Gujarat High Court
Vinod Pandya vs State Of Gujarat & 2 Ors on 20 June, 2014
Author: Bhaskar Bhattacharya
Bench: Chief Justice
C/WPPIL/175/2014 CAV JUDGMENT
WPPIL1752014Cj4.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 175 of 2014
With
CIVIL APPLICATION NO. 6264 of 2014
In
WRIT PETITION (PIL) NO. 175 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE Sd/-
MR. BHASKAR BHATTACHARYA
HONOURABLE MR.JUSTICE Sd/-
J.B.PARDIWALA
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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, 1950 or any order made there under?
5 Whether it is to be circulated to the civil judge? No
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VINOD PANDYA
Versus
STATE OF GUJARAT & 2 ORS.
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Appearance:
MR PH PATHAK, ADVOCATE for the Applicant.
MR PK JANI, GOVERNMENT PLEADER for the Opponents
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CORAM: HONOURABLE THE CHIEF JUSTICE
Page 1 of 68
C/WPPIL/175/2014 CAV JUDGMENT
MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/06/2014
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA)
1. By this Public Interest Litigation, the writ-petitioner has prayed for the following reliefs:-
"12. In the aforesaid facts and circumstances, the petitioners pray that :-
A. The Hon'ble Court be pleased to declare the method adopted by the respondents for preparation of combined merit-list of students in the Engg. Courses in 2014-2015, as ex-facie illegal, unjust, arbitrary, without application of mind and violation of Art 14 of the Constitution of India and be pleased to quash and set aside the same and direct the respondents to prepare fully justified method of admission till the date of result and follow the pro-rata system which was followed since long for admission in Engg. Courses.
B. Pending admission and final disposal of this petition, be pleased to restrain the respondents from acting as per the modified procedure for preparation of the merit-lists for the year 2014-2015 and/or direct to follow the method suggested by this Hon'ble Court in SCA/9960/2013. C. Pending admission and final disposal of this petition be pleased to direct the respondents to produce the discussions and minutes of the joint meeting conducted by respondents from 1.1.2014 till 8.1.2014 for finalization Page 2 of 68 C/WPPIL/175/2014 CAV JUDGMENT of the present method of preparation of merit-list. D. Any other and further relief which this Hon' Court deem fit and proper, in interest of justice.
1.1 By a draft amendment, the petitioner has further prayed as under:
"B. Pending admission and final disposal of the petition, be pleased to direct the respondents to follow the method of admission in Engineering Course, which was prevailing prior to filing of Special C.A. No. 9960 of 2013."
2. The case made out by the petitioner in this application may be summed up thus:-
2.1 The petition is filed by the petitioner in the public interest for protecting the interest of the students who have passed XII standard Science stream from different boards and are intending to get admission to the professional course (B.Tech).
2.2 This petition is required to be filed because in the last year, the respondents had adopted a method of normalization for preparation of merit list for admission to the engineering courses, which was found by this Court to be violative of Article 14 of the Constitution of India. Some of the students and their parents had approached this Court by filing Special Civil Applications No. 9960/13, 10150/13, 10577/13, 10586/13 and 11030 of 2013, challenging the criteria Page 3 of 68 C/WPPIL/175/2014 CAV JUDGMENT adopted by the respondents for giving admission to the professional courses challenging the validity of process of preparation of merit list of the candidate for admission to the B. (Tech) course by the Admission Committee for Professional Courses [ACPC, for short, hereafter], as provided in the B. Tech (Regulation of Admission and Payment of Fees) Rules, 2013 [the Rules, hereafter] as it was illegal and in violation of Article 14 of the Constitution of India. This Division Bench was pleased to allow the Special Civil Applications vide order and judgment dated 23rd July 2013 observing that the merit list had not been prepared in accordance with the existing Rules and the same was in violation of Article 14 of the Constitution of India and consequently, passed the following direction in terms of paragraph 38.1 of the said judgment in the aforesaid matters:
"38.1 The merit-list in accordance with the existing Rules should be prepared in the following way:
The total marks obtained by a candidate will be A + B where A is the percentage of actual marks obtained by a candidate in his Board Examination X percentile given by that Board in respect of that candidate in comparison to all the similar candidates appearing in that Board Examination irrespective of the fact whether they have registered in this process of selection or not X .06 and B is the percentage of marks actually obtained by that candidate in JEE X percentile given to that candidate with reference to the performance of all the persons appearing in JEE irrespective of the fact whether Page 4 of 68 C/WPPIL/175/2014 CAV JUDGMENT they have registered in this process of selection or not X 0.4"
2.3 In the last year also, the method which was adopted by the respondents ACPC for preparing the merit list was not published before the public in advance. It was published only after the above SCAs were filed and this Court was pleased to direct the respondents that the method to be applied should be placed on the website. Only thereafter, the method of normalization was published. 2.4 It is important to note that against the said judgment and order passed by this Court, the respondents approached the Supreme Court by filing SLP (C) No.24045-49/2013 and prayed for interim relief on the ground that they had given admission to about 55,000 students during the pendency and finalization of the petition and the time limit fixed by the Court for giving admission was too short. The Supreme Court was pleased to grant the interim relief in favour of the respondents but at the same time, directed the State to see that the respondents in those petitions (original petitioners before this Court) might be accommodated.
2.5 It is also worth mentioning that the respondents have themselves subsequently admitted before the Supreme Court that the method adopted by them in the last year for preparation of merit list for giving admission to the students was erroneous. Therefore, they have revised the process of normalization and now a fresh formula Page 5 of 68 C/WPPIL/175/2014 CAV JUDGMENT has been invented by them for giving admission to the students for this year. It is important to note that the method/formula now sought to be adopted has not been published till the date of filing of this petition for the public at large but was produced before the Supreme Court and the State prayed that the new method prepared by them should be approved for giving admission for the year 2014-15 in Engineering Courses. It was also prayed that as the time has lapsed for admission and one year has passed, the admission given to the students for 2013-14 should be treated as legal and valid. 2.6 The above interlocutory application was opposed by the students who are the respondents in the Supreme Court and the Supreme Court has not granted any relief prayed for in the interlocutory application.
2.7 In light of the above facts and circumstances of the case, the respondents wants to keep the students in dark before admission and therefore, have not taken steps to publish the method to be adopted for the year 2014-15 though the said method was disclosed before the Supreme Court on 26.3.2014. On perusal of the method to be followed in the current year, it prima-facie shows that the method is ex-facie bad in law, without the application of mind and will give absurd results.
2.8 In last year, the formula adopted by the respondents for Page 6 of 68 C/WPPIL/175/2014 CAV JUDGMENT normalization of the board marks calculated based on the percentile rate and JEE marks were as under:
[BI 1-(P-PI) x (Bu-BI) if Bu >BI BI- [BI Pu-PI if Bu-BI Where,
i) P = Board PCM Percentile
ii) PI = Largest PCM JEE-Main Percentile that is smaller than Or equal to P.
iii) Pu = Smallest PCM JEE-Main percentile that is greater than Or equal to P:
(iv) BI = Normalized Board Marks
(v) Bi = JEE-Main PCM marks corresponding to PI
(vi) Bu = JEE-Main PCM marks corresponding to Pu.
In the current year the calculation is as under:-
2.4 COMBINING BOARD & JEE SCORES;
A mathematical formulation:
Suppose, P=board PCM percentile of a student. q = JEE main percentile of same student.
Combined score (for merit list) can be on the basis of the composite score.Page 7 of 68 C/WPPIL/175/2014 CAV JUDGMENT
Cg (p, q) - 0.6 x g(p) = 0.4 x g(q) Where 'g' is some increasing function.
2.8.1 In May 2013, 'g' was chosen so that g(q) is the raw JEE Main score.
2.8.2 Any choice of "g" would be in line with the adopted policy of 60-40 weightage. This policy may be extended to require: small changes in "p" or "q" should affect ultimate rank in 60-40 proportion.
This seems to be the expectation implied by the complaints of disproportionate effect of board score. This is an additional requirement, not explicitly covered by the 60-40 policy. This can be achieved by selecting g(p) = p. No other choice of 'g' meets this requirement. Choosing g(p) = p amounts to combining percentiles directly.
2.9 The present method adopted by the respondents also gives unreasonable result. In the present method impugned, the respondents have given a go-by to the normalization process. Without adopting the process of normalization, an attempt is made to prepare a combined merit list. By adopting the above criteria, there will be gross injustice to the students of smaller Board i.e. Gujarat Board. The last year, the total numbers of students of Gujarat Board were about 66000 in all. This year also the number of students of Gujarat Board will be nearby to 65,000. As against the above figure, the number of Page 8 of 68 C/WPPIL/175/2014 CAV JUDGMENT the students under the CBSE Board is in lakhs, may be more than 2.5 lakh or total will be about 7 lakh. The percentile will be high where the number of students is more. Similar will be the position of IB Board which is spread all over the world, controlled by Oxford Institutions. Hence the position of the students of IB Board last year will be the position of Gujarat Board students this year. 2.10 The respondents have adopted the method of common merit list as under:
"C(p.9) = 0.6 x g(p) + 0.4 x g(9)"
indicating 60% percentile of respective Board Exam & 40% of JEE examination.
