Gujarat High Court
Patel Kruti Dilipkumar & 3 vs Page 1 Of 67 on 24 April, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
C/SCA/17366/2013 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17366 of 2013
With
MISC.CIVIL APPLICATION NO. 2770 of 2013
In
SPECIAL CIVIL APPLICATION NO. 16516 of 2013
With
MISC.CIVIL APPLICATION NO. 2771 of 2013
In
SPECIAL CIVIL APPLICATION NO. 16517 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ PATEL KRUTI DILIPKUMAR & 30....Petitioner(s) Versus Page 1 of 67 C/SCA/17366/2013 CAV JUDGEMENT STATE OF GUJARAT & 9....Respondent(s) ================================================================ Appearance:
MR DHAVAL DAVE, SR.ADVOCATE with MR PA JADEJA, ADVOCATE for the Petitioner(s) No. 1 - 31 MR PARTH BHATT, AGP for the Respondent(s) No. 1 MR DIPEN DESAI, ADVOCATE for the Respondent(s) No. 3 MR MITUL K SHELAT, ADVOCATE for the Respondent(s) No. 4 - 10 NOTICE SERVED BY DS for the Respondent(s) No. 2 ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 24/04/2014 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This writ petition has been preferred by the students. Their admission on the vacant seats in the current Academic Year 2013-2014 to the post graduate course in Pharmacy, viz. M.Pharm. is objected to by the respondent no.2 Admission Committee.
According to the respondent no.2 Admission Committee, as the petitioners have passed the qualifying examination of the B.Pharm. Course at the level of graduation in Pharmacy by appearing in the supplementary examination for the same Page 2 of 67 C/SCA/17366/2013 CAV JUDGEMENT conducted by the respondent no.3 University, they have rendered themselves ineligible for admission to the M.Pharm. Course in the current Academic Year 2013-2014.
Such action of the respondent no.2 Admission Committee has led the petitioners to file the present petition under Article 226 of the Constitution of India.
It appears that the principal grounds urged in the petition are twofold. First, there is no express provision in the concerned rules rendering the petitioners as ineligible for admission to the M.Pharm. Course on the ground that the petitioners have cleared the qualifying examination of the B.Pharm. by appearing at the supplementary examination. Secondly, even if such provision is to be read into the concerned rules by necessary implication, the concerned rule deserves to be declared as ultra vires Article 14 of the Constitution of India or in the alternative the concerned rule deserves to be read down so as to give a meaningful and purposive interpretation.
In such circumstances as referred to above, the petitioners have prayed for the following reliefs : Page 3 of 67
C/SCA/17366/2013 CAV JUDGEMENT "(A) That this Hon'ble Court be pleased to declare Rule 20(2) of the Master of Engineering and Technology and Master of Pharmacy Courses (Regulation of Admission and Payment of Fees) Rules, 2013 as ultra vires the Constitution of India to the extent the said Rule 20(2) is construe by the Respondents, for the purpose of admission to M.Pharm course, as rendering ineligible the students who have passed the qualifying examination in the discipline of Pharmacy at the level of graduation by appearing at the Supplementary (Remedial) examination. (B) That in the alternative, this Hon'ble Court be pleased to read down the said Rule 20(2) of the Master of Engineering and Technology and Master of Pharmacy Course (Regulation of Admission and Payment of Fees) Rules, 2013 by construing the same as making it permissible for the colleges to offer vacant seats thereunder for M.Pharm course to the students who have passed qualifying examination in the discipline of Pharmacy at the level of graduation by appearing at the Supplementary (Remedial) examination only after offering the same in the first instance to the students who are not falling in the category of students referred to herein and who are otherwise eligible for admission under the said Rule 20(2) as it stands pursuant to the judicial pronouncement of this Hon'ble Court in Special Civil Application Page 4 of 67 C/SCA/17366/2013 CAV JUDGEMENT No.13607 of 2013.
(C) That pending admission, hearing and final disposal of the present petition, this Hon'ble Court be pleased to permit the petitioners to continue with their studies for M.Pharm course pursuant to and in furtherance of their admissions thereto. (D) That this Hon'ble Court be pleased to pass such other and further relief as the facts of the case may warrant."
The case made out by the petitioners in the petition may be summarized as under :
The petitioners are the students. They are presently prosecuting their studies for the M.Pharm. Course pursuant to their provisional admission by the concerned colleges on the vacant seats and also on the strength of the interim order passed by this Court, protecting their admission subject to the final outcome of the petition.
The respondent no.1 is the State of Gujarat. The Education Department of the State Government looks after the field of technical education in the State. Page 5 of 67
C/SCA/17366/2013 CAV JUDGEMENT The respondent no.2 Admission Committee is a body constituted under Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. The Principal object of constituting the Admission Committee is to regulate the process of admission in various technical courses in the State so as to ensure a merit based admission process in a fair and transparent manner.
The respondent no.3 Gujarat Technological University is the central university in the State for the technical courses. All the colleges in the State imparting education in respect of technical courses are affiliated to the respondent no.3 University.
The respondent nos.4 to 10 are the colleges who have admitted the petitioners for the M.Pharm. Course in the current Academic Year 2013-2014. The respondent nos.4 to 10 colleges are affiliated to the respondent no.3 University.
The petitioners appeared at the final eight semester examination for the B.Pharm. Course by appearing at the Supplementary (Remedial) Examination for the same Page 6 of 67 C/SCA/17366/2013 CAV JUDGEMENT conducted by the respondent no.3 University. The supplementary examination was to commence from 12th September 2013. All the petitioners appeared in the said supplementary examination. The result thereof was declared on 11th October 2013 and indisputably all the petitioners cleared the said supplementary examination.
On 26th June 2013, the respondent no.1 State through its Education Department promulgated rules called "The Master of Engineering and Technology and Master of Pharmacy Courses (Regulation of Admission and Payment of Fees) Rules, 2013"
(for short "the Rules"). The said Rules were framed by the respondent no.1 State in exercise of the power conferred upon it under Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission & Fixation of Fees) Act, 2007 (for short "the said Act"). The process of admissions in the State in respect of the M.Pharm. Course was to be governed by the said Rules.
In view of the above, the admission process for the M.Pharm. Course for the current Academic Year 2013-2014 was initiated by the respondent no.3 University pursuant to the said Rules on 9th July 2013. On 27th August 2013, the Page 7 of 67 C/SCA/17366/2013 CAV JUDGEMENT respondent no.2 Admission Committee concluded the process of admission for the M.Pharm. Course. Thereupon, it was found that as many as 3297 seats out of total 4920 seats remained vacant.
In view of the above, the respondent no.2 Admission Committee issued a communication dated 27th August 2013 to all the colleges for the M.Pharm. Course calling upon them to fill up the vacant seats at their level directly under Rule 20 of the said Rules latest by 31st August 2013. According to the Rule 20 of the said Rules, the vacant seats are to be filled in by the concerned colleges directly by following the directions issued for the same by the respondent no.2 Admission Committee.
As the said Rule 20 and the aforesaid communication dated 27th August 2013 issued by the respondent no.2 Admission Committee permitted filling up of the vacant seats by the concerned colleges by offering the same to the students who had appeared at one of the entrance tests in the order of preference being GPAT in the first instance and CET in the alternative, the constitutional validity of the said Rule 20 came to be challenged by the Association of Self Financing Page 8 of 67 C/SCA/17366/2013 CAV JUDGEMENT Colleges by filing a writ petition being Special Civil Application No.13607 of 2013. In respect of the same, this Court passed an order dated 30th August 2013, pursuant to which the colleges concerned imparting education of the M.Pharm. Course were permitted to fill up the vacant seats by offering the same to the students who had not appeared at the said entrance test but, who had passed the qualifying examination of the B. Pharm. with the minimum requisite marks.
The respondent no.2 Admission Committee in due deference to the aforesaid referred interim order issued another communication dated 7th September 2013, inter alia, to all the colleges concerned with the M.Pharm. Course by which the last date for filling up the vacant seats on the basis of the said interim order came to be extended upto 11th September 2013.
Since the aforesaid supplementary examination was to commence w.e.f. 12th September 2013 and as it was not possible to declare the result of the said supplementary examination before the cut off date i.e. 11th September 2013 prescribed by the respondent no.2 Admission Committee for filling up the vacant seats, the petitioners herein were granted Page 9 of 67 C/SCA/17366/2013 CAV JUDGEMENT admissions provisionally by the respondent nos.4 to 10 colleges with a clear understanding that their admissions would be confirmed only if the petitioners were to pass the B.Pharm. Course by appearing at the supplementary examination.
