Gujarat High Court
Hardik Dhirubhai Patel vs State Of Gujarat on 25 July, 2019
Equivalent citations: AIR 2020 GUJARAT 74, AIRONLINE 2019 GUJ 292
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/SCA/11834/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11834 of 2019
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HARDIK DHIRUBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR MITUL SHELAT, ADVOCATE WITH MS.AVNI H PANDYA(7257) for the
Petitioner(s) No. 1
MS MANISHA LAVKUMAR SHAH, GOVERNMENT PLEADER WITH MR. KM
ANTANI(6547) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 25/07/2019
ORAL ORDER
(PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. The present Special Civil Application is filed by the petitioner to declare Rule 4(7)(i) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (for short 'Rules, 2017') insofar as it requires a student to have studied under Jawahar Navodaya Scheme upto standard VIII in any of the schools located in the State of Gujarat as ultra vires. A writ of mandamus under Article 226 of the Constitution of India is prayed for seeking a direction to the respondent authorities to include the name of the petitioner in the provisional merit list for Medical, Dental, Homeopathy, Ayurvedic and Naturopathy courses for the year 2019, NEET UG-2019 based ST merit list.
Page 1 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER2. Here is a case where a tribal whose son - the petitioner who is born in Gujarat, is a domicile of Gujarat, has studied upto standard VIII in a Dadra & Nagar Haveli school affiliated to the Gujarat Board is denied admission to the professional course of medical field on the ground that though the petitioner has passed his standard XII from the Jawahar Navodaya Vidyalaya in Silvassa (Union Territory of Dadra & Nagar Haveli) and has therefore passed his qualifying examination from a Navodaya Vidhyalaya located outside Gujarat State, in accordance with Rule 4(7)(iii), since he did not study in a Jawahar Navodaya Vidhyalaya scheme upto standard VIII in any of the schools located in the State of Gujarat as required under Rule 4(7)(i) of the Professional Medical Rules, he is declared to be ineligible for admission to medical courses.
3. The petition arises in the following background:
3.1 The petitioner is a student, who was born on 14.10.1998 in Karvad, Gujarat. From Class Nursery to Class VIII, the petitioner studied for the period from 2003 to 2014 at Little Star Academy in Dadra, a school affiliated to the Gujarat Secondary Education Board. From Class IX to Class XII, in the years 2014 to 2018, the petitioner undertook his education from Jawahar Navodaya Vidyalaya in Silvassa.
3.2 The petitioner is a domicile of Gujarat too and also a Scheduled Tribe candidate so certified by the State of Gujarat.
For the academic year 2018-19, the petitioner applied for admission to medical course but since he could not obtain Page 2 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER admission in a desired college on the basis of his NEET score, he reappeared for NEET on 05.05.2019. The petitioner obtained an All-India rank of 362794. The petitioner applied for medical admission, however, when the list was declared on 02.07.2019, in the NEET undergraduate-2019 based ST merit list, he found that his name was not included. His name was found to be included in the list of non-eligible persons published by the Admission Committee for Professional Undergraduate Medical Courses. The reason provided for non inclusion of his name in the list of eligible candidates was that the petitioner had passed 12th Standard in Dadra & Nagar Haveli and that the school from which he passed the 12 th standard was not a Gujarat Secondary and Higher Secondary Board affiliated school and also was located outside Gujarat.
3.3 On being aggrieved by this, on 03.07.2019, the petitioner approached the respondent committee. The petitioner was asked to submit a form and was assured that his grievance will be resolved. Since the first round of admission to the MBBS and BDS course had already begun and a copy of the advertisement of the first round of online choice filing and allotment began, the petitioner is constrained to approach this Court as his non inclusion in the eligibility list makes him ineligible to pursue medical course within the State of Gujarat.
4. Mr. Mitul Shelat, learned advocate for the petitioner has submitted that the action of the respondents for declaring the petitioner ineligible for admission to medical courses on the ground that the petitioner passed his standard XII from a Navodaya school located outside Gujarat, on the ground that Page 3 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER he had not studied upto standard VIII in accordance with clause (i) of Rule 4(7) of the Rules, 2017 is violative and is arbitrary. Pressing into service provisions of Rule 4(7)(iii), Mr. Shelat submitted that if the conditions of eligibility for admission of Rule 4 are seen, a candidate who is a citizen of India and has completed 17 years of age and has passed 12 th qualifying examination from a Gujarat Board is found eligible for admission even if he passes his standard XII from any of the Boards including the Central Board of Secondary Education located in the State of Gujarat. However, merely because the petitioner did not study in a Jawahar Navodaya Vidyalaya scheme upto standard VIII in any of the schools located in Gujarat, he is disqualified for admission though as per Rule 4(7)(iii), he passed his qualifying examination from a Navodaya Vidyalaya located outside Gujarat State.