2.11 The important question is how the percentile is counted. So far JEE examination, being centralized examination, there is no dispute for calculating 40%, but to find out percentile the method is ex-facie bad in law.
2.12 The following example shows prima facie, unreasonable result of the impugned method.
Class/Board Class/ Board Class/ Board Rank %age Perccentile Rank %age Percentile Rank %age Percentile obtained obtained obtained 1 85% 100 1 90 100 1 98 100 Page 9 of 68 C/WPPIL/175/2014 CAV JUDGMENT 2.12.1 This example shows how the percentile remains the same, even though top ranking students of respective Boards have acquired different percentage of marks.
2.13 It is important to note that the respondents have taken the help of the very same expert committee which had in the last year invented the method, which now they admit that it did not give the correct result. The respondents are making experiments at the cost of future of the students. It is important to note that up to 2012, the admission was given on pro rata basis which was proved to be satisfactory since long. The meritorious students of each board get chances of selection of their own respective stream and college. As per the said operative method, the students and their parents choose particular Board for further study. Now the respondents have adopted preparation of combined merit list on percentile basis without verifying its effect.
2.14 Even after the last year's experience, the respondents have not rectified themselves by giving public notice for discussion of the issue adopting the method of normalization nor have they produced any details on the website, such as, what were discussed before the different committees, why the suggestion made by this Court which was most reasonable, at least will not lead to such injustice to the meritorious students, is not adopted. Now the Page 10 of 68 C/WPPIL/175/2014 CAV JUDGMENT respondents themselves have admitted that the method adopted last year was not correct and it was an experiment with the career of thousands of students.
2.15 The respondents have stated that so far Gujarat Board is concerned, the percentile as given in the mark-sheet will be followed. In that circumstance also, the respondents have to wait till the declaration of the result of those students who have applied for correction of their marks because any change in the marks of single student will have effect on the merit list of the students. The said fact is also not reflected in the present method.
2.16 It is important to note that without normalization process it is not possible to prepare combined list as reflected above because the method of study in different boards and the subject taught in different board, the system of examinations are different and so far as the number of students are concerned, there is vast difference. It is important to note that as regards JEE examination, since the same is conducted by Central Board, so far as the students studying in Gujarat Board are concerned, it is too difficult for them while the students of CBSE Board will be benefitted.
3. This application is opposed by the respondents by filing affidavit-in-reply and the defence taken by the respondents may be summed up thus:
Page 11 of 68 C/WPPIL/175/2014 CAV JUDGMENT
3.1 The petitioner has no locus standi to file the present writ-
application as the prayers made by the petition in the present form are not pro bono publico.
3.2 The judgment rendered by this Court in SCA No.9960 of 2013 and analogous matters, is the subject-matter of Special Leave Petitions filed before the Supreme Court and the judgment rendered by this Court was initially stayed by the Supreme Court on 30th July 2013 and the stay is continuing until further order. In view of the stay granted by the Supreme Court, the directions contained in the judgment and order dated 23rd July 2013 in SCA No.9960 of 2013 cannot be implemented.
3.3 The State Legislative Assembly passed a Statute viz., Gujarat Professional Technical Educational Colleges or Institutions (Regulations of Admission and Fixation of Fees) Act, 2007 [the Act, hereafter] to make special provision for regulation of admission in the professional technical educational colleges or institutions. 3.4 With a view to conducting smooth admission procedure of professional courses with utmost transparency, Government of Gujarat, by way of a notification, constituted the ACPC. 3.5. Till the year 2012-2013, the Admission Committee on pro Page 12 of 68 C/WPPIL/175/2014 CAV JUDGMENT rata basis prepared the merit list. The eligibility criteria was (i) to clear the 12th class Board Examination with Physics & Mathematics as compulsory subjects & Chemistry/Biology/Biotechnology/Computer Science as optional subject with minimum 45% marks from either the Gujarat Board or CBSE or ICSE or IB or NIOS and (ii) to give the qualifying GUJCET examination. Thereafter the Admission Committee prepared and published three separate merit lists, namely:-
(i) The first merit list included the candidates who have passed the qualifying examination from the Gujarat Board;
(ii) The second merit list was prepared by including the candidates who have passed the qualifying examination from the Central Board of Secondary Education; and
(iii) The third merit list was prepared by including the candidates who have passed the qualifying examination from the Council of Indian School Certification Examinations (ICSE) New Delhi or National Institute of Open Schooling or International Board.
(iv) The available seats were distributed on pro rata basis taking into consideration the number of students passed from the boards mentioned above in (i), (ii) & (iii) in the said academic year.Page 13 of 68 C/WPPIL/175/2014 CAV JUDGMENT
3.6 Till 2012, as admissions were on pro rata basis based on the number of students from each board, the students from smaller boards were always at disadvantageous position because of fractional seats in various categories with pro rata allotment. It was even possible that a first rank holder of the smaller board like ICSE would not get his preferred choice of course and college. The Admission Committee was receiving many complaints/ representations from students that in spite of having higher marks, admission was not offered in some courses/institutions where seats were not allocated due to distribution on pro rata basis. Therefore, it was decided to change the method for the academic year 2013-14. 3.7 The admission procedure for the year 2013-14 underwent the following changes with a view to rectify the difficulties faced by many students in their admissions:
i. National level Entrance Examination "JEE-Main" was adopted by the State Government as the entrance test in place of the State level Entrance Examination "GUJCET' for B.E. / B.Tech admissions.
ii. The admission was based on the combined weightage of 12th Board exam and JEE-Main exam, i.e., sum of sixty percentage weightage of the percentile marks obtained in the theory subjects of Physics, Chemistry & Mathematics Page 14 of 68 C/WPPIL/175/2014 CAV JUDGMENT of qualifying examination and forty percentage weightage of the percentile marks of the same subjects obtained in the JEE (Main) examination.
iii. The State Government adopted the "Normalization"
process for preparation of a common merit list.
Normalization was adopted mainly because of different examination pattern, different assessment pattern, different result pattern and different difficulty level.
Normalization is the only process to minimize the disparity of different boards and put them on a common level, where percentile marks are used instead of percentage marks. This is a well-known practice across the globe in academic institutes. Many well-known institutions like UPSC, GPSC, IIIT, IIMs also use normalization process since the candidates have passed from different boards/universities.
iv. Common merit list was prepared instead of three separate merit list (i.e. GB, CBSE, & ISCE).
3.8 For the academic year 2013-14, the Admissions Committee prepared one common merit list employing the normalization technique evolved by ISI, Kolkata. A sum of sixty percentage weightage of the percentile marks obtained in the theory Page 15 of 68 C/WPPIL/175/2014 CAV JUDGMENT subjects (Physics, Chemistry and Mathematics) and forty percentage weightage of the percentile marks obtained in the JEE (Main) was the merit marks. JEE-Main exam was considered as the base for normalization, as it is common for all students of different boards.
Percentiles were calculated for (i) PCM marks for JEE-Main of all the registered candidates irrespective of their boards and (ii) PCM Marks of the registered students of individual boards with respect to the registered students of that board only. Board percentiles were mapped with the JEE-Main percentiles and the corresponding PCM Marks, equivalent to JEE-Main are obtained.
3.9 The Admission Committee for the year 2013-14 introduced the method known as normalization for preparation of a common merit list which was a subject-matter before this Court in SCA No.9960 of 2013 and the judgment rendered by this Court as stated above is stayed by the Apex Court.
3.10 In exercise of the rule making power, the State Government had initiated the process of amending the rules and for that, before making necessary amendment in the rules, the State Government had called for the suggestions and objections of all stake holders. The State Government had sought for the suggestions of the academician, guardian and public at large before coming out with the new rules. The State Government, after taking into consideration the suggestions of concerned persons, had framed the present rules. Page 16 of 68 C/WPPIL/175/2014 CAV JUDGMENT Before coming out with resolution dated 20th May 2014, the State Government had also sought the guidance of expert bodies and expert in the fields. The decision of the State Government is, thus, guided by the opinion of the expert persons of the fields and by seeking suggestions of all the persons who have the concern in relation to the subject-matter. The petitioner had not given any suggestions at any time. If the petitioner was so much motivated by public interest, the petitioner would have participated in such process. The petitioner has not given any suggestions. The decision of the State Government is thus arrived at by a thorough scrutiny and by seeking the guidance/opinion of the expert persons of the field and by hearing all concerned and affected parties. All the States in the country have by and large adopted from same procedure which the State Government has introduced by way of resolution. The State Government had arranged the meetings at Ahmedabad, Vadodara, Surat, Mehsana, Rajkot and Bhavnagar. In the meetings held at these places, the State Government had invited Principals of Higher Secondary Schools, Principals of Engineering Colleges, Directors of Academic Institutions, the guardians of students, the Professors and the representatives of the State Government as also the representatives of the college management. In the said meetings which were held on different dates, the State Government had made the presentations of entire method in detail and the same was displayed on screen and detailed discussions with such different group of persons who have considerable stake in the subject were Page 17 of 68 C/WPPIL/175/2014 CAV JUDGMENT involved and they gave their suggestions. As stated earlier, the petitioner had never remained present.