Accordingly, the petitioners started prosecuting their studies for the M.Pharm. Course. Thereafter, the result of the supplementary examination was declared on 11th October 2013. All the petitioners were declared as passed at the said supplementary examination for the B.Pharm. Course. All the petitioners were issued a Provisional Degree Certificate by the respondent no.3 University. The students who passed the B.Pharm. Course at the regular examination without taking recourse to the supplementary examination were also awarded the similar provisional degree certificate. Such a degree certificate is called 'provisional' inasmuch as the same is to hold the field till the formal degree is conferred upon the students at the convocation.
The aforesaid was followed by the final judgment and order dated 14th October 2013 passed by this Court in Special Civil Application No.13607 of 2013. This Court vide its order Page 10 of 67 C/SCA/17366/2013 CAV JUDGEMENT dated 14th October 2013 read down Rule 20(2) of the Rules so as to make it permissible for the colleges offering the M.Pharm. Course to admit students on the vacant seats who had not appeared for any one of the entrance tests referred to above.
Upon declaration of the result of the supplementary examination on 11th October 2013, declaring the petitioners as having cleared the B.Pharm. Course and also upon pronouncement of the judgment by this Court on 14th October 2013 declaring that the students who had not appeared at the entrance test were eligible for admission to the M.Pharm. Course on the vacant seats, it was expected from the respondent no.2 Admission Committee to endorse the admissions of the petitioners, but unfortunately, was not done until the result of the supplementary examination was declared. Till the result of the supplementary examination was declared, the petitioners were not having any reservation to the stance of the respondent no.2 Admission Committee in not endorsing their admission, as till that point of time, it was not certain whether the petitioners could be said to have passed the qualifying examination of the B.Pharm. or not.
However, despite the above, much to the dismay of the Page 11 of 67 C/SCA/17366/2013 CAV JUDGEMENT petitioners, when the respondent nos.4 to 10 colleges approached the respondent no.2 Admission Committee with a request to endorse the admissions of the petitioners, the same was declined on the premise that as the petitioners passed the qualifying examination of the B.Pharm. by appearing at the supplementary examination, the petitioners rendered themselves ineligible for admission to the M.Pharm. Course on the vacant seats under Rule 20(2) of the said Rules in the current Academic Year 2013-14.
According to the petitioners such decision was never conveyed in writing either to the petitioners or to the respondent nos.4 to 10 Colleges by the Admission Committee. It was orally conveyed to the respondent nos.4 to 10 colleges. The petitioners were left with no other option but to file the present writ applications.
I. Developments after the filing of the petition : In the first instance, this Court passed an interim order dated 29th November 2013, which reads as under : Page 12 of 67
C/SCA/17366/2013 CAV JUDGEMENT "Notice returnable on 6th December 2013. Since Mr.Bhatt has appeared on behalf of the respondent, we fix this matter for hearing on 6th December 2013. Affidavit, if any, be given in the meantime. After hearing Mr.Dave, the learned advocate appearing on behalf of the petitioner and after going through the materials on record, we find that the petitioner has made out a strong prima facie case to have an interim order in terms of paragraph 22(C) with the stipulation that this interim order will not create any right in favour of the petitioners in the event ultimately this application is dismissed. We pass such order accordingly. Direct service is permitted."
On the strength of the aforesaid interim order even as on date, the petitioners are prosecuting their studies for the M.Pharm. Course.
Thereafter, as the examination for the first semester of the M.Pharm. Course to be conducted by the respondent no.3 University was scheduled to commence w.e.f. 21st December 2013, this Court passed an order dated 19th December 2013, which reads as under :
"Let the matters appear for further hearing on 16th January 2014.
Page 13 of 67
C/SCA/17366/2013 CAV JUDGEMENT After hearing the learned counsel for the parties and after going through the materials on record, we find that the petitioners have made out a strong prima facie case in the matter and once in this type of a case, prima facie case is found, the balance of convenience and inconvenience should be in favour of allowing the candidates to appear at the examination when the examination is going to commence day after tomorrow. It is needless to mention that the petitioners will not claim any equity and, in the event, finally these applications fail they will not be entitled to get the benefit of the result even if they pass. We, therefore, direct the Examination Committee and the University to allow the present petitioners in these applications to appear at the examination which is going to commence day after tomorrow on condition that the petitioners must have attended 75% of the total number of classes held in the respective college and that the college has forwarded the names of the petitioners to the Admission Committee for approval.
We also add the respective colleges as additional respondents. The petitioners are directed to serve a copy of the applications upon the college- authorities. This order will cover the candidates in respect of all these Applications.
Since this order has been passed in the presence of the Deputy Registrar of the concerned University, Page 14 of 67 C/SCA/17366/2013 CAV JUDGEMENT the University will act upon this order. Similarly, it will be also the duty of Mr.Bhatt, the learned AGP to communicate to his client about this order. Direct service is permitted."
Thus, from the above it is clear that the petitioners were permitted to appear at the said examination of the first semester for the M.Pharm. Course subject to two conditions; first, that the student's minimum attendance should be to the extent of 75%, and secondly, forwarding of the names of the petitioners for endorsement by the respondent no.2 Admission Committee.
In view of the above, the petitioners approached the respondent nos.4 to 10 colleges who were not parties to the Special Civil Application Nos.17366 of 2013 until the passing of the order dated 19th December 2013 with a request to do the needful in terms of the order dated 19th December 2013 so that the petitioners could be permitted to appear at the examination for the first semester of the M.Pharm. Course which was scheduled to commence w.e.f. 21st December 2013.
Page 15 of 67
C/SCA/17366/2013 CAV JUDGEMENT The respondent nos.4 to 10 colleges, apropos the request of the petitioners, approached the respondent no.2 Admission Committee on 20th December 2013 with the necessary details with regard to the admissions of the petitioners so that upon proper verification thereof the respondent no.2 Admission Committee could endorse their admissions. However, the respondent no.2 Admission Committee declined to endorse the admissions of the petitioners on the ground that the details with regard to the admissions of the petitioners were not forwarded by the respondent nos.4 to 10 colleges to the Admission Committee prior to 11th September 2013 which is stated by the Admission Committee as the stipulated last date for submission of such details by the concerned colleges for endorsement of admissions on the vacant seats.
In light of such a stance of the Admission Committee, it not only declined to endorse the admissions of the petitioners but also instructed the respondent no.3 University not to permit the petitioners to appear at the first semester examination for want of the necessary endorsement of their admissions by the respondent no.2 Admission Committee.
Even otherwise, it appears that according to the procedure followed by the respondent no.3 University, the Page 16 of 67 C/SCA/17366/2013 CAV JUDGEMENT endorsement of admissions by the respondent no.2 Admission Committee is always treated as a condition precedent by the respondent no.3 University for enrolling the students on its Roll, and without such enrollment, the concerned students would not be eligible to appear at any examination to be conducted by the University. However, despite the above, the respondent nos.4 to 10 colleges, at the behest of the petitioners, made a special request to the University to permit the petitioners to appear at the first semester examination as the Admission Committee was wrong in its approach and further as the petitioners were otherwise possessing the minimum attendance to their credit.
It appears that the respondent no.3 University did not agree to the same. In view of this, the certification by the respondent nos.4 to 10 colleges regarding the attendance of the petitioners on the basis of the Attendance Register and the verification thereof by the respondent no.3 University was inconsequential. Therefore, such certification of attendance with the necessary data in support thereof was not submitted to the respondent no.3 University by the respondent nos.4 to 10 colleges.
Page 17 of 67
C/SCA/17366/2013 CAV JUDGEMENT Resultantly, in view of the aforesaid, despite an order dated 19th December 2013 passed by this Court permitting the petitioners to appear at the first semester examination for the M.Pharm. Course, the petitioners were not able to appear for the same.
In light of the aforesaid developments, the matter has now reached to a stage wherein the petitioners would now be required to appear at the supplementary examination for the first semester for M.Pharm. Course as they missed the regular examination for the first semester of M.Pharm. Course for no fault on their part.
In the course of hearing of this petition, it was clarified by the respondent no.3 University that there would be a supplementary examination for the first semester of M.Pharm. Course in May, 2014 and the petitioners would be eligible to appear at the same if they succeed in the writ petition.
