Gujarat High Court
Yatharth Naishadh Desai S/O Naishadh ... vs State Of Gujarat & Ors on 14 August, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
C/SCA/9942/2014 CAV JUDGMENT
SCA99422014Cj5.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9942 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ?` Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question Yes
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 ? No
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YATHARTH NAISHADH DESAI S/O NAISHADH DESAI & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR PH PATHAK, ADVOCATE for the Petitioners.
MR PK JANI, ADDL. ADVOCATE GENERAL for the Respondents No. 1 - 2
MR DHAVAL DAVE, SR. COUNSEL with MR. P.A. JADEJA, ADVOCATE FOR
ADDED RESPONDENTS No.4 to 197
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CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA
and
Page 1 of 64
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 14/08/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By this Special Civil Application, as amended, 29 students, who have appeared for admission to the Bachelor of Engineering and Technology courses 2014-15, have prayed for the following reliefs :-
"18. In the aforesaid facts and circumstances the petitioners pray that:
A. The Hon'ble Court be pleased to issue an order, writ in the nature of mandamus and/or certiorari or other appropriate writ, order or direction, declaring the provisions for preparation of merit-list under Rule 11 as illegal, arbitrary and ultra-virus [sic[ to Art 14 of the Constitution of India and be pleased to quash and set aside the same and declare that the method adopted by the respondents directly multiplying the percentile cannot be used for preparing the common merit list of different board & population.
B. Be pleased to declare that the respondents have adopted illegal method for preparation of merit-list for admission to degree engineering course for the year 2014-15 and be pleased to quash and set aside the provisions of Rule 11 as amended on 4-7-2014 and quash and set aside the final merit-list published by respondents on 12-7-2014.Page 2 of 64 C/SCA/9942/2014 CAV JUDGMENT
18/B(1) Be pleased to declare Rule 11(3) as amended vide Notification dated 4-7-2014, as ultra-virus [sic] to Art 14 of the Constitution of India and be pleased to quash and set aside the same.
18/B(1) This Hon'ble Court be pleased to declare the final merit-list published by respondents dated 12-7-2014 as illegal, unjust, arbitrary and be pleased to quash and set aside the same and direct respondents to publish merit-list as per directions of this Hon. Court in WP (PIL)/175/2014. C. Pending admission and final disposal of this petition, be pleased to restrain the respondents from allotting seats as per final merit-list published on 12-7-2014 for admission to degree engineering courses for the year 2014-15.
D. Pending admission and final disposal of this petition be pleased to suspend further implementation and operation of final merit-list for admission to degree engineering course and restrain respondents from issuing any admission to the students on the basis of final merit-list.
E. Any other and further relief which this Hon. Court deem fit and proper, in interest of justice."
2. The grievance, in substance, of the petitioners in this Special Civil Application is that after this Court in a Public Interest Litigation being Writ Petition (PIL) No.175 of 2014, by order dated 20th June 2014, set aside the mode of preparation of select list suggested by experts and the said decision being the subject-matter of challenge Page 3 of 64 in the Supreme Court in Special Leave by way of SLP No.15583 of 2014 and there being no stay of the order dated 20th June 2014 granted by the Supreme Court of India, the respondent-authorities could not by amending the rules set at naught the effect of the judgment dated 20th June 2014.
3. Therefore, the question that arises for determination in the present Special Civil Application is, whether the action taken by the respondents in publishing the result of the process of admission by not following the Division Bench decision of this Court dated 20th June 2014 in Writ Petition (PIL) No.175 of 2014 on the basis of the post- judgment amendment of the relevant Rule is legal or not. We are also required to consider, whether the amended Rule 11, laying down the procedure for preparation of merit list is ultra vires the provisions of the Constitution of India.
4. In order to appreciate the aforesaid question, it will be necessary to place on record the original Rules as it stood prior to the amendment and the amended version of the present Rules effected by two different amendments, one dated 25th June 2014 and the other dated 4th July 2014 after the passing of the judgment dated June 20, 2014.
5. For the purpose of deciding the aforesaid question, the entire Rules are not required to be reproduced, but we propose to produce Page 4 of 64 C/SCA/9942/2014 CAV JUDGMENT only the relevant provisions that will be necessary for the purpose of disposal of this Special Civil Application.
Prior to Amendment:
Rules 2[g]: "percentile marks" means the percentile score obtained by the candidate after normalizing the marks obtained by him in the Board with respect to the marks from other Boards;
xxx xxx xxx
9. Distribution of Seats between Candidates of
Gujarat Board and Other Boards.-
For the purpose of admission, the available seats shall be distributed based on the merit list prepared under sub-rule [1] of under rule 11:
Provided that if percentile marks are not available from any of the Boards mentioned in the sub-rule [1], sub-rule[2], sub-rule [3] or, as the case may be, sub-rule [4] of rule 5, then the available seats shall be distributed between candidates of the Boards for which percentile marks are available and other Boards for which percentile marks are not available, on pro-rata basis taking into consideration the two merit lists prepared as per the provisions of sub-rule [1] of rule 11."
xxx xxx xxx
11. Preparation of Merit List.-Page 5 of 64
The merit list of the candidates who have applied for admission in the manner prescribed by the Admission Committee, within the prescribed time limit and who are found eligible for admission under these rules, shall be prepared in the following manner, namely:-
[1] For the candidates who have passed the Qualifying Examination from any of the Boards mentioned in the sub-rule [1], sub-rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, sum of sixty percentage weightage of the percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] and forty percentage weightage of the percentile marks obtained in the JEE [Main] shall be the merit marks:
Provided that if percentile marks are not available from any of the Boards mentioned in the sub-rule [1], sub- rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, two separate merit lists shall be prepared namely:-
[i] The first merit list shall include the candidates who have passed the Qualifying Examination from the Boards for which the percentile marks are available. The merit list shall be prepared with sixty percentage weightage of the percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] combined with forty percentage weightage of the percentile marks obtained in the JEE [Main].
[ii] The second merit list shall include the candidates who have passed the Qualifying Examination from the Boards for which the percentile marks are not available. This shall be based on sixty percentage weightage of marks obtained in theory of the subjects [Physics, Page 6 of 64 C/SCA/9942/2014 CAV JUDGMENT Chemistry and Mathematics] after converting it to 100 combined with the forty percentage weightage of the percentile marks obtained in the JEE [Main].
2. The criteria for deciding merit order in case of candidates having equal merit marks shall be based on the percentage of marks obtained in the Qualifying Examination in the following sequence, namely:-
[a] Mathematics and Physics
[b] Mathematics and Chemistry
[c] Physics and Chemistry
[d] Mathematics
[e] Physics
[f] Chemistry
[g] English
[h] Aggregate marks"
(Emphasis supplied by us)
Amendment
"NOTIFICATION
EDUCATION DEPARTMENT
Sachivalaya, Gandhinagar,
Dated the 25th June 2014
NO.GH/SH/16/2014/PVS/102012/142/S :- In exercise of the powers of conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj.2 of 2008), the Government of Gujarat hereby makes the following rules further to amend the Bachelor of Engineering and Technology (Regulation of Page 7 of 64 Admission and Payment of Fees) Rules, 2013, namely:-
1. These rules may be called the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2014.
2. In the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013, in rule 2, in sub-rule (1), for clause (g), the following clause shall be substituted, namely:-
"(g) "percentile marks" means the percentile obtained by the candidate by considering the total number of students who have appeared in their respective board and in the JEE (Main) examination of corresponding year."
By order and in the name of the Governor of Gujarat, Sd/-
(M.R. Kothari)
Deputy Secretary of
Government"
"NOTIFICATION
EDUCATION DEPARTMENT
Sachivalaya, Gandhinagar,
Dated the 4th July 2014
NO.GH/SH/17/2014/PRC/102012/142/S :- In exercise of the powers conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj.2 of 2008), the Government of Gujarat Page 8 of 64 C/SCA/9942/2014 CAV JUDGMENT hereby makes the following rules further to amend the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013, namely:-
1. These rules may be called the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) (Second Amendment) Rules, 2014.
2. In the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013, in rule 11, after sub-rule (2), the following sub-rule shall be added, namely:-
"(3) For the purpose of sub-rule (1), the percentile marks shall mean only the percentile and while preparing the merit list the percentage obtained by the candidate shall not be taken into account. However, only for the purpose of deciding the merit order of candidates having equal merit marks, the percentage of marks shall be considered as provided in sub-rule (2)."
