Gujarat High Court
Master Jugal Prakash Patel vs State Of Gujarat on 12 June, 2013
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
MASTER JUGAL PRAKASH PATEL....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/11020/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 11020 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA Sd/-
and HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
No 2 To be referred to the Reporter or not ?
No 3 Whether their Lordships wish to see the fair copy of the judgment ?
No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
No 5 Whether it is to be circulated to the civil judge ?
No ========================================================= MASTER JUGAL PRAKASH PATEL....Petitioner(s) Versus STATE OF GUJARAT & 5....Respondent(s) ========================================================= Appearance:
MR AMIT V THAKKAR, ADVOCATE for the Petitioner(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 4 - 6 MR PRAKASH JANI, GOVERNMENT PLEADER for the Respondent(s) No. 1 - 3 MR AD OZA, ADVOCATE for the Respondent(s) No. 3 ========================================================= CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :
24/07/2013 CAV JUDGEMNT (PER :
HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This petition under Article 226 of the Constitution of India is at the instance of a student, through his father and natural guardian, desirous of seeking admission in a medical college having successfully completed the four semester examination of standard 11th and 12th conducted by Gujarat Higher Secondary Education Board with following prayers.
10. (a) Your Lordships may be pleased to issue a writ of mandamus and / or any other appropriate writ order or direction, quashing and setting aside the decision taken by the Sate Government to consider / give weightage to marks obtained by students in Biology, Physics and Chemistry in all 4th Semesters i.e. in Class 11th & 12th for giving admission to medical and para-medical courses in the State and also be pleased to quash and set aside Rule-11(1)(a) of the notification dated: 12.6.2013 of the Gujarat Professional Medical Education Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2013.
(b) Pending admission, hearing and final disposal of the present petition, Your Lordships may be pleased to direct the respondents, their servants, agents and subordinates restraining them to prepare the merit list for admission to MBBS, on the basis of Rule-11 (1)(a) of the Gujarat Professional Medical Education Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2013, in so far as it specifies to give weightage to marks obtained in all 4 semester, which would include 11th and 12th Std marks and as per the decision taken by the State Government for considering / giving weightage to the marks obtained in all 4 semesters i.e. of standard 11th and 12th .
AND
(c) Be further pleased to direct the respondents to prepare the merit list for admission to MBBS, on the basis of i.e. by giving weightage to marks obtained in the respective subjects of Std. 12th only.
(d) Such other and further relief as may deem fit and proper in the interest of justice be granted in favour of the petitioner.
2. The case made out by the petitioner in this petition may be summarized as under:
2.1 The petitioner has successfully passed the standard 12th (Science stream examination) of Gujarat Secondary and Higher Secondary Education Board, Gandhinagar in June 2013. The petitioner has also passed the CBSE National Eligibility cum Entrance Test-UG-2013 Exam (NEET). According to the State merit list, the petitioner has been placed at serial no.285. The petitioner has also passed the Gujarat Common Entrance Test 2013 (GUJCET) securing 98.27 percentile rank.
2.2 It is the case of the petitioner that the Health and Family Welfare Department, State of Gujarat, vide Notification dated 12th June 2013 published the Gujarat Professional Medical Educational Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules 2013 to regulate the admission to the first year of the professional medical education course. Rule 11 of the amendment Rules 2013 provides for preparation of a merit list for admission.
According to the petitioner, the Rule provides that the merit list of the candidates shall be prepared in case of the candidates who have passed the qualifying examination from the Gujarat Board on the basis of 60% total marks obtained in theory of the Physics, Biology and Chemistry subjects (marks as given in Board mark sheet i.e. total marks obtained in the four semesters will be taken as total marks), after converting it into 100 combined with 40% of total marks obtained from the Physics, Biology and Chemistry subjects in the Gujarat Common Entrance Test (GUJCET) after converting it into 100 from the total marks obtained as the merit marks.
2.3 On the other hand, Rule 4.6 of the Common Entrance Test (GUJCET) also of the year 2013 provides that the merit list will be prepared by the Committee on the basis of 60% marks out of the total marks of theory obtained in Higher Secondary Certificate Examination of standard 12 Science stream in subjects of Chemistry, Physics and Biology and 40% marks of the total marks obtained in GUJCET examination.