II. Submissions on behalf of the petitioners :
Mr. Dhaval Dave, the learned senior advocate appearing for the petitioners, vehemently submitted that there is nothing in the Rule 20(2) of the Rules expressly prohibiting the Page 18 of 67 C/SCA/17366/2013 CAV JUDGEMENT students who have passed the qualifying examination of the B.Pharm. Course by appearing at the supplementary examination for the same from seeking admission to the M.Pharm. Course. According to Mr.Dave, even there is no other rule in the said Rules providing for such a prohibition. Therefore, Mr.Dave submits that the insistence on the part of the Admission Committee to read into the Rule 20(2) a provision of such a nature is wholly unwarranted. Mr.Dave submits that if the students who passed the qualifying examination by appearing at the supplementary examination for the same are to be denied admission till the next Academic Year, the Rules in question would have definitely made an express provision for the same.
Mr. Dave submits that without prejudice to the aforesaid that if such a provision is to be read into the Rule 20(2) as suggested by the Admission Committee, the Rule 20(2) would render as ultra vires the mandate of Article 14 of the Constitution of India. The reason being that such implied reading of the provision in the Rule 20(2) has the effect of creating a class within a class without any intelligible differentia having any nexus with the object to be achieved by such a classification.
Page 19 of 67
C/SCA/17366/2013 CAV JUDGEMENT Mr.Dave submits that all the students who passed the qualifying examination of the B.Pharm. Course in the first instance by appearing at the regular examination conducted by the University in May, 2013 and the students like the petitioners who passed the B.Pharm. Course by appearing in the supplementary examination thereof conducted by the University in September, 2013 would qualify as having passed the B.Pharm. Course in the Academic Year 2012-13 inasmuch as all of those would be conferred the degree in the same convocation.
Mr.Dave submits that the Degree Certificate to be issued to all those students would be similar in all respects. He would submit that even the Provisional Degree Certificate issued to the petitioners pending the conferment of the Degree Certificate at the convocation has no distinguishing feature as against the Provisional Degree Certificate issued to the students who passed the B.Pharm. Course in the first instance by appearing at the regular examination thereof.
Mr.Dave submits that the respondent University itself has clarified that if a student who clears the course with the aid of supplementary examination is able to receive any medal on Page 20 of 67 C/SCA/17366/2013 CAV JUDGEMENT the basis of the marks obtained, such a student would not be denied such medal or the honours on the premise that he or she passed the said course by appearing at the supplementary examination.
According to Mr.Dave, considering the matter from any angle, there is no escape from the conclusion that the students who passed the B.Pharm. Course in the first instance by appearing in the regular examination in May, 2013 and the students who passed the same by appearing at the supplementary examination in September, 2013 form one homogeneous class.
Mr.Dave submits that the respondent no.3, in its affidavit- in-reply, has made an attempt to draw a distinction between the students who passed the B.Pharm. Course in the first instance by appearing in the regular examination and the students who passed the very same course by appearing at the supplementary examination thereof by stating that the supplementary examination is meant for the purpose of ensuring that the students could avail a job on the basis of their B.Pharm. qualification without wasting one year, and therefore, the same is not meant for the purpose of permitting Page 21 of 67 C/SCA/17366/2013 CAV JUDGEMENT the students to prosecute further studies without wasting one year. However, Mr.Dave submits that in support of such a stance, the University has not been able to place on record any such rule framed by the University.
Mr.Dave submits that in such circumstances referred to above, the petition deserves consideration as career of the students is at stake and they may be permitted to appear in the supplementary examination to be conducted in the month of May.
III. Submissions on behalf of the respondent nos.4 to 10 Colleges :
Mr.Mitul Shelat, the learned advocate appearing for the respective colleges, adopted practically all the submissions of Mr.Dave and has nothing more to add.
IV. Submissions on behalf of the Respondent no.2 Admission Committee :
Mr.Parth Bhatt, the learned A.G.P. appearing for the Admission Committee, has vehemently opposed this petition. Mr.Bhatt submits that as the supplementary examination was Page 22 of 67 C/SCA/17366/2013 CAV JUDGEMENT to commence after the cut-off date for admission on the vacant seats being 11th September 2013 prescribed by the Committee under the Rules, the petitioners were not eligible for admission to the M.Pharm. Course as on the said cut-off date. To put it in other words, Mr.Bhatt submits that the petitioners were not possessing the requisite qualification of having passed the B.Pharm. Course as on the said cut-off date for admission to the M.Pharm. Course and their subsequent acquisition of the requisite qualification by appearing at the supplementary examination after the expiry of the cut-off date was of no avail to make them eligible for admission to the M.Pharm. Course with a retrospective effect.
In such circumstances referred to above Mr.Bhatt would submit that there being no merit in the petition, the same deserves to be rejected.
V. Submissions on behalf of respondent no.3 Gujarat Technological University :
Mr.Dipen Desai, the learned advocate appearing for the University, submits at the very outset that the admission process is predominantly within the domain of the Admission Page 23 of 67 C/SCA/17366/2013 CAV JUDGEMENT Committee and the University has no role to play.
Mr.Desai has invited our attention to the fact that the B.Pharm. Course is a four years course consisting of eight semesters. The semester nos.1, 3, 5 and 7 are held from June to December every year and the regular semester examination is held in the month of December whereas, the remedial examination is held in the month of June. Mr.Desai further submits that so far as the semester nos.2, 4, 6 and 8 are concerned, the said semesters are conducted from December to June and the regular semester examination is taken in the month of June whereas, the remedial examination is taken in the month of December.
Mr.Desai submits that so far as the last semester i.e. eight semester is concerned, the regular examination is taken in June whereas, the remedial examination would be taken in December. He submitted that last year the University had received various representations from the students requesting that so far as the last semester is concerned, if the remedial examination is taken earlier, then the students who are able to pass the remedial semesters examination can be conferred the degree in the convocation which is ordinarily held in the month Page 24 of 67 C/SCA/17366/2013 CAV JUDGEMENT of January and thereby the said students can apply for job a little early. According to Mr.Desai, it was also urged by the students that as the eight semester students had completed their study they had not to attend any classes and, therefore, requested to conduct the remedial examination earlier. Mr.Desai submitted that therefore, the students like the petitioners appeared in the remedial examination of the eight semester.
Mr.Desai submits that considering the request of the students, the University decided to hold the remedial examination of the eight semester earlier and, therefore, in 2012 the remedial examination was held in the month of October, 2012 whereas, in the current Academic Year the remedial examination of the eight semester was held from 12th September 2013. He submits that therefore, the students like the petitioners who appeared in the remedial examination of the eight semester which commenced from 12th September 2013 were admitted in the M.Pharm. Course by the college on 11th September 2013 i.e. even before they actually appeared for the remedial examination.
Mr.Desai invited our attention to Rule 5 of the Admission Page 25 of 67 C/SCA/17366/2013 CAV JUDGEMENT Rules framed by the State Government by way of the Notification dated 26th June 2013 which provides that a student shall be eligible for admission if such student has passed the qualifying examination of the B.Pharm. with 50% marks. Mr.Desai submits that the admission to the M.Pharm. Course commenced in the month of July, 2013 and the academic term started from 1st August 2013. He submits that when the academic session started on 1st August 2013, the petitioners were not at all eligible as they had failed in the final semester examination of the B.Pharm.
Mr.Desai submitted that inspite of not being eligible to have been admitted by the college on 11th September 2013, the colleges admitted the students knowing fully well that they had not even appeared in the remedial examination which had started from 12th September 2013.
In such circumstances, Mr.Desai prays that there being no merit in the petition, the same deserves to be rejected.
VI. Relevant Rules and Regulations :
Before adverting to the rival submissions canvassed on either side, we deem it appropriate to look into few relevant Page 26 of 67 C/SCA/17366/2013 CAV JUDGEMENT rules and regulations governing the issue raised in the petition.