Mr. Shelat therefore submitted that though the petitioner is born in Gujarat, is a domicile of Gujarat, has studied in a Gujarat Board School upto standard VIII, merely because he did not study in a Jawahar Navodaya school upto standard VIII in a school within Gujarat State he is denied admission.
4.1 According to Mr. Shelat, the rule especially Rule 4(7)(i) is otiose because the admission to Jawahar Navodaya Vidhyalaya scheme only begins after standard VI and there is no reasonable nexus to deny admission to the petitioner only on the ground that he did not study for the three standards from VI to VIII in a Navodaya Vidyalaya in Gujarat whereas he had studied in a school affiliated to Gujarat Board.
4.2 Drawing our attention to the scheme under the Jawahar Page 4 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER Navodaya Vidyalaya Yojana, Mr. Shelat submitted that the Jawahar Navodaya Vidyalaya scheme was in accordance with the national policy of education. These are co-educational, residential schools fully financed and administered by the Government of India. The admissions are made through Jawahar Navodaya Vidyalaya selection test to class VI. The medium of instruction in such Vidyalaya is the mother tongue or the regional language upto class VIII. The objective of the scheme is to provide good quality modern education including a strong component of culture inculcation of values and to promote national integration through migration of students from Hindi to non-Hindi speaking state and vice versa. In the State of Gujarat, there are 34 Navodaya Vidyalayas. The stages of getting admission into the Navodaya Vidyalaya are 3 i.e. either from class VI on the basis of eligibility test, class IX and class XI.
4.3 According to Mr. Shelat, therefore, merely because the petitioner opted to undertake education from classes IX to XII through an eligibility test in a Jawahar Navodaya Vidyalaya school, exclusion of his admission and holding him ineligible for medical courses, solely on the ground that he had not undertaken process of education from a Navodaya Vidyalaya in the State of Gujarat upto standard VIII does not hold good inasmuch as clause (i) of sub rule (7) of Rule 4 and clause (iii) of sub rule (7) of Rule 4 of the Rules, 2017 create an anomalous situation, depriving a student who is otherwise born in Gujarat, domiciled in Gujarat and who has otherwise studied in a school affiliated to the Gujarat Board as prescribed under Rule4(7)(iii) denied admission only on the ground of not having taken admission upto standard VIII in a Page 5 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER Jawahar Navodaya Vidhyalaya from the State of Gujarat, though as per clause (iii) of sub rule (7) of Rule 4 he has taken admission in class XII in a Jawahar Navodaya Vidhyalaya located outside the State of Gujarat.
4.4 Mr. Shelat further submitted that the purpose of securing admission in classes IX to XII in a Jawahar Navodaya Vidyalaya was to see that looking to his background as a tribal, he could undertake rigorous pursuit of his schooling in the higher standards in a better atmosphere which facilitated him to secure a better NEET score for the purpose of competing for medical course admission, however, ironically the only ground on which he is declared ineligible is that he did not study in a school of a Jawahar Navodaya Vidhyalaya in standard VIII.
4.5 Inviting our attention to the rules called the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, Mr. Shelat specifically invited our attention to Rule 4 and submitted that clause (i) of sub rule (3) of Rule 4 provides that a person who has passed his qualifying examination from a Gujarat Board i.e. irrespective of the fact whether the school is situated outside State of Gujarat, would render the student eligible for admission. However, merely because he does not think it fit to seek admission in a Jawahar Navodaya Vidyalaya upto standard VIII renders him ineligible though he has otherwise studied in a Gujarat Board school upto standard VIII at Dadra & Nagar Haveli. He submitted that though as per clause (iii) of sub rule (7) of Rule 4 of the Rules, 2017, he has passed his qualifying examination of Navodaya Vidyalaya located outside Page 6 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER State of Gujarat, merely by the accident of not having undertaken education in a Jawahar Navodaya Vidyalaya in Gujarat though through a Gujarat Board renders him ineligible. The rule, according to Mr. Shelat, is unworkable and otios. He submitted that if the rule is seen, the students who are eligible for admission are :
(a) Students who are born in State of Gujarat and have studied outside State of Gujarat from classes 1 to 9 but from State of Gujarat from classes 10 to 12.
