IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 2214 of 2005 with SPECIAL CIVIL APPLICATION No 5225 of 2005 with SPECIAL CIVIL APPLICATION No 5150 of 2005 with SPECIAL CIVIL APPLICATION No 5229 of 2005 For Approval and Signature: HON'BLE MR.JUSTICE M.R. SHAH ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- YASHVI BHARATKUMAR SHAH THRO'HER FATHER DR.BHARATKUMAR Versus GUJARAT UNIVERSITY -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 2214 of 2005 MR MRUGEN K PUROHIT for Petitioner No. 1-2 MRS VD NANAVATI for Respondent No. 1 MR TUSHAR MEHTA for Respondent No. 2 NOTICE SERVED BY DS for Respondent No. 3,4 TANNA ASSOCIATES for Respondent No. 4 2. Special Civil Application No. 5225 of 2005 MR MRUGEN K PUROHIT for Petitioner No. 1 MRS VD NANAVATI for Respondent No. 1 with SPECIAL CIVIL APPLICATION Nos.5125 and 5229 of 2005 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE M.R. SHAH Date of decision: 13/05/2005 COMMON CAV JUDGEMENT #. As common question of law and facts arise in this group of petitions, present Special Civil Applications are disposed of by this common judgment and order. #. All the petitioners are students who got their admission in the management quota in respondent No.2 Kesar Sal Medical College & Research Institute which is a self financed Medical College and as the respondent No.1 - Gujarat University had refused to grant enrollment, all of them have prayed for an appropriate writ, order or direction quashing and setting aside the communications dated 21.12.2004 and 29.12.2004 of the respondent No.1 University. The petitioners have also prayed for an appropriate writ, order or direction forbearing the respondents from interfering with the admissions granted in favour of the petitioners. #. Special Civil Application No.2214 of 2005 is filed by two students viz. (1) Yashvi Bharatkumar Shah and (2) Rahul Shivkumar Sodani. Special Civil Application No.5225 of 2005 with Special Civil Application No.5150 of 2005 are filed by two students viz. (1) Tejendra Ashokbhai Ramani and (2) Nisharg P. Shah respectively, whereas Special Civil Application No.5229 of 2005 is filed by Badal Girishbhai Thakkar. It is the case of the petitioners of Special Civil Application Nos.2214 of 2005, Special Civil Application No.5225 of 2005 and Special Civil Application No.5150 of 2005 that all of them had passed Standard -12 Examination conducted by the Gujarat Secondary and Higher Secondary Education Board and as they were desirous of seeking admission in the faculty of medicines, they appeared in the common entrance test conducted by the Gujarat Self Finance Medical and Para Medical Association, Gujarat State ( hereinafter referred to as the "GSF Association" for brevity ) conducted on 28.7.2004. It is the case of the petitioners of Special Civil Application No.2214 of 2005 that they were placed at Sr.No.588 and 590 in the merit list published by GSF Association. Similarly, the petitioners of Special Civil Application No.5225 of 2005 and Special Civil Application No.5150 of 2005 were placed at Serial No.471 and 333 in the merit list published by GSF Association. So far as the petitioner of Special Civil Application No.5229 of 2005 is concerned, he was placed at Serial No.171 in the merit list prepared by GSF Association. #. It is common contentions on behalf of the petitioners of Special Civil Application Nos.2214/ 2005, 5150 / 2005 and 5225 / 2005 that they were desirous of seeking admission in the faculty of medicines and dental, they had approached various self financed medical colleges and had appeared in "Common Entrance Test" conducted by GSF Association. But considering their merits, they could not get admissions in any of the Self Financed Colleges and were informed, admissions will be offered as and when there is any vacancy, college would invite applications and they could apply at that stage. It is the contention of the petitioners that on 30.9.2004 an advertisement came to be issued by the respondent No.2 Kesar Sal Medical College and Research Institute (hereinafter referred to as the "Institute" for brevity ) in the local newspaper inviting the applications from the students who had appeared in the common entrance test conducted by the GSF Association and the petitioners immediately applied to the "Institute" along with all requisite documents on 30th September, 2004 itself and on 30th September, 2004 itself all the petitioners were offered admission by the Institute and in pursuance thereof, the petitioners paid the prescribed fees and were pursuing their study in the 1st Year M.B.B.S. course at respondent No.2 Institute. It is the case of the petitioners that the petitioners along with the other students filled up their enrollment forms and the same were forwarded to the respondent No.1 University through the Institute and by communication dated 21.12.2004 and 28.12.2004 addressed by the University to the respondent Institute, the petitioners are informed that the respondent University has refused to enroll the petitioners to whom the admissions were offered by the Institute in the process of reshuffling, on the ground that their names do not appear in the list submitted by the GSF Association. It is the case of the petitioners that thereafter the respondent Institute has by its letters dated 28.12.2004 and 5.1.2005 sought to explain to the University that admissions granted in favour of the petitioners and other three students were strictly on merits and on the basis of the list published by the GSF Association. However, subsequently after letter dated 29.12. 