In exercise of the powers conferred by sub-section (1) of Section 20 read with Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007, the Government of Gujarat framed rules to regulate admission to the first year of the Master of Engineering and Technology and Master of Pharmacy Courses and Payment of Fees viz. the Master of Engineering and Technology and Master of Pharmacy Courses (Regulation of Admission and Payment of Fees) Rules, 2013. Rule 5 relates to the eligibility for admission. Rule 5 reads as under :
"5. Eligibility for Admission.-
(1) For the purpose of admission, a candidate shall have,-
(a) passed the qualifying examination in the relevant discipline, as specified in column 4 of Appendix I with 50% (45% of SC/ST/SEBC candidates) marks at the qualifying examination, and
(b) obtained the qualifying marks in GATE in the relevant discipline for engineering and GPAT for pharmacy (2) A sponsored candidate shall have,-
(a) passed the qualifying examination in the relevant Page 27 of 67 C/SCA/17366/2013 CAV JUDGEMENT discipline, as specified in column 4 of Appendix I with 50% (45% of SC/ST/SEBC candidates) marks at the qualifying examination, and
(b) obtained the qualifying marks in GATE in the relevant discipline for engineering and GPAT for pharmacy; and
(c) minimum two years full time working experience in the academic, industrial or research organisation in the relevant discipline in which the candidate is seeking admission after passing qualifying examination as on 1stJuly, of the year in which application for admission is made.
(3) Notwithstanding anything contained in of sub-rule (1) and sub-rule (2), if seats remain vacant after granting admission to the GATE/GPAT qualified candidates, such vacant seats shall be filled in from amongst the candidates including sponsored candidates who have -
(a) passed the qualifying examination in the relevant discipline, as specified in column 4 of Appendix I with 50% (45% of SC/ST/SEBC candidates) marks at the qualifying examination, and
(b) appeared at Common Entrance Test (CET) in the current academic year for the relevant discipline. (4) A sponsored candidate shall have minimum experience as specified in clause (c) of sub-rule (2). Page 28 of 67
C/SCA/17366/2013 CAV JUDGEMENT (5) Notwithstanding anything contained in these rules, admission in the Post-Graduate Courses in -
(i) Dhirubai Ambani Institute of Information and Communication Technology, Gandhinagar,
(ii) Pandit Deendayal Petroleum University, Gandinagar,
(iii) Nirma Univeristy, Ahmedabad,
(iv) Centre For Environmental Planning And Technology University, Ahmedabad, and
(v) all sanctioned seats including sponsored seats for the Welding Technology Course conducted jointly by the Maharaja Sayajirao University of Baroda and Larsen and Toubro Ltd, Surat, shall be granted by these institutions/ Universities on the basis of the merit order obtained in any All India Entrance Examination of repute."
Rule 11 relates to the Preparation of Merit List. Rule 11 reads as under :
"11. Preparation of Merit List.- The Admission Committee shall prepare and publish discipline-wise two separate merit-lists of the candidates who have applied for admission in the prescribed form, within the prescribed time limit and who are found eligible for admission under these rules, in the following manner, namely:- Page 29 of 67
C/SCA/17366/2013 CAV JUDGEMENT (1) (a) The first merit list shall include the candidates who are eligible for admission under sub-rules (1) and (2) of rule 5 the merit list shall be prepared on the basis of marks/score obtained by such candidates in GATE/GPAT;
(b) The second merit list shall include the candidates who are eligible for admission under sub-rule (3) of rule 5 and merit list shall be prepared on the basis of marks obtained by such candidates in Common Entrance test (CET);
(c) The Merit list of the candidates belonging to reserved categories shall be prepared separately. (2) The criteria for deciding merit order in case of candidates having equal merit marks shall be in the following sequence, namely:-
(a) Percentage of marks obtained at qualifying examination,
(b) Date of Birth (candidate who is older in age shall be given priority)."
Rule 20 relates to the vacant seats. Rule 20 reads as under:
"20. Vacant Seats.-
(1) After offering admission to all the candidates whose Page 30 of 67 C/SCA/17366/2013 CAV JUDGEMENT names appear in the merit lists or after completion of the admission process, if seats remain vacant, such vacant seats shall be filled by the College or Institute, in accordance with the directions of the Admission Committee and in the manner prescribed in sub-rule (2). (2) Such College or Institute shall, invite application from the eligible candidates whose names appear in the merit list of the Admission Committee and prepare an inter-se merit-list."
For our purpose, Rule 5 and Rule 20 are relevant. Rule 5 provides that for the purpose of admission in the Master's Courses, a candidate should pass the qualifying examination in the relevant discipline with 50% marks at the qualifying examination.
Rule 20 provides that after offering admission to the candidates whose names appear in the merit-list, if seats remain vacant, then in such circumstances, the vacant seats shall be filled up by the college or the institute in accordance with the directions of the Admission Committee and in the manner prescribed in sub-rule (2) to Rule 20.
We shall now look into the regulations relating to the Page 31 of 67 C/SCA/17366/2013 CAV JUDGEMENT supplementary examination.
It appears that the Gujarat Technological University issued a Notification No.1 of 2012 dated 13th April 2012, which provides for declaration of final year/semester result, system of evaluation & award of degree and the provision for mid semester test/remedial test. The Notification, so far as the remedial examination is concerned, reads as under :
"...Students failing in the examinations may take Remedial University Examinations to be held during mid semester exams slots."
"...In case of remedial exam, the students are only eligible for passing marks even though the secured marks are more than the passing marks."
"...Mid-Sem test/remedial test is to be conducted only once in a semester. The students who fails even after remedial mid-sem exam then test is not be conducted separately but student will be appearing in next year same semester mid-sem exam."
VI. ANALYSIS :
Having heard the learned counsel appearing for the Page 32 of 67 C/SCA/17366/2013 CAV JUDGEMENT parties and having gone through the materials on record, the only question that falls for our consideration is, whether we should direct the respondents to permit the students to appear in the supplementary examination for the first semester of the M.Pharm. Course to be conducted in the month of May 2014.
We are not impressed by the submission canvassed on behalf of the respondents that a student who passes the qualifying examination of the B.Pharm. by appearing at the supplementary examination for the same is not entitled to seek admission to the M.Pharm. Course in the same year. We do not find any such rule express or implied providing for such a prohibition. Therefore, the submission on the part of the respondent no.2 Admission Committee that such restriction should be read into Rule 20(2) of the Rules, in our opinion, is wholly untenable. We are of the view that if a student who passes the qualifying examination by appearing at the supplementary examination is to be denied admission in the first semester of the M.Pharm. Course till the next academic year, the Rules would have made an express provision for the same.
If such restriction is to be read into Rule 20(2) as Page 33 of 67 C/SCA/17366/2013 CAV JUDGEMENT suggested by the respondent no.2 Admission Committee, then we are afraid, Rule 20(2) may have to be declared as ultra vires Article 14 of the Constitution of India. We are saying so, because such implied reading of a provision in Rule 20(2) has an effect of creating a class within a class without any intelligible differentia having any nexus with the object to be achieved by such classification. All the students who passed the qualifying examination of the B.Pharm. Course in the first instance by appearing at the regular examination thereof conducted by the respondent no.3 University in May 2013 and the students like the petitioners who cleared the very same B.Pharm. Course by appearing at the supplementary examination thereof conducted by the respondent no.3 University in September 2013 would qualify as having passed the said B.Pharm. Course in the Academic Year 2012-13 inasmuch as all of them would be conferred the degree in the same convocation. It has been made clear before us by the respondents that the degree certificate to be issued to all those students would be same in all respect. Even the provisional degree certificate issued to the petitioners pending the awarding of degree certificate at the convocation has no distinguishing feature as regards the provisional degree certificate issued to the students who passed the B.Pharm. Page 34 of 67
C/SCA/17366/2013 CAV JUDGEMENT Course in the first instance by appearing at the regular examination.
In the course of hearing of these matters, we put a specific query to the counsel appearing for the respondent no.3 University that if a student who passed the B.Pharm. Course with the aid of the supplementary examination was in a position to secure a medal on the basis of the marks obtained, whether such a student would be denied such medal on the premise that the student had cleared the B.Pharm. Course by appearing at the supplementary examination. The reply to the aforesaid query was in the negative and it was made very clear that a student would definitely be entitled to a medal although he may have cleared the B.Pharm. Course by appearing at the supplementary examination.
Our attention has been drawn by both the sides to yet one another important aspect of the matter.
It appears from the Notification 1 of 2012 issued by the Gujarat Technological University that in case of remedial examination, the students are eligible only for passing marks although they might secure marks more than the passing Page 35 of 67 C/SCA/17366/2013 CAV JUDGEMENT marks. This is suggestive of the fact that in the supplementary examination, for a particular subject, although a student might have secured 90% marks, yet in the mark-sheet only the minimum passing marks i.e. 50% will be shown and considered while determining the overall result of that student.
