Gujarat High Court
Parul Arogya Seva Mandal - Through ... vs State Of Gujarat & on 14 October, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya
PARUL AROGYA SEVA MANDAL - THROUGH TRUSTEE VINODBHAI KHEMABHAI PATEL....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/14332/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 14332 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?5
Whether it is to be circulated to the civil judge ?
================================================================ PARUL AROGYA SEVA MANDAL -
THROUGH TRUSTEE VINODBHAI KHEMABHAI PATEL....Petitioner(s) Versus STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR PA JADEJA, ADVOCATE for the Petitioner(s) No. 1 MR.
PARTH BHATT, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :14/10/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This writ-application under Article 226 of the Constitution of India is at the instance of a Public Trust registered under the Bombay Public Trusts Act, 1950, and engaged in imparting education in the discipline of Engineering and Pharmacy.
The petitioner has prayed for the following reliefs:-
(A) That the Honourable Court be pleased to declare Rule 19 of the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 and Bachelor of Pharmacy and Diploma in Pharmacy (Regulation of Admission and Payment of Fees) Rules, 2013, as ultra vires the Constitution of India to the extent the said rule 19 mandates that vacant seats thereunder for B.E./B.Tech and B. Pharm.
Courses are to be filled in only by offering the same to the students who have appeared at JEE (Main) for engineering courses at the level of graduation and at either JEE (Main), NEET or GUJCET for pharmacy courses at the level of graduation..
(B) That, in the alternative, this Honourable Court be pleased to read down the said Rule 19 of the Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 and Bachelor of Pharmacy and Diploma in Pharmacy (Regulation of Admission and Payment of Fees) Rules, 2013 by construing the same as making it permissible for the institutes to fill up vacant seats thereunder by admitting students who have not appeared at JEE (Main) for engineering courses at the level of graduation and at either JEE (Main), NEET or GUJCET for pharmacy courses at the level of graduation after offering the same in the first instance to students falling in category prescribed in an order in the said Rule 19 of the said Rules where appearance at the entrance tests referred to herein is required.
(C ) That this Honourable Court be pleased to issue a writ of mandamus and or any other appropriate writ, order or direction commanding Respondent No. 2 to endorse the admissions granted by the institutes of the Petitioner in respect of vacant seats under Rule 19 of the said Rules to the students who have not appeared at the concerned entrance tests, viz, JEE (Main) for engineering courses at the level of graduation and either of JEE (Main), NEET and GUJCET for pharmacy courses at the level of graduation.
(D) That pending admission, hearing and final disposal of the present petition, this Honourable Court be pleased to permit the institutes of the Petitioner to continue with the admissions granted by them in respect of the vacant seats under Rule 19 of the said Rules to the students who have not appeared at the concerned entrance tests, viz. JEE (Main) for engineering courses at the level of graduation and either or JEE (Main), NEET and GUJCET for pharmacy courses at the level of graduation.
(E) That this Honourable Court be pleased to pass such other and further relief as the facts of the case may warrant.
2. The case made out by the petitioner in this petition may be summarised thus:
2.1 According to the petitioner, the State of Gujarat, in exercise of the powers conferred upon it by sub-section (i) of Section 20, read with Section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act, 2007 (Guj.2 of 2008) has framed the Rules called "The Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013" and the "Bachelor of Pharmacy and Diploma in Pharmacy (Regulation of Admission and Payment of Fees) Rules, 2013". The object of the said Rules is to regulate the process of admission, as also the payment of fees by the students in respect of the courses in the disciplines of Engineering and Pharmacy.
2.2 Rule 5 of the said Rules prescribes the eligibility criteria for admission to Engineering and Pharmacy courses respectively. According to the Rules, in order to become eligible for the admission to the said course, the concerned student should have passed the qualifying examination as defined under Rule 2(j) of the Rules, 2013 with the minimum eligibility criteria of percentage of marks in subjects prescribed by AICTE from time to time and in addition to that, should have appeared in the JEE (Main)/NEET/GUJCET examinations conducted in the corresponding academic year. The minimum marks for the said courses at the qualifying 12th Standard examination are 45% for the general category students and 40% for the reserved category students.
