Gujarat High Court
Bhavikaben Rajabhai Dhrangi & 3 vs State Gujarat & 2 on 7 April, 2015
Equivalent citations: AIR 2015 GUJARAT 117
Author: Ravi R.Tripathi
Bench: Ravi R.Tripathi, Jayant Patel, M.R. Shah
C/SCA/13162/2012 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13162 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
With
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE M.R. SHAH
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the
interpretation of the Constitution of India or any order made thereunder ?
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BHAVIKABEN RAJABHAI DHRANGI & 3....Petitioner(s)
Versus
STATE GUJARAT & 2....Respondent(s)
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Appearance:
MR DIPEN DESAI, ADVOCATE for the Petitioner(s) No. 1 - 4
MR HK JANI, IN-CHARGE, GP with MR UTKARSH SHARMAM AGP for the Respondent(s)
No. 1
MR MIHIR THAKORE, SENIOR ADVOCATE assisted by MR DILIP B RANA, ADVOCATE for
the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI
and
HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE M.R. SHAH
Date : 07/04/2015
CAV JUDGMENT (PER : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI)
Page 1 of 45
C/SCA/13162/2012 CAV JUDGMENT
With the consent of the learned Advocates for the parties, the matter is heard for final disposal.
2. The matter is placed before this Court pursuant to an order passed by the Hon'ble the Acting Chief Justice on office submission on 01.12.2014. The office made submission inviting attention of the Hon'ble the Acting Chief Justice to an order passed by the Division Bench consisting of Hon'ble the Acting Chief Justice Mr.V.M.Sahai & Hon'ble Mr.Justice R.P.Dholaria. The Court passed order on 01.12.2014, relevant part of which is quoted in the office submission, which reads as under:-
"As per the first proviso to sub-Rule (2) of Rule 7(B), the petitioners have not applied for admission to the Admission Committee. In our opinion, if the Rule is not complied with by the students, first proviso to sub-Rule (2) of Rule 7(B) of the Gujarat Diploma in General and Midwifery (Regulation of Admission and Fixation of Fees) (Amendment) Rules, 2012 debars the student from admission. But since a Division Bench has taken a decision in favour of the students, propriety demands that the matter should be referred to a larger Bench and looking to the urgency of the matter as interest of the students is involved, we deem it appropriate to refer this matter to a Full Bench/Larger Bench who decides the matter at the earliest. Office shall obtain necessary Page 2 of 45 C/SCA/13162/2012 CAV JUDGMENT nomination for constituting a Full Bench at the earliest within 24 hours."
3. On perusal of papers, it is noticed that Special Civil Application No.13162 of 2012 is filed by the four petitioners for the relief/s as under:-
"6. (A) The Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.2 to approve the admissions of the petitioners in A.N.M. Course in the respondent No.3 college.
(B) The Hon'ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari, quashing and setting aside communication dated 22.09.2012, issued by the respondent No.2, at Annexure:H to this petition and thereby, be pleased to restrain the respondent No.2 to fill up the four seats in the respondent No.3 college, which are occupied by the petitioners.
(BB) (by way of amendment carried out as per Court's order dated 28.09.2012) The Hon'ble Court be pleased to issue writ of certiorari or writ in the nature of certiorari quashing and setting aside proviso to Rule 7(B) (2) of the admission rules to nursing course so far as management quota of self financed college."
3.1 The matter came up for consideration on Page 3 of 45 C/SCA/13162/2012 CAV JUDGMENT 28.09.2012 before the learned Single Judge. The Court was pleased to grant amendment and pass an order, relevant part of which reads as under:-
"3. This Court is therefore of the prima-facie view that the action appears to be contrary to law laid down by the Division Bench of this Court in respect of management quota seats. Hence, let there be a notice returnable on 05.10.2012. In the meantime and till the returnable date, there shall be ad-interim relief in terms of para 6(C). Direct service permitted."
(emphasis supplied) 3.2 Para-6(C) of the prayer clause reads as under:-
"6. (C) Pending final hearing and disposal of the petition, the Hon'ble Court be pleased to restrain the respondent No.2 to fill up the four seats in the respondent No.3 college, which are occupied by the petitioners."
3.3 On 05.10.2012, the Court (learned Single Judge) passed the following order:-
"Shri Dipen Desai, learned advocate for the petitioner has submitted that this matter infact, is was originally assigned to the Court of Hon'ble Mr.Justice Anant S. Dave, but as His Lordship was not available on 20/09/2012, this matter was placed before this Court. However, now as the Court is available, the matter be Page 4 of 45 C/SCA/13162/2012 CAV JUDGMENT placed accordingly. Ms.Pathak, learned Government pleader for respondent no.1 has submitted that today is last day of reshuffling to be effected. In view of this, the office is directed to examine it and do the needful in the matter. Liberty to both the Counsels to make mentioning after consulting the office with regard to the placement of the matter. The mentioning is permitted today itself."
4. It transpires from the record that during the pendency of this petition, the petitioners filed Civil Application being Civil Application No.12393 of 2012 on 22.10.2012 praying that:-
"10. (A) The Hon'ble Court be pleased to direct the opponent no.2 to approve the admissions of the applicants in A.N.M. Course in the opponent No.3 college."
(B) The Hon'ble Court be pleased to permit the applicants to attend the classes in opponent no.3 college in ANM Course."
(emphasis supplied) It will be appropriate to note at this juncture that the relief prayed for in para-10(A) of the Civil Application is similar to the prayer sought for in the main petition wherein also what is prayed for is a direction against respondent No.2, 'to approve admissions of the petitioners in ANM Course in respondent No.3 college'. Page 5 of 45 C/SCA/13162/2012 CAV JUDGMENT 4.1 The Civil Application came up for consideration before the learned Single Judge (Coram: Hon'ble Mr.Justice Anant S.Dave) on 05.11.2012, who was pleased to issue notice returnable on 08.11.2012. On 08.11.2012, the Court was pleased to pass the following order:-
"1. Without prejudice to the rights and contentions of the parties, namely, petitioners as well as respondents, if the petitioners attend the classes, they would not claim equity in case outcome of the civil application and/or writ petition is contrary to their stand and such attendance would be subject to further order that may be passed by this Court."