If such is the position, then it could not be said that the results of the B.Pharm. Course are made final no sooner the qualifying examination is over. It may happen that a student who appears in the supplementary examination may, in terms of merit, prove to be superior to a student who has been able to clear the qualifying examination in the very first attempt. The final merit list will be prepared only after the results of the supplementary examination are declared. Thus, the process of examination will conclude only after the supplementary examination is over and not on completion of the qualifying examination in the month of April or May.
We are finding it extremely difficult to draw a fine distinction between those students who are able to clear the qualifying examination of the B.Pharm. Course in the first instance and students who cleared the qualifying examination by appearing in the supplementary examination. The whole object of the supplementary examination appears to be to give Page 36 of 67 C/SCA/17366/2013 CAV JUDGEMENT one chance to the students who have not been able to pass in all subjects. We may give one simple illustration. Take a case where a bright student is able to appear in six subjects out of seven in the regular examination which is ordinarily conducted in the month of May and for reasons beyond his control, is not able to appear in the seventh paper. Could it be said that as he appeared at the supplementary examination due to the reasons beyond his control, he cannot be treated at par with those who cleared the qualifying examination in the first instance, although he may have secured higher marks in the six papers he appeared in the first instance.
We are also not impressed by the submissions canvassed on behalf of the respondents that the object of the supplementary examination is to see that the student can avail of a job on the basis of his B.Pharm. qualification without wasting one year and the object cannot be for permitting the student to prosecute further studies without wasting one year. It sounds absolutely incongruous. At the same time, we are also not impressed by the submission of the respondent no.2 Admission Committee that as the supplementary examination was to commence after the cut-off date for admission on the vacant seats i.e. 11th September 2013 fixed by the respondent no.2 Admission Committee under the Rules the petitioners Page 37 of 67 C/SCA/17366/2013 CAV JUDGEMENT were not eligible for admission to the M.Pharm. Course as on the said cut-off date. To put it in other words, according to the respondent no.2 Admission Committee, the petitioners were not possessing the requisite qualification of having passed the B.Pharm. Course as on the cut-off date for admission to the M.Pharm. Course and their subsequent acquisition of the qualification by appearing at the supplementary examination thereof after the cut-off date was of no avail to make them eligible with retrospective effect for admission to the M.Pharm. Course.
We are not impressed by such submission canvassed on behalf of the respondent no.2 Admission Committee for two reasons. First, the admissions were granted provisionally to the petitioners before the cut-off date on a condition that the same would be confirmed only upon the petitioners passing the B.Pharm. Course at the supplementary examination. Secondly, and to our mind, importantly, the doctrine of relation back applies to the supplementary examination in a sense that once the result of the supplementary examination is declared, it relates back to the date of declaration of the result of the regular examination for which the supplementary examination was held. Although the result of the said supplementary examination was declared after the cut-off date, as the same Page 38 of 67 C/SCA/17366/2013 CAV JUDGEMENT was conducted only subsequent thereto, yet the declaration thereof would relate back to the date on which the result of the regular examination was declared prior to the said cut-off date. Therefore, upon the declaration of the result of the petitioners at the supplementary examination, the petitioners emerged as having passed the B.Pharm. Course as on the date of the declaration of the result of the regular examination for the said B.Pharm. Course. It is only due to such reasons that the students who passed the B.Pharm. Course by appearing at the supplementary examination are treated at par by the respondent no.3 University with the students who passed the same by appearing at the regular examination thereof by awarding the degree in the same academic year and at the same convocation. It is preposterous to suggest in the absence of any specific rule that a student who clears the B.Pharm. Course by appearing at the supplementary examination would qualify to seek admission in the M.Pharm. Course only in the next academic year, whereas the same student is entitled to the degree of B.Pharm. Course along with the other students who had cleared the B.Pharm. Course in the regular examination.
A lot was argued on the applicability of the doctrine of Page 39 of 67 C/SCA/17366/2013 CAV JUDGEMENT relation back to the facts of the present case. The respondents have placed strong reliance on the decision of the Supreme Court in the case of Council of Homoeopathic System of Medicine, Punjab and others vs. Suchintan and others, AIR 1994 SC 1761. By placing reliance on this judgment of the Supreme Court, it has been vociferously submitted before us that the doctrine of relation back has no application and should not be applied in the present case. In fact, this judgment has been relied upon even by the counsel appearing for the petitioners.
In the case before the Supreme Court, it was the Council of Homoeopathic System of Medicine who had filed the S.L.P. against the order passed by a Division Bench of the High Court in the following factual background :
The respondents had joined the Homeopathic Medical College, Chandigarh in the year 1987 to secure a Diploma in Homoeopathic Medicine and Surgery (for short, 'DHMS'). The said course was of a duration of four years. It was divided into three and a half years of academic study and six months of internship. The course of study, their duration and the scheme of examination were regulated by the Homeopathy (Diploma Page 40 of 67 C/SCA/17366/2013 CAV JUDGEMENT Course) DHMS Regulations, 1983. Those Regulations were framed by the Central Council of Homoeopathy under Section 20 of the Homoeopathy Central Council Act, 1973. Part VI of the Regulations deals with the examination. Regulation 8 talked of first D.H.M.S. examination. That examination had to be held at the end of 12 months of the course. Regulation 9 dealt with the second D.H.M.S. examination which was held at the end of the second year. Regulation 10 dealt with the third D.H.M.S examination, one and a half years subsequent to the passing of the second D.H.M.S. Examination.
It appears that the respondents appeared in the first year D.H.M.S. annual examination in June 1988. As they did not get the required percentage of marks in two or more subjects, they had to re-appear. They were permitted to join the second year class after June, 1988. Under the interim orders of the High Court, they appeared in the examination. The respondents simultaneously took their third chance for the first year D.H.M.S. examination and finally cleared all the papers. They also got re-appeared in one or more subjects in the second year D.H.M.S. examination and accordingly, took supplementary examination in June, 1990. They were declared 'pass' in that examination.
Page 41 of 67
C/SCA/17366/2013 CAV JUDGEMENT It also appears that the respondents joined the third year D.H.M.S. examination and completed the course of study. In view of that, the Principal of the college in August, 1991 recommended and forwarded their examination forms for the third year examination to the appellant, the Council of Homeopathic System of Medicines. The appellant declined to permit the respondents to take the examination since they had not completed one year course of study between passing the first D.H.M.S. examination and appearing in the second one; hence, according to the appellant, they were not eligible to appear in the third year examination. According to the Council, the examination had not been passed in accordance with the scheme prescribed under Regulations 8 & 9. It was under such circumstances that the writ petitions were filed before the High Court of Punjab & Haryana, praying for a direction to permit them to take third year D.H.M.S. examination which was to commence from 3rd September 1991. The Division Bench of the High Court allowed the writ petition, on the reasoning that if the minimum course of study as provided by Regulations 9 and 10 if held to be mandatory, such a provision would be liable to be struck down in view of the earlier decision of the Court. The correctness of the judgment passed by the Division Page 42 of 67 C/SCA/17366/2013 CAV JUDGEMENT Bench of the High Court was questioned before the Supreme Court.
The Supreme Court considered various regulations in detail. The Supreme Court, while allowing the appeal filed by the Council, made the following observations, on which reliance has been placed by the respondents :
"This Regulation deals with results and readmission to an examination. A close reading of the above brings out the following:
In clause (iv) as to what is to happen in the event of a candidate failing to pass in a subject or subjects is spoken to. He may be admitted to the supplementary examination. Such a supplementary examination is to ordinarily take place after six weeks from the publication of result of First Examination.
Supposing he passes in that subject or 'subjects in the supplementary examination he is declared to have passed at the examination as a whole. This should obviously be so; because once he completes all the subjects, he has to necessarily be declared to have passed. Merely on this language, "declared to have passed at the examination as a whole", we are unable to understand as to how the "doctrine of relation back" Page 43 of 67
C/SCA/17366/2013 CAV JUDGEMENT could ever be invoked. The invocation of such a doctrine leads to strange results. When a candidate completes the subjects only in the supplementary examination, then alone, he passes the examination. It is that pass which is declared. If the "doctrine of relation back" is applied, it would have the effect of deeming to have passed in the annual examination, held at the end of 12 months, which on the face of it is untrue.
With this, we pass on to clause (vi) which deals with the stage where the candidate had failed in the First Annual Examination in a subject or subjects and he had not passed in that subject or subjects in the supplementary examination also. The next annual examination arrives. The appearance in that examination is conditioned upon production of two certificates:
(i) A certificate required under the Regulations to the effect that he had attended to the satisfaction of the Principle;
(ii)A certificate to the effect that he had undergone a further course of study for a period of next academic year in subject of subjects in which he had failed.
