Gujarat High Court
Kalyani Ramchandra Pradhan vs Central University Of Gujarat on 5 April, 2018
Author: Rajesh H. Shukla
Bench: Rajesh H.Shukla
C/SCA/12822/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12822 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to 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 judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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KALYANI RAMCHANDRA PRADHAN
Versus
CENTRAL UNIVERSITY OF GUJARAT
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Appearance:
MR DIPEN DESAI) for the PETITIONER(s) No. 1
MR MITUL K SHELAT for the RESPONDENT(s) No. 1
MR SAHIL M SHAH for the RESPONDENT(s) No. 2,3,4,5
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 05/04/2018
ORAL JUDGMENT
1. The present petition is filed by the petitioner under Articles 14, 19 and 226 of the Constitution of India for the prayers as prayed for inter alia that appropriate writ, order or direction may be Page 1 of 26 C/SCA/12822/2016 JUDGMENT issued quashing and setting aside the action of the respondent - University in publishing select list for the course of M.PhillPh.D. only on the basis of the marks obtained at the interview. It is further prayed that the marks obtained at the entrance test along with marks obtained at the interview by giving 50%50% weightage may be considered for the purpose of select list and also appropriate direction may be given to the respondent - University to consider the marks obtained on the grounds stated in the memo
2. The facts of the case briefly summarized are as follows: 2.1 The petitioner being a national and citizen of India, has challenged the selection criteria for the admission of M.PhillPh.D. course on the ground that it is contrary to the prospectus issued by the University. The petitioner got admission in the respondent University in the course of M.A. English. Thereafter pursuant to the advertisement issued for admission to various programs for the year 201617, the petitioner had applied for the course of M.PhillPh.D. The Page 2 of 26 C/SCA/12822/2016 JUDGMENT petitioner appeared in the entrance test conducted on 26.06.2016 and has also appeared in the interview on 18.07.2015. It is averred that to the surprise of the petitioner, only two questions were asked and though she had replied properly, she has not been selected and the University has not published the meritlist and straightway Notification came to be published on the website showing the list of the candidates provisionally selected for the course of M.PhillPh.D. It is, therefore, contended that the respondent University has changed the criteria by issuing Circular dated 01.07.2016, copy of which is produced at AnnexureG, where it is stated that final meritlist for the appointment to M.PhillPh.D. program is prepared on the basis of the score secured by the candidates in the interview, meaning thereby, the marks obtained in the entrance test could not be considered. Therefore, the present petition is filed on the grounds stated in the memo of petition.
2.2 Affidavitinreply has been filed by the Page 3 of 26 C/SCA/12822/2016 JUDGMENT respondentUniversity. It is contended that as stated in reply, the petition may not be entertained in exercise of discretionary jurisdiction under Article 226 of the Constitution of India as the petitioner has not approached with clean hands. It is stated that it was within the knowledge of the petitioner that the candidate, who had cleared UGC/NET/JRF were exempted from appearing in the entrance test and, hence, the merit list was to be prepared solely on the basis of the performance in the interview. It is, therefore, contended that the petitioner appeared with full knowledge before the Committee and waited for the results of the interview and, thereafter having found that she has not been successful in securing admission, has now approached the Court at belated stage. It is contended that the petitioner has not joined them, who have already admitted and who would be affected by any decision in the present petition and, therefore, the petition requires to be dismissed on the ground of nonjoinder of Page 4 of 26 C/SCA/12822/2016 JUDGMENT necessary party. It is also contended that it has become academic and infructuous as the students, who have got admission, have pursued the course and the course has now been discontinued and, therefore, no relief could be granted to the petitioner. 2.3 It has also been contended that as per the Regulation framed by the UGC, the Institutes are entitled to grant exemption from entering into entrance examination in favour of those candidates, who have cleared UGC/CSIR/JRF/NET examinations. It is also contended referring to the prospectus with reference to the selection criteria that the Admission Committee was constituted to conduct the admission as stated in detail with the members of the Admission Committee and the students, who have obtained minimum stipulated marks in the entrance test were to be called for interview along with other candidates, who had cleared UGC/CSIR/JRF examination. It is, therefore, contended that as per the policy of the University and the Committee decision, the candidates were Page 5 of 26 C/SCA/12822/2016 JUDGMENT called for the interview and the petitioner had also participated and the assessment has been made on the basis of the interview, which was known to the petitioner. The petitioner had addressed complaint to the Registrar on 28.07.2016 by Speed Post, which was received on 29.07.2016, however, the case has been filed on 01.08.2016 without giving any opportunity to the University and remaining admissions were put on hold for the waiting list. Thus the contention has been raised referring to the conduct of the petitioner.
