Gujarat High Court
Priyank Narendrabhai Kamdar & 9 vs Manan Deepakbhai Parikh & 25 on 10 April, 2015
Equivalent citations: AIR 2015 (NOC) 911 (GUJ.)
Author: Jayant Patel
Bench: Jayant Patel, G.B.Shah
C/CA/4296/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (LEAVE TO APPEAL) NO. 4296 of 2015
In LETTERS PATENT APPEAL NO. 799 of 2015
(LPA (St.) No.653 of 2015)
In SPECIAL CIVIL APPLICATION NO. 4891 of 2015
With
LETTERS PATENT APPEAL NO. 799 of 2015
(LPA (St.) No.653 of 2015)
In
SPECIAL CIVIL APPLICATION NO. 4891 of 2015
With
CIVIL APPLICATION NO. 4598 of 2015
(CAST No.4483 of 2015)
In
LETTERS PATENT APPEAL NO. 799 of 2015
(LPA (St.) No.653 of 2015)
With
CIVIL APPLICATION NO. 4353 of 2015
In
LETTERS PATENT APPEAL NO. 800 of 2015
(LPA (St.) No.666 of 2015)
With
LETTERS PATENT APPEAL NO. 800 of 2015
(LPA (St.) No.666 of 2015)
In
SPECIAL CIVIL APPLICATION NO. 4891 of 2015
With
CIVIL APPLICATION NO. 4599 of 2015
(CAST No.4597 of 2015)
In
LETTERS PATENT APPEAL NO. 800 of 2015
(LPA (St.) No.666 of 2015)
TO
CIVIL APPLICATION NO. 4600 of 2015
(CAST No.4598 of 2015)
In
Page 1 of 16
C/CA/4296/2015 ORDER
LETTERS PATENT APPEAL NO. 800 of 2015
(LPA (St.) No.666 of 2015)
================================================================
PRIYANK NARENDRABHAI KAMDAR & 9....Applicant(s)
Versus
MANAN DEEPAKBHAI PARIKH & 25....Respondent(s)
================================================================
Appearance:
MR DHAVAL DAVE, LD SR. COUNSEL with MR JIGAR M PATEL,
ADVOCATE for the Applicant(s) No. 1 - 10 - Appellants
MS JUTHANI, ADVOCATE for Applicants - Appellants
MR S.N. SHELAT, LD. SR. COUNSEL with MS NANAVATI, ADVOCATE for
Gujarat University
JAY B TRIVEDI, CAVEATOR for the Respondent(s) No. 1 - 5
MR SHALIN MEHTA, LD. SR. COUNSEL with MR DIPEN DESAI, ADVOCATE
CAVEATOR for the Respondent(s) No. 1 - 5
================================================================
CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL
and
HONOURABLE MR.JUSTICE G.B.SHAH
Date : 10/04/2015
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. As both the applications for leave and main appeals arise from the common interim order passed by the learned Single Judge in the respective Special Civil Applications, whereby the learned Single Judge has stayed the impugned decision of the University, they are being consider simultaneously.
2. We have heard Mr.Dhaval Dave, learned Sr. Counsel Page 2 of 16 C/CA/4296/2015 ORDER with Mr.Jigar M. Patel, learned Counsel for the applicants - appellants in Civil Application No.4296 of 2015, LPA (St.) No.653 of 2015 and Civil Application (St.) No.4483 of 2015, and Ms.Juthani, learned Counsel for the appellants - applicants in Civil Application No.4353 of 2015, Civil Application (St.) Nos.4597 of 2015 and 4598 of 2015 and LPA (St.) No.666 of 2015.
3. The concerned applications have been preferred by raising the contention that the applicants herein are those students, who aspire to get admission in PG Medical Courses and they are being affected by the impugned order passed by the learned Single Judge and, therefore, leave should be granted to challenge the order passed by the learned Single Judge.
4. Considering the facts and circumstances, we find that leave deserves to be granted. Hence, granted.
5. Civil Applications No.4353 of 2015 and 4293 of 2015 shall stand disposed of accordingly.
6. However, on account of the urgency in the main Letters Patent Appeals, since the matters are pertaining to admission in PG Medical Courses, we Page 3 of 16 C/CA/4296/2015 ORDER have also heard the learned Counsel appearing for the appellants in the respective LPAs, Mr.Shelat, learned Sr. Counsel appearing with Ms.Nanavati, learned Counsel for Gujarat University and Mr.Shalin Mehta, learned Sr. Counsel appearing with Mr.Desai, learned Counsel for respondents No.1 to 5 upon advance copy, since they have filed caveat.
