Gujarat High Court
Eshika Satyajit Das vs State Of Gujarat on 6 November, 2020
Equivalent citations: AIRONLINE 2020 GUJ 1484
Author: Vikram Nath
Bench: Vikram Nath, J.B.Pardiwala
C/LPA/799/2020 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 799 of 2020
In R/SPECIAL CIVIL APPLICATION NO. 3576 of 2020
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In R/LETTERS PATENT APPEAL NO. 799 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH Sd/-
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
ESHIKA SATYAJIT DAS
Versus
STATE OF GUJARAT
==========================================================
Appearance:
MR. ANSHIN DESAI, LD. SR. COUNSEL with MS. NIKITA S BAROT(7417)
with SANSKRUTI R SHUKLA(8913) for the Appellant(s) No. 1
MS. MANISHA LUVKUMAR SHAH, LD. GOVERNMENT PLEADER with MR.
CHINTAN DAVE, LD. AGP for the Respondent(s) No. 1
for the Respondent (s) 2
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. VIKRAM NATH
and
HONOURABLE MR. JUSTICE J.B.PARDIWALA
Date : 06/11/2020
CAV JUDGMENT
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C/LPA/799/2020 CAV JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant of a writ application and is directed against the judgment and order passed by a learned Single Judge of this Court in the Special Civil Application No.3576 of 2020 dated 14.10.2020, by which, the learned Single Judge declined to grant the relief as prayed for and rejected the writ application.
2. The facts in brief giving rise to this appeal may be summarized as under;
2.1 The appellant (original writ applicant) came before this Court by filing the Special Civil Application No.3576 of 2020 with the following prayers;
"(A) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing the respondent authorities not to consider the petitioner as ineligible for securing admission in the professional medical educational courses as per the provisions of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 only because she has studied Std.10 from the institution situated outside the State of Gujarat;
ALTERNATIVELY (B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions directing that rule (4)(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, shall not apply to the petitioner who is domicile of the State of Gujarat and had to take admission in 2016-18 in Standard 09th and 10th in the institution situated outside State of Gujarat;
Page 2 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT(C ) During the pendency and final disposal of the present petition, Your Lordships may be pleased to direct the respondent authorities not to consider the petitioner as ineligible for securing admissi0on in the professional medical educational courses as per the provisions of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 only because she has studied Std.10 from the institution situated outside the State of Gujarat;
(D) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."
2.2 It is the case of the appellant that she is residing with her parents in the State of Gujarat since the year 1997. The father of the appellant owns an immovable property being a residential flat.
2.3 The appellant is a student with a brilliant academic record. The appellant secured Grade A1 (96.4%) in the Standard 10 th and Grade A1 (95%) in the Standard 12 th. The appellant successfully cleared the National Eligibility cum Entrance Test (NEET) and is desirous of securing admission in the Professional Medical Course in the State of Gujarat.
2.4 It is the case of the appellant that upto Standard 8 th, she studied in the State of Gujarat. As few well established institutes at Kota-Rajasthan are imparting coaching for the NEET, the appellant left for Kota from Standard 9 th onwards. She studied in the Standard 9th and 10th respectively at Kota.
2.5 After completing the Standard 9th and 10th at Kota, she took a transfer to the Gyaan Kendra, CBSE School, situated at Umargaon, District: Valsad, State of Gujarat. She cleared her Page 3 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT Standard 11th and 12th exams from the said school at Umargaon.
2.6 It is pointed out by the appellant that when she secured admission in Standard 10th in the Disha Delhi Public School at Kota, Rajasthan, there was no requirement of studying Standard 10th from the school located in the State of Gujarat. It is her case that she secured admission in the Standard 10 th at Kota on 14.03.2017. It is pointed out that the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 came to be introduced on 23.06.2017. Thereafter, by way of an amendment in Rule 4, the requirement of passing of Standard 10 th and 12th from the institution situated within the State of Gujarat was included. It is her case that due to the same, she is now not being considered as an eligible student to secure admission in the professional medical course in the State of Gujarat.
2.7 As admission was declined, she came before this Court, seeking appropriate reliefs referred to above.
2.8 The learned Single Judge rejected the writ application holding as under;
"6. According to the petitioner, pursuant to the aforementioned observations, the State Government inserted proviso for the academic year 2018-19 and for the year 2019-20 as per notification dated 25.6.2018 and 15.5.2019 annexed at Annexure G to the petition and therefore, the petitioner has sought similar treatment on the basis of observations so made by the Division Bench, as aforesaid.
7. It is the case of the petitioner that when the petitioner took admission in standard 10th on 14.3.2017 in the school situated outside State of Gujarat, Rule 4(3) was introduced on 23.6.2017, whereby the requirements of passing of 10th Page 4 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT and 12th from the institution situated in the State of Gujarat were included/introduced in the Rule and there, said rule is inapplicable to the petitioner.
8. Before issue raised in the petition is considered on its merits, it is relevant to reproduce provisions of sections 3 and 20 of the Gujarat Professional Medical Educational Colleges of Institution (Regulation of Admission and Fixation of Fees) Act, 2007 and Rule 4 of the Rules of 2017.
"SECTION 3 : Admission in professional educational colleges or institutions (1) Notwithstanding anything contained in any other law for the time being in force or in any judgment, decree or order of any court or any authority or in any agreement, all the admissions to the professional courses in the professional educational colleges or institutions shall be made in accordance with the provisions of this Act.