2.3 Rule 11 of the said Rules provides for the preparation of the merit list for the purpose of admission to the said courses by the respondent No.2 Committee. A plain reading of Rule 11 of the said Rules would suggest that the entrance test afore-noted, namely, JEE (Main) for the Engineering course at the level of graduation and either of JEE (Main), GUJCET and NEET for Pharmacy course at the level of graduation are assigned weightage to the extent of 40% of the score secured by the concerned student at the said entrance test only for the purpose of preparing a merit list and not for any other purpose. According to the petitioner, unlike qualifying examinations, no minimum marks are prescribed as a pre-requisite for the said entrance test in order to become eligible for admission to the concerned courses. The only requirement is to appear at the said entrance test.
2.4 According to Rule 19 (i) of the said Rules, after completion of the process by the respondent No.2 Committee under the said Rules, if the seats remain vacant, the same shall be filled in by the concerned Institute directly by inviting applications from the eligible candidates, and thereafter by arranging the applications so received in the order of merit, according to the preference prescribed therein.
2.5 The respondent No.2 completed the process of admission under the said Rules on 31st July, 2013, in respect of the Engineering course and thereupon issued a public notice dated 6th August, 2013, inter-alia declaring that the vacant seats would be filled in by the concerned Institutes directly under the said Rule 19.
2.6 So far as Pharmacy courses are concerned, the respondent No.2 completed the second and final round of counselling on 5th September, 2013 and thereupon declared the closure of process of admission on 10th September, 2013, by issuing a public notice in that regard.
2.7 It is the case of the petitioner that so far as the Engineering courses are concerned, as against total 63,113 seats in all, 8,923 seats have remained vacant. So far as the Pharmacy courses are concerned, as against total 4,825 seats in all, 2,796 seats have remained vacant.
2.8 Thus, according to the petitioner, after exhausting the merit list of the students prepared by the respondent No.2 Committee under Rule 5 of the said Rules, the seats in plenty have remained vacant in respect of Engineering and Pharmacy courses at the level of graduation.
2.9 According to the petitioner, for the past two years, the Government thought fit to issue notifications declaring that notwithstanding anything contained in the Rules, for admission in the academic year 2011-12, a candidate who was otherwise eligible under the Rules but had not appeared at GUJCET would also be eligible for admission to the first year Bachelor of Engineering, Bachelor of Pharmacy and Diploma in Pharmacy course, on the seats declared vacant under the respective Rule. However, so far as the current academic year is concerned, the petitioner did not hear anything at the end of the State Government, but in anticipation of such Notification being issued since thousands of seats remained vacant, admitted the students on the vacant seats and informed about the same to the respondent No.2 Committee.
2.10 The petitioner also brought to the notice of the Committee its earlier notification for admissions in respect of the vacant seats of the students who had not appeared at the entrance test. In response to the representation of the petitioner, a communication dated 3rd September, 2013 was received at the end of the respondent No.2 Committee informing the petitioner that as the concerned students admitted by the Institute do not fulfil the requirement of Rule 5(i) of the Rules, it would not be permissible for the respondent No.2 Committee to approve such admissions.
In such circumstances, the petitioner had to file this petition challenging the constitutional validity of Rule 19 of the Rules, substantially on the ground that the same is violative of Article 14 of the Constitution of India, inasmuch as there is no nexus between the requirement prescribed thereunder for the admission and the object sought to be achieved thereby, so far as the reference of open entrance examination for filling up vacant seats is concerned.
