IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 771 of 1996 in SPECIAL CIVIL APPLICATIONNo 5082 of 1996 For Approval and Signature: Hon'ble THE CHIEF JUSTICE G.D.KAMAT and MR.JUSTICE C.K.THAKKER ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements? - No. 2. To be referred to the Reporter or not? - No. T be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To be referred to he Reporter or not? - No. To be referred to the Reporter or ot? - No. To be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To e referred to the Reporter or not? - No. To be referred to t e Reporter or not? - No. To be referred to the Reporter or n t? - No. To be referred to the Reporter or not? - No. To be referred to the Reporter or not? - No. To b referred 3. Whether Their Lordships wish to see the fair copy of the judgement? - No. 4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?- No. 5. Whether it is to be circulated to the Civil Judge?- No. -------------------------------------------------------------- PRINCIPAL Versus PARTHIV PANKAJ MODI -------------------------------------------------------------- Appearance: Mr. B.R. Shah, Senior Advocate, with Ms. V.P. Shah, and MS KJ BRAHMBHATT, Advocates, for the Appellant. Mr.K.V. Shelat, Advocate, for respondent No.1. Mr.S.N. Shelat, Advocate for respondent No.2. Mr.S.I. Nanavati, Advocate, for respondent No.3. -------------------------------------------------------------- CORAM : THE CHIEF JUSTICE G.D.KAMAT and MR.JUSTICE C.K.THAKKER Date of decision: 25/07/96 ORAL JUDGEMENT : (Per C.K. Thakkar, J. ) Admitted. Mr. K.V. Shelat, Mr.S.N. Shelat and Mr.S.I. Nanavati appear and waive service of notice of admission on behalf of respondent Nos. 1, 2 and 3 respectively. In the facts and circumstances of the case, the appeal is taken up for final hearing today. This appeal is filed against an ex parte ad interim order passed by the learned single Judge in Special Civil Application No.5082 of 1996 on July 15, 1996. The said order reads thus :- "... It is contended by Mr.Shelat, learned counsel for the petitioner, that in spite of the fact that the petitioner's name has appeared in the merit list for admission in the H.L. College of Commerce, he has been denied admission on the ground that he has already been admitted in H.A. College. He further submits that H.A. College has no objection if the petitioner is admitted to H.L. College. Rule returnable on 5th August, 1996. Interim relief in terms of para 5(B). D.S. permitted...." The first respondent is the original petitioner. It is the case of the petitioner that he passed XIIth Standard Examination conducted by the Gujarat Secondary Education Board, Gandhinagar, in March, 1996. The result of XIIth Standard examination was declared on June 27, 1996. Since the petitioner wanted to start career as a Commerce Student, on June 28, 1996, he submitted necessary admission forms for getting admission in F.Y. B.Com. in two Colleges, namely, H.L. College of Commerce and H.A. College of Commerce, appellant and respondent no.3 respectively. It is his case that his name did not appear in the first merit list published by H.L. College of Commerce, but it appeared in the first merit list of H.A. College of Commerce. It is not disputed by and between the parties that since the petitioner's name appeared in the first list issued by respondent no.3-College, the petitioner was required to pay necessary admission fees alongwith the original marksheet. The last day of payment of fees was 10th of July, 1996. Then the second list of H.L. College of Commerce was published on July 12, 1996, wherein the name of the petitioner appeared at serial No.37. Since the petitioner was interested in getting admission in H.L. college of Commerce, instead of H.A. College of Commerce, he requested the authorities of H.A. College of Commerce on July 10, 1996 not to insist for payment of admission fees so that he can wait till the second list in H.L. College of Commerce would be published. As H.A. College of Commerce, however, did not oblige the petitioner the petitioner had to pay admission fees and accordingly, he took admission in H.A. College of Commerce, by paying fees and by submitting original marksheet. When his name appeared in the second list of H.L. College of Commerce, he contacted the Principal of the H.L. Commerce College, but in view of the fact that he had already obtained admission in H.A. College of Commerce, no admission was given to him. In these circumstances, he was constrained to approach this Court by filing the above petition. The last date for paying admission fees in H.L. College of Commerce was 15th of July, 1996 and since the fees were not accepted by H.L. College of Commerce, on the ground that the petitioner had already obtained admission in H.A. College of Commerce, the petitioner requested the learned single Judge to take up the matter and the above order came to be passed, according to the learned counsel for the petitioner, in the second Session. It is stated that in spite of the order passed by the learned single Judge since the H.L. College of Commerce did not accept the admission fees, an application for disobedience of the order was filed by the petitioner. H.L. College of Commerce, on the other hand, filed a Civil Application for getting ex parte order vacated. At that stage, this Letters Patent Appeal is filed