Gujarat High Court
Aparna Deosharan Tripathi & 8 vs Divya Mahvirprasad Gupta & 12 on 13 April, 2015
Bench: Jayant Patel, G.B.Shah
C/CA/4588/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (LEAVE TO APPEAL) NO. 4588 of 2015
In
LETTERS PATENT APPEAL NO. 809 of 2015
In
SPECIAL CIVIL APPLICATION NO. 4506 of 2015
With
CIVIL APPLICATION NO. 4677 of 2015
In
LETTERS PATENT APPEAL NO. 809 of 2015
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APARNA DEOSHARAN TRIPATHI & 8....Applicant(s)
Versus
DIVYA MAHVIRPRASAD GUPTA & 12....Respondent(s)
=============================================
Appearance:
MR PA JADEJA, ADVOCATE for the Applicant(s) No. 1 9
MR MIHIR H PATHAK, CAVEATOR for the Respondent(s) No. 1 4
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CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 13/04/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present application has been preferred by the applicants, who are students, for getting admission in MDS in Gujarat University. It has been contended by the applicants that since they are adversely affected by the order dated 01.04.2015 passed by the learned Single Judge in Special Civil Application No. 4506 of 2015, leave may be granted to them to challenge the order passed by the learned Single Judge. Hence, the present application.
2. Considering the facts and circumstances of the case, leave deserves to be granted and therefore granted. The present application is disposed of.
Page 1 of 14 C/CA/4588/2015 ORDER3. As the matter is pertaining to the PG admission in dental course and there is urgency in the matter, we have simultaneously heard LPA also.
4. In any case, when the leave is to be granted, the matter of LPA is also required to be considered simultaneously. Hence, we have considered accordingly.
5. We have heard Mr. P.A.Jadeja, learned counsel for the appellants and Mr. Mihir Pathak, learned counsel appearing for respondent Nos. 1 to 4 - private respondents who were original petitioners before the learned Single Judge.
6. The contention raised on behalf of the appellants was that the learned Single Judge ought not have gone by the stand taken by the University for grant of 40 grace marks. In the submission of Mr. Jadeja, learned counsel, the present matter may not be considered at par with the other LPA Nos. 799 of 2015 and 800 of 2015, which were pertaining to the PG admission in medical course. In his submission, the additional aspect is that the question paper was in violation of the Rule. It was also submitted that on account of improper framing of the question papers, those who were toppers in the under graduation course in BDS, have been pushed down in the entrance examination. He has submitted that on account of that, university had taken decision to grant 40 grace marks. He alternatively submitted that as such when the questions were not properly formulated and they were in contravention to the Rules, the University ought not have granted grace marks but ought to have directed for reexamination. As the university did not properly consider the matter, the appellants Page 2 of 14 C/CA/4588/2015 ORDER should not be made to suffer. He has also submitted that on account of order passed by the learned Single Judge, which is impugned in the present LPA, the appellants have lost chances for getting admission for future and they have also missed the chances for getting admission in PG dental course in other university. He has also submitted that therefore, this Court may consider the matter at least for directing for reexamination of the matter, which has not been properly considered by the learned Single Judge.
7. Whereas Mr. Mihir Pathak, learned counsel submitted that the stand of the university for grant of 40 grace marks was the same and that was the PG medical course, has already been considered by this Court in LPA Nos. 799 of 2015 and 800 of 2015, which have been decided on 10.04.2015. He submitted that no such prayer for reexamination was made by any of the respondent students, who were before the learned Single Judge. Mr. Pathak, learned counsel submitted that the appellants, who are not parties before the learned Single Judge, cannot be permitted to raise such prayers at the LPA stage and therefore, the contention may not be accepted. He submitted that no interference may be required to the order passed by the learned Single Judge and the LPA may be dismissed.