By order and in the name of the Governor of Gujarat, Sd/-
(M.H. KHUMAR) Under Secretary of Government"
6. It may not be out of place to mention here that in the present Special Civil Application, the amendment of Rule 2(1) (g) as amended by Notification dated 25th June 2014 has not been specifically challenged in the prayer portion of the petition and in the prayer portion the entire Rule 11 including Rule 11(3) as it stands after both Page 9 of 64 the amendments, has been challenged as ultra vires.
7. Before proceeding further, it will be appropriate to give the following list of events which started from the publication of result in the year 2013-14 till date, including the earlier two proceedings before this Court, the first one being the Special Civil Application by 23 candidates for the year 2013-14 and the other, a Public Interest Litigation of the present year, namely, the process of selection for the year 2014-15.
2013-14 In the year 2013-14 the respondents have adopted the method of normalization of preparation of merit list for admission to the Engineering Courses.
Aggrieved by same, 23 students had filed Special Civil Application No.9960 of 2013 before this Court. 23.7.2013 A Bench of this Court allowed the Special Civil Application observing that the merit list was not prepared in accordance with the then existing Rule and directed the respondents to strictly follow the relevant rules as formulated in para 38.1 of the said judgment.
SLP Against this Court's order, the respondents have (C)/24045- approached the Supreme Court by filing SLP and 49/2013 prayed for interim relief on the ground that they Page 10 of 64 C/SCA/9942/2014 CAV JUDGMENT had given admission to about 55,000 students during finalization of the petition and the time limit fixed by this Court for giving admission and starting the education terms, will adversely affect the education of students and it will not be possible for them to finalize the merit list within such a short period.
The Supreme Court although granted stay of the operation of the order dated 23rd July, 2013 yet at the same time, directed to see that the respondents in the Special Leave petition who were petitioners in the High Court might be accommodated according to their choice.
26.03.2014 The respondents filed application before the Supreme Court in the above pending Special Leave Application of 2013 thereby praying for variation of the method adopted by them in the last year for preparation of merit list so that a new formula could be applied for the preparation of the merit list of this year, 2014-15.
The Supreme Court has not granted such relief on the said interlocutory applications of the Page 11 of 64 respondents by recording "no order".
26.3.2014 The respondents submitted before the Supreme Court the method to be followed in the current year 2014-15.
PIL/175/2014 The method suggested before the Supreme Court as mentioned above was also challenged by way of Writ Petition (PIL) No.175 of 2014 and this Court quashed and set aside the said method sought to be adopted by the respondents by holding that the said method was contrary to the Rules.
03/07/14 Against the said judgment, once again, the State has approached the Supreme Court by way of SLP.
On 7th July 2014, the State withdrew their interlocutory application praying for staying the operation of the order of this Court by saying that they have made amendment in the Rule on 4th July 2014 and asked for four weeks time for hearing of the Special Leave Application.
12.7.2014 On the basis of amended rules, the respondents have published final position of students provisional merit list on the website for admission for the year 2014-15.
Page 12 of 64 C/SCA/9942/2014 CAV JUDGMENT
8. At this juncture, we also propose to reiterate the ultimate directions given by this Court vide order dated 23rd July 2013 as well as the one dated 20th June 2014 in the earlier two proceedings before this bench.
Directions contained in order dated 23rd July 2013.
"38. On consideration of the entire materials on record, we declare that the merit list has not been prepared in accordance with the existing Rules and at the same time, the method adopted itself is violative of Article 14 of the Constitution of India. We, accordingly, pass order in terms of paragraph 18.A of Special Civil Application No. 9960 of 2013 in all these matters and direct the respondents to strictly follow the provisions contained in the Rules as indicated below.
38.1 The merit list in accordance with the existing Rules should be prepared in the following way:
The total marks obtained by a candidate will be A +B where, A is the Percentage of actual marks obtained by a candidate in his Board Examination x percentile given by that Board in respect of that candidate in comparison to all the similar candidates appearing in that Board Examination irrespective of the fact whether they have registered in this process of selection or not X 0.6 and B is the Percentage of marks actually obtained by that candidate in JEE X Page 13 of 64 percentile given to that candidate with reference to the performance of all the persons appearing in JEE irrespective of the fact whether they have registered in this process of selection or not X 0.4.
38.2 The respondents are directed to act accordingly and prepare fresh merit list.
No costs."
Directions contained in order dated 20th June 2014.
"42. In such circumstances, we direct the State-respondent to follow the Rules enacted by the delegated authority in its entirety so long the said Rule is not amended by appropriate legislation. We are unable to approve the mode suggested by the experts by ignoring the delegated legislation simply because the experts think that if delegated legislation is strictly implemented, it will cause injustice. Implementation of such opinion of the expert is contrary to law of the land.
43. We reiterate that the formula disclosed in Paragraph 38.1 of our earlier judgment as quoted in this judgment is required to be applied for preparation of merit list based on Rule 11 enacted by the delegated authority with further observation that in case of tie, sub-rule 2 of Rule 11 should be applied and accordingly we direct that State-Respondent to adopt the same unless the Rules are amended by appropriate legislation by the appropriate delegated authority in the meantime.
44. The PIL is thus disposed of with the above direction. No costs."Page 14 of 64 C/SCA/9942/2014 CAV JUDGMENT
9. Mr Pathak, the learned advocate appearing on behalf of the petitioners, has, at the first instance, strenuously contended that the publication of result based on the amended provision of the Rule is a mala fide attempt on the part of the State-respondent in overcoming our order dated 20th June 2014 in Writ Petition (PIL) No.175 of 2014 and thus, on that ground alone, the amendment should be quashed, particularly, when that order is still operating against the respondents and the Supreme Court has not stayed the operation of the said order. Mr Pathak further submits that when the stay application was fixed for hearing, at that stage, the State-respondent did not press the said application before the Supreme Court by amending the said Rule.
9.1 Secondly, Mr Pathak contends that the amendment, on the basis of which the result has been published, has occasioned failure of justice inasmuch as by the amended method, even the principle of percentile, which was the object of the amended Rule, has been totally frustrated and an absurd result has been published on the basis of the amended Rule in violation of the basic principles of percentile which does not permit making percentage of the percentile.
9.2 Thirdly, according to Mr Pathak, the Rules that existed at the time of initiation of the proceeding for selection cannot be changed Page 15 of 64 during the process of selection to the prejudice of the petitioners. In other words, according to Mr Pathak, if, on the basis of the original Rules, as it existed, the process of selection was conducted, his clients would have secured higher position than the one arrived at by the application of the amended Rules. Mr Pathak submits that such amendment should not at least be made applicable in the present academic year when the process of selection had already been initiated on the basis of unamended Rule.
9.3 Mr. Pathak lastly contends that even in implementing the amended Rule, the State-respondent has relied upon the percentile sent by different Boards, which, on the face of materials on record, is calculated not on the basis of the amended Rules.
