IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 4437 of 1999 WITH SPECIAL CIVIL APPLICATION No 4780 of 1999 WITH SPECIAL CIVIL APPLICATION No.4869 of 1999 For Approval and Signature: Hon'ble MR.JUSTICE M.R.CALLA ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 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 Civil Judge? : NO -------------------------------------------------------------- VIPULKUMAR DHIRUBHAI SOLANKI Versus CENTRAL DEGREE ADMISSION COMMITTEE -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 4437 of 1999 MR IM PANDYA for Petitioner MR B.Y. Mankad, Asst. Govt. Pleader for Respondent No. 1 MS AMITA M SHAH for Respondent No. 2 MR KH BAXI for interveners. 2. Special Civil ApplicationNo 4780 of 1999 MR IM PANDYA for Petitioner MR B.Y. Mankad, Asstt. Govt. Pleader for Respondent No. 1 MS AMITA M SHAH for Respondent No. 2 MR KH BAXI for interveners. 3. Special Civil Application No.4869 of 1999 Ms. Sneha Joshi for the petitioner Mr. B.Y. Mankad, Asstt. Govt. Pleader for respondent no.1 to 3. -------------------------------------------------------------- CORAM : MR.JUSTICE M.R.CALLA Date of decision: 25/08/1999 COMMON ORAL JUDGEMENT Whereas these three Special Civil Applications involve grievances against or about the Govt. Resolutions dated 5.5.1999 read with amendment dated 22.6.1999, I propose to decide these three petitions by this common judgement and order. In Special Civil Applications No.4437 of 1999 and No.4780 of 1999 while the Central Degree Admission Committee has been made respondent, in Special Civil Application No.4869 of 1999, Secretary, Education Deptt., Govt. of Gujarat and Director of Technical Education Board, Govt. of Gujarat have also been arrayed as respondents nos.2 and 3, all the three petitions have been opposed by the Asstt. Govt. Pleader and in all the three Special Civil Applications, affidavits in reply have been filed under the signatures of M.M. Sheikh, Joint Director of Technical Education in the Directorate of Technical Education at Gandhinagar and whereas all the three petitions have been argued together, this Court does not feel inclined to throw away the two petitions being Special Civil Applications Nos.4437 of 1999 and 4780 of 1999 only on the ground that the State of Gujarat or its functionaries have not been arrayed as respondents and hence proceed to decide the three Special Civil Applications on merits. SPECIAL CIVIL APPLICATION No.4437 OF 1999 2. The petitioner herein has come with the case that he has been a meritorious student throughout. On 28.4.1998 he applied for admission to MBBS Course and on being admitted he joined the course of MBBS on 25.11.1998 and left the college in February 1999, while he was studying in first term of MBBS. The petitioner had requested for cancellation of his claim for the said course and the Dean of BJ Medical College issued a letter dated 17.5.1999, whereby his claim for first MBBS Course for the year 1998- 99 was cancelled. This year he again applied for his admission to the Engineering/ Pharmacy course on 24.5.1999 - but his candidature for either of these two courses, i.e. either for Engineering or Pharmacy has not been entertained, because as per Annexure 'D' dated 15.5.1999, on record with the petition, only those candidates are entitled to be considered for the said courses, who have passed 12th Standard Examination in Science stream or equivalent examination in March/ April of the academic year 1998- 99 and October/ November of the academic year 1997- 98; meaning thereby that those who had passed the qualifying examination of 12th Standard prior to October/ November of the academic year 1997- 98 would not be eligible to be considered. The result is that the petitioner who had passed the qualifying examination of higher secondary certificate (10 + 2) pattern in March 1998, i.e. academic year 1997 - 98 with 77.84 % marks in Grade I (Dist.) and 87% marks for the purpose of computing merit in the relevant subjects, is being denied admission. 3. In these circumstances the present petitioner has prayed for quashing and setting aside the policy of the respondents in not considering candidates like him, i.e. those who passed examination of higher secondary before October/ November of the academic year 1997 - 98, through the present Special Civil Application filed in this Court on 23.6.1999. 4. Rule was issued on 24.6.1999 and affidavit in reply dated 15.7.1999 has been filed on behalf of respondent no.1, under the signatures of the Joint Director of Technical Education. Respondent no.1 has taken the stand that admission process for Engineering/ Pharmacy is monitored by the Director, Technical Education through the Central Degree Admission Committee. This Committee is an agency of the State having no powers regarding regulation and rules of admission. It carries out admission process as per relevant rules and regulations of the Education Department. Reference is made to the Resolution dated 5.5.1999 and amendment dated 22.6.1999 thereto. It has been stated in para 5 of the affidavit in reply dated 15th July 1999 that for the academic year 1999 - 2000 the candidates falling in the following categories only are eligible for admission : (i) those who passed 12th HSC Science stream examination in March/ April 1999, (ii) those who passed the relevant examination in October/ November 1998, (iii) those who passed the relevant examination in March/ April 1998- 99 and in October/ Nov. 1997, but did not avail of admission in first year degree Engg. - Pharmacy and Medical courses and 12th HSCE (Sc.) Diploma Courses. (A) Thus, those who took admission in the first year degree engineering, first year degree pharmacy and the first year diploma engineering/ pharmacy courses after 12th HSC Science Stream examination and those who took admission in 1st year medical courses last year are not eligible for admission for the academic year 1999- 2000. 