SCA/51/2008 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 51 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GANVIT PRAMILABEN BARKABHAI - Petitioner(s) Versus THE STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR DC DAVE for Petitioner(s) : 1, MS TRUSHA K PATEL, AGP for Respondent(s) : 1, 2 NOTICE SERVED BY DS for Respondent(s) : 1 - 2. MR RAKESH R PATEL for Respondent(s) : 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 21/04/2008 ORAL JUDGMENT Rule. Ms. Patel, learned AGP waives notice of rule for respondents no.1 and 2 and Mr. Rakesh R. Patel waives notice of rule for respondent no.3. The SCA/51/2008 2/15 JUDGMENT matter is finally heard. 2. The short facts of the case appear to be that the petitioner – student applied for admission in P.T.C. to the Centralised Admission Committee of Dadra and Nagar Haveli but she was not granted admission in the Centralised Admission quota. The respondent no.3 – college is having intake capacity for the academic year 2007-08 of 100 students out of which 10% seats were in the Management quota i.e. 10 seats whereas 90% seats were in the Government quota, to be filled up through Centralised Admission Committee. The respondent no.3 had exhausted 10 seats on the Management quota. However, in the Government quota seats, since sufficient number of students were not available, as against 90 seats, the students allotted to respondent no.3 were 89 and out of such 89 students, one student did not opt for admission and consequently, 88 seats were filled up through Centralised Admission and two seats were vacant. As per the petitioner, she applied for admission to the respondent no.3 – College, who granted admission since the seats were vacant after exhausting all students available with the Centralised Admission Committee on the Government quota. However, when the list was forwarded to the competent authority for approval together with the name of the petitioner, the authority declined to approve the name of the petitioner for admission on the ground that the Management had granted admission and she did not apply to the Centralised Admission SCA/51/2008 3/15 JUDGMENT Committee in Gujarat for admission, which was one of the conditions for eligibility of admission in the Management quota. Under these circumstances, the present petition. 3. Heard the learned advocates appearing for both the sides. 4. Considering the submissions made by learned advocates appearing for both the sides, it appears that the matter, as such, is covered by the decision of this court in case of GAJANAND CHARITY TRUST vs. STATE OF GUJARAT AND OTHERS decided on 09th April, 2008 in Special Civil Application No.2908 of 2008 and others. It may also be recorded that in the aforesaid decision, this court had relied upon the earlier decision of this court in case of RAWAL SHAYAR SURAJMAL & ORS. vs. GUJARAT UNIVERSITY & ORS. reported in 2003 (4) G.L.R. Page 3144. In the aforesaid decision of this court in case of Gajanand Charity Trust (supra), it was observed by the court at paragraphs 9 to 12 as under:- “9. The matter, as such, could be segregated into two parts, one for the appropriate directions for consideration of the case by the University and another for the action to be taken by the University or the State Government as the case may be, once having brought to its notice that SCA/51/2008 4/15 JUDGMENT the admissions have been granted making the students to believe that the Management has the authority and thereafter, such authority is not accepted by the University or other competent forum. 10. Concerning to the first part, if the matter is examined, it appears that it is an admitted position that such 13 students were not granted admission by the Centralized Admission Committee on Government quota and, therefore, the admissions granted by the Management in normal circumstances could be said as without authority. But the peculiar circumstance in the present case is that all seats in the Government quota are neither exhausted nor the Government allotted students equivalent to the seats available in the Government quota. 11. This court had an occasion to deal with more or less similar situation in case of RAWAL SHAYAR SURAJMAL & ORS. vs. GUJARAT UNIVERSITY & ORS. Reported in 2003 (4) G.L.R. Page 3144 so far as it related to the vacant seats in self-financed colleges for B.C.A. course after completion of SCA/51/2008 5/15 JUDGMENT Centralized Admission. This court, in the said decision, observed at paragraphs 7, 8, 9 and 10 as under:- “7. Having considered the above and more particularly in view of the legal position as prevailing, it is true that the Court, while exercising power under Article 226 of the Constitution of India cannot substitute its wisdom as if it is exercising the appellate power. If there is a breach of any statutory provisions, then only the power can be exercised. As per the settled legal position, more particularly in the field of education, the jurisdiction of this Court under Article 226 is limited, and therefore, no mandamus can be issued for adopting a particular procedure by the University by substituting the wisdom, which University had applied for the purpose of exercising the power. At the same time, it cannot be said that the Court has no jurisdiction at all, in a matter where the case falls in the realm of education. It is well-settled that the right to have education is treated as a fundamental right SCA/51/2008 6/15 JUDGMENT and, therefore, I am of the view that the matter is required to be examined from that angle. 