4.2 The matter was adjourned to 27.11.2012. On 27.11.2012, the matter was adjourned to 05.12.2012. On 05.12.2012, the Court (Coram: Hon'ble Mr.Justice S.R.Brahmbhatt) passed the following order:-
"Interim relief granted earlier in main matter to continue. As counsels have agreed for final disposal of the main matter being SCA No. 13162 of 2012, it is adjourned to 10/12/2012. It would be open to the counsels to urge for further relief if the matter is not heard on that day. Registry to notify main matter along with civil application."
4.3 It transpires from the order sheet that thereafter, there are no orders passed on this Civil Page 6 of 45 C/SCA/13162/2012 CAV JUDGMENT Application till 12.11.2014 when this Civil Application came to be disposed of by this Court (Coram: Hon'ble Mr.Justice K.M.Thaker) by the following order:-
"11. Therefore, the application is disposed of as having become infructuous. Notice is discharged. Ad-interim / interim relief, if any, granted earlier stands vacated forthwith."
It is really surprising that after Civil Application was heard on 05.12.2012 and it was adjourned to 10.12.2012, learned Advocate for the applicants-original petitioners did not take any steps to get the Civil Application or the main matter heard. It remained in dormant state until Civil Application came up for hearing on 12.11.2014 and came to be disposed of.
4.4 It is a matter of record that while Civil Application No.12393 of 2012 was pending, the petitioners-applicants filed yet another Civil Application being Civil Application No.5874 of 2013 on 31.05.2013 praying that:-
"13. (A) The Hon'ble Court be pleased to direct the opponent no.4 to permit the applicant to appear in the examinations of ANM Course to be held by the opponent No.4 Gujarat Nursing Council subject to final outcome of the Hon'ble Court."
4.5 In this Civil Application, this Court (Coram: Page 7 of 45 C/SCA/13162/2012 CAV JUDGMENT
Hon'ble Mr.Justice R.M.Chhaya) was pleased to issue notice on 21.06.2013 returnable on 27.06.2013. It is not born out from the papers as to why after having filed application on 31.05.2013, the matter was taken up for hearing only on 21.06.2013. The record also reveals that the application was affirmed on 22.05.2013, but was filed only on 31.05.2013. On 27.06.2013, the matter was adjourned to 01.07.2013. On 01.07.2013, it was adjourned to 03.07.2013. On 03.07.2013, the learned Single Judge (Coram: Hon'ble Mr.Justice R.M.Chhaya) passed a detailed order setting out the facts of the case and various orders passed by the Court in Special Civil Application and Civil Application No.12393 of 2013. The relevant part of the order reads as under:-
"13. Considering the aforesaid orders passed by this Court, interest of justice would be served if the applicants-original petitioners are permitted to appear in the forthcoming examination, after complying all formalities required under the Rules i.e. for filling of forms and payment of requisite fees, etc.
14. Applicants-original petitioners are permitted to fill in the forms and if the said forms are found to be in accordance with the Rules, opponent No.4-Council shall permit the applicants-original petitioners to appear in the examination of A.N.M. Course, which is to start on 08.07.2013. However, the result of the Page 8 of 45 C/SCA/13162/2012 CAV JUDGMENT applicants-original petitioners shall not be declared without prior permission of this Court and till the main writ petition is decided by this Court.
15. Applicants-original petitioners shall file undertaking before this Court latest by
05.07.2013 to the effect that they shall not claim any equity. It is made clear that this order shall not prejudice to the rights and contentions of all parties in the main matter.
16. Disposed of accordingly. Direct service permitted."
4.6 The record further shows that thereafter, the petitioners filed yet another Civil Application being Civil Application No.12166 of 2013 on 12.11.2013 praying that:-
"17. (A) The Hon'ble Court be pleased to direct the opponent no.4 to declare the results of the applicants for the examinations of first year ANM Course held by the opponent No.4 Gujarat Nursing Council from 08.07.2013 to 11.07.2013, subject to final outcome of the Hon'ble Court."
4.7 This Civil Application came up for consideration on 19.11.2013 and the Court (Coram: Hon'ble Mr.Justice K.M.Thaker) issued notice returnable on 30.12.2013. The matter was mentioned before the learned Single Judge on 25.11.2013 for rectification of the Page 9 of 45 C/SCA/13162/2012 CAV JUDGMENT returnable date. The date mentioned in the order was "30.12.2013". It was corrected to be "30.11.2013". Thereafter, the matter was adjourned from time to time and finally, it came to be disposed of on 12.11.2014 by the following order:-
"Mr.Venugopal learned advocate for Mr. Dipen Desai, learned advocate for the applicants who are original petitioners submitted that at this stage the applicants do not press the application and withdraws this application.
In view of the said submission, the application is disposed of as withdrawn and not pressed at this stage."
4.8 It is thereafter that Civil Application No.8363 of 2014 came to be filed on 28.06.2014 praying that:-
"18. (A) The Hon'ble Court be pleased to direct the respondent No.4 to permit the applicant to appear in the examinations of ANM Course to be held by the opponent No.4 Gujarat Nursing Council which are to commence from 16.07.2014 subject to final outcome of the Hon'ble Court."
4.9 The Civil Application came up for consideration before the learned Single Judge (Coram: Hon'ble Smt.Justice Abhilasha Kumari) on 19.08.2014 and the Court passed the following order:-
"It is submitted by Mr.Dipen Desai, learned Page 10 of 45 C/SCA/13162/2012 CAV JUDGMENT advocate for the applicants that this application has become infructuous, therefore, it may be disposed of, as such.