5. Contents of the amendment dated 22.6.1999 show that main hurdle against consideration of the petitioner's candidature for admission in Engg/ Pharmacy courses for the year 1999 - 2000 for which he has applied now is that he had availed admission to the Medical course last year, i.e. 1998 - 99 and because he gave up such admission of his own volition he cannot be now considered for admission to any other course, whether engineering or pharmacy. The respondents in support of the Resolution dated 5.5.1999 amended on 22.6.1999 have come up with the reasons for which these decisions have been taken ; (a) to save wastage of precious and normal seats in the Govt. and grant in aid institutions. Due to increasing trend of candidates who took admission earlier and if permitted to reapply despite the fact that the State afforded them an opportunity by way of centralised admission on the basis of State- wise common merit list, and following the state reservation policy for weaker sections of the society, a large section of fresh candidates to whom the opportunity has yet to be given shall be deprived of their legitimate right to equality. (b) to save wastage of payment seats due to candidates leaving institutes without completing the relevant courses and void so created being not possible to fill up resulting in depriving freshers to get due opportunity for admission for the first time but also irreparable damage which may be caused to these developing institutes which survive only on the revenues earned through high fees of the payment seats. 6. It has been stated that the candidates standing in the merit have to opt a discipline and place as available at the time of admission without any restraint and those who have lower merit have to go to distant places, for degree/ diploma/ discipline with inadequate hostel facilities with varying degree of expenditure. With the growing number of institutes the tendency to take chance next year with the loss of year is increasing by creating lot of problems and possibility of wastage of large number of seats and raising serious problem of survival of the govt. grant in aid and self financing institutes in particular, has necessiated to amend the rules of admission and revise criteria of eligibility. 7. In para 8 of the affidavit in reply, a reference has been made to a decision rendered by the Division Bench of this Court in Special Civil Application No.2823 of 1982 with other allied matters and certain observations in paras 7 and 8 of that judgment have been reproduced. These contents are quoted as under for ready reference. From para 7 of the aforesaid judgment, it has been quoted in the reply as under : "If the rule making authority, namely the Govt. intended to make a similar provision in the rule pertaining to admission to the first semester of BE course, there was nothing to stop it from doing so in express terms. If the same rule making body restricts the admission to the students passing the higher secondary certificate examination in March/ April of the current year or October/ Nov. of the preceding year and the exam. of the Central Board of Secondary Education in so far as admission to the First MBBS course and allied courses are concerned, there was nothing to stop it from making a similar provision if that was the intendment insofar as admission to the engineering course is concerned. From para 8 of the judgement, it has been quoted in the reply as under : "It is indeed true that as no time limit is prescribed hypothetically, speaking, students who have passed the qualifying examination in the preceding years, the number of years notwithstanding, would be eligible for admission to the engineering course. Technically, it may appear to be so but there is nothing on the record to show that in actual practice it does so happen and even if it does, that cannot be helped because it is for the policy makers to decide whether or not to eliminate such students from being considered for admission." It has been submitted that the Division Bench has thus upheld the right of the State Government to make policy decision with regard to change in rules for admission purpose. It has been further submitted that the situation cannot be left to the whims of the candidates and guardians to take admission and leave it at their sweet will. 8. While referring to the case of Shri Ramkrishna Dalmia v. S.R. Tendolkar, AIR 1958 SC 538, it has been submitted that the Government cannot be denied the right to decide as to from what sources the admission will be made, because that is essentially a question of policy. In para 11 of this Affidavit in Reply, it has been stated that when the petitioner sought admission in the last academic year, i.e. 1998- 99, at the time of interview before the committee, he had made an endorsement in his application against engineering/ pharmacy courses as, "not interested in available branches" and opted for medical course at Medical College, Vadodara. Looking to the merit number, engineering and pharmacy branches were also available to the petitioner at Ahmedabad itself at that time. He also had bright and good chances to get admission in engineering/ pharmacy at the place of his residence, i.e. Ahmedabad, but for the reasons best known to the petitioner, he opted for admission in Medical College at Vadodara and took admission in MBBS Course and studied there in the first semester. It has also been stated that from the record of BJ Medical College it is found that he got his admission cancelled by saying that he was not interested in the medical course and he does not