(2) Any admission made in contravention of the provisions of this Act shall be invalid.
SECTION 20 : Power of State Government to make rules (1) The State Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.
RULE 4 : Eligibility for Admission A candidate who desires admission shall-
(1) be a citizen of India:
Provided that a candidate whose parents are origin of India, and do not hold Indian citizenship and have applied for Indian citizenship, shall produce the proof of submission of such application to the Admission Committee before the date of counseling. Such candidates shall be admitted provisionally subject to submission of the certificate of their having acquired the Indian citizenship on or before 31 July of next year, failing which their provisional admission shall be treated as cancelled without any notice.Page 5 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT
Provided further that candidates seeking admission on Non- Resident Indian seat shall be Non-Resident Indian or children or wards of a Non-Resident Indian.
"(1-A) be born in Gujarat State or be the Domicile of Gujarat State.".
Provided that candidates of Union Territories of Daman & Diu and Dadra & Nagar Haveli shall be exempted from this sub-rule for the academic year 2018 19.
'Provided further that candidates of Union Territories of Daman & Diu and Dadra & Nagar Haveli shall be exempted from this sub-rule for the academic year 2019- 20.
(2) have completed 17 years of age on the 31st December of the Academic Year for which the admissions are being conducted:
(3) have passed the 10th and 12th qualifying examination with B-group" or "AB-group" from-
(i) The Gujarat Board; or"
(ii) The Central Board of Secondary Education provided that the school in which the candidate has studied, is located in the State of Gujarat; or
(iii) The Council of Indian School Certificate Examinations Board, New Delhi provided that the school in which the candidate has studied, is located in the State of Gujarat:
(iv) The International School Board (International Baccalaureate and Cambridge) provided that the school in which the candidate has studied, is located in the State of Gujarat; or
(v) The National Institute of Open Schooling provided that the school in which the candidate has studied, is located in the State of Gujarat.".
Provided that a candidate seeking admission on Non- Resident Indian seat must have passed the qualifying Page 6 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT examination from anywhere with Physics, Chemistry and Biology.
"Provided that for the purpose or admission for the academic year 2018-19 only, the candidates who have studied and passed 10 standard from the school located outside the State of Gujarat shall also be eligible.
Provided further that for the purpose of admission for the academic year 2019-2020 only the candidates who have studied and passed 10 standard from the school located outside the State of Gujarat shall also be eligible.
(4) have qualified in NEET conducted in current academic year in case of MBBS, BDS, BAMS, BHMS, BNAT;
"(5). Minimum qualifying admission standard for admission No candidate shall be admitted in the MBBS, BDS, BAMS, BHMS and BNAT Courses in Government Seats, Management Seats and NRI seats unless he/she possesses minimum qualifying standard in HSC examination and NEET of current academic year, as may be decided by the respective Council /the Central Government and fulfills eligibility criteria under these rules.".
"(6) (a) Sons and daughters of All India Services Officers viz. Indian Administrative Service, Indian Police Service, Indian Forest Service etc. allotted to the Gujarat State and serving outside the Gujarat State on deputation, and
(b) Sons and daughters of Gujarat Government Employees, who have been posted outside the Gujarat State for the administrative reasons,
(c) Sons and daughters of defense personnel who are domicile of Gujarat State and presently serving outside Gujarat State. shall be treated at par with the candidates under sub-rule (1) provided they have passed the qualifying examination from the respective State Board or Central Board or The Council of Indian School Certificate Examination Board or The International School Board (International Baccalaureate and Cambridge) or The National Institute of Open Schooling and obtained qualifying Page 7 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT marks under clause A of sub-rule (5) of rule 4. In such cases, his / her candidature shall be included in the merit list referred to In clause (a) of sub- rule (1) of rule 10.
Notwithstanding anything contained in these rules, he will be eligible for management seat irrespective of the fact that such candidate has passed qualifying examination from a school located in the state or outside the state of Gujarat.".
(7) A candidate who has.
(I) Studied under Jawahar Navodaya Vidyalaya Scheme up to Standard VIII in any of the schools located in the State of Gujarat, and (ii) thereafter studied in any of the schools located outside the State of Gujarat under the said scheme, and
(iii) passed qualifying examination from a Navodaya Vidyalaya located outside Gujarat State and
(iv) have qualified in the NEET, conducted in the current academic year and obtained marks under clause A of sub- rule (5) of Rule 4 shall be eligible for admission and bis candidature shall be included in the merit list of MBBS, BDS, BAMS, BHMS and BNAT courses as under clause (a) of Rule 11 [****].
Explanation.-"Jawahar Navodaya Vidyalaya Scheme"
means the Jawahar Navodaya Vidyalaya Scheme started during the year 1985-86 by the Government of India in accordance with the National Policy of Education and managed by Navod aya Vidyalaya Samiti, an autonomous organisation under the department of Education, Ministry of Human Resource Development.
(8) A candidate who has passed the qualifying examination after appearing in the supplementary examination conducted by the Board shall not be eligible for admission in the current academic year.
