Madhya Pradesh High Court
Dharmendra Kumar Shrivastava vs Jiwaji University, Gwalior on 19 February, 2002
Equivalent citations: 2002(2)MPHT303
Author: Arun Mishra
Bench: Arun Mishra
ORDER Arun Mishra, J.
1. The petitioner is challenging the action of the University is not giving the admission to him in the course of Bachelor of Pharmacy.
2. The petitioner submits that he secured in 10 + 2 examination 49.77% marks. Petitioner also passed B.Sc. examination in which he secured 53.99% marks. Petitioner appeared in Pre-Pharmacy Admission test conducted by the Jiwaji University, Gwalior. He secured 32nd position in the test. He was called for counselling but as 17 students did not attend the counselling, thus the petitioner stood 15th in the merit of the candidates who appeared for counselling. Number of seats is 60. Out of 60 seats, there are 30 free seats. The sole ground on which petitioner claim was rejected was that he had not obtained 50% marks in 10 + 2 examination. Petitioner filed a representation to give admission. Petitioner submits that as per rules for admission as mentioned in Bulletin cum Prospectus, the minimum qualification is Higher Secondary with 50% marks and 45% marks for reserved category from Board of Secondary Education, Madhya Pradesh, Bhopal or its equivalent examination of any recognised Board/University with General English, Physics, Chemistry and Biology or Mathematics. Petitioner further submits that in case of State of Orissa and Anr. v. Damodar Naik and Anr., (1997) 4 SCC 560, the Supreme Court held that 53.9%has to be accepted as 54%. Thus the decision of the University not to admit the petition is bad in law. The petitioner had in addition done B.Sc. with 53.99% which is an additional qualification. Thus the petitioner has been deprived of the admission in an illegal manner.
3. The respondents have not filed the return however the respondents have chosen to contest the case on the strength of Information Bulletin itself as the facts are not in dispute. The question involved is purely legal one.
4. The learned senior counsel for the petitioner submits that it is a case where petitioner qualifies eligibility criteria for admission. He places reliance on the Supreme Court decision in State of Orissa and Anr. v. Damodar Naik and Anr. (supra), to contend that action of University is arbitrary.
5. The learned senior counsel Shri J.P. Gupta appearing for the University submits that when the requirement is of 50%, figure cannot be rounded of. Reliance is placed on the decision of this Court in Sumit Shrivas-tava v. Jiwaji University, in W.P. No. 1239/2000, decided on 18-10-2000.
6. The main question for consideration is whether the petitioner aggregate 49.77% can be treated to be 50%. The admission eligibility is mentioned in Para 3 of the Information Bulletin cum Prospectus 2001-2002 which is quoted below :--
"The minimum qualification shall be Higher Secondary (10 + 2) with 50% marks (45% for reserved category), from Board of Secondary Education, Madhya Pradesh, Bhopal or its equivalent examination of any recognised Board/University with General English, Physics, Chemistry and Biology or Mathematics. Candidates who have passed Higher Secondary (10 + 2) Examination as supplementary/compartment will not be eligible for admission even if their names appear in the merit list."
7. The Supreme Court in Ajay Pradhan v. State of M.P., AIR 1988 SC 1875, considered the decision of this Court in Urmila Shukla v. State of M.P. in M.P. No. 297/83, decided on 17-10-83. In the background of the fact that there were seven seats for studies in M.S. in subject Obstetrics and Gynaecology in G.R. Medical College. As such seven students had to be admitted for P.O. course in M.S. in Gynaecology and Obstetrics. As per Rule 2.2 of the rules, the State Govt. had fixed the ratio of 2/3 for the merit candidates and 1/3 for the candidates in Govt. service for admission to postgraduate course in Gynaecology. No rules have been framed for working out the ratio of 2/3 and 1/3. The admission was not given, hence the writ petition was filed and decision of the State fixing the ratio as 4/3 was struck down as being wholly arbitrary and without any rational basis. Their Lordships of the Supreme Court did not disapprove the decision of Urmila Shukla v. State of M.P. in para 14 : however distinguished it in the following manner :--
"C.P. Sen, J., speaking for himself and R.C. Shrivastava, J., explained that 2/3rd of 7 came to 4.666 while 1/3rd was 2.333, and the question was now the figure had to be rounded off for filling up the 7 seats. The learned Judge explained that the proper method would be that if the figure is more than half the same has to be rounded off as 1 while if the figure is less than half it is not to be reckoned. The High Court accordingly issued a writ in the nature of the mandamus directing the Government to give admission to Dr. Mrs. Urmila Shukla to the Post Graduate course in Obstetrics and Gynaecology and permit her to appear at the M.S. Examination in that discipline. It is however necessary to observe that the learned Judge mentioned that out of 7 seats for the P.G. course of studies in Obstetrics and Gynaecology, one seat had been kept vacant probably because of the filing of the writ petition by Dr. Mrs. Urmilla Shukla and therefore there could be no impediment to the grant of admission to her and cited a precedent under similar circumstances during the earlier year. Dr. Miss. Sushma Dixit had been admitted to the M.S. course in Obstetrics and Gynaecology because one of the candidates selected had gone abroad without permission and her admission had been cancelled. He further pointed out that Dr. Mrs. Urmilla Shukla was pursuing her studies in the Diploma course in Obstetrics and Gynaecology and the syllabus in the M.S. in that discipline for the first year was the same and therefore there could be no difficulty in her way in determining the percentage of attendance to make her eligible to appear at the examination. The decision in Dr. Mrs. Urmilla Shukla's case therefore turned on its own facts."
