for the purpose of admission for the academic year 2019-20 only, the candidates who have studied and passed 10th standard from the school located outside the State of Gujarat shall also be eligible.” Notification Dated 9th November, 2020 “Provided further that for the purpose of admission for the academic year 2020-21 only, the candidates who have taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat shall also be eligible.” 8.7 Thus, the State Government applying the observation and hope expressed by the Division Bench of this Court has considered the case of the students aspiring to become a doctor by granting eligibility as they have taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat. 8.8 In the facts of the case, it is not in dispute that the petitioner had taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat. Therefore, in such circumstances, the petitioner is otherwise eligible for admission in the course of M.B.B.S. but for the notification issued by the State Government for the academic year 2021-22 as the earlier three notifications were issued by the State Government for a particular academic year instead of making all students eligible for admission who had taken admission for M.B.B.S. course considering the case of the students who had taken admission before 23rd June, 2017 in 10th standard and passed 10th standard from the school located outside the State of Gujarat. 8.9. 8.9. As submitted by learned advocate Mr.Popat, NEET examination can be taken by the students up to the age of 25 years and therefore, any student who has taken admission in the 10th standard before 23rd June, 2017 and passed 10th standard from the school located outside the State of Gujarat, should be made eligible for admission in M.B.B.S. course and the State Government ought to have amended the Sub-rule 3 of Rule 4 of the Rules, 2017 by inserting proviso to that effect. 8.10. However, as held and observed by the Division Bench on two occasions in exercising the power of judicial review, there is theoretical prohibition on the courts that it must not replace its ideas against the wisdom behind the legislation. The policy matters fall under the domain of the legislature’s function, but at the same time, it is the responsibility of the courts to adjudicate on the validity of the legislations and whether they are in consonance with or in violation of the provisions of the Constitution. The Division Bench has also held earlier, which is reproduced hereinabove, wherein it is observed that as an object of the Rules is to give benefit to the candidates who are domicile of the State of Gujarat and hence, the respondents were directed to take decision forthwith whether to continue Rule 4(3)(ii) in the same form or not and take appropriate decision accordingly. 9. Following the same directions and observations of the Division Bench issued twice on the same facts, the respondents are hereby directed to consider keeping mind the object of the Rules to give benefits to the candidates who are domicile of the State of Gujarat to take the decision forthwith on the issue as to whether, the petitioner should be considered eligible for admission in the M.B.B.S. course for the academic year 2021-22 as admittedly, the petitioner has taken admission in 10th standard before 23rd June, 2017 and passed 10th standard from the school located outside the State of Gujarat. 10. With the above observations and directions, the petition is disposed of. Direct service is permitted.