Gujarat High Court
Mohit Omprakash Jagyasi vs Gujarat University & on 22 January, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/405/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 405 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
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 ? No
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MOHIT OMPRAKASH JAGYASI....Petitioner(s)
Versus
GUJARAT UNIVERSITY & 1....Respondent(s)
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Appearance:
MR RIDDHESH TRIVEDI, ADVOCATE for the Petitioner(s) No. 1
Mr.S.N.Shelat, learned Senior Advocate with MRS VD NANAVATI, ADVOCATE
for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA
KUMARI
Date : 22/01/2014
Page 1 of 20
C/SCA/405/2014 JUDGMENT
ORAL JUDGMENT
1. Rule. Ms.V.D.Nanavati, learned advocate waives service of notice of Rule for the respondents. On the facts and in the circumstances of the case and looking to the urgency shown by the learned advocate for the petitioner, the petition is being heard and finally decided.
2. By preferring this petition under Article 226 of the Constitution of India, the petitioner has, inter alia, prayed for the issuance of a writ or order, directing the Gujarat University (respondent No.1) and the Vice Chancellor of the said University (respondent No.2) to permit the petitioner to fill up the Entrance Examination Form for the Post Graduate Medical Course for the academic year 2014-15 and to allow him to appear in the said Entrance Examination scheduled to be held on 25-1-2014.
3. The brief facts of the case, as garnered from the memorandum of the petition are that, the petitioner has completed his MBBS and Internship. The requisite Certificates in respect of the above are annexed as Page 2 of 20 C/SCA/405/2014 JUDGMENT Annexure "E" and "F" to the petition. The petitioner obtained admission in NHL Medical College on the basis of NEET in the discipline of Preventive Medicine in the academic year 2013-14. The petitioner surrendered the Post Graduate admission as he was desirous of getting admission into a better discipline. The petitioner was thus preparing to appear again in the Entrance Examination for the Post Graduate Medical Course in the academic year 2014-15. The respondent- University issued an Admission Notice for the Post Graduate Medical Course Entrance Examination for the academic year 2014-15, on 13-11-2013. According to this notice application forms,along with relevant Rules would be available from 2-12-2013 11.0 A.M.to 2.0 P.M. and 3.0 P.M.to 4.0 P.M. The last date for acceptance of completed application forms with the Entrance Examination Fee, was 11-12-2013 upto 4.0 P.M. This notice was issued to all Medical Colleges in the State of Gujarat. The case of the petitioner is that as he is an ardent follower and devotee of ISKCON (International Society of Krishna Conscience) and was engrossed in a programme held by ISKCON, therefore, he was not in Ahmedabad during the first two weeks of December,2013. It is stated in the petition that the Page 3 of 20 C/SCA/405/2014 JUDGMENT petitioner had given instructions at his residence to intimate him if the Admission Notice is announced. However, nobody at his residence intimated him. When the petitioner returned on 13-12-1013,he realized that he was late in filling up the admission form. The last date for submission of the form was 11-12-2013. The Entrance Examination is to be conducted on 25-1-2014. According to the petitioner, he was unaware of the Admission Notice, therefore, he could not collect the form, fill it and submit it, within the time stipulated in the Admission Notice. In order to ensure that one academic year does not go waste, the petitioner made efforts to convince the authorities of the respondent-University to permit him to fill up the form so that he could sit in the examination on 25-1-2014. As his efforts did not bear fruit, the petitioner, being aggrieved, has approached this court by filing the present petition.
4. Notice was issued on 13-1-2014. The respondent University has filed its affidavit-in-reply. In the said reply it is stated that respondent No.2, Vice Chancellor of the respondent University, has considered the representation of the petitioner but Page 4 of 20 C/SCA/405/2014 JUDGMENT could not accede to his request of accepting the application form. The decision has been taken bonafide and in the interest of academic discipline, therefore,there is no breach of any fundamental right of the petitioner, as alleged. It is further stated in the affidavit-in-reply that by the Admission Notice dated 13-11-2013, applications in the prescribed form were invited for admission to the Post Graduate Medical Course of the Gujarat University, and the last date of acceptance of the application form,with entrance examination fees, was 11-12-2013 upto 4.0 P.M. The list of candidates for the Entrance Examination was to be declared on 20-1-2014 on the website and the examination is scheduled to be conducted on 25-1-2014 between 11.0 A.M. and 2.0 P.M. Approximately 1500 students have applied pursuant to the said notice. The stand taken in the affidavit-in- reply is that the petitioner has been negligent in not applying within the prescribed period of time, therefore, as per Rule 6 of the Rules governing admission to Post Graduate Degree and Diploma Medical Courses other than M.Ch. and D.M. at the affiliated Colleges/Institutions from 1-11-2013 ("the Rules" for short), which mandate that the application form should Page 5 of 20 C/SCA/405/2014 JUDGMENT be submitted within the prescribed time limit, the request of the petitioner cannot be granted.