3. The petition has been opposed by Mr. Parth Bhatt, the learned AGP appearing for the respondent No.2 Committee, mainly contending that in February, 2010 a proposal for Common Engineering Entrance examination was made by the Ministry of Human Resources Development as a common system for common admission into professional institutions all over the country. It was made as a replacement for the multitude of the existing exams, more particularly the IIT/JEE & AIEEE. According to the decision of the Ministry of Human Resources Development dated 20th May, 2012 such Open Entrance exam was introduced from 2013 and the State Government readily accepted the proposal of the Ministry. The State Government thereafter announced to adopt the exam and accordingly GUJCET which was also an open entrance test, conducted by the State itself was replaced by JEE. Such a decision on the part of the State Government was in the interest of the students as they were required to give only one examination being a Common Entrance examination instead of three examinations.
4. Mr. Bhatt, the learned AGP appearing on behalf of the respondents submitted that the Rules known as Bachelor of Engineering and Technology (Regulation of Admission and Payment of Fees) Rules, 2013 and the Bachelor of Pharmacy and Diploma in Pharmacy (Regulation of Admission and Payment of Fees) Rules,2013 came to be introduced for admission of students to the Engineering & Pharmacy Courses on the basis of their percentile marks which are divided into two parts. According to Mr. Bhatt 60% of the marks secured by a student in his qualifying examination and 40% of the marks of the Joint Entrance Examination (JEE) are taken into consideration while preparing the Merit List.
Thus, according to Mr. Bhatt, the Joint Entrance Examination (JEE) has its own importance because 40% weightage is being given to the marks obtained by the student in such examination.
5. Having heard the learned counsel appearing for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this petition is whether Rule 19 of the Engineering Course Rules 2013 and Bachelor of Pharmacy Course Rule 2013 is ultra vires Article-14 of the Constitution of India, and/or deserves to be read-down in a manner so as to make it reasonable and rational.
Rule 19 reads as under:-
ADMISSION RULES No. GH/SH/11/2013/PVS/102012/142/S :- In exercise of the powers conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act, 2007 (Guj. 2 of 2008), the Government of Gujarat, in supersession of the all the rules made in this behalf, hereby makes the following rules to regulate admission to the Bachelor of Engineering and Technology and payment of fees, as follows:-
19. Vacant Seats:-
After offering admission to all the candidates whose names in the merit list or after completion of the admission process, if the seats remain vacant, such vacant seats shall be filled by the institutes, in accordance with the directions of the Admission Committee and in the manner prescribed in sub rule (2).
(2) Such institute shall, invite application from the eligible candidates and prepare an inter-se merit list in the following order namely:-
(i) names of th candidates whose name appears in the merit list of the Admission Committee.
(ii) Candidates who has cleared the qualifying Examination,
(iii) names of the candidates who have passed qualifying examination from outside the Gujarat State and have appeared in JEE (Main) conducted in the corresponding academic year, giving priority to the candidates of Gujarat origin.
(iv) after allotting the seats to candidates mentioned in sub- clause (i),(ii) and (iii) above, if any seat remains vacant, the Institute shall invite application from the candidates who have passed diploma engineering or degree Science course and grant admission on merit.
Such candidates shall be eligible for admission in first year of Engineering and Technology only.
6. The following facts are not in dispute:-
(a) Out of total 63,113 seats in the Engineering Course in all, 8,923 seats have remained vacant;
(b) Out of total 4,825 seats in the Pharmacy Course in all, 2,796 seats have remained vacant;
(c) Amongst those students who have been admitted, many of them have secured either zero or negative marks in JEE (Main), which is evident from the statement placed before us by the learned counsel appearing for the petitioner.
7. This petition, in our opinion, is squarely covered by our own decision dated 27th August, 2013, passed in SCA No. 12255 of 2013 in the case of Association of Self Financing Colleges Vs. State of Gujarat and anr.
8. An identical issue was considered by us with respect to Rule 17 of the Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules, 2013 and the Master of Computer Application course (Regulation of Admission and Payment of Fees) Rules, 2013. In that case also, Rule 17 mandated that the vacant seats for MBA and MCA course shall be filled in only by offering the same to the students who had appeared either at CMAT/CAT/MAT or any other entrance test in the alternative.
9. We have been informed that our decision rendered in SCA No. 12255 of 2013 has been accepted by the respondent No.2 Admission Committee and a Notification to that effect has also been issued interpreting the Rule accordingly.