3.11 By way of the present petition the petitioner has challenged the method adopted by the respondents for preparation of common merit list in the engineering courses in 2014-15 being arbitrary and unjust. The petitioner has also prayed to produce before this Court the minutes of the joint meeting for finalization of the method of preparation of the merit list. The petitioner by way of draft amendment has also prayed that the respondent be directed to follow the method of admission in engineering course which was prevailing prior to filing of SCA No.9960 of 2013 which was disposed. 3.12 As far as SCA No.9960 of 2013 is concerned, the said petition was filed challenging the method of preparation of merit list of 2013-14. The method adopted by the Admission Committee for the year 2013-14 was on the basis of normalizing the marks obtained by student for securing the percentile of those students. This percentile which was obtained after normalizing the marks was taken into consideration for preparation of merit list. A sum of 60% weightage of the percentile marks obtained in the theory subject and 40% weightage of the percentile marks obtained in the JEE were considered for deriving the merit marks of the students. This method of normalizing the marks and deriving the percentile for preparation of merit list came to be challenged before this Court in the aforesaid Page 18 of 68 C/WPPIL/175/2014 CAV JUDGMENT petition. This Court, after considering the record and arguments advanced on all sides, was pleased to hold in paragraphs 38, 38.1 and 38.2 as under:-
"38. On consideration of the entire materials on record, we declare that the merit list has not been prepared in accordance with the existing Rules and at the same time, the method adopted itself is violative of Article 14 of the Constitution of India. We, accordingly, pass order in terms of paragraph 18.A of Special Civil Application No.9960 of 2013 in all these matters and direct the respondents to strictly follow the provisions contained in the Rules as indicated below.
38.1 The merit list in accordance with the existing Rules should be prepared in the following way:
The total marks obtained by a candidate will be A +B where, A is the Percentage of actual marks obtained by a candidate in his Board Examination x percentile given by that Board in respect of that candidate in comparison to all the similar candidates appearing in that Board Examination irrespective of the fact whether they have registered in this process of selection or not X 0.6 and B is the Percentage of marks actually obtained by that candidate in JEE X percentile given to that candidate with reference to the performance of all the persons appearing in JEE irrespective of the fact whether they have registered in this process of selection or not X 0.4.
38.2 The respondents are directed to act accordingly and prepare fresh merit list.Page 19 of 68 C/WPPIL/175/2014 CAV JUDGMENT
3.13 The judgment rendered in SCA No.9960 of 2013 and allied matters was challenged by the State Government by way of preferring SLP being Special Leave Appeal (Civil) 24045-24049/13.
The Apex Court, while taking up the petitions for hearing on 30 th July 2013, was pleased to stay the impugned order for a period of three months from that date. The said order reads as under:-
"Upon hearing counsel the Court made the following ORDER Taken on Board.
Issue notice, which is accepted by Mr. PH Pathak, counsel appearing for the respondents on behalf of the Advocate-on- Record.
There shall be stay of the impugned order for a period of three months from today.
However, we direct the petitioner to examine and inform the Court as to whether the respondents could be accommodated in the seats of their choice.;
Put up on August 02, 2013."
3.14 The Apex Court, vide order dated 2nd August 2013, has been pleased to pass an order continuing the interim order granted by the Hon'ble Apex Court dated 2nd August 2013 until further orders. The said order reads as under:-
"Upon hearing counsel for the both parties the Court made the following Page 20 of 68 C/WPPIL/175/2014 CAV JUDGMENT ORDER Interim order granted by this Court by order dated 30.07.2013 shall continue until further orders.
I.A. Nos. 6-10 (Application(s) for impleadment) are allowed. List after three months."
3.15 The petitioner's prayer to implement the judgment of this Court is not tenable as the judgment passed by the Hon'ble Court is stayed by the Supreme Court.
3.16 The aforestated Special Leave Appeal No.24045-24049 / 13 are pending adjudication before the Apex Court. Therefore, the directions contained in the judgment dated 23rd July 2013 in SCA No.9960 of 2013 and allied matters are stayed by the Apex Court till further orders.
3.17 The State Government after considering the report/recommendations submitted by the High Level Committee issued a Government Resolution dated 20th May 2014 and considering the recommendations of State Level Committee, which was in consultation with Indian Statistical Institution, Kolkata, along with recommendations of stakeholders like the students and parents and subject to the final outcome of SLP pending before Hon'ble Apex Court resolved the method of preparation of merit list as follows :
"The merit list shall be prepared after adding 60% Page 21 of 68 C/WPPIL/175/2014 CAV JUDGMENT weightage of percentile marks obtained in the theory subjects (Physics, Chemistry and Mathematics) of the Board Examination of the candidates who have appeared in the respective Board examination with 40% weightage of the percentile marks obtained in the JEE (Main) 2014. This shall be basis for calculation of merit marks and the resulting merit list for the academic year 2014-15".
3.18 It would be pertinent to note herein that as far as the rules being the Bachelor of Engineering and Technology (Regularization of Admission and Payment of Fees) Rule, 2013, the contention of the petitioner that the rules are modified keeping students and parents in dark, is not only misplaced but also contrary to the record as the prospectus of 2014-15 on page 20 clearly provides for the resolution and operationalization of the merit list. The method of preparing the merit list is a part of prospectus and it is clearly available on the website of ACPC. Series of counseling have also taken place by committee at different places across the State and all the students are made to understand the mode and method of admissions as well as the calculation of marks. Therefore, the contention of the petitioner of amending the rules behind the back of students and parents is misconceived.
3.19 As far as the formula which is adopted by the State Government for the year 2014-15 is concerned, there are certain salient features of such formula which minimizes the overall gap of students of different boards in the merit list. The said formula aims at Page 22 of 68 C/WPPIL/175/2014 CAV JUDGMENT bringing parity amongst the students from different boards. For example the number of students who would be applying from the Gujarat Board would be 65,000 and from the International School Board would be less than 50. This new formula aims to see that no injustice is caused to the students who appeared from smaller board and with a view to maintain their percentile in the most efficient manner. At this stage, it would be appropriate to refer to paragraphs 2.2, 2.3 and 2.4 of the report submitted by the Indian Statistical Institute, Kolkata, on normalization strategies for Gujarat Engineering Admissions 2014, which deals with the sum and substance of the Report of fine tuning of Normalization Strategies for Gujarat Engineering Admission 2014 which are quoted below:
"[1] Selecting Procedure for Combining Board and JEE Scores:
Before deciding upon the procedure for combining board and JEE scores, let us first look at figures 2.4 and 2.5, showing plots of percentage marks versus percentile ranks for various board examinations and JEE [Main].Page 23 of 68 C/WPPIL/175/2014 CAV JUDGMENT
From Figures 2.4 and 2.5, it is easy to observe that, Page 24 of 68 C/WPPIL/175/2014 CAV JUDGMENT
1. PCM score distributions vary greatly from board to board.
2. JEE score distribution has a much greater skew.
[2] Problems of Normalizing Board Marks using the Method of 2013:
Normalization of board marks using the equation [1.1] may generate distortions of different degrees at different segments of the list of normalized board marks as compared to the JEE marks [see Figure 2.6].
From figure 2.6, following observations can be made:
1. Small differences in upper range of board scores get excessively amplified.
2. Large differences in middle range may be reduced also Figure 2.6: comparison of normalized board marks and Jee Marks at different segments.
These are also reflected in the following cases of some typical grievances:
Case I : Student A and student B are both from CBSE. Student A has JEE score 131 and Board PCM 232/240, while, Student B has JEE score 149 and Board PCM 231/240.Page 25 of 68 C/WPPIL/175/2014 CAV JUDGMENT
In terms of percentile i] Student A is at JEE percentile 97.14 and Board PCM percentile 99.70, ii] Student B is at JEE percentile 98.34 and Board PCM percentile 99.57.
According to the method used in 2013, i] Student A has composite score percentile 99.41 [rank 405], ii] Student B has composite score percentile 99.37 [rank 430].
Student A is ranked above student B, as here excessively high importance is given to board score. As a result, a small difference in board score is disproportionately magnified after normalization.
Case II: Student A and student B are both from Gujarat Board, student 'A' has JEE score 99 and Board PCM 260/300. Student B has JEE score 118 and Board PCM 253/300.
In terms of percentile i] Student A is at JEE percentile 91.63, Board PCM percentile 98.03, ii] Student B is at JEE percentile 95.62, Board PCM percentile 97.01.
According to the method used in 2013, i] Student A has composite score percentile 96.66 [rank 2,302], ii] Student B has composite score percentile 96.52[ rank 2,396].
Student A is ranked above Student B. Case III: Student A and student B are both from Gujarat Board.Page 26 of 68 C/WPPIL/175/2014 CAV JUDGMENT
Student A has JEE score 47 and Board PCM 169/300.Student B has JEE score 48 and Board PCM 165/300.