5. In the above factual background, detailed submissions have been addressed by the learned advocate for the petitioner, to the following effect:
(a) The petitioner fulfills the eligibility criteria and requirements of the Rules, therefore, there ought not to be such strict implementation of Rule 6, by debarring the petitioner from filling up the application form and siting in the examination, especially when the future of a meritorious medical student, like the petitioner, is at stake. If relaxation is not granted to the petitioner and he is not permitted to fill up the form and sit in the examination, one year would go to waste.
(b) The time limit prescribed for filling up of the application form, from 2-12-2013 to 11-12-2013, is insufficient. In any case, such a time limit ought to be considered as being directory in nature and not mandatory. In special circumstances, the time limit ought to be extended, such as in the case of the petitioner. The petitioner was serving in a remote Page 6 of 20 C/SCA/405/2014 JUDGMENT rural area, in a programme of ISKCON, and was not aware of the issuance of the Admission Notice. He could not be contacted in such remote area, therefore, considering the circumstances he ought to have been permitted to fill up the admission form as he was late only by two days.
(c) The interpretation of any Rule should be made in accordance with the object for which it is formulated.
The Rules regarding admission to Post Graduate Degree and Diploma in Medical Courses at the affiliated Medical Colleges and Institutions are to ensure that meritorious students are selected. As the petitioner is a meritorious student, the Rules should be interpreted in order to enhance the object for which they are made, which is to give admission.
(d) The action of the respondent University in not permitting the petitioner to fill up the application form and thereby deprive him of the opportunity to sit for the Entrance Examination is not in consonance with the object of the Rules. The petitioner is not claiming a seat in the Post Graduate Course but is only asking for permission to sit in the examination Page 7 of 20 C/SCA/405/2014 JUDGMENT to be held on 25-1-2014.
(e) Rule 11 of the Rules empowers the University to introduce any new Rule or Regulation, or to make changes in any of the existing Rules or Regulations at any time, to deal with diverse problems arising out of an infinite variety of situations. This is a clear relaxation in the Rules which can be applied in the case of the petitioner. Further, the Vice Chancellor of the University has power under Section 11(4) of the Gujarat University Act, 1949 ("the University Act"
for short) to take action in case of any emergency. Such power ought to have been exercised in favour of the petitioner.
On the strength of the above submissions, it is prayed that the petition be allowed.
6. Mr.S.N.Shelat,learned Senior Advocate with Ms. V.D.Nanavati,learned counsel, has appeared on behalf of the respondent University. While strongly opposing the prayers made in the petition, learned Senior Counsel submits that the Admission Notice for the Entrance Examination has been issued well in time on Page 8 of 20 C/SCA/405/2014 JUDGMENT 13-11-2013. It cannot,therefore, be believed that the petitioner is not aware of the same. In the said Admission Notice it is very clearly stated that application forms would be available from 2-12-2013 11.0 A.M.to 2.0 P.M. and 3.0 P.M.to 4.0 P.M.and the last date for acceptance of the completed application forms would be 11-12-2013 upto 4.0 P.M. The petitioner has not even bothered to collect the application form during this period, leave alone fill it or submit it. It is submitted that according to the petitioner, he came to know from the website on 2-11-2013 that the application forms are available from that date upto 11-12-2013. The case of the petitioner is that he was not able to contact any person in order to collect the form as he was in a remote rural area. The conduct of the petitioner shows that he has been careless in this regard.
6.1 Learned Senior Counsel for the respondents has drawn the attention of the Court to the averments made in paragraph 4.6 of the petition, wherein it is stated that the petitioner, being an ardent follower and devotee of ISKCON, was engrossed in the programme of ISKCON and was away in the first two weeks of Page 9 of 20 C/SCA/405/2014 JUDGMENT December,2013, and nobody from his residence had contacted him regarding the Admission Notice. In this context, it is submitted that it is not possible to believe, in these days of instant communication, that the petitioner was in a place where he could not be contacted by any person or from where he could not contact any other person. Had the petitioner been interested in filling up the application form, he could have instructed someone to collect the form on his behalf and returned from wherever he was to fill it and submit it in time.