want to continue with the MBBS Course. It has further been stated that the students who could not get admission in the previous year because of illness, accident, less than 18 years of age, or who could not get the certificate of creamy layer from the authorities in time will be excluded from Govt Resolution dated 5.5.1999 for admission to March 1999 and October 1998 candidates and looking to the above Govt. Resolution dated 22.6.1999, the petitioner cannot have advantage of this resolution as well, as he does not fall in any of the categories mentioned in the Govt. Resolution. It has been further stated in this Affidavit in Reply that number of applications received under the category identified as 'disqualified' (not eligible for admission) are 3766. These applications are being classified at this moment and in view of the amendment dated 22.6.1999 it is estimated that a fairly large percentage of candidates who have taken admission last year and seek a change of admission, shall lead to vacancies at Semester III at institutes like colleges at Bhuj, Bhavnagar and of disciplines such as Civil and other diversified disciplines because of readmission to first year. Besides this, it is feared that those who took admission last year shall opt for change from payment seats to free seats creating lot of problems for the survival of the Self Financed Institutes which came into existence under the scheme contemplated by the Supreme Court, if the rules for admission eligibility for the year 1999 - 2000 are given a go bye. It is also stated that the petitioner's case is not the only one but in view of the record number of applications, i.e. 3766, no exception in the case of the petitioner can be made applicable. It has also been stated that the petitioner had selected professional course with due application of mind and had availed the opportunity which was available to him by opting for medical course at that time and the petitioner, therefore, cannot be allowed readmission once again to deprive the candidates waiting in queue for academic year 1999- 2000. It is further stated that the petitioner can apply for diploma courses after SSCE on the basis of 10th SSCE result and after doing diploma course he can avail of admission to Semester III degree courses on 15% seats for diploma holders. Therefore, the petition deserves to be dismissed. 9. It may also be pointed out that respondent no.2, Pathik Sureshchandra Gandhi, was joined a party to this petition by order dated 2.7.1999 passed in Civil Application No.6243 of 1999. This respondent no.2 is a candidate who passed the qualifying examination in science stream in March 1999, obtaining 355 marks out of 450. As against that the petitioner's marks 394 out of 450. Respondent no.2 may not get admission in case the candidature of petitioner and such other candidates are considered and therefore, this respondent has placed reliance on this resolution dated 5.5.1999 and also amendment dated 22.6.1999 thereto. Certain other students raising similar grievance through Shri KH Baxi were also permitted to intervene in the matter. 10. I have heard learned counsel for the petitioner, learned AGP for respondent no.2 and the learned counsel for the interveners and have gone through the pleadings including the affidavit in reply dated 7.7.1999 filed by respondent no.2 The only question which requires consideration in this case is as to whether the candidates who had availed the admission in the previous year and then gave up the course are to be kept out of the race for admission this year? Basically in such matters, the admissions have to be granted on the basis of merit. The merit cannot be allowed to be a casualty in any case. May be that in a given case a candidate has joined a particular course on the basis of merit and later on he does not find it possible to continue studies for reasons more than one including that of his own sickness or adverse family circumstances and that of chill penury or if he finds that he does not fit in that discipline or that discipline does not suit him, i.e. neither he is fit for that course nor that course is fit for him and having tried himself for that course he genuinely finds that he may try his fate next year in some other discipline, should the doors of other course and discipline be closed for him even though he is much more meritorious as compared to other applicants for such course in the next year is certain a question which demands an answer. If we really want the merit to prevail, the objective answer to such question will be that the doors of such courses cannot be closed on him for ever. There is no doubt that ultimately it is for the authorities which are charged with the powers to frame policy relating to admission and there cannot be any dispute with regard to their powers for that purpose and that in such matters they may amend the rules, but in such cases even if they make such amendments in the rules, the same have to be rational and have to be notified well in advance so that the candidates may take their decision accordingly. In the facts of this case it is clear that the petitioner had opted out from the course in engineering and pharmacy in the previous year by saying that he was not interested and instead he opted for the course of MBBS and after joining MBBS Course he gave up the same after attending the first semester. Even if that be so, at the time when he gave up MBBS Course and got his admission cancelled, he did not know and could not conceive that next year he will be disqualified from applying for the other course in engineering/ pharmacy, merely because he had availed admission last year and then gave up. Said Govt. Resolution was notified only in May 1999 and amended on 22nd