IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 1782 of 2004 in SPECIAL CIVIL APPLICATIONNo 10463 of 2004 with LETTERS PATENT APPEAL NO. 1785 OF 2004 in SPECIAL CIVIL APPLICATION NO. 10398 OF 2004 with CIVIL APPLICATIONS NOS.7385 & 7424 OF 2004 For Approval and Signature: HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA ============================================================ 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? -------------------------------------------------------------- PARMAR PRIYANK CHANDRASINH MINOR THRO.FATHER Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 1782 of 2004 MR D.C. DAVE, Advocate for the Appellant MR S.N.SHELAT, ADVOCATE GENERAL with MR.S.P. HASURKAR, A.G.P. for the Respondent No.1-2 MR K.B. PUJARA, Advocate for the Respondent No. 3 MR BM MANGUKIYA, Advocate for the Respondent No. 4 2. LETTERS PATENT APPEAL No. 1785 of 2004 MR V.M.TRIVEDI, Advocate for the Appellant MR S.N.SHELAT, ADVOCATE GENERAL with MR.S.P. HASURKAR, A.G.P. for the Respondent No.1 MR K.B. PUJARA, Advocate for the Respondent No. 2 -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE R.K.ABICHANDANI and HON'BLE MR.JUSTICE D.H.WAGHELA Date of decision: 29/09/2004 ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE R.K.ABICHANDANI for the Court) 1. Both these appeals are directed against the common judgment and order dated 2nd September 2004 passed by the learned Single Judge partly allowing Special Civil Applications Nos. 10463 of 2004 and 10398 of 2004, and issuing certain directions to the Centralized Admission Committee for the M.B.B.S. Course. A direction was given that the student, who was admitted in S.E.B.C. category though entitled to be treated on open merit against an unreserved seat, should not be admitted against the general category and be continued in the reserved category if different fee structures are provided for the students of general and reserved categories, but if by being shifted to non-reserved category, the candidate was not required to pay additional fees, then in that case, the admission of that candidate of reserved category may be treated as in non-reserved category and thereafter, the seat falling vacant shall be filled up from amongst the left out candidates on the basis of their inter-se merit from the reserved category. If the said candidate is retained in the general category, then the vacancy of the general category shall be filled up by the Centralized Admission Committee from amongst the left out candidates belonging to the general category. 2. In Letters Patent Appeal No.1782 of 2004, the appellant (original petitioner) who was a general category student, had appeared in the Higher Secondary School Examination held in March 2004 and secured 376 out of 450 marks in the relevant subjects for admission to professional courses. The respondent No.2 Centralized Admission Committee and the respondent No.3 College, invited candidates as per the merit order for admission to the M.B.B.S. Course in order of merit of the local students as per their applications. Admission was to be governed by the Rules for Admission to M.B.B.S. and other Courses framed under the Government Resolution dated 15th May 2004. According to the petitioner, he was qualified as a local student in respect of the respondent No.3 College and had remained present on 31st July 2004 pursuant to the advertisement calling the candidates whose marks and merit numbers were mentioned in the advertisement, a copy of which is at Annexure "C" to the petition. This advertisement shows that the reserved category candidates were called on 30th July 2004, while the open merit candidates were called on 31st July 2004. In the note below this advertisement, it was specifically stated in item (2) that all the candidates including those who secured marks lower than the marks of the candidates whose marks and merit numbers were mentioned in the list and were seeking admission against the local seats, were also required to be present on the dates on which the candidates of the respective categories were called. According to the petitioner, on 31st July 2004, one candidate Jasani Kalpesh Narandas, who had secured 376 marks, but was ahead of the petitioner, was granted admission as a last student in the category. However, at a latter stage, it was revealed that the said candidate was not eligible for admission in the category of local students. The petitioner, therefore, sent an application dated 4th August 2004 to the Chairman of the respondent No.2, pointing out the infirmities in the admission of Jasani Kalpesh and requesting that his admission be cancelled. It is the case of the petitioner that, two other candidates ahead of the petitioner at Srl. No.1901 and 1922 of the category of local students and who were eligible for admission if the seats were vacant, were absent on the specified date and therefore, the petitioner was eligible for admission as a local student when Jasani's admission was cancelled. Thereafter, admission of Jasani was cancelled by the respondent No.2 by communication dated 12th August 2004, a copy of which is at Annexure "F" to the petition. The petitioner, therefore, claimed that he was entitled to be offered the said vacancy in the order of merit, because, he was the only next available candidate on 31st July 2004 and had Jasani not been wrongly given admission on that day, this petitioner would have been admitted against the local seat of the First M.B.B.S. Course. According to the petitioner, by not offering the said seat that fell vacant by virtue of cancellation of admission of Jasani Kalpesh, the respondent No.2 had acted contrary to Rule 14 of the said Rules under which the seat was required to be offered to the next candidate in the waiting list in order of merit. It will be noticed from the petition of this appellant that no contention regarding any possible variation of fee structure was raised in the petition. 