3. Heard learned advocate, Shri Dipen Desai for the petitioner and learned advocate, Shri Mitul Shelat for the respondentUniversity.
4. Learned advocate, Shri Desai referred to the background and also the prospectus and emphasized that for the program in question, criteria for the admission has been provided, which reads as under: "12. SELECTION CRITERIA FOR ADMISSIONS
1. In case of twoyear M.A., M.Sc. and M.Lib.I.Sc. programmes, candidates will be selected for admission as per Page 6 of 26 C/SCA/12822/2016 JUDGMENT the merit list prepared on the basis of entrance test.
2. In case of M.Phil.Ph.D. programmes, eligible candidates will be selected for admission as per the merit list prepared on the basis of entrance test and interview."
5. Learned advocate, Shri Desia, therefore, submitted that the selection criteria for the admission was the merit list prepared on the basis of the entrance test and interview. Learned advocate, Shri Desai submitted that this criteria of the combine marks of the entrance test and the interview as stated in the prospectus have been unilaterally changed without any intimation on the basis of the interview only. He referred to the background and submitted that after the commencement of the admission process, the criteria has been changed. He submitted that no intimation has been given to the students nor it has been published. Learned advocate, Shri Desai referred to the Circular/ guideline issued by the Central University produced at AnnexureG and submitted that as stated in the said guidelines, it was decided that "marks obtained in the entrance test will Page 7 of 26 C/SCA/12822/2016 JUDGMENT be used only for screening purpose. This has been done to keep the JRF students at par with those who appeared for online entrance test. This final merit list for admission to the M.PHilPh.D. Programmes will be prepared on the basis of scores secured by the candidates in the interview, which will be of 100 marks."
6. Learned advocate, Shri Desai, therefore, strenuously submitted that it is total change in the criteria. He also referred to the affidavit inrejoinder to emphasis his submission with regard to the pattern in other University for the purpose of weightage given to the written test and the interview. He, therefore, submitted that other University as referred to in rejoinder had the policy of exempting the students with UGC/CSIR/JRF from appearance in the written test and still 100% weightage has not been given to the performance in the interview. Learned advocate, Shri Desai, therefore, submitted that the respondent - University has done away with the weightage given to the written test and has given 100% weightage to the oral interview, which would clearly lead to arbitrariness, favouritism and nepotism. He, therefore, submitted that it is not permissible Page 8 of 26 C/SCA/12822/2016 JUDGMENT particularly after the admission process has commenced as stated in the prospectus. He submitted that some of the students having their social background may be stronger in written examination, which would cause prejudice to them. He also submitted that as contended in rejoinder, large number of students were called and it is not clear as to how viva test could properly and satisfactorily be carried out to measure the research capability of the students when only few questions were asked to the candidates. Learned advocate, Shri Desai submitted that therefore the interview process is arbitrary and all the members of the selection panel were not present and, therefore, the present petition may be allowed as it would affect the petitioner's career. He has referred to and relied upon the judgment of the Hon'ble Supreme Court in case of Devinder Singh & Ors. Vs. State of Punjab & Ors., reported in (2008) 7 SCC = AIR 2008 SC 261 and submitted that the observations have been made regarding the change in the procedure or the criteria after the selection process has started and it has been deprecated. He emphasized the observations made in Page 9 of 26 C/SCA/12822/2016 JUDGMENT Paragraph Nos.8, 9 and 10.