(b) Students who have studied in State Board schools outside Gujarat.
(c) Students who have studied in Dadra & Nagar Haveli and Daman upto standard 10.
4.6 In the case of the petitioner, admittedly, the petitioner is born in State of Gujarat, has studied outside State of Gujarat from classes 1 to 9 in a State Board school, studied in a school in Dadra & NaGar Haveli and therefore also eligible as per clause (iii) of sub rule (7) of Rule 4 but since he has not studied in a Jawahar Navodaya Vidyalaya upto standard VIII, he is rendered ineligible on the ground that he passed his Standard VIII in a school outside the State.
4.7 Mr. Shelat has relied on a decision in the case of Dr. Pradeep jain and Others vs. Union of India reported in (1984) 3 SCC 654 to submit that the policy of ensuring admissions though is on an All-India basis is highly desirable, that the policy of reservation based on residence requirement and institutional preference also ought to be taken care of. He submitted that the judgement would indicate that there Page 7 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER must be a preference for reservation in medical colleges for students satisfying a prescribed residence requirement and the State should not make a difference whether the qualifying examination is conducted by the State Board or the Central Board for Secondary Education. He submitted that the Apex Court in the case of Pradeep Jain (supra) categorically held that a certain percentage of reservation on the basis of residence requirement must be legitimately made in order to equalise opportunities for admission on a broader basis.
4.8 Mr. Shelat further relied on the deicsion in the case of Rohit Singhal and Others vs. Principal, Jawahar N. Vidyalaya and Others [(2003) 1 SCC 687]. This decision was sought to be relied on to suggest that the basic ideology behind the Jawahar Navodaya scheme was to promote national integrity and unity amongst children and therefore if admissions to medical colleges in the State of Gujarat is though granted to a Jawahar Navodaya Vidyalaya student who has appeared in class XII outside State of Gujarat, however, restricting the same with a qualified purpose that such a student should have passed his standard VIII in a Jawahar Navodaya scheme school within State of Gujarat strikes at the very basis of the intention which the scheme sought to achieve i.e. the laudable purpose of national integration seeking to achieve intermingling of young students of different geographical regions having different cultures and linguism.
5. Ms. Manisha Lavkumar Shah, learned Government Pleader appearing for the State has vehemently opposed the contentions raised by Mr. Shelat. Taking us to the detailed Page 8 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER affidavit in reply filed by one Dr. Raghvendra Dixit, Under Secretary of the Admission Committee, Mr. Lavkumar submitted that section 4(3) and section 4(7) cannot be read in isolation but have to be read conjointly. It is her case that in order to be eligible for admission, the rules provide that the candidate has to be a citizen of India, should have completed 17 years of age, should have passed 12 th standard qualifying examination form Gujarat Board. She further submitted that even if a student passes his examination from a Board other than Gujarat Board, namely the Central Board for Secondary Education, The Council of Indian School Certificate Examination Board etc. from a school located in the State of Gujarat, such a student is eligible for admission to the medical course.
5.1 Inviting our attention to rule 4(7) of the Rules, 2017, Ms. Shah submitted that clause (iv) of Rule 4(7) makes an exception that even if a school is located outside State of Gujarat, but if it is a Jawahar Navodaya Vidyalaya from which a student has passed his standard XII, an exception is made inasmuch as though the school happens to be located outside State of Gujarat from which the student has passed his standard XII of the Central Board for Secondary Education Board, because the student has so passed his standard XII from a Jawahar Navodaya Vidyalaya, an exception is made and for the purpose of securing admissions to medical colleges, such a student is held eligible though the school is not located in the State of Gujarat. This in Ms. Shah's submission goes to promote and recognise the concept of Navodaya Vidyalaya.