"(9) A candidate who has secured admission under these rules in any year shall also be eligible for admission to any course if he pays total fees as determined by the Fee Page 8 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT Regulatory Committee for entire course which he / she is pursuing presently and thereupon the concerned institute shall require to issue the "No Objection Certificate" and return original documents. The candidate shall require to submit the same to the Admission Committee to consider him / her for new admission at the time of counseling.".
9. In view of above factual position and provisions of the Act and Rules, the present petition needs to be considered. The petitioner has not challenged Rule 4(3)(ii) of the Rules of 2017 and it is not rightly done so in view of series of decisions rendered by the Division Bench of this Court in case of (i) Vishakha Motors Vs. State of Gujarat reported in 2013(1) GLR 11, (ii) Sheetal Yeshwantkumar Parmar Vs. State of Gujarat reported in 2013(3) GLR 2643, (iii) Nina Punjabhai Vadhel Vs. State of Gujarat reported in 2015(1) GLR 676, (iv) Taksh Vijaybhai Hadvani V. State of Gujarat rendered in Special Civil Application No.8590 of 2018 and other allied matters and (v) in case of Kushal Ravindrakumar Pande Vs. State of Gujarat rendered in Special Civil Application No.13877 of 2017 and allied matters and lastly in case of (vi) Paragbhai Bhimshibhai Luva Vs. State of Gujarat rendered in Special Civil Application No.13842 of 2017.
10. Thus, it is finally concluded and held by the Division bench of this Court in various pronouncements that the Rules of 2017 is valid and not violative of Article 14 of the Constitution of India or otherwise discriminatory in any manner, more so, when the students can get admission in 15% seats of All India Quota. Thus, for the prayer made in the said petition before the Division Bench of this Court on various factual position of students with respect to obtaining education at the place other than State of Gujarat and/or place of their geographical location, High Court turned down prayers to strike down Rules 4(3)(ii) and 4(1- A) of the Rules of 2017 in exercise of powers under Article 226 of the Constitution of India.
11. Despite the petitioner being conscious of her ineligibility, which she incurs by virtue of application of Rule 4(3)(ii) of the Rules of 2017 for admission to the professional medical institution of the State of Gujarat as she undergone Page 9 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT her 10th standard from a school situated outside State of Gujarat, the petitioner has prayed for a grant of direction against the respondent authority to consider the petitioner as eligible for securing admission in professional medical educational institution and in alternative, the petitioner has prayed that Rule 4(3)(ii) of the Rules of 2017 be held as inapplicable to the case of the petitioner. Thus, the petitioner has sought writ to hold Rule 4(3)(ii) as inapplicable to her case. Needless to say that Rules of 2017 regulates admission to professional medical educational institution in State of Gujarat and the State has framed the rules in exercise of its powers u/s 20 of the Act of 2007 and after having challenged said Rule by various students on various grounds remained unsuccessful and ultimately, the position, as existing today, is such that any student seeking admission to professional medical educational institution is mandatorily bound to fulfill eligibility criteria as laid down in Rules of 2017. The petitioner cannot claim any exception/exemption from application of Rule 4(3)(ii), more particularly, on the ground that the Rule came into force after she took admission in 10th standard at Kota, State of Rajasthan and/or on account of two notifications issued by the State of Gujarat pursuant to the observations made by the Division Bench in para 32, as aforesaid.
In other words, the petitioner's right to be admitted in professional medical educational institution is subject to Rules of 2017 and when the petitioner does not have any absolute enforceable right to be admitted much less fundamental right to get the nature of relief prayed for, present petition is nothing, but a device to get sympathatical observation from this Court in the line of para 32 of the decision of the Division Bench, as aforesaid. Thus, in Court's considered opinion, the petitioner does not have any enforceable right through provision brought about by virtue of amendments through notification dated 25.5.2018 and 15.6.2019 in the Rules of 2017. Thus, the petitioner is not fulfilling requisite eligibility criteria of Rule 4(3)(ii). Therefore, the claim made by the petitioner to give exemption/exception about its applicability is devoid of merits, because exception to the applicability of Rule 4(3)
(ii) is already provided in the Rules itself by virtue of proviso to Rule 4(3), which is inapplicable to the petitioner, inasmuch as she seeks admission for academic year 2020- Page 10 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT 2021.
12. Additionally, it requires to be noted that any exemption/exception granted in a particular year by the State as a concession based on observations, as aforesaid, if any, such concession cannot be sought to be extended, as it does not vest any legal or fundamental right for invoking extraordinary power of this Court under Article 226 of the Constitution of India. Thus, any exemption/ exception cannot be sought as a matter of right and thus, the petitioner's case cannot be considered in light of two aforesaid notifications issued by the State or introduction of Rule 4(3)(ii) after taking her admission is of no avail or a ground to knock the door of the Court.
13. In view of above discussion, it clearly appears that present petition is more mercy petition rather than legal petition and therefore, this Court is not inclined to exercise its powers in favour of the petitioner on any ground including in light of observations made by the Division Bench in para 32, as aforesaid.
14. In the result, present petition being devoid of merits, both on law and facts, fails and is hereby rejected. Rule discharged. "
2.9 Thus, it appears from the above that the learned Single Judge rejected the writ application and thereby declined to grant any relief to the writ applicant substantially on the following grounds;
(i) The writ applicant cannot claim any exception/exemption from the application of Rule 4(3)(ii), more particularly, on the ground that the rule came into force after she secured admission in the 10th standard at Kota, State of Rajasthan.
