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Pareshkumar Mahendrabhai Shah and anr. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. Nos. 2823, 2858, 2870 etc. etc. of 1982
Judge
Reported inAIR1983Guj173
ActsConstitution of India - Articles 14 and 226
AppellantPareshkumar Mahendrabhai Shah and anr.
RespondentState of Gujarat and ors.
Appellant Advocate R.R. Tripathi, Adv. in Spl. C.A. No. 2875 of 1982,; R.H. Mehta,;
Respondent Advocate R.R. Tripathi, Adv. in Spl. C.A. No. 2874 of 1982,; M.A. Trivedi, Asst. Govt. Pleader, i/b., M.S. Sha
DispositionPetitions dismissed
Cases ReferredG. S. Radhika v. Government of Karna
Excerpt:
constitution - admission - articles 14 and 226 of constitution of india - question of eligibility of students who have passed higher secondary certificate examination (hsc) in preceding years for admission in degree colleges - total seats available were less than total number of students seeking admission - students who have passed hsc examination in current year wanted to classify old students in another group separate from them - state has not chosen to classify students into two groups - open for authorities to grant admissions according to existing rules - even students who passed hsc examination in preceding years also eligible for admission to course in question. - - admission to engineering colleges run by the state government as well as certain other institutions is governed.....a.m. ahmadi, j. 1. two groups of students (i) those who passed their higher secondary certificate examination in october1981 and april 1982 (hereinafter called 'the first batch') and (ii) those who passed their higher secondary certificate examination in the preceding years (hereinafter called 'the second batch') are locked in combat in this group of petitions which raise the question of eligibility of the second batch for admission to the first semester of the b. e. degree course in certain colleges run by or under the control of the state government. the rules for admission to the first semester of the b. e. degree course are framed by the state government for each academic year. admission to engineering colleges run by the state government as well as certain other institutions is.....
Judgment:

A.M. Ahmadi, J.

1. Two groups of students (i) those who passed their Higher Secondary Certificate Examination in October1981 and April 1982 (hereinafter called 'the first batch') and (ii) those who passed their Higher Secondary Certificate Examination in the preceding years (hereinafter called 'the second batch') are locked in combat in this group of petitions which raise the question of eligibility of the second batch for admission to the First Semester of the B. E. Degree course in certain colleges run by or under the control of the State Government. The Rules for Admission to the First Semester of the B. E. Degree course are framed by the State Government for each academic year. Admission to Engineering Colleges run by the State Government as well as certain other institutions is governed and regulated by the Rules framed in that behalf by the State Government from year to year. Accordingly, in supersession of existing rules, the Government of Gujarat in the Education Department by their Resolution dated 31st May, 1982 framed Rales for Admission to the four colleges mentioned therein for the academic year 1982-83. The petitioners contend that on a correct reading of the said Rules, only students belonging to the first batch are qualified and eligible few admission to the said colleges and those belonging to the second batch are not legally entitled to admission. They contend that if the admission rules are so read as to qualify students belonging to the second batch for admission, it would result to avoidable hardship and heart-burning to the students belonging to the first batch. On behalf of the students belonging to the first batch it was, therefore, contended that the Court should endeavour to avoid an interpretation which would be manifestly unjust and unreasonable to the said batch of students eminently suited for admission to the Engineering course by, if necessary, reading down the rules so as to confine admission to the first batch only. It was further said that if the Court is disinclined to place the interpretation canvassed on behalf of the students belonging to the first batch and is inclined to think that on a strict grammatical construction of the rules even students belonging to the second batch are eligible for admission, the relevant admission rule would be violative of Article 14 of the Constitution inasmuch as in that case, unequals would be treated as equals. A fervent plea was, therefore, made by the learned counsel representing the student's belonging to the first batch that in the larger interest of the student community, the Court should endeavour to interpret the rules in a manner so that they are not ultimately required to be struck down on the ground that they violate the equality clause enshrined in Article 14 of the Constitution, On the other hand, on behalf of the students belonging to the second batch it was contended that since the last several years the Rules have been so interpreted by the concerned authorities including the Government as to grant admission to the students belonging to the second batch also and at no point of time during these years was any dispute raised so far as their eligibility for admission is concerned. They further contend that on a plain reading of the Rules it is evident that students belonging to the second batch are entitled to seek admission to the First Semester of the B. E. Degree course in the four colleges mentioned in the rules and there is no warrant for holding that only the students belonging to the first batch are eligible for admission. They further contend that equally there is no warrant for reading down the rules so as to restrict admission to the first batch of students only. According to them if the second batch of students is held to be ineligible for admission by reading down the rules, it it bound to create hardship and heart-burning to the students belonging to the second batch. In other words, according to them, some hardship and/or heart-burning is bound to be caused to students who fail to secure admission under the Rules, but that cannot be avoided became it is the result of the application of the principle of demand and supply, the total number of seats available being far less than the total number of students seeking admission to the said course. It was lastly contended on behalf of the students belonging to the second batch that if the Court comes to the conclusion that they are eligible for admission, equals will be treated alike and that would in fact be in conformity with the requirement of Article 14 of the Constitution; but, if the view canvassed on behalf of the students belonging to the first batch is accepted, it may result in the rule being struck down as violative of Article 14 of the Constitution as held in Mukul v. Dean, Goa Medical College, Panaji, AIR 1981 Goa 39. These are broadly the contentions canvassed on behalf of either batch in this group of petitions and since identical question of law and fact arise, we proceed to dispose of all these petitions by this common judgment.

