IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 6960 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE K.A.PUJ ======================================================== 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 concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------- DR BHAVESH M TALSANIA Versus STATE OF GUJARAT -------------------------------------------------------- Appearance: 1. Special Civil Application No. 6960 of 2003 Mr.BP Tanna for TANNA ASSOCIATES for Petitioners. Ms. Mita Panchal AGP for Respondent No. 1-2 Mr. SN Shelat, Advocate General with MS SHRUTI D TRIVEDI, for Respondent No. 3 MR GM JOSHI for Respondent No. 4-23 --------------------------------------------------------- CORAM : MR.JUSTICE K.A.PUJ Date of decision: 04/07/2003 CAV JUDGEMENT The petitioners have filed this petition under Article 226 of the Constitution of India seeking direction against the respondent authorities directing them to take separate interviews for minor batch of 1996 for seats equivalent to 1/3rd number of seats allotted to major batch of 1996. The petitioners have further sought directions against the respondent authorities to evolve a transparent system of interview where a candidate moves in advance and knows minute by minute the position of vacancies in various subjects. By way of an amendment to the petition, the petitioners have further sought a declaration to the effect that Rules 3.1 and 4.8 of the Rules governing admission to Post Graduate Degree and Diploma Medical Courses framed by the Gujarat University, the respondent No.3 herein, as ultra vires the Article 14 of the Constitution of India. 2. The brief facts, giving rise to the present petition, are that the petitioners are students of old course of MBBS and they have passed their HSC Examination in the month of June 1996. Due to various litigations pending in this Court, in respect of conflict between premedical students and standard 12th students and their respective colleges etc., the petitioners lost one term in the 1st MBBS and as a result thereof the admissions which should have been given in August 1996 were given in the month of November 1996 and the College had started on 6th December 1996. Because of this late admission in the first MBBS the term of first MBBS was not granted by the Gujarat University and their 1st MBBS examination was taken in the month of May 1998, i.e., one month later than the required period of 18 months after taking admission of exams of 1st MBBS. The Second MBBS exams were taken in the month of November 1999, i.e., 2 months later than the required period of 18 months after passing 1st MBBS exams. The 3rd MBBS examination was taken in the month of August 2001, i.e., two months later than the required period of 18 months after passing 2nd MBBS examination. Because of illness and because of several other factors, the petitioners have passed either the first MBBS or 3rd MBBS examination in the 2nd attempt and, thus, the petitioners are known as "Minor Batch" of the year 1996. 3. It is stated in the petition that the delay of around 9 months over the period of around 4 1/2 years study for MBBS Degree Course has resulted in a situation where the petitioners who are of the Minor Batch and whose interviews should have been taken in the month of January/February 2003 were being taken in the month of May 2003. It is further stated that as per the rules governing the admission to Post Graduate Degree and Diploma Medical Courses, selections/interviews would be done once in each academic term. The 1st academic term would be from 1st May to 31st October and 2nd academic term would be from 1st November to 30th April of the next year. As per the provisions contained in Rule 3.2, the seats should be distributed in the ratio of 3:1 for the 1st and 2nd term respectively. Accordingly, the Minor Batch would be allotted 1/3rd seats in Degree and Diploma Courses as allotted to the Major Batch. 4. It is further stated that the respondent No.3, vide notice dated 4.2.2003, has published the schedule for interviews for admission to Post Graduate Medical Courses. As per the said notice, the merit list was to be published on 15.5.2003 and the last date for any representation against such merit list was on 19.5.2003. It is further stated that after the said notice had been published and since the petitioners had apprehended that the interviews for Post Graduate Medical Courses would be clubbed along with the interviews for the Major Batch of 1997, the petitioners had preferred representation immediately after the publication of the notice, on 1-5-2003 seeking clarification from the authorities regarding interviews to be held. The petitioners have raised the issue in the said representation that the delay because of which their interviews are held in the month of May 2003 was not due to their fault at all and that the students of Major Batch of 1997 have passed their MBBS in the new syllabus which is more scoring and therefore the petitioners sought for clarification from the respondent authorities as to how Post Graduate interviews would be conducted and how the seats would be distributed. The petitioners have also requested to provide their rightful quota of 1/3rd seats allotted to the Major Batch of 1996. The petitioners have not received any reply to their representations. 