3. In Letters Patent Appeal No.1785 of 2004, which arises from the Special Civil Application No.10398 of 2004, the appellant-original petitioner (who is the respondent No.4 in Letters Patent Appeal No.1782 of 2004) has challenged the impugned decision of the learned Single Judge on the ground that the learned Single Judge committed an error in assuming that, in future, the fee structure of the Institutes was likely to be different, and had misinterpreted Rule 2.6. According to this appellant, no directions to the Centralized Admission Committee were required to be given for seeking clarification on the question of fee structure. In his petition (Special Civil Application No. 10398 of 2004), the appellant had sought a direction on the respondents Nos. 1 and 2 to give admission to him in the respondent NO.3 - College against the vacancy existing or in the Medical College, Jamnagar. According to the petitioner, he had secured 322 marks out of 450 in the Higher Secondary School Examination, Science Stream, and being S.E.B.C. candidate, he was entitled to get admission in reserved category. In paragraph 2 of the petition, he stated that the S.E.B.C. candidates securing marks between 432 to 330 were called on 30th July 2004 at 2.30 p.m. Being misled by this information, the petitioner, who had secured 322 marks, did not remain present and the candidate, who secured 310 marks, was admitted. We may note here that, in the advertisement, a copy of which is at Annexure "C" in the cognate petition, there was a note below the notice calling all the candidates seeking admission against local seats, including the candidates who secured less marks, to remain present on that date. According to this petitioner, he had earlier preferred Special Civil Application No.9476 of 2004 seeking admission to the course on the ground that a candidate lower in merit order was admitted. That petition was disposed of on 6th August 2004 as not pressed. In the order, a copy of which is at Annexure "A" to the petition, the fact that, since the petitioner did not remain present, admission was granted to the next candidate, was noted. A statement by the learned Assistant Government Pleader, under instruction of a Member of the Admission Committee, to the effect that in case any vacancy falls or any student granted admission fails to pay the fees within the stipulated time, the petitioner shall be considered for admission as per inter-se merit, was recorded; and the learned counsel for the petitioner, under instructions, did not press for the petition. The Court, therefore, held that no further orders were required to be made, and directed the Centralized Admission Committee to act as per the statement made on their behalf by the learned Assistant Government Pleaders. According to this petitioner, thereafter he came to know that one seat of Jasani Kalpesh who was at Srl.No.53 of the general category list, had fallen vacant due to non-payment of fees. It is stated that the S.E.B.C. candidate, Patel Amikumari Bhavansing, who had also secured 377 marks, but was given admission in S.E.B.C. category, instead of being included in the open merit general quota as per Rule 2.6, was required to be shifted from the list of S.E.B.C. to the general list and the vacancy so arising in the S.E.B.C. quota by transferring Patel Ami Bhavan from S.E.B.C. general list as per Rule 2.6 was required to be offered to the petitioner. It was also submitted that, in the S.E.B.C. merit list for admission in medical college, the candidates above the petitioner had secured admission in one or the other college and that, one seat of Jigar Jadav, S.E.B.C. candidate, who had secured admission at Jamnagar, had fallen vacant and therefore also, the petitioner was entitled to get admission against that seat. According to the petitioner, his right to admission in a vacancy in the respondent NO.3 Institute was crystallized. 4. In Letters Patent Appeal No.1782 of 2004, the Member Secretary, Centralized Medical Admission Committee has filed an affidavit-in-reply in which it has been stated that, pursuant to the approval dated 28th July 2004 received from the Central Government, the Centralized Admission Committee issued an advertisement on 29th July 2004 in all local newspapers for filling up newly sanctioned seats for B.J.Medical College and other four Self-Finance Medical Colleges, including the Surat Municipal Corporation Medical College. The counselling for the admission was scheduled on 30th July 2004 and 31st July 2004. The said admission counselling for reserved category candidates as well as the physically handicapped candidates was scheduled on 30th July 2004, while on 31st July 2004, the admission counselling was scheduled for the open category candidates. A copy of the advertisement is annexed to the said reply at Annexure "I". In paragraph 2 of the said reply, it has been stated that, on the scheduled day for admission for reserved category i.e. on 30th July 2004, Patel Ami Bhavanbhai was not sure whether she would be able to secure admission in open category, which was scheduled for the next day and therefore, she secured her admission on S.E.B.C. reserved seat. She had secured 377 marks and above her, there were 129 students of "Surat local". It is stated that even the Admission Committee was not sure, whether she would be able to get admission in open category on the next day. On the next day, admission for Surat local open category reached to 376 marks and Jasani Kalpesh N. (merit list No. 001891) was the last person admitted. However, he expressed his inability to pay balance fees and got his admission cancelled. It is further stated in paragraph 4 of the affidavit that Patel Ami had expressed her inclination to remain in S.E.B.C. category. Her affidavit seems to have been obtained and a copy thereof is at Annexure "B" to the reply. The said affidavit was sworn on 4th September 2004 i.e. after the order of the learned Single Judge was made on 2-9-2004. In paragraph 5 of the affidavit-in-reply, it is stated that Patel Ami Bhavan was not getting admission in open category against the seat at Surat local. 