Gujarat High Court
Katha Sureshbhai Hirpara vs Sardar Vallabhbhai National Institute ... on 28 August, 2018
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/11044/2018 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11044 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
KATHA SURESHBHAI HIRPARA
Versus
SARDAR VALLABHBHAI NATIONAL INSTITUTE OF TECHNOLOGY
(SVNIT)
Appearance:
MS HETVI H SANCHETI(5618) for the PETITIONER(s) No. 1
MS MEGHA JANI(1028) for the RESPONDENT(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 28/08/2018
ORAL JUDGMENT
1. Heard Ms. Hetvi H. Sancheti, learned advocate for the petitioner and Ms. Megha Jani, learned advocate for the respondent.
2. In present petition the petitioner has prayed, inter alia, that:-
"10 (a) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction upon the respondent university to take interview of the petitioner for admission in the course Page 1 C/SCA/11044/2018 JUDGMENT for which the petitioner was otherwise eligible i.e. Ph.D Admission Program at Civil Engineering Department, at Sardar Vallabhbhai National Institute of Technology, Surat for academic year 2018-19.
(b) During pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to direct respondent authority to not to conclude the admission process for Ph.D Admission Program at Civil Engineering Department, at Sardar Vallabhbhai National Institute of Technology, Surat for academic year 2018-19.
(c) Alternatively during the pendency and final disposal of the present petition YOUR LORDSHIPS may be pleased to direct respondent authority to keep one seat of admission vacant for Ph. D. Admission Program at Civil Engineering Department, at Sardar Vallabhbhai National Institute of Technology, Surat for academic year 2018-
19"
3. So as to support and justify the relief prayed for in present petition the petitioner has averred and stated that she is a student of Master of Engineering (Environmental Engineering) final year at M.S. University, Baroda. 3.1 The petitioner has also stated that before declaration of the results for final year she submitted application for admission in P.hd Programme at Civil Engineering Department of Sardar Vallabhbhai National Institute of Technology (SVNIT) at Surat.
3.2 The petitioner emphasized that after considering her application the respondent university included her name at serial No. 20 in the provisional list notified by the university. The petitioner has also claimed that she was instructed on- line to remain present for interview as per schedule date i.e. 10.7.2018.
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3.3 The petitioner has further claimed that in view of the said instruction, she attended the process at the engineering department.
3.4 It is claimed by the petitioner that for purpose of conducting interview, pre-verification process of certificates, testimonial documents and other relevant material was undertaken by representative of the university and that after verification of the relevant documents she was advised to wait for the decision.
3.5 The petitioner has further alleged and claimed that subsequently the respondent university, through its representative, orally informed that she is not eligible for interview. The petitioner has claimed that said officer of the university did not inform any reason for not considering petitioner eligible for interview / for admission to Ph.D Program.
3.6 It is further claimed that the petitioner made representations to the concerned authority which have not been considered by the university.
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3.7 According to the petitioner she is deprived of
fundamental and statutory right and therefore petitioner has taken out present petition.
4. With regard to factual backdrop the petitioner has averred and stated that:-
"3.1 The petitioner submits that petitioner is a student of M.E. Final Year, M.S. University, Vadodara and residing at Surat. The petitioner herein had applied for Ph.D. Admission Program at Civil Engineering Department, at Sardar Vallabhbhai National Institute of Technology, Surat (hereinafter referred to as "SVNIT"). The petitioner submits that the petitioner was declared eligible in the list declared by the respondent University at Sr. No. 20 as published on 6.7.2018 and the petitioner was instructed online to remain present for interview as per the Scheduled dated 10.7.2018....
3.2 The petitioner submits that as per the directions of the respondent University the petitioner stayed present at the Engineering Department for interview on the prescribed date. Initially all the testimonial documents were verified by the one of the Assistant Professor, Civil engineering Department of the respondent University, Mr. K.D. Yadav. The Assistant Professor Mr. K.D. Yadav also collected soft copy of the presentation of the petitioner and the petitioner was asked to wait for her turn for the interview. The petitioner was made to wait for a longer time and thereafter suddenly the Assistant Professor Mr. K.D. Yadav informed the petitioner orally that there is some difficulty and confusion with the interviewers and thereafter the petitioner was verbally conveyed that Mr. K.D. Yadav have got an instruction through email that the petitioner was not eligible for interview.
3.3 The petitioner submits that if the Admission Brochure as well as the application form as submitted by the petitioner is perused, the petitioner very well falls within the eligibility criteria. Moreover, it is further submitted that at the closing of the date of submission for an application the respondent University cannot on his own whims and fancies change the eligibility criteria at the last moment, that too without any written communication or assigning any reasons whatsoever. Even if the Rules for admission which have been published online at the website www.svnit.ac.in the petitioner herein is very much eligible for the interview....