10. Mr Jani, the learned Additional Advocate General, appearing on behalf of the State-respondent, on the other hand, opposed the aforesaid contentions of Mr Pathak and has contended that this Special Civil Application should be rejected as it is a mala fide attempt on the part of the petitioners to cause prejudice to the 70,000 students who have no complaint about the procedure adopted by the State-respondent. According to Mr Jani, in the matter of policy decision taken by an appropriate authority, a writ-court should not interfere simply because according to the court, the view proposed to be taken by it is a wiser one than the one taken by the appropriate authority. Mr Jani further submits that in the prospectus issued by his Page 16 of 64 C/SCA/9942/2014 CAV JUDGMENT client they have specifically disclosed the procedure to be followed for the purpose of selection, and the selfsame procedure having been adopted, the petitioners cannot be prejudiced in any way for the change of Rule by which merely some ambiguity in the language employed in the original Rule has been clarified. Mr Jani further contends that this application should also be dismissed on the ground of delay in moving the application 10.1 In addition to the abovementioned points, it is the specific submission of Mr Jani that in this Special Civil Application, the writ- petitioners not having challenged the amendment of Rule 2(1)(g) effected by the amendment of June 25, 2014, no relief can be granted to the petitioners on the basis of prayers made in the application and this Court cannot declare the provision of Rule 2(1)(g) as ultra vires in the absence of any specific prayer to that effect made in the petition. In other words, according to Mr Jani, the petitioners cannot be given any benefit even if it is declared that the amendment in Rule 11 is ultra vires any of the provisions of the Constitution unless there is specific pleading challenging the provisions contained in Rule 2(1) (g). 10.2 In support of his contentions, Mr Jani has relief upon the following decisions:-
[1]. CHARUTAR AROGYA MANDAL v. PARENTS ASSOCIATION FOR THE MEDICAL / DENTAL STUDENTS AND ORS. reported in 2012 (2) GLH 489 Page 17 of 64 [2]. MEDICAL COUNCIL OF INDIA v. SARANG reported in 2001 (8) SCC 427 [3]. STATE OF HARYANA v. SUBASH CHANDER reported in AIR 1973 SC 2216 [4]. RAJESH KUMAR SINGHAI v. STATE reported in AIR 1992 MP 364 [5]. VICE-CHANCELLOR, UNIV. OF ALLAHABAD v. DR. ANAND PRAKASH MISHRA reported in 1997(10) SCC 264 [6]. SUDHIR G ANGUR v. M. SANJEEV reported in AIR 2006 SC 351 [7]. UNION OF PUBLIC SERVICE COMMISSION v. GAURAV DWIVEDI AND OTHERS reported in 1995 (5) SCC 180 [8]. RAJIV KAPOOR v. STATE OF HARYANA reported in 2000 (9) SCC 115 [9]. GOVERNMENT OF INDIA v. INDIAN TOBACCO ASSOCN. reported in AIR 2005 SC 3685 [10]. STATE OF W.B. v. SRI LAL CHAND reported in AIR 1987 SC 1316
11. Mr. Dave, the learned senior counsel appearing on behalf of the added respondents, who are some of the selected candidates on the basis of the amended Rules and who have been joined as party- respondents during the pendency of this application, has supported the contention of Mr. Jani, and in addition to the above contentions, has submitted that in the matter of formulation of policy and procedure of admission, even if such policy causes some violation of legal right or prejudice to some of the candidates, it is not for the writ-court to interfere with such policy decision. In support of such contention, Mr. Dave has relied upon the decision of the Supreme Court in the case of Sanchit Bansal and Anr. v. Joint Admission Board (JAB) and Ors reported in AIR 2012 SC 214. Mr. Dave Page 18 of 64 C/SCA/9942/2014 CAV JUDGMENT further contends that this application should also be dismissed on the ground of delay, as the Supreme Court in a recent decision dated 26 th June 2014 in Writ Petition (Civil) No. 538 of 2014 having already held that the time-limit for admission of the students in Engineering Colleges cannot be altered and the said date having expired, this Court now cannot upset the process of selection, even if the same is found to be illegal. According to Mr. Dave, the said guidelines given by the Supreme Court is the law of the land within the meaning of Article 141 of the Constitution of India, and on that ground alone, we should dismiss this application. Finally, Mr. Dave contends that his clients having already taken admission in various Colleges on the basis of the result published and some of them having even made arrangement for admission in various Hostels, if the results are now set aside, it will cause serious prejudice to such students. Mr. Dave, therefore, prays for dismissal of this writ-application.
12. Therefore, the first question that falls for determination in this writ-application is whether the State-respondent can lawfully introduce the amended Rules of selection, which was not in existence when the prospectus for the purpose of admission was issued in the month of May 2014.
13. After hearing the learned counsel for the parties and after taking into consideration the well-settled law on this aspect, we are of the view that the general rule is that once a process of selection has Page 19 of 64 been initiated on the basis of a declared policy, during the process of selection, the said policy cannot be amended by virtue of which some of the candidates who were eligible at the time of initiation of the process would become ineligible. By virtue of the amended Rule, which is the subject-matter of this litigation, none of the candidates have become ineligible, and hence, the said general rule has no application to the present case before us. However, after the process of selection is initiated, if the procedure of marking is changed and is made applicable to all the candidates, in such circumstances, a candidate cannot legitimately contend that by virtue of the amended Rule, he will be prejudiced. We are, therefore, not convinced by the submission of Mr. Pathak that merely because a Rule giving the method of marking has been changed without affecting the eligibility criteria of any of the candidates, the same can cause prejudice because the amended Rule will be universally applicable to all the candidates. We are, therefore, of the view that before final result is published, the process of marking can be amended provided the amended Rule is not ultra vires Article 14 of the Constitution of India. As we propose to accept the above contention of Mr. Jani and Mr. Dave, we do not intend to discuss the decisions relied upon by them in the course of argument on the above question.
14. The next question is whether this application should be dismissed simply on the ground of delay in filing this application. Page 20 of 64 C/SCA/9942/2014 CAV JUDGMENT
15. In the case before us, the process of selection was initiated in the month of May 2014, when a PIL was filed before this Court and ultimately, this Court held that the process of marking intended to be applied was not in conformity with the existing Rules enacted by the delegated legislation and on that ground, this Division Bench set aside the proposed method for giving marks and directed the respondent-authority to give marking strictly in accordance with the statutory Rules, and we also indicated the exact formula which should be applied in order to be in conformity with the then Rules. We, however, made it clear that if the delegated legislative authority makes amendment of the Rules, then the said amended Rule can be followed and the formula prescribed by us which was consistent with the then prevailing Rules, was not required to be followed. The State- respondent although has preferred a Special Leave Petition against our above order before the Supreme Court, yet, did not press the stay application which was filed, and instead of that, decided to amend the Rules. Such Rules were amended twice, first on 25 th June 2014 wherein the original definition of 'percentile marks' was amended and subsequently, by another amendment dated 4th July 2014, the respondents amended Rule 11 by introducing sub-rule 3 therein. 15.1 Thereafter, when the matter came up before the Supreme Court on 7th July 2014, the State disclosed that it did not want to press the application for stay and by amending the Rules, they proposed to disclose the result, and the result was declared on the selfsame day, Page 21 of 64 viz. 7th July 2014. The present writ-petition is filed on 12 th July 2014. We are, therefore, of the view that there is no scope of rejection of this application merely on the ground of delay, as within 5 days of publication of the result based on the amended Rule, the petitioners have filed this writ-petition.
16. The next question is whether the unreported Supreme Court decision dated 26th June 2014 in Writ Petition (Civil) No. 538 of 2014 and analogous matters passed by the Division Bench of the Supreme Court forbids entertainment of this application.
17. It appears from the order dated 26th June 2014 passed by the Supreme Court in Writ Petition (Civil) No. 538 of 2013 [JAYAMATHA ENGINEERING COLLEGE vs. UNION OF INDIA AND others and other connected matters] that a vacation bench of the Supreme Court was considering Interim Application No. 6 filed on behalf of All India Council for Technical Education [AICTE] seeking extension in the schedule laid down by the Supreme Court in Parshavanath Charitable Trust and others v. All India Council for Technical Education and others reported in (2013) 3 SCC 385, the relevant portion of which is as follows:
"41. The appropriate schedule, thus, would be as follows:-
Event Schedule Page 22 of 64 C/SCA/9942/2014 CAV JUDGMENT Conduct of Entrance Examination In the month of May (AIEEE/State CET / Mgt. Quota exams, etc.)
Declaration of Result of Qualifying On or before 5th June Examination (12th Exam or similar) and Entrance Examination 1st round of counselling / admission To be completed on or for allotment of seats before 30th June 2nd round of counselling for allotment To be completed on or of seats before 10th July Last round of counselling for To be completed on or allotment of seats before 20th July Last date for admitting candidates in 30th July. However, any seats other than allotted above number of rounds for counselling could be conducted depending on local requirement, but all the rounds shall be completed before 30th July Commencement of academic session 1st August Last date up to which students can 15th August be admitted against vacancies arising due to any reason (no student should be admitted in any institution after the last date under any quota) Last date of granting or refusing 10th April approval by AICTE Last date of granting or refusing 15th May approval by University / State Government
42. The admission to academic courses should start, as proposed, Page 23 of 64 by 1st August of the relevant year. The seats remaining vacant should again be duly notified and advertised. All seats should be filled positively by 15th August after which there shall be no admission, whatever be the reason or ground"
17.1 In the application before the Supreme Court, the AICTE had averred that it had received 7280 application from existing technical institutions in the country, of which 6751 applications had been processed already and the remaining 529 applications were pending consideration as on 4th June 2014. It was further averred in the application that since the exercise was of vast magnitude, all applications could not be processed so as to comprehensively respond to the directions of the Supreme Court reproduced above. The learned counsel for AICTE, therefore, submitted that if time was extended by one week, all the remaining applications would also be processed by AICTE. It was further averred in the application that the prayer in the writ-petitions was substantially the same since the stand of the AICTE was that although, after due consideration, EOA for Academic Year 2014-2015 was recommended, because of the deadline given by the Supreme Court, the approval could not be granted.