2.4 Thus, according to the petitioner the two Rules are contradictory to each other.
2.5 The grievance redressed by the petitioner is that the entire qualifying criteria for admission to medical courses is sought to be changed after 11th and 12th standard examinations are over and much contrary to what was declared vide GUJCET Rules as contained in the information booklet of GUJCET. According to the petitioner, the procedure which has been prescribed in the GUJCET Rules has been followed consistently in the earlier years.
2.6 According to the petitioner, for admission to medical courses the marks obtained in standard 12th are only to be considered and the petitioner has been taken by surprise when he learnt that the merit list will be prepared on the basis of the average marks obtained in the four semesters. Since the petitioner was not made aware of such amendment in the Rules when he actually appeared for the 3rd and 4th semester of standard 12, he along with other students gave more weightage and preference to the studies in standard 12 as compared to standard 11.
2.7 In such circumstances, the petitioner has prayed that Rule 11 (1) (a) of the Amendment Rules 2013 be quashed and set aside and the State Government may be directed to consider the marks obtained in the respective subjects of standard 12 only for the purpose of preparation of the merit list.
3. SUBMISSIONS ON BEHALF OF THE PETITIONER 3.1 Mr.Amit Thakkar, the learned counsel appearing for the petitioner vehemently submitted that the manner of preparation of the merit list for admission in the medical courses has been pre-determined and notified in the information booklet of GUJCET and the students prepared themselves on the basis thereof, which provides that only marks of Chemistry, Physics and Biology of standard 12 Science stream would be considered. According to Mr.Thakkar, in the information booklet of GUJCET nowhere it has been stated that from the academic year 2013 the weightage will be given to the marks obtained in all four semester i.e. of standard 11 and 12.
3.2 Mr.Thakkar submitted that the qualifying criteria for admission to medical courses could not have been changed at the last minute in such a manner prejudicial to the petitioner and that too after 11th and 12th standard exams were over.
3.3 Mr.Thakkar submitted that the eligibility and qualifying criteria including the manner and method of preparation of merit list are pre-determined and notified in the admission prospectus to enable a candidate intending to apply for admission to know the eligibility marks he is required to obtain in the qualifying examination. The Rule 11 of the Amendment Rules 2013 re-writes the qualifying and the eligibility criteria after the completion of the examinations. Thus, according to Mr.Thakkar, the action on the part of the State Government is arbitrary, illegal and unconstitutional. Mr.Thakkar submitted that the semester system was introduced on account of introduction of NEET examinations providing for a single window entrance system for admission to the medical courses throughout India. However, as the Notification dated 21st December 2010 is under challenge before the Supreme Court and in light of the decision dated 13th May 2013 of the Supreme Court, the admissions in the medical courses are to be now given on the basis of marks obtained by the students in the standard 12th exams and the GUJCET exam. Mr.Thakkar submitted that if the impugned Rule and the decision of the State Government are allowed to stand then the same would amount to discrimination insofar as the students of CBSE, ICSE and Gujarat Board are concerned. According to Mr.Thakkar, in CBSE and ICSE only the marks of standard 12 are to be considered.
3.4 Mr.Thakkar also submitted that the bifurcation of the semester system is superficial and in substance first and the second semester relates to standard 11 and the third and fourth semesters relates to standard 12 and, therefore, the marks of standard 12 i.e. of 3rd and 4th semester should be considered as a qualifying criteria.
3.5 Mr.Thakkar, therefore, prays that since the whole career of his client, who is a student, is at stake, the petition deserves to be accepted and appropriate direction be issued to the State Government to consider only the marks obtained in the last two semesters i.e. 3rd and 4th of standard 12th and not the 1st and 2nd semester of standard 11.
4. STANCE OF THE STATE GOVERNMENT 4.1 Mr.Jani, the learned Government Pleader appearing for the State of Gujarat vehemently opposed this petition and submitted that the petition being devoid of any merit deserves to be rejected. According to Mr.Jani,in the State of Gujarat there was a pattern of education which was popularly known as 10+2+3 system and the same was in vogue since last 35 years. Under the scheme of the provisions of the Gujarat Secondary Education Act read with the provisions of the Gujarat Higher Secondary Education Act, the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar, has been authorized to conduct the 10th and 12th standard exams. The first board exam is the examination which is taken after 10th standard known as New SSC Board exam. After the New SSC Examinations results are declared, a successful student has to decide the choice for a particular stream of education. If a student is desirous of going into medical education such as MBBS, BDS, Physiotherapy, Ayurved, Homeopathy, Nursing, Optometry etc. then he is required to opt for Science stream. The Science stream is again divided into three groups, namely, A group, B group and AB group.