3.4 The petitioner submits that if the schedule for Ph. D for academic year 2018-19 is perused, the list of eligible candidates and process of checking eligibility was over on 6th July, 2018 and only interview was remaining on July 10/2018. Therefore when the petitioner appeared for the interview there was no point of raising any eligibility criterion that too without assigning any reasons. Moreover, in the Admission Brochure it was clearly mentioned that GATE Qualified students will be given preference."
4.1 The petitioner filed another affidavit dated 19.8.2018 wherein she averred and stated that:-
2. That the respondent university had state in its reply dated 17.7.2018, that the petitioner was not called for the interview as per the rules mentioned in the Page 4 C/SCA/11044/2018 JUDGMENT admission brochure. A copy of the said letter is annexed as "Annexure R5". The petitioner herein is eligible as per the rules stated in admission brochure. And therefore her name figured in the list of eligible candidates. The respondent university has stated that main reason for not taking the interview of the petitioner is that her dissertation was not defended. It is submitted that nowhere in the admission brochure it is state that dissertation was required to be defended.
3. Moreover, the petitioner has already defended her dissertation on 4.8.2018. And the provisional result is likely to be declared as soon as next week."
4.2 The petitioner has mentioned below quoted submission and ground to support and justify the relief prayed for in the petition:-
(A) That the action on the part of the respondent university in verbally declaring the petitioner as not eligible for interview on the day of the interview itself without giving any due and appropriate reasons is bad in law and is required to be quashed and set aside.
(B) The petitioner submits that the petitioner all throughout has been a bright student...........Moreover, the petitioner was dut to complete her thesis by September 2018 according to which the petitioner had accordingly also submitted an affidavit before the respondent university as per the prescribed Rules and Regulations.
Therefore also there was no reason for the respondent university to not take the interview of the present petitioner. It is submitted that petitioner had stayed present for the interview along with all the relevant documents as per prescribed. Despite this, interview of the petitioner was not taken and that too without assigning any reasons in writing.
(C) the petitioner herein admittedly is eligible for the interview and admission. Moreover, the respondent university have not assigned any reasons in writing for not considering the petitioner for interview purposes and therefore also, the action of the respondent university is arbitrary and against the principles of natural justice. Therefore also, the respondent university is required to be directed to take the interview of the petitioner and consider her for admission for the present academic year 2018-2019.
(D) The petitioner submits that the petitioner is having a bright future ahead and if the petitioner is deprived of such an opportunity of taking admission in the Ph.D Program, grave injustice and prejudice will be caused to her. Therefore also, the respondent university is required to be directed to take the interview of the petitioner and given her admission.
(E) the petitioner submits that impugned action of the respondent university of verbally declaring the petitioner ineligible for interview without assigning any reasons whatsoever adversely affects not only Fundamental Right but also constitutional right of the petitioner. It is submitted that even if it is assumed for the sake of assumption and without prejudice to the rights and contentions, if at all, the petitioner was not eligible for the aforesaid interview, the petitioner after being called for interview and after making the petitioner to wait for a longer period of time ought to have been given in writing the due reasons for which her candidature is non-suited for the interview but however the impugned action of the respondent university amounts to spoiling the entire career of the petitioner. Therefore also, the respondent university is required to be directed to take the interview of the petitioner and give her admission. (F) The petitioner submits that in the facts and circumstances of the case, the direction is required to be given to the respondent university by this Hon'ble Court for considering the case of the petitioner for interview as per the prescribed Rules and Regulations."
5. Learned advocate for the petitioner relied on Page 5 C/SCA/11044/2018 JUDGMENT "admission information brochure for the year 2018-19", more particularly she placed reliance on the provision which prescribe minimum qualification for admission i.e. clause- para 5 of the said brochure. Learned advocate for the petitioner submitted that by virtue of clause-para 7 of said Brochure, requirement prescribed under clause 5(a) is relaxed and an exception provided for, for the students who await result of final semester. To support and justify the said submission learned advocate for the petitioner placed reliance on clause 7(b). On strength of conjoint reading of the provision under clause 5(a) and exception under clause 7 (b) learned advocate for the petitioner submitted that the petitioner fulfills prescribed requirement inasmuch as she has appeared for the final year examination (dissertation) of Masters of Engineering and she awaits result of final year of Master of Engineering. It is also claimed that the petitioner has already submitted marksheet (result) for both parts of first year of Master of Engineering and declared that she awaits result of final year of Master of Engineering which would be declared by 15.9.2018 and that on declaration of the result, she would submit the result / marksheet. It is Page 6 C/SCA/11044/2018 JUDGMENT claimed that despite the fact that the petitioner fulfills prescribed requirement the petitioner is not called for interview and all that the petitioner claims is an opportunity at the interview.