In view of the above submission, the application is disposed of, as having become infructuous. "
4.10 The record shows that yet another Civil Application being Civil Application No.12505 of 2014 was filed by the petitioners on 02.11.2014 praying that:-
"21. (A) The Hon'ble Court be pleased to direct respondent No.4 to declare the result of the applicants herein for the 1st semester exam of ANM Course which is given by the applicants pursuant to order dated 03.07.2013 passed in Civil Application No.5874 of 2013.
(B) The Hon'ble Court be pleased to permit the applicants to submit the examinations forms and fees for the examination of 2nd Semester ANM Course to be held by opponent No.4-Gujarat Nursing Council which is to commence from 27.01.2015 subject to final outcome of the main petition pending before the Hon'ble Court."
(C) The Hon'ble Court be pleased to direct the opponent no.4 to permit the applicants to appear in the examinations of 2nd Semester ANM Course to be held by the opponent No.4 Gujarat Nursing Council which are to commence from 27.01.2015 subject to final outcome of the main petition pending before the Hon'ble Court." Page 11 of 45 C/SCA/13162/2012 CAV JUDGMENT 4.11 This Civil Application came up for hearing on 12.11.2014 and the learned Single Judge (Coram: Hon'ble Mr.Justice K.M.Thaker) passed the following order:-
"Mr.Venugopal learned advocate for Mr. Dipen Desai, learned advocate for the applicants who are original petitioners submitted that at this stage the applicants do not press the application and withdraws this application.
In view of the said submission, the application is disposed of as withdrawn and not pressed at this stage."
From the aforesaid facts, one thing can be noticed that the learned Advocate for the petitioners was not keen to get the main matter heard and he filed Civil Applications after Civil Applications and obtained various reliefs which could be only with a view to see that at the end of the day, he is able to request the Court that as the admissions of the petitioners are continued for all this time, the petitioners are allowed to attend classes, the petitioner are allowed to appear in the examination, now their results may also be declared and thus, indirectly getting the petition allowed. This practice is required to be deprecated and it is accordingly deprecated. Out of total five Civil Applications, two Civil Applications, i.e. Civil Application No.12166 of 2013 and Civil Application No.12505 of 2014 were withdrawn, Page 12 of 45 C/SCA/13162/2012 CAV JUDGMENT whereas two Civil Applications, i.e. Civil Application No.12393 of 2012 and Civil Application No.8363 of 2014 were disposed of as having become infractuous and Civil Application No.5874 of 2013 was disposed of by a speaking order.
The final picture which emerges from the aforesaid Civil Applications is that the petitioners did try to achieve something indirectly which they could not have asked for directly.
5. After the matter came to be referred to the Full Bench, it was heard at length. On 03.12.2014, the Court (Full Bench) passed an order, relevant part of which reads as under:-
"2. The matter was heard at length. After detailed arguments, learned advocate Mr. Dipen Desai, appearing for the petitioners states at bar that on instructions of his clients he does not press the challenge to vires of proviso to Rule 7(B)(2) of Gujarat Diploma in General Nursing and Midwifery (Regulation of Admission and Fixation of Fees)(Amendment) Rules, 2012.
3. Taking into consideration the totality of the facts of the case, this Court is prima facie of the opinion that it is the management who has played vital role in inducing the students in taking the admission which was not in accordance with law. That being so, prima Page 13 of 45 C/SCA/13162/2012 CAV JUDGMENT facie there is breach of Rules on the part of the management which appears to be mandatory in nature.
The management may file reply as to why appropriate orders should not be passed against the management in light of the aforesaid facts."
5.1 The matter was kept on 08.12.2014. On 08.12.2014, the Court (Full Bench) passed an order, relevant part of which reads as under:-
"Pursuant to notice issued by this Court on 3rd December 2014 to the Management, learned senior advocate Mr.Mihir Thakore appeared for the Management, with learned advocate Mr.Dilip B. Rana. After the learned senior advocate is heard for some time, he made a statement that the amount of fees collected from four students in question will be refunded to them by depositing the same with this Court, on or before 15.12.2014, which may be permitted to be withdrawn by them. The learned senior advocate also stated that the remaining amount of tuition fees for the remaining period, viz. out of two terms one term will not be recovered from these students. This is a welcome gesture on the part of the Management."
6. Learned Advocate for the petitioners, having waived the challenge to virus of 1st proviso of Rule 7(B) (2) of Gujarat Diploma in General Nursing and Midwifery Page 14 of 45 C/SCA/13162/2012 CAV JUDGMENT (Regulation of Admission and Fixation of Fees) (Amendment) Rules, 2012 (hereinafter referred to as "the Rules"), tried to invoke sympathy of the Court by saying that the students have studied for all this time and as they have appeared for the exam also, a lenient view be taken and the result of the first year be ordered to be declared and they should be allowed to complete their studies for the second year also. The Court (Full Bench) expressed its inability to accept this request in view of the law laid down by the Hon'ble the Apex court and asked the learned Advocate to address the Court on merits. It was more than clear that the present petition was, if not wholly sponsored by the management-respondent No.3, it was fully supported by respondent No.3 and any relief granted to the petitioners will ultimately benefit respondent No.3 because then the action of respondent No.3 will stand legalized, which was otherwise absolutely illegal and to an extent highhanded as can be seen from the facts of the case.
7. The facts of the case are set out in para-2.2 onwards of the petition. Broadly, these facts are not in dispute. The Court is required to consider the course adopted by respondent No.3 in granting admissions to these four petitioners. As is set out in para-2.3, as per the Rules, so far as admission to General Nursing and Page 15 of 45 C/SCA/13162/2012 CAV JUDGMENT Midwifery Course is concerned, 75% of the intake capacity of self-financed institution is to be treated as Government seats and 25% of the intake capacity is to be treated as management seats. As per the Rules, admissions process to Government seats is to be undertaken by respondent No.2 (in para-2.3, it is wrongly stated to be respondent No.3) - Admission Committee for Professional General Nursing and Midwifery Course. So far as admission in management seats is concerned,that process is to be undertaken by 'consortium' (Association of Self-financed Colleges). Rule-22 of the Rules requires that in case seats remain vacant, they can be filled in by self-financed institutions from amongst the applicants whose applications are received directly from the students.