17.2 On consideration of submissions, the Supreme Court held that all the colleges who had been cleared for intake of students for Academic Year 2014-2015 as envisaged in the process mentioned Page 24 of 64 C/SCA/9942/2014 CAV JUDGMENT above should be cleared and considered for admitting students for the current academic year. In such circumstances, the Supreme Court made the following order:-
"The AICTE is granted seven days within which to take a decision on all the applications pending before it. It shall first take up the applications in which it has already expressed willingness to grant approvals, but have not done so in deference of the Orders of this Court. Thereafter, the concerned Universities/State Authorities/Bodies which have the powers of granting affiliation shall take a decision on that subject within one week. It is for these reasons that the first round of counselling/admission for allotment of seats which was to be completed by 30th June, 2014 will now be completed by 15th July, 2014. The second round of counselling shall be completed by 22nd July, 2014 and the last round by 29th July 2014. In this manner, the date of commencement of the Academic Sessions, as laid down by this Court above, shall not be disturbed.
It is made clear that all the Colleges who have been cleared for intake of students for the Academic Year 2014-2015, as envisaged in the process above, shall be cleared and considered for admitting students for the current Academic Year. Learned Senior Counsel appearing for the petitioners in some of the Writ Petitions apprehends that the respondents may adhere to Annexure P-7. We think that that would not be appropriate in view of the orders contained herein."
18. In our opinion, the above decision does not lay down a Page 25 of 64 proposition of law that in the process of selection, if gross illegality or violation of fundamental or legal rights of the students are caused, the same cannot be rectified and the illegal procedure should be endorsed, even if, it is the State which has declared the result after the period approved by the Supreme Court. In the case before us, the respondent-State themselves did not follow the dates fixed by the Supreme Court earlier, and they amended the Rules on 7th July 2014 after the expiry of the dates fixed for publication of the results. In such circumstances, if it appears that the amended Rules which have been made applicable violate any of the fundamental or legal rights of a citizen, the same can be definitely set aside as the petitioner had no hand in the matter of amendment made by the State on 7 th July 2014 and publication of result on the selfsame day. We, therefore, find that the decision cited by Mr.Dave does not lay down a proposition of law that in spite of illegality on the part of the State, the students are precluded from challenging the process of admission simply because the dates fixed could not be complied with. We, thus, find no substance in the aforesaid contention of Mr. Dave.
19. The next question is whether the amendment of Rules 2(1)(g) and 11 by introduction of sub-rule 3 of Rule 11 are violative of or ultra vires any of the provisions of the Constitution.
20. Before entering into the above question, we propose to answer a preliminary objection raised by Mr. Jani regarding absence of Page 26 of 64 C/SCA/9942/2014 CAV JUDGMENT challenge of amendment made on 25th June, 2014 amending Rule 2(1) (g).
21. According to Mr. Jani, by virtue of amendment dated 25 th June 2014, the earlier provision of Rule 2(1)(g) defining percentile mark has been amended and a new definition of percentile mark has been substituted in its place and by further amendment, Rule 11 (3) has been introduced in Rule 11, by amendment dated 4th July 2014. Mr. Jani vehemently contended that the petitioners in this application not having challenged the definition of percentile marks appearing in the substituted Rule 2(1) (g) as ultra vires, are precluded from challenging only the provision of Rule 11 as amended. In other words, according to Mr. Jani, if we maintain Rule 2(1) (g), we cannot, in the same judgment, declare Rule 11 as ultra vires.
22. It appears from the notification allowing the amendment of Rule 2(1) (g) dated 25th June 2014, that the previous definition of percentile marks had been amended and in its place, a new definition of percentile marks has been substituted. We find in the subsequent amendment of Rule by way of incorporation of sub-rule 3 that notwithstanding the earlier amendment of definition of percentile Rule in Rule 2(1) (g), it has been further reiterated in sub-rule 3 of Rule 11 that for the purpose of sub-rule (1), the percentile marks shall mean only the percentile and while preparing the merit list, the percentage obtained by the candidate shall not be taken into Page 27 of 64 account. However, only for the purpose of deciding the merit order of candidates having equal merit marks, the percentage of marks shall be considered as provided in sub-rule (2).
23. In our opinion, if the legislature, in spite of specific definition of percentile mark appearing in the definition clause in Rule 2(1)(g) further adds in Rule 11 that for the purpose of sub-rule (1), the percentile marks shall mean only the percentile for the purpose of calculation of mark, which is the subject matter of challenge, the intention of the legislature was that the definition given in sub-rule (3) of Rule 11 will have overriding effect over the definition given in section 2(1)(g) inasmuch as the definition clause itself says that unless the context otherwise requires, the definition clause will be applicable. In the context of calculation of mark, a fresh definition having been introduced in sub-rule (3) of Rule 11, the petitioners have rightly challenged only Rule 11 as amended which is substantially the same as incorporated in the definition clause, and for not challenging the definition given in Rule 2(1) (g), the petitioners cannot be deprived of the just relief if they are otherwise entitled. We, therefore, overrule the preliminary objection of Mr. Jani that for not challenging the amended definition of percentile mark in Rule 2(1) (g) as amended, the petitioners are not entitled to any relief in this writ-application though the amended Rule 11 has been specifically challenged and for the purpose of Rule 11, a separate definition has been given in sub-rule (3) of Rule 11 itself. Page 28 of 64 C/SCA/9942/2014 CAV JUDGMENT
24. Therefore, now the vital question that arises for determination in this writ-application is whether the amended provision of Rule 11 can be said to be ultra vires.
25. It is now settled law that the legislature is entitled to overcome the effect of a judicial pronouncement by amending the statutory provision. In the case of S.S. BOLA AND OTHERS v. B.D. SARDANA AND OTHERS reported in AIR 1997 SC 3127, the Supreme Court laid down the law regarding power of the legislature to alter law for the purpose of overcoming the effect of a judicial pronouncement. The relevant observations made by the Supreme Court in paragraph 155 of the judgment are quoted below:-
"H. In a democracy governed by rule of law, the legislature exercises its power under Articles 245 and 246 and other companion Articles read with the specified entries in the respective lists of the Seventh Schedule to the Constitution. Power to legislate law would include the power to amend the law, to enact a new law, and in an appropriate case, with retrospective effect. The legislature in enacting new law or amending the existing law or revalidating the law has power to alter the language in the statute by employing the appropriate phraseology and to put up its own interpretation inconsistent with that put up by the Court in an earlier judgment on the basis of the pre-existing law and to suitably make new law, amend the law or alter the law removing the base on which the previous decision was founded. If a legislature finds that the interpretation given by the Court to the existing law is Page 29 of 64 inconsistent with the constitutional or public policy or the objects of the Act intended to be achieved, the legislature has power to enact new law, or amend the law consistent with Constitutional or public policy sought to be achieved by the statute. Such an enactment must generally be prospective and not retrospective in nature.
I. In order to pass on the Constitutionality, the Court is required to carefully scan the impugned law to find out (a) whether the vice pointed out by the Court or the invalidity suffered by the previous law is cured complying with the legal and constitutional requirement, (b) whether the legislature has competence to enact the law to validate the law; and (c) whether such enactment of Act or validation is consistent with the constitutional principles or within limitations set by the Constitution or fundamental rights enshrined in Part III of the Constitution or basic structure of the Constitution. The Court can taken into account the real consequences while judging the width of the power nor can the Court ignore the consequences flowing from particular construction ascertaining the limits of the provisions that granted the power.
J. The legislature in enacting the law cannot without anything more, by a mere declaration, directly overrule, revise or override a judicial decision. It can render the judicial decision ineffective only by enacting valid law on the subject within its legislative competence fundamentally altering or changing the character prospectively or retrospectively. The changes or altered conditions have to be such that the previous decision would not have been rendered by the Court had those Page 30 of 64 C/SCA/9942/2014 CAV JUDGMENT conditions existed at the time of declaration of the law in the previous decision as invalid. It is also empowered to give effect to the Acts so enacted or revalidated prospectively or retrospectively with a deemed date or with effect from a particular date."