5.1 Learned advocate for the petitioner relied on document at page 28 (the application for Doctoral Degree Programme) to support and justify the submission that she has cleared first part of Master of Engineering with distinction and that the document / result of first year of Master of Engineering are submitted along with the application with the clarification that second year marksheet / result is awaited. Learned advocate for the petitioner also relied on clause No.3 under the title "note" mentioned in the application form and she submitted that since the result for last year is not declared, she has mentioned likely date of pronouncement of result and aggregate marks of first year and thereby complied the said note / condition no. 3 mentioned in the application. Learned advocate for the petitioner would submit that the said application form particularly, proviso under clause 7 provide that the result for 3rd semester should be submitted, however, in the Page 7 C/SCA/11044/2018 JUDGMENT institute / university where the petitioner pursued her study for Master of Engineering, semester system is not followed and entire second year is devoted to dissertation. It is claimed by the petitioner that now the petitioner has submitted and defended the dissertation and it is claimed that entire course of Master of Engineering, in M.S. university comprises of 1800 marks out of which 300 marks are allotted for dissertation and curriculum for 1500 mark is completed during first year. It is claimed that the petitioner has submitted marksheet which represent completion of Master of Engineering programme to the extent / value of 1500 marks and now dissertation (which carries value of 300 marks) has to be submitted. According to the petitioner in such circumstances the petitioner should not have been declared "not eligible for interview". The petitioner tried to rely on the case of another student / candidate whose name is found at serial no. 29 in the list of eligible candidates declared on 6.7.2018. She submitted that the said student had not submitted marksheet of 3rd semester and 4th semester and case of the said student is considered eligible whereas in the said list the petitioner Page 8 C/SCA/11044/2018 JUDGMENT was declared "eligible" and that therefore, the respondent could not have excluded the petitioner from the process of interview. Learned advocate for the petitioner also relied on the details mentioned in the affidavit dated 10.8.2018 wherein the petitioner has explained the arrangement of course, marks, examination and structure of any course in the M.S. university. Learned advocate for the petitioner, in particular, placed reliance on the details mentioned in paragraph no. 6 of the affidavit which reads thus:-
"6.From this annexures R1 to R3, it is clear that there is difference in 'syllabus', 'weightage of marks of each semester' and 'examination system' for M.E. Course in M S University in comparison with SVNIT and GTU.
i) As per Annexure R1 for MSU, 'syllabus', 'weightage of marks of each semester' and 'examination system' are as under, 'M.E. Course is divided in two parts :'COURSE PART I AND II' (having total marks 1800). The 'COURSE PART ME-I (1500 marks) aggregate 83% = 1500/1800)- contains theoretical subjects and 'COURSE PART ME-II (300 marks) aggregate 17% =(300/1800)' contains Dissertation.
ii) As per Annexure R2 for SVNIT, 'syllabus', 'weightage of marks of each semester' and 'examination system' are as under: 'M.E. Course is divided in four semesters:
semester-1 = 725 marks, semester 2 = 725 marks, semester 3= 400 marks, semester 4 = 400 marks having total marks 2250. At the time of an interview, the student of SVNIT was evaluated on the basis of result of semester 1, 2, 3 for 82%=(1850/2250) aggregate of the total course.
iii)As per Annexure R3 for GTU,'syllabus', 'weightage of marks of each semester' and 'examination system' are as under: 'M.E. Course is divided in four semesters:
semester-1 = 700 marks, semester 2 = 750 marks, semester 3= 450 marks, semester 4 = 450 marks having total marks 2350. At the time of an interview, the student of GTU was evaluated on the basis of result of semester 1, 2, 3 for 81%=(1900/2350) aggregate of the total course.
The petitioner herein has already submitted her results of the "COURSE PART ME-I' (Course Part Term I having Marks 750 and Term II having marks 750:
Total marks 1500) while the result of the "COURSE PART ME-II' (Dissertation having 300 marks) will be given by here before 15 September 2018. Thus, petitioner has been examined for 83% (=1500/1800) of the course and result is declared for the same: while remaining 17% result will be declared before 15 September 2018. As per the details given in Annexure R1, R2, R3: it is clear that, petitioner ha been evaluated for examination for 83% of Total Course while other university is concerned, they have been evaluated for examination for 82% and 81% respectively. Thus, petitioner has been evaluated for 1% more. Hence, there is no question of giving marksheet for third semester.
In M.S. University, there is no semester system, entire year is dedicated to Dissertation and practical work. In fact, considering the aforesaid fact, the respondent university had already found the petitioner eligible in the list declared by it."