10. We made the following observations while reading down Rule 17(2) (ii), instead of declaring it to be ultra-vires.
We propose to rely on the very same observations even in the present case. They are as under.
"11. It is a settled law that in interpreting a statute or a rule, the Court must bear in mind that the legislature does not intend what is inconvenient and unreasonable. If a rule leads to an absurdity or manifest injustice from any adherence to it, the Court can step in. A statute or a rule ordinarily should be most agreeable to convenience, reason and as far as possible to do justice to all. A law/rule should not be made without a purpose or object and when it is found so, the Court should not be hesitant in applying the principle of 'reading down' or 'reading into' the provision to make it effective and workable, more particularly when it is found that the object is illusory and appears to be nothing but a shadow hunting process. A law/rule should be beneficial in the sense that it should suppress the mischief and advance the remedy. In interpreting a rule, it is legitimate to take into consideration the reasonableness or unreasonableness of any provision. Gross absurdity must always be avoided in a statute/rule. The expression reasonable means rational, according to the dictate of reason and not excessive or immoderate.
12. We are of the opinion that Mr. Dave is quite justified in submitting that insistence as provided in sub-rule (2)(ii) of Rule 17 of appearing in the CMAT even for the purpose of obtaining admission in MBA/MCA course on vacant seats, appears to be unreasonable and without any object. There is no reply at the end of the State Government that if the students who secured negative marks in CMAT have also been admitted in the MBA course, then why a student who has not appeared in CMAT should not be admitted at a later stage, if he is desirous of seeking admission on a vacant seat as provided in Rule 17 of the said Rules. We are also not impressed by the argument of Mr. Baxi that the State Government is unable to issue the Notification relaxing such requirement as it had done in the previous two years because CMAT has been provided by AICTE and it is not an open entrance test conducted by the State Government.
13. The question which is begging is the importance of the open entrance test CMAT. We do not find any importance which could be attached to such an open entrance test, more particularly when AICTE has not prescribed any minimum standards or requirements for CMAT.
14. An entrance examination is an examination that many educational institutions use to select students for admission. The most common purpose of the competitive examinations centers on the prospect of separation. Irrespective of the institution one would look forward to, do bear in mind that it is keen on extracting the cream from the diluted whole, because everyone looks forward to the best of the lot. Besides being focused on the "best", entrance examinations serve respective institutions to conform to its seat limit. In order to realise it, there has to be a tool of elimination and the purpose of entrance examinations is to serve as a powerful tool of screening.
15. We have taken note of the fact that out of 10,453 available seats for admission to the MBA course, only 5,300 students opted for admission, leaving in all 5,153 seats vacant. In the same manner, out of 6,126 available seats for the MCA course, only 2,024 seats have been filled in, leaving in all 4,102 seats vacant. Among those students who have been admitted, majority of them have secured either zero or negative marks in CMAT, which is evident from the statement annexed by the petitioner with its affidavit-in-rejoinder. This position has not been even disputed by the State Government.
16. Therefore, the first question that arises is whether we should strike down Rule 17 holding it to be ultra-vires Article 14 of the Constitution or we should uphold the validity by adopting the principle of "reading down" or "reading into", so as to make Rule 17 effective, workable and ensure the attainment of the object of the rule. Ordinarily, the Courts would be reluctant to declare a law or rule invalid or ultra-vires on account of unconstitutionality. The Court should make all possible endeavour to interpret in a manner which would be in favour of the constitutionality, as declaring the law or a rule unconstitutional should be one of the last resorts which the Court may take.
17. A validity of a rule has to be adjudged on three well recognized tests: (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution (Maharashtra State Board of Secondary and Higher Secondary Education Vs. P.B. Mukarsheth, AIR 1984 SC 1543). There is presumption in favour of the validity of the rule.