25.1 Bearing in mind the aforesaid principles, we now propose to apply the above test to the facts of the present case.
26. The original Rule 11 in the context of the un-amended Rule 2(1)
(g) prescribed a method of computation of marks which was a system of combination of 60% weightage of Board percentile linked with the mark obtained in the Board examination and 40% of the marks in JEE linked with the percentile in that examination. The above intention will appear from the language employed in the original definition of percentile mark appearing in Rule 2(1)(g) which provided that "percentile marks" means the percentile score obtained by the candidate after normalizing the marks obtained by him in the Board with respect to the marks from other Boards. Therefore, the legislature was quite conscious that there cannot be 60% of mere percentile of a candidate in a given examination unless the said percentile is also linked with the actual marks obtained. The legislature was also quite conscious that percentile score is not percentile marks, and for the above reason, the phrase " after normalizing the marks obtained by him in the Board with respect to Page 31 of 64 the marks from other Boards" was specifically indicated.
27. The word "percentile" has been defined in Merriam-Webster, published in the year 2003 as follows:
"a value on a scale of 100 that indicates the percent of a distribution that is equal to or below it< a score in the 95 th percentiles>"
28. Thus, percentile score for an individual examinee represents the score of an individual examinee compared to the scores of other examinees within a particular comparison group. Percentile scores range from the 1st through 99th percentile, indicating the percentage of scores in the comparison group which are lower than the particular examinee's score, e.g. if score report of 'X' says that his overall score of 19 is in the 67th percentile, this means that 'X' has tested better than 66% of the examinees compared to aggregate sample of the examinees like him. In other words, the percentile score of 'X' is equal to number of people who got less than or equal to 'X', taking it to 100. Thus, if in examination, 10 people give test and 9 people get either less than what 'X' got or equal to what 'X' got, 'X's percentile score is 9/10 x 100 = 90 percentile. Following example will further clarify the position:
29. A class of 20 students had the following scores on their most recent test: 75,77,78,78,80,81,81,82,83,84, 84, 84, 85, 87, 87, Page 32 of 64 C/SCA/9942/2014 CAV JUDGMENT 88, 88, 88, 89, 90. The score of 80% has four scores below it, viz. 75, 77, 78 and 78. Since 4/20=20%, 80 is the 20th percentile of the class, the score of 90 has 19 scores below it, and since 19/20 =05%, it corresponds to the 95 percentile of the class. Thus, although 80% mark is ordinarily considered to be fairly good mark, in the above example, having regard to the fact that 16 students out of 20 have obtained 80 or more marks, the percentile of a person obtaining 80 marks should be taken to be 20 only. Let us now take into consideration the result of another class of 20 students where the following was the scores in a separately taken examination on the selfsame subject: 90, 87, 85, 80, 80, 78, 76, 76, 75, 70, 70, 70, 65, 64, 62, 62, 61, 61, 60, and 60. In the above examination, the percentile of a student having obtained 80 marks would be 15/20 = 75th percentile of the class. If we are required to compare the standard of two students one from the former class and the other from the latter one when both have obtained 80 marks, by applying the percentile method, we will assess the merit of the one from the former example by giving 80x20=1600 marks while the student from latter example will be assessed by giving 80x75= 6000 marks.
30. At this stage, one must not confuse the meaning of the words "percentile" with "percentage". A percentage score indicates the proportion of a test that someone has completed correctly. A percentile score indicates what percent of other scores is less than the data point we are investigating. From the percentile-scores-data Page 33 of 64 given by the different Boards to the Respondents which have been placed before us, it appears that each Board has furnished the actual marks obtained by each candidate in physics, chemistry and mathematics and also their respective positions in reference to the other candidates appearing from that Board in the final Board Examination.
31. Since the respondent-authority, for the purpose of preparation of select list for this year on the basis of the original Rules 2(1)(g) and 11 as those stood prior to such amendment tried to add 60% weightage of mere percentile without linking the marks to it and adding thereto 40% of percentile score obtained by the candidate in the JEE examination, we, in the previous Public Interest Litigation referred to above, asked the respondent-authority not to apply such Rule as the same will be inconsistent with the definition of percentile marks, as it then stood, and ultimately, directed the respondent to apply the following rule for the purpose of calculation of marks so that the same is in conformity with the un-amended Rules which then existed:
"The merit-list in accordance with the existing Rules should be prepared in the following way:
The total marks obtained by a candidate will be A + B where A is the percentage of actual marks obtained by a Page 34 of 64 C/SCA/9942/2014 CAV JUDGMENT candidate in his Board Examination X percentile given by that Board in respect of that candidate in comparison to all the similar candidates appearing in that Board Examination irrespective of the fact whether they have registered in this process of selection or not X .06 and B is the percentage of marks actually obtained by that candidate in JEE X percentile given to that candidate with reference to the performance of all the persons appearing in JEE irrespective of the fact whether they have registered in this process of selection or not X 0.4"
31.1 We, however also indicated that if the competent authority decided to amend the above Rule, in that event, our proposed formula need not be followed. In other words, we merely gave such direction based on the Rules as it stood, viz. Rules 2(1) (g) and 11.
32. As pointed out earlier, the State-respondent challenged our decision by moving a Special Leave Petition before the Supreme Court, but for the reasons best known to them, on the date fixed for hearing of the application for stay of our order, the respondents informed the Supreme Court that they have amended the Rule and they did not want to press the application for stay, and consequently, the Rule was amended by totally changing the definition of percentile marks as appearing in Rule 2(1)(g) and also virtually reiterating the decision that percentile marks in the same way in sub-rule (3) of Rule
11. Page 35 of 64
33. By the proposed amendment, the Rule of normalizing the marks with the marks of other Boards and the concept of difference of percentile score and percentile marks have been given a go bye and the percentile has been treated to be a percentile mark without reference to any marks obtained by the candidates except in case of a tie.
34. We have already pointed out that the concept of percentile differs a lot from that of percentage of marks. The percentage is an "amount" whereas percentile is a "location". One can, by simple application arithmetic, add to or subtract from or multiply or divide the "percentage of marks" which is an "amount" but the "percentile" being a "location", there is no scope of making 60% or 40% of such percentile which is nothing but multiplication by 0.6 or 0.4 to the arithmetic figure at which the percentile is arrived at on the basis of the marks obtained by different examinees with reference to the number of examinee participating in the process.
35. Whenever a merit list is prepared by the selectors, the object of preparation of such merit list is to see that the most meritorious candidate comes at the top and thereafter the list is maintained according to the merit achieved by the candidates in the process of selection. Whenever we speak of merit in an examination, we mean performance of the candidate in the process of selection when such Page 36 of 64 C/SCA/9942/2014 CAV JUDGMENT performance is judged by awarding marks. It pre-supposes an idea that the basic unit of such marks will be of the same value. In other words, if 100 is the full value of the marks, it is presumed that the difference between 99 and 100 will be equal to the difference between either 42 and 43, or 19 and 20 or 1 and 2, and similarly, any two consecutive numbers in the course from 0 to the full marks fixed. If the difference between the two consecutive marks is not of equal value, we cannot apply the process of addition, subtraction, multiplication or division and consequently, the formula of percentage, which is based on multiplication and division, also cannot be applied.
36. In the case before us, the legislative authority intended that 40% of the marks obtained in JEE examination would be added to 60% of marks obtained in a Board examination but as there are more than one Boards and the examination papers of those Board were different, they decided to also utilize the doctrine of percentile, which is based on the principle that all the toppers in different Boards are of same standard. The legislature, however, was quite conscious that after the introduction of the system of percentile which is based on rank only, the percentage-weightage-system cannot be arithmetically applied on such individual position and for that reason, in the original definition of percentile marks indicated in Rule 2(1) (g) of the Rules, they applied a mixed formula of percentile coupled with the actual marks and for that reason, the phrase " after normalizing the marks" Page 37 of 64
obtained in different Boards was indicated. In the original definition of percentile mark appearing in Rule 2(1) (g), the legislature referred to both percentile score and marks.