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6. Per contra learned advocate for the respondent
submitted that the petitioner does not fulfill prescribed requirement and conditions and that therefore she is not entitled to joint Doctoral Program. The learned advocate for the respondent submitted that the last date / cut-off date for all compliance was 30.6.2018 and only one exception viz. to submit last semester's marksheet on or before 15.9.2018 was provided. According to the respondent the petitioner did not meet with prescribed requirements and did not fulfill the conditions. The respondent would claim that according to relevant and applicable provision, a student aspiring to join doctoral program in faculty of engineering should possess, master degree in relevant area of research with minimum 50% marks in respective engineering faculty and 55% in any other cases. Learned advocate for respondent would submit that under the rules exception is carved out so as to allow the students, who await result for 4th semester, to submit their applications and such cases are considered subject to the submission of marksheet of 4th semester examination and compliance of the requirement about minimum qualification. The Page 10 C/SCA/11044/2018 JUDGMENT respondent would claim that on considering the details mentioned by the petitioner in the application it was found that she would be eligible for the interview process, however on the day of interview when verification of document was undertaken it was noticed that the petitioner did not fulfill prescribed eligibility criteria and that therefore she was not considered for interview and admission to the doctoral program. It is also submitted that the petitioner's claim that she has fundamental right for being considered eligible for interview is misconceived and unjustified. It is also claimed that the submission that the petitioner has legal right to be considered eligible for interview is also misconceived. The petitioner does not fulfill prescribed requirement and eligibility criteria therefore she cannot claim any right, much less, right to be interviewed or right for admission to doctoral program. It is also claimed and submitted by the respondent that the petitioner's submissions are based on misreading of relevant provisions particularly clause 5 and 7 in the brochure.
6.1 So as to oppose submission by learned advocate for the petitioner, learned advocate for the respondent Page 11 C/SCA/11044/2018 JUDGMENT reiterated the details mentioned in paragraph Nos. 4 to 7 of the reply affidavit dated 20.7.2018 and the details mentioned in paragraph No.3 of the affidavit dated 17.8.2018.
7. I have considered rival submission and the material available on record.
8. The dispute in present petition is with regard to admission - rather admission process - in doctoral programme (Ph. D admission programme) at SVNIT. 8.1 So as to appreciate rival submission and the claim of the petitioner, it is relevant and necessary to take into account and keep in focus relevant provision. 8.2 From the material on record it has emerged that the relevant provisions for admission to doctoral program for 2018-19 are declared by the respondent university through "Instruction Brochure".
8.3 The minimum qualification for admission to the said program is prescribed by means of clause - para 5 of the said brochure. Clause (a) of said para 5 is relevant for Page 12 C/SCA/11044/2018 JUDGMENT purpose of present petition. The said provision reads thus:-
"5. MINIMUM QUALIFICATIONS FOR ADMISSION:
The eligibility for the admission to a Ph.D Programme in faculty of Engineering, Science, Humanities and Social Science as well as interdisciplinary areas are as follows:-
(a) A candidate shall possess Master Degree in relevant area of research and should have passed with at least second class with minimum 50% (CGPA=5.5) or equivalent in respective Engineering faculty and 55% in other cases, like programmes related with Humanities and Science."
8.4 From the said provision it becomes clear that the student who seeks admission to Ph.D program from faculty of engineering or from faculty of science or from faculty of humanities or faculty of social science, must possess "master degree" in relevant area of research as on the date of application.
8.5 Besides the said requirement the student should have also passed master degree atleast in second class with minimum 50% (CGPA-5.5) or equivalent in respect of engineering faculty and in other cases i.e. progamme related with humanities and science percentile required is 55 %. 8.6 Meaning thereby, principal, primary and minimum requirement for Ph. D course is that the applicant student must possess "master degree" with 50% marks on the cut- off / relevant date.
8.7 In that view of the matter, ordinarily, any student / Page 13 C/SCA/11044/2018 JUDGMENT candidate who does not possess master's degree on the relevant date i.e. on the date of the application (or any other date prescribed by the university) cannot be considered eligible for admission to Ph.D. Programme.
9. Present case is of a student / candidate who had not even appeared for final examination of final year on the cut- off date.
10. So as to overcome said obstacle, the learned advocate for the petitioner tried to rely on proviso under clause 7 of the brochure. The sub-clause of para 7 provides an exception with regard to the condition for enrollment. The exception gives little room and latitude to the students who already cleared 3 semester before the cut-off date and also appeared in the final examination of final (4th) semester.
11. The exception on which learned advocate for the petitioner placed reliance reads thus:-
"In case of the candidates whose M.E. / M. Tech. results are not declared, their CGPA / % marks at the time of interview / written test / presentation will be decided based up to 3rd semester marks (aggregate). However, such candidates have to submit their final M.E./M. Tech. results by Sept. 15 / Feb. 15, for admissions in Autumn / Spring Semesters respectively. Such candidates are required to give an undertaking as prescribed in Appendix-VI)"
12. At this stage it is also relevant and necessary to note Page 14 C/SCA/11044/2018 JUDGMENT and to keep in focus that in present case for all purposes relevant / cut-off date is 30.6.2018. The application had to be submitted on or before 30.6.2018.
13. It is relevant to note that the said cut-off date (i.e. 30.6.2018) was taken into account by the respondents (reference whereof is made in paragraph No. 4 of the affidavit page 46 and paragraph No. 6 of the affidavit at page 48), on the basis of the schedule for Phd. admission which was declared by the respondents on 12.6.2018.