7. Learned advocate, Shri Desai also referred to the minutes of the meeting produced at AnnexureR2 and submitted that all the panel members were not present for all the candidates and it would suggest about the manner in which whole process has been conducted. He also referred to the Notes of the University regarding the extension for the change in the criteria and submitted that the present petition may be allowed with appropriate direction and appropriate direction may be issued for granting admission to the course or any other suitable course. Learned advocate, Shri Desai has also referred to and relied upon the judgment of the Hon'ble Apex Court in case of K. Manjusree Vs. State of Andhra Pradesh, reported in (2008) 3 SCC 512 = AIR 2008 SC 1470 and emphasized the observations made in Paragraph Nos.29, 22 and 15. Learned advocate, Shri Desai strenuously submitted that when the criteria for the selection process was changed in the interview, it would amount to changing the Rules of the admission unilaterally without any opportunity to the students. He further submitted that the admission based only on Page 10 of 26 C/SCA/12822/2016 JUDGMENT the marks or the performance at the interview will give handle for arbitrariness and it has not been approved by the Hon'ble Apex Court since the judgment delivered by the Hon'ble Apex Court in case of Ajay Hasia Vs. Khauid Mujib Sehravardi, reported in (1981) 1 SCC 722. For that, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Ajay Hasia (supra) and emphasized the observations made in Paragraph Nos.18 and 20. He also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Satpal & Ors. Vs. State of Haryana & Ors., reported in (1995) 1 Supp. SCC 206.
8. Learned advocate, Shri Desai submitted that the Court may grant proper relief and it may be moulded suitably and, therefore, the submission that it has become infructuous or the course has been discontinued, may not be accepted. He referred to and relied upon the judgment of the Hon'ble Apex Court case of Asha Vs. PT. B. D. Sharma University of Health Sciences & Ors., reported in (2012) 7 SCC 389 and submitted that as observed in Paragraph Nos.22, 24 and 25, suitable directions may be issued and the respondent may not be Page 11 of 26 C/SCA/12822/2016 JUDGMENT allowed to take advantage of the situation or their own creation.
9. Learned advocate, Shri Shelat referred to the background of the facts and submitted that the prospectus refers to the selection criteria. However he submitted that entrance test and the interview are two criteria. However as recorded, other candidates, who have cleared UGC/CSIR/ JRF/NET, were also to appear in the interview and, therefore, the marks in the written test could not be compared and, therefore, the decision was taken that as the persons, who have cleared written test, are said to have passed screening test, therefore, they are all put on equal footing and, thereafter, the performance ib interview could be considered. He also referred to the Government gazette/ Notification produced on record and submitted that Clause - 5 refers to the procedure for admission, which reads as under : "5. Procedure for admission:
5.1 All Universities and Institutes Deemed to be Universities shall admit M.Bhil/Ph.D students through an Entrance Test conducted at the level of Individual University/Institution Deemed to be a University. The Page 12 of 26 C/SCA/12822/2016 JUDGMENT University/Institution Deemed to be a University may decide separate terms and conditions for Ph.D. Entrance Test for those students who qualify UGCNET (including JRF)/UGCCSIRNET (including JRF)/SLET/GATE/teacher fellowship holder or have passed M.Phil programme. Similar approach may be adopted in respect of Entrance Test for M.Phil programme."
10. Learned advocate, Shri Shelat, therefore, submitted that the different University may decide separate terms and conditions for the entrance test, who may qualify for UGC/CSIR/JRF/NET etc. and, therefore, it has been accepted that those who have passed such test, are said to have qualified in the written test for the purpose of interview and their performance at the interview could be considered for admission. He, therefore, submitted that it empowers the University to make necessary Rule. He submitted that even for the interview, criteria was fixed. For that, he referred to Clause 5.5, which reads as under: "5.5 The interview/viva voce shall also consider the following aspects viz., whether:
5.1.1 the candidate possesses the competence for the proposed Page 13 of 26 C/SCA/12822/2016 JUDGMENT research.