37. At this stage, we cannot lose sight of the fact that even percentile is based on the performance of a candidate in the examination and the person obtaining the highest mark gets the highest percentile. The marks, as indicated earlier, are assessed based on the number of correct answers given by a candidate in an examination. If a candidate answers 100% correct answer according to the opinion of the examiner, he gets 100 marks. Similarly, if he answers 80% of the questions correctly, he gets 80% of marks. From the above example, it is clear that for the purpose of preparation of mark list, the basic factor is how much correct answer a student has given and that will be the indicator of his performance in the process of selection. In other words, for preparation of the merit list, that is prepared on the basis of a written examination, as in this case, the correct answer is the criterion for assessing the merit.
38. In the system of assessing performance based on percentile, the percentile does not guarantee that the difference between two consecutive percentiles from 1 to 99 will have equal difference as in the case of ordinary arithmetic. Such being the position, percentile rank cannot be scientifically multiplied by 0.6 or 0.4 to arrive at the appropriate figure of correct answer.
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39. Our aforesaid observation will find support from an article on the topic of percentile rank as found in http://en.wikipedia.org/wiki/Percentile_rank, which is quoted below:
"Percentile rank From Wikipedia, the free encyclopedia The percentile rank of a score is the percentage of scores in its frequency distribution that are the same or lower than it. For example, a test score that is greater than or equal to 75% of the scores of people taking the test is said to be at the 75th percentile rank.
Percentile ranks are commonly used to clarify the interpretation of scores on standardized tests. For the test theory, the percentile rank of a raw score is interpreted as the percentages of examinees in the norm group who scored at or below the score of interest.
Percentile ranks are not on an equal-interval scale; that is, the difference between any two scores is not the same between any other two scores whose difference in percentile ranks is the same. For example, 50−25=25 is not the same distance as 60−35=25 because of the bell-curve shape of the distribution. Some percentile ranks are closer to some than others. Percentile rank 30 is closer on the bell curve to 40 than it is to
20."
(Emphasis supplied by us).
40. The observations from "Introductory Statistics: Concepts, Page 39 of 64 Models and Applications by David W. Stockburger, Emeritus Professor, Missouri State University, Deputy Director of Academic Assessment, US Air Force Academy, is also noteworthy, which we quote below in support of our above view:
"An Unfortunate Property Percentile ranks, as the name implies, is a system of ranking. Using the system destroys the interval property of the measurement system. That is, if the scores could be assumed to have the interval property before they were transformed, they would not have the property after transformation. The interval property is critical to interpret most of the statistics described in this text, i.e. mean, mode, median, standard deviation, variance, and range, thus transformation to percentile ranks does not permit meaningful analysis of the transformed scores.
If an additional assumption of an underlying normal distribution is made, not only do percentile ranks destroy the interval property, but they also destroy the information in a particular manner. If the scores are distributed normally then percentile ranks underestimate large differences in the tails of the distribution and overestimate small differences in the middle of the distribution. This is most easily understood in an illustration:Page 40 of 64 C/SCA/9942/2014 CAV JUDGMENT
In the above illustration two standardized achievement tests with m =500 and d =100 were given. In the first, an English test, Suzy made a score of 500 and Johnny made a score of 600, thus there was a one hundred point difference between their raw scores. On the second, a Math test, Suzy made a score of 800 and Johnny made a score of 700, again a one hundred point difference in raw scores. It can be said then, that the differences on the scores on the two tests were equal, one hundred points each.
When converted to percentile ranks, however, the differences are no longer equal. On the English test Suzy receives a percentile rank of 50 while Johnny gets an 84, a difference of 34 percentile rank points. On the Math test, Johnny's score is transformed to a percentile rank of 97.5 while Suzy's percentile rank is 99.5, a difference of only two percentile rank points.
It can be seen, then, that a percentile rank has a different meaning depending upon whether it occurs in the middle of the distribution or the tails of a normal distribution. Differences in the middle of the distribution are magnified, differences in the tails are minimized."
(Emphasis supplied by us).
41. At this stage, we propose to give an illustration by taking a hypothetical situation to demonstrate that percentage of percentile does not give correct result on merit. Let us assume that in this process of selection the total number of student is 10 (A to J) who Page 41 of 64 have appeared in the same board examination. All have appeared in the same board examination and also appeared in the same common JEE examination. Therefore, all of them have appeared in two common examinations. The basic feature of this selection process is that while preparation of merit list, the performance of the candidates in both the examinations will be taken into consideration by giving weightage to 60% of his performance in the Board examination and 40% of his performance in the JEE examination. Thus, if A, a student of Gujarat Board makes less percentage of correct answer in his Board Examination than that done by B, another student of the same Gujarat Board and in the process gets 180 marks whereas B gets 210 out of the full marks of 300, for the purpose of selection, the 60% of their total marks should be counted and thus, A will have in his credit 108 marks whereas B will have in his credit 126 marks from the Board Examination. Thus, the excess 18 marks obtained by B in the Board Examination can be wiped out at the instance of A if the marks obtained by him in JEE examination after making 40% of the marks obtained by the both place the said A above B by more than 18 marks. Thus, if out of 300 marks in JEE, A gets 256, 40% of such mark which will be equivalent to 102.4 marks whereas if B gets 180, 40% of such mark will be 72 which is less than the marks obtained by A and the difference being 30.4, the position of A will be definitely above that of B. The above position will be confirmed by the process of simple arithmetic formula. But if we apply the method of percentile on the basis of the above marks, B will still be above A, which shows Page 42 of 64 C/SCA/9942/2014 CAV JUDGMENT that even excess 12.4 mark's difference after wiping out 18 marks is not sufficient for A to be above B in the list due to the wrong application of the principle of percentile.
41.1 The general formula to find out the percentile rank of a score 'x' out of a set of 'n' score where more than one person has obtained marks equal to 'x' is as follows:-
(B + 0.5 E) x 100 = percentile rank n where :
'B' = number of scores below 'x' 'E' = number of scores equal to 'x' , and, 'n' = number of scores 41.2 However, if there is no person having equal marks to 'x', in that case, the figure 0.5 E in the above formula will become '0' [zero] and then the required formula will be:
'B' X 100 = percentile rank 'n' where :
'B' is the number of scores below 'x', and 'n' is the number of scores.
41.3 Since in the instances we give below, the students 'A' to 'J' have all scored different marks and nobody's score is is equal to another, we propose to apply the formula :Page 43 of 64
'B' X 100 'n' to find out the percentile rank of students 'A' to 'J' because the figure (0.5 E) in these instances is equal to zero.
41.4 Now let us, apply the principles of percentiles in the above circumstances to verify the above fact.
In the Board Examination, out of 300, the marks obtained by A to J are as follows:
A-180, B- 210, C- 186, D- 192, E- 204, F- 174, G-168, H- 162, I-
156, J-198.
From the above marks, the percentile position of A to J based on the above marks will be as follows:
A-40, B- 90, C-50, D- 60, E-80, F- 30, G- 20, H-10, I-0, J-70.
If we make 60% of the above percentile position, the result will be as follows:
A-24, B-54, C-30, D-36, E- 48, F-18, G-12, H- 6, I- 0, J- 42.
Now, let us assume that in JEE examination, the marks obtained Page 44 of 64 C/SCA/9942/2014 CAV JUDGMENT by A to J are as follows:
A- 256, B- 180, C- 184, D- 160, E- 188, F- 192, G- 260, H- 196, I-
204, J-152.
On the basis of the above marks, the percentile of A to J will be as follows:
A - 80, B - 20, C - 30, D - 10, E - 40, F - 50, G - 90, H - 60, I-
70, J- 0.
If we make 40% of the above percentile, the result will be as follows:
A - 32, B - 8, C - 12, D - 4, E - 16, F - 20, G - 36, H - 24, I- 28, and J- 0.