18. In Venkayya Vs. Pullayya reported in AIR 1942 Mad. 466, a Division Bench of the Madras High Court, after referring to a decision by the House of Lords in Blackwood Vs. London Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed as under:-
"As has been pointed out by the House of Lords in (1874) 5 PC 92, at pg. 108, the tests to apply in considering whether rules are within the powers of the rule-making authority under a statute are: (1) Whether the rules are reasonable and convenient for carrying the Act into full effect; (2) Whether the rules relate to matters arising under the provisions of the Act; (3) Whether they relate to matters not in the Act otherwise provided for and (4) Whether they are consistent with the provisions of the Act. The validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles."
19. We may quote with profit the observations of the Supreme Court in the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745. In that case, the subject matter before the Supreme Court was the one under the Right to Information Act, 2005. The Court made the following observations in paragraphs 51 and 61, which are reproduced hereinbelow:-
"51.
Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of reading down or reading into the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this court in its various pronouncements."
"61. It is a settled principle of law, as stated earlier, that courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like reading into and/or reading down the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective."
20. In the aforesaid context, we may also refer to and rely upon a decision of the Supreme Court in the case of Ahmedabad Municipal Corporation and anr. Vs. Nilaybhai R. Thakore and anr. reported in 2000 (1) G.L.H 388. In that case, under Rule 7 of the impugned Rules, "a local student" was defined as a student who has passed SSC/new SSC examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal limits. According to that Rule, it was only those students who had qualified from the educational institutions situated within the Municipal limits would be eligible to be treated as 'local students'. While the permanent resident students of Ahmedabad city who for fortuitous reasons, happen to acquire qualification from educational institutions situated just outside the Municipal limits, namely, AUDA, would not be eligible for being treated as the local students. The Supreme Court noticed that the object of the rule was to provide medical education to the students of Ahmedabad who had acquired the necessary qualification, their selection being based on merit. If that was the object, the Supreme Court observed whether the classification based only on the location of the educational institutions within or outside the Municipal area would be a reasonable classification. The Court held that the answer had to be in the negative. However, despite coming to the conclusion that the High Court was right in holding that the rule in question suffered from an element of arbitrariness, the remedy did not lie in striking down the impugned Rules, the existence of which was necessary in the larger interest of the institution as well as the populace of the Ahmedabad Municipal Corporation. The Court observed that the striking down of the rule would mean opening the doors of the institution for admission to all the eligible candidates in the country, which would definitely be opposed to the very object of the establishment of the institution by a local Body. In such circumstances, the following observations of the Supreme Court in paragraph 14 are very apt and could be made applicable to the facts of the present case.
14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the rule in question is only a subordinate legislation and by declaring the rule ultra vires, as has been done by the High Court, we would be only causing considerable damage to the cause for which the Municipality had enacted this rule. We, therefore, think it appropriate to rely upon the famous and oft-quoted principle relied on by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher ( [1949] 2 K.B. 481 (CA)) wherein he held "[When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, ... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
This statement of law made by Lord Denning has been consistently followed by this Court starting in the case of M. Pentiah v. Muddala Veeramallappa 1961 AIR(SC) 1107 ) and followed as recently as in the case of S. Gopal Reddy v. State of A.P. ( 1996 (4) SCC 596, 608 : 1996 SCC(Cri) 792 : 1996 AIR(SC) 2184, 2188) (SCC at 608 : AIR at p. 2188). Thus, following the above rule of interpretation and with a view to iron out the creases in the impugned rule which offends Article 14, we interpret Rule 7 as follows "Local student means a student who has passed HSC (sic SSC)/New SSC Examination and the qualifying examination from any of the high schools or colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of the Ahmedabad Municipality who acquires the above qualifications from any of the high schools or colleges situated within the Ahmedabad Urban Development Area."
21. Bearing in mind the aforesaid principles as explained by the Supreme Court, we are of the view that although Rule 17, more particularly Clause 2(ii) and (iii) may not be declared as invalid, but at the same time, in a situation of the present nature, it is permissible and would be much more reasonable to read into Rule 17 so as to make it more consistent with the object with which Rule 17 has been enacted.