In terms of percentile i] Student A is at JEE percentile 49.22, Board PCM percentile 61.65, ii] Student B is at JEE percentile 50.38, Board PCM percentile 58.34.
According to the method used in 2013, I] Student A has composite score percentile 49.54 [ rank 34,763], ii] Student B has composite score percentile 50.21 [rank 34, 304].
Student B is ranked above Student A as here excessively high importance is given to JEE score. As a result, a small difference in board score is disproportionately shrunk after normalization.
To deal with these cases, some alternatives to the procedure adopted in 2013 need to be explored.
[3] Combining board and JEE scores: A mathematical formulation:
Suppose, P = board PCM percentile of a student, q = JEE-Main percentile of same student.
Combined score [for merit list] can be on the basis of the composite score Cg[P;q] = 0:6 * g[p] + 0:4 * g[q] [2.1] Where `g' is some increasing function.
In 2013, `g' was chosen so that g[q] is the raw JEE-Main score.
Any choice of `g' would be in line with the adopted policy Page 27 of 68 C/WPPIL/175/2014 CAV JUDGMENT of 60-40 weightage.
This policy may be extended to require : small changes in p or q should affect ultimate rank in 60-40 proportion. This seems to be the expectation implied by the complaints of disproportionate effect of board scores. This is an additional requirement, not explicitly covered by the 60-40 policy. This can be achieved by selecting g [p] = p. No other choice of `g' meets this requirement. Choosing g [p] = p amounts to combining percentiles directly.
Figures 2.7: 3-D plot for the performance of the Normalization Method adopted in 2013 Page 28 of 68 C/WPPIL/175/2014 CAV JUDGMENT Figure 2.8: 3-D Plot for the proposed method. Figures 2.7 and 2.8 also provide a graphical comparison of the performances of the proposed method to that of the method adopted in 2013. Observe that, rank [ by 2013 method] may have asymmetric sensitivity to small differences in percentiles ranges.
To compare the performance of the proposed method to that of the previous year method, let us recall the cases discussed in Section 2.3.The case wise performances of the candidates, based on the proposed method, are as follows:
Case I : i] Student A has composite score percentile 99.09 [rank 629, ii] Student B has composite score percentile 99.42 [rank 401].
Case II: i] Student A has composite score percentile 96.44 [rank 2,454], ii] Student B has composite score percentile 97.21 [rank 1,920].Page 29 of 68 C/WPPIL/175/2014 CAV JUDGMENT
Case III: i] Student A has composite score percentile 54.16 [rank 31,581], ii] Student B has composite score percentile 51.95 [rank 33,103].
Thus, in all the three cases, the proposed rankings are logically quite justifiable.
We now compare the representation of different boards at the top of merit list in Table 2.2.
In this context, for using pro-rata, the percentages to be used are given in Table 2.3.
As can be observed from Table 2.2, in the top 20000 ranks, 94% students from Gujarat Board, 5:3% students from CBSE Board and 0:7% students from ISCE Board will be accommodated, which is roughly equal to the percentages used to be obtained using pro-rata basis, as shown in Table 2.3. ISI team presented their findings to a team of ACPC, who visited ISI, Kolkata on 28 February, 2014. The team members of ACPC were, Table 2.2: Representation of different boards at the top of merit list [using proposed method] Number of Share of Share of CBSE Share of ICSE top Gujarat candidate Board s 1,000 74.1% 25.6% 0.3% 5,000 57.5% 12.0% 0.5% 10,000 92.2% 7.3% 0.5% 20,000 94.0% 5.3% 0.7% Table 2.3: Representation of different boards at the top of merit list [ using pro-rata] Page 30 of 68 C/WPPIL/175/2014 CAV JUDGMENT Number of Share of Share of CBSE Share of ICSE candidates Gujarat having board Board PCM scores 68,896 94.3% 5.2% 0.5% i] Dr. Mrs. Jayanti Ravi - Commissioner ii] Prof. M.N. Patel- VC, Gujarat University iii] Prof. P.R.Dave - Jt.Director iv] Dr. N.N.Bhuptani - Registrar - IITRAM v] Prof. B.J.Shah - OSD Admission Committee vi] Prof.Ashish Desai - OSD Admission Committee A thorough discussion took place and it was agreed to follow the suggested method which looks more reasonable.
The said report also provides suggested approach derived from the statistical analysis of the earlier chapter and the same is quoted herein below.
"Suggested Approach:
Based on the above discussions and statistical analysis, the following recommendations are made for preparing merit list of candidates for admission to the engineering colleges of Gujarat from 2014.
1. Use candidates appeared in board examination as basis for computing percentiles.
2. Use JEE and board percentiles directly for obtaining composite score [weighted average]. This data are to be provided by ACPC for our analysis.
3. Ensure that all boards compute PCM percentile exactly the same way, up to at least 8 digits after decimal.
4. Ensure that all boards report ALL actual scores together with PCM percentiles. The actual scores may be required for breaking of ties, if any"Page 31 of 68 C/WPPIL/175/2014 CAV JUDGMENT
3.20 After the hearing was initially concluded on 13th June, 2014, Mr. Jani mentioned the matter before us on 16 th June 2014 and prayed for taking into consideration the opinion given by the Indian Statistical Institute, Kolkatta, in answer to our query whether percentile score, which is a 'position' or 'status' in an examination, can be multiplied like ordinary raw number. By passing a separate order on 16th June 2014, we have directed to keep the same with the records. It appears that Dr. Ashis Kumar Chakraborty, Head, SQC & OR Division, Indian Statistical Institute, Kolkatta, has given the following reply.
"The answer to the specific query is that the percentile can be multiplied with any fixed number (for the purpose of preparing merit list), but the multiplier should not be different for different students. In particular, it does not make sense to multiply the percentile with the percentage score of the student, as explained in Annexure I."
4. After hearing the learned counsel for the parties and after going through the aforesaid materials on record, we find that the process of selection of the last year was challenged by some of the students by filing different Special Civil Applications which were heard together and we disposed of those Special Civil Applications by specifically holding that the procedure adopted by the State- respondent was not in conformity with the Rules framed. Page 32 of 68 C/WPPIL/175/2014 CAV JUDGMENT Consequently, we struck down the said procedure and in paragraph 38.1 of our judgment, we indicated the formula which should be adopted in conformity with the existing Rules for preparation of a final merit list. The Supreme Court stayed the operation of the above direction contained in paragraph 38.1, but at the same time, gave relief to the writ-petitioners by directing the State-respondent to provide them with the colleges of their choice. It appears from the record that in the month of May, 2014, the State-respondent approached the Supreme Court by virtually admitting that the procedure adopted by them in the last year was not in conformity with the rules and they indicated the modified procedure which they intended to adopt for the selection in this year. The Supreme Court, however, has passed "No Order" on such application.
5. Mr. Jani, the learned Government Pleader, appearing on behalf of the State-respondent, has taken a preliminary objection as to the maintainability of this writ-application. According to Mr. Jani, since the petitioner of this Public Interest Application has prayed for implementation of our order passed in the earlier Special Civil Applications which has already been stayed by the Supreme Court, the petitioner has no remedy before this Court and it is for the petitioner to approach the Supreme Court for appropriate relief. Secondly, Mr. Jani contends that the policy adopted for publication of merit list for this year being based on an opinion given by the board of expert, this Court under Article 226 of the Constitution of India Page 33 of 68 C/WPPIL/175/2014 CAV JUDGMENT cannot interfere with such policy decision.
6. We first propose to deal with the preliminary objection raised by Mr.Jani.
7. It is now settled law that any interim direction given by the Supreme Court in a pending matter cannot be said to be a precedent or a law laid down by the Supreme Court within the meaning of Article 141 of the Constitution. In this connection, we may profitably refer to the following observation of the Supreme Court in para-10 of the judgment in the case of STATE OF ASSAM v. BARAK UPATYKA reported in AIR 2009 SC 2249 :-
"10. A precedent is a judicial decision containing a principle, which forms an authoritative element termed as ratio decidendi. An interim order which does not finally and conclusively decide an issue cannot be a precedent. Any reasons assigned in support of such non-final interim order containing prima facie findings, are only tentative. Any interim directions issued on the basis of such prima facie findings are temporary arrangements to preserve the status quo till the matter is finally decided, to ensure that the matter does not become either infructuous or a fait accompli before the final hearing. The observations and directions in Kapil Hingorani (I) and (II) being interim directions based on tentative reasons, restricted to the peculiar facts of that case involving an extraordinary situation of human rights violation resulting in starvation deaths and suicides by reason of non-payment of Page 34 of 68 C/WPPIL/175/2014 CAV JUDGMENT salaries to the employees of a large number of public sector undertakings for several years, have no value as precedents. The interim directions were also clearly in exercise of extra-ordinary power under Article 142 of the Constitution. It is not possible to read such tentative reasons, as final conclusions, as contended by the respondent. If those observations are taken to be a final decision, it may lead to every disadvantaged group or every citizen or every unemployed person, facing extreme hardship, approaching this Court or the High Court alleging human right violations and seeking a mandamus requiring the State, to provide him or them an allowance for meeting food, shelter, clothing, salary, medical treatment, and education, if not more. Surely that was not the intention of Kapila Hingorani (I) and (II).