41.5 Thus, the result in terms of the amended rules would be as follows given in tabular form:
POSITION IN BOARD EXAMINATION BASED ON PERCENTILE Name of Marks Rank in the Percentile 60% of the obtained examinatio percentile Student n A 180 6 40 24 B 210 1 90 54 C 186 5 50 30 D 192 4 60 36 E 204 2 80 48 F 174 7 30 18 G 168 8 20 12 Page 45 of 64 H 162 9 10 06 I 156 10 0 00 J 198 3 70 42 POSITION IN JEE EXAMINATION BASED ON PERCENTILE Name of Marks Rank in the Percentile 40% of the obtained examinatio percentile Student n A 256 2 80 32 B 180 8 20 8 C 184 7 30 12 D 160 9 10 4 E 188 6 40 16 F 192 5 50 20 G 260 1 90 36 H 196 4 60 24 I 204 3 70 28 J 152 10 0 0 FINAL RESULT OF BOARD AND JEE EXAMINATION BASED ON PERCENTILE Name of Candidate Board + JEE = Final Result Rank A 24 + 32 = 56 3rd B 54 + 8 = 62 2nd C 30 + 12 = 42 5th D 36 + 4 = 40 7th E 48 + 16 = 64 1st F 18 + 20 = 38 8th G 12 + 36 = 48 4th H 6 + 24 = 30 9th I 0 + 28 = 28 10th J 42 + 0 = 42 5th RESULT SIMPLY ON THE BASIS OF THE 60% AND 40% MARKS Page 46 of 64 C/SCA/9942/2014 CAV JUDGMENT WITHOUT TAKING INTO CONSIDERATION THE PERCENTILE Name of Candidate Board + JEE = Final Rank Result A 108 + 102.4 = 210.4 1st B 126 + 72 = 198 3rd C 111.6 + 73.6 = 185.2 5th D 115.2 + 64 = 179.2 8th E 122.4 + 75.2 = 197.6 4th F 104.4 + 76.8 = 181.2 6th G 100.8 + 104 = 204.8 2nd H 97.2 + 78.4 = 175.6 9th I 93.6 + 81.6 = 175.2 10th J 118.8 + 60.8 = 179.6 7th Page 47 of 64
42. The aforesaid examples sufficiently demonstrate that by application of percentile and thereafter by making 60% and 40% thereof respectively a peculiar result comes out which is not in conformity with the marks obtained even by the candidates appearing from the same board based on merit. As a result of such misapplication of the rule of percentile, A, who stood first based on simple arithmetic, has become, 3rd , G who stood 2nd has become 4th, B who stood 3rd has become 2nd; Similarly, E who stood 4th has become has become 1st and C who stood 5th has however maintained the same rank. D who stood 8th has become 7th. F who got 6th position by application of arithmetic has become 8th by application of percentile and H, who stood 9th and I who stood 10th by simple application for arithmetic maintained their same position even after the application of percentile. Lastly, J who stood 7 th by application of arithmetic tuned out to be 5th. We thus find that the application of principles of arithmetic on percentile position does not reflect the real merit of the candidates and the amendment of the Rule 11 as well as that of 2(1) (g) has made the entire process of selection totally arbitrary and violative of Article 14 of the Constitution. Thus, when even among the candidates of the same board who have appeared in the common examinations, the application of percentile formula creates an absurd result of ranking, it goes without saying that among the students of the different Page 48 of 64 C/SCA/9942/2014 CAV JUDGMENT boards the result will be disastrous. The result published based on the application of percentile is, thus, on the face of it not based on performance of a student in the examination by following the principle of ability to write correct answer which is called the MERIT of a candidate.
Page 49 of 64
43. Both Mr. Jani and Mr.Dave, appearing on behalf of the State- respondent and the added respondents respectively, tried to convince us that even if the adopted method for calculation of marks while preparing merit list is not correct, a writ Court is not vested with the authority to declare it as ultra vires on the ground that the existing Rule is not the best one and that a better Rule could be invented and consequently, even if it appears that on the application of the rule indicated by the competent authority, the conclusion does not result in fool-proof perfection, the matter should be left to the discretion of the experts as pointed out in the decisions relied upon by them. We do not, for a moment, disagree with the aforesaid proposition advanced by the learned counsel for the respondents and that is also the law of the land. For the above reason, we do not propose to discuss those decisions. But, at the same time, if it appears that by virtue of the application of the policy, a less meritorious candidate comes above a candidate of superior merit, in such circumstances, the adopted policy must be held to be in violation of the fundamental right of a student to have declaration of result based on merit. In this connection, we may profitably refer to the decision of the Supreme Court in the case of Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay reported in (1989) 3 SCC 293, where it was held that the State actions are amenable to judicial review only to the extent that the State must act validly for a discernible reason, not whimsically for any ulterior purpose. The observations of His Lordship, Sabyasachi Mukherjee, J. (As the learned Page 50 of 64 C/SCA/9942/2014 CAV JUDGMENT Chief Justice then was) made in paragraph 25 are worth noting.
".............. Where there is arbitrariness in State action, Article 14 springs in and judicial review strikes such an action down. Every action of the executive authority must be subject to rule of law and must be informed by reason. So, whatever be the activity of the public authority, it should meet the test of Article
14. ......."
44. In Kumari Shrilekha Vidhyarthi and Others v. State of U.P. and Others reported in (1991) 1 SCC 212, the Supreme Court made the following observations in paragraphs 36 and 37.
"36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that 'be you ever so high, the laws Page 51 of 64 are above you'. This is what men in power must remember, always.
37. Almost a quarter century back, this Court in S.G. Jaisinghani v. Union of India indicated the test of arbitrariness and the pitfalls to be avoided in all State actions to prevent that vice, in a passage as under:
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principle or without any rule it is where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey, Law of Constitution, 10th edn. Introduction, cx). 'Law has reached its finest moments', stated Douglas, J. in United States v. Wunderlich, 'when it has freed man from the unlimited discretion of some ruler.... Where discretion is absolute, man has always suffered'. It is in this sense that the rule of law may be said to be sworn enemy of caprice. Discretion, as Lord Mansfield stated it is classic terms in the case of John Wilkes, 'means sound discretion guided by law. It must be governed by rule, not humour: it must not be arbitrary, vague and fanciful'.""
(Emphasis supplied).
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45. We, thus, find that by way of amendment, the State-respondent has amended the rule of mixture of percentile and actual mark which it introduced initially in the Rules but was not inclined to follow it from the very beginning and for the purpose of justifying their action of not following such rule, has decided to amend the Rule to make it a total unscientific one as pointed out by us above. We have already relied upon the observation of the authority and by way of example, pointed out that by the process adopted, the sole object of the respondent is to enforce the opinion of the Indian Statistical Institute, Calcutta as would be apparent from the following observations of the Indian Statistical Institute, which were placed before us in the course of the earlier Public Interest Litigation and which has also been made part of the record of the present case.
Annexure-1 "Use of the product of percentage and percentile in engineering admissions Opinion of the Indian Statistical Institute The main problem of using the percentage score of different boards is that the type of questions, marking pattern etc. vary considerably from board to board. This fact becomes amply clear from the plot of the aggregate scores, in Physics, Chemistry and Mathematics in the Class XII examinations of the year 2013, vs. the corresponding percentiles, shown below.
Page 53 of 64 The plots look different. A specific example would bring out the disparity. It is clear from the plot that the top 16% candidates of CISCE got a score of 85% or above. In CBSE, the top 11% candidates achieved this score. However, this level of score is so uncommon in the Gujarat board that less than 3% students achieved it. Therefore, the use of percentage scores for engineering admission would amount to discrimination against the candidates of the Gujarat Board.
This difficulty is not mitigated by the use of the product of percentages and percentiles. The following plot brings out this fact.
Page 54 of 64 C/SCA/9942/2014 CAV JUDGMENT
Once again, there is vast discrepancy among the plots. For instance, the product of percentile and percentage is more than 7000 for the top 18% candidates of CISCE and the top 14% candidates of CBSE. In contrast, the high scores are so unusual in the Gujarat Board that less than 8% candidates of that board can achieve this level. Therefore, use of the product of percentile and percentage would also be discriminatory, and the CISCE and CBSE candidates would gain at the expense of the Gujarat Board candidates.
There is another strong reason not to use percentage scores in any form (including in a product of percentages and percentiles) for admissions. If this is done, then there would be pressure on each board to award more marks, so that their candidates do not lose out. The result of this pressure would be a concentration of marks in the high end. Whenever there is too much concentration of marks in a particular range, the marks become a poor indicator of the merit of a candidate. A small error on the day of the examination becomes very costly. The chance factor plays a much bigger role. This is certainly not fair to candidates who work hard to earn their place in the merit list.
The Indian Statistical Institute strongly recommends the use of percentiles only for engineering admissions."