Whatever it is, a candidate has to complete all the subjects within four chances. Should he fail to do so, he will have to undergo the course in all subjects for one Page 44 of 67 C/SCA/17366/2013 CAV JUDGEMENT yea, unless of course, he gets the exemption as stated in proviso to Clause (vii). Nowhere do, we find in Regulation 11 system of carry forward'. On the contrary, it is detention every year. The High Court was moved by the fact that if a candidate were to pass in supplementary examination after passing the examination, he will have to remain at home till the next annual examination. So, he is allowed to undergo a course for next academic year provisionally. On this line of reasoning, clause (iv) & (vi) of Regulation II are sought to be "harmoniously construed'. We are unable to accept this line of reasoning or the so called harmonious construction because it does violence to the language of the Regulation. It clearly violates the mandatory requirements of Regulation 9. It has already been noted as to what those requirements are. To repeat:
(i) The lapse of one year period between the passing of First D.H.M.S. examination and taking the Second D.H.M.S. Examination.
(ii)Subsequent to the passing of the First D.H.M.S. examination to undergo the course of study for one year. Therefore, if a candidate passes in the supplementary examination, the requirement of one year cannot be enforced. Worse still is a case of a student who passes only at the next annual examination. Could he be allowed to take the Second D.H.M.S. examination without even completing the First? Should he by chance pass the Page 45 of 67 C/SCA/17366/2013 CAV JUDGEMENT Second D.H.M.S. and not complete the First, since he is still one more chance to take this examination, what is to happen? The situation is absurd. The same principle should apply to Regulation 10 where the lapse is one and half years.
The word 'supplement' is defined in Oxford Dictionary, Seventh Edition, page 1072:
"thing added to remedy deficiencies; part added to book etc, with further information, or to periodical for treatment of particular matter(s) of an angle, (Math.) its deficiency from 180 (of. COMPLEMENT); hence Al, ARY, (-me'n') adjs. (supplementary benefit). [ME,f.L. sup (plementum f -plere fill; see- ment]."
Therefore, the adjective 'supplementary' means and examination to makeup the deficiencies. Thus. it stands to reason only when deficiencies are made up, the whole becomes complete.
On this score to say that passing the supplementary examination would relate back to the annual examination will be totally incorrect. What counts is when the whole is made up. From that time of making up one year or one and half years must elapse for second or Third D.H.M.S. examinations as the case Amy be. The stand of the appellants counsel as seen from letter dated 12.12.1989 is as follows:
Page 46 of 67
C/SCA/17366/2013 CAV JUDGEMENT "From: Dr. P.L. Verma, Secretary,
Central Council of Homeopathy, 10, Community Centre, Basant Lok, Vasant Vihar, New Delhi - 110037.
To The Chairman, The Council, Homoeopathic Systems of Medicine, 3027-28, Sector 22-D, Chandigarh.
Sub: Enforcement of D.H.M.S (Diploma Course) Regulation 1983 w.e.f. 1983-84 Academic Sessions students demand for grant of provisional promotion with reappearance in only one subject to the next higher class even beyond supplementary examination even prior to his passing the lower class examination as a whole. With reference to your letter No. CHSM-PV- 134 /89/1253 dated 29/30 November, 1989 on the subject noted above. I am to say that the question of permitting to appear simultaneously for two examinations i.e. lower reappear subjects and complete subjects of the next higher class does not arise as no candidate has to be admitted to the Second D.H.M.S. examination unless he had passed the first D.H.M.S. examination at the end of one year previously and has regularly, attended the course for one year. Similarly, no candidate shall be admitted to the Third D.H.M. S. examination unless he Page 47 of 67 C/SCA/17366/2013 CAV JUDGEMENT has passed the second D.H.M.S. examination 1 1/2 years previously and has also attended the course for a period of 1 - 1/2 years subsequent to his passing of the Second D.H.M.S. Examination.
COUNCIL OF HOMOEOPATHIC SYSTEM OF MEDICINE 3027-28, Sector 22-D, CHANDIGARH (UT) No. CHCH-PV 9134/89/AT-198-200 Dated 5.2.90 Copy forwarded to the Principal, Lord Mahaveera Homeopathic Medical College, Ludhiana/Abohar/ Chandigarh for information and necessary action. This may please be notified for information of all the students under intimation to the undersigned. The above guidelines/directions of the Central Council may please be strictly followed and observed in respect of matters indicated therein.
sd/-
(R.K. Sharma) Registrar, No.CHMS/PV/134/89/AI-201-210 Dated 5.2.90."
This stand in our opinion is correct.
If a student were to sit idle at home after passing the Page 48 of 67 C/SCA/17366/2013 CAV JUDGEMENT supplementary examination that is his own making. To avoid such a situation, the Regulation cannot be construed causing violence to the language. These Regulations are plain enough and are susceptible only to literary interpretation. In 'Maxwell on the Interpretation of Statutes' 12th Edition, it is stated at page 29 as under:
"Where the language is plain and admits of but one meaning, the task of interpretation can hardly be said to arise. "The decision in this case," said Lord Morris of Borth-y-Gest in a revenue case, "calls for a full and fair application of particular statutory language to particular facts as found. The desirability or the undesirability of one conclusion as compared with another cannot furnish a guide in reaching a decision." (Shop and Store Developments Ltd. v. I.R.C. (1967) 1 A.C. 472). Where, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be. (Cartledge v. E. Jopling & Sons, Ltd. [1963] A.C. 758) The interpretation of a statue is not to be collected from any notions which may be entertained by the court as to what is just and expedient: (Gwynne v. Burnell [1840] 7 Cl. & F.
572). Words are not to be construed, contrary to their meaning, as embracing or excluding cases Page 49 of 67 C/SCA/17366/2013 CAV JUDGEMENT merely because no good reason appears why they should not be embraced or excluded. (Whitehead v.
James Stott Ltd. [1949] 1 K.B. 358). The duty of the court is to expound the law as it stands, and to "leave the remedy (if one be resolved upon) to others." (Sutters v. Briggs [1922] 1 A.C. 1). We construe the Regulations as they stand without introducing any element of ambiguity or absurdity." On the other hand, the learned counsel appearing for the petitioners has placed reliance on the observations made in paras 16, 17 and 18 are as under :
"16. Regulation 11 has to be read along with Regulations 8 to 10. It is not correct to argue that Regulation 11 has nothing to do with admission to an examination. As a matter of fact, declaration of result of supplementary examination of First D.H.M.S. examination was made on 31.10.1989. The next annual examination was held in January, 1990 within 2 1/2 months. The respondents passed the course of First and Second D.H.M.S. examinations. The result of Second Year D.H.M.S. supplementary examination was declared in January, 1991. In view of such an inordinate delay in the conduct of examinations, the appellant cannot contend that one year period must elapse between First and Second D.H.M.S. examinations and that the Regulations should have been strictly obeyed. The Regulations do not Page 50 of 67 C/SCA/17366/2013 CAV JUDGEMENT say that after First D.H.M.S. examination, a student cannot study for Second D.H.M.S. course and sit for examination provisionally. The declaration of result for the Second D.H.M.S. course takes place only after he had cleared the First D.H.M.S examination.
17. As rightly held by the High Court, the word 'supplementary'. denotes supplementing to or in continuation of the annual examination. Where-, therefore, provisional admission is given for the Second Year D.H.M.S, course, the failure to complete he First D.H.M.S. examination should not be put against the respondent-.;. If the Regulations are so literally interpreted, that will lead to absurdity. It will run counter to the object of providing a supplementary examination. This interpret ion is holding the field for a long time. This was the reason why in Jaininder Mohan and Others v. The council of Homeopathic System of Medicine. Punjab (1992) 1 I.L.R. Punjab 159, the court took a view that passing in the supplementary examination will relate back to the date of annual examination. Otherwise, as rightly pointed out by the High Court, anomalous results would follow.
18. In so far as the respondents have completed the examination, equities must weigh in their favour as laid down by this Court in A.Sudha v. University, of Mysore and another, AIR 1987 SC 2305, Chandigarh Administration & Ors. v Manpreet Singh & Ors., [1992] 1 SCC 380, Shirish Govind Prabhudesai v. State of Page 51 of 67 C/SCA/17366/2013 CAV JUDGEMENT Maharashtra, [1993] 1 SCC 211. The learned counsel also relies on Orissa Homeopathic Regulations and contends that carry forward is permitted in similar Homeopathic Regulations."