(ii) The writ applicant has not challenged the validity of Rule 4(3)(ii) of the Rules, 2017 and rightly so in view of the various decisions of this Court, as referred to in Para-9 of the impugned Page 11 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT judgment.
(iii) The right of the writ applicant to be admitted in the Professional Medical Educational Institution is subject to the Rules of 2017. The writ applicant has no absolute enforceable right to be admitted much less a fundamental right to seek any relief.
(iv) The writ application is nothing but a device to seek the sympathy of the Writ Court. The writ application is nothing but a mercy petition rather than asserting any legal right.
2.10 Being dissatisfied with the judgment and order passed by the learned Single Judge, referred to above, the appellant (original writ applicant) has come up before this Court with the present appeal.
Submissions on behalf of the writ applicant:-
3. Mr. Anshin Desai, the learned senior counsel appearing for the appellant would submit that the principal issue raised in this appeal is with regard to proper implementation, reasonable execution and proportionality of restriction of the amended Rule 4(3)(ii) of the Gujarat Professional Medical Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 (for short "the Rules, 2017"). Mr. Desai pointed out that the respondents, in exercise of their powers conferred under Section 20 Sub-section (1) read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (for short "the Act, 2007"), had issued two notifications dated 25.06.2018 and 15.06.2019 Page 12 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT respectively, whereby the provio was inserted in Rule 4 Sub-rule (3) before the existing proviso making the students eligible for the academic year 2018-19 and, thereafter, for the academic year 2019-20 for securing admission in the Professional Medical Course in the State of Gujarat.
4. Mr. Desai would contend that for the effective implementation and meaningful interpretation of Rule 4(3)(ii) of the Rules, 2017 for one last time, i.e, for the year 2020-21, a similar notification like the two referred to above should be issued. Mr. Desai would argue that the embargo for securing admission could be said to have been extended with retrospective effect by including Standard-10. It is pointed out that prior to the said amendment, Standard-10 was not included.
5. Mr. Desai very fairly submitted that if the academic year in accordance with the amended rule is to be calculated, then it would relate back to the year 2017-18 and, therefore, the third extension/regulation in terms of the earlier two notifications is a must.
6. Mr. Desai pointed out that the amended rule came to be introduced with effect from 23.06.2017, and at that relevant point of time, so far as the CBSE students are concerned, their academic year had already commenced sometime in March, 2017.
7. It is also argued that the appellant indisputably possesses the domicile of State of Gujarat. The appellant shifted to Kota in March-April 2016 and secured admission in Standard-9 in the Page 13 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT Disha Delhi Public School at Kota, Rajasthan. Upto Standard-8, the appellant studied within the State of Gujarat. She shifted to a boarding school in Kota only for the reason that she aspires to become a Doctor and there are good institutions at Kota imparting training for the NEET Examination from Standard-9 itself.
8. It is pointed out that the appellant was promoted to the Standard-10 and took admission on 14.03.2017, i.e, the fresh academic term of the CBSE, whereas the State of Gujarat amended the Rules on 23.06.2017, i.e, after the academic term of the CBSE had commenced.
9. It is also pointed out that the appellant shifted to Gujarat after successfully passing the Standard-10 with 96.4% (Grade- A1) from Kota, Rajasthan.
10. It is further argued that the stance of the respondents while declining admission to the appellant could be termed as unreasonable as there is every possibility that a student who might have secured lower marks may get higher merit rank than the appellant by taking the benefit of Rule 4(3)(ii) of the Rules, 2017. It is argued that the rule cannot have a retrospective effect, more particularly, when it comes to education, and that too, in the medical courses so as to affect the career of meritorious students.
11. Mr. Desai would argue that the rule should be read and interpreted in favour of the student and is required to be relaxed for the third year also so as to give a meaningful effect to the same. The Constitution reads education as a welfare activity of Page 14 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT State, social benefit of which is greater to the society. It is argued that there is no reasonable nexus and " Intelligible Differentia" not to extend the benefit for the third year and that too for the last time. It is argued that the classification of rule must be founded on Intelligible Differentia which distinguishes those that are grouped from others. It is argued that a statutory provision and its correct interpretation must be so construed so as to make it effective and operative and not reduce the statute to futility or absurdity or unreasonableness.
12. In such circumstances, referred to above, Mr. Desai prays that there being merit in his appeal, the same may be allowed and the impugned judgment and order passed by the learned Single Judge be set aside.
13. Mr. Desai prays that the writ application filed by his client may be allowed and appropriate relief may be granted.
Submissions on behalf of the State:-
14. Ms. Manisha Luvkumar Shah, the learned Government Pleader has vehemently opposed this appeal. Ms. Shah would submit that no error, not to speak of any error of law, could be said to have been committed by the learned Single Judge in passing the impugned judgment and order.
15. The principal argument of Ms. Shah is that the appellant cannot assert any legal right to seek a writ of mandamus to the State for the purpose of seeking benefit of the proviso as contained in the two notifications issued by the State dated 25.06.2018 and 15.06.2019 respectively.