7.1 It is mentioned in the petition that respondent No.3 (D.I.Patel School of Nursing) issued an advertisement on 22.06.2012 calling for applications for admissions in seats which remain vacant from Government seats. It is also stated in the petition that 'consortium' issued advertisement on 25.08.2012 inviting applications for admission to management seats. Over and above this, respondent No.3 also issued an advertisement for admission to its ANM Course on 26.08.2012. On reading this advertisement dated 26.08.2012, mischief Page 16 of 45 C/SCA/13162/2012 CAV JUDGMENT becomes clear. It is mentioned in the advertisement, a copy of which is produced at Annexure-E colly, page No.47, that it is an advertisement for admissions for management quote seats for ANM/FHW (only for women). It is also mentioned in the advertisement that, 'for admissions, candidates can directly approach the institution - D.I.Patel School of Nursing, Sujanpur and can obtain application forms between 26.08.2012 to 30.08.2012 and can return to the institution on or before 30.08.2012. In this advertisement, what is highlighted is "for the admissions, our institution be directly approached". (emphasis supplied).
7.2 Neither learned Advocate for the petitioners nor learned Advocate for respondent No.3-Institution is able to explain as to why such an advertisement was issued by respondent No.3 though it is directly in violation of the Rules governing the subject. 7.3 In subsequent paras of the petition, i.e. from paras-2.7 to 2.11, cause of action is set out and indirectly, an attempt is made to convey that what is done by respondent No.3-institution is not something which is required to be deprecated and respondent No.2- Admission Committee should have accepted the admissions of the petitioners, which is not done and therefore, the petitioners are constrained to approach this Court by way Page 17 of 45 C/SCA/13162/2012 CAV JUDGMENT of this petition.
7.4 In para-2.12, the petitioners have tried to claim parity with the admissions given by respondent No.3 to some other students by contending that, 'insistence on the part of respondent No.2 that the names of the students in the general merit list of respondent NO.2 is a condition precedent for giving admission to a course is illegal' and it is also contended that it is so declared by this Court in its decision in Special Civil Application No.15506 of 2008 and Special Civil Application No.17385 of 2006. It is contended by the learned Advocate for the petitioners that, 'condition to the effect that the name of a student must appear in general merit list for getting admission even in management quota cannot be imposed on a self-financed college'. It is also contended that self-financed college and that self-financed colleges are free to give admissions on their own.
8. Learned Advocate for the petitioners invited attention of the Court to the decisions which are produced at Annexure-I colly. Of these decisions, decision in Special Civil Application No.15506 of 2008 is of the Division Bench (Coram: Hon'ble the Chief Justice Mr.K.S.Radhakrishnan, as he then was & Hon'ble Mr.Justice Akil Kureshi) dated 26.12.2008 whereas decision in Page 18 of 45 C/SCA/13162/2012 CAV JUDGMENT Special Civil Application No.17385 of 2006 and allied matters is of the learned Single Judge (Coram: Hon'ble Mr.Justice Akil Kureshi) dated 30.08.2006.
9. On careful consideration of both these decisions, this Court is of the opinion that the same are not applicable to the facts of the present case. Despite strenuous efforts, learned Advocate for the petitioners is not able to convince that the said decisions are applicable to the facts of the present case. 9.1 The Division Bench considered the reply filed by the respondent which was based on circular dated 16.06.2008. The relevant part of the judgment reads as under:-
"Learned counsel for the petitioner submitted that there is no justification for the respondents not to register the name of the petitioner since she was seeking admission on management quota and the reason for denial of admission is that she has not applied to the Central Admission Committee.
A counter affidavit has been filed by the respondent and placing reliance on circular dated 16.6.2008, learned AGP submitted that even for admission to the management quota, the student should have made application in response to the advertisement to the Central Admission Committee. Failure to apply in Page 19 of 45 C/SCA/13162/2012 CAV JUDGMENT response to the advertisement issued by the Central Admission Committee would debar the student from applying in the management quota also.
We find no substance in this contention of the respondents. It is pointed out before us that in Special Civil Application No.17385 of 2006 and connected matters this Court (Coram:
Mr.Justice Akil Kureshi) has taken a view that the admission Committee was undertaking the task of granting admissions only in Government colleges, private aided colleges and in non- management quota of self-financed institutions and therefore a student who was not interested in seeking admission in any of these categories had no reason to apply. The learned Judge concluded that it does not mean that the student would not be allowed to apply to the concerned institution in accordance with the rules for the management quota seat."
(emphasis supplied) 9.2 So far as judgment of the learned Single Judge in Special Civil Application No.17385 of 2006 and allied matters is concerned, the facts were totally different as can be seen from the relevant part of the judgment, which reads as under:-
"6. ..... The petitioners who are desirous of applying for management quota seats cannot be kept out of consideration solely on the ground that they had earlier not applied in response Page 20 of 45 C/SCA/13162/2012 CAV JUDGMENT to the advertisement dated 2.5.2006 for category of seats other than the management quota seats of self-financed institutions.
7. Only to this extent, the petitions are required to be accepted. It is made clear that none of the other conditions are under challenge before this Court nor this Court has in any manner whittled down other conditions mentioned in the communication dated 24.7.2006 as also the requirement of fulfilling other legal conditions.
8. In the result, condition No.1 of communication dated 24.7.2006 is quashed. It would be open for the petitioners to apply for the management quota of seats of PTC course in self-financed institutions provided they fulfill necessary eligibility criteria. Their applications will be considered in accordance with rules and other conditions imposed by the Government in its communication dated 24.7.2006. To the above limited extent, the petitions succeed. Rule is made absolute to the above extent with no order as to costs."