At the outset, we make it clear that the observations of the Supreme Court made in paras 16 to 18 are not the findings recorded by the Supreme Court or the views expressed by the Supreme Court on the subject matter which was involved, but those are the submissions noted by the Supreme Court of the learned counsel who was appearing for the respondents. Therefore, in our opinion, the observations made by the Supreme Court in paras 16 to 18 would not be in any manner helpful to the petitioners. Therefore, we propose to look into the observations made by the Supreme Court on which reliance has been placed by the other side so as to understand as to why the Supreme Court declined to apply the doctrine of relation back.
It is very clear from the observations of the Supreme Court that the doctrine of relation back was not made applicable because of specific regulations framed by the Council which provided for a minimum period of detention before seeking admission in the higher class. Only one line in Page 52 of 67 C/SCA/17366/2013 CAV JUDGEMENT the decision makes all the difference and that is the observation of the Court that if the doctrine of relation back was applied, it would have the effect of deeming to have passed in the annual examination held at the end of 12 months which, on the face of it, was untrue. Therefore, considering the specific regulations, the Supreme Court was of the view that passing the supplementary examination would not relate back to the annual examination as the student could be said to have cleared the qualifying examination from that time of making of one year or one and a half years expiry for second or third D.H.M.S. examinations. The Supreme Court took the view that regulations 8, 9 and 10 prescribed the eligibility. Unless and until that eligibility was possessed, admission to an examination was impossible. Thus, according to the Supreme Court, the regulations 8, 9 and 10 laid down three concepts :
(i) subjects, (ii) time, and (iii) marks. The Supreme Court was of the view that if the doctrine of relation back was made applicable, then it would have amounted to construe the regulations in a manner causing violence to the plain and simple language of the same. We fail to understand how the decision of the Supreme Court referred to above would help the respondents.
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C/SCA/17366/2013 CAV JUDGEMENT Mr.Parth Bhatt, the learned AGP appearing for the respondent no.2 Admission Committee, has also placed strong reliance on a Division Bench decision of this Court delivered in L.P.A. No.592 of 2000 dated 31st August 2001. Mr.Bhatt has placed reliance on this decision in support of his submissions that the students who passed the qualifying examination for further admission to the M.Pharm. Course by appearing at the supplementary examination have no right to claim admission to the M.Pharm. Course in the same academic year in which the students who passed the qualifying examination on regular basis were admitted.
We have gone through the entire judgment delivered by the Division Bench of this Court and are of the view that it has no application to the case at hand. First, unlike the case at hand, there was a specific rule declaring the students of the supplementary examination as ineligible for further admission in the academic year in which the students who passed by appearing at the regular examination were to be admitted. Secondly, unlike the case at hand, there the students of the supplementary examination were claiming to compete with the regular students as there were no vacant seats. Therefore, it was a case where it was possible for the students of the Page 54 of 67 C/SCA/17366/2013 CAV JUDGEMENT supplementary examination to steal a march over the students of the regular examination, which was found by this Court to be inequitable. The following observations of the Division Bench would make all the difference. We quote para 4 of the decision :
"...This argument does not appeal us for the simple reason that as a matter of fact the appellants had not even submitted their applications before 1.6.2000 as was the case for the Year 1999-2000 and for this Year 2000- 2001 it was held out in advance that candidates who pass by supplementary shall not be eligible for professional courses in the Year 1999-2000 the candidates were held out be eligible, had applied on time and were registered in the qualified category Secondly, the idea for holding the supplementary examination to save the academic year of a student does not necessarily confer the right to pursue the professional course, meaning thereby that such student passing in the supplementary examination may follow their higher education in respective integrated courses and other courses. It does not necessarily imply that they are also to held the eligible for professional courses in face of the fact that for admission in the professional courses, the process starts with the declaration of main results, such professional courses have to be started well on time and the other already qualified candidates who desire to prosecute such professional courses cannot be made to wait till the results of supplementary examinations are Page 55 of 67 C/SCA/17366/2013 CAV JUDGEMENT declared. The academic year can be saved by following courses other than the professional courses also and no right to pursue the professional courses as such can be claimed by those who do not qualify on time. Those candidates who pass by supplementary examination may try their fate in next year for professional courses. They cannot enforce such a right through the Court. It may also be mentioned that the candidates who passed by supplementary examination do avail a further chance to clear the said examination and, therefore, even if the supplementary examination is for the same class, the fact remains that a candidates who appears in supplementary examination and pass through the same is certainly at a lower pedestal compared as to those candidates who clear the main examination. A candidate who makes up his percentage by appearing in the supplementary examination cannot be equated with the candidates who pass in the main examination who are certainly a foot higher and, therefore, the grievance as has been raised on behalf of the appellant is only illusory and cannot be treated to be a real legitimate grievance. In this context, it is clear that the earlier decision which was rendered by this Court in Special Civil Application Nos.5090 and 5968 of 1999 decided on 27/8/1999 could not be cited as a precedent or authority so as to allow their petitions and the learned single Judge has rightly held that in the Year 1999, the petitioners of those petitions i.e. Special Civil Application Nos.5090 and 5968 of 1999 had applied within time were in the declared category of eligibility for 1999-2000 and were registered in the qualified category and yet their case had not been Page 56 of 67 C/SCA/17366/2013 CAV JUDGEMENT considered and, therefore, the Court had intervened. This decision could not be applied to the facts of the present case in the light of the factual position and condition incorporated for this year of 2000-2001. Yet, we had left it open on 17.10.2000 for the respondents Nos.1 to 3 to consider as to whether the present appellant or the other similarly situated candidates could be accommodated on the same lines as the petitioners in Special Civil Applications Nos.5090 and 5968 of 1999 decided on 27/8/1999. However, we have been told by Ms.Harsha Devani, learned AGP that the appellant could not been granted admission for the Year 2000-2001."
Thus, the aforesaid Division Bench decision of this Court is also of no avail to the respondents.
It also deserves to be noted that there was no denial at the end of the respondent no.2 Admission Committee to the contention of the petitioners that in the past the students who passed the B.Pharm. Course by appearing at the supplementary examination were permitted to secure admission to the M.Pharm. Course. In the present case, the petitioners have been admitted to the vacant seats and thereby no students who passed the qualifying examination for the B.Pharm. Course by appearing at the regular examination thereof were deprived of the admission on account of Page 57 of 67 C/SCA/17366/2013 CAV JUDGEMENT admission given to the petitioners.
Our attention has also been drawn by Mr.Dave, the learned senior advocate appearing for the petitioners, that in the past this Court has permitted students who secured admission to the Engineering Courses after having cleared the Higher Secondary (Science Stream) Examination by appearing in the supplementary examination conducted by the Gujarat Secondary Examination Board.
Mr.Dave has placed reliance on the following orders passed by this Court :
(1) Special Civil Application No.12292 of 2010 decided on 7th October 2010 (Kshiti Rajesh Panchal v. State of Gujarat);
(2) Special Civil Application No.10478 of 2010 decided on 7th September 2010 (Dhavalkumar Vinodray Dasadiya v. State of Gujarat);
(3) Special Civil Application No.5909 of 1999 with Special Civil Application No.5968 of 1999 decided on 27th August 1999 (Dhaval Dilipbhai Desai v. State of Gujarat).
Having gone through all the three orders passed by this Page 58 of 67 C/SCA/17366/2013 CAV JUDGEMENT Court, we are of the view that it fortifies the submissions made by Mr.Dave in the present petition.
We are quite disturbed with the manner in which the respondent no.2 Admission Committee has dealt with the entire issue. Although in our order dated 19th December 2013 we have not stated that the concerned colleges ought to have forwarded the names of the petitioners for endorsement of their admissions at the end of the respondent no.2 Admission Committee before 11th September 2013, yet the respondent no.2 declined to endorse the said admissions by relying on our order dated 19th December 2013 on the specious plea that the same were not presented to the respondent no.2 Admission Committee prior to 11th September 2013. Apart from such stance of the respondent no.2 Admission Committee, which is not in conformity with our order dated 19th December 2013, we find that the stance of the respondent no.2 Admission Committee does not appear to be correct, as is evident from the affidavit-in-reply filed on behalf of the respondent nos.4 to 10 Colleges. The following averments made in the affidavit-in- reply of the respondent nos.4 to 10 have not been denied in any manner :
"
3. As per the said order dated 19 th December 2013 the Page 59 of 67 C/SCA/17366/2013 CAV JUDGEMENT petitioners were to be permitted to appear at the concerned examination which was to commence from 21st December 2013 provided two conditions were satisfied in respect of the petitioners. The first condition was in respect of minimum attendance of 75% to the credit of each of the petitioners in the concerned classes for 1st Semester of 1st Year M.Pharm. conducted by the respondent colleges. The second condition was for the forwarding of the names of the petitioners for endorsement by respondent no.2 Admission Committee.