Page 15 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT16. Ms. Shah would submit that the issues raised in the present litigation are, by and large, covered by a Division Bench decision of this Court in the case of Taksh Vijaybhai Hadvani vs. State of Gujarat, Special Civil Application No.8590 of 2018 and allied petitions, decided on 25.06.2018. Ms. Shah pointed out that in the group of petitions, referred to above, the students who had completed their 12th standard and were desirous of seeking entry to the stream of medical courses, challenged the eligibility criteria notified for the admission to the Gujarat Professional Medical Educational Courses under the Rules, 2017 framed in exercise of powers under Section 20 of the Act, 2007. Ms. Shah pointed out that in the said litigation, the challenge was to the Rule 4(3)(ii) and Rule 4(1-A) of the Rules, 2017. Ms. Shah pointed out that the challenge by the students in the said litigation failed. Ms. Shah would argue that the appellant herein should also fail in the present litigation on the same footing. Ms. Shah took us through few relevant observations made by the Coordinate Bench of this Court in the case of Taksh Vijaybhai Hadvani (supra). We may refer to those observations;
"27. ******* By applying said ratio, we are of the view that merely because, condition imposing requirement of passing of 10th Standard from the school situated in the State of Gujarat was not there, when the petitioners passed 10th Standard, it cannot be said that they have acquired any right. Whether the rules which are in force for entry to medical courses are to be amended or not, it is primarily for the respondent State to do so. Having regard to past experience and requirements, it is always open for the State Government to update the rules as required to meet the situation to fulfill criteria having regard to object of the legislation. Merely because said rules are not suiting some candidates, it cannot be said that such amendment amounts to taking away their Page 16 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT rights. It is to be noticed that in absence of any right, it cannot be said that any right is taken away. Similarly, promissory estoppel and legitimate expectation also cannot be accepted.
*** *** *** *** 31] At the same time, it is to be noticed that to regulate admissions in undergraduate medical course, State of Gujarat has brought in force regulation titled 'Gujarat Professional Medical Educational College or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007. Section 20 of the said Act empowers the respondent State to make rules. After the Act has come into force, Rules are framed from time to time to regulate admission to undergraduate medical courses. Till the academic year 20162017, as per rules which were framed, there was only requirement of passing of qualifying examination of 11th and 12th Standard from the institute located in the State of Gujarat. To ensure reservation to local resident, in the year2017, rules were framed in supercession of earlier rules. The respondent- State has framed the rules in the year 2017 to the effect that the candidates will be eligible under 85% if he / she has passed 10th, 11thand 12th Standard from the schools situated in the State of Gujarat and CBSE schools situated in the State of Gujarat. Challenging the Rules of2017, when batch of petitions was filed questioning such rules, the respondents have not seriously insisted for complying requirement of passing 10th Standard from the school situated in the State of Gujarat. It is the case of the respondent State that in last year about 400 students got admission in the medical stream who belong to outside State of Gujarat, by joining in 11th and 12th Standard in the State of Gujarat only for the purpose of entry in medical stream. In view of the same, Rule 4 is further amended by amending Act, 2018 which was notified on04.05.2018. By aforesaid Rule, domicile requirement is introduced for the purpose of claiming 85% of reserved quota. It is true that earlier when the rules were challenged, we have confirmed Rule 4(3)(ii) of the Rules, 2017 in Special Civil Application No. 13877 of 2017 and Special Civil Application No.14260 of 2017 vide judgment dated 04.08.2017 and Special Civil Application No.13842 of 2017, but there is noticeable change thereafter in the Rules i.e. insertion of Rule 4(1A) of the Page 17 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT Rules,requiring fulfillment of domicile criteria for the purpose of reservation in the State quota. In the year 2017, when domiciliary requirement was not there in the Rules, passing of 10th Standard from the school situated in the State of Gujarat, in addition to existing requirement of 11th and12th Standard was introduced, but further to ensure that quota is reserved for candidates of Gujarat, domiciliary requirement is also introduced under Rule 4(1A) of the Rules, 2017.
[32]Having regard to defence put forth by the respondents,further considering that the eligibility criteria and qualification to be prescribed for making admission, is a matter primarily within the domain of the respondents, in absence of demonstrating that the impugned rules are arbitrary, we cannot grant any relief, as prayed for,by the petitioners in these petitions filed under Article 226 of the Constitution of India. At the same time, as it is the case of some of the petitioners that they are permanent residents of State of Gujarat and having passed 11th and 12th Standard from the schools situated in State of Gujarat, they are not fitting into eligibility criteria only on the ground that they have studied 10th Standard from the schools situated out side State of Gujarat, we deem it appropriate that said matter is required to be considered by the respondents.
[33]In view of aforesaid discussion and reasons, we do not find any merit in these petitions for grant of any relief as prayed for, to strike down Rule 4(3)(ii) and Rule 4(1A) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, in exercise of powers under Article 226 of the Constitution of India.
[34]At the same time, as it is noticed that after Rule 4(3)
(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 referred above, is upheld by this Court, in view of dismissal of the petition challenging the aforesaid Rule earlier, there is change in the Rules by introducing Rule4(1A) which is inserted by way of amendment to the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, by Notification dated 04.05.2018.In view of insertion of Rule 4(1A) of Page 18 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, which prescribe the candidate to be domicile of Gujarat, whether requirement of passing of 10th Standard from the school situated in the State of Gujarat, as contemplated under Rule 4(3)(ii) of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, as existedearlier to be continued or not, needs consideration by the respondent State. It is the case of some of the petitioners that though they fulfill criteria of domicile and passing requirement of 12th Standard from the school situated in Gujarat, but they are excluded from the eligibility criteria only on the ground that they have studied 10th Standard from the school outside State of Gujarat. In that view of the matter, as object of the Rules is to give benefit to the candidates who are domicile of the State of Gujarat, we direct the respondent State to take decision forthwith on the said issue whether to continue Rule 4(3)(ii) of the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 in the same form or not and take appropriate decision accordingly, without loss of any time."