2. x x x

3. It is also necessary to take notice of one fact which has some relevance on the question of the complexion of the controversy before this Court. When the lead matter, Special Civil Application No. 2823 of 1982, was initially instituted, it was filed by only one petitioner through his father and legal guardian challenging the decision of the concerned authorities to grant admission to students belonging to the second batch also. As stated earlier, at that point of time the vires of the admission rules was not challenged. The contention which was then urged in the petition was that on a true interpretation of the admission rules admission to the Engineering Colleges could only be granted to students (i) who had appeared in the examination held in March-April-May 1982 (the last qualifying examination) and (ii) who had obtained 55 per cent marks in the science subjects at the said examination. In other words, as the petition then stood, the contention raised on behalf of the petitioner was that students who had passed the 12th Standard Higher Secondary Certificate Examination in October 1981 were not eligible for admission. However, at a subsequent stage when it was realised that the students who bad passed the aforesaid Examination in October 1981 were likely to oppose the petition, certain amendments were made in the petition so as to group the students who bad passed the October 1981 examination with those who bad passed the examination held in April 1982. That is hew the first batch now consists of students who passed the 12th Standard Higher Secondary Certificate Examination held in October 1981 and April 1982 and they have as a single batch trained their guns against students belonging to the second batch, that is, those who had passed the said examination prior to October 1981. We will point out at a later stage how this development has relevance so far as the challenge to the admission rules based on Article 14 of the Constitution is concerned.

4. The admission rules are framed by the State Government from year to year. The admission rules pertaining to the academic year 1982-83 came to be framed by the State Government (Education Department) by its Resolution dated 31st May, 1982. The said Rules contained in Schedule K are divided into two parts, the first part dealing with the procedure for admission to the Engineering Courses and the second part dealing with rules of actual admission in certain colleges. So far as the first part is concerned, certain seats are allocated to the four colleges mentioned in the table which show that the total number of available seats for the First Semester of the B. E. Engineering Course in these four colleges numbered 1146. 10 per cent extra seats were offered to the first three colleges raising the total number to 1224 seats. Note 1 at the foot of the sub-para of Para 1 of the rules is to the effect that the aforesaid total number of seats will be distributed amongst the two streams of students on pro rata basis in the ratio of the number of students appearing for the 12th Standard Higher Secondary Certificate Examination, held by the Gujarat Secondary Education Board (science stream) and securing 5.5 per cent marks in science subjects on the one hand and the total number of students passing the Senior School Certificate Examination of the Central Board of Secondary Education, New Delhi, from the Central Schools located in Gujarat with 55 per cent marks in science subjects (including Biology). Paragraph 2 (b) next provides that for the purposes of admission to the First Semester of the B. E. Course, separate merit list will be prepared of candidates eligible for admission from the general quota as well as candidates eligible for admission from the reserved quota. In other words, the rule states that admission to the First Semester of B. E. course in the aforesaid four colleges will be granted strictly in the order of merit depending on whether the student belongs to the reserved quota or the unreserved quota. It is not necessary to go into the details of the reservations made for candidates belonging to different classes because that is not a matter in controversy before us. The second part of the rules lays down that for the academic year 1982-83 admission will be granted to students in the said course who have passed the 12th Standard qualifying examination of the Gujarat Higher Secondary Examination Board with mathematics Part I and Part II, Physics, Chemistry and Biology subjects, that is, science subjects, or its equivalent examination from any recognised institution located in Gujarat with the above subjects. No age limit, whatsoever, has been prescribed for admission to the said course. Rule 7.2 which has some relevance provides that students who have appeared in the qualifying examination or its equivalent examination in the past and failed, will be considered for admission but for the purpose of judging merits, 20 marks will be deducted from the total marks secured by such students for every failure. Of course, if a candidate has not appeared in the examination altogether, that is, if he has taken a drop, it is not to be treated as a failure for the purposes of the aforesaid rule. Therefore, on a plain reading of the rules we do not find any prohibition so far as admission of the second batch of students is concerned. We were also told in the course of the hearing of these petitions and that fact was not disputed by the learned counsel representing the students belonging to the first batch, that over a number of years the authorities have always considered students belonging to the second batch, that is, those who have passed the examination in the previous years depending on the concerned academic year, as eligible for admission to the First Semester of the B. E. course. In other words, the consistent practice has been that students who have passed the qualifying examination in the preceding years are eligible for admission to the said course along with the students who have passed the qualifying examination, in the examination held in the immediate past. The question is, whether this consistent practice followed without demur over a number of years is not in conformity with the rules as contended by the learned counsel representing the first batch of students in this group of petitions.