14. At this stage, it is also relevant to take into account the schedule for Ph.D. And M.Tech admission which was declared by the respondent on 12.6.2018. The relevant dates for said process of admission (as emerged from the schedule) are mentioned below:
Sr. No. Event Dates
1 Last of date of receipt of application: 06/30/18
2 Display of List of eligible candidates by concerned Academic 07/06/18
Department
3 i) Applied Chemistry Dept., Applied Physics Dept., Applied July 10, 2018
Mathematics & Humanities Dept., Civil Engineering Dept., Mechanical (9:00 AM) Engineering Dept.
ii) Electrical Engineering Dept., Computer Engineering Dept., Chemical July 11, 2018 Engineering Dept., Electronics Engineering Dept., Applied Mechanics (9:00 AM) Dept. 4 Display of list of selected candidates by Academic departments on 07/13/18 institute website 5 Payment of fees and Registration July 16-27, 2018 6 Commencement of Semester 07/16/18 Page 15 C/SCA/11044/2018 JUDGMENT 14.1 From the said schedule it comes out that the last date for submitting applications was 30.6.2018 and the last date for registration was 27.7.2018. In that view of the matter, for all practical purposes, the respondent considered the said date i.e. 30.6.2018 as cut-off date.
14.2 Consequently, even for determining as to whether the petitioner fulfills prescribed criteria and meets with the prescribed requirement or not, the said date (i.e. 30.6.2018) is taken into account as the cut-off / relevant date and applied by the respondent.
14.3 The schedule of admission (which was declared and published on 12.6.2018) and the said provision / exception to para 5 are required to be read conjointly. 14.4 Conjoint reading of the schedule and the exception brings out the requirement that final examination of last / final semester should have been conducted and completed and the student must have appeared in such last examination on or before 30.6.2018.
14.5 Likewise, to determine: as to whether the candidate -
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applicant who submitted the application but did not submit the result / marksheet of final examination of final (4th) semester had appeared in the final examination of final semester or not, said date 30.6.2018 has been uniformly applied by the respondent.
15. From said details and other relevant facts of the case it has emerged that the petitioner did not fulfill prescribed requirements.
15.1 On one hand he did not possess, on 30.6.2018, master degree and on the other hand the petitioner's case did not fall within the purview of the exception clause under para 7 inasmuch as the petitioner's institute had not conducted final year's final examination before 30.6.2018 and the petitioner had not even appeared in the examination before 30.6.2018.
15.2 Therefore the petitioner's application and the petitioner did not qualify for consideration. The respondent's decision, therefore, cannot be faulted.
16. Before proceeding further, it is also necessary to Page 17 C/SCA/11044/2018 JUDGMENT mention that either legality or even propriety of said instructions / provision is not challenged on any ground, much less on the ground that the Rules are violative of Article 14 of the Constitution of India.
16.1 The said instructions - provision are not challenged either on the ground that the clause 5 and / or 7, particularly the clause which provides exception is arbitrary or discriminatory. The petitioner has preferred to proceed on the basis of and in light of the said instructions as they stand in the book (brochure).
16.2 Therefore, the petitioner's contentions have to be examined in light of the instruction i.e. clause Number 5 and sub-para to clause 7 within four corners of the instruction / provision and also on the premise that the said provision are valid, just and reasonable and applicable to the petitioner's case.
16.3 It is also pertinent that an exception has to be construed strictly and liberal construction of exception cannot be adopted and cannot be applied - more particularly to give benefit of the exception where it is not Page 18 C/SCA/11044/2018 JUDGMENT available in normal, regular and ordinary course. Only so much latitude can be granted which is specifically provided for under the Rules and Court cannot add anything or cannot read something which is not specifically and expressly provided for. The Court also cannot important, inject, read and construe the exception clause in a manner which would expand the scope of main / parent provision by injecting something which is not provided for or what the provision does not postulate. More so when the legality or propriety (or both) of the provision are not challenged and the Court is not required to test it on anvil of Article 14 of the Constitution on ground of discrimination or arbitrariness.
16.4 When above quoted provisions are read by keeping in focus above mentioned aspects then it becomes clear that the petitioner's claim and contentions are misconceived and not sustainable.
17. It is relevant to note that as on the date when the petitioner submitted application she, undisputedly did not possess master degree in relevant area of research and Page 19 C/SCA/11044/2018 JUDGMENT thereby she did not fulfill the requirement prescribed by clause 5(a).
17.1 The petitioner claimed that she awaits result for the final year and she expects the result by 15.9.2018 however what is more relevant is the fact that until the last date for submitting the application i.e. until the cut-off date the petitioner had not even appeared for the examination.
