Gujarat High Court
Utpal Kant Balkrishna vs State Of Gujarat & on 14 October, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
UTPAL KANT BALKRISHNA THAKURV/SSTATE OF GUJARAT C/SCA/14206/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14206 of 2013 With SPECIAL CIVIL APPLICATION NO. 13784 of 2013 With SPECIAL CIVIL APPLICATION NO. 13481 of 2013 With SPECIAL CIVIL APPLICATION NO. 13387 of 2013 With SPECIAL CIVIL APPLICATION NO. 14126 of 2013 With SPECIAL CIVIL APPLICATION NO. 14127 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 ?
================================================================ UTPAL KANT BALKRISHNA THAKUR & ORS....Petitioner(s) Versus STATE OF GUJARAT &
2....Respondent(s) ================================================================ Appearance:
MR MITUL K SHELAT, ADVOCATE for the Petitioner(s) No. 1 - 2 MR VANDAN BAXI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :14/10/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. Since common questions of fact and law are involved in this batch of petitions, those were heard together and are being disposed of by this common judgment and order.
2. The petitioners are all students, who have cleared the XII standard Board Examination which is a Qualifying Examination as defined U/s.2(H) of the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013. From the materials on record, it appears that there are three sets of petitioners. The first set of petitioners are those who cleared their 12th Board Examination only after appearing in the supplementary examination conducted by the Board, as they were unable to clear in the first attempt. All such petitioners had appeared in the open entrance test, namely JEE GUJCET, as the case may be, when they appeared in the Standard 12 examination for the first time. The second set of petitioners are those who cleared the 12 Board examination in 2012, however, since the results were declared in July, they were considered for admission in the previous year, but had passed the GUJCET examination in 2012. The third set of petitioners are those who cleared 12 Board examination in the year 2012 and got themselves admitted in the course like Architecture, but thereafter discontinued on account of personal reasons, but had passed the GUJCET examination in the year 2012. However, one common feature which we have noticed is that each one had appeared in the open entrance examination immediately after appearing for the first time in the qualifying examination.
3. After clearing the supplementary examination, conducted by the Board they sought admission in different colleges of Engineering and Pharmacy on the vacant seats which were available in the respective colleges.
However, the respondent no.2, viz. the Admission Committee for Professional Courses did not approve the admissions on the ground that although a student has cleared the qualifying examination by appearing in the supplementary exam, but if he had not appeared in the open entrance test conducted for that particular year, then such a student would not be eligible to be admitted in the college, even if the seats are vacant. According to the respondent no.2 even if a student had earlier appeared in the Open Entrance Test, but having failed in the qualifying examination, is obliged to once again appear in such open entrance exam next year when he appears in the supplementary examination.
4. Such being the position, the petitioners have prayed for a writ of mandamus or any other writ, order or direction to the respondent no.2 Committee to consider them to be eligible for grant of admission by reading-down Rule-5 (1)(vi) of the Rules and to hold that the said requirement of appearing in the Open Entrance Test would not be applicable in the cases of seats which have remained vacant. In the alternative they have prayed for a writ of mandamus or any other writ, order or direction to declare Rule-5(1)(vi) of the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 in so far as it prescribes the appearance in JEE as a condition of eligibility for admission to the Engineering and Technology courses as irrational, arbitrary and ultra vires the provisions of the Act and the Constitution of India. They have also prayed to quash and set aside the decision of the respondent no.2 Committee of disqualifying them for grant of admission to the Bachelor of Engineering courses in the academic year 2013-14.
5. When all these matters came up for hearing for the first time before us we issued Notice to the respondents and passed an interim order directing the respondents to permit the petitioners to pursue their education in the respective colleges taking into consideration our decision dated 27th August, 2013 passed in Special Civil Application No.12255/2013 in the case of Association of Self Financing Colleges Vs. State of Gujarat & another. However, we clarified that the interim order would abide by the final result of the application and would not create any equity or right in favour of the petitioner.
6. Mr. Mitul Shelat, the learned advocate appearing on behalf of the petitioners, submitted that the requirement to have appeared in JEE Main examination or any other open entrance test is irrational and mere appearance in such open entrance test should not be the basis of prescribing eligibility. He submitted that there being no requirement to obtain any minimum marks in the examination, the insistence on the part of the respondent no.2 of appearance in such open test as an eligibility for grant of admission is ex-facie unreasonable and has no nexus with the object of granting admission. Mr.Shelat submitted that the admissions on the basis of merit list having been exhausted and seats having remained vacant in large numbers, there is no justification on the part of the committee to insist for appearance in the open entrance examination.