2004 the respondent Institute has not received any communication from the University. Being aggrieved and dissatisfied with the decision of the respondent University in refusing to enroll them, the petitioners have preferred the present special civil applications under Article 226 of the Constitution of India for the aforesaid reliefs and the prayers. #. It is the case of the petitioners of Special Civil Application No.5229 of 2005 i.e. Badal Girishbhai Thakker that in fact, he got admissions on 31.7.2004 and the petitioner's name was in the merit list at Sr.No.171 and the petitioner was granted admission during counselling conducted at Baroda conducted by the GSF Association and upon payment of token fees he was also issued admission order and receipt by the Association. It is the case of the said petitioner that after admission was granted in favour of the petitioner, admissions were granted to approximately 24 other students who were lower in the merit list than the petitioners. It is submitted that by error or mistake, it appears that the name of the petitioner does not appear in the admission list submitted by the GSF Association and as the respondent No.1 University has refused to grant enrollment, the petitioner has preferred the present special civil application under Article 226 of the Constitution of India for the aforesaid prayers and the reliefs. #. Shri K.S.Nanavati, the learned Senior Advocate appears with Shri M.K.Purohit the learned advocate on behalf of the petitioners and Ms.V.D.Nanavati, learned advocate appears on behalf of the respondent No.1 University. Initially, Shri Mitul K. Shelat, the learned advocate appeared on behalf of the respondent No.2 Institute, however, subsequently, he withdrew his appearance and Shri Tushar Mehta, the learned advocate appeared on behalf of the respondent No.2 - Institute. #. The learned Single Judge of this Court ( Coram : K.M.Mehta, J. ) had passed the following order on 18.2.2005. "The petitioners have filed this petition with a prayer that this Court may issue a writ of mandamus or order quashing and setting aside the impugned communications dated 21.12.2004 and 29.12.2004 of the respondent University and further prayed that the respondents may be restrained from interfering with the admission granted in favour of the petitioners. The learned advocate for the petitioner has invited my attention to the letter addressed by the Hospital to the Registrar, University, in which it has been stated that even Mr.Justice R.J. Shah Committee has also indicated their decision which is on page 16. Hence notice returnable on 4.3.2005. Status quo as on today to be maintained. Direct Service is permitted." #. Thereafter, the aforesaid Special Civil Applications came to be heard by this Court 9.3.2005. It was contended on behalf of the petitioners that they have passed common entrance test examination conducted by the GSF Association and they have got admissions on merits on reshuffling and it was submitted on behalf of the respondent No.1 University that the University has not received any communication from the said GSF Association after reshuffling and therefore, names of the petitioners are not enrolled. Under the circumstances, it was considered to be just and proper to join the GSF Association as the party respondent No.3 and accordingly, the GSF Association was joined as the party respondent No.3. Thereafter, by order dated 30.3.2005 Mr.Justice R.J.Shah (Retd.) Committee was joined as the party respondent No.4. Shri N.D.Nanavati, the learned Senior Advocate appears on behalf of the GSF Association and Shri B.P.Tanna, the learned Senior Advocate appears on behalf of Justice (Retd) R.J.Shah Committee. Shri N.D.Nanavati, the learned senior advocate appearing on behalf of the GSF Association has produced the entire file with regard to the admissions given in the self financed medical colleges and the correspondence between the GSF Association and all the self financed medical and para medical institute. In fact, this Court directed the GSF Association to produce the relevant files and the entire record with regard to the admissions by order dated 23.3.2005 and in pursuance thereto, Shri