17. Ms. Shah also invited the attention of this Court to the affidavit-in-reply filed on behalf of the respondent No.2 in the main matter, i..e, the Special Civil Application No.3576 of 2020, more particularly, the averments made in Paras-5 and 6 therein;
"5. It is most respectfully submitted that an appreciation of the aforesaid undisputed facts would lead to the following inference:
5.1 The petitioner has undergone her 10 th standard from Disha Delhi Public School, Kota which perceivably is a school affiliated to the Central Board of Secondary Education situated outside Gujarat.
5.2 The petitioner is aspiring for admission to Professional Medical Educational Institution for the academic year 2020-
21. Page 19 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT 5.3 The petitioner is not fulfilling the requisites of Rule 4 (3)(ii). The exception to its applicability is also provided in the Rules itself by virtue of the proviso to Rule 4(3) which is inapplicable to the petitioner inasmuch as the same seeks admission for the academic year 2020-21.
6. It is most respectfully submitted that in the context of aforesaid inferences when viewed in the backdrop of law, the following position emerges;
6.1 The petitioner's claim and the prayers justifying her claims are inadmissible. In light of the judgment dated 25.06.2018 rendered in SCA No.8590 of 2018 since by virtue of such judgement the requirement for undergoing Std. 10Th from the State of Gujarat is upheld.
6.2 The Rule 4(3)(ii) which the petitioner does not fulfill is of a mandatory application and exceptions from its applicability applied only for students who sought admissions for academic year 2018-19 and 2019-2020 . Such exception exists and is prescribed through provisions in the said Rule itself. Such exception cannot be invoked in the case of the petitioner since the same aspires to be admitted for the Academic year 2020-21.
6.3 Exemptions granted in a particular year as a concession cannot be sought to be extended as there vests to legal, statutory or fundamental right seeking exercise of the same. Exemptions/exceptions and privilege cannot be sought as a matter of right much less they being considered as an enforceable right. Therefore, the petitioner's claim of seeking through the present writ petition an exception/exemption from applicability of Rule 4(3)(ii) for the Academic year 2020-21 is inadmissible and does not befit as a cause of action for ivoking the writ jurisdiction.
6.4 The prayers made by the petitioner is being contrary to law are illegal.
6.5 Since the prayers are illegal no ground raised by the petitioner to justify the prayers are legally tenable."
Page 20 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT18. In such circumstances, referred to above, Ms. Shah prays that there being no merit in the present appeal, the same may be dismissed.
ANALYSIS
19. 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 is whether the learned Single Judge committed any error in passing the impugned judgment and order.
20. Before adverting to the rival submissions canvassed on either side, we must first look into the two notifications which were issued by the State for the years 2018-19 and 2019-2020 respectively. The first notification dated 25.06.2018 reads thus;
"Notification Health and Family Welfare Depatment Sachivalaya, Gandhinagar Dated: 25th June, 2018 No.GP-24-MCG-1018-SFS-23-J:- In exercise of the powers conferred by Sub-section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutes (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj.3 of 2008), the Government of Gujarat hereby makes the following rules further to amend the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017 namely:-
1. The rules may be called the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) (Third Amendment) Rules, 2018.
2. In the Gujarat Professional Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, in Rule-4, in Sub-Rule (3), before the existing proviso, Page 21 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT the following proviso shall be inserted namely:-
"Provided that for the purpose of the admission for the academic year 2018-19 only the candidates who have studied and passed 10th standard from the school located outside the State of Gujarat shall also be eligible.
By order and in the name of the Governor of Gujarat.
Sd/-
(V.G. Vanzara) Additional Secretary to Government"
21. The second notification dated 15.06.2019 reads thus;
"Notification Health and Family Welfare Department Sachivalaya, Gandhinagar.
Dated the 15th June, 2019.
No.GP-12/MCG/1018/SFS/23/J:-In exercise of the powers conferred by Sub-Section (1) of Section 20 read with Section 4 of the Gujarat Professional Medical Educational Colleges or Institutes (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj.3 of 2008), the Government of Gujarat hereby makes the following rules further to amend the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, namely:-