Mr.Shelat submitted that Rule-5(vi) of the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 (for short The Rules, 2013 ) should not be made applicable when a student is seeking admission on a vacant seat. According to Mr. Shelat, if a student seeks admission on vacant seat then in such circumstances admission should be granted on the basis of qualifying examination cleared by such a student.
7. On notice being issued, the respondents entered their appearance and have opposed this petition mainly contending that in February,2010 a proposal for Common Engineering Entrance examination was made by the Ministry of Human Resources Development as a common system for common admission into professional institutions all over the country. It was made as a replacement for the multitude of the existing exams, more particularly the IIT/JEE & AIEEE. According to the decision of the Ministry of Human Resources Development dated 20th May, 2012 such Open Entrance exam was introduced from 2013 and the State Government readily accepted the proposal of the Ministry. The State Government thereafter announced to join the exam and accordingly GUJCET which was also an open entrance test, conducted by the State itself was replaced by JEE. Such a decision on the part of the State Government was in the interest of the students as they were required to give only one examination being a Common Entrance examination instead of three examinations. Mr. Vandan Baxi, the learned AGP appearing on behalf of the respondents submitted that the Rules known as Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 and the Bachelor of Pharmacy and Diploma in Pharmacy (Regulation of Admission and Payment of Fees) Rules,2013 came to be introduced for admission of students to the Engineering & Pharmacy Courses on the basis of their percentile marks which are divided into two parts. According to Mr. Baxi 60% of the marks secured by a student in his qualifying examination and 40% of the marks of the Joint Entrance Examination (JEE) are taken into consideration while preparing the Merit List.
8. Thus, according to Mr. Baxi, the Joint Entrance Examination (JEE) has its own importance because 40% weightage is being given to the marks obtained by the student in such examination.
9. Mr.Baxi vehemently submitted that if contention canvassed on behalf of the petitioners is accepted then in such circumstances it would amount to giving concession to a student who has in fact failed in Std. XII in the first attempt and merely by appearing in a Supplementary Examination would be able to secure admission in Engineering/Pharmacy courses.
10. According to Mr.Baxi, if a student has appeared in a Supplementary Examination, then thereafter such a student is obliged to once again appear in the Open Entrance Exam and only thereafter he would be eligible for being admitted in an Engineering or Pharmacy college.
11. In such circumstances referred to above Mr.Baxi prays that there being no merit in any of the petitions, they deserve to be rejected.
12. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in this batch of petitions is whether Rule-5 (vi) of the Rules, 2013 is ultra vires Article-14 of the Constitution of India, or Rule 19 (2) (iii) relating to vacant seats deserves to be read-down in the manner so as to make Rule 5 (vi) of the Rules, 2013 reasonable and rational.
13. Before we proceed to answer the aforesaid question, we should look into the relevant provisions of the Rules-2013 which are as follows :
ADMISSION RULES No. GH/SH/11/2013/PVS/102012/142/S :- 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 (Regulations of Admission and Fixation of Fees) Act, 2007 (Guj. 2 of 2008), the Government of Gujarat, in supersession of the all the rules made in this behalf, hereby makes the following rules to regulate admission to the Bachelor of Engineering and Technology and payment of fees, as follows:-
Definitions:-
(1)(a) to
(b)................
(c) JEE (Main) means 'Joint Entrance Examination conducted by JEE Apex Board (JAB), New Delhi for the purpose of admissions to the professional courses (under Graduate Engineering Programmes),
(d) to
(g).............
(h) Qualifying Examination means the Higher Secondary School Certificate Examination, (Standard XII, 10+2 pattern) passed in the Science Stream or equivalent examination.
(i) to (j) .........................
5. Eligibility for Admission:
(1) to (4)...................
5. A candidate who has passed the qualifying examination after appearing in the supplementary examination conducted by the Bord shall be eligible for admission in the current academic year on the vacant seats declared under rule 19.
11. Preparation of Merit List:-
The merit list of the candidate who have applied for admission in the manner prescribed by the Admission Committee, within the prescribed time limit and who are found eligible for admission under these rules, shall be prepared in the following manner, namely:-
For the candidates who have passed the Qualifying Examination from any of the Boards mentioned in the sub rule (1), sub rule (2), sub rule(3) or, as the case may be, sub rule (4) of Rule 5, sum of sixty percentage weightage of the percentile marks obtained in the theory subjects (Physics, Chemistry and Mathematics) and forty percentage weightage of the percentile marks obtained in the JEE (Main) shall be the merit marks.