8. It follows from the decision of Urmilla Shukla, decided by Division Bench of this Court how the figure has to be rounded of. If the figure is more than half the same has to be rounded off as 1 while if the figure is less than half, it is to be ignored.
9. The Supreme Court also considered the question of rounding off in State of Orissa and Anr. v. Damodar Naik and Anr., (1997) 4 SCC 560 in para 3, their Lordships held as under:--
"The question limited to the notice is whether the respondent would be entitled to payment of salary under the Grants-in-Aid Scheme from the date of initial appointment till he improved his qualification or from the date of his acquiring the qualification ? The admitted position is that respondent No. 1 came to be appointed as a Lecturer in 1978, the Govt. issued clarification on 5-1-1987 that unqualified lecturers having minimum second class, i.e., 48% or above and below 54% of marks in P.G. examination and appointed on or after 1-8-1977 in recognised non-Government Colleges would be eligible to receive grant-in-aid. The resolution dated 13-9-83 issued by the Government prescribes the qualification for recruitment of lecturers of affiliated colleges which indicates that candidates not holding an M.Phil. Degree should possess a high second class Master's degree i.e., 54% marks and a second class Honours/Pass in the B.A./B.Com./B.Sc. examination. Respondent No. 1 secured 53.9% marks, which is almost equivalent to 54% marks on 10-7-87. Therefore the question, arises whether the second respondent is entitled to receive grant-in-aid for payment of salary to the first respondent from the date of his acquiring qualification or from the date of initial appointment ? Admittedly, since the first respondent on the date of his appointment was not possessing the requisite qualification and acquired the same only on 10-7-1987, he will be eligible to the benefit of the grant-in-aid w.e.f. 1-8-1987 and onwards."
The figure of 53.9% was treated equivalent to 54% for releasing grant-in-aid.
10. The learned counsel for the respondent has placed reliance on decision of this Court in (Sumit Shrivastava v. Jiwaji University and Ors.) in which this Court considered the decision of Dr. Urmila Shukla v. State of M.P. (supra), in the light of the rules which came to be considered for admission in M.Sc. Computer Education Course which requires not less than 50% marks in aggregate.
11. In Ajay Pradhan's case Supreme Court has observed that the case needs to be decided as to permissibility of rounding off, considering the rules in question. In the absence of rule providing rounding off, the figure of less than half has to be ignored and more than half to be treated as one. In Ajay Pradhan their Lordship of Supreme Court did not disapprove the decision of this Court in Dr. Urmila Shukla's case. The decision in Sumit Shrivastava has different field to operate and is applicable to the rules for admission in M.Sc. (Computer Education) course. This Court has laid down specifically in Sumit Shrivastava case (supra) that:--
"But in present case rules are specific and clear and admission can be given to a candidate who has secured atleast 50% marks. Thus any candidate having less than 50% marks is not eligible for admission.
Hence the rules in question is not pari materia to that which came to considered by this Court in Sumit Shrivastava case (supra)."
12. In the instant case there is additional factor in favour of the petitioner which is that he is having higher qualification of B.Sc. in which he is having 53,99% marks and his 49.7% marks of Higher Secondary have to be rounded off as 50% for finding out his effective percentage. Rules in question does not debar rounding off of the figure. It is also not prescribed that any fraction more than half has to be ignored. Thus in my opinion, the petitioner has been wrongfully deprived of admission in Bachelor of Pharmacy course by the respondent-University.
13. In the result, petition is allowed. The respondents are directed to give admission to the petitioner in accordance with rules subject to fulfilment of other formalities.
Cost on parties.