5.1.2 the research work can be suitably undertaken at the Institution/ College;
5.1.3 the proposed area of research can
contribute to new/additional
knowledge."
11. Therefore, learned advocate, Shri Shelat submitted that the submissions which have been made about the change in the criteria, have to be read in the background of the facts. He submitted that fair treatment is given to other candidates, who have cleared written test. He submitted that the petitioner having participated in the interview, now cannot make a grievance. He submitted that if there was any grievance for the process of admission, it could have raised immediately. He further submitted that the grievance is raised on 27.07.2016. Learned advocate, Shri Shelat, therefore, submitted that no other student has raised any such issue.
12. Learned advocate, Shri Shelat submitted that reason for such belated issue could be considered having regard to the background, conduct and the facts of the case. He pointedly referred to the facts that the brother of the petitioner was Page 14 of 26 C/SCA/12822/2016 JUDGMENT concerned with papersetting and he is said to have indulged into irregularity by not disclosing the relation with petitioner, otherwise, he would not have been involved in the process. Further he is said to have taken papers and stayed at the house, where the petitioner was staying, therefore, inquiry was also conducted. Learned advocate, Shri Shelat, therefore, submitted that it is in this background, insistence of the petitioner on the marks in the written test is required to be considered.
13. Learned advocate, Shri Shelat submitted that the student like petitioner has no fundamental rights to dictate the manner in which the admission criteria should be considered and it is not possible that it could be conducted in the manner desired by the person like petitioner. He submitted that the petitioner has no right to insist on a particular method particularly when the petitioner having appeared in the interview and after having failed, such issues are joined.
He submitted that the University has been allowed by express provision to have its own policy for the purpose of selection and evolve its own Page 15 of 26 C/SCA/12822/2016 JUDGMENT procedure. He submitted that the process adopted by the University is reasonable and as stated above, the written test was meant as qualifying test and, thereafter, the eligibility of the candidates is assessed on the basis of the performance on the basis of the interview. He submitted that the students, who have passed such test, are considered as eligible and, therefore, all those students, who have passed UGC/CSIR/JRF/NET were not required to clear the written test as they had already cleared and they were only to be considered on the basis of the interview. Therefore, the suggestion or the submission of the petitioner that the case of the petitioner should be considered based on the written test and the interview, would not be possible as it would not be possible to compare those, who have passed written test like UGC/CSIR/JRF/NET and their marks may not be available. It is in this circumstances, the decision has been taken. He, therefore, submitted that those students, who have passed different exam as stated above, are required to be considered equally and, therefore, viva voce test Page 16 of 26 C/SCA/12822/2016 JUDGMENT was the only method by which, students could be assessed. He emphasized that even for the purpose of interview or viva voce test, criteria was fixed as to how the marks could be considered. He, therefore, submitted that there is no substance in the petition as the course has now been discontinued and the petition would remain only academic and the petitioner can still get admission in any other course subject to procedure.