June 1999. In such cases, if any amendment is to be made entailing a disqualification, particularly with regard to rendering the eligible candidates in a given year to be ineligible in following years in future, such decisions must be notified at least one year in advance. Even if it is taken that the petitioner had made endorsement in the previous year that he is not interested in engineering/ pharmacy course and joined medical course, it cannot be said that he is deprived of from choosing other academic pursuit for all times to come or that he cannot revert back so as to choose engineering or pharmacy even if he is meritorious for that purpose again in the following year. Therefore, at the time when he got his admission cancelled in MBBS he may have thought that whereas he does not find himself to be fit for pursuing medical courses he may revert back to engineering/ pharmacy in the next year at the cost of losing one year and may try his fate next year. While considering such cases and while taking the view as aforesaid it is not meant that such tendency is to be encouraged and it has to be borne in mind that any candidate who chooses a particular academic pursuit must take such a decision after considering all the pros and cons, but it cannot be laid down as a principle that in no case such candidates can revise their choice and preference for other course at the cost of loosing one year of their career and try their fate next year for a course which they declined earlier. His endorsement that he was not interested in engineering/ pharmacy course in the previous year cannot be pleaded against him as an estoppel or a stumbling block so as to leave him in lurch for all times to come and the authorities charged and vested with the powers to frame the policy or rules for admissions cannot be insensitive to the hard realities and problems of students. The condition which has been imposed that those who had availed admission last year cannot be considered this year for any other course despite higher merit, on the face of it runs counter to the value of merit, which we cherish the most. Therefore, the only ground on which the disqualification is incurred is the availing of the admission in the previous year. Rest of the matters that in the previous year he had made an endorsement that he was not interest in engineering/ pharmacy course are the facts relevant only to this particular case and are of no significance and consequence. When the policy decisions are to be tested, when a policy decision in the matter of rules relating admission is to be considered, validity of the same has to be decided on the touchstone of the rationale behind such a policy. Rationale which has been pleaded is that if such cases are considered, it will be detrimental to the interest of the freshers and self financing institutions. In the opinion of this court once we find that admission to these professional courses must be made on the basis of merit, a candidate in higher merit who comes forward to try his fate for some other discipline in the following year cannot be deprived opportunity of consideration so as to make room for the candidates who are less meritorious, including freshers. 11. This case as a matter of fact projects a lis between the candidates who are freshers but are of lower merit vis- a- vis the candidates of higher merit in the year before and even now. It will be a strange case and irony of fate that a candidate with lower merit who is not selected in the previous year as against the higher merit of the petitioner may be admitted this year, but the petitioner is disqualified. It is settled principle that in the interest of such professional courses and the public at large the merit cannot be allowed to be a casualty at any cost. Therefore, if any policy decision is taken and rule is framed so as to erode higher merit and sacrifice higher merit to the benefit of the candidates who are less meritorious, such policy or rule cannot be said to be reasonable or conducive to the interest of such courses. Everything can be sacrificed for merit, but merit cannot be sacrificed at the altar of anything. In any case, in the facts of the present case, the Government Resolution dated 5.5.1999 read with amendment dated 22nd June 1999 cannot be allowed to come in the way of the petitioner on the basic ground that such amendment had not been notified well in advance and this imposition of disqualification rending eligibles to be ineligible has been notified only in May 1999 read with amendment dated 22.6.1999. By that time all the qualifying examinations have already been over and the candidates who had availed admission last year and gave it up were not aware at the time when they gave up such admissions that they will be deprived from consideration next year, even at the cost of their losing one year and now they cannot compete for such courses even in other states through entrance tests and they stand to loose yet another year because of the belated notification of the new, novel and strange disqualification for admission to professional courses in this state. 12. The difficulties which have been pointed out in affidavit in reply on behalf of respondent no.1 that there are large number of candidates who have been disqualified and that process has already been started and that no exception can be made in respect of the petitioner are their own creation because the disqualification was notified only now in May 1999 read with amendment dated 22.6.1999 and it is also acted upon from this very session. Therefore, these complications and difficulties are the direct outcome of these Govt. Resolutions of May 1999 read with amendment dated 22.6.1999, which were not notified well in advance and those