(emphasis supplied)
10. In the present case, it is not in dispute that 1st proviso to sub-rule (2) of Rule 7(B) did make it obligatory for the candidates to apply in response to the advertisement issued by respondent No.2. It is only from amongst candidates who applied in response to the advertisement by respondent No.2, the students could have Page 21 of 45 C/SCA/13162/2012 CAV JUDGMENT been considered by 'consortium', of which respondent No.3 is suppose to be a member. The 1st proviso to sub-rule (2) of Rule 7(B) reads as under:-
"Provided that no student shall be admitted against the management seats unless his /her names appears in the merit list prepared by the Admission Committee."
11. Learned Advocate for the petitioners repeatedly requested this Court to take a lenient view in the matter and allow the students to complete their course to which they are admitted on account of an illegal act on the part of respondent No.3 and thereafter unwarranted exercise undertaken by the petitioners through their Advocate of filing Civil Applications after Civil Applications in the matter. The request cannot be accepted by this Court.
12. Learned in-charge Government Pleader Mr.H.L.Jani appearing with learned AGP Mr.Utkarsh Sharma invited attention of the Court to affidavit in reply filed on behalf of respondent No.2, affirmed by Dr.Bina K.Vadalia, Member Secretary, Admission Committee for Professional General Nursing and Midwifery Courses. In this affidavit in reply, in paras-7, 8, 9 and 10, averments made in the petition are explained. Of these paras, paras-7 and 10 are relevant for our purpose, which Page 22 of 45 C/SCA/13162/2012 CAV JUDGMENT read as under:-
"7. I say and submit that as per the admission rules for GNM /ANM (General Nursing and Midwifery /Auxiliary Nurse Midwife). The candidates had applied for management quota seats must had applied for Government quota (G.Q.) seats and his/her name should be appeared in the merit list of admission committee.
8 to 9 xxxxx
10. I say and submit that the rules of admission committee, any seats remains vacant should be converted into Government seats and should be filled up from the merit list of Government quota."
In addition to this, there is further affidavit in reply filed by the same deponent in which in para-3, it is clearly stated that:-
"3. I say and submit that in year 2006 in Special Civil Application No.17385 of 2006, judgment was passed at that time rules was not framed for the admission in the Auxiliary Nurse Midwifery (A.N.M.) courses. During the current year department Health and Family Welfare has framed the rule on 02.06.2012 which are applicable to admission in Auxiliary Nurse Midwifery (A.N.M.) courses vide Government Resolution dated 19.06.2012, which were published in the common Gazette.Page 23 of 45 C/SCA/13162/2012 CAV JUDGMENT
13. Having heard the rival contentions of the learned Advocates, this Court finds that no relief can be granted to the petitioners, except the relief which stood granted by order dated 08.12.2014, relevant part of which reads as under:-
"..... After the learned senior advocate is heard for some time, he made a statement that the amount of fees collected from four students in question will be refunded to them by depositing the same with this Court, on or before 15.12.2014, which may be permitted to be withdrawn by them. The learned senior advocate also stated that the remaining amount of tuition fees for the remaining period, viz. out of two terms one term will not be recovered from these students....."
14. In the result, the petition fails and the same is dismissed. Notice is discharged. Ad interim relief granted earlier is vacated. No order as to costs.
At the request of learned Advocate for the petitioners, Registry is directed to pay the amount deposited by respondent No.3 to the petitioners by 'account payee cheque' in the individual name/s of the petitioners at the earliest but not later than two weeks from the date of the receipt of this order.
(RAVI R.TRIPATHI, J.) Page 24 of 45 C/SCA/13162/2012 CAV JUDGMENT (JAYANT PATEL, J.) (M.R.SHAH, J.) (CONCURRING:- PER: HON'BLE MR.JUSTICE JAYANT PATEL)
1. I had the benefits of the reasons recorded by my brother (Ravi R. Tripathi, J.). However, I find it appropriate to supplement the reasons and to make observations while concurring with the ultimate decision for dismissal of the petition.
2. On facts, some reference has been made, but I find it appropriate to summarize as under:-
A. The petitioners are persons, who have passed 12th Standard Examinations in Arts Faculty and as per the petitioners, they are eligible for admission in Auxiliary Nursing Course (hereinafter referred as "ANM Course") recognized by the Indian Nursing Council and Gujarat Nursing Council.
B. The respondent No.3 is self-financed Institute running course of ANM. The State Government has framed the Rules for admission to General Nursing and ANM Courses, for the admission to the courses, Page 25 of 45 C/SCA/13162/2012 CAV JUDGMENT known as Gujarat Diploma in General Nursing and Midwifery (Regulation of Admission and Fixation of Fees) (Amendment) Rules 2012 (hereinafter referred to as the 'Rules').
C. On 26.8.2012, advertisement was issued by respondent No.3 College, inviting applications under the management quota of the female candidates for admission in ANM Courses. In the said advertisement, the eligibility for admission provided was of 12th Standard Passed or its equivalent examination, and the age of not less than 17 years and not more than 30 years as on 31.12.2012 was also provided. The another requirement was that the candidates should have applied for admission in response to the advertisement issued by the State Government on 22.6.2012.
D. As such, prior to the aforesaid advertisement, the State Government had already issued advertisement in the newspaper on 22.6.2012 for admission to ANM Courses of all the candidates. The consortium of management had also issued advertisement on 25.8.2012 inviting all the interested candidates, who are entitled to get admission on management quota, wherein respondent No.3 college was one of Page 26 of 45 C/SCA/13162/2012 CAV JUDGMENT the Institutions and there also, the requirement or the eligibility was that the candidates should have applied in response to the advertisement issued by the Government dated 22.6.2012. E. As per Rule 7 for admission even for management quota, the requirement was that the candidates should have applied for admission in response to the advertisement issued by the Government for all the seats i.e. Government quota as well as management quota, so as to prepare, inter se, merits of the candidates.
F. The respondent No.3 after it received the applications from the petitioners for admission, forwarded the same to respondent No.2 - Central Admission Committee for approval, but such approval was not granted, because the names of the petitioners were not in the General Merit List, since they had not applied for admission in response to the advertisement dated 22.6.2012 issued by the Government.