8. The procedure adopted for the purpose of giving admission on the basis of inter se merit by way of centralised admission process is a rational procedure and there cannot be a second opinion to it, but at the same time, I am of view that there is no rationale in allowing the seats to be lapsed for the reasons which may be beyond the control of the persons who are concerned. In my view, if the seats are allowed to lapse, it will not only result into wastage of public money, but it also results into foreclosing the opportunity to the aspirant candidates as well. It may also result into adversely affecting education at large inasmuch as those colleges which are self-financed colleges may not be in a position to sustain in the field of education, if the requisite number of students are either not made available or they are not allowed to be admitted. This does not mean that the college authorities can say with a view to SCA/51/2008 7/15 JUDGMENT maintain themselves they will not abide by the rules and regulations of the University, at the same time, in a matter like this, I find that the University should take a pragmatic view of the matter. University which is the body of experts is expected to exercise their power in such a manner that it encourages the students in the field of education and at the same time it should also allow the educational institutions to sustain because if the institutions would be there, then only the students will get opportunity to get education. This Court finds no justification in allowing the seats to be lapsed, and, therefore, I am of the view that there should be a joint effort on the part of the University as well as the college authorities to see that the seats which have remained vacant, and if the students are available, proper modality should be found in such a manner that the students are given opportunity and at the same time the college authorities are in a position to maintain themselves and the University rules and SCA/51/2008 8/15 JUDGMENT regulations are also properly followed simultaneously. I am of the view that such exercise of power is expected on the part of the University. It happens sometimes that a student for the unavoidable reasons might not have applied or that a student may be aspirant to get admission in a better branch in comparison to B.C.A., and, therefore, either he/she might not have applied or he might have applied to a different branch and by way of second thought he may be aspirant to get admission in B.C.A. If any meritorious candidate is left out in comparison to the student who is admitted or who is aspirant to get admission, then possibly such practice cannot be encouraged. When the question arises for the grant of admission, it has to be on the basis of inter se merits, and therefore, if the meritorious candidate is available, such meritorious student should be offered admission in comparison to less meritorious students. 9. So far as the date of enrolment and the completion of the SCA/51/2008 9/15 JUDGMENT term are concerned, in my view, it is true that it is for the University to decide, but at the same time, such are the method and manner of regulating the education. There may not be any hard and rigid imposition, more particularly when the mode or rather the steps can be taken for the purpose of ensuring that the education of the students would not suffer. It has also come on record that last year the University did consider the said aspect and modified accordingly and, therefore, there cannot be any absolute proposition that once regulations or rules have been framed for the purpose of fixing the outer limit for giving admission or for giving enrolment, it cannot be relaxed under any situation. If the University takes the positive view to advance the cause of education, the University can put the college authorities to undertake extra classes with a view to see that the students may get proper education and at the same time more opportunities are provided to the students and the seats are not allowed to be lapsed. I am inclined to make SCA/51/2008 10/15 JUDGMENT observations in view of the special circumstances that though number of seats are available for admission but on account of the expiry of the outer date, the students are unable to undergo or undertake the admission to B.C.A. course. 10. In view of the above observations, I am of the view that in a matter like this, it would be better to leave the matter to the discretion and wisdom of the University for enabling it to take a pragmatic view of the matter keeping in mind that the career of the students are not put in jeopardy or more students get opportunities to study B.C.A. and the colleges imparting education may be able to financially sustain.” 