4. In view of the above, each of the respondent colleges approached respondent no.2 Admission Committee on 20th December 2013 at about 10:30 a.m. in its office with requisite details about the concerned petitioners who were admitted by them provisionally before 11 th September 2013. As such, prior to the passing of the aforesaid order by this Hon'ble Court, and as such prior to moving of the present petition by the petitioners, the respondent colleges had approached respondent no.2 Admission Committee with details about the petitioners with a request to endorse their admissions. However, respondent no.2 Admission Committee declined to accept the names of the petitioners on two grounds. The first ground was to the effect that the petitioners were not eligible for endorsement of their admissions as on the date of submissions of their names for the same by the respondent colleges to respondent no.2 Admission Committee as they could be considered as eligible for admission only if they were to pass the qualifying examination of B.Pharm. at the supplementary Page 60 of 67 C/SCA/17366/2013 CAV JUDGEMENT examination which was to commence only with effect from 12th September 2013. Thus, in other words, the stand of respondent no.2 Admission Committee was to the effect that the question as to whether the petitioners possessed the requisite qualification to study further for M.Pharm. course could be examined only upon the declaration of result of the supplementary examination and not prior thereto. The second ground was to the effect that even if the petitioners were to pass the said supplementary examination, they would be considered as eligible for admission provided an appropriate notification permitting such admissions was to be issued by the State. Thus, when respondent no.2 Admission Committee was first approached by the respondent colleges within the stipulated time limit expiring on 11 th September 2013, respondent no.2 Admission Committee declined to accept the details about the petitioners only on these two grounds and not on the ground which is the subject matter of the present petition that the students passing the qualifying examination of B.Pharm. at supplementary examination would not be eligible at all.
5. In view of the above, upon declaration of the result of supplementary examination, the respondent colleges approached respondent no.2 Admission Committee pointing out that the petitioners, who were admitted provisionally before 11th September 2013 have passed supplementary examination and therefore, their provisional admissions were required to be endorsed by respondent no.2 Admission Committee. At this stage, for the first time, respondent no.2 Admission Committee Page 61 of 67 C/SCA/17366/2013 CAV JUDGEMENT took a stand for the first time that the petitioners would be ineligible for M.Pharm course in current academic year as they have passed B.Pharm course by appearing at supplementary examination. Accordingly, this fact was brought to the notice of the petitioners. Thereupon, as it appears, feeling aggrieved by the said action on the part of respondent no.2 Admission Committee the petitioners preferred the present petition on 26th November 2013 and in respect of which this Hon'ble Court passed the first order dated 29th November 2013 by which inter alia an interim direction was issued permitting the petitioners to continue their studies for M.Pharm course.
6. In view of the above, when the respondent colleges approached the respondent no.2 Admission Committee in its office on 20th December 2013 as aforesaid pursuant to the order dated 19th December 2013 passed by this Hon'ble Court in the present petition, the respondent colleges mentioned the aforesaid aspect in their forwarding letters to respondent no.2 Admission Committee giving details of the petitioners for the purpose of endorsement of their admissions.
7. When the respondent colleges approached respondent no.2 Admission Committee as aforesaid on 20 th December 2013, no responsible officer was present in its office till 12:30 p.m. and the concerned officer who came to the office of respondent no.2 Admission Committee thereafter declined to accept the details of petitioners for the purpose of endorsing their admissions on the ground that such details were not furnished to respondent no.2 Page 62 of 67 C/SCA/17366/2013 CAV JUDGEMENT Admission Committee prior to 11 th September 2013. As such, what happened in this regard in the office of respondent no.2 Admission Committee on 20 th December 2013 is explained in detail in the communication dated 20th December 2013 addressed by one of the respondent colleges to the Member Secretary of respondent no.2 Admission Committee.
8. In view of the above, as respondent no.2 Admission Committee declined to endorse the names of the petitioners, a request was made to respondent no.3 University to permit the petitioners to appear at the concerned examination for 1st Semester for M.Pharm without insisting for endorsement of their admissions by respondent no.2 Admission Committee as they were otherwise having to their credit minimum attendance. However, in response to this, the respondent colleges were informed orally on 20th December 2013 by the examination cell of respondent no.3 University that unless the admissions of the petitioners were endorsed by respondent no.2 Admission Committee and further, unless the proof in support of the attendance of the petitioners was submitted by the respondent colleges, the petitioners would not be permitted to appear at the said examination. In view of this, the Association of Self Financing Pharmacy Colleges of which the respondent colleges are members addressed a letter dated 20 th December 2013 seeking intervention of the Commissioner of Technical Education of the State.
9. However, despite the aforesaid, not only respondent no.2 Page 63 of 67 C/SCA/17366/2013 CAV JUDGEMENT Admission Committee remained firm in its stand, but even instructed respondent no.3 University not to permit the petitioners to appear at the said examination as their admissions were refused to be endorsed by it." This litigation is nothing but an outcome of the imbroglio created by the respondents. Ordinarily, having regard to the object of the supplementary examination, the same should be conducted atleast by first week of July so that by the end of the month, the result of the supplementary examination could be declared and the students can apply for the admission to the first semester of the M.Pharm. Course before the expiry of the cut-off date for filling up of the forms, which ordinarily takes place in the month of August. If the supplementary examination would have been conducted in the month of July, then the petitioners herein could have applied for the admission in the first semester of the M.Pharm. Course in the respective colleges, but as the supplementary examination was conducted in the month of September, and by the time the provisional admissions were given to the petitioners by the respective colleges, the results could not be declared. Therefore, we are of the view that to avoid such problem in future, it would be advisable if the respondents endeavoured to declare the result of the supplementary examination before Page 64 of 67 C/SCA/17366/2013 CAV JUDGEMENT the date when first round of allotment of seats in the M.Pharm. Course is commenced. If the respondents are able to achieve this, the problem of the kind which has come before us can be avoided.
We conclude by observing that the narrow approach suggested by the counsel for the respondents to the interpretation of Rule 20(2) of the Rules, 2013 would lead to undoing the very object and purpose of the policy of the respondents providing for a supplementary examination. The literal interpretation would lead to absurdity which should be avoided. Patent injustice and inequities are to be avoided when the meanings are being given to the regulation.
We hold that Rule 20(2) of the Master of Engineering and Technology and Master of Pharmacy Course (Regulation of Admission and Payment of Fees) Rules, 2013, should be read down by construing the same as making it permissible for the colleges to offer vacant seats thereunder for the M.Pharm. Course to the students who have passed the qualifying examination in the discipline of Pharmacy at the level of graduation by appearing at the supplementary (remedial) examination only after offering the same in the first instance to Page 65 of 67 C/SCA/17366/2013 CAV JUDGEMENT the students who do not fall in the category of students referred to herein at who are otherwise eligible for admission under Rule 20(2) of the Rules.
We uphold the validity of Rule 20(2) of the Rules by adopting the principle of 'reading down' or 'reading into' so as to make Rule 20(2) effective, workable and ensure the attainment of the object of the Rule. Ordinarily, the Courts would be reluctant to declare a law or a rule invalid or ultra vires on account of unconstitutionality. The Court should make all possible endeavour to interpret in a manner which would be in favour of the constitutionality, as declaring the law or a rule unconstitutional, should be one of the last resorts which the Court may take.
In the result, the petition succeeds and the same is allowed to the extent aforesaid. The respondents are directed to permit the petitioners to appear in the supplementary examination of the first semester of the M.Pharm. Course to be conducted in the month of May 2014.
In view of the order passed in the main writ-application, the connected Misc. Civil Applications have become infructuous and are hereby disposed of.
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C/SCA/17366/2013 CAV JUDGEMENT It is needless to clarify that the students who have filed the two Misc. Civil Applications shall also be allowed to appear in the supplementary examination to be conducted in the month of May 2014 for the first semester of the M.Pharm. Course.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 67 of 67