1. These rules may be called the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) (Amendment) Rules, 2019.
2. In the Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses) Rules, 2017, (herein after referred to as "the said Rules") in the Rule 4;
(i) In Sub-Rule (1), the words "or overseas citizen of India" shall be deleted;
Page 22 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT(ii) In sub-rule (1-A)
(a) for the words "be the Domicile of Gujarat State" , the words "be born in Gujarat State or be the Domicile of Gujarat State" shall be substituted;
(b) after the existing proviso the following proviso shall be added namely:-
"Provided further that the candidates of Union Territories of the Daman & Diu and Dadra & Nagar Haveli shall be exempted from this sub-rule for the academic year 2019-20"
(iii) In sub-rule (3), after the first proviso, the following proviso shall be inserted, namely;
"Provided further that for the purpose of admission for the academic year 2019-20 only, the candidates who have studied and passed 10th standard from the school located outside the State of Gujarat shall also be eligible"
5. In the said rules, in rule-5,
(i) In sub-rule (2), after the clause (c), the following clause shall be added, namely:-
"(d) Economically Weaker Sections (EWSs): 10%
(ii) after sub-rule (2), the following sub-rule shall be inserted, namely:-
"(2A) For the purpose of the admission of the candidates from the Union Territories of Daman & Diu and Dadra & Nagar Haveli to M.B.B.S course, maximum of 10 seats shall be allotted on basis of the merit-cum-preference" and choice in admission process. And for the purpose of admission in other courses, candidates of the Union Territories of Daman & Diu and Dadra & Nagar Haveli shall be eligible on the basis of merit for all the seats."
4. In the said rules, in rule 9, in sub-rule (1) for clause (v), the following clause shall be substituted, Page 23 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT namely:-
"(v) Caste Certificate or Eligibility Certificate as the case may be, for the candidate belonging to Scheduled Castes (SC), Scheduled Tribes (ST), Socially and Economically Backward Classes (SEBC) and Economically Weaker Section (EWSs), issued by the authority empowered by the Government in this behalf, (for SC, ST, SEBC and EWSs candidates) By order and in the name of the Governor of Gujarat.
Sd/-
(V.G. Vanzara) Additional Secretary to Government"
22. We need not quote Rule 4 as the same has been extensively quoted in the impugned judgment of the learned Single Judge, and we have incorporated that part of the judgment of the learned Single Judge in our judgment. The only question that is baffling this Court is that when the State thought fit to issue the two notifications dated 25.06.2018 for the Academic Year 2018- 19 and the notification dated 15.06.2019 for the Academic Year 2019.2020, then why the State is hesitant or rather reluctant to issue a third notification for one last time for the Academic Year 2020-2021.
23. If the academic year is to be calculated in accordance with the amended rule, then the same would relate back to the year 2017-18 and, in such circumstances, for one last time, the State may consider a third extension, i.e., for the year 2020-21. The hard fact or reality is that the academic year for the CBSE students had already commenced sometime in March, 2017, whereas the amended rule came to be introduced on 23.06.2017. The domicile of the appellant is not in dispute. She is having Page 24 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT domicile of the State of Gujarat. The appellant was promoted to Standard 10th and took admission on 14.03.2017, whereas the State amended the rule on 23.06.2017, i.e., after the academic term of the CBSE had commenced. It is a settled principle of law that whenever a cut-off date is fixed to categorize one set for favourable consideration over the other, the twin test for a valid classification or valid discrimination must necessarily be satisfied. In this regard, we may refer to and rely upon the decision of the Supreme Court in the case of Kallakkurichi Taluk Retired Officials Assn. vs. State of T.N., reported in 2013 (2) SCC 772, more particularly, the observations made in Para-33;
"At this juncture it is also necessary to examine the concept of valid classification. A valid classification is truly a valid discrimination. Article 16 of the Constitution of India permits a valid classification (see, State of Kerala vs. N.M. Thomas (1976) 2 SCC 310). A valid classification is based on a just objective. The result to be achieved by the just objective presupposes, the choice of some for differential consideration/treatment, over others. A classification to be valid must necessarily satisfy two tests. Firstly, the distinguishing rationale has to be based on a just objective. And secondly, the choice of differentiating one set of persons from another, must have a reasonable nexus to the objective sought to be achieved. Legalistically, the test for a valid classification may be summarized as, a distinction based on a classification founded on an intelligible differentia, which has a rational relationship with the object sought to be achieved. Whenever a cut off date (as in the present controversy) is fixed to categorise one set of pensioners for favourable consideration over others, the twin test for valid classification (or valid discrimination) must necessarily be satisfied Truthfully, it may be difficult to imagine a valid basis of classification for remedying the malaise of inflation. In the absence of any objective, projected in this case, the Page 25 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT question of examining the reasonableness to the object sought to be achieved, simply does not arise. Our straying into this expressed realm of imagination, was occasioned by the fact, that the pleadings filed on behalf of the State Government, do not reveal any reason for the classification, which is subject matter of challenge in the instant appeal."
24. The effect of implementation of the rules as it stands confers a benefit to a section of students much to the detriment of the same class of students without any fault on their part. In this context, we may refer to and rely upon a decision of the Supreme Court in the case of S. Krishna Sradha vs. State of A.P., reported in (2017) 4 SCC 516;
"10. At this juncture, we think it appropriate to have a look at the decisions that have been cited at the Bar. In Asha, the Court observed that it was the need of the hour and demand of justice that this Court clarified its decisions and stated the principles with greater precision so as to ensure elimination of colourable abuse and arbitrary exercise of power in the process of selection and admission to the professional courses by all concerned. The Court posed four questions. They are: (SCC p. 394, para 4) "(a) Is there any exception to the principle of strict adherence to the rule of merit for preference of courses and colleges regarding admission to such courses?
(b) Whether the cut-off date of 30th September of the relevant academic year is a date which admits any exception?