Nanavati has produced the entire record with regard to admissions. #. It is the contention of the petitioners that all the petitioners except the petitioner of Special Civil Application No.5229 of 2005 are granted admission in first year M.B.B.S. in management quota at respondent No.2 institute on 30.9.2004 on reshuffling and pursuant to the advertisement dated 30.9.2004 issued by the respondent No.2 Institute inviting applications for admission in first year M.B.B.S. course in management quota and all of them are granted admission on 30.9.2004. The petitioners of Special Civil Application No.2214 of 2005 have produced receipt dated 30.9.2004 with regard to payment of Rs.1.30 Lakh towards the tuition fees issued by the respondent No.2 institute to show that they were granted admission on 30.9.2004 and even they have paid fees on 30.9.2004. So far as the petitioners of Special Civil Application No.5150 of 2005 viz. Nisharg P. Shah is concerned, he has produced one typed copy of the receipt dated 30.9.2004 issued by respondent No.2 Institute showing that he was granted admission on 30.9.2004 and even tuition fees was paid on 30.9.2004. So far as the petitioner of Special Civil Application No.5225 of 2005 i.e. Tejendrabhai Ashokbhai Ramani is concerned, there is no receipt or xerox and / or typed copy of such receipt produced on record and so far as the petitioner of Special Civil Application No.5229 of 2004 is concerned, he has produced typed copy of the receipt bearing Receipt No.35 dated 31.7.2004 with regard to payment of Rs.1.29 Lakh towards tuition fees. He has also produced admission order dated 31.7.2004 issued by the GSF Association admitting the petitioner in the respondent No.2 institute. Thus, it is the case of the petitioners that they got admission on 30.9.2004 that is the last date stipulated by the Hon'ble Supreme Court of India with regard to granting of admission in medical colleges and they have got admission on merits in the management quota and were studying since October, 2004, it is requested to quash and set aside the action of the respondent university not to enroll them. It is submitted that insistence on the part of the University to get approval from GSF Association is absolutely illegal and beyond jurisdiction and powers of the University. It is submitted that authority and powers regarding validity of the admissions granted by the Self Financed Colleges is with the Committee appointed for the purpose i.e. in the present case Justice (Retired) R.J.Shah Committee and in the list submitted by the respondent Institute to the Committee includes the names of the petitioners and in fact, the respondent Institute had sent the list on 7.10.2004 to the Committee and the Committee has not rejected any of the admissions granted by the College and therefore, it is not open to the University to refuse to grant enrollment and in effect, to cancel the admissions which are otherwise validly granted. By way of amendment, the petitioners have come out with the case that for the purpose of reshuffling, the GSF Association is not required to be informed and/or their approval is not required and only at the first instance at the time of counseling the entire procedure and process was conducted by the GSF Association on 31.7.2004 and for the seats which fallen vacant subsequently, it is the concerned institute to give admission on reshuffling. It is also further submitted that no other students have made any complaint and therefore, it is requested to allow the present special civil applications. ##. Affidavit-in-reply is filed by on behalf of the respondent No.1 - University. It is submitted that under Rule-3.2 of the Self Financed Medical / Dental / Physiotherapy / Homeopathy colleges, the institute will be at liberty to admit the students in management quota seats ( 50 % percent ) as per merit list prepared on the basis of Joint Admission Test conducted by GSF Association under the supervision of the Committee appointed under the Chairmanship of Retd. High Court Judge, if approved by the Committee. Rule-3.3 provides that the admissions to SFI's management quota shall also be made from the merit list prepared by the Centralized Medical Admission Committee of the State. Rule 3.4 provides that to avoid multiplicity of procedure as well as to ensure that rule of merit and transparency and to avoid frequent reshuffle to fill up resultant vacancies, and inconvenience to students and parents and for smooth admission process for Managements, Centralized Medical Admission Committee will facilitate counselling. Managements of Self - Financed Medical / Dental / Physiotherapy / Homeopathy Institutes will counsel and admit the students at a Common Counselling Center at the place and time scheduled to be decided by the Centralized Medical Admission Committee. It is submitted that enrollment list of the students to be