G. As per the petitioners, in similar circumstance, SCA No.15506 of 2008 was preferred by one of the students, Patel Heenaben Sumanbhai, who was denied admission on the management quota on the ground Page 27 of 45 C/SCA/13162/2012 CAV JUDGMENT that she had not applied to the Central Admission Committee and the Division Bench of this Court, vide order dated 26.12.2008 held that the student could not be deprived of the admission on such ground when the student had applied for admission on management quota and the Division Bench in the said decision relied upon the earlier decision of the learned Single Judge of this Court dated 30.8.2006 in SCA No.17385 of 2006 and allied mattes. As per the petitioners, more or less in similar situation, other three students had preferred SCA No.8399 of 2011 and this Court, vide order dated 10.11.2011 observed that the Central Admission Committee cannot take up the stand that the management cannot give admission to the students directly and ultimately directed to grant admission. Under these circumstances, the petitioners have approached this Court by the present petition.
3. It may be recorded that the learned Single Judge of this Court in the present petition initially had granted interim relief in terms of paragraph 6(C) on 28.9.2012, restraining the respondent No.2 Admission Committee to fill up four seats in the college of respondent No.3. Thereafter, on 8.11.2012, vide Page 28 of 45 C/SCA/13162/2012 CAV JUDGMENT order passed in CA No.12393 of 2012 by the learned Single Judge of this Court, the petitioners were permitted to attend the classes without prejudice to the rights and contentions of the parties with the clarification that they would not claim any equity and the Court further observed that the result of the petitioners shall not be declared without prior permission of the Court and till the writ petition is decided by this Court.
4. Thereafter, the petitioners amended the petition and challenged the vires of proviso to Rule 7(B)(2). As thereafter the matter was placed before the Division Bench of this Court and the Division Bench of this Court, vide order dated 1.12.2014, referred the matter to the Larger Bench and under these circumstances, the matters are placed before the Larger Bench of this Court.
5. It may also be recorded that after the matters were heard before the Larger Bench, the petitioners, vide order dated 3.12.2014, did not pres the vires of Rule 7(B)(2) of the Rules and the Court, prima facie, observed that the it was management, who has played vital role in inducing the students in taking the admission which was not in accordance with law and the Court, prima facie, found that there was Page 29 of 45 C/SCA/13162/2012 CAV JUDGMENT breach of Rules on the part of the management, which appears to be mandatory in nature and, therefore, this Court passed the further orders and called upon the reply from the management. Thereafter, on 8.12.2014, on behalf of the management - respondent no.3, it was declared that the amount of fees collected from the four students in question will be refunded by the management and the remaining tuition fees shall also not be claimed.
6. The aspect, which deserves to be taken note of is that the proviso to Rule 7(B)(2) has been brought on the statute book on 2.6.2012. Therefore, the earlier decisions of this Court i.e. (1) of the learned Single Judge dated 30.8.2006 in SCA No.17385 of 2006; (2) dated 26.12.2008 in SCA No.15506 of 2008; (3) dated 10.11.2011 in SCA No.8399 of 2011; (4) dated 1.3.2012 in MCA No.629 of 2012 can be said as per incuriam or cannot be termed as precedent holding the field in view of the aforesaid express statutory rules cane into force on 2.6.2012. In all the aforesaid decisions of this Court, no occasion had arisen for the Court to consider and give effect to the proviso to Rule 7(B)(2) of the Rules. For ready reference, we may reproduce the aforesaid Rule 7(B)(2) of the Rules, which has come into force from Page 30 of 45 C/SCA/13162/2012 CAV JUDGMENT 2.6.2012:-
"7. Admission:
(1) xxx
(2) xxx
B. Management Seats:
(1) xxx
(2) The Consortium shall also make necessary
arrangements to issue and receive the
application forms for admission to the
Management seats at the office of Admission
committee at B.J. Medical College, Civil
Hospital Campus, Ahmedabad-16, or at any other place as may be notified by the Consortium;
Provided that no student shall be admitted against the management seats unless his/her names appears in the merit list prepared by the Admission Committee.
Provided further that where any Non-Resident Indian seats remains vacant, such seat shall be converted into management seats and filled in from merit list for the management seats;
Provided also that where any management seat remains vacant, such seats shall be filled in from the merit list for Government seats."
(Emphasis supplied)
7. The essential purpose of the Rule appears to be to regulate the admission in ANM Courses in a manner by taking care of the interest of the Government quota Page 31 of 45 C/SCA/13162/2012 CAV JUDGMENT as well as management quota by leaving the least chance of any manipulation by the management in giving admission to the students on management quota, ignoring the merit order of the candidates, inter se, in the management quota. It also rules out the chances of duping by any management of the college to the students concerned, as if since the admission is to be given on management quota, merit would be irrelevant even amongst the students of the management quota and the management will have all powers to take decision.
8. It is hardly required to be stated that even in the management quota, if any student applies, inter se, merit of the respective student in the management quota needs to be maintained. Further, the management cannot be given a free hand to deal with the students for admission without intervention of the Government or the Committee regulating the admission. The management would be entitled to a particular share in the seats for admission, but mode of finalization of the admission may vest to the management, or it can be said that such shall be regulated by the Government or the Admission Committee. It is with that purpose the mechanism has been provided under the Scheme of the Rules that Page 32 of 45 C/SCA/13162/2012 CAV JUDGMENT all aspirant students for admission will apply in response to the advertisement issued by the Government and while granting admission on the management quota, one of the conditions is that his name should have been there in the merit list prepared by the Admission committee. If any student directly applies to the management for admission, the management should not be permitted to deal with directly, but even if he has to apply for admission in a management quota, he has to apply through consortium of the management, that too, after the application is submitted to get admission in the management quota in response to the advertisement issued by the Government. The another purpose appears to be to watch and regulate the admission even amongst the management quotas by scrutinizing the merit of the candidates, inter se, in the management quotas. In any case, the grant of admission by the consortium of the management in the management quota remains under supervision of the Admission Committee.