(c) What relief the courts can grant and to what extent they can mould it while ensuring adherence to the rule of merit, fairness and transparency in admission in terms of rules and regulations?
(d) What issues need to be dealt with and finding returned by the court before passing orders which may be more equitable, but still in strict compliance with the framework of Page 26 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT regulations and judgments of this Court governing the subject?"
28. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of certain authorities and they can get away by giving some amount as compensation. It may not only be agonising but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intendit aliquid impossibile. But when it is in the realm of possibility; and denial of relief hurts the "majesty of justice", it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha and Harshali.
29. In this context, Mr Narasimha, learned friend of the court submitted that the Court in Jasmine Kaur has been guided by the principle adopted by this Court in the cases of constitutional tort. He has drawn our attention to the authorities in Rudul Sah v. State of Bihar Rudul Sah v. State of Bihar, 1983 4 SCC 141, Sebastian M. Hongray v. Union of India Sebastian M. Hongray v. Union of India, 1984 1 SCC 339 and Railway Board v. Chandrima DasRailway Board v. Chandrima Das, 2000 2 SCC 465, where the Court granted compensation because there was no other option and the only way of redemption was to grant compensation. It is necessary to state that grant of relief as lawfully due should be the primary duty of the court. Where doctrine of restitution can be applied and there is no impossibility it would be anathema to the cause of justice to deny the same. It is seemly to appreciate that restitution as a concept, as is traditionally understood, is the restoration of an aggrieved party to his condition prior to the wrongdoing. It could be limited to monetary quantification only if the breach is not capable of being remedied. That being so, compensation cannot be the adequate or sole remedy for the wrongful deprivation of admission, as it affects the academic career of a student. There may be cases where restitution may be too Page 27 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT harsh. Then, as we are inclined to think, telescoping albeit reasonably is not an impossible one. In Aneesh D. Lawande some of the candidates were adjusted as the Government had played possum and telescoping was not allowed as the candidates had got into the course in contravention of the decision of this Court. The factual score was different. But when a right is comatosed by a maladroit design, we think, the right of the person presently aggrieved should matter, not the right of the future candidate. Present cannot be crucified at the altar of the future. Whether the beneficiary who has got in should go out or not, would depend upon the discretion of the Court."
25. We may only observe that the rule as such could have been made operative only from the academic term commencing from March-April 2021 or from the date of commencement of the academic term for the standard-10 commencing from the year 2021. If the rule is not made operative from the academic term commencing from the year 2021, the same will exclude many students much to their disadvantage and without any fault on their part. This is precisely the reason why the two notifications came to be issued by the State of Gujarat, referred to above. The inclusion of Standard-10 in the amended Rule 4(3)(ii) dated 23.06.2017 makes the rule operative for the next three years, i.e., till the academic year 2020-21 and in this regard, the State Government rightly interpreted and amended the Rule 4(3)(ii) for the past two academic terms, i.e., 2018-19 and 2019.20.
26. In the aforesaid context, we may reiterate the observations made by the Supreme Court in the case of S. Krishna Sradha (supra) as contained in Para-28 of the judgment;
" 28. A young student should not feel that his entire industry to get himself qualified in the examination becomes meaningless because of some fault or dramatic design of Page 28 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT certain authorities and they can get away by giving some amount as compensation. It may not only be agonising but may amount to grant of premium either to laxity or evil design or incurable greed of the authorities. We are disposed to think, in such a situation, justice may be farther away and the knocking at the doors of a constitutional court, a Sisyphean endeavour, an exercise in futility. It is well known that the law intends not anything impossible; lex non intendit aliquid impossibile. But when it is in the realm of possibility; and denial of relief hurts the "majesty of justice", it should not be denied. On the contrary, every effort has to be made to grant the relief. Needless to say, to get the relief, conditions precedent are to be satisfied; and that is what has precisely been stated in Asha and Harshali."
27. Ms. Manisha Luvkumar Shah, the learned Government Pleader may be justified in making all the submissions as noted above from Paras-14 to 17 respectively. We accept that it would be within the discretion of the State whether to issue appropriate notification for the academic term 2020-21. However, we expect the State to reconsider the issue in light of what has been observed by this Court in this judgment. In exercising the power of judicial review, there is theoretical prohibition on the courts that it must not replace its ideas against the wisdom behind the legislation. The policy matters fall under the domain of the legislature's functions. Nevertheless, the responsibility of the courts is to adjudicate on the validity of the legislations and whether they are in consonance with or in violation of the provisions of the Constitution.
28. Although we are leaving to the better discretion of the State Government, yet we may only remind the State that here is a case of a bright student aspiring to become a Doctor and any decision at this point of time may be a guiding factor so far as the career of the student is concerned.
Page 29 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020 C/LPA/799/2020 CAV JUDGMENT29. We dispose of this appeal leaving it to the State Government to reconsider the entire matter and take an appropriate decision in the larger interest of a student. The State Government may reconsider the matter from the perspective this Court has looked into. We expect the State Government to take appropriate decision within a period of one week from today. The appeal stands disposed of with the aforesaid observations.
30. In view of the order passed in the main matter, the connected civil application also does not survive and is disposed of accordingly.
(VIKRAM NATH, CJ) (J. B. PARDIWALA, J) Vahid Page 30 of 30 Downloaded on : Sat Nov 07 06:59:09 IST 2020