6.2 It is further submitted that the conduct of the petitioner is such that it does not inspire confidence that he is a worthy student who wants to pursue higher studies. The petitioner has not filled up the form in spite of sufficient notice. No exceptional circumstances exist in the case of the petitioner to necessitate the exercise of the writ jurisdiction of this court.
In support of the above submissions, learned Senior Counsel has placed reliance upon a judgment of this court in the case of C.K.Patel Madhyamik Shala Page 10 of 20 C/SCA/405/2014 JUDGMENT v. Chairman,Gujarat Secondary Education Board, reported in 1987(1) GLH 515 wherein this court has not accepted the plea of the petitioner in that case, on somewhat similar grounds.
6.3 It is submitted that the Rules are statutory in nature, therefore, Rule 6 has to be followed in letter and spirit. Though it is not admitted that the Rule is directory, however, even if it is presumed to be so, this court may not exercise discretion in favour of a student who is not careful in submitting the application form in time, as the conduct of the petitioner shows that he is not deserving of such relaxation.
On the basis of the above submissions, it is prayed that the petition be rejected.
7. This Court has heard learned counsel for the respective parties,perused the averments made in the petition and the documents annexed thereto.
8. It is an undisputed position that the respondent Gujarat University has issued the Admission Notice on 13-11-2013 wherein the programme is clearly stipulated Page 11 of 20 C/SCA/405/2014 JUDGMENT as below:
"PROGRAMME • Application forms along with relevant rules shall be available from 02/12/2013 11.00 am. to 2.00 pm and 3.00 pm. to 4.00 pm. • Last date of acceptance of completed application form with entrance examination fee is 11/12/2013 up to 4.00 pm. • Candidate list for Entrance Examination and centre will be declared on 20/01/2014 on Website. • Entrance Examination will be held on 25/01/2014 at 11.00 am to 2.00 pm. • Place of Entrance Examination will be declared on Website.
• Provisional merit list will be declared in month of March on website.
• Final merit list will be declared after scrutinizing objections of candidates on website. • Counseling schedule will be declared on website."
9. The Admission Notice has been sent to the Dean/PG Director of all Medical Colleges, in the State of Gujarat. It is,therefore, clear that the students Page 12 of 20 C/SCA/405/2014 JUDGMENT desirous of obtaining forms have been intimated well in advance through the said notice.
10. The specific case of the petitioner is that he was engrossed in a programme of ISKCON during the first two weeks of December,2013 and was away in a remote area. Such averments are made in paragraph 4.6 of the petition. Though it is not specifically stated in the petition that the petitioner was in a remote, rural area, submissions to this effect have been advanced by the learned advocate for the petitioner. However, the petitioner is silent regarding his whereabouts during the specific period, therefore,this court has no material on hand to test the veracity of this submission.
11. It is further the case of the petitioner that he had given instructions at his residence to intimate him when the Admission Notice was announced, but nobody at his residence did so. This is the sole reason advanced by the petitioner for his alleged inability to fill-up the application form for the Entrance Examination.
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C/SCA/405/2014 JUDGMENT
12. It has been strenuously urged on behalf of the petitioner that relaxation ought to have been granted to him as he was late in filling up the form by only two days and that the Vice Chancellor of the respondent University has the power to give such relaxation. In this context,reference has been made to Rule 11, which reads as below:
"11. The University reserves the right to introduce any new Rule or Regulation or to make changes in any of the existing Rules or Regulations at any time to deal with diverse problems arising out of infinite variety of situations."
13. A plain reading of this Rule makes it clear that it is not a Rule that provides for relaxation or empowers the Vice Chancellor to give such relaxation. It is a Rule which empowers the University to introduce any new Rule or Regulation or to make changes in the existing Rules or Regulations, to deal with diverse problems arising out of various situations. In other words, it confers power upon the University to formulate new Rules in certain emergent situations. This Rule, of itself, does not contain any provision for relaxation. The submission advanced Page 14 of 20 C/SCA/405/2014 JUDGMENT by the learned advocate for the petitioner that relaxation should have been granted to the petitioner, by permitting him to fill in the form after the last date, in exercise of power under Rule 11 is, therefore, totally unfounded.
14. Learned advocate for the petitioner has further referred to Section 11(4) of the Gujarat University Act, 1949 which reads as below:
"(4) (a) in any emergency which in the opinion of the Vice-Chancellor requires that immediate action should be taken, he shall take such action as he deems necessary and shall at the earliest opportunity thereafter furnish information regarding his action to such officer, authority or body as would have in the ordinary course dealt with the matter."