18. The petitioner would, on strength of the provision i.e. sub-clause to para-7, claimed that she has submitted marksheet for the first year and since M.S. university's second year is a composite year and not divided in two semesters (viz; third and forth semester) she has declared that the result for second year will be declared by 15.9.2018 and she would submit marksheet for second year upon declaration of the result and that therefore she falls within the purview of the said exception.
18.1 According to the petitioner, in light of the exception the candidate whose results for final examination for final year are not declared can submit their final M.E. results by September 15 and cases of such student should be decided Page 20 C/SCA/11044/2018 JUDGMENT on the basis of marks obtained in first year. 18.2 With regard to the said submission it is relevant to note that the said instruction / provision, the exception is available to the students who had cleared 3 semesters (before 30.6.2018) and appeared in the examination for 4th (last) semester.
18.3 Differently put the exception is available to the students who pursued studies under semester system. 18.4 Other students (from non-semester system) who seek admission in Ph.D programme with respondent institute would be obliged to demonstrate that (a) final examination for last / final year was conducted; and that (b) such examination was conducted before 30.6.2018 and that; he / she had appeared in such final examination for last / final year (for master Degree) before 30.6.2018 and that; (c) he / she awaits the result of final examination of final final / last year.
18.5 Only if said aspects are established by a non-semester student then such non-semester student would qualify for Page 21 C/SCA/11044/2018 JUDGMENT the benefit / advantage of said exception. 18.6 However, in present case the petitioner did not fulfill any of the conditions and did not establish that she fulfilled the prescribed conditions.
19. Despite this clear position learned advocate for the petitioner would submit that since M.S. University does not run any course by semester system, it does not have 3rd semester and that therefore the petitioner's case should be considered on the basis of the aggregate marks in the first year. She would submit that in the first year the petitioner secured more than 50 % marks and that therefore she should be considered eligible.
20. As mentioned above, undisputedly, the petitioner does not fall under clause 5(a) inasmuch as she does not possess master degree in engineering.
20.1 It is also necessary to keep in focus that the basic and primary requirement for enrolling the students in doctoral program (from faculty of engineering) is that the applicant - student must possess master degree with 50% marks.
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20.2 The prescribed requirement is "degree" (master degree) i.e. successful completion and passing out master course and possessing the degree conferred by university after completion of the course.
20.3 The students who do not possess master degree cannot claim, as a matter of right, that they have right for being considered eligible for interview / admission.
21. In this view of the matter the petitioner turned to and relied on the exception provided under para 7(b). 21.1 However the petitioner overlooks and ignores that an exception cannot substitute primary and basic requirement. 21.2 The exception must be construed strictly and literally. It is pertinent that the exception is carved out in respect of the students who pursued their master degree in semester system.
21.3 The said exception clause does not take in its fold any other system / method but it takes in its fold only particular class i.e. the students who pursued their master degree Page 23 C/SCA/11044/2018 JUDGMENT under semester system then benefits of such exception cannot be extended to the students who do not fall within the purview of said provision.
21.4 Even if it presumed that the said exception takes in its fold even non-semester students and / or even if it is presumed that second year in the institutes running courses in non-semester method is equivalent to 4th semester and that viva voce is equivalent to final examination of final semester, then also the exception cannot rescue the petitioner's case because the petitioner does not fulfill even the condition prescribed by and inherent in the exception clause.
22. In this background the Court, so as to examine other / different possibility and different perspective, directed the respondent to clarify the position in respect of the applicant students who applied for doctoral programme after pursuing master degree under "yearly examination system" and where semester system is not available. In response to the Court's said direction the respondent filed affidavit dated 17.8.2018 and clarified that:
Page 24 C/SCA/11044/2018 JUDGMENT "3. In light of the aforesaid I clarify that in case of candidates who have pursued their Master degree from Institutions where the Masters degree of two years is not spread over in four semesters but follow the year wise format, where the results of the second year is declared / issued at the end of the year in a composite manner and a separate result for the 3rd Semester is not available, such candidates would have to wait till their 2nd year mark sheets are available and can be submitted in order to be eligible to obtain admission in the Institute. I state that in the event that such mark sheet is not available at the time the candidate is applying to the Institute for the Ph.D. Programme, the candidate will have to wait and apply when such mark sheet is available. I say that it has been consistent policy of SVNIT to consider only those candidates who have appeared for their last / 4th semester examination and who have submitted the result of 3rd semester while giving admission to the course of Ph.D."