Provided that if percentile marks are not available from any of the Boards mentioned in the sub-rule (1), sub rule (2), sub rule (3) or, as the case may be, sub rule(4) of Rule 5, two separate merit lists shall be prepared namely:-
(i) The first merit list shall include the candidates who have passed the Qualifying Examination from the Boards for which the percentile marks are available. The merit list shall be prepared with sixty percentage wieightage of the percentile marks obtained in the theory subjects (Physics, Chemistry and Mathematics) combined with forty percentage weightage of the percentile marks obtained in the JEE (Main)
(ii) The second merit list shall include the candidates who have passed the Qualifying Examination from the Boards for which the percentile marks are not available. This shall be based on sixty percentage wieightage of marks obtained in theory of the subjects (Physics, Chemistry and Mathematics) after converting it to 100 combined with the forty percentage wieghtage of the percentile marks obtained in the JEE (Main).
The criteria for deciding merit order in case of candidates having equal merit marks shall be based on the percentage of marks obtained in the Qualifying Examination in the following sequence, namely:-
(a) Mathematics and Physics
(b) Mathematics and Chemistry ¿ Physics and Chemistry
(d) Mathematics
(e) Physics
(f) Chemistry
(g) English
(h) Aggregate marks.
19. Vacant Seats:-
After offering admission to all the candidates whose names in the merit list or after completion of the admission process, if the seats remain vacant, such vacant seats shall be filled by the institutes, in accordance with the directions of the Admission Committee and in the manner prescribed in sub rule (2).
(2) Such institute shall, invite application from the eligible candidates and prepare an inter-se merit list in the following order namely:-
(i) names of th candidates whose name appears in the merit list of the Admission Committee.
(ii) Candidates who has cleared the qualifying Examination,
(iii) names of the candidates who have passed qualifying examination from outside the Gujarat State and have appeared in JEE (Main) conducted in the corresponding academic year, giving priority to the candidates of Gujarat origin.
(iv) after allotting the seats to candidates mentioned in sub- clause (i),(ii) and (iii) above, if any seat remains vacant, the Institute shall invite application from the candidates who have passed diploma engineering or degree Science course and grant admission on merit.
Such candidates shall be eligible for admission in first year of Engineering and Technology only.
14. Having considered the relevant rules afore-noted, we are of the opinion that if a student has appeared in the qualifying examination and has cleared the same by appearing in the Supplementary Examination, then in such circumstances while seeking admission on the vacant seats in terms of Rule-19 of the Rules, 2013, the Committee is not justified in insisting for appearance in the Open Entrance Test, more particularly when such a student did appear in such open entrance exam immediately after appearing for the qualifying examination for the first time.
15. In our opinion Rule-5(5) of the Rules, 2013 makes such position very clear. According to the rule-5(5) a candidate who has passed the qualifying examination after appearing in the supplementary examination conducted by the Board shall be eligible for the admission in the current academic year on the vacant seats declared under Rule-19. Even according to Rule-19(2) (ii), the candidates who have cleared the qualifying examination in the supplementary examination would be eligible for admission on vacant seats.
16. We do not find anything on plain reading of Rule-5(5) in conjunction with Rule-19 that a candidate after appearing in the Supplementary examination is obliged to once again appear in the open entrance test and only thereafter he would be eligible to seek admission in the respective courses.
17. Therefore, the principal contention raised on behalf of the petitioners deserve to be accepted. The insistence on the part of the Committee to appear in the open entrance test for the second time i.e. after appearing in the supplementary examination does not appear to be reasonable.
18. However, even independent of such contention raised on behalf of the petitioners we are of the view that this batch of petitions is squarely covered by the decision of this very Bench dated 27th August, 2013 passed in Special Civil Application No.12255/2013 in the case of Association of Self-Financing Colleges Vs. State of Gujarat. In view of this decision, in our opinion the principal contention raised on behalf of the petitioners otherwise becomes inconsequential.