(Emphasis supplied by us).
8. In another decision of the Supreme Court in the case of AMARJEET SINGH and ORS. V. DEVI RATAN AND OTHERS reported in AIR 2010 SC 3676, the Supreme Court held as under in paragraph 15 :-
"15. No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting interim order and thereafter blame the Court. The fact that the writ is found, ultimately, devoid of any merit, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no Page 35 of 68 C/WPPIL/175/2014 CAV JUDGMENT one, becomes applicable in such a case. In such a fact situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as institution of litigation cannot be permitted to confer any advantage on a suitor from delayed action by the act of the Court.(Vide Shiv Shankar and Ors. v. Board of Directors, Uttar Pradesh State Road Transport Corporation and Anr., 1995 Suppl. (2) SCC 726; M/s. GTC Industries Ltd. v. Union of India and Ors., AIR 1998 SC 1566 : (1998 AIR SCW 1089); and Jaipur Municipal Corporation v. C.L. Mishra, (2005) 8 SCC 423).
(Emphasis supplied by us).
9. We, thus, find that the interim stay of operation of our order passed by the Supreme Court in the above Special Civil Applications is merely an interim order passed in a pending proceeding and thus, cannot come in the way of the present petitioner who is not a party to the earlier proceeding in getting relief that has been claimed in this application, if the same is lawfully available to him.
10. Moreover, it appears that the State itself went in the above proceeding before the Supreme Court with an application thereby praying for approval of fresh methodology sought to be adopted in the present year's process of selection which is the subject-matter of this litigation and which was opposed by the petitioners of the earlier Special Civil Applications, who are the respondents before the Supreme Court, but the Supreme Court Page 36 of 68 C/WPPIL/175/2014 CAV JUDGMENT refused to approve such methodology.
11. In such circumstances, we find that the submission made by Mr. Jani that the petitioner should approach the Supreme Court directly under Article 32 of the Constitution is not tenable in view of the fact that this petition is based on allegation of violation of legal right accrued in their favour by virtue of the Rules framed by delegated authority under the statute enacted by Gujarat State Legislature.
12. We, therefore, overrule the aforesaid preliminary objection of Mr. Jani.
13. Therefore, the questions that require determination in this Public Interest Litigation are:
[i] whether the new methodology sought to be adopted by the State-
respondent for selection of merit list is in conformity with the Rule prescribed for preparing the merit list, and;
[ii] whether the methodology so prescribed has violated any of the provisions of the Constitution.
14. In order to appreciate the aforesaid questions, it will be profitable to refer to the following provisions of the Act and the Rules framed there under:-
"Section 2:Page 37 of 68 C/WPPIL/175/2014 CAV JUDGMENT
2[c] "Common Entrance Test" means the entrance test conducted for determination of merits of the candidates for the purpose of admission in the different professional courses;
xxx xxx xxx 2[j] "prescribed" means prescribed by the rules made under this Act. xxx xxx xxx Section 5: "5 [1] For the purpose of admission in the professional
courses, each Admission Committee shall prepare the merit list of students based on such criteria and in such ratio as may be prescribed.
[2] For the purpose of preparing the list of students for admission under sub-section[1], the authority or the body authorized by the State Government in this behalf, shall conduct the common entrance test in the manner as may be prescribed.
Provided that it shall not be necessary to conduct common entrance test for preparing merit list for the admission to such professional courses as may be prescribed."
xxx xxx xxx Rules
2[g]: "percentile marks" means the percentile score obtained by the candidate after normalizing the marks obtained by him in the Board with respect to the marks from other Boards;
xxx xxx xxx 5. Eligibility for Admission.- Page 38 of 68 C/WPPIL/175/2014 CAV JUDGMENT [1] For the purpose of admission, a candidate shall have
passed the Qualifying Examination with minimum eligibility criteria of percentage of marks in subjects prescribed by AICETE from time to time from,-
[i] the Gujarat Board; or
[ii] the Central Board of Secondary Education;
Provided that,
[a] the school in which the candidate has
studied, shall have been located in the State of Gujarat; or [b] the school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu or Dadra and Nagar Haveli and whose parents are of Gujarat origin; or [iii] the Council of Indian School Certificate Examination, New Delhi:
Provided that, [a] the school in which the candidate has studied, shall have been located in the State of Gujarat; or [b] the school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu or Dadra and Nagar Haveli and whose parents are of Gujarat origin; or [iv] the National Institute of Open Schooling: Provided that, [a] the study Center/school in which the candidate has studied, shall have been located in the State of Gujarat; or Page 39 of 68 C/WPPIL/175/2014 CAV JUDGMENT [b] the study Center/school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu or Dadra and Nagar Haveli and whose parents are of Gujarat origin; or [v] the International School Board:
Provided that, [a] the study Centre/school in which the candidate has studied, shall have been located in the State of Gujarat; or [b] the study Center/school in which the candidate has studied, shall have been located in the Union Territories of Daman and Diu or Dadra and Nagar Haveli and whose parents are of Gujarat origin; and [vi] have appeared in JEE [Main] conducted in the corresponding academic year:
[2] A candidate whose parents are of Gujarat origin and are serving out of the Gujarat in the service of Central Government or other State Government,Armed Forces, Boards or Corporations owned or controlled by the Central Government or other State Government or any nationalised bank and who has passed the qualifying examination from the State where parents are serving and has appeared in the JEE[Main] conducted in the corresponding academic year, shall be eligible for admission and his candidature shall be included in the merit list prepared in accordance with the provisions of rule 11.
[3] A candidate who has passed the Qualifying Examination from any other State and, -
[i] has appeared in JEE[Main] conducted in the corresponding academic year; and Page 40 of 68 C/WPPIL/175/2014 CAV JUDGMENT [ii] whose parents are serving in the category of services as shown below and who are transferred from other States to Gujarat and have resumed their duties in the place where they are transferred in Gujarat and shall remain so transferred in the State of Gujarat at the time of registration for admission, shall be eligible for admission and his candidature shall be included in the merit list prepared in accordance with the provisions of rule 11. Category of Services:
[a] Officers or Employees of Central Government; or [b] Officers or Employees of Public Sector Undertakings of Central Government or any State Government;
or
[c] Officers or Employees of nationalized banks; or
[d] Officers or Employees of United Nations, UNICEF,
World Health Organization and such other
International Institutions located in Gujarat State; or [e] Gujarat Cadre Officers of Indian Administrative Service, Indian Police Service or Indian Forest Service working in Gujarat or working in other States on deputation; or [f] Officers or Employees of Gujarat Government posted outside Gujarat State for administrative reasons.
[4] 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 Page 41 of 68 C/WPPIL/175/2014 CAV JUDGMENT [ii] thereafter studied in any of the schools located out of the State of Gujarat under the said scheme, and [iii] has passed Qualifying Examination from a Navodaya Vidyalay located outside Gujarat State, and [iv] appeared in the JEE [Main] conducted in the corresponding academic year shall be eligible for admission and his candidature shall be included in the merit list prepared in accordance with the provisions 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. The scheme is managed by Navodaya Vidyalaya Samiti, an autonomous organisation under the Department of Education, Ministry of Human Resource Development, Government of India.
[5] A candidate who has passed the qualifying examination after appearing in the supplementary examination conducted by the Board shall be eligible for admission in the current academic year on the vacant seats declared under rule 19.
[6] Notwithstanding anything contained in these rules, admission in the Bachelor of Technology Course, in - [i] the Dhirubhai Ambani Institute of Information and Communication Technology established under the Dhirubhai Ambani Institute of Information and Communication Technology Act, 2003 shall be granted in the following manner, namely:-Page 42 of 68 C/WPPIL/175/2014 CAV JUDGMENT
[a] Fifty percent seats of the total sanctioned seats shall be filled as Government seats from the candidates who have passed the Qualifying Examination from the schools located in the State of Gujarat and have appeared in JEE [Main] Examination for the corresponding academic year, by the Admission Committee on the basis of the merit list prepared by the Admission Committee.
[b] Fifty percent seats shall be filled by the Dhirubhai Ambani Institute of Information and Communication Technology from the candidates who have passed the Qualifying Examination from the schools located in India [including Gujarat State] and have appeared in JEE [Main] Examination for the corresponding academic year. Merit list for these seats shall be based on percentile score in JEE [Main] examination.