4.2 The students desirous of obtaining admission in a medical course, after completion of 10th standard is required to select and opt for Group B (Biology). The student of Group B is required to study the principal subjects like Biology, Physics, Chemistry along with a language and subject of Computer. However, for the purpose of computing the merits, the marks obtained in principal subjects i.e. Biology, Physics and Chemistry will only be taken into consideration.
4.3 According to Mr.Jani, all those students desirous of seeking admission to Engineering courses are required to select and opt for Group A. The student of Group A is required to study the principal subjects like Mathematics, Physics, Chemistry along with a language and subject of Computer. Here also for the purpose of computing the merits, the marks of only the principal subjects i.e. Mathematics, Physics and Chemistry are taken into consideration.
4.4 Then there is a third group which consists both of Biology and Mathematics. In this group the option is open for the students either to go for Engineering courses or the medical courses after completion of 11th and 12th standards. According to Mr.Jani, there are very few students, who opt for group AB.
4.5 Mr.Jani, the learned Government Pleader explaining further submitted that in the State of Gujarat, a common entrance test for securing admission in medical courses, engineering courses and pharmacy courses, after 12th Science stream came to be introduced. Such a decision to introduce a common entrance test was taken on 28th July 2005 and 12th January 2006 respectively, by the State Government in its Education Department.
4.6 Mr.Jani submitted that the State Government has framed the Rules known as the Gujarat Common Entrance Test (GUJCET) Rules for conducting the GUJCET examination. The function of this body is only to conduct the examination of GUJCET. It is not an admission committee for the purpose of admission to the professional courses. According to Mr.Jani, the authority to grant and consider the application for a professional course is with the Admission Committee as constituted under the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 and the Gujarat Professional Medical Educational Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2013.
4.7 Mr.Jani also submitted that the Medical Council of India declared its intention to have a national eligibility cum entrance test. However, in view of the fact that the same has been a subject matter of challenge before the Supreme Court, and the decision in that regard is awaited, the State Government instructed the Gujarat Secondary and Higher Secondary Education Board to take a common entrance test for the student seeking admission in medical and other courses of group B. Such examination was held on 9th May 2013 and the result of the same has also been declared. According to Mr.Jani, approximately 38,000 students had participated in the entrance test.
4.8 Mr.Jani submitted that the State Government realized that the pattern which was adopted since last couple of years suffered from many inherent deficiencies and shortcomings. It was realized that the importance of standard 12 Science examination was put to such a high pedestal that the students and their parents felt, as if the standard 12 exam would decide and shape the entire career of a student, and if a student is not able to perform well in standard 12 exam then that would be the end of his whole career. As a result of such an approach, the students very conveniently started ignoring the importance of 11th standard and while studying in the 11th standard it was noticed that the students had already started preparation for the studies of standard 12 by taking private tuitions or by attending coaching classes all over the State. In such circumstances, the State Government thought fit to give a re-look so that effective steps could be taken in that regard.
4.9 Mr.Jani submitted that taking into consideration all the relevant aspects of the matter, the State Government constituted a Committee under the Chairmanship of Mr.Sudhir Mankad, a former Principal Secretary of the State Government and an expert in the field of Education.
4.10 Sudhir Mankad Committee gave its report to the State Government which was also placed before the Gujarat Secondary and Higher Secondary Education Board i.e. the examining body. Based on the report of the Sudhir Mankad Committee, a decision was taken some time in July 2010 to introduce a semester system in standard 11th and 12th.
It was also decided that the curriculum shall be divided in four equal semesters and the Gujarat Secondary and High Secondary Education Board would take examination of all the four semesters.
4.11 Mr.Jani submitted that accordingly from the academic year 2011-12, for standard 11 and 12, four semester examination came to be introduced. Mr.Jani submitted that the petitioner herein was a student of the first such batch who were given to understand that their pattern of examination will be according to the semester system. Mr.Jani submitted that it was made clear to one and all concerned that the four semester examinations shall be conducted by the Gujarat Secondary and Higher Secondary Education Board. Such a decision of the State Government and the Board was circulated to all the schools in the State of Gujarat and all the schools in the entire State of Gujarat were made aware that from June 2011, the Board had introduced the semester system.
4.12 It appears that the semester system has been introduced for the standard 11th and 12th Board examinations taking into consideration, the following aspects.