19. In the said case referred to above the issue was whether Rule-17 of the Master of Business Administration course (Regulation of Admission & Payment of Fees) Rules, 2013 was ultra vires Article-14 of the Constitution of India or deserved to be read-down in a manner so as to make it reasonable and rational. In the said case the petitioner redressed a grievance that although at the end of the first round of counseling 5153 seats remained vacant for the MBA course and 4102 seats remained vacant for the MCA course, the Committee was not ready and willing to permit the Self-finance Colleges to fill-up vacant seats since the students had not appeared in CMET/CAT/MET or any other entrance test. It was argued before us that Rule-17 of the said Rules was violative of Article-14 of the Constitution of India, inasmuch as there was no nexus between the requirement prescribed thereunder for the admission with the object which was sought to be achieved thereby. We also took notice of the fact that all those students who had appeared in the Open Entrance Test, had secured marks in the negative and still were admitted on the basis of the result of the qualifying examination.
20. We took the view that the insistence on the part of the Committee as provided in Sub-Rule(2)(ii) of Rule-17 of appearing in the CMET even for the purpose of obtaining admission in the MBA/MCA course on vacant seats was unreasonable and without any object.
21. We have been informed that our decision rendered in SCA No. 12255 of 2013 has been accepted by the respondent No.2 Admission Committee and a Notification to that effect has also been issued interpreting the Rule accordingly.
22. We deem fit to rely and quote some of our observations made in our judgment while deciding Special Civil application No.12255 of 2013.
"11. It is a settled law that in interpreting a statute or a rule, the Court must bear in mind that the legislature does not intend what is inconvenient and unreasonable. If a rule leads to an absurdity or manifest injustice from any adherence to it, the Court can step in. A statute or a rule ordinarily should be most agreeable to convenience, reason and as far as possible to do justice to all. A law/rule should not be made without a purpose or object and when it is found so, the Court should not be hesitant in applying the principle of 'reading down' or 'reading into' the provision to make it effective and workable, more particularly when it is found that the object is illusory and appears to be nothing but a shadow hunting process. A law/rule should be beneficial in the sense that it should suppress the mischief and advance the remedy. In interpreting a rule, it is legitimate to take into consideration the reasonableness or unreasonableness of any provision. Gross absurdity must always be avoided in a statute/rule. The expression reasonable means rational, according to the dictate of reason and not excessive or immoderate.
12. We are of the opinion that Mr. Dave is quite justified in submitting that insistence as provided in sub-rule (2)(ii) of Rule 17 of appearing in the CMAT even for the purpose of obtaining admission in MBA/MCA course on vacant seats, appears to be unreasonable and without any object. There is no reply at the end of the State Government that if the students who secured negative marks in CMAT have also been admitted in the MBA course, then why a student who has not appeared in CMAT should not be admitted at a later stage, if he is desirous of seeking admission on a vacant seat as provided in Rule 17 of the said Rules. We are also not impressed by the argument of Mr. Baxi that the State Government is unable to issue the Notification relaxing such requirement as it had done in the previous two years because CMAT has been provided by AICTE and it is not an open entrance test conducted by the State Government.
13. The question which is begging is the importance of the open entrance test CMAT. We do not find any importance which could be attached to such an open entrance test, more particularly when AICTE has not prescribed any minimum standards or requirements for CMAT.
14. An entrance examination is an examination that many educational institutions use to select students for admission. The most common purpose of the competitive examinations centers on the prospect of separation. Irrespective of the institution one would look forward to, do bear in mind that it is keen on extracting the cream from the diluted whole, because everyone looks forward to the best of the lot. Besides being focused on the "best", entrance examinations serve respective institutions to conform to its seat limit. In order to realise it, there has to be a tool of elimination and the purpose of entrance examinations is to serve as a powerful tool of screening.
15. We have taken note of the fact that out of 10,453 available seats for admission to the MBA course, only 5,300 students opted for admission, leaving in all 5,153 seats vacant. In the same manner, out of 6,126 available seats for the MCA course, only 2,024 seats have been filled in, leaving in all 4,102 seats vacant. Among those students who have been admitted, majority of them have secured either zero or negative marks in CMAT, which is evident from the statement annexed by the petitioner with its affidavit-in-rejoinder. This position has not been even disputed by the State Government.
16. Therefore, the first question that arises is whether we should strike down Rule 17 holding it to be ultra-vires Article 14 of the Constitution or we should uphold the validity by adopting the principle of "reading down" or "reading into", so as to make Rule 17 effective, workable and ensure the attainment of the object of the rule. Ordinarily, the Courts would be reluctant to declare a law or 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.