[ii] the Nirma University established under the Nirma University Act, 2003 shall be granted in the following manner, namely:-
[a] Fifty percent seats of the total sanctioned seats shall be filled as Government seats from the candidates who have passed the Qualifying Examination from the schools located in the State of Gujarat and have appeared in JEE [Main] Examination for the corresponding academic year, by the Admission Committee on the basis of the merit list prepared by the Admission Committee.Page 43 of 68 C/WPPIL/175/2014 CAV JUDGMENT
[b] Thirty five percent seats shall be filled by the Nirma University from the candidates who have passed the Qualifying Examination from the schools located in India [including Gujarat State] and have appeared in JEE [Main] Examination for the corresponding academic year. Merit list for these seats shall be based on percentile score in JEE [Main] examination. [c] Fifteen percent seats shall be filled by the Nirma University as NRI seats from the candidates who have passed the Qualifying Examination from the schools located in India [including Gujarat State] or abroad. Seats shall be filled in accordance with the guidelines issued by the Admission Committee in this behalf.
[iii] the Pandit Deendayal Petroleum University established under the Pandit Deendayal Petroleum University Act, 2007 shall be granted in the following manner, namely:-
[a] Fifty percent seats of the total sanctioned seats shall be filled as Government seats from the candidates who have passed the Qualifying Examination from the schools located in the State of Gujarat and have appeared in JEE [Main] Examination for the corresponding academic year, by the Admission Committee on the basis of the merit list prepared by the Admission Committee;
[b] Fifty percent seats shall be filled by the Pandit Deendayal Petroleum University from the candidates who have passed the Page 44 of 68 C/WPPIL/175/2014 CAV JUDGMENT Qualifying Examination from the schools located in India [including Gujarat State] and have appeared in JEE [Main] Examination for the corresponding academic year. Merit list for these seats shall be based on percentile score in JEE [Main] examination.
[iv] the Institute of Infrastructure, Technology, Research And Management established by Institute of Infrastructure, Technology, Research And Management Act, 2012 [Guj.5 of 2013] shall be granted in the following manner, namely:- [a] Fifty percent seats of the total sanctioned seats shall be filled as Government seats from the candidates who have passed the Qualifying Examination from the schools located in the State of Gujarat and have appeared in JEE[Main] Examination for the corresponding academic year, by the Admission Committee on the basis of the merit list prepared by the Admission Committee;
[b] Fifty percent seats shall be filled by the Central Counselling Board established by the Government of India from the candidates who have passed the Qualifying Examination from the schools located in India [including Gujarat State] and have appeared in JEE[Main] Examination for the corresponding academic year. Merit list for these seats shall be based on 60% weightage of JEE [Main] and 40% weightage of normalized board marks or other qualifying examination as decided by Central Counselling Board.Page 45 of 68 C/WPPIL/175/2014 CAV JUDGMENT
[v] the Institute Navrachna University established under the Gujarat Private Universities Act, 2009 [Guj.8 of 2009] shall be granted in the following manner, namely:-
[a] Seventy five percent seats of the total sanctioned seats shall be filled as Government seats from the candidates who have passed the Qualifying Examination from the schools located in the State of Gujarat and have appeared in JEE [Main] Examination for the corresponding academic year, by the Admission Committee on the basis of the merit list prepared by the Admission Committee;
[b] Twenty five percent seats shall be filled by the Navrachna University from the candidates who have passed the Qualifying Examination from the schools located in India [including Gujarat State] and have appeared in JEE[Main] Examination for the corresponding academic year. Merit list for these seats shall be based on percentile score in JEE [Main] examination."
xxx xxx xxx 9. Distribution of Seats between Candidates of Gujarat Board and Other Boards.-
For the purpose of admission, the available seats shall be distributed based on the merit list prepared under sub-rule[1] of under rule 11:
Provided that if percentile marks are not available from Page 46 of 68 C/WPPIL/175/2014 CAV JUDGMENT any of the Boards mentioned in the sub-rule [1], sub-rule[2], sub-rule [3] or, as the case may be, sub-rule [4] of rule 5, then the available seats shall be distributed between candidates of the Boards for which percentile marks are available and other Boards for which percentile marks are not available, on pro-rata basis taking into consideration the two merit lists prepared as per the provisions of sub-rule [1] of rule 11."
xxx xxx xxx
11. Preparation of Merit List.-
The merit list of the candidates who have applied for admission in the manner prescribed by the Admission Committee, within the prescribed time limit and who are found eligible for admission under these rules, shall be prepared in the following manner, namely:-
[1] For the candidates who have passed the Qualifying Examination from any of the Boards mentioned in the sub-rule [1], sub-rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, sum of sixty percentage weightage of the percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] and forty percentage weightage of the percentile marks obtained in the JEE [Main] shall be the merit marks:
Provided that if percentile marks are not available from any of the Boards mentioned in the sub-rule [1], sub- rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, two separate merit lists shall be prepared namely:-
[i] The first merit list shall include the candidates who have passed the Qualifying Examination from the Boards for Page 47 of 68 C/WPPIL/175/2014 CAV JUDGMENT which the percentile marks are available. The merit list shall be prepared with sixty percentage weightage of the percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] combined with forty percentage weightage of the percentile marks obtained in the JEE [Main].
[ii] The second merit list shall include the candidates who have passed the Qualifying Examination from the Boards for which the percentile marks are not available. This shall be based on sixty percentage weightage of marks obtained in theory of the subjects [Physics, Chemistry and Mathematics] after converting it to 100 combined with the forty percentage weightage of the percentile marks obtained in the JEE [Main].
2. The criteria for deciding merit order in case of candidates having equal merit marks shall be based on the percentage of marks obtained in the Qualifying Examination in the following sequence, namely:-
[a] Mathematics and Physics
[b] Mathematics and Chemistry
[c] Physics and Chemistry
[d] Mathematics
[e] Physics
[f] Chemistry
[g] English
[h] Aggregate marks"
(Emphasis supplied by us)
15. After hearing the learned counsel for the parties and after going through the materials on record, we find that according to Rule Page 48 of 68 C/WPPIL/175/2014 CAV JUDGMENT 11, the merit list of the candidates who had applied for admission in the manner prescribed by the Admission Committee within the prescribed time limit and who are found eligible for admission should be prepared in the following way:-
For the candidates who have passed the Qualifying Examination from any of the Boards mentioned in the sub-rule [1], sub-rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, sum of sixty percentage weightage of the percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] together with forty percentage weightage of the percentile marks obtained in the JEE [Main] shall be the merit marks.
16. According to the proviso, if the percentile marks are not available from any of the Boards mentioned in the sub-rule [1], sub-
rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, two separate merit lists shall be prepared.
17. There is no dispute that the respondents have obtained the percentile marks available from all the Boards to which the candidates belong and thus, there is no necessity of preparation of two merit lists, but only one merit list should be prepared, which shall include the candidates who have passed the Qualifying Examination from the Boards for which the percentile marks are available and shall be prepared with sixty percentage weightage of the percentile marks Page 49 of 68 C/WPPIL/175/2014 CAV JUDGMENT obtained in the theory subjects [Physics, Chemistry and Mathematics] combined with forty percentage weightage of the percentile marks obtained in the JEE [Main].
18. We have already pointed out above that according to the definition of "percentile marks" in Rule 2[g], percentile marks means the percentile score obtained by the candidate after normalizing the marks obtained by him in the Board with respect to the marks from other Boards.
19. It may not be out of place to mention here that in the Rules or the Act, there is no method of normalizing the marks obtained in the Board with respect to the marks obtained from other Boards. But as pointed out in the affidavit used by the respondent authority, it has taken the help of Indian Statistical Institute, Kolkata for the purpose of normalization of such marks. There is also no dispute that the actual method of normalizing marks was not disclosed in any of the advertisements given and the students were totally kept in dark.
20. In the affidavit filed before this Court, the State-respondent has disclosed the new formula that they propose to follow on the basis of the recommendation of the Indian Statistical Institute, Kolkata for the year 2014-15, which are quoted below:
Page 50 of 68 C/WPPIL/175/2014 CAV JUDGMENT
"Recommendations of ISI, Kolkata for 2014-15:
Based on Analysis and Statistical approach, ISI, Kolkata has given a report with the following suggestions: I. "Use candidates appeared in board examination as basis for computing percentiles.
II. Use JEE and board percentiles directly for obtaining composite score [weighed average].
III. Ensure that all boards compute PCM percentile exactly the same way, up to at least 8 digits after decimal. IV. Ensure that all boards report ALL actual scores together with PCM percentiles. The actual scores may be required for breaking of ties, if any. V. Hence, percentiles are to be calculated on the basis of appeared students instead of eligible students as per recommendation [i] above."
(Emphasis supplied).
21. It appears from the affidavit-in-reply given by the State- respondent that the State-respondent has taken decision that on the basis of report/recommendation submitted by High Level Committee and in consultation with Indian Statistical Institute, Kolkata, along with recommendation of the stakeholders students and parents and subject to the final outcome of the SLP pending before the Supreme Court, the Committee has passed a resolution which is quoted below:
"The merit list shall be prepared after adding 60% weightage of percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] of the Board Examination of the candidates who have appeared in the respective Board examination with 40% weightage Page 51 of 68 C/WPPIL/175/2014 CAV JUDGMENT of the percentile marks obtained in the JEE [Main] 2014. This shall be basis for calculation of merit marks and the resulting merit list for the academic year 2014-15."