[Emphasis supplied by us]
46. The aforesaid observations specifically demonstrate that the object of the amended Rule is to give benefit to the students of the Gujarat Board in preference to CISCE and the CBSE Board candidates Page 55 of 64 overlooking the fact that even those candidates are all the citizen of India and even from the State of Gujarat and simply because they have decided to study under a particular Board, they cannot be prejudiced for the purpose of protection of the students of a particular Board in the same State. We have also demonstrated how by the application of this amended Rule, even the meritorious students of the Gujarat Board has been prejudiced and the students performing better in the examination have figured below the less meritorious students of the same board. The State should not lose sight of the fact that in the process of selection, the State should not adopt a Rule by which even though a particular student is more meritorious than another, the latter would rank above the former. The State in no case should place a superior student below an inferior one in the merit list. Present example is definitely an instance of arbitrary action on the part of the State-respondent to suit its purpose which is not approved by Article 14 of the Constitution of India.
47. In the case of Sanchit Bansal and Anr. v. Joint Admission Board (JAB) and Ors (supra) relied upon by Mr. Dave, the Supreme Court made the following observations in paragraph 26 of the judgment upon which Mr. Dave placed strong reliance:
"26. The procedure adopted in JEE 2006 may not be the best of procedures, nor as sound and effective as the present procedures. In fact the action taken by the appellants in challenging the procedure for JEE 2006, their attempts to bring Page 56 of 64 C/SCA/9942/2014 CAV JUDGMENT in transparency in the procedure by various RTI applications, and the debate generated by the several views of experts during the course of the writ proceedings, have helped in making the merit ranking process more transparent and accurate. IITs and the candidates who now participate in the examinations must, to a certain extent, thank the appellants for their effort in bringing such transparency and accuracy in the ranking procedure. But there is no ground for that Courts to interfere with the procedure, even if it was not accurate or efficient, in the absence of mala fides or arbitrariness or violation of law. It is true that if in JEE 2006, a different or better process had been adopted, or the process now in vogue had been adopted, the results would have been different and the first appellant might have obtained a seat. But on that ground it is not possible to impute mala fides or arbitrariness, or grant any relief to the first appellant. Therefore, the appellant will have to be satisfied in being one of the many unsung heroes who helped in improving the system."
(Emphasis supplied by us).
47.1 We find that the Supreme Court in the above case repeated the well-settled position of law that unless the proposed action of the State reaches the stage of arbitrariness or is tainted with mala fide, policy decision should not be interfered with by a writ- court. For the above reason, on the last two occasions, we merely directed the State to follow the mandate of the statutory provision as it then existed after pointing out that the proposed action was not in conformity with the then Rule. However, in the present case before us, on the basis of the Rule as amended, we have demonstrated by Page 57 of 64 reference to the tabular form how the better candidates have been placed below inferior ones and the amended procedure is disapproved by the rule of arithmetic and thus, is arbitrary. It is a case where absurd outcome results in the application of the amended Rule causing injustice to a candidate who has admittedly given more correct answers in comparison to another who has given less correct answer. Thus, the above decision has no application to the facts of the present case.
48. The Supreme Court, in the case of GOVT. OF KARNATAKA v. GOWRAMMA reported in AIR 2008 SC 863, has pointed out [in paragraph 10] that Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclids theorems nor as provisions of the statute and that too taken out of their context. The following observations in paragraphs 12 and 13 of the said judgment are relevant, and are quoted below:-
"12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.
13. The following words of Lord Denning in the matter of applying precedents have become locus classicus:Page 58 of 64 C/SCA/9942/2014 CAV JUDGMENT
"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.
*** *** *** "Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.""
49. In none of the decisions cited by either Mr. Jani or Mr. Dave, the courts dealt with a situation where the policy adopted by the State forces the citizens to accept that 2 + 2 = 7, which is the case before us, and such policy, on the face of it, violates Article 14 of the Constitution of India.
50. Regarding the submission of Mr. Pathak that if we assume for the sake of argument that the Rule amended is not arbitrary, even in that case, the amended Rule sought to be applied by the respondent has not been followed while preparing the merit list, we are of the view that from the material placed by the Admission Committee, it is not possible to verify whether they have correctly applied even the amended Rule. It appears from pages 156 to 159 of the record, indicating the percentile with reference to various marks given by Page 59 of 64 different Boards, such as CBSE, ISCE and NIOS, which is the basis for preparation of the merit list, merely total marks obtained by the candidates in three subjects and its percentile have been disclosed. 50.1 In our opinion, for the purpose of verification of such percentile, one must know what is the total number of students who appeared in the Board examination, and at the same time, how many persons have obtained the same marks in the examination. For instance, if only one student has secured the highest mark, his percentile may be one which will be found to vary if more than one student have obtained the same highest marks.
50.2. Therefore, on the basis of the material placed before us, we are unable to verify whether the percentile has been calculated correctly even according to the amended Rules. We find substance in the contention of Mr. Pathak that it was the duty of the Admission Committee to fully disclose the particulars so that any person can verify whether the Admission Committee has correctly prepared the merit list but necessary particulars have not been given to the candidates for verification. It appears that the State-respondent itself has not examined those percentiles based on marks, but Mr. Jani, the learned Additional Advocate General, has tried to place the blame upon the concerned Board and according to him, his clients have simply relied upon what is given by the three Boards. In our opinion, in preparation of this type of a merit list based on percentile, there Page 60 of 64 C/SCA/9942/2014 CAV JUDGMENT should be transparency in publication of the result so that each candidate can verify whether his percentile has been correctly arrived at.
50.3. Since we have already held that the result based on percentile is ultra vires Article 14 of the Constitution, we do not propose to dilate any further on the above aspect. Page 61 of 64
51. Lastly, both Mr.Jani and Mr.Dave submitted before us that since in this year, all the students who have applied for Engineering courses having got admission, nobody will be prejudiced in any way, and therefore, we should not interfere, because even by the faulty selection, nobody has been deprived of the right to pursue the course. We are shocked to hear such submission from the counsel of the stature of Mr. Jani and Mr. Dave. There is no dispute that if the result is published in accordance with a just law, no inferior candidate based on the performance in examination can go above a superior candidate and choice of college or choice of subject depends upon one's rank in the merit list. Over and above, in any process of selection, an examinee has right to demand that his merit list should reflect his performance. If in spite of inferior performance in the examination, a person is placed above a candidate whose performance is higher than the said one, it will violate Article 14 of the Constitution of India. Mr. Dave also tried to convince us that no person has any right to have admission in any college and thus, we should dismiss the petition. We fully appreciate that no person has got any right to have admission in any particular college. But a student has right to complain that inferior student should not get the choice of college before a superior student has been given such right when the choice of college is first offered to a superior candidate. Even in the case of P. K. Goel and others v. U.P. Medical Council and others reported in AIR 1992 SC 1475 relied upon by Mr. Dave, the Supreme Court recognized the right of the meritorious students to Page 62 of 64 C/SCA/9942/2014 CAV JUDGMENT have choice of college based on merit. The following observations approved by the Supreme Court are quoted below:
""There is no intelligible differentia for the classification by way of college wise institutional preference as provided by the impugned rules distinguishing the preferred candidates in respect of each college from those excluded from such classification. By such classification or college wise institutional preference, merit has been sacrificed, far less it has been preferred. When the university is the same for all these colleges, the syllabus, the standard of examination and even the examiners are the same, any preference to candidates to the post-graduate degree course of the same university, except in order of merit, will exclude merit to a great extent affecting the standard of educational institutions. In such circumstances, college wise institutional preference cannot be supported and, it has already been noticed that this Court has not approved of such preference at all.""
(Emphasis supplied).
51.1 We, thus, are not at all impressed by the above contention of the the learned advocates for the respondents that all the students having been given admission in the engineering course, even if there is any illegality in the process of giving marks or selection of subject and selection of college, we should close our eyes to absurd procedure invented by the State which places a superior candidate based on merit below a candidate having lesser merit.
52. We, consequently, allow the prayer of the petitioners and hold that the amended Rule 11 is ultra vires Article 14 of the Constitution Page 63 of 64 of India and the result published by following such a Rule is quashed.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew FURTHER ORDER:
After this judgment was pronounced, Mr. Jani, the learned Additional Advocate General appearing on behalf of the State-respondent prays for stay of operation of our judgment.
After specifically holding that the procedure adopted for preparation of the merit is ultra vires Article 14 of the Constitution of India, there is no scope of giving stay of operation of our judgment. The prayer is rejected.
However, certified copy of this order be given today, if applied for.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) Page 64 of 64