1 It will reduce examination-related stress and anxiety which builds up in students, parents and teachers and will positively impact productivity and well-being.
2 It will reduce the dropout rate among students who wish to exit at the end of class 10.
3 The thrust of the recommendations is to bring greater emphasis to teaching and learning and less to the testing process. Tests will be less about memorisation and more about understanding.
4 The design of the tests will favour the well-prepared student who has prepared throughout the year and discourage last-minute cramming which itself is a source of stress.
5 The reduction in the number of compulsory subjects will allow students more in-depth study into fewer subjects.
6 Removal of the terminology of 'failing' will help address the social stigma associated with it.
7 It will encourage the entire teaching and learning process to focus on understanding and being meaningful to the student, rather than making it simply exam-focussed.
8 The introduction of the semester system will ensure reduced load, more regular study, equal emphasis on the class 11 content and reduction in the pressure associated with the class 12 examination. Since the overall performance in class 12 is now based on 4 examinations, the stress levels associated with one high-stakes examination will considerably lessen.
9 Students will be more 'college-ready' and this will allow them to take greater advantage of college courses and learning.
4.13 Mr.Jani submitted that it is very strange that out of 38,000 students only one student i.e. the petitioner herein claims to have been oblivious of the change introduced in the system.
4.14 In such circumstances, Mr.Jani submits that the petition deserves to be rejected.
5. Mr.Rutvij Bhatt, the learned advocate appearing for the Medical Council of India supported the petition and submitted that the introduction of the semester system and the decision to determine the merit and preparation of the merit list should be only on the basis of the marks obtained in the last two semesters of standard 12 i.e. 3rd and 4th and not of all the four semesters. He invited out attention to the Regulation 4 of the Medical Council of India Regulations on Graduate Medical Education 1997, which reads as under:
4. Admission to the Medical Course - Eligibility Criteria : No Candidate shall be allowed to be admitted to the Medical Curriculum proper of first Bachelor of Medicine and Bachelor of Surgery (MBBS) Course until:
(1) He/she complete the age of 17 years on or before 31st December of the year of admission to the MBBS Course.
(2) He/she has passed qualifying examination as under:
(a) The higher secondary examination of the Indian School Certificate Examination which is equivalent to 10+2 Higher Secondary Examination after a period of 12 years study, the last two years of study comprising of physics, Chemistry, Biology and Mathematics or any other elective subjects with English at a level not less than the core course for English as prescribed by the National Council for Educational Research and Training after the introduction of the 10+2+3 years educational structure as recommended by the National Committee on education.
5.1 He further submitted that so far as candidates who have passed the qualifying examination from other Boards, say for instance CBSE then for such a student 60% of total marks obtained in theory of the Physics, Biology and Chemistry subjects, after converting into 100 combined with the 40% of the total marks obtained from the Physics, Biology and Chemistry subjects of GUJCET will be taken into consideration. Thus, according to Mr.Bhatt, this discrimination between the students of two different boards is violative of Article 14 of the Constitution of India.
6. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this petition is whether the petitioner is entitled to any relief.
7. Before adverting to the rival submissions made on either side, we may profitably refer to a few relevant provisions governing the admission of a student in a medical course.
8. The Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 came to be enacted, having received assent of the Governor on 7th March 2008. Some of the relevant provisions are quoted hereunder:
2. In this Act, unless the context otherwise requires,-
(a) "Admission Committee" means the Admission Committee constituted in accordance with the provisions of section 4;
(c) "Common Entrance Test means the entrance test conducted for determination of merits of the candidates for the purpose of admission in the different professional courses;
4. (1) The State government shall, for the purpose of admission of students to the professional educational colleges and institutions, constitute one or more Admission Committees consisting of such number of members as may be prescribed. Different Committees may be constituted for the different professional courses.
(2) The term of office and other conditions of the members of the Committee shall be such as may be prescribed.
(3) The Admission Committee shall guide, supervise and control the entire process of admission of students to the professional educational colleges or institutions.
20. (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purpose of this Act.
(2) All rules made under this section shall be laid for not less than thirty days before the State Legislature as soon as possible after they are made and shall be subject to the rescission by the State Legislature or to such modification as the State Legislature may make during the session in which they are so laid or the session immediately following.
(3) Any rescission or modification so made by the State Legislature shall be published in the Official Gazette, and shall thereupon take effect.