8. We may record that as such the facts situation in the present appeal are more or less same as they were considered by the learned Single Judge in the impugned order for admission of PG medical admissions. The another relevant aspect is that the learned Single Judge has passed common order in PG medical course admission and BDS dental course admission matters Page 3 of 14 C/CA/4588/2015 ORDER respectively. The only difference is that so far as the medical course admission is concerned, certain students, who were not parties before the learned Single Judge, preferred the above referred LPA at the earlier point of time, whereas the present LPA has been preferred later on for PG dental course. We will consider this distinguishing circumstances later on, but for the ready reference, we may refer to the decision of this Court in the above referred Letters Patent Appeal Nos. 799 of 2015 and 800 of 2015 dated 10.04.2015 wherein it was observed thus:
"1. As both the applications for leave and main appeals arise from the common interim order passed by the learned Single Judge in the respective Special Civil Applications, whereby the learned Single Judge has stayed the impugned decision of the University, they are being consider simultaneously.
2. We have heard Mr.Dhaval Dave, learned Sr. Counsel with Mr.Jigar M. Patel, learned Counsel for the applicants appellants in Civil Application No.4296 of 2015, LPA (St.) No.653 of 2015 and Civil Application (St.) No.4483 of 2015, and Ms.Juthani, learned Counsel for the appellants applicants in Civil Application No.4353 of 2015, Civil Application (St.) Nos.4597 of 2015 and 4598 of 2015 and LPA (St.) No.666 of 2015.
3. The concerned applications have been preferred by raising the contention that the applicants herein are those students, who aspire to get admission in PG Medical Courses and they are being affected by the impugned order passed by the learned Single Judge and, therefore, leave should be granted to challenge the order passed by the learned Single Judge.
4. Considering the facts and circumstances, we find that leave deserves to be granted. Hence, granted.
5. Civil Applications No.4353 of 2015 and 4293 of 2015 Page 4 of 14 C/CA/4588/2015 ORDER shall stand disposed of accordingly.
6. However, on account of the urgency in the main Letters Patent Appeals, since the matters are pertaining to admission in PG Medical Courses, we have also heard the learned Counsel appearing for the appellants in the respective LPAs, Mr.Shelat, learned Sr. Counsel appearing with Ms.Nanavati, learned Counsel for Gujarat University and Mr.Shalin Mehta, learned Sr. Counsel appearing with Mr.Desai, learned Counsel for respondents No.1 to 5 upon advance copy, since they have filed caveat.
7. The contention raised by the learned Counsel for the appellants was that the University being an academic body had taken the decision to upgrade the result by giving 10% more marks i.e. 40 marks to all students, who had appeared in the entrance examination. Such a decision was of an expert body of faculty members and it was so approved by the Vice Chancellor and, therefore, the learned Single Judge ought not to have interfered with the same. It was submitted that there are powers with the University to upgrade the result and that was so done. In the submission of the learned Counsel for the appellants, since the question paper was tough and the result was unprecedented, the decision was taken by the faculty members and such ought not to have been interfered with by the learned Single Judge. It was also submitted that on account of the interim order passed by the learned Single Judge the appellants have missed the chances of getting admission in all India quota as well as the other Universities, where the admissions were open for PG Medical Courses. The result was declared on 25.1.2015 and they were also declared passed and they were entitled to get admission, but for the order passed by the learned Single Judge they have been deprived of. It was submitted that under the peculiar circumstances, if this Court stays the order of the learned Single Judge for the prospective effect, the original petitioners, who had otherwise cleared the examinations, without upgrading of the result, have already got the benefits and no prejudice will be caused to those petitioners and, therefore, this Court may interfere in the appeals to that extent.Page 5 of 14 C/CA/4588/2015 ORDER
8. Ms.Juthani, learned Counsel appearing in one of the appeals additionally contended that on account of the interim order passed by the learned Single Judge, reserved seats would also lapse and, therefore, this Court may interfere in the present appeal.