admitted in the respective colleges is sent to the University by GSF Medical Association as per the guidelines of the Hon'ble Supreme Court of India and the list of the students admitted in the respondent No.2 Institute i.e. Kesar Sal Medical College and Research Institute was sent to the University by GSF Association on 8.10.2004, in which, the names of the petitioners do not figure and therefore, the University has not enrolled the students i.e. petitioners and their forms have been sent back to the colleges. ##. Affidavit-in-reply is filed on behalf of the respondent No.2 - Institute, it is submitted by the respondent No.2 institute that the petitioners were granted admissions against the seats which were vacated by the students originally granted admissions and that the admissions were granted after inviting applications through public advertisement and from those students who appeared in the common entrance test conducted by the GSF Association. To show that the admissions granted to the petitioner which are based on the basis of the merit and in accordance with law and therefore, it is submitted that the respondent No.2 has exercised its option to grant admissions on the basis of common entrance test to be conducted by GSF Association and common entrance test was conducted on 28.7.2004 pursuant to the orders of the Hon'ble Supreme Court of India and merit list was published and the respective colleges, which were members of the association, granted admissions to the students on the basis of the said merit list. It is also further submitted that four students so admitted vacated their seats on 29.10.2004 which gave rise to four vacancies and the respondent No.2 institute published the advertisement in the newspaper inviting applications from the prospective students who had appeared in the common entrance test and as the petitioners applied pursuant to the said advertisement and after verifying the documents, admissions were granted to the petitioners. It is further submitted that the entire details pursuant to the admission procedure adopted by the respondent No.2 Institute was duly submitted to the Justice R.J. Shah (Retd.) Committee vide letter dated 5.10.2004 which was received by the said Committee on 7.10.2004. It is also further submitted that the respondent No.2 institute submitted to the respondent No.1 University enrollment forms of the student admitted in the college by communication dated 21.12.2004 but the University refused to enroll the petitioners on the ground that their names do not figure in the list sent by the GSF Association. It is the case of the respondent No.2 Institute that thereafter by communication dated 28.12.2004 it was brought to the notice of the University that admissions were granted on the basis of the merit. However, still enrollments are not granted. It is submitted that the provisions referred to are not applicable to the University and that validity of the Rules was subject matter of challenge before this Court as well as before the Hon'ble Supreme Court of India and in the said proceeding by interim order, the Hon'ble Supreme Court of India permitted the GSF Association to conduct the common entrance test and the members to grant admission on said basis. It is further submitted that jurisdiction to determine whether admissions have been granted by the Self Financed College are valid, or otherwise, is vested with the Committee and the Committee has not raised any objection regarding the same. ##. Affidavit-in-reply is filed on behalf of the respondent No.3 - GSF Association. It is submitted that after a long drawn litigation and pursuant to the orders passed by the Hon'ble Supreme Court of India, Common Entrance Test for the purpose of granting admission in management quota was conducted by the respondent No.3 Association and on the basis of marks obtained by those students who appeared at the said Common Entrance Test, admissions were granted on the basis of the merit order prepared. It is also further submitted that said process was completed in the presence of the representative of all the member colleges including the representative of the respondent No.2 institute and the said process was completed on 31.7.2004. It is further submitted that after grant of admission, once again, litigation went on between the respondent No.3 GSF Association on one hand and on the other hand the Government of Gujarat as well as Justice R.J.Shah (Retd.) Committee. Finally, on or about 16.9.2004 controversy came to an end since Hon'ble the Supreme Court upheld the test conducted by the respondent No.3 Association. It is further submitted that after orders passed by the Hon'ble Supreme Court upholding the proceedings of Common Entrance Test conducted by the respondent No.3 association and the admissions granted by the said Association, as stated above, on 16.9.2004 the respondent