22. In almost an identical case, the Supreme Court in State of Himachal Pradesh Vs. Himachal Institute of Engineering and Technology, Shimla reported in (1998) 8 SCC 501, permitted the management to fill up vacant seats without insisting for appearance of a student at the entrance test.
In that case, the contention on behalf of the Institute before the Supreme Court was that if all the payment seats were not exhausted on the basis of the merit criteria, either on account of paucity of students prepared to take admission on payment basis or on account of drop outs after the cut-off date, the vacancy or vacancies, if any, had to be filled by the management. It was also argued that for filling such vacancies, the management had to determine its own criteria since none from amongst those who had qualified at the entrance test was forthcoming to take the seat on payment basis. In such a situation, it was contended that either the seats might remain vacant and be wasted or the management should be permitted to fill those seats on a reasonable criteria which the management may adopt. It was also argued that if the payment seats remained vacant in such large numbers, the Institute would not be able to meet with the expenses for running the professional course and would be placed on the Hobson's choice of either suffering huge losses or closing down the Institute.
23. Reliance was placed on the decision of the Supreme Court in T.M.A Pai Foundation Vs. State of Karnataka, reported in (1995) 5 SCC 220. The Court observed that the situation was such which had to be resolved because according to the Supreme Court, the choice was between running huge losses or closing the Institute for want of availability of such students. The Court also observed that the finance had to come from those students according to the scheme envisaged in Unni Krishnan's case, reported in (1993) 1 SCC 645 , and if the State Government did not permit the Institute to fill up the vacancies not filled up from amongst students who had qualified at the entrance test, a solution to the question of financing the Institute would also have to be found. In that case, the counsel for the Institute had submitted that if the State Government wanted to adopt the attitude of not permitting the Institute to fill up those vacancies by students prepared to pay but who had not qualified at the entrance examination, then the Government should be prepared to bear the financial burden by paying a sum equivalent to the payment seats remaining vacant to the Institute as a grant to run the Institute, or otherwise it would have to close down. The Supreme Court granted time to the State Government to give response. It appears from the decision that finally the Court concluded the matter vide order dated 25th January, 1996 by observing as under:-
"We had dealt with this matter at length and had passed the speaking order on 4.1.1996. It was at the fag end of the submissions that the learned counsel for the State of Himachal Pradesh had desired that we give him an opportunity to place the matter before the State Government to enable it to make a positive response to the State Government in the matter of filling up the vacancies. There is no response to the same except that the counsel states that the State Government has no desire to fund this Institute because, according to her, it is no more authorised. We have set out earlier the facts leading to the making of the IAs and have also referred to the decision of this Court in Unni Krishnan case as well as in the case of T.M.A Pai Foundation. We had extracted the relevant paragraph from the decision of Unni Krishnan case which clearly stated that any vacancies still remaining after the cut-off date can be filled by the management. In the instant case also, there have been vacancies which have remained unfilled after the cut-off date and it would, there, be open to the management to fill them up in the manner they consider appropriate. The SLP will stand disposed of in the light of and as per directions in Unni Krishnan case."
11. Thus, following our own decision dated 27th August, 2013 passed in Special Civil Application No.12255/2013, we interpret Rule-19 of the Rules, 2013 as follows:
Rule-19(2)(iii) "names of the candidates who have passed qualifying examination from outside the Gujarat State and have appeared in JEE (Main) conducted in the corresponding academic year, giving priority to the candidates of Gujarat origin and thereafter, the names of the candidates who have passed the qualifying examination from the Gujarat State, but have not appeared in JEE (Main) conducted in the corresponding academic year."
12. In the result, this petition succeeds and is hereby allowed to the aforesaid extent. The State Government is directed to permit the petitioner notwithstanding anything contained in Rule 19 of the Rules to admit the students in the current academic year 2013-14, who are otherwise eligible under the Rules, 2013, but had not appeared at JEE (Main) and are eligible for admission to the Engineering/Pharmacy Course on the seats declared vacant under Rule 19 of the Rules, 2013.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 23 of 23 >