(Emphasis given by us).
22. Thus, it appears that whereas in the last year, the State- respondent while preparing the merit list decided to rely upon the percentile marks of the candidates based on system of percentile by taking into consideration the marks obtained by only those students who have applied in the process of selection keeping apart the others who did not apply in the process which this bench in the previous litigation did not approve , this year, they have decided to take into consideration the percentile of all the students based on the performance of all the students appearing from their respective boards even if they did not apply. Thus, one of the defects existed in the last year's selection has been removed. But in our opinion, Mr. Pathak is right in his contention that by removing only that defect, the procedure will not be in conformity with the rules unless individual marks obtained by the candidates both in the board examination and JEE examination are taken into consideration.
23. The word "percentile" has been defined in Merriam-Webster, published in the year 2003 as follows:
"a value on a scale of 100 that indicates the percent of a Page 52 of 68 C/WPPIL/175/2014 CAV JUDGMENT distribution that is equal to or below it< a score in the 95 th percentiles>"
24. Thus, percentile score for individual examinee represents the score of an individual examinee compared to the scores of other examinees within a particular comparison group. Percentile scores range from the 1st through 99th percentile, indicating the percentage of scores in the comparison group which are lower than the particular examinee's score, e.g. if score report of 'X' says that his overall score of 19 is in the 67th percentile, this means that 'X' has tested better than 66% of the examinees compared to aggregate sample of the examinees like him. In other words, the percentile score of 'X' is equal to number of people who got less than or equal to 'X', taking it to 100. Thus, if in examination, 10 people give test and 9 people get either less than what 'X' got or equal to what 'X' got, 'X''s percentile score is 9/10 x 100 = 90 percentile. Following example will further clarify the position:
24.1 A class of 20 students had the following scores on their most recent test: 75,77,78,78,80,81,81,82,83,84, 84, 84, 85, 87, 87, 88, 88, 88, 89, 90. The score of 80% has four scores below it, viz. 75, 77, 78 and 78. Since 4/20=20%, 80 is the 20th percentile of the class, the score of 90 has 19 scores below it, and since 19/20 =05%, it corresponds to the 95 percentile of the class. Thus, although 80% mark is ordinarily considered to be fairly good mark, in the above Page 53 of 68 C/WPPIL/175/2014 CAV JUDGMENT example, having regard to the fact that 16 students out of 20 have obtained 80 or more marks, the percentile of a person obtaining 80 marks should be taken to be 20 only. Let us now take into consideration the result of another class of 20 students where the following was the scores in a separately taken examination on the selfsame subject: 90, 87, 85, 80, 80, 78, 76, 76, 75, 70, 70, 70, 65, 64, 62, 62, 61, 61, 60, and 60. In the above examination, the percentile of a student having obtained 80 marks would be 15/20 = 75th percentile of the class. If we are required to compare the standard of two students one from the former class and the other from the latter one when both have obtained 80 marks, by applying the percentile method, we will assess the merit of the one from the former example by giving 80x20=1600 marks while the student from latter example will be assessed by giving 80x75= 6000 marks.
25. At this stage, one must not confuse the meaning of the words "percentile" with "percentage". A percentage score indicates the proportion of a test that someone has completed correctly. A percentile score indicates what percent of other scores is less than the data point we are investigating. From the percentile-scores-data given by the different Boards to the Respondents which have been placed before us, it appears that each Board has furnished the actual marks obtained by each candidate in physics, chemistry and mathematics and also their respective positions in reference to the other candidates appearing from that Board in the final Board Page 54 of 68 C/WPPIL/175/2014 CAV JUDGMENT Examination.
26. We find that for the purpose of preparation of merit list, sixty percentage weightage of percentile marks obtained in the theory subjects [Physics, Chemistry and Mathematics] together with forty percentage weightage of the percentile marks obtained in JEE [Main] shall be the merit marks. We have already pointed out that according to rule 2[g], percentile marks means percentile score obtained by the candidate after normalizing the marks obtained by him in the Board with respect to the marks from other boards. Thus, percentile marks means the score obtained by a candidate after normalizing the marks obtained by him in the board based on percentile system. In the case before us, the State-Respondent has obtained the percentile score of all the candidates from different boards by following the procedure of percentile. But in order to convert such percentile score into percentile marks, unless the individual marks obtained by the candidates in their respective board examination is linked by way of multiplication, the actual merit marks cannot be arrived at based on the principles of percentile. The fact that individual marks obtained by a candidate is very much relevant will appear even from the suggestion given by the Indian Statistical Institute, Kolkata and adopted by the State-respondent, inasmuch as it has been admitted therein that for the breaking tie, individual marks obtained by the candidate is a must. As pointed out in Rule 11(1), the merit list will be prepared on the basis of sum of two percentile marks but not the Page 55 of 68 C/WPPIL/175/2014 CAV JUDGMENT percentile score as the sum of two percentile score is not intended.
Therefore, without taking into consideration the individual marks obtained by a candidate in the board examination, the percentile marks within the definition given in rule 2[g] cannot be arrived at. Thus, it is preposterous to suggest that the actual marks obtained by the candidates will be used only in the cases of tie but not otherwise because, in that event, there will be two modes of preparation of select list, one for those candidates having equal marks to break the ties and the other for those where there will be no tie which is not prescribed by Rule 11. On the other hand, if the formula indicated by us is followed by linking the actual marks with the percentile score by way of multiplication and still there is any tie, the method indicated in Rule 11(2) will be followed for breaking the tie. In Rule 11(2), actual marks obtained by a candidate in his Board examination has been made the basis and not the percentile marks, and thus, it was never the intention of the Rule-making-authority to ignore the actual marks obtained because without such marks, percentile marks cannot be arrived at. Thus, the procedure suggested by the Committee is in violation of the existing Rules.
27. In our opinion, the respondent authority should not have followed the mode of computation of percentile marks by making sixty percentage of percentile score obtained by a candidate with reference to his board examination and adding to it forty percentile score of the JEE examination. Since JEE examination is a common Page 56 of 68 C/WPPIL/175/2014 CAV JUDGMENT examination, there is no defect in even adding forty percent of the marks obtained in such examination. However, rule having prescribed that sixty percentage weightage of "percentile marks" on theory subjects should be taken into consideration, sixty percent of "percentile score" which is the rank obtained by the candidate cannot form the basis of computation.
28. Therefore, by converting the "percentile score" in respect of a board by making its 60%, the actual figure intended by the Rule cannot be arrived at. We have already pointed out that even from the resolution adopted by the State-respondent that they are conscious that in case of a tie, actual marks of a candidate is necessary. Even after arriving at such conclusion, for the reason best known to them, they have decided to make sixty percent of the percentile score, which is merely, a rank or position amongst the students of board as the basic factor. For the above reason, while disposing of the earlier Special Civil Applications, we gave specific directions in paragraph- 38.1 to multiply the actual marks with percentile status so that both are linked and thus converted into percentile marks as otherwise one cannot make sixty percentages of percentile marks required by the Rule. The respondent, instead of making percentile marks, has tried to make sixty percent of one's rank which cannot reflect the actual marks obtained by the candidate unless the actual marks are associated in the process of percentile. In other words, in our view, the actual marks obtained by a candidate should be made subject to Page 57 of 68 C/WPPIL/175/2014 CAV JUDGMENT his status by applying the principle of percentile in order to convert it to the status of percentile marks and then sixty percent of such figure should be calculated, and in that way, the object of percentile system would be fulfilled.
29. We now propose to deal with the decision cited by Mr. Jani.
30. In the case of Sanchit Bansal and another vs. Joint Admission Board and others, reported in [2012] 1 SCC 157, the Supreme Court made the following observations:-
"28. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non-discriminatory, it cannot be described as arbitrary or capricious or mala fide."
31. In our opinion, the aforesaid observation goes against the State-respondent in the present case, inasmuch as, the State- respondent in spite of existing rule prescribed for calculation of sixty percentage of marks adopts the procedure by which candidate's rank in examination has been reduced by sixty percent. It is preposterous to make sixty percent of the position of a candidate in the process of Page 58 of 68 C/WPPIL/175/2014 CAV JUDGMENT examination.