14. Learned advocate, Shri Shelat submitted that the scope of judicial review would be limited and in support of this contention, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Sanchit Bansal & Anr. Vs. Joint Admission Board & Ors., reported in (2012) 1 SCC 157 and emphasized the observations made in Paragraph Nos.27, 28, 38 and 39. He also referred to the judgment of the Hon'ble Apex Court in case of B.C. Mylarappa @ Dr. Chikkamylarappa Vs. Dr. R. Venkatasubbaiah & Ors., reported in (2008) 14 SCC 306 and emphasized the observations made in Paragraph Nos.24 and 26, in case of Chief General Manager & Ors. Vs. Surendra Nath Pandey & Ors., Page 17 of 26 C/SCA/12822/2016 JUDGMENT reported in (2011) 15 SCC 81 and emphasized the observations made in Paragraph No.33 and in case of Preeti Mittal & Ors. Vs. Gaganjot Kaur Saira & Ors., reported in (1999) 3 SCC 700 and emphasized the observation made in Paragraph No.24. Again learned advocate, Shri Shelat referred to the judgment in case of Ajay Hasia (supra) and submitted that the present case is not regarding the course but it is regarding the method or the procedure. He submitted that the research, attitude etc. is considered in the interview with specific marks or weightage and, therefore, the submissions are misconceived. He submitted that the Notification produced would justify the selection process. Therefore, learned advocate, Shri Shelat submitted that when the course has been discontinued and other students, who have been admitted in the course, who have been pursuing study and who have not been joined as party, the petitioner cannot claim any relief or prayer regarding the moulding of the relief and same may not be accepted as the petitioner has not established that the petitioner is entitled to any relief. He further submitted that the issue as to Page 18 of 26 C/SCA/12822/2016 JUDGMENT whether the entrance test examination or the mark can be considered for the admission is required to be considered and as discussed above, as it was not possible to have uniformity qua other students, who have passed UGC/CSIR/JRF/NET and as they have passed entrance test, they are considered as eligible and the marks of the interview are considered. He, therefore, submitted that whether the mandamus could be issued, is required to be considered. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Suresh Chand Gautam Vs. State of Uttar Pradesh & Ors., reported in (2016) 11 SCC 113. Similarly, he referred to and relied upon the judgment of the Hon'ble Apex Court in case of Divisional Manager, A.P. SRTC Vs. Kondi K. Rambabu & Ors., reported in (2000) 9 SCC 270 and emphasized the observations made in Paragraph No.4 as also the judgment in case of Mahatma Gandhi University & Anr. Vs. Gis Jose & Ors., reported in (2008) 17 SCC 611 and emphasized the observations made in Paragraph No.10.
15. In rejoinder, learned advocate, Shri Desai again Page 19 of 26 C/SCA/12822/2016 JUDGMENT referred to the prospectus and has reiterated his contention regarding the change in the criteria and also interpretation of policy. He submitted that if the University has stated about procedure or the criteria as stated in the prospectus, it could not be changed. He submitted that admittedly, the University has amended the admission procedure, which would amount to changing the requirement and criteria and, therefore, the present petition may be allowed.
16. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
17. As could be seen from the background of the facts, the petitioner has been claiming admission on the ground that after the admission process started with criteria as stated in the prospectus, it was changed unilaterally. The submission made with much emphasis that when the prospectus referring to the process for selection provided for the marks of the written test and viva voce or the interview, subsequently the University could not have changed the criteria of selection based only on performance at the interview, is required to be Page 20 of 26 C/SCA/12822/2016 JUDGMENT examined closely. There is no doubt that the prospectus referred to this aspect and at the same time as explained, other candidates, who have passed similar examination of the entrance test with UGC/CSIR/JRF/NET, would have cleared the written test. In other words, those who have appeared in such UGC/CSIR/JRF/NET, have cleared the written test and, therefore, it has been accepted as qualifying test for the purpose of interview. Therefore in case of such students, where it is not possible to get marks of the written test for the purpose of comparing with the written test conducted by the University, it was desired that the written test may be considered as qualifying test for the purpose of eligibility for the interview. Thus having put all the candidates on the equal footing that they have passed written test as a qualifying test, suitability could be judged based on the interview with reference to specific criteria as mentioned in Notification at AnnexureR16. This Notification clearly refers as to how viva voce would be conducted with different weightage to the research and other criteria. It is in this background, the submission about the Page 21 of 26 C/SCA/12822/2016 JUDGMENT arbitrariness or the lack of any criteria, is required to be considered. As rightly