9. In exercise of the powers conferred by Sub-section (1) of Section 20, referred to above, read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Gujarat No.3 of 2008) and in super-session of the Rules made in that behalf, the Government of Gujarat made the Rules to regulate the admission to the first year of the professional medical educational courses and payment of fees, namely, the Gujarat Professional Medical Educational Courses (Regulation of Admission and Payment of Fees) (Amendment) Rules, 2013.
2. Definitions.-
(1) In these rules, unless the context otherwise requires,-
(a) "Act"
means the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj.3 of 2008);
(b) .........
(c) ............
(d) "Gujarat Board" means the Gujarat Secondary and Higher Secondary Education Board established under section 3 of the Gujarat Secondary and Higher Secondary School Board Act, 1972 (Guj. 18 of 1973),
(e) "B-group"
means the group comprises the subjects of Biology, Physics and Chemistry in the Science Stream of the Higher Secondary School Certificate Examination (10+2 pattern);
(f) "AB-group means the group comprises the subjects of Mathematics, Biology, Physics, and Chemistry in the Science Stream of the Higher Secondary School Certificate Examination (10+2 pattern);
(g) "Professional Medical Educational Courses" shall include the following Degree Courses, namely:-
(i) Bachelor of Medicine and Bachelor of Surgery;
(ii) Bachelor of Dental Surgery;
(iii) Bachelor of Ayurveda, Medicine and Surgery;
(iv) Bachelor of Homeopathic Medicine and Surgery;
(v) Bachelor of Physiotherapy;
(vi) Bachelor of Science (Nursing);
(vii) Bachelor of Orthotics and Prosthetics;
(viii) Bachelor of Optometry;
(ix) Bachelor of Occupational Therapy;
(x) Bachelor of Naturopathy;
(xi) Bachelor of Audiology and Speech Language Pathology in the Professional Medical Educational Colleges or Institutions of the State;
10. Distribution of Seats between Students of Gujarat Board and Other Boards.-
For the purpose of admission, the available seats shall be distributed between students of the Gujarat Board and other Boards on pro-rata basis, taking into consideration the number of students passed from the Gujarat Board, Central Boards and the Council of Indian School Certificate Examinations, New Delhi in the relative academic year:
Provided that where any seat remain vacant in the category of Central Board or, as the case may be, the Council of Indian School Certificate Examinations, New Delhi, the same shall be filled in from the candidates of merit list of Gujarat Board.
11. Preparation of Merit List for admission.- The merit list of the candidates who have applied for admission in the prescribed form, within the prescribed time limit and who are found eligible for admission under these rules shall be prepared in the following manner, namely:-
(1) (a) In case of candidates who have passed qualifying examination from the Gujarat Board, sixty percent of total marks obtained in theory of the Physics, Biology and Chemistry Subjects (Marks as given in Board Mark-Sheet, i.e. total marks obtained in the four semesters will be taken as Total Marks) after converting it into 100, combined with the forty percent of total marks obtained from the Physics, Biology and Chemistry subjects in the Gujarat Common Entrance Test (GUJCET), after converting it into 100 from the total marks obtained, shall be the merit marks.
In case of candidates who have passed standard XII qualifying examination from the Gujarat Board on or before March, 2013, sixty percent of total marks obtained in theory of the Physics, Biology and Chemistry subjects after converting it into 100, combined with the forty percent of total marks obtained from the Physics, Biology and Chemistry subjects in the Gujarat common Entrance Test (GUJCET), after converting it into 100 from the total marks obtained shall be the merit marks.
(b) The candidates who have passed qualifying examination from other Boards or, as the case may be, the Council of Indian School Certificate Examinations, New Delhi, sixty percent of total marks obtained in theory of the Physics, Biology and Chemistry subjects after converting it to 100 combined with the forty percent of total marks obtained from the Physics, Biology and Chemistry subjects in the Gujarat Common Entrance Test (GUJCET), after converting it to 100 from the total marks obtained, shall be the merit marks.
(2) The Admission Committee shall prepare and publish two separate merit lists as follows, namely:-
(a) The first merit list shall include the candidates who have passed the qualifying examination from the Gujarat Board. Merit list of reserved category candidates shall be prepared separately;
and
(b) The second merit list shall consist of two separate merit list of the candidates who have passed the qualifying examination from the,-
(i) Central Board; and
(ii) Council of Indian School Certificate Examinations, New Delhi. Merit list of reserved category candidates shall be prepared separately.