17. A validity of a rule has to be adjudged on three well recognized tests: (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution (Maharashtra State Board of Secondary and Higher Secondary Education Vs. P.B. Mukarsheth, AIR 1984 SC 1543). There is presumption in favour of the validity of the rule.
18. In Venkayya Vs. Pullayya reported in AIR 1942 Mad. 466, a Division Bench of the Madras High Court, after referring to a decision by the House of Lords in Blackwood Vs. London Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed as under:-
"As has been pointed out by the House of Lords in (1874) 5 PC 92, at pg. 108, the tests to apply in considering whether rules are within the powers of the rule-making authority under a statute are: (1) Whether the rules are reasonable and convenient for carrying the Act into full effect; (2) Whether the rules relate to matters arising under the provisions of the Act; (3) Whether they relate to matters not in the Act otherwise provided for and (4) Whether they are consistent with the provisions of the Act. The validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles."
19. We may quote with profit the observations of the Supreme Court in the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745. In that case, the subject matter before the Supreme Court was the one under the Right to Information Act, 2005. The Court made the following observations in paragraphs 51 and 61, which are reproduced hereinbelow:-
"51.
Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of reading down or reading into the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this court in its various pronouncements."
"61. It is a settled principle of law, as stated earlier, that courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like reading into and/or reading down the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective."
20. In the aforesaid context, we may also refer to and rely upon a decision of the Supreme Court in the case of Ahmedabad Municipal Corporation and anr. Vs. Nilaybhai R. Thakore and anr. reported in 2000 (1) G.L.H 388. In that case, under Rule 7 of the impugned Rules, "a local student" was defined as a student who has passed SSC/new SSC examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal limits. According to that Rule, it was only those students who had qualified from the educational institutions situated within the Municipal limits would be eligible to be treated as 'local students'. While the permanent resident students of Ahmedabad city who for fortuitous reasons, happen to acquire qualification from educational institutions situated just outside the Municipal limits, namely, AUDA, would not be eligible for being treated as the local students. The Supreme Court noticed that the object of the rule was to provide medical education to the students of Ahmedabad who had acquired the necessary qualification, their selection being based on merit. If that was the object, the Supreme Court observed whether the classification based only on the location of the educational institutions within or outside the Municipal area would be a reasonable classification. The Court held that the answer had to be in the negative. However, despite coming to the conclusion that the High Court was right in holding that the rule in question suffered from an element of arbitrariness, the remedy did not lie in striking down the impugned Rules, the existence of which was necessary in the larger interest of the institution as well as the populace of the Ahmedabad Municipal Corporation. The Court observed that the striking down of the rule would mean opening the doors of the institution for admission to all the eligible candidates in the country, which would definitely be opposed to the very object of the establishment of the institution by a local Body. In such circumstances, the following observations of the Supreme Court in paragraph 14 are very apt and could be made applicable to the facts of the present case.
14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the rule in question is only a subordinate legislation and by declaring the rule ultra vires, as has been done by the High Court, we would be only causing considerable damage to the cause for which the Municipality had enacted this rule. We, therefore, think it appropriate to rely upon the famous and oft-quoted principle relied on by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher ( [1949] 2 K.B. 481 (CA)) wherein he held "[When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, ... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
This statement of law made by Lord Denning has been consistently followed by this Court starting in the case of M. Pentiah v. Muddala Veeramallappa 1961 AIR(SC) 1107 ) and followed as recently as in the case of S. Gopal Reddy v. State of A.P. ( 1996 (4) SCC 596, 608 :
1996 SCC(Cri) 792 : 1996 AIR(SC) 2184, 2188) (SCC at 608 : AIR at p. 2188). Thus, following the above rule of interpretation and with a view to iron out the creases in the impugned rule which offends Article 14, we interpret Rule 7 as follows "Local student means a student who has passed HSC (sic SSC)/New SSC Examination and the qualifying examination from any of the high schools or colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of the Ahmedabad Municipality who acquires the above qualifications from any of the high schools or colleges situated within the Ahmedabad Urban Development Area."
21. Bearing in mind the aforesaid principles as explained by the Supreme Court, we are of the view that although Rule 17, more particularly Clause 2(ii) and (iii) may not be declared as invalid, but at the same time, in a situation of the present nature, it is permissible and would be much more reasonable to read into Rule 17 so as to make it more consistent with the object with which Rule 17 has been enacted.