5. It is further stated that the respondent authorities have published combined merit list for admission to Post Graduate Medical Courses. This combined list includes graduates who belong to the minor batch of 1996 and major batch of 1997. The said merit list prepared in two parts, the first part of students in general category and the 2nd part of students in SEBC/SC/ST category. The said combined merit list has put the petitioners' candidature to a great detriment and a candidate who was No.1 in the merit list of students of Minor Batch of 1996 stood at No. 50 in the combined merit list. It is further stated that the major batch of 1996 of which the petitioners are the minor batch had preferred Special Civil Application No. 362 of 2003, inter alia, praying that the respondent authorities may be directed to take interviews of the petitioners therein afresh after declaring the adequate number of Degree and Diploma seats in advance. This Court (Coram: A.R. Dave, J.) vide order dated 9.5.2003 has directed the University to grant registration in Post Graduate Diploma Courses to 53 students in order of their merit and the respondent Government authorities shall create the residency in respect of those students in their respective subjects. After the above order was passed by this Court, there would be additional seats in the Post Graduate Courses allotted to the students of the major batch and pro-rata 1/3rd of the same would be allotted to the students of the Minor Batch. 6. It is further stated that the above action of the respondent authorities of clubbing together seats of minor batch of 1996 and major batch of 1997 and preparing a combined merit list and a common interview is absolutely illegal, arbitrary and causes great prejudice to the petitioners. It is in this background of the matter, the present petition is filed before this Court. 7. This Court has issued the notice on 22-5-2003 making it returnable on 26.5.2003 and by way of an ad-interim relief, it was directed that the respondents No.1 and 2 would not arrange the interview in question without prior notice of 24 hours to the petitioners and the permission of the court. The said ad-interim relief was modified on 27.5.2003 on the basis of the statement made by the respondents' advocates that whichever students will be selected and admitted in the PG Degree/Diploma course in view of the interview, would be given provisional admission subject to the result of the present petition and that the University would be taking an undertaking that they would inform accordingly. 8. After service of the notice, the respondents have filed their appearance and an affidavit-in-reply was filed on behalf of the respondent No.3 on or around 2nd June 2003. The petitioners have filed their rejoinder to the said affidavit-in-reply on or around 5th June 2003. Thereafter an affidavit-in-reply was filed on behalf of respondents No. 1 and 2 on or around 5th June 2003. An application for amendment was moved on 19.6.2003 and after the grant of the amendment, an affidavit-in-reply was filed to the amended petition on 25th June 2003. A rejoinder to the said affidavit-in-reply was also filed by the petitioners on 26th June 2003 and since the pleading is almost complete, at the joint request of the parties, the petition is taken up for final hearing. 9. Mr. BP Tanna, the learned Senior Advocate appearing for the petitioners submitted that the petitioners were pushed back by around 9 months because of the circumstances beyond their control and if the examination would have been held as per the schedule the said situation would not have arisen at all and since the said delay can, in no way, be attributed to the present petitioners, the respondent authorities should be directed to take interview separately in the minor batch of 1996 and major batch of 1997. He has further submitted that the students/candidates of the minor batch of 1996 are in no way inferior to the students of major batch of 1997 but due to the changed syllabus of MBBS of which the major batch of 1997 was the first batch, the students/candidates of the major batch of 1997 are in advantageous position. He has further submitted that the students of the new MBBS course have in their examination more objective type of questions and therefore it results in more scoring marks. He has further submitted that because of this, the students/candidates who are higher in the merit list of minor batch of 1996 find themselves pushed down to a great extent in the combined merit list. Even on this ground also, their demand for separate interviews for minor batch of 1996 and major batch of 1997 is justified. Mr. Tanna has further submitted that the petitioners' only claim is that they may be given 1/3rd seats in Degree as well as Diploma in medical courses of the total number of Degree/Diploma seats given to the Major Batch of 1996. He has further submitted that the Major Batch of 1997 would not be prejudiced at all by this separation of interview as they have no claim over these seats and therefore by taking separate interviews they would not be prejudiced at all whereas by taking combined interviews the petitioners would be definitely at a disadvantageous position. 10. Mr. SN Shelat, the learned Advocate General appearing for the respondent No.3 University submitted that the admissions to the Post Graduate studies for Faculty of Medicine of Gujarat University are regulated by the rules framed by the Gujarat University. He has further submitted that majority of the students whose cause is being espoused by the petitioners are repeaters and as a result of it they are shown lower in merit list. If the petitioners do not come on merits, they are not entitled to admission in respect of the discipline sought for. He has further submitted that under Rule 3.2 seats are to be distributed in the ratio of 3:1 for the 1st and 2nd academic term. All those candidates who are eligible in accordance with the Rule 1.3 are entitled to seek admission on the basis of their merits and the merit list is determined in accordance with Rule 4 and Rule 7. He has further submitted that all those students who