7. The contention raised by the learned Counsel for the appellants was that the University being an academic body had taken the decision to upgrade the result by giving 10% more marks i.e. 40 marks to all students, who had appeared in the entrance examination. Such a decision was of an expert body of faculty members and it was so approved by the Vice Chancellor and, therefore, the learned Single Judge ought not to have interfered with the same. It was submitted that there are powers with the University to upgrade the result and that was so done. In the submission of the learned Counsel for the appellants, since the question paper was tough and the result was unprecedented, the decision was taken by the faculty members and such ought not to have been Page 4 of 16 C/CA/4296/2015 ORDER interfered with by the learned Single Judge. It was also submitted that on account of the interim order passed by the learned Single Judge the appellants have missed the chances of getting admission in all India quota as well as the other Universities, where the admissions were open for PG Medical Courses. The result was declared on 25.1.2015 and they were also declared passed and they were entitled to get admission, but for the order passed by the learned Single Judge they have been deprived of. It was submitted that under the peculiar circumstances, if this Court stays the order of the learned Single Judge for the prospective effect, the original petitioners, who had otherwise cleared the examinations, without upgrading of the result, have already got the benefits and no prejudice will be caused to those petitioners and, therefore, this Court may interfere in the appeals to that extent.
8. Ms.Juthani, learned Counsel appearing in one of the appeals additionally contended that on account of the interim order passed by the learned Single Judge, reserved seats would also lapse and, therefore, this Court may interfere in Page 5 of 16 C/CA/4296/2015 ORDER the present appeal.
9. Whereas Mr.Shalin Mehta, learned Sr. Counsel for the respondents No.1 to 5 submitted that the University had no power to upgrade the result or rather for gracing of marks and, therefore, the learned Single Judge has rightly interfered with the same and the interim order has been passed. However, he submitted that though otherwise not permissible in law, his clients may not have objection if the benefits are given of gracing of marks to the appellants, who are students of the very University. But he submitted that as per the Rule such seats after remaining vacant would go in common pool for the other students of the Gujarat State, wherein also the appellants may have to compete with the students of other Universities on the basis of the result of MBBS marks. It was submitted that if the merit is considered, no interference may be called for to the order passed by the learned Single Judge.
10. Whereas, Mr.Shelat, learned Sr. Counsel for the University submitted that it is on account of the lowering of the score in the result by the students, the University had taken decision to Page 6 of 16 C/CA/4296/2015 ORDER allow grace marks of 10%. He submitted that it was initial decision of the University, but after the order passed by the learned Single Judge and after the first counseling was over and since no other eligible students as per the order passed by the learned Single Judge are available, seats now will be in the common pool to be utilized for admission for the students of various Universities in the State. He submitted that the University is not contemplating to give any relaxation in the Rules as the University has now taken decision to accept the order passed by the learned Single Judge. Therefore, it was submitted that no interference may be made to the order passed by the learned Single Judge.
11. It is true that in the field of education normally this Court would not interfere while exercising the power under Article 226 of the Constitution of India and in the field of education, it should better be left to the academicians to take appropriate decisions. But at the same time, the Court may exercise the power if the decision is tainted with any extraneous consideration or is on the basis of Page 7 of 16 C/CA/4296/2015 ORDER the ground or the circumstance, which cannot be said to be germane to the exercise of the power by the academicians. Had it been a case where the decision for grant of gracing marks of 10% based on any proper material germane to the exercise of the power like that of questions not properly formulated, questions formulated for which there was no answer or there were number of typographical errors for formulating the questions or such circumstances, which can be said as unforeseen circumstances by the question setter, etc., and thereafter if the proper examination is undertaken by the Body of experts and then the decision is taken that the up- gradation of the result should be there, it might stand on a different footing and different consideration. Such a decision, when the same is based on the germane circumstances, the Court may not sit in appeal over the decision of the academicians. But if the decision of the academic body or the decision of academicians in the University is based on non-germane circumstances on the face of it or is based on extraneous consideration, the Court may interfere Page 8 of 16 C/CA/4296/2015 ORDER in exercise of power under Article 226 of the Constitution of India. Therefore, the contention raised by the learned Counsel for the appellants that the Court would not sit in appeal over the decision of the academicians under Article 226 of the Constitution can be accepted only if the decision is based on material and germane circumstances by the academicians or the Body.
12. The examination of the case further shows that on behalf of the University affidavit-in- reply was filed before the learned Single Judge for justifying the decision and in the said affidavit filed by the Registrar of the University, at paragraph 5 it was, inter alia, stated as under:-
"It is within the purview of the University to consider the result of the entrance examination lest there may not be injustice caused to the students as a result of low scoring at the entrance examination. Thereupon, it was resolved to add 10% marks of the students." (Emphasis supplied)
13. The aforesaid shows that since the result of the examination was found to be low namely; out of Page 9 of 16 C/CA/4296/2015 ORDER about 1000 students appeared, only 224 students were declared passed at the entrance examination, the decision was taken to add 10% marks to the students. It may be recorded that it is on account of the result of the addition of 10% marks (40 marks), the number of students, who may stand passed, would be enhanced to 502. The total number of seats available are 306 seats.
14. Rule 4.1 reads as under:-
"4.1 Preference shall be given to candidates graduating from Gujarat University. First all candidates graduate from Gujarat University eligible under Rule1 shall be offered all seats as per Rule 3.0."