4.1 A further affidavit-in-reply has been filed by the Member-Secretary (Medical), Centralized Medical Admission Committee in Civil Application NO.7385 of 2004 (in Letters Patent Appeal No.1782 of 2004) in which it is stated that the Centralized Admission Committee has adopted the present admission system for more than 25 years and it is in accordance with the various decisions of the Apex Court and the High Court. Narrating the admission process in paragraph 2 of the said affidavit-in-reply, it is stated that, upon receipt of admission application form from students, general merit list is prepared after scrutinisation of the forms. From that general merit list, other three category-wise merit lists are prepared of Scheduled Tribes, Scheduled Castes and Socially & Educationally Backward Class of candidates. All the four lists are displayed on the notice board and since the last year, they are also published on internet on the website of the Health Department of the Government. By publishing advertisements in leading Gujarati and English newspapers, detailed schedule of admission counselling is made known to all, and individual call letters are also dispatched to each of the candidates informing them date, time and venue of admission counselling. On the day of admission counselling, approximately 600 students seeking admission in Engineering & Medical Courses are called in three sessions as per merit order and in each session, approximately 200 students are invited in a common hall and informed about the availability of the streams, seats in colleges and fees structure by way of counselling and the students are given choice forms. The candidates are also informed that "whatever is available today at the time of his turn, if he does not opt, it is deemed to have been forfeited for all time to come". (emphasis added). It is also informed that he will be given chance in future if seats are available, which are not now available to him. Thereafter, they are arranged in merit order and thereafter, they are called one by one as per their merit order in the Admission Committee Hall. The candidate is allowed to be accompanied by a companion of his choice. The information about availability of seats in different colleges is continuously displayed on the electronic media and frequent announcements are also made on loudspeaker. In the Admission Committee Hall, the members of two Committees, namely, Centralized Medical Admission Committee and Joint Admission Committee for Professional Courses sit together. The Centralized Medical Admission Committee deals with admissions in Medical / Dental / Physiotherapy / Ayurved / Homeopathy, while the Joint Admission Committee for Professional Courses deals with admissions of different branches of Technical Education and Pharmacy. On reaching his turn, the candidate is asked about his choice in writing about streams and informed about availability of seats in all the above referred streams. The admission of the candidate is finalized only in one stream and for rest of the streams, his withdrawal is taken. At this stage, if the student is of reserved category, he is also informed about the availability of his highest choice about stream, place and college on reserved category and it is open for him to exercise his option of reserved category if he is not getting his highest choice in the general category. It is then stated in the paragraph 3 of the affidavit-in-reply that, by following the above system, the Admission Committee is able to satisfy "merit as well as choice and practical implementation of all Rules, namely, 2, 2.4, 2.6, 7 and 7.1". It is stated that the above system has received acceptance and proved the test of time. 4.2 In the affidavit-in-rejoinder of the respondent NO.4 of Letters Patent Appeal No.1782 of 2004, it is stated that the Centralized Medical Admission Committee acted in contravention of Rule 2.6. It is stated that, for achieving the objective of the mandate of Rule 2.6, the admission to general category was required to be undertaken first so that all meritorious students of any reserved category can come in on the strength of merit. It is also stated that the consent or objection of Ami Bhavan Patel was of no consequence. It is stated that the mistake committed by the Centralized Medical Admission Committee was required to be rectified only to the effect that the Central Commission should not be asked about the future view or different fee structures and that the said respondent should be given admission straightaway. 4.3 In the affidavit filed by the respondent No.5, it is stated that the petitioner had not mentioned the correct fact that there were in all four students including Kalpesh Jasani and the petitioner, who had secured 376 marks in the qualifying examination of Std.12th. All these four students were given their number in the list of merit. Kalpesh Jasani was at Srl.No.1891. Another student Golakia Bhavesh was at Srl.No.1901 and the name of Punit i.e. the respondent No.5 appeared at Srl.No.1922, while the name of Parmar Priyank (petitioner of Special Civil Application No.10463 of 2004) appeared at Srl.No.1930. Therefore, the statement made in the petition that the petitioner was required to be considered immediately after Kalpesh Jasani was not correct. It is also stated that the petitioner has made an incorrect statement that the two students who were ahead of the petitioner at Srl.No. 1901 and 1922 were absent. It is stated in paragraph 6 of the affidavit that the admissions were closed after the last admission of Kalpesh Jasani, who was at Srl.No.1891 of the merit list and therefore, the question of marking presence or absence of the candidates after that number did not arise since there was no admission to be offered after that last admission. It is stated that this respondent No.5 was not called by the Committee as his turn did not reach and therefore, the question of failure to report did not arise. 