(3) The criteria for deciding merit order in case of students having equal merit marks shall be in the following sequence, namely:-
(a) The candidate who has obtained higher grand total in the mark sheet.
(b) The candidate who obtained higher marks in theory subject of Biology in qualifying examination, in case of equal marks in Biology, grand total in the Chemistry and then Physics shall be considered.
(c) Marks obtained in English subject in qualifying examination.
(d) Marks obtained in Secondary School Certificate Examination (Standard 10), and
(e) Date of Birth (Candidate who is older in age shall be given priority)
10. We may also look into the Rules as provided in a booklet known as Gujarat Common Entrance Test (GUJCET) Rules.
1.4 Definition:
1. State Government means State of Gujarat .
2. Department means Education Department, State of Gujarat .
3. Board means Gujarat Secondary and Higher Secondary Education Board, Gandhinagar .
4. GUJCET means Gujarat Common Entrance Test .
Rules means Rules framed by the Gujarat Secondary and Higher Secondary Education Board, Gandhinagar as prescribed in paragraph No.6 of the Resolution No. PVSH-102002-2464-S dated 28.07.2005 of the Education Department of the State of Gujarat .
............
10. CBSE means Central Board of Secondary Education, New Delhi .
CISCE means Council for the Indian School Certificate Examination, New Delhi .
.......................
21. Curriculum means :
Syllabus prepared for Std. XII Science stream from the course of textbooks for semester III and IV which are prescribed at presently by Gujarat Secondary Education Board Resolution No. PVSH-102002-2464-S dated 28-07-2005 and dated 12-01-2006 (Para No.4) of the Education Department of the State of Gujarat.
2.4 Regarding Merit List of Candidates:
The candidates desirous of getting admission in Medical Course, those students who opted Group-B or Group-AB in Science Stream / passed Std. XII in Science Stream, shall have to appear GUJCET examination in the subjects applicable to them as per Group-B or Group AB. The Merit List will be prepared on the basis of mark obtained in Higher Secondary Certificate Examination of Std. XII Science Stream in Biology, Chemistry and Physics and marks obtained in the GUJCET examination and under the Admission Rules framed by the Admission committee for professional medical educational courses, C/o. Dean, B.J. Medical College, Ahmedabad 380016. The merit list will be prepared by the Admission Committee according to the rules of admission prescribed time to time.
(2) Students who are about to appear for March-2013 exams and those who have passed March / July / October-2012 exam or earlier can appear.
(3) The Admission Committee for Professional medical Educational Courses, C/o. Dean, B.J. Medical College, Ahmedabad 380016 shall prepare the Merit List for getting admission in Medical Course on the basis of results of GUJCET and Board Examination, and according to the provision of admission rules prescribed time to time.
4.6 Merit List:
The Merit List will be prepared by the Committee on the basis of 60% marks out of the total marks of theory obtained in Higher Secondary Certificate Examination of Std. XII Science Stream in subjects of Chemistry, Physics and Biology and 40% marks of the total marks obtained in the GUJCET examination and on the basis of the Admission Rules framed time to time by the 'Centralized Medical Admission Committee , C/o. Dean, B.J. Medical College, Ahmedabad 380016 for admission in Medical course. At the time of preparation of Merit List for admission, the main subjects of the respective groups will be taken into consideration. For rules of Merit List and rules of admission, contact both above said Committees. Board will only conduct GUJCET Examination.
11. Having regard to the pleadings and the submissions canvassed on behalf of the petitioner, it appears that the challenge is twofold. First, according to the petitioner, the sudden change in the pattern of determining the merit and preparation of merit list for admission is unreasonable and violative of Article 14 of the Constitution of India. To put it in other words, according to the petitioner, for the purpose of preparation of merit list only the marks obtained in the last two semesters, i.e. semester 3 and 4 of standard 12, should be taken into consideration and not the total marks obtained in the four semesters. Secondly, according to the petitioner, even if the Government thought fit to amend the Rules, in such circumstances, it should have been brought to the notice of the students immediately as the GUJCET Rules still provide that the merit list will be prepared by the Committee on the basis of 60% marks out of the total marks of theory obtained in higher secondary certificate examination of standard 12, Science stream.