have passed their Final MBBS examination or its equivalent qualifying examination are eligible for consideration and preference is given to those students who have completed internship to candidates of more than one year standing after completion of internship or housemanship graduating from Gujarat University. The important requirement is that the candidates must have passed Final MBBS Examination. He has further submitted that it is wholly irrelevant for grant of admission to Post Graduate Courses as to in which year a candidate has been admitted to MBBS Course. The Rules do not contemplate such classification as alleged by the petitioners. He has further submitted that the courses of studies and curriculum are framed by the Gujarat University in accordance with the regulations of the Medical Council of India and the Medical Council of India has framed uniform curriculum and syllabus of all recognised Universities within the country and therefore, there is uniform pattern of subjects being taught in accordance with the Medical Council of India. He has further submitted that the petitioners have undergone the same studies of the subjects as other students who are more meritorious than the petitioners. He has further submitted that for the students commencing their studies prior to August 1997 the duration of the studies is the same i.e. 4 1/2 years divided into 1 and 1/2 year each for First MBBS, Second MBBS and Final MBBS examinations. The course of studies and duration of studies will not differ. It is, therefore, not correct to state that the students passing the examinations have not undertaken the same studies and that the assessments of students are different. He has further submitted that there is no difference at all between the candidates seeking admission for the batch of 1996 and of 1997 and hence it is not correct to state that equals are treated unequally. He has emphatically stated that as per prevalent rules there is no classification like minor batch or major batch. He has also stated that rules even do not provide for allotment of 1/3rd of seats for any particular batch. He has further submitted that the plain reading of Rule 3.2 undisputably suggests that the total number of seats available are distributed in the ratio of 3:1 for which the admissions would be given in the month of May and November respectively by preparing separate merit list and separate notification would be issued for the same. 11. Mr. Shelat has further submitted that the candidates appearing for the interview for admission to P.G. Medical Courses are informed well in advance about the total number of seats available in different branches and different colleges. Even at the time of interview, an announcement is made on microphone so that the students can know which subjects are filled in and which subjects are still open. He has further submitted that the process of admission to P.G. Diploma and Degree Course is just, legal and proper and in accordance with the rules framed by the University with the sanction of the State of Gujarat. 12. Mr. GM Joshi, the learned advocate appearing for the newly added parties submitted that there is no process of earmarking the seats for any particular batch as contended by the petitioners. He has further submitted that available seats are declared without any classification like the major batch or the minor batch. He has further submitted that the petitioners are those who have failed either in the 1st, 2nd, or 3rd MBBS examination at least once and their each such failure entails deduction of 1.5% marks per attempt. Such students have therefore to compete with the regular students with the attached handicap. If the demand of the petitioners are accepted, they would indirectly be successful in doing away with the deduction of 1.5% of marks. 13. During the course of hearing of this petition, Mr. BP Tanna, learned Senior Advocate appearing for the petitioner seeks permission to amend the petition by way of challenging Rule 3.1 and 4.8 of the Rules governing admission to P.G. Diploma and Degree in Medical Course by the Gujarat University, and accordingly an application for amendment was granted by this Court, on 18.6.2003 and Paras 3.8 A to Para 3.8 C were added to the petition. A new prayer, namely Prayer 8 (d)(1) was also added to the prayer clause whereby a declaration is sought for to the effect that Rules 3.1 and 4.8 of the Rules governing admission to P.G. Degree and Diploma Medical Course framed by Gujarat University, are ultra vires the Article 14 of the Constitution of India. 14. Mr. Tanna has submitted that the case presented by the University before this Court leads to a situation that 75% of 75 per cent seats was granted to the students of major batch of MBBS of June 1996 in the month of November 2002 and as the remaining 25% of 75% could not be granted to the repeaters or to the minor batch of June 1996 before 30th April 2003, then it automatically lapsed in view of Rule 4.8 coming into operation. Mr. Tanna has further submitted that the State Government and the University cannot be heard to contend this, and even if they contend because of the inbuilt rigidity of Rules 3.1 and 4.8, both these rules deserve to be stuck down by the court. He has further submitted that the delay is not attributable, either fully or partly, to the petitioners and it was only because of the delay on the part of the respondent authorities. They are therefore not permitted to take advantage of their own wrong. He has further submitted that delay had occurred due to certain litigations pending before this Court where the petitioners were not parties. The petitioners cannot, therefore be, made sufferers because of the delay committed by others. 