by the appellant-College, challenging the legality and validity of the ex parte order passed by the learned single Judge. We are mindful of the fact that the petition is admitted by issuing Rule and is pending for final hearing. It is only at interim stage that this Letters Patent Appeal is filed. We, therefore, refrain ourselves from making observations, which may affect one party or the other. From the facts stated above, it appears clear to us that the petitioner obtained admission in H.A. College of Commerce. His name appeared in the first list. He paid admission fees and also submitted original marksheet on July 10, 1996. We have been shown Instructions issued by the University to all Principals, Arts and Commerce Colleges, wherein it is stated that original marksheets must be obtained by the Colleges concerned and must be kept with them and shall not be returned for the time being. There is some dispute with regard to time factor, on which we express no opinion. It, however, clearly appears to us that the underlying object is to see that a student may get admission in one college at a time. It was contended by the respondents on the basis of the Instructions issued by the University that once the petitioner had obtained admission in H.A. College of Commerce, it was not open to him to get an admission in H.L. College of Commerce or any other college again. We think, it would be advisable not to express final opinion on that aspect also in view of a statement made at the Bar, that legality and validity of the Instructions have been challenged before the learned single Judge. In the facts and circumstances of the case, in our opinion, the learned single Judge ought not to have passed ex parte ad interim order, which virtually amounted to granting of final relief. Looking to the prayer clauses, it is clear that the following reliefs were sought by the petitioner :- "5. Taking above grounds and those others that may be prayed at the time of hearing, the petitioner, therefore, prays : (A) Hon'ble Court be pleased to issue an appropriate writ, order or directions directing the respondent no.1 institution to give admission to petitioner in F.Y. B. Com. on the basis of his merit and directing them to accept the original mark sheet after the same is returned from respondent no.3 institution after cancelling the admission to H.A. College of Commerce. (B) Pending hearing and final disposal of this writ petition, the respondent no.1 institution be directed to accept the fees of the petitioner in F.Y. B. Com. college as per application Annexure `A' based on the true copy of the mark sheet with a further undertaking that the original mark sheet submitted to H.A. College of Commerce will be produced before the respondent no.1 institution as soon as the same is received back from respondent no.3. (C) Hon'ble Court be pleased to direct the respondent no.1 institution to keep one seat in F.Y. B.Com. English medium course with Advance Accounting and Auditing as principal subject and Advance Statistics as Subsidiary subject vacant. (D) Any other and further reliefs, as the Hon'ble Court deem fit may please be granted." The matter was moved for the first time before the learned single Judge on 15th of July, 1996. The respondents were not present in Court. It also does not appear from the record that advance copy was supplied to any of the respondents. Instructions on which reliance is placed by the respondents were not made part of the record. In the light of the Instructions issued by the University, no ex parte ad interim relief of a mandatory nature could have been granted. Hence, on this ground alone and without observing anything more, we are of the opinion that the above order requires to be set aside and accordingly, the order passed by the learned single Judge is hereby set aside. We are conscious that the matter is important. The petition is already admitted and is pending for final hearing. At interim stage, an order is passed, which we have interfered with in Appeal. The matter pertains to education and admission of a student. It is, therefore, in the fitness of things that such matter is disposed of at the earliest in the larger interest. We, therefore, grant liberty to the parties to the petition to request the learned single Judge to take up the matter for final hearing. We are also of the view that when ad interim relief is granted by the learned single Judge, it would be quite appropriate to direct the H.L. College of Commerce to keep one seat in F.Y. B.Com. (English) vacant till the final disposal of the petition by the learned single Judge. For the foregoing reasons, the Appeal is allowed and the order passed by the learned single Judge is set aside. The learned single Judge may dispose of Special Civil Application No.5082 of 1996 as expeditiously as possible. We may state that all the observations made by us hereinabove have been made only for the purpose of deciding this Letters Patent Appeal, which has been filed against an ex parte ad interim order and the learned single Judge may decide Special Civil Application in accordance with law on its own merits. In the facts and circumstances of the case, there will be no order as to costs. The Office will now place the main matter, i.e. Special Civil Application No.5082 of 1996, before the leaned single Judge for final disposal. ********* (apj)