9. In our considered view, the aforesaid Rules and more particularly the proviso inserted in Rule 7(B)(2) is in the larger interest of all the concerned and to rule out any manipulation at the admission. Page 33 of 45 C/SCA/13162/2012 CAV JUDGMENT
10. We may leave it at that, without observing further by testing the constitutional validity of the proviso to Rule 7(B)(2), since the challenge to proviso of Rule 7(B)(2) has not been pressed. But we find it appropriate to observe that the above referred decision of this Court in various petition upon which the reliance has been made cannot be made applicable after 2.6.2012, since the rules are already amended and the basis and the circumstances under which the decisions have been taken by this Court are no more in existence and the situation now for admission would be governed by the above referred Rules, which appears to be for the betterment in the field of education.
11. As such, if the facts of the present case are examined in light of the above referred observations made, no relief can be granted to the petitioners, since the petitioners did not apply for admission in response to the advertisement issued by the Government, nor their names existed in the merit list prepared by the Admission Committee. Hence, the petition is dismissed.
(RAVI R.TRIPATHI, J.) Page 34 of 45 C/SCA/13162/2012 CAV JUDGMENT (JAYANT PATEL, J.) (M.R.SHAH, J.) (CONCURRING:- PER: HON'BLE MR.M.R.SHAH) [1.0] I had the benefits of reasons recorded by my brother Judges (Ravi R. Tripathi, J.) & (Jayant Patel, J). I am in complete agreement with the ultimate decision for dismissal of the petition. However, I find it appropriate to supplement the reasons while concurring with the ultimate decision for dismissal of the petition. [2.0] It is required to be noted that the admission of students in the first year of Diploma in General Nursing and Midwifery is governed by the Gujarat Diploma in General Nursing (Regulation of Admission and Fixation of Fees) (Amendment) Rules, 2012 (hereinafter referred to as "Rules") more particularly Rule 7. That the Rules are framed in exercise of powers conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 Page 35 of 45 C/SCA/13162/2012 CAV JUDGMENT (hereinafter referred to as "Act"). That the statement of objects and reasons of enacting the Act is for ensuring fair, transparent and non-exploitative procedure for admission to ensure merit based admission in the unaided professional colleges.
[2.1] In the present case the dispute is with respect to admission of the students in the management quota / management seats. The relevant provisions for admission to student in the first year of professional medical educational school or institutions are as under:
"R. 2.(1) In these rules, unless the context otherwise requires,-
(a) ...
(b) "Admission" means admission of students
in the first year of diploma in General
Nursing and Midwifery;
(c) "Consortium" means an association of
professional School or Institution formed to facilitate management seats of such Institutions;
2.(4)Seats Available for admission:
For the purpose of admission to the first General Nursing and Midwifery course available seats shall include-
A. Government Seats-
(1) All the sanctioned seats of the
professional Medical Educational Course in
the Government Institutions of the State, Page 36 of 45 C/SCA/13162/2012 CAV JUDGMENT (2) All the sanctioned seats of the Professional Medical Educational Course in the aided Institutions; and (3) Seventy five percent of the total sanctioned seats of the Professional Medical Educational Course in the unaided Institutions.
B. Management Seats-
(1) Twenty five percent seats of the
sanctioned seats of the Professional Medical Education Courses in the unaided Institutions of the State including fifteen percent Non Resident Indian Seats, (2) The intimation received in respect of sanction of seats by the Admission Committee three days prior to the commencement of the first counseling programme, shall be considered as available seats.
(3) Before commencement of admission process if, any unaided institution requests to fill up the Management Seat by the Admission Committee, such management seats shall also be considered as available for giving admissions.
C. Non Resident Indian Seats-
(1) Fifteen percent seats of the total
sanctioned seats of the professional Medical Education Courses in the Institutions of the State.
(2) The intimation received, in respect of sanction of seats by the Admission Committee three days prior to the commencement of the first counseling programme shall be Page 37 of 45 C/SCA/13162/2012 CAV JUDGMENT considered as available seats.
R. 7.Admission:
The admission to student in the first year of professional Medical Education School or Institutions shall be given in the following manner namely:
A. Government Seats:
(1) The admission Committee shall by
advertisement in the prominent newspapers
widely circulated in the State and by such other means as the Committee may consider convenient publish the date of to where to be submitted, last date for submission of application form and such other information as may be necessary in this behalf. (2) No vacant seat in General Nursing and Midwifery Course will be filled up after 30th September.
B. Management Seats:
(1) The Consortium shall also issue an
advertisement in two English and two
Gujarati prominent newspapers widely
circulated in the State, invite the
application from the eligible candidates for the admission to the Professional Medical Education Courses on the management seats.
The Consortium by advertisement shall notify the date of issue of application from centres from where the application forms may be obtained and to where to be submitted last date for submission of application forms, details of fees to be paid and eligibility criteria and numbers of seats Page 38 of 45 C/SCA/13162/2012 CAV JUDGMENT available for admission on the management seats and such other information as may be necessary in this behalf.
(2) The Consortium shall also make necessary arrangements to issue and receive the application forms for admission to the Management seats at the office of Admission committee at B.J. Medical College, Civil Hospital Campus, Ahmedabad - 16, or at any other place as may be notified by the Consortium;
Provided that no student shall be admitted against the management seats unless his/her names appears in the merit list prepared by the Admission Committee.
Provided further that where any Non-Resident Indian seats remains vacant, such seat shall be converted into management seats and filled in from merit list for the management seats;
Provided also that where any management seat remains vacant, such seats shall be filled in from the merit list for Government seats. (3) If any of the statement made in the application form or any information / document supplied by the candidate in connection with his/her application for admission is at any time found to be false of misleading, or if at any time it is found that the candidate has concealed any information / fact in connection with his/her application, his/her admission will be cancelled without any notice thereof, fees shall be forfeited and he/she may be Page 39 of 45 C/SCA/13162/2012 CAV JUDGMENT expelled."