Page 9 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER5.3 Inviting our attention to page 88 of the paper book regarding the enrollment policy of admissions in Jawahar Navodaya Vidyalaya, she submitted that only the candidates from the districts where the Jawahar Navodaya Vidyalaya are opened are eligible to apply for admissions. Therefore, the admission is district specific. A candidate who has studied in a school located in an urban area in any of the classes III, VI or V will be considered for admission, with a view to see that the policy of promoting such a student and to ensure that the talent from the rural areas is able to compete further, a student of a Jawahar Navodaya Vidyalaya who has passed his standard XII, even if he does not belong to a school located in the State of Gujarat, becomes eligible for admission to medical courses. She further submitted that however the rider is that he should have studied upto standard VIII in a Jawahar Navodaya Vidyalaya scheme school in any of the schools located in State of Gujarat. Justifying this qualification, vis-a-vis a Jawahar Navodaya Vidyalaya student i.e. of his having studied in a Jawahar Navodaya Vidyalaya school in State of Gujarat she submitted that the rule is valid. In the case on hand, she submitted that since the petitioner did not study from Nursery to standard VIII in a Jawahar Navodaya Vidyalaya but in a Gujarat Board affiliated school in Dadra & Nagar Haveli, the petitioner is not entitled to admission. She submitted that rule 4(3) and rule 4(7) of the Rules, 2017 have to be read in harmony. Rule 4(3) mandates the passing of standard XII examination from institutes affiliated with the State Board, CBSE and ICSE from a school located in the State of Gujarat, the concession of permitting candidates of having appeared in standard XII from a Jawahar Navodaya Vidyalaya has to be read in context of the fact that Page 10 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER the student should have studied upto standard VIII in Jawahar Navodaya scheme school. The rule is with a view to further the noble object of the Jawahar Navodaya Vidyalaya scheme.
5.4 In support of her submissions, the learned Government Pleader relied on the following decisions:
(1) Neena Punjabhai Vadhel vs. State of Gujarat [2015 (1) GLR 676] (2) Sheetal Yashwantkumar Parmar vs. State of Gujarat [2013(3) GLR 2643.
5.5 These decisions were relied upon by Ms. Shah to support her contention that a rule which provides for exclusion of a student for admission for the purposes for medical or dental school of having undertaken his education in a school outside the State of Gujarat particularly standard XII the operation of the rule was held to be valid.
5.6 Ms. Shah also relied on a decision in the case of Kushal Ravindrakumar Pandey vs. State of Gujarat and Another in Special Civil Application No. 13877 of 2017 with Special Civil Application No. 14260 of 2017 decided by the Division Bench of this Court on 04.08.2017 wherein the validity of the rule 2017 which made students who were residents of State of Gujarat and passed the standard 10 th and XII examination from Daman ineligible for applying admission as a valid exercise. She also relied on a decision in the case of Paragbhai Luva vs. State of Gujarat and Another in Special Civil Application No. 13842 of 2017, again Page 11 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER decided by a Division Bench dated 21.08.2017 where a challenge was to rule 4(3)(ii) as ultra vires.
5.7 Based on these submissions, Ms. Shah submitted that the rule in question i.e. rule 4(7)(i) could not be declared as being ultra vires as prayed for by the petitioner and therefore the petition deserves to be dismissed.
5.8 In addition to above, Ms. Shah, learned Government Pleader relied on further to two decisions. The first is in the case of Kumari Chitra Ghosh and Another vs. Union of India and Others [1969(2) SCC 228] by contending that Article 14 forbids class legislation but it does not forbid reasonable classification and in order to pass the test of permissible classification two conditions must be fulfilled namely that the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others that are left out of the group and that the differentia must have a rational relation to the object achieved. Moreover, in the context of financial burden or other complications that may arise by disturbing set rule, it is submitted that it is for the government to run medical colleges, to lay down the criteria for eligibility and from the very nature of things it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what sources the admission will be made since it is essentially a question of policy and depends inter alia on an overall assessment and survey of requirements of residents of particular territories and other category of persons for whom it is essential to provide facilities for medical education.
Page 12 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER5.9 Another decision pressed into service is in the case of Prashant Pravinbhai Kanabar vs. Gujarat University [1990(2) GLR 1066] wherein petitioners who were medical students challenged rules governing admission to Post Graduate Degree and Diploma Medical courses since, the petitioners were outsiders in the sense that they had passed Higher Secondary Certificate Examination from other states and not from Gujarat. Though they got admission to 1st year M.B.B.S. on the basis of Premedical Entrance Test conducted by the CBSE and therefore it was contended that any admission or registration in post graduate courses can be given only by University but at the same time after considering rival contentions the Court upheld the relevant rule as not ultra vires and further admission to 1 st years MBBS class did not grant any right to admission to postgraduate courses and there was no discrimination and that even doctrine of Promissory Estoppel could not be invoked and decision taken by Expert Committee of University was not disturbed. It is further contended that studying in any school affiliated to Gujarat Board upto standard VIII will not confer any right upon the petitioner.