12. We do not find merit in either of the submissions. It appears that the State Government having realized certain deficiencies and shortcomings in the system which was earlier prevailing thought fit to appoint a Committee of experts in that regard and the Committee expressed its opinion that a semester system should be introduced for standard 11 and 12. Accordingly, it was decided that there shall be four semesters, 1st and 2nd of standard 11 and 3rd and 4th of standard 12. The object also appears to be laudable so that the students will not take the studies of standard 11 lightly. If the State Government in its wisdom has thought fit to introduce such a policy in the interest of the students then the wisdom of the policy or the lack of it or the desirability of a better alternative is not within the permissible scope of judicial review. It is not for the Courts to re-cast the policy or to substitute it with another which is considered to be more appropriate. Once the attack on the ground of arbitrariness is successfully repelled by showing that the act which was done, was fair and reasonable in the facts and circumstances of the case, thereafter, the power of judicial review is limited to the ground of illegality, irrationality and procedural impropriety.
13. In Dr.J.P.Kulshreshtha v/s. Chancellor, Allahabad University, reported in (1980)3 SCC 418, the Supreme Court observed :
Judges must not rush in where even educationists fear to tread... While there is no absolute bar, it is a rule of prudence that courts should hesitate to dislodge decisions of academic bodies.
14. In Maharashtra State Board of Secondary and Higher Secondary Education v/s. Paritosh Bhupeshkumar Sheth , reported in (1984) 4 SCC 27 the Supreme Court has reiterated:-
.... the Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments controlling them.
15. Bearing the aforesaid principles in mind, we are of the opinion that there is no reason for us to take a view that the earlier pattern of determining the merit and the preparation of merit list was much more better only because it suits the convenience of the petitioner. What we have been able to gather from the materials on record is that the performance of the petitioner in the first two semesters of standard 11 is not good compared to the last two semesters of standard 12 i.e. 3rd and 4th.
As a result his position in the merit list may be affected. It is only because of such a approach on the part of the students in taking standard 11 very lightly that the Government has thought fit to introduce the policy of semester system for both the standards i.e. 11th and 12th.
In such circumstances, we reject the submission of Mr.Thakkar that the policy is violative of Article 14 of the Constitution of India.
16. So far as the second part of the challenge is concerned, we are of the opinion that the whole challenge is misconceived. The semester system, for the first time, came to be introduced from June 2011. The petitioner's batch was the first batch, who has completed four semesters and the students of that first batch are now seeking admission in medical courses which includes the petitioner. At this stage, we may profitably refer to some of the averments made in the affidavit-in-reply filed on behalf of the State Government. The averments which we shall reproduce herein below goes to show that the students were fully aware of the new system and how the system would operate. In the affidavit-in-reply, it has been stated that by introduction of the semester system, the following events took place.
(1) All the schools were informed well within time about the introduction of semester system.
(2) All the schools in the State of Gujarat registered with State Board introduced the semester system in the schools.
(3) The course of standard 11th and 12th came to be equally divided into four semester.
(4) The students were intimated accordingly by all the schools that semester system is introduced.
(5) After the introduction of the semester system, the State examination Board conducted the examination of 1st semester in the month of October, 2011. The students were required to appear in examination in different schools and not in their own schools. I state that 2nd Semester exam was conducted by the Board in the month of April, 2012 on the same pattern. Thereafter 3rd semester exam was taken by the Board in the Month of October, 2012 and the fourth semester's exam was taken in the month of March, 2013.
(6) The answer-sheets were examined by the examiners appointed by the State Board and not by the teachers of concerned schools.
(7) That the results of all 4 semester system were declared by the State Board and mark-sheets were given to every students about their performance of the semester system.
12.1 I state that in the above manner the State Board conducted examination of second semester in the month of March, 2012, examination of third semester somewhere in the month of October, 2012 and examination of fourth semester somewhere in the month of March, 2013. I state that, therefore, on the basis of performance of all four semesters the final mark sheet is given by the Gujarat State Board. The total of four semesters marks is made-up and the same is the performance of the student. This has been done by the Board in the State of Gujarat for all the students of the schools which are registered with the State Board. It is respectfully submitted that these facts are to the knowledge of the petitioner and their guardian, who have received the result and mark sheet of Gujarat Secondary & Higher Secondary Education Board.