No.3 Association requested all the members of the Association to furnish the details about the vacancies if any which have occurred after granting admissions on 31.7.2004 and first such request / requisition was sent by the Association to all the members including the respondent No.2 Institute on 21.9.2004. However, since no response was received till 28.9.2004 and since the deadline of 30.9.2004 was about to be touched, again on 28.9.2004 the reminder was sent to the respondent No.2 along with other members. It is further submitted that many other member colleges forwarded details of vacancies which have occurred in their respective colleges after granting admissions in the management quota, however, there was no response from the respondent No.2 Institute or any information received by the respondent No.3 - Association from the respondent No.2 Institute. It is further submitted that therefore on 8.10.2004 final list of the admissions granted in all members colleges including the respondent No.2 herein interalia specifically mentioning that the final list of the students admitted on or before 30.9.2004 is being forwarded to the respondent No.2. It is also further submitted that said communication was sent by R.P.A.D. as well as a copy of the same was also faxed to the respondent No.2 institute. It is also submitted that in response thereto, Secretary of respondent No.3 association received a letter from the Director of respondent No.2 Institute dated 9.10.2004, by which, the respondent No.2 institute had clarified with regard to only two students i.e. one Bhadiyadra Raj B. whose name was mentioned at Sr.No.25 who had not turned up and clarification was with regard to one another student i.e. Badal Girishbhai Thakkar i.e. petitioner of Special Civil Application No.5229 of 2005 by clarifying that he has already been admitted on 31.7.2004 and admission order is also given by GSF Association and it was mentioned that name of said Badal Girishbhai Thakkar is not included in the list of management quota seats sent by the GSF Association sent on 8.10.2004. And that there was no mention in the said communication dated 9.10.2004 with regard to admissions given to the petitioners of Special Civil Application Nos.2214 / 2005, Special Civil Application No.5150 / 2005 and Special Civil Application No.5225 of 2005. It is therefoer submitted that till 8.10.2004 the petitioners were not granted admissions. ##. Affidavit-in-rejoinder is also filed on behalf of the petitioners to the affidavit-in-reply filed on behalf of the respondent - Gujarat University. Further affidavit is filed on behalf of the respondent No.2 i.e. Institute. It is submitted in the further reply that the respondent No.2 Institute had sent letter dated 19th August, 2004 to the Secretary, GSF Association after counseling dated 31.7.2004 and the respondent No.2 Institute had asked on many times to the Association to send the list of the students admitted by the Association uptill now and inspite of that no information was provided by the Association. It is further submitted in the further affidavit that thereafter the respondent No.2 Institute received a letter dated 21.9.2004 from the Association which was received by the respondent No.2 on 24.9.2004 whereby the institute was informed that seats remaining vacant will have to be filled up on or before 31.9.2004 ( it should be 30.9.2004 ). It is also submitted in the further reply that the respondent No.2 institute received a letter dated 28.9.2004 wherein for the first time association came out with the concept of some waiting list prepared by it and according to them, no such waiting list was ever prepared, nor such list is produced before any Court. No such list has been provided to any of the colleges. It is further submitted that in the evening of 28.9.2004, two seats had fallen vacant and on 29.9.2004 further two seats had fallen vacant for which an advertisement was given in the local newspaper on 30.9.2004 and in pursuance thereto, all the petitioners applied except the petitioner of Special Civil Application No.5229 of 2005 and they have paid the fees on 30.9.2004. It is also further submitted that in the further reply affidavit that the respondent No.2 bona fide issued public advertisement specifically mentioning that only students coming in the merit list prepared by the Association based upon the Common Entrance Test will be considered. It is further submitted that the respondent No.2 Institute had confirmed the name and the number of concerned petitioners with merit list and only thereafter had given admission bonafide. ##. Further affidavit is also filed on behalf of the respondent No.2 dated 27.4.2005 in which the some allegations are made aginst the office bearer of the GSF Association and against the GSF Association itself. By further affidavit, the respondent No.2 has tried to contend that