15. If the contents of the above affidavit or the stand taken on behalf of the University is tested in light of Rule 4.1 of the University Governing Admission to Post Graduate Degree and Diploma Medical Course other than M.CH and D.M., which has come into force on 3.11.2014, it appears that since the number of seats were 306 and against the same, the candidates, who passed the entrance examination were 224, the left out seats will have to be filled up as per Rule 15, wherein all Page 10 of 16 C/CA/4296/2015 ORDER the eligible students of various Universities of Gujarat State can apply, the decision is taken to add marks by gracing to the extent of 10% and the resultant effect would be that 502 students will stand passed at the entrance examination as against 306 seats available and consequently, all the students of Gujarat University may be able to get admission at the PG Courses and no vacant seat may go in the common pool for the students of other Universities. No material is contended by the University, nor it is shown to us or nor it was shown before the learned Single Judge that on account of germane circumstances as referred to by us herein above, the decision was taken to grant gracing of 10% in the marks. In absence of any germane circumstances, it would mean that the decision was taken by the University so as to make all available seats in PG Course to the students of its own University (Gujarat University) only and resultantly, to deprive the availability of seats to other candidates of the Universities other than Gujarat University in Gujarat State. Such, in our view, prima facie, can be said an extraneous consideration. Page 11 of 16 C/CA/4296/2015 ORDER
16. Apart from the above, it is hardly required to be stated that in PG Medical Admission, merit and merit only be the criteria, because those doctors, who are ultimately to be qualified for PG Courses are to deal with the health of the public at large. Any sacrifice on merits may result into playing adverse effect upon patients and the public at large, who are to utilize the services. The Apex Court in so many decisions has emphasized for no compromise with merits in medical courses. Under these circumstances, we find that when the merit is given a go-by by gracing of 10% marks with extraneous consideration, interference by this Court under Article 226 of the Constitution could not be said as unwarranted. On the contrary, if higher merit or appropriate merit in the admission of medical courses was to be maintained, the Court would be justified for interference, more particularly when merit is given a go-by for extraneous consideration of making of the seats available to the students of Gujarat University only.
17. It is hardly required to be stated that in PG seats for medical courses, it is not that the Page 12 of 16 C/CA/4296/2015 ORDER students' career is to be considered, but the health of the public at large and huge expenses incurred by the Government would also have the role to play. If by maintaining the merits the academicians have taken the decision on the germane circumstances, it may not be the case for interference, but if the departure therefrom is made to give a go-by to the merits only to make the students eligible to get admission and resultantly to deprive the other students of the other Universities, it can hardly be countenanced by this Court under Article 226 of the Constitution of India.
18. Examining the matter from the aforesaid angle read with the reasons recorded by the learned Single Judge, we do not find that the learned Single Judge has committed any error in exercise of the power for grant of interim relief.
19. Attempt made by the learned Counsel for the appellants that the prospective effect may be stayed by this Court, resultantly creating opportunity to get admission by the appellants, who are beneficiaries of the decision of the Page 13 of 16 C/CA/4296/2015 ORDER University, who have the grace marks, cannot be countenanced for the simple reason that had the University taken the decision for giving grace marks on the circumstances germane to the exercise of power as that of the academicians and, that too, without any extraneous consideration, it might stand for different consideration, but in absence thereof and in view of the reasons recorded by us herein above, we do not find that such an indulgence is called for. On the contrary, if such an alternative prayer is entertained, it would result into treating the persons or the students eligible for admission to PG Medical Courses for which they are otherwise not up to the merits as per the original and real result, wherein only 224 students have passed. Hence, we do not find that the said contention should be accepted.
20. The contention raised by the learned Sr. Counsel for the appellants that the reservation would also go on account of the interim order passed by this Court cannot be countenanced for the simple reason that the learned Single Judge has not expressed any view for such purpose. The Page 14 of 16 C/CA/4296/2015 ORDER decision of the University for grant of grace marks of 10% is stayed by the learned Single Judge. The other benefits including that of the reservation, if otherwise to remain, may remain to which, we do not propose to express any view on that aspect, since the same would be outside the scope of the appeal. Suffice it to observe that if the order of the learned Single Judge is to operate and in spite of the same, there is any adverse effect in reservation, which otherwise would have remained, those appellants may bring it to the notice of the learned Single Judge by resorting to appropriate application/proceedings and the learned Single Judge may examine in accordance with law and at that stage, rights and contentions of both the sides shall remain open.
21. In view of the aforesaid, we do not find that any case is made out for interference in both the appeals. It is further observed that the above observations are made only for the purpose of considering the legality and validity of the interim order passed by the learned Single Judge. Since the main petition is pending before the learned Single Judge, suffice it to observe that Page 15 of 16 C/CA/4296/2015 ORDER the learned Single Judge shall be at liberty to take independent view of the matter at the time of final hearing, without being, in any manner, influenced by any of the observations made by this Court in the present order.
22. Both the appeals are disposed of accordingly.
23. In view of the order passed in the main LPAs, the present Civil Applications shall stand disposed of accordingly.
(JAYANT PATEL, J.) (G.B.SHAH, J.) vinod Page 16 of 16