9. Whereas Mr.Shalin Mehta, learned Sr. Counsel for the respondents No.1 to 5 submitted that the University had no power to upgrade the result or rather for gracing of marks and, therefore, the learned Single Judge has rightly interfered with the same and the interim order has been passed. However, he submitted that though otherwise not permissible in law, his clients may not have objection if the benefits are given of gracing of marks to the appellants, who are students of the very University. But he submitted that as per the Rule such seats after remaining vacant would go in common pool for the other students of the Gujarat State, wherein also the appellants may have to compete with the students of other Universities on the basis of the result of MBBS marks. It was submitted that if the merit is considered, no interference may be called for to the order passed by the learned Single Judge.
10. Whereas, Mr.Shelat, learned Sr. Counsel for the University submitted that it is on account of the lowering of the score in the result by the students, the University had taken decision to allow grace marks of 10%. He submitted that it was initial decision of the University, but after the order passed by the learned Single Judge and after the first counseling was over and since no other eligible students as per the order passed by the learned Single Judge are available, seats now will be in the common pool to be utilized for admission for the students of various Universities in the State. He submitted that the University is not contemplating to give any relaxation in the Rules as the University has now taken decision to accept the order passed by the learned Single Judge. Therefore, it was submitted that no interference may be made to the order passed by the learned Single Judge.
11. It is true that in the field of education normally this Page 6 of 14 C/CA/4588/2015 ORDER Court would not interfere while exercising the power under Article 226 of the Constitution of India and in the field of education, it should better be left to the academicians to take appropriate decisions. But at the same time, the Court may exercise the power if the decision is tainted with any extraneous consideration or is on the basis of the ground or the circumstance, which cannot be said to be germane to the exercise of the power by the academicians. Had it been a case where the decision for grant of gracing marks of 10% based on any proper material germane to the exercise of the power like that of questions not properly formulated, questions formulated for which there was no answer or there were number of typographical errors for formulating the questions or such circumstances, which can be said as unforeseen circumstances by the question setter, etc., and thereafter if the proper examination is undertaken by the Body of experts and then the decision is taken that the upgradation of the result should be there, it might stand on a different footing and different consideration. Such a decision, when the same is based on the germane circumstances, the Court may not sit in appeal over the decision of the academicians. But if the decision of the academic body or the decision of academicians in the University is based on nongermane circumstances on the face of it or is based on extraneous consideration, the Court may interfere in exercise of power under Article 226 of the Constitution of India. Therefore, the contention raised by the learned Counsel for the appellants that the Court would not sit in appeal over the decision of the academicians under Article 226 of the Constitution can be accepted only if the decision is based on material and germane circumstances by the academicians or the Body.
12. The examination of the case further shows that on behalf of the University affidavitinreply was filed before the learned Single Judge for justifying the decision and in the said affidavit filed by the Registrar of the University, at paragraph 5 it was, inter alia, stated as under: It is within the purview of the University to consider the result of the entrance examination lest there may not be injustice caused to the students as a result of low scoring Page 7 of 14 C/CA/4588/2015 ORDER at the entrance examination. Thereupon, it was resolved to add 10% marks of the students. (Emphasis supplied)
13. The aforesaid shows that since the result of the examination was found to be low namely; out of about 1000 students appeared, only 224 students were declared passed at the entrance examination, the decision was taken to add 10% marks to the students. It may be recorded that it is on account of the result of the addition of 10% marks (40 marks), the number of students, who may stand passed, would be enhanced to
502. The total number of seats available are 306 seats.
14. Rule 4.1 reads as under: 4.1 Preference shall be given to candidates graduating from Gujarat University. First all candidates graduate from Gujarat University eligible under Rule1 shall be offered all seats as per Rule 3.0.