Therefore, as per Rule 7 of the Rules, the Admission Committee shall by advertisement in the prominent newspapers widely circulated in the State and by such other means as the Committee may consider convenient, invite the applications and publish the date of, to where to be submitted, last date for submission of application form and such other information as may be necessary in this behalf.
[3.0] Now, so far as the admission to the management seats are concerned, the Consortium shall have to issue an advertisement in two English and two Gujarati prominent newspapers widely circulated in the State, inviting the application form from the eligible candidates for the admission on the management seats. As per Rule 7(b)(1) of the Rules, the Consortium is also required to issue an advertisement notifying the date of application from centers from where the application forms may be obtained and to where to be submitted, last date for submission of application forms, details of fees to be paid and eligibility criteria and number of seats available for admission from the management seats and such other information as may be necessary in this behalf. As per sub-Rule (2) of Rule 7(b), the Consortium is also required to make necessary arrangements to issue Page 40 of 45 C/SCA/13162/2012 CAV JUDGMENT and receive the application forms for admission to the management seats at the office of the Admission Committee at B.J. Medical College, Civil Hospital Campus, Ahmedabad-16 or at any other places as may be notified by the Consortium. Sub-Rule (2) of Rule 7(b) of the Rules specifically provides that no student shall be admitted against the management seats unless his or her name appears in the merit list prepared by the Admission Committee. Therefore, the applications received by the Consortium for admission on the management seats shall be send to the Admission Committee, who shall prepare the merit list even for admission on the management seats and as per the merit, the admissions are required to be given on the management seats.
[3.1] In backdrop of the aforesaid statutory provisions, the present petition is required to be considered. In the present case the applications were invited by the Admission Committee for admission in the first year (A & M) Auxiliary Nursing Course by giving advertisement in two newspapers having wide circulation in the State. The Consortium also invited the applications on 25.08.2012 for admission in the aforesaid course on management seats by giving public advertisement in local newspapers. Even the respondent No.3 institute - a private Management Institute also gave the public Page 41 of 45 C/SCA/13162/2012 CAV JUDGMENT advertisement inviting the applications straightway to the institutions for admission on the management seats specifically mentioning in the said advertisement that the student who desires to get admission on the management seats shall directly apply or submit the application to the respondent No.3 institution. At this stage it is required to be noted that as such there was no such requirement of inviting the applications directly by a notified self-financed institution. Despite the above, the respondent No.3 directly and in breach of sub- Rule (2) of Rule 7(b) of the Rules had granted the admission to the petitioners on the management quota/seats. Thus, the admissions granted to the petitioners are directly by the respondent No.3 - self- financed institution and neither through the Admission Committee nor even through the Consortium and it is an admitted position that the names of the respective petitioners did not appear in the merit list prepared by the Admission Committee. Thus, the admission of the petitioners in the management quota/seats is absolutely in breach of the statutory provisions more particularly sub-Rule (2) of Rule 7(b) of the Rules, Therefore, as such the purpose and object of the Act and the Rules i.e. to ensure fair, transparent and non-exploitative procedure for admission has been frustrated.
Under the circumstances, when the respective Page 42 of 45 C/SCA/13162/2012 CAV JUDGMENT petitioners got the admission in the respondent No.3 - self-financed institution in management quota/seats dehors the statutory provisions, the petitioners are not entitled to any relief as prayed for in the present petition. Granting the relief as prayed to the respective petitioners shall tantamount to putting a seal on the illegal admissions and confirming the admissions which are found to be absolutely in breach of the statutory provisions.
[4.0] Now, so far as the reliance placed upon the decision of the Division Bench of this Court in the case of Patel Dhara Ramjibhai and Ors. vs. State of Gujarat Through Secretary and Ors. in Special Civil Application No.8399/2011 is concerned, at the outset it is required to be noted that on facts the said decision shall not be applicable to the facts of the case on hand. At the time when the Division Bench decided the aforesaid Special Civil Application, as such there were no such statutory provisions and the Rules as they are now. The Gujarat Diploma in General Nursing (Regulation of Admission and Fixation of Fees) (Amendment) Rules, 2012 has been framed by notification dated 02.06.2012.
Even the decision of the learned Single Judge in the case of Parmar Sanjay Arvindbhai & Ors. vs. State of Gujarat Through Secretary & Ors. rendered in Special Page 43 of 45 C/SCA/13162/2012 CAV JUDGMENT Civil Application No.17385/2006 and other allied Special Civil Applications which came to be considered by the Division Bench of this Court while deciding Special Civil Application No.15506/2008 upon which the reliance has been placed by the petitioners also shall not be applicable to the facts of the case on hand and/or shall not be of any assistance to the petitioners. In the case before the learned Single Judge it was found that after the advertisement inviting the applications for admission, the State Government issued communication that a candidate who had not applied in response to the advertisement issued by the Central Administration Committee to be debarred from applying for management quota of self-financed institutions and to that the learned Single Judge observed that at the last moment when the Government insisted that the self-financed institutions must consider only those applications of candidates who had applied earlier in response to the notice dated 02.05.2006 (issued by the Central Administration Committee), the same would result into injustice. That is not the position in the present case.
Under the circumstances, the aforesaid two decisions, one of the Division Bench and another by the learned Single Judge upon which the reliance has been placed by the petitioners shall not be of any assistance Page 44 of 45 C/SCA/13162/2012 CAV JUDGMENT to the petitioners.
[5.0] In view of the above and for the reasons stated above also, the petitioners are not entitled to any reliefs as prayed more particularly the relief directing the respondent No.2-the Admission Committee for Professional General Nursing and Midwifery Course to approve the admission of the petitioners in A & M Auxiliary Nursing Course in the respondent No.3-College. Under the circumstances, the present petition deserves to be dismissed and is, accordingly, dismissed.
(RAVI R.TRIPATHI, J.) (JAYANT PATEL, J.) (M.R.SHAH, J.) SHITOLE Page 45 of 45