5. The learned counsel appearing for the appellant of Letters Patent Appeal No.1782 of 2004, who is a candidate belonging to non-reserved category, contended that since the admission of the candidate Kalpesh Jasani was cancelled, the petitioner being the next in merit order was entitled to be admitted against that seat. It was argued that, as per Rule 14 of the Admission Rules, right of any candidate to get admissions is forfeited if he is absent before the Admission Committee and such seat is required to be offered to the immediate next candidate. Therefore, the petitioner was entitled to be offered the seat which was available on the cancellation of admission of Kalpesh Jasani. It was further contended that there was possibility of different fee structures for different categories of students and that Rule 2.6 cannot be interpreted to the detriment of candidates belonging to the reserved categories. Therefore, there was no need for treating Patel Ami, who was already absorbed in the S.E.B.C. category against the unreserved seat, even though on the basis of her 377 marks, she may have been entitled to be counted against the unreserved seat in the open merit. It was contended that a S.C./S.T./S.E.B.C. candidate was entitled to opt for his reserved category even if he appeared in the open merit against the unreserved seats so that he can get a college of his choice which would otherwise go to a person less meritorious than such candidate in the merit list of the relevant reserved category. It was also submitted that the interpretation placed by the learned Single Judge on Rule 2.6 will have the effect of exceeding the reservation quota beyond the permissible limit of 49% of the total available seats. He also contended that the petitioner of Special Civil Application NO.13098 of 2004 did not have any locus to institute the petition and stake her claim, because, admittedly she had remained absent on the specified date when called in the order of merits. It was argued that once any student is found to be absent on the dates specified for the purpose of counselling, such student would lose his right for all time to come and it was impermissible to offer one more chance to such student even at the time of re-counselling due to reshuffling of admissions. 5.1 The learned counsel placed reliance on the decision of the Supreme Court in Rajiv Mittal v. Maharshi Dayanand University, reported in AIR 1998 SC 680, to point out that, it was held in paragraph 14 of the judgement, in the context of Admissions to M.B.B.S. Course, that in case if any reserved category student had managed to secure admission to a general category seat in the first counselling for that category, then he will not be entitled to adjustment against reserved seat. The reserved category candidate had failed to secure admission to a seat in open category in the first counselling for that category but had secured admission to the reserved seat, in that case. Therefore, the question of his being shifted or being regarded as candidate to open merit seat which had become available only after he had secured admission did not and could not arise. As per the Note 2 in the information brochure, it was provided that: "A candidate who applies either for reserved category or for both reserved and open will be considered first in open category. In case he/she is not selected in open category, he / she will be considered for reserved category". This Note was construed by the High Court to mean that the candidate who was also in the merit list for the seat in the open category should be considered as having been selected to the open category seat and he should not be considered as having been selected for the reserved category seat. The Supreme Court held that the Note was not correctly construed by the High Court, and that, it will have application only when a reserved category candidate is in a position to secure, and secures admission to a seat in the general in the same counselling in which seat is available to him in the reserved category. It was held that the concerned reserved category candidate did not secure admission to anyone of the 49 unreserved seats as his serial number was at Serial Number 62 and the last candidate who had secured admission at the first counselling against the 49th seat was at Serial No.53. The candidate was, therefore, rightly allowed to take part on the second day of the first counselling for the backward class candidates and selected and granted admission. It is in this context that it was held that once the said candidate had secured admission in the reserved category quota at the first counselling for the backward class, there would be no occasion for him to take part in the second counselling for the general category seat for the same college which was subsequently held. The seat which had fallen vacant was one of the 49 seats which was required to be filled by the general category candidates and thus, the said Note No.2 was not applicable to the case before the Supreme Court. 6. The learned counsel appearing for the respondent No.5 (Letters Patent Appeal No.1782 of 2004) argued that the respondent No.5 was placed higher in the merit list than this appellant and was entitled to be offered the vacant unreserved seat of Jasani Kalpesh. He contended that the appellant had made wrong statements in the petition that he was next in the merit order and that this respondent was absent on the specified date. It was submitted that a candidate whose turn did not come for appearing before the Admission Committee on the specified date cannot be said to have failed to appear before it under Rule 14. He submitted that once Patel Ami