5.10 By taking us to the scheme of Navodaya Vidyalaya which was framed pursuant to National Policy of Education (1986), containing certain objectives, it was submitted by learned Government Pleader that it provided state wise distribution of Jawahar Navodaya Vidyalaya and at present 661 Vidyalayas are sanctioned in 28 states and 7 Union Territories and out of which 636 are functioning. The above scheme if considered in juxtaposition to Rule 4(1), (2), (3) and (7), is clear that a Page 13 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER candidate who has studied under the Jawahar Navodaya Vidyalaya Scheme up to standard VIII in any of the schools located in the State of Gujarat and thereafter studied in any of the schools located outside the State of Gujarat under the said scheme and who has passed qualifying examination from a Navodaya Vidyalaya located outside State of Gujarat and further cleared qualifying test namely NEET conducted in the current academic year and obtained marks as required are all included. Therefore in the case of a student who has passed qualifying examination from a Navodaya Vidyalaya located outside State of Gujarat is given a special favour while so is not the case with a student who has studied in a school affiliated with CBSE or ICSE as reflected in Rule 4(3) of the Rules subject to fulfilment of other requirement under Rule 4(1) and (2) of the Rules, 2017.
5.11 By placing reliance on the information booklet of NEET UG (Medical/Dental) Admission/Counselling 2019, (MBBS, BDS) in all Government and Private Medical and Dental colleges in Rajasthan for the year 2019-20, it is submitted that no such relaxation or special favour is shown for students who have studied in Navodaya Vidyalayas. That benefit is given to the candidate in Rule 4(7) of the Rules 2017 exclusively in the State of Gujarat by carving out an exception considering the benevolent scheme so framed.
6. Per contra, Mr. Mitul Shelat, learned advocate for the petitioner contended that the above submissions made by learned Government Pleader are out of context inasmuch as reference made to information booklet for colleges in Rajasthan for the admission in graduate courses on the Page 14 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER contrary provide that all those students who are bonafide residents of Rajasthan but are studying in other states are also eligible for the allotment process and no further categorization is made either on the basis of affiliation of school with either State Board or other Board and location of such school or the fact of taking education in the school situated in the State of Gujarat is the criteria for qualification to seek admission in the medical courses. In his submission reference was made to a case reported in the State of Andhra Pradesh and Others vs. U.S.V. Balram Etc. [(1972) 1 SCC 660] in the context of reference made to another decision in the case of Minor P. Rajendran vs. Staet of Madras [(1968) 2 SCR 786] where the challenge based on discrimination under Article 14 of the Constitution of India was accepted by the Apex Court by holding that allocation of seats district wise results in discrimination and there is no nexus between the district wise distribution and the object to be achieved. Therefore challenge to the rules based on Article 14 of the Constitution of India is arbitrary, unreasonable and discriminatory cannot be held to be permissible. Though State may prescribe the sources from which the candidate are declared eligible for applying for admission to medical colleges but once a common entrance test has been prescribed for all candidates on the basis of which selection is to be made, the rule providing further that 40% of the seats in the facts of that case as held by the Supreme Court will have to be reserved for H.S.C candidates is arbitrary.
7. Before we appreciate the controversy at hand, it will be appropriate to reproduce the relevant rules under challenge.
Page 15 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDERRules 4(1), (2), (3) & (7) of The Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 read as under:
4. Eligibility for Admission:-
(1) be a citizen of India:
Provided that a candidate whose parents are origin of India,and do not hold Indian citizenship and have applied for Indian citizenship, shall produce the proof of submission of such application to the Admission Committee before the date of counseling. Such candidates shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian citizenship on or before 31st July of next year, failing which their provisional admission shall be treated as cancelled without any notice.
Provided further that candidates seeking administered on Non-Resident Indian seat shall be Non-Resident Indian or children or wards of a Non-Resident Indian.
(2) have completed 17 years of age on the 31st December of the Academic year for which the admissions are being conducted.