17. We find substance in the submission of Mr.Jani that the first batch having completed the four semesters, will be the batch, who will now seek admission in the medical course and accordingly appropriate provisions have been made for computing the marks of the four semester examinations. On the earlier occasion, no such necessity arose to frame rules or the provisions. We are not impressed by the submission of Mr.Thakkar that since the Amendment Rules came into force only on 12th June 2013, his client could not have known about the change in the pattern of preparation of the merit list. We are also not impressed by the submission of Mr.Thakkar that the Amendment Rules 2013 are in conflict with GUJCET Rules. We may only say that Rule 4.6 of the GUJCET Rules, on which strong reliance has been placed by Mr.Thakkar, should be read in the manner consistent with the change in the pattern. When Rule 4.6 says that 60% marks out of the total marks of theory obtained in higher secondary certificate examination of standard 12, Science stream, means the higher secondary certificate examination conducted by the Board of the four semesters of standard 11 and 12.
18. We shall now deal with the decision of the Supreme Court in the case of P.V.Indiresan (2) v.
Union of India and Others reported in (2011) 8 SCC 441 on which strong reliance has been placed by Mr.Thakkar. This decision has been relied upon in support of the submission that the Government should be very clear so far the criteria for determining the merit of a student and preparation of merit list is concerned and such criteria cannot be changed at the last minute so as to place a student in difficulty. Mr.Thakkar has relied on the following observations of the Supreme Court.
18 In Preeti Srivastava vs. State of M.P. this Court referred to the difference between eligibility and qualification, thus : (SCC p. 156, para39) "39. ......At times, in some of the judgments, the words "eligibility" and "qualification" have been used interchangeably, and in some cases a distinction has been made between the two words - "eligibility" connoting the minimum criteria for selection that may be laid down by the University Act or any Central statute, while "qualifications" connoting the additional norms laid down by the colleges or by the State."
Eligibility Marks and Qualifying Marks are predetermined, and notified in the admission prospectus, so that a candidate intending to apply for admission knows what eligibility marks he should possess in the qualifying examination or what qualifying marks he should secure in the entrance examination (if there is an entrance examination).
The minimum eligibility marks for admission to a course of study is always declared before the admission programme for an academic year is commenced. An institution may say that for admissions to its course, say Bachelor's degree course in science, the candidate should have successfully completed a particular course of study, say 10+2, with certain special subjects. Or it can say that the candidate should have secured certain prescribed minimum marks in the said qualifying examination, which may be more than the percentage required for passing such examination. For example if a candidate may pass a 10+2 examination by securing 35% marks, an institution can say at its discretion that to be eligible for being admitted to its course of study, the candidate should have passed with at least a minimum of 40% or 50% or 60%. Whatever be the marks so prescribed, it should be uniform to all applicants and a prospective applicant should know, before he makes an application, whether he is eligible for admission or not. But the `cut-off' procedure followed by JNU during those days had the effect of rewriting the eligibility criteria, after the applications were received from eligible candidates. If the minimum eligibility prescribed for an admission in an institution was 50% and a candidate had secured 50%, he could not be denied admission, if a seat was available, based on a criterion ascertained after the last date for submission of applications.
45. No candidate who fulfills the prescribed eligibility criteria and whose rank in the merit list is within the number of seats available for admission, can be turned down, by saying that he should have secured some higher marks based on the marks secured by some other category of students. A factor which is neither known nor ascertained at the time of declaring the admission programme cannot be used to disentitle a candidate to admission, who is otherwise entitled for admission. If the total number of seats in a course is 154 and the number of seats reserved for OBCs is 42, all the seats should be filled by OBC students in the order of merit from the merit list of OBC candidates possessing the minimum eligibility marks prescribed for admission. (subject to any requirement for entrance examination.) When an eligible OBC candidate is available, converting an OBC reservation seat to general category is not permissible.
19. In our opinion, this decision has no application to the case at hand. It is now well settled that the judgment is a precedent for what it decides and not what may appear to logically flow from it. The Courts should not place reliance on the decision without discussion as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. 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 P.V.Indiresan (supra) the issue before the Supreme Court was one relating to the implementation of 27% reservation for OBCs under the Central Educations Institutions (Reservation in Admission) Act, 2006. The issue was one relating to the meaning to be assigned to the direction, the maximum cut off marks for OBCs be 10% below the cut off marks of general category candidates .
20. Before concluding, we may profitably refer to a decision of the Supreme Court in in the case of Sanchit Bansal and another v/s. Joint Admission Board and others, reported in (2012)1 SCC 157. The Supreme Court made the following observations in paragraph 28 :
28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide.
21. For the foregoing reasons, we do not find any merit in this petition and the same is accordingly rejected. However, in the facts and circumstances of the case, there shall be no order as to costs.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) *malek Page 29 of 29