15. This sub-section confers power on the Vice Chancellor to take such action as he deems necessary at the earliest opportunity, in case of any emergency, and permit him to submit a report of his action to the competent authority thereafter. This rule clearly provides for immediate action to be taken in emergencies, where no time ought to be lost. Page 15 of 20
C/SCA/405/2014 JUDGMENT 16. It is not the case of the petitioner that any
emergency had arisen in his case. In spite of the fact that the Admission Notice was published on 13-11-2013, laying out in detail, the entire schedule from collecting the application form, submitting it duly filled up, upto the date of examination, the petitioner chose to go to some undisclosed location for a programmer of ISKCON. This, in the view of the court, cannot be termed as an emergent situation by any stretch of imagination, so as to necessitate the exercise of power by the Vice Chancellor under Section 11(4) of the Act.
17. The relevant Rule in the present case, is Rule 6, which governs the case of the petitioner. It is reproduced hereinbelow:
"6.0 Application: Gujarat University will issue notice inviting application for admission under these rules. Candidate is required to submit the prescribed forms duly completed with fee receipt of entrance examination within the prescribed time limit."
(emphasis supplied)
18. This Rule clearly stipulates that the Gujarat University will issue a notice inviting applications Page 16 of 20 C/SCA/405/2014 JUDGMENT under this rule. Such a notice has been issued by the University on 13-11-2013. It further provides that a candidate is required to submit the prescribed form, duly completed with fee receipt of the Entrance Examination, within the prescribed time limit. The prescribed time limit was from 2-12-2013 to 11-12- 2013,upto 4.00 P.M. The above condition has been clearly stated in the Admission Notice, as already reproduced hereinabove. There is nothing in this Rule that provides for relaxation in the date of filling-up or acceptance of the application forms.
19. In C.K.Patel Madhyamik Shala v. Chairman,Gujarat Secondary Education Board (Supra), this Court has held as below:
"8. The examination schedule is notified well in advance by sufficient public notice and it is impossible to believe that the students are not aware of the last date of filing of the forms. In the present case, it is true that the students are not at fault. The fault lies with the Management in not submitting the forms in time. But it cannot be said that there is no last date fixed for sending the forms. If there is no last date till the date of the examination then Page 17 of 20 C/SCA/405/2014 JUDGMENT the forms submitted to the Board even till the date of the examination will have to be accepted by the Board. Such is not the case. In the present case, as per the Circular, the last date was fixed and even as per the averments in the petitions, it is not the case of the petitioners that there was no last date."
20. This Court has found that there was no illegality or discrimination or arbitrariness in the action of the respondent Board in that case. The same view can be applied in the present case.
21. The reason stated by the petitioner himself, for not filling up the application form, is that he was away at an undisclosed destination for a programme of ISKCON. Being a rural/remote area he could not be contacted by anyone. The petitioner has himself chosen to go for the programme of ISKCON during the first two weeks of December, 2013, as stated in paragraph 4.6 of the petition. This is after the issuance of the Admission Notice of the respondent University, on 13- 11-2013. The conduct of the petitioner indicates his casual approach towards the Entrance Examination, which does not appear to have been high on his list of Page 18 of 20 C/SCA/405/2014 JUDGMENT priorities. For his own conduct and casual approach, the petitioner cannot blame the respondent University. As it is clear that the petitioner went of his own accord to attend the programme of ISKCON,it cannot be said that there was an emergent situation due to which he was prevented from collecting the admission form, filling it up and submitting it within the stipulated period of time. It is not as though any serious incident had taken place in the life of the petitioner or any of his close family members, or that he met with an accident or that he was prevented by circumstances beyond his control. The petitioner has deliberately chosen to go away during the relevant period of time when he was to collect the form and submit it. Such conduct of the petitioner hardly inspires the confidence of this court which cannot be persuaded to conclude that the petitioner is a diligent student, in whose favour discretion ought to be exercised.
22. Considering the case of the petitioner from all angles, this Court is of the firm view that no fundamental, legal or indefeasible right of the petitioner has been infringed by the respondent Page 19 of 20 C/SCA/405/2014 JUDGMENT University, so as to invoke the writ jurisdiction of the Court.
23. For the reasons stated hereinabove, this court finds no merit in the petition, which deserves to be rejected. It is, accordingly, rejected. Rule is discharged.
(SMT. ABHILASHA KUMARI, J.) ARG Page 20 of 20