(3) Have passed the 10th and 12th qualifying examination with "B-group"or "AB-group"
from
(i) The Gujarat Board; or
(ii) The Central Board of Secondary Education provided that the school in which the candidate has studied, is located in the State of Gujarat; or
(iii) The Council of Indian School Certificate Examinations Board, New Delhi provided that the school in which the candidate has studied, is located in the State of Gujarat:
Provided that a candidate seeking admission on Non-Resident Indian seat must have passed the qualifying examination from Page 16 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER anywhere with Physics, Chemistry and Biology (7) A candidate who has,
(i) studied under Jawahar Navodaya Vidyalaya Scheme up to Standard VIII in any of the schools located in the State of Gujarat and
(ii) thereafter studied in any of the schools located outside the State of Gujarat under the said scheme, and
(iii) passed qualifying examination froma Navodaya Vidyalaya located outside Gujarat State and
(iv) have qualified in the NEET, conducted in the current academic year and obtained marks under clause A of sub-rule (5) of rule 4 shall be eligible for admission and his candidature shall be included int eh merit list of MBBS, BDS, BAMS, BHMS and BNAT courses as under clause (a) of Rule 11 and for other courses in the merit list of Central Board as prescribed in clause (b) of rule 11.
Explanation - " Jawahar Navodaya Vidyalaya Scheme started during the year 1985-86 by the Government of India in accordance with the National Policy of Education and managed by Navodaya Vidyalaya Samiti, an autonomous organization under the department of Education, Ministry of Human Resource Development."
[Emphasis Supplied]
8. Here is a case where the petitioner, a tribal, is born in Gujarat and domiciled in Gujarat. From 2003-2014, he studied from Nursery to Class VII from Dadra's Little Star Academy, a school affiliated to the Gujarat Secondary Education Board. For classes IX to XII, he opted to go to a Jawahar Navodaya Vidyalaya in Silvassa, Union Territory of Page 17 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER Dadra and Nagar Haveli.
9. For being eligible for admission as per Rule 4(3) of the Rules, 2017 together with its amendments, a candidate shall be :
a) a citizen of India - which the petitioner is
b) completed 17 years of age - the petitioner is within the age bracket
c) a domicile of Gujarat or born in Gujarat - the petitioner is both.
9.1 The petitioner stands ineligible for medical admission in Gujarat on account of the following disqualification:
a) He has not passed his standard XII examination from Gujarat Board.
b) The Central Board of Secondary Education from which he has passed his standard XII is from a school, the Navodaya Vidyalaya located outside State of Gujarat.
10. The petitioner, would have been saved from the rigors of being disqualified of having passed his standard XII from a Navodaya Vidyalaya school located outside State of Gujarat in accordance with Rule 4(7)(iii) of the Rules, 2017, however, since he, in addition thereto, has not studied under Jawahar Navodaya Vidyalaya scheme upto standard VIII in any school located in State of Gujarat, he stands ineligible as per Rule 4(7)(i) of the Rules, 2017.
10.1 Rule 4(3)(i) of the Rules, 2017 provides that a student Page 18 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER who has passed standard XII examination from the Gujarat Board is eligible. The eligibility, therefore, is Board affiliated i.e. Gujarat. The school, irrespective of its location, therefore, has to be affiliated to the Gujarat Board. Unlike the requirement of such a school having to be located in State of Gujarat for other Board affiliations is not present. The petitioner, all through, from Nursery to standard VIII has been in a school outside Gujarat but affiliated to the Gujarat Board. For classes IX to XII, he opted for a Navodaya Vidyalaya school in Silvassa, a neighbouring Union Territory. The exception that even if the Board to which such a school was affiliated was CBSE and though the school is located outside State of Gujarat, made the petitioner, otherwise eligible as Rule 4(7)(iii) of the Rules, 2017 was an exception to Rule 4(3)(ii) (location of a school in Gujarat) but since his pre- 9th standard schooling was not in a Navodaya Vidyalaya school located in State of Gujarat, he stood ineligible.
10.2 Therefore, though the petitioner is Gujarat born, a domicile of Gujarat, was in a school affiliated to a Gujarat Board up to standard VIII and also a Navodaya Vidyalaya standard XII pass out and qualified in NEET also, only because he studied not in a Navodaya Vidyalaya in Gujarat pre-standard IX, he stands disqualified.
11. Reading of the prospectus for Jawahar Navodaya Vidyalaya, the objective of the scheme is to provide free education. The eligibility conditions and composition of the test is at the stage of class VI/class IX and class XI. It is designed to ensure that talented children from rural areas are able to compete without facing any disadvantage. Special Page 19 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER care is taken to see that students from far flung areas get free education. There are therefore three stages, in which, a child can adopt to get into a Navodaya Vidyalaya on the basis of an eligibility test at the level of classes VI, IX and XI.