32. In the case of MAHARASHTRA STATE BOARD OF SECONDARY AND HIGHER SECONDARY EDUCATION & ANR. vs. PARITOSH BHUPESH KURMARSHETH reported in AIR 1984 SC 1543, the Supreme Court was considering a matter where the contention of the petitioner was the clause (3) of Regulation 104 of the Maharashtra Secondary and Higher Secondary Education Boards Regulations, 1999 was ultra vires the regulation-making powers of the Board. The point urged by the petitioners before the High Court was that the prohibition against the inspection or disclosure of the answer papers and other documents and the declaration made in the impugned clause that they are "treated by the Divisional Board as confidential documents" do not serve any of the purposes of the Act and hence, these provisions are ultra vires. The High Court was of the view that the said contention of the petitioners had to be examined against the back-drop of the fact disclosed by some of the records produced before it that in the past there had been a few instances where some students possessing inferior merits had succeeded in passing off the answer papers of other brilliant students as their own by tampering with seat numbers or otherwise and the verification process contemplated under Regulation 104 had failed to detect the mischief. In the above context, the Supreme Court observed that the approach of the High Court was not correct or proper because the question whether a particular piece of delegated legislation - whether Page 59 of 68 C/WPPIL/175/2014 CAV JUDGMENT a rule or regulation or other type of statutory instrument- is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. According to the Supreme Court, it would be wholly wrong for the court to substitute its own opinion for that of the legislature or its delegate as to what principle or policy would best serve the objects and purposes of the relevant Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the regulation-making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the relevant Act. According to the Supreme Court, so long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational acts within the object and purpose of the Statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations. The Supreme Court further observed that it is exclusively within the province of the legislature and its delegate to determine, as a matter of policy, how the provisions of the Statute can best be implemented and what measures, substantive as well as procedural, would have to be incorporated in the rules or regulations for the efficacious Page 60 of 68 C/WPPIL/175/2014 CAV JUDGMENT achievement of the objects and purposes of the Act and it is not for the Court to examine the merits or demerits of such a policy because its scrutiny has to be limited to the question as to whether the impugned regulations fall within the scope of the regulation-making power conferred on the delegated by the Statute.
33. In the case before us, we are not at all prepared to declare the rule framed by the delegated authority as ultra vires. What we propose to hold is that the State-respondent, with the help of experts, has deviated from the clear language employed by the delegate of the legislature used in the rule. We have already pointed out that the rules prescribes specific mode of calculating the merit list by adding 60% of the percentile marks of a student in the Board examination, and adding to it 40% of percentile marks of the same student on the basis of the result in JEE Examination. We have pointed out that the above rules has not been implemented where the principle of ascertaining the percentile mark as defined in section 2(g) of the Rule has not been followed.
34. Therefore, it is the implementing authority, viz. the State- Respondent which has ignored the legislative policy of the legislature and its delegate. The abovesaid decision cited by Mr. Jani rather should be applied against the State-respondent for violating the wisdom of the legislative authority and following a course which is in conflict with the same. We, thus, find that the said decision is of no Page 61 of 68 C/WPPIL/175/2014 CAV JUDGMENT avail to Mr. Jani's clients.
35. Mr. Jani also relied upon in the case of BASAVAIAH (DR) v. DR. H.L. RAMESH reported in (2010) 8 SCC 372. In the said case, the Supreme Court was considering a case wherein the appellants were appointed as Readers in Sericulture in the year 1999 on the basis of the qualifications possessed by them in accordance with the vacancy Notification. The respondents before the Supreme Court challenged the appointment of the appellants in the High Court on the ground that the appellants were not eligible to be appointed. The learned Single Judge, on examination of the pleadings and scrutiny of the arguments of the parties, dismissed the writ-application filed by the respondents before the Supreme Court. The unsuccessful writ- petitioners, being aggrieved by the said judgment of the learned Single Judge, preferred a writ appeal before the Division Bench of the High Court and the writ-appeal was allowed and the appointment of the appellants before the Supreme Court were set aside, leaving it open to the University of Mysore to make fresh selection in accordance with law. The selected Readers, being aggrieved by the said judgment of the Division Bench, came up before the Supreme Court. In the above context, the Supreme Court held that the courts should show deference to the recommendations of Expert Committee. The Supreme Court further pointed out that in the said case, the expert committee had evaluated the qualifications, experience and published work of the appellants and thereafter, recommended them Page 62 of 68 C/WPPIL/175/2014 CAV JUDGMENT for appointment. In such circumstances, the Supreme court held that the Division Bench should not have sat as an appellate court over the recommendations made by the country's leading experts in the filed of Sericulture.
36. We do not, for a moment, dispute the aforesaid well-settled principle laid down by the Supreme Court, but in our opinion, the said principal has no application to a case where the experts, viz. Indian Statistical Institute, Calcutta, has virtually admitted that if the rule in question is implemented, it will cause prejudice to the Gujarat Board students as would appear from the following observation of the experts which was produced before us by Mr. Jani on 16th June, 2014 after conclusion of hearing by way of mentioning as a result we further heard the matter on that day.
Annexure-1 "Use of the product of percentage and percentile in engineering admissions Opinion of the Indian Statistical Institute The main problem of using the percentage score of different boards is that the type of questions, marking pattern etc. vary considerably from board to board. This fact becomes amply clear from the plot of the aggregate scores, in Physics, Chemistry and Mathematics in the Class XII examinations of the year 2013, vs. the corresponding percentiles, shown below.
Page 63 of 68 C/WPPIL/175/2014 CAV JUDGMENT The plots look different. A specific example would bring out the disparity. It is clear from the plot that the top 16% candidates of CISCE got a score of 85% or above. In CBSE, the top 11% candidates achieved this score. However, this level of score is so uncommon in the Gujarat board that less than 3% students achieved it. Therefore, the use of percentage scores for engineering admission would amount to discrimination against the candidates of the Gujarat Board.
This difficulty is not mitigated by the use of the product of percentages and percentiles. The following plot brings out this fact.
Page 64 of 68 C/WPPIL/175/2014 CAV JUDGMENT
Once again, there is vast discrepancy among the plots. For instance, the product of percentile and percentage is more than 7000 for the top 18% candidates of CISCE and the top 14% candidates of CBSE. In contrast, the high scores are so unusual in the Gujarat Board that less than 8% candidates of that board can achieve this level. Therefore, use of the product of percentile and percentage would also be discriminatory, and the CISCE and CBSE candidates would gain at the expense of the Gujarat Board candidates.
There is another strong reason not to use percentage scores in any form (including in a product of percentages and percentiles) for admissions. If this is done, then there would be pressure on each board to award more marks, so that their candidates do not lose out. The result of this pressure would be a concentration of marks in the high end. Whenever there is too much concentration of marks in a particular range, the marks become a poor indicator of the merit of a candidate. A small error on the day of the examination becomes very costly. The chance factor plays a much bigger role. This is certainly not fair to candidates who work hard to earn their place in the merit list.
The Indian Statistical Institute strongly recommends the use of percentiles only for engineering admissions."
[Emphasis supplied by us]
37. From the above observation of the experts, it is apparent that the experts want to adopt a procedure deviating from the delegated Page 65 of 68 C/WPPIL/175/2014 CAV JUDGMENT legislation as reflected in Rule 11 because according to them, the same would be beneficial to the students of Gujarat Board. Thus, the experts have deviated from the Rules enacted and suggested a procedure which is not in conformity with the Rules. The last- mentioned decision of the Apex Court, relied upon by Mr.Jani, therefore, does not apply to the facts of the present case where in the Rule, there is even no scope of appointment of any implementing agency with the authority to deviate from the Rules enacted.
38. We, thus, find that the decisions relied upon by Mr. Jani is of no assistance to his clients.
39. On consideration of the above materials on record, we find that it is a case where the Rule enacted by the delegated authority are not sought to be implemented on the ground as reflected in the letter written by Dr. Ashis Kumar Chakraborty on behalf of the implementing Authority to the members of the Committee as quoted above, and the admission committee has accepted such proposal although by virtue of Rule 11, there is no scope of deviation.
40. We have already pointed out that percentile being a recognized mode of selection, we do not interfere with the policy decision adopted by the delegated legislation but we find that the admission committee, by relying upon the opinion of the expert, has deviated from the procedure for preparation of merit list based on percentile Page 66 of 68 C/WPPIL/175/2014 CAV JUDGMENT marks as would appear from the admission of the experts quoted by us above.
41. We also do not find substance in the contention of Mr. Pathak that we should direct the respondent to go back to the process of selection based on pro rata which was in practice till the year 2012. The statutory authority having decided to deviate from the said practice and to introduce the percentile method as reflected in the Rules, we should strictly enforce the Rules but not a modified Rule according to the suggestion of the expert which is without any authority of law.
42. In such circumstances, we direct the State-respondent to follow the Rules enacted by the delegated authority in its entirety so long the said Rule is not amended by appropriate legislation. We are unable to approve the mode suggested by the experts by ignoring the delegated legislation simply because the experts think that if delegated legislation is strictly implemented, it will cause injustice. Implementation of such opinion of the expert is contrary to law of the land.
43. We reiterate that the formula disclosed in Paragraph 38.1 of our earlier judgment as quoted in this judgment is required to be applied for preparation of merit list based on Rule 11 enacted by the delegated authority with further observation that in case of tie, sub- Page 67 of 68 C/WPPIL/175/2014 CAV JUDGMENT rule 2 of Rule 11 should be applied and accordingly we direct that State-Respondent to adopt the same unless the Rules are amended by appropriate legislation by the appropriate delegated authority in the meantime.
44. The PIL is thus disposed of with the above direction. No costs.
45. In view of disposal of the main matter, the connected Civil Application has become infructuous and the same stands disposed of accordingly.
Sd/-
(BHASKAR BHATTACHARYA, CJ.) Sd/-
(J.B.PARDIWALA, J.) mathew Page 68 of 68