22. In almost an identical case, the Supreme Court in State of Himachal Pradesh Vs. Himachal Institute of Engineering and Technology, Shimla reported in (1998) 8 SCC 501, permitted the management to fill up vacant seats without insisting for appearance of a student at the entrance test. In that case, the contention on behalf of the Institute before the Supreme Court was that if all the payment seats were not exhausted on the basis of the merit criteria, either on account of paucity of students prepared to take admission on payment basis or on account of drop outs after the cut-off date, the vacancy or vacancies, if any, had to be filled by the management. It was also argued that for filling such vacancies, the management had to determine its own criteria since none from amongst those who had qualified at the entrance test was forthcoming to take the seat on payment basis.
In such a situation, it was contended that either the seats might remain vacant and be wasted or the management should be permitted to fill those seats on a reasonable criteria which the management may adopt. It was also argued that if the payment seats remained vacant in such large numbers, the Institute would not be able to meet with the expenses for running the professional course and would be placed on the Hobson's choice of either suffering huge losses or closing down the Institute.
23. Reliance was placed on the decision of the Supreme Court in T.M.A Pai Foundation Vs. State of Karnataka, reported in (1995) 5 SCC 220. The Court observed that the situation was such which had to be resolved because according to the Supreme Court, the choice was between running huge losses or closing the Institute for want of availability of such students. The Court also observed that the finance had to come from those students according to the scheme envisaged in Unni Krishnan's case, reported in (1993) 1 SCC 645 , and if the State Government did not permit the Institute to fill up the vacancies not filled up from amongst students who had qualified at the entrance test, a solution to the question of financing the Institute would also have to be found. In that case, the counsel for the Institute had submitted that if the State Government wanted to adopt the attitude of not permitting the Institute to fill up those vacancies by students prepared to pay but who had not qualified at the entrance examination, then the Government should be prepared to bear the financial burden by paying a sum equivalent to the payment seats remaining vacant to the Institute as a grant to run the Institute, or otherwise it would have to close down. The Supreme Court granted time to the State Government to give response. It appears from the decision that finally the Court concluded the matter vide order dated 25th January, 1996 by observing as under:-
"We had dealt with this matter at length and had passed the speaking order on 4.1.1996. It was at the fag end of the submissions that the learned counsel for the State of Himachal Pradesh had desired that we give him an opportunity to place the matter before the State Government to enable it to make a positive response to the State Government in the matter of filling up the vacancies. There is no response to the same except that the counsel states that the State Government has no desire to fund this Institute because, according to her, it is no more authorised. We have set out earlier the facts leading to the making of the IAs and have also referred to the decision of this Court in Unni Krishnan case as well as in the case of T.M.A Pai Foundation. We had extracted the relevant paragraph from the decision of Unni Krishnan case which clearly stated that any vacancies still remaining after the cut-off date can be filled by the management. In the instant case also, there have been vacancies which have remained unfilled after the cut-off date and it would, there, be open to the management to fill them up in the manner they consider appropriate. The SLP will stand disposed of in the light of and as per directions in Unni Krishnan case."
23. In the present cases also, we propose to follow our decision dated 27th August, 2013 passed in Special Civil Application No.12255/2013. We also propose to rely on our decisions pronounced today in Special Civil Application No.13607/2013, (Association of Self-Financing College through President Vs. State of Gujarat) and Special Civil Application No.14332/2013 (Parul Arogya Seva Mandal Vs. State of Gujarat), wherein the same view has been taken.
24. Thus, following our own decision dated 27th August, 2013 passed in Special Civil Application No.12255/2013, we interpret Rule-19 of the Rules, 2013 as follows:
Rule-19(2)(ii) candidates who have cleared the qualifying examination in the supplementary examination but have not appeared in the open entrance test conducted in the corresponding year"
Rule-19(2)(iii) "names of the candidates who have passed qualifying examination from outside the Gujarat State and have appeared in JEE (Main) conducted in the corresponding academic year, giving priority to the candidates of Gujarat origin and thereafter, the names of the candidates who have passed the qualifying examination from the Gujarat State, but have not appeared in JEE (Main) conducted in the corresponding academic year."
25. In the result, all the petitions succeed and are hereby allowed.
The respondent No.2 Committee is directed to permit the respective petitioners to pursue their course of Engineering/Pharmacy and their admissions in the respective Colleges shall not be cancelled on the ground that the petitioners, although have cleared the supplementary examination have not appeared in the JEE (Main) conducted in the corresponding year. The respondent No.2 Committee is directed to read Rule 19 in the manner as read down by us.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 23 of 23