12. Let us therefore test Ms. Shah's submission that Rule 4(7)(iii) which provides an exception inasmuch as a CBSE student of a school, even if located outside State of Gujarat, qualifies, provided he has done such XII standard from Navodaya Vidyalaya. According to her, such an exception in favour of Navodaya student does in fact fulfill the object of the scheme. In her submission, but for such a student having passed from a CBSE Board located outside State of Gujarat would otherwise be ineligible but only because he is a student having undergone standard IX to XII from Navodaya Vidyalaya he would be rendered eligible. There is no quarrel on this count. However, such a student has to have an added eligibility of having passed and studied up to standard VIII in a Jawahar Navodaya school from State of Gujarat.
12.1 From the scheme of the Jawahar Navodaya Vidyalaya and in accordance with the judgement of Rohit Singhal (supra), it is evident that the object of the scheme is the laudable purpose of national integration which the scheme seeks to achieve. It is with a purpose to achieve intermingling of students of regions having different cultures and linguism. Moreover, from the reading of the eligibility conditions and composition of tests, as stated hereinabove, what is evident is that a child pursuing his school education, looking to his background, can opt for getting into a Jawahar Navodaya Vidyalaya on the basis of a selection test, either at Page 20 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER class VI or Class IX or class XI.
12.2 In the present case as the petitioner is born in State of Gujarat and a domicile in State of Gujarat and has studied from Nursery to standard VIII in a school affiliated to Gujarat Board, till such stage, he fulfills and falls within the ambit of Rule 4(1),(2) and (3) of the Rules, 2017. He opted for getting into a Navodaya Vidyalaya at the second stage of eligibility i.e. standard IX. The exception to Rule 4(3)(ii) as carved out under Rule 4(7)(iii) would work. However, because as per Rule 4(7)
(i) of the Rules, 2017, he has not studied in a Navodaya Vidyalaya up to standard VIII, such single instance would render him ineligible.
13. Admissions to Navodaya Vidyalaya can be at any stage of the three prescribed. The petitioner opted to get in at stage II so that he could fare better at NEET with the education at such a school. The Jawahar Navodaya scheme begins at Standard VI, therefore just because for three years the petitioner has not studied in a Jawahar Navodaya though otherwise has been a student of the Gujarat Board up to standard VIII ought not to make him ineligible merely on a single instance of not being in a stint with Navodaya Vidyalaya upto standard VIII in State of Gujarat. The option to get into Navodaya Vidyalaya Scheme is available at Standard VI, IX and XI. Working of Rule 4(7)(i) with Rule 4(7)
(iii) of the Rules, 2017 insofar as it restricts admissions to medical courses merely because of not undergoing education in a Navodaya Vidyalaya Scheme upto standard VIII in State of Gujarat is contrary to the intent of the scheme.
Page 21 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER14. Even in the facts of the case, which are unique, the petitioner born and a domicile of State of Gujarat studied in a school affiliated to Gujarat Board is sought to be singled out and not being able to secure the benefit of Rule 4(7)(iii) to the fullest, only because of the incapacity of otherwise not applying for a Navodaya Vidyalaya of Gujarat upto standard VIII. Rule 4(7)(i) of the Rules, 2017 therefore cannot be said to work in conformity with Rule 4(7)(iii) because, in the facts of the case, it does make it unworkable, when otherwise the petitioner is eligible. A tribal, from Gujarat, of Gujarat, studied in Gujarat Board upto standard VIII is denied the benefit only on the ground that he was not in a Navodaya Vidyalaya upto standard VIII. The decisions cited by Ms. Shah in context of the rules will have no applicability as the rules in the present context are tested in case of a student of Gujarat viz-a-viz the Navodaya Vidyalaya Scheme. Similarly, the decisions relied on by Ms. Shah, in the case of Kumari Chitra Ghosh (supra) and Prashant Kanabar (supra) are not applicable in the facts of this case.