The respondent has also placed on record below mentioned response and clarification:-
"However, such candidates are required to submit their final M.E. / M.Tech results by September 2018 / February 2019 for admissions in autumn / spring semesters respectively. The application form also mentions in the note on internal page 17 of the application form that if results are not declared, the candidate is required to give the likely date of announcement of result and in such cases, the aggregate marks upto 3rd semester must be mentioned. Another note which appears in Clause 12 of the application form mentions that in case of result of final semester of PG Programme is awaited for those candidates seeking admission in autumn / spring semesters, the result upto pre-final semester be intimated and final results must be submitted by September 2018 / February 2019 of relevant academic year. It is apparent from the aforesaid requirements that the candidate is required to submit results of marks upto 3rd Semester. Relaxation of submitting result upto September 2018 is extended only to those students whose result upto September 2018 is extended only to those students whose result is awaited. In case of the students like the petitioner who have to submit a thesis in their last semester of M.E., the meaning of awaiting of result would be that such students would have submitted and defended their dissertation and that the result thereof would be awaited. Relaxation is available only to those students who have taken the exams but whose result is awaited and not to those students who have yet to take even the examination."
In light of the said explanation and reply by the respondent, which is neither unjust nor unreasonable, it cannot be said that the respondent has examined the petitioner's case arbitrarily or by applying any irrelevant consideration.
23. In light of the provisions which are referred to in above mentioned reply by the respondent, it becomes clear that the petitioner does not fulfill prescribed requirement / Page 25 C/SCA/11044/2018 JUDGMENT condition and her claim and demand are unjustified and unsustainable
24. Now, this is the stage when the case and petitioner's contention should be considered from one more perspective. 24.1 In present case it is necessary to mention at this stage that it is not the case even of the petitioner that the respondents have considered case of any other student from an university where Master Degree course is not conducted in semester system (i.e. non-semester system student) and yet on the basis of the results declared for first year (i.e. equivalent to two semesters under semester system) student is considered eligible for interview / admission. 24.2 On the contrary, such cases have been disallowed by the respondents. This aspect becomes clear from specific details mentioned by the respondents in the reply affidavit and the document at page 51. The said details reads thus:-
Sr. No. Application Name Category Remarks
No.
1 CED-14 GARG VIVEK GIRISHCHANDRA FIR Not Interviewed
2 CED-19 HIRPARA KATHABEN SURESHBHAI FIR Not Interviewed
3 CED-33 SATHE SHREENIWAS MADHAV FIR Not Interviewed
4 CED-41 TOMAR JAYENDRASINGH ANANDVIJAY FIR Not Interviewed
5 CED-45 KHATEEK NAVEENKUMAR HEERALAL FIR Not Interviewed
6 CED-55 KANTHARIA AKASH RAJENDRAKUMA FIR Not Interviewed
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24.3 In the said document the respondents have mentioned names of as many as 6 candidates who were initially found provisionally eligible for admission for the year 2018-19. However subsequently they are not considered eligible for admission because they had not appeared in 4th semester examination / dissertation, on or before 30.6.2018. 24.4 According to the respondents the petitioner's case is similar to said 6 candidates and she cannot be given any better, different and preferential treatment than the said 6 students. The petitioner, however, would submit and claim that since in the second / final year of M.E. Course in M. S. University semester system is not followed and entire second / final year is devoted to dissertation entire second / final year should be treated as 4th semester and her dissertation defence / examination or dissertation test i.e. viva voce should be treated on par with / equivalent to final examination of 4th semester.
25. If the petitioner wants to claim that dissertation defence / test i.e. viva voce is equivalent to final examination of final semester and that the said exception in Page 27 C/SCA/11044/2018 JUDGMENT its fold yearly system also and even if Court were to presume such situation (though the said provision is not challenged and that therefore question of reading something more into that provision would not and does not arise) then also to satisfy relevant condition the petitioner must establish that (1) she had submitted her dissertation before 30.6.2018 and that (b) viva voce was conducted before 30.6.2018 and that (c) she had appeared for viva voce and defended her dissertation on or before 30.6.2018. In present case the petitioner has failed to establish all relevant and necessary facts and failed to demonstrate that she fulfills the condition.
25.1 In present case it, actually appears that she had not even submitted her dissertation before cut-off date. 25.2 Even if the petitioner's submissions [viz. that in her case the entire second year is of dissertation and that, therefore, the criteria of semester system i.e. result of 3rd semester should not have been applied in her case] were to be taken into account for examining the decision and action of the respondent (with which the petitioner is aggrieved) Page 28 C/SCA/11044/2018 JUDGMENT then also relevant date would continue to stare in face of the petitioner and that aspect establishes that the petitioner had not appeared to defend her dissertation (i.e. she had not appeared for viva-voce in respect of her dissertation) before 30.6.2018.
25.3 In this context it is also relevant to note, at this stage that undisputedly on or before the cut-off / relevant date (i.e. 30.6.2018) the petitioner had not even completed her dissertation work. Even if the petitioner's submissions on the basis of the exception under sub- clause to para 7 were to be taken into account and even if dissertation defence / test i.e. viva voce were to be treated on par with / equivalent to final examination for final semester then also the petitioner's case would stand excluded in light of the fact that she had not even appeared for examination (i.e. dissertation examination) on or before 30.6.2018. 25.4 According to declaration by the petitioner, she appeared for defending her dissertation i.e. dissertation examination (viva voce) on 4.8.2018 i.e. long time after 30.6.2018.