submitted, the prospectus cannot be considered as a statute or Rule. Therefore whatever has been stated in the prospectus has to be read along with other Regulations. As stated in the reply, the Regulation provides for the discretion of the University and the University has power to frame the Regulation and such procedure for the admission. Therefore, merely because in the past particular procedure was followed, does not justify that same procedure should be adopted by the University and the University has no discretion to make any change in the procedure. As stated above for the valid reason that other students, who have passed different exams from different University, could not have relevant details about the written test or the marks in the written test, which again could not be comparable and, therefore, it has been decided to have such written test as a qualifying test that all who have passed written test, are put on the same footing for the purpose of further test or the interview. It is at that stage, the assessment Page 22 of 26 C/SCA/12822/2016 JUDGMENT could be made with definite criteria set out as stated above. This would not leave the scope for any arbitrariness when the criteria is also provided for the assessment with different emphasis or weightage on the aspect of research work etc. Again the selection is made by a panel consisting of Experts in the field, which would again narrow down any such scope for arbitrariness or any such apprehension. It is in this background, when the selection has been made, students have been admitted in the course and who have pursued the course at an advance stage, where such petition could be entertained. Again the course has been discontinued and, therefore, relief for admission in a particular course could not be granted. Further for a similar course, the petitioner is entitled and eligible to get admission subject to the procedure and passing through test of admission and selection. However as it appears, the petitioner is insisting on the weightage or the marks of the written test only with a view to get admission based on the marks obtained at the written test earlier by her and such instances is required to be considered in Page 23 of 26 C/SCA/12822/2016 JUDGMENT background of the facts reflected in the record. It is the further case that the brother of the petitioner was a part of the Committee for the papersetting having set papers, traveled and had stayed at the house where the petitioner was staying and he had reached previous night there. Further though it was incumbent upon the brother of the petitioner to disclose and keep himself out of this process, did not declare, which ultimately led to inquiry. All these suggest that the petitioner having obtained some marks based on such support of her brother, who had set the papers in the written test, wants to claim the benefit. It is required to be stated that it is not possible to compare the marks obtained by the petitioner in the written test with marks obtained by other candidates having passed UGC/CSIR/ JRF/NET. Therefore two incomparable cannot be compared and as a result for such higher course, the University may have considered the result of the written test as qualified for the purpose of eligibility for the interview.
18. In any case, at this stage when the course has been discontinued, no further prayer could be Page 24 of 26 C/SCA/12822/2016 JUDGMENT considered and mandamus could not be issued to the petitioner. Moreover for other similar courses, it would stand on a different footing where the petitioner is required to pass through the process of admission and it is open for her to pursue remedy and further study after getting admission. However the petitioner does not want to undergo such procedure for pursuing the study but desired to get admission only on the basis of the marks obtained in the written test once as stated above, it is not permissible. Again the issue of moulding relief also requires to be considered that no appropriate relief could be granted in background of the facts and having regard to the case law particularly the observations made by the Hon'ble Apex Court in case of Pankaj Sharma Vs. State of Jammu and Kashmir & Ors., reported in (2008) 4 SCC 273, the relief as prayed for cannot be granted at this stage. Further there is no question of disturbing the studies of other students, who have got admission and having been pursuing the study or rather have advanced their course without hearing them as they have not been joined as party at all. Therefore at the most, the petitioner Page 25 of 26 C/SCA/12822/2016 JUDGMENT could have considered for admission in the course but as the course has been discontinued, no such prayer could be granted for other course and the petitioner may have to undergo the process of admission. Therefore, the submission made by learned advocate, Shri Desai with much emphasis about the bias and arbitrariness, are illfounded and cannot be accepted. Similarly even taking lenient view in favour of the petitioner for the purpose of admission to the same course could have been considered but as the course itself has been discontinued, no relief could be granted.
19. Therefore, the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. No order as to costs.
Sd/ (RAJESH H. SHUKLA, J.) Gautam Page 26 of 26