11.1 Ultimately, in the said matter, following directions were given at para 11:- “11. In view of the above, I am of the view that the following directions would meet with the ends of justice: 11.1 The respondent No.1 University SCA/51/2008 11/15 JUDGMENT shall consider the matter in view of the aforesaid observations of this Court and at the time when the University considers the matter, it will be open to the petitioners as well respondent No.2 to make representations in this regard. 11.2 While considering the matter, the University shall keep all the relevant aspects in consideration, including the observations made by this Court and shall also take a pragmatic view of the matter. The University shall be at the liberty to decide the manner, method and modalities of filling up of the left-out seats of B.C.A. 11.3 The University shall take such decision within a period of two weeks from today.” 12. Considering more or less same fact situation, the direction deserves to be given in the present case, as stated hereinafter. The aforesaid shall conclude first part of the petition.” SCA/51/2008 12/15 JUDGMENT 5. Thereafter, the directions were issued to the North Gujarat University at para 14 as under:- “14. In view of the aforesaid, I find that the following directions shall meet with ends of justice:- (1)The respondent – University shall consider the matter in respect of such 13 students in view of the aforesaid observations of this court. (2)While considering the matter, the University shall keep all the relevant aspects in consideration including the observations made by this court and shall take pragmatic view of the matter. The University shall be at liberty to decide the manner, method and the modalities of filling up of the left-out seats in B.Ed. (3)The University shall take such decision within a period of four weeks from the receipt of the order. In the event, the University decides to regularise the admission, the students shall be entitled to appear in the next examination and if the study is SCA/51/2008 13/15 JUDGMENT already undertaken and the fees are already paid and there is requisite presence, they shall not be required to study again by payment of the fees except the examination fees for such exams.” 6. More or less similar are the facts situation in the present case in as much as the seats which were to be filled up through Centralised Admission Committee are not exhausted and the reason is not that the Management did not grant admission to such students who were allotted by Centralised Admission Committee but that the Centralised Admission Committee had no student available for allotment for admission on Government quota. It is an admitted position that two seats remained vacant after exhausting the list of admission through Centralised Admission Committee. Therefore, if two seats were vacant and the petitioner applied for admission to the respondent no.3 and the Management granted admission, it would be required for the competent authority to examine the case in light of the observations made by this court hereinabove based on its earlier decision. There is no application of mind by the authority after taking into consideration the earlier view of this court in case of Rawal Shayar Surajmal (supra). In any case, in view of the above-referred decision of this court in case of Gajanand Charity Trust (supra), it will be required for the competent authority to consider the same SCA/51/2008 14/15 JUDGMENT taking a pragmatic view of the matter that no useful purpose would be served in allowing the seats to be lapsed more particularly, when there was no student available with the Centralised Admission Committee to exhaust the full Government quota. 7. In view of the aforesaid, the impugned decision of respondent no.2 for not approving the name of the petitioner is quashed and set aside with the further direction that he shall consider the matter in light of the observations made by this court hereinabove in the present judgment and shall take the appropriate decision as early as possible, preferably within a period of one month from the receipt of the order of this court. It is further directed that until the decision is taken by the respondent no2 and is communicated to the petitioner by Registered Post A.D., the petitioner shall be permitted to prosecute the studies including by acceptance of the examination form and the appearance in the examination, if any, but such will be subject to final decision which may be taken by the authority. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. No order as to costs. 8. Ms. Patel, learned AGP prayed that the operation of this order by stayed for a period of four weeks so as to enable the Government to approach before the higher forum, if they are so desirous. Considering the facts and circumstances, as the issue SCA/51/2008 15/15 JUDGMENT even otherwise is covered by other decisions of this court, such prayer is declined. ( Jayant Patel, J. ) hki