15. If the contents of the above affidavit or the stand taken on behalf of the University is tested in light of Rule 4.1 of the University Governing Admission to Post Graduate Degree and Diploma Medical Course other than M.CH and D.M., which has come into force on 3.11.2014, it appears that since the number of seats were 306 and against the same, the candidates, who passed the entrance examination were 224, the left out seats will have to be filled up as per Rule 15, wherein all the eligible students of various Universities of Gujarat State can apply, the decision is taken to add marks by gracing to the extent of 10% and the resultant effect would be that 502 students will stand passed at the entrance examination as against 306 seats available and consequently, all the students of Gujarat University may be able to get admission at the PG Courses and no vacant seat may go in the common pool for the students of other Universities. No material is contended by the University, nor it is shown to us or nor it was shown before the learned Single Judge that on account of germane circumstances as referred to by us herein above, the decision was taken to grant gracing of 10% in the marks. In absence of any germane circumstances, it would mean that the decision was taken by the Page 8 of 14 C/CA/4588/2015 ORDER University so as to make all available seats in PG Course to the students of its own University (Gujarat University) only and resultantly, to deprive the availability of seats to other candidates of the Universities other than Gujarat University in Gujarat State. Such, in our view, prima facie, can be said an extraneous consideration.
16. Apart from the above, it is hardly required to be stated that in PG Medical Admission, merit and merit only be the criteria, because those doctors, who are ultimately to be qualified for PG Courses are to deal with the health of the public at large. Any sacrifice on merits may result into playing adverse effect upon patients and the public at large, who are to utilize the services. The Apex Court in so many decisions has emphasized for no compromise with merits in medical courses. Under these circumstances, we find that when the merit is given a go by by gracing of 10% marks with extraneous consideration, interference by this Court under Article 226 of the Constitution could not be said as unwarranted. On the contrary, if higher merit or appropriate merit in the admission of medical courses was to be maintained, the Court would be justified for interference, more particularly when merit is given a go by for extraneous consideration of making of the seats available to the students of Gujarat University only.
17. It is hardly required to be stated that in PG seats for medical courses, it is not that the students career is to be considered, but the health of the public at large and huge expenses incurred by the Government would also have the role to play. If by maintaining the merits the academicians have taken the decision on the germane circumstances, it may not be the case for interference, but if the departure therefrom is made to give a goby to the merits only to make the students eligible to get admission and resultantly to deprive the other students of the other Universities, it can hardly be countenanced by this Court under Article 226 of the Constitution of India.
18. Examining the matter from the aforesaid angle read with the reasons recorded by the learned Single Judge, we do not find that the learned Single Judge has Page 9 of 14 C/CA/4588/2015 ORDER committed any error in exercise of the power for grant of interim relief.
19. Attempt made by the learned Counsel for the appellants that the prospective effect may be stayed by this Court, resultantly creating opportunity to get admission by the appellants, who are beneficiaries of the decision of the University, who have the grace marks, cannot be countenanced for the simple reason that had the University taken the decision for giving grace marks on the circumstances germane to the exercise of power as that of the academicians and, that too, without any extraneous consideration, it might stand for different consideration, but in absence thereof and in view of the reasons recorded by us herein above, we do not find that such an indulgence is called for. On the contrary, if such an alternative prayer is entertained, it would result into treating the persons or the students eligible for admission to PG Medical Courses for which they are otherwise not up to the merits as per the original and real result, wherein only 224 students have passed. Hence, we do not find that the said contention should be accepted.
20. The contention raised by the learned Sr. Counsel for the appellants that the reservation would also go on account of the interim order passed by this Court cannot be countenanced for the simple reason that the learned Single Judge has not expressed any view for such purpose. The decision of the University for grant of grace marks of 10% is stayed by the learned Single Judge. The other benefits including that of the reservation, if otherwise to remain, may remain to which, we do not propose to express any view on that aspect, since the same would be outside the scope of the appeal. Suffice it to observe that if the order of the learned Single Judge is to operate and in spite of the same, there is any adverse effect in reservation, which otherwise would have remained, those appellants may bring it to the notice of the learned Single Judge by resorting to appropriate application/proceedings and the learned Single Judge may examine in accordance with law and at that stage, rights and contentions of both the sides shall remain open.Page 10 of 14 C/CA/4588/2015 ORDER
21. In view of the aforesaid, we do not find that any case is made out for interference in both the appeals. It is further observed that the above observations are made only for the purpose of considering the legality and validity of the interim order passed by the learned Single Judge. Since the main petition is pending before the learned Single Judge, suffice it to observe that the learned Single Judge shall be at liberty to take independent view of the matter at the time of final hearing, without being, in any manner, influenced by any of the observations made by this Court in the present order.