14.1 Reliance placed by Ms. Shah on the booklet of NEET UG (Medical/Dental) Admission/Counselling 2019, (MBBS, BDS) in all Government and Private Medical and Dental colleges in Rajasthan for the year 2019-2020 is misconceived inasmuch as the same provides the benefit of admissions to all those students who are domicile of Rajasthan even if they are studying in other states. No differentiation or categorization is made on the basis of affiliation of school with either State Board or other Board. There is no categorization also on the basis of location of such school. Therefore, the criteria for admissions to UG (Medical/Dental) Admission/Counselling Page 22 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER 2019, (MBBS, BDS) in all Government and Private Medical and Dental colleges in Rajasthan is purely on the basis of 'Domicile'. The above provision on the contrary rules out discrimination on the basis of school, Board and location where a candidate has studied and on the contrary it helps the petitioner who is a domicile of the State of Gujarat. In addition to above, in the present case, i.e. State of Gujarat there are many classifications and sub-classifications and therefore the reliance placed by Ms. Shah on the booklet cannot be accepted.
15. Therefore, Rule 4(7)(i) of the Rules, 2017 which mandates a candidate to have studied under Jawahar Navodaya Vidyalaya scheme upto standard VIII in any of the schools located in the State of Gujarat takes away the advantage provided under Rule 4(7)(iii) though such a candidate is a citizen of India, has completed 17 years of age on 31st December of the academic year for which the admissions are being conducted, has passed standard X examination from a school affiliated to Gujarat Board, cleared qualifying entrance examination NEET as provided under Rule 4(1), (2) and (3) of the Rules, 2017 and has no nexus with the objective sought to be achieved namely to confer the benefit upon a student having studied in a Jawahar Navodaya Vidyalaya Scheme and depriving him solely on the ground that such a candidate has not studied in Navodaya Vidyalaya School up to Standard VIII in any of the Navodaya schools located in the State of Gujarat. The above sub-rule 4(7)(i) cannot be said to be a valid classification solely based on requirement of studying up to standard VIII in any of the schools located in the State of Gujarat and also contrary to the Page 23 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER concept of domicile of the particular State. The petitioner herein fulfills all the eligibility criteria namely born in Gujarat, domicile of Gujarat and also passed examination up to standard VIII from the school with affiliation to Gujarat Board and also fulfills all other relevant criteria.
15.1 Rule 4(7)(i) is a mandatory pre-requisite qualification along with Rule 4(7)(ii),(iii) and (iv) and non-fulfillment of such pre-requisite qualification renders all other qualifications under Rule 4(1),(2),(3) and Rule 4(7)(ii) and (iii) nugatory as qualifications prescribed under Rule 4(7)(i), (ii), (iii) and (iv) are linked with each other though a candidate is born and having a domicile, both of the State of Gujarat. This very fact strikes at the root of equality resulting into discrimination as in the facts of the case of the petitioner is denied admission in medical course solely on the ground of not having studied in Navodaya School up to standard VIII located in the State of Gujarat though having domicile and taken birth in the State of Gujarat. Therefore, Rule 4(7)(i) of the Rules, 2017 is not only arbitrary but also discriminatory and violative of Article 14 of the Constitution of India.
In other words, what is sought to be contended as beneficial piece of legislation and carving out an exception to Rule 4(3)(ii) and (iii) so as to grant benefit to a Navodaya candidate in Rule 4(7) of the Rules, 2017 in fact deprives such a Navodaya candidate of basic right accrued under Rule 4(1), (2) and (3) of the Rules, 2017.
15.2 Further, a close reading of Rule 4(7)(i) and 4(7)(ii) though operate in the same field namely of prescribing qualification of a candidate who has studied in Jawahar Page 24 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019 C/SCA/11834/2019 ORDER Navodaya Vidyalaya Scheme, but at the same time work against each other and what is sought to be conferred by Rule 4(7)(iii) is taken away by Rule 4(7)(i) of the Rules, 2017. The above prescription of qualification i.e. Rule 4(7)(i) particularly therefore is unjust, unreasonable, arbitrary and to that extent we hold that it is ultra vires to Article 14 of the Constitution of India.
16. We therefore hold Rule 4(7)(i) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, insofar as it requires a student to have studied under Jawahar Navodaya Scheme upto standard VIII in any of the schools located in the State of Gujarat as ultra vires. We accordingly quash and set aside the same. We direct the respondent authorities to include the name of the petitioner in the provisional merit list for Medical, Dental, Homeopathy, Ayurvedic and Naturopathy courses for the year 2019, NEET UG-2019 based ST merit list. We also make it clear that what is held to be impermissible and illegal for a candidate who has studied in Jawahar Navodaya Vidyalaya is not to be interpreted and extended for other candidates who have not studied in Navodaya Vidyalaya. No costs.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 25 of 25 Downloaded on : Sat Jul 27 01:49:44 IST 2019