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25.5 Learned advocate for the petitioner, in this context, tried to rely on document annexed to the affidavit (page 50). She submitted that the said document was attached to petitioner's application.
25.6 The said document is a certificate issued by In-charge Head of the Department of Civil Engineering at M.S. University, Baroda.
25.7 The said document / certificate (dated 6.7.2018) gives out that the petitioner's dissertation work was complete and she was expected to defend her work (dissertation) by end of July 2018 (i.e. after the cut-off date). The said certificate is issued on 6th July 2018.
25.8 Interestingly, the said certificate does not categorically and expressly mention and does not clarify that the petitioner submitted her dissertation to the concerned professor (faculty/head of the department) before 30.6.2018. The date of submission is not mentioned in the said certificate.
25.9 What emerges from said document and what can be Page 30 C/SCA/11044/2018 JUDGMENT derived therefrom is that the dissertation was actually completed and submitted to the competent authority / concerned professor on the date when the certificate came to be issued i.e. 6.7.2018.
25.10 Even if it is so assumed then also the fact that the dissertation was not submitted on or before cut off date i.e. 30.6.2018 would stare in petitioner's eyes and, in any case the petitioner cannot refute that the dissertation was not defended and viva voce was not conducted / completed on or before 30.6.2018 and said fact disentitles her and renders her in-eligible candidate.
25.11 So far as present petitioner is concerned, her work / term was not over even as on 30.6.2018. She had not submitted dissertation before 30.6.2018. Thus, even if only for the purpose of testing the petitioner's contention if Court assumes that viva voce should be considered equivalent to final examination for final semester then also the petitioner cannot avoid the fact that viva voce was not even conducted till 30.6.2018 i.e. until the cut-off date / till she submitted her application. This aspect renders the petitioner ineligible.
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25.12 The said document does not render any assistance to the petitioner in establishing that the dissertation was complete and it was submitted to the concerned authority on or before 30.6.208. The fact remains that viva-voce was not conducted and completed before 30.6.2018. 25.13 The certificate on which reliance is placed by the petitioner itself gives out that the petitioner completed her work (i.e. dissertation) on 6.7.2018 i.e. after the cut-off date and that viva-voce was likely to be conducted in the end of July 2018 (according to the petitioner's claim, it was actually conducted on 4.8.2018).
25.14 There is no evidence to support the submission that viva-voce was conducted on 4.8.2018, however, the fact remains that viva voce was certainly not conducted before 4.8.2018.
26. At this stage it is necessary to note that learned advocate for the petitioner submitted and clarified that the petitioner defended her work / dissertation (i.e. viva-voce was conducted) on 4.8.2018. Though, any material to Page 32 C/SCA/11044/2018 JUDGMENT support the said submission is not available on record, even if the said claim of the petitioner is believed and it is assumed that viva-voce was conducted on 4.8.2018, then also it does not fulfill the requirement prescribed under the rules and the petitioner cannot be considered a student who completed her studies and appeared for final examination for final year / semester before 30.6.2018 and was awaiting her result.
26.1 Meaning thereby, even if the petitioner's submission to the effect that the dissertation work should be considered as final examination or it should be considered as substitute of final examination is taken into account, then also it would follow that the final examination of final year was not conducted before 30.6.2018.
26.2 From that perspective also the petitioner does not fulfill the prescribed criteria and does not meet with the prescribed requirement.
26.3 The said fact itself disqualifies the petitioner and renders ineligible for consideration in admission in Ph.D. Programme.
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27. The learned Counsel for the petitioner heavily relied on the provisional list of eligible candidates and she repeatedly emphasized that her name was included in the provisional list of eligible candidates and only on that premise i.e. on the premise that her name was included in the provisional list of eligible candidates, learned advocate for the petitioner submitted that the petitioner should have been considered eligible for interview.
27.1 The petitioner however, overlooks and conveniently ignores that mere inclusion of the name in the provisional list of eligible candidates does not create and does not confer any right in favour of a student / applicant for interview much less for admission.
28. When the petitioner, on one hand, does not fulfill prescribed requirements and condition and on the other hand she claims right merely on strength of provisional list, the demand supported by and on strength of such submission cannot be sustained and cannot be entertained.
29. For the reasons mentioned above and in light of the Page 34 C/SCA/11044/2018 JUDGMENT foregoing discussion, the petition should fail. The petitioner has failed to make out any ground to convince the Court to accept her request viz. that she should be granted opportunity of to appear in the interview. The petitioner has also filed to establish that she fulfilled the prescribed eligibility criteria and met with the requirement so as to consider for interview / admission. Therefore, the petition fails and is accordingly rejected. Ad-interim relief, if any, stands vacated forthwith.
Sd/-
(K.M.THAKER, J) SURESH SOLANKI / BHARAT Page 35