15. Alternatively, it is submitted that Rules 3.1 and 4.8 can be read harmoniously and the principles of beneficial construction may be put into operation while understanding the intent of the Legislature to frame such rules. Mr.Tanna has further submitted that in case of certain anomalies which cannot be attributed to the petitioners, Rule 3.1 should be read to mean that an academic year of 12 calendar months which consists of two terms each one of which is of 6 months and the first term starting from the date when the interviews of candidates who have passed MBBS in first attempt and who were granted 75% of 75 per cent seats are over and they actually start their P.G. course and the 2nd academic term to start 6 months thereafter and the 6 months period would be counted from the date of starting of 2nd academic term. 16. In support of his contentions, Mr. Tanna has relied on several authorities which are on the subject of act of Court, doctrine of impossibility, advantage of own wrong, harmonious construction and Rules being mandatory/directory. For an act of Court, the petitioners should not be put into any disadvantageous position. Mr. Tanna relies on the judgment of the Hon'ble Supreme Court in the case of Rajkumar Dey and others v. Tarapada Dey and others - AIR 1987 S.C. 2195, wherein it is held as under : "As the arbitrators could not take back the award from the custody of the court to take any further steps for its registration the entire period during which award remained in custody of Court should be excluded and it could not be said that they failed to get the award registered as the law required i.e. within period of four months. The two legal maxims that the law does not compel a man to do that which he cannot possibly perform and an act of the Court shall prejudice no man would apply with full vigour in the facts of the case and that being the position the award would be taken to be presented before the Sub-Registrar, on 25th November, 1983, the very next day of getting possession of the award from the court." In Atma Ram Mittal Vs. Ishwar Singh Punia - (1988) 4 SCC 284, it is held that "It is well settled that no man should suffer because of the fault of the court or delay in the procedure : "actus curiae neminem gravabit" - an act of court shall prejudice no man. " It is further held that "Purposive interpretation in a social amelioration legislation is an imperative irrespective of anything else. While ascertaining the legislative intent the court should look to the true meaning of the words that the legislature has used." 17. In the case of Mohammed Gazi v. State of M.P. and others - AIR 2000 S.C. 1806, it is held : "In the facts and circumstances of the case, the maxim of equity, namely, actus curiae neminem gravabit an act of the Court shall prejudice no man, shall be applicable. This maxim is founded upon justice and good sense which serves a safe and certain guide for the administration of law. The other maxim is, lex non cogit ad impossibilia - the law does not compel a man to do which he cannot possibly perform. The law itself and its administration is understood to disclaim as it does in its general aphorisms, all intention of compelling impossibilities and the administration of law must adopt that general exception in the consideration of particular cases. The applicability of the aforesaid maxims has been approved by this Court in Raj Kumar Dey v. Tarapada Dey (1987) 4 SCC 398 : (AIR 1987 SC 2195) and Gursharan Singh v. NDMC, (1996) 2 SCC 459 : (1996 AIR SCW 749 : AIR 1996 SC 1175)." 18. On the issue of Doctrine of Impossibility, Mr. Tanna has relied on the decision of the Hon'ble Supreme Court in the case of The Cochin State Power and Light Corporation Ltd. v. The State of Kerala - AIR 1965 SC 1688, wherein it is held that, "The performance of this impossible duty must be excused in accordance with the maxim, lex non cogit ad impossibilia (the law does not compel the doing of impossibilities), and sub-s. (1) of S. 6 must be construed as not being applicable to a case where compliance with it is impossible." In the case of Priyanka Overseas Pvt. Ltd. And Another vs. Union of India and Others - 1991 Supp. (1) SCC 102, it is held that : "After determining the rate of duty on the basis of the date on which the goods were actually removed from the warehouse the question would be examined as to how the relief is to be moulded in case it is found that the customs authorities were themselves responsible in preventing the importer of goods from actually removing the goods from the warehouse. If a party discharges its liability by complying with the requirement of law, and presents papers for clearance of goods, it is obligatory on the revenue authorities to pass the order immediately thereon. If the revenue authorities either refuse to pass the order on some erroneous or imaginary ground or on account of any misconception of law, the department cannot take advantage of its own wrong in demanding higher rate of duty from the importer. Section 68(c) prescribes an official function which if not performed by the customs authorities due to entertainment of a wrong and illegal notion would result into a wrong order by the department. In the circumstances the department cannot be allowed to take advantage of its own wrongful and illegal act. In moulding relief, the Supreme Court has always applied principles of equity in order to do complete justice between the parties." In the case of Ashok Kapil vs. Sana Ullah (Dead) And Others - (1996) 6 SCC 342, the Apex Court has held, "Such a liberal interpretation can be afforded to prevent a wrongdoer from taking advantage of his own wrong. The maxim : "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of his own