22. Both the appeals are disposed of accordingly.
23. In view of the order passed in the main LPAs, the present Civil Applications shall stand disposed of accordingly."
9. The attempt made by Mr. Jadeja, learned advocate to contend that the university had taken decision on account of improper formulation of the questions or the question papers formed were in contravention to the Rules, cannot be countenanced for the simple reason that the university has not taken the decision for grant of grace marks on the basis of such circumstances as sought to be canvassed. On the contrary, in the affidavitinreply filed in the impugned special civil application before the learned Single Judge in the present matter at para - 5, it was inter alia stated as under.
"It is within purview of the university to consider the result of the entrance examination lest there may not be injustice caused to the students as a result of low scoring at the entrance examination. Thereupon it was resolved to add 10% marks to the students."
[emphasis supplied]
10. The aforesaid shows that on account of the lower scoring of the Page 11 of 14 C/CA/4588/2015 ORDER marks by the students at the entrance examination, it was decided to add 10% marks i.e. 40 grace marks. We may also record that in the affidavit filed on behalf of the university and more particularly, the detail at para 4.1 read with Para - 5 shows that initially without grace marks, only 66 candidates had scored the marks to become eligible for the PG dental course and after 10% grace marks, 124 students became eligible for admission to PG dental course. Mr. Jadeja, learned counsel for the appellants has stated, under the instructions of the clients, that total number of seats is 124 in PG dental course. The aforesaid detail shows that the university has, in all 124 seats, out of which, at the result of the entrance examination declared that 66 students would be eligible without the grace marks and there would be 58 left out seats, which may go into the common pool. However, if the gracing was made, 128 students will be eligible and therefore, all students may get admission including on the above referred 58 left out seats and, therefore, the decision appears to have been taken. We may also record that as per rule 4.3 of rules governing the admission to postgraduate dental courses at the affiliated dental colleges / institutions, which have come into force on 03.11.2014 reads as under:
"4.3 After all candidates graduating from Gujarat University eligible in Rule - 1, offered all seats as per under rule 3.0, still seats remain vacant due to non availibility of graduate candidates of Gujarat University ( all the merit list prepared under Rule 4.1 is exhausted i.e. Open/SC/ST/SEBC/PH) then only those vacant seats shall be offerred to candidates graduate from any other university located in Gujarat State."
11. The aforesaid shows that the decision is taken by the University to grant 10% grace marks in order to see that under graduates of the Page 12 of 14 C/CA/4588/2015 ORDER Gujarat University, who may be in a position to utilize the total 124 seats, though, in fact, without grace marks only 66 students were in a position to utilize the seats, left out 58 seats in a common pool, all students of various universities located in the Gujarat State may be in a position to apply for the PG dental course.
12. The above referred facts show that the impugned decision was taken on the basis of the circumstances, which are not germane to the exercise of the power by the university, nor any material is shown to support such decision on the germane circumstances. Hence, it should have the same fate as has been meted out by this Court in above referred LPA.
13. The attempt to content that the question papers were not properly formulated or that were in contravention to the rules is nothing but on hypothesis because the experts have not arrived at any findings on such materials as sought to be canvassed. In the same manner, the attempt to contend that the university ought to have taken decision for reexamination is also a contention in air inasmuch as neither it has been pleaded before the learned Single Judge nor any material is shown by way of affidavit of the students, who were resisting the petition before the learned Single Judge. Under these circumstances, the attempt made by the learned counsel for the appellants cannot be countenanced.
15. In view of the aforesaid observation and discussion, we do not find that any case is made out for interference to the order passed by the learned Single Judge, which is impugned in the present appeal. Hence, the appeal is meritless. Therefore dismissed.
Page 13 of 14 C/CA/4588/2015 ORDER16. In view of the order passed in the main LPA, the present Civil Application shall not survive and shall stand disposed of accordingly.
(JAYANT PATEL, J.) (G.B.SHAH, J.) *Kazi...
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