5. The rules which are in two parts arein Gujarati language. Paragraph 1 of thefirst part has a sub-paragraph which reads asunder (free English translation whereof is alsoprovided) :--

Gujarati version. (Omitted here.--Ed.)

English translation.

For the academic year 1982-83 the candidates who have passed the 12th Standard Higher Secondary Examination, Science stream, or its equivalent examination, will be allotted seats as under :-- The names of the four colleges have then been set out and the total number of seats allotted to each college has been shown against its name. It is, therefore, clear that this sub-paragraph has reference, to the allocation of seats to the four institutions mentioned in that paragraph but it has no relevance whatsoever to the question whether students who have passed the 12th Standard Higher Secondary Certificate Examination prior to 1981 are eligible for admission. The learned counsel representing the first batch of students heavily relied on the words 'for the academic year 1982-83 the candidates who have passed the 12th Standard Higher Secondary Examination' and submitted that all those students who have cleared the qualifying examination during the academic' year 1982-83 alone are eligible for admission to the course in question. In the first place, this construction overlooks the fact that the purpose of the said sub-paragraph is merely allocation of seats institution-wise and it has no relevance whatsoever so far as the eligibility criteria are concerned. The 12th Standard Higher Secondary Certificate Examination is never held for any particular academic year and, therefore, the words 'for the academic year 1982-83' cannot have any relevance so far as candidates passing the said qualifying examination are concerned, but it has relevance only so far as allocation of seats is concerned. In other words, what is intended to be conveyed is that for the academic year 1982-83 allocation of seats will be as provided in the sub-paragraph so far as the four institutions governed by the rules are concerned. It, therefore, merely states that candidates who have passed the 12th Standard Higher Secondary Certificate Examination (science stream) or its equivalent examination will be accommodated in the aforesaid four institutions in the number of seats allocated to each institution. We, therefore, find it difficult to agree with the learned counsel representing the students belonging to the first batch to conclude by interpreting the , said sub-paragraph of paragraph 1 of Part, I of the Schedule appended to the Government Notification of 31st May, 1982 to mean that the said sub-paragraph is intended, to limit admission to students who had passed the qualifying examination either in October 1981 or April 1982. It must also be mentioned that the academic year 1982-83 would commence from 15th June, 1982 and end on 15th March, 1983 and during that period students belonging to the first batch did not appear for the qualifying examination. It is, therefore, obvious that when the sub-paragraph refers to the academic year 1982-83 it refers to the period commencing from 15th June 1982 to 15th March, 1983 during which admissions would be sought to the First Semester of the B. E. Degree course in the various institutions located in Gujarat. The capacity of each institution to take in a certain number of students has to be assessed by the Education Department of the Government every year. That is why the sub-paragraph speaks about the allocation of seats to various institutions for the course in question. It, therefore, states that during the said academic year admissions will be granted to students who have passed the qualifying examination in the four institutions according to the number of seats allocated to each institution. It is, therefore, difficult to read the parenthetical clause to mean that reference is made to students belonging to the first batch only so far as admission to the four institutions is concerned. We, therefore, find it difficult to agree with the learned counsel for the first batch of students that the said sub-paragraph lays down the eligibility criteria and prohibits the second batch of students from seeking admission to the course in question. Once this contention does not find favour with us, it must immediately be conceded that elsewhere in the rules there is no mention whatsoever that only the first batch of students would be eligible for admission and not the second batch. Note 1 appended to that sub-paragraph has again a limited role in that it can be invoked merely for the purpose of fixing the ratio between two classes of students/ candidates depending on the total number of students who have passed the 12th Standard Higher Secondary Certificate examination held by the Gujarat Secondary Education Board with 55 per cent marks in the science subjects and those students who have passed the Senior School Certificate Examination of the Central Board of Secondary Education from Gujarat Centres in the science stream with 55 per cent marks. The ratio for the purposes of admission from these two streams is required to be fixed on the basis of the total number of students passing from each stream to be accommodated in the total number of seats allocated to the four institutions mentioned in the sub-paragraph. Therefore, Note 1 also cannot be invoked for the purpose of the limiting the eligibility criteria to the first bateh of students only. It was said that according to Note 1 the Admission Committee has to determine the exact number of seats available to each stream after obtaining information about the exact number of students appearing in March/April/ May 1982 examination of the Gujarat Higher Secondary Education Board and the Central Board of Secondary Education from Gujarat Centres, as the case may be, and securing 55 per cent marks in science subjects which necessarily means that students passing the examination held in April 1982 alone are eligible for admission to the course in question. This submission cuts at the root of the amendment which was brought in with a view to clubbing students who had passed the October 1981 examination with the first batch of students. If the relevant examination is the examination held during March/ April/May 1982 as per Note 1 of the sub-paragraph it is difficult to imagine how students who passed in the examination held in October 1981 could be considered eligible for admission under the very same rules. An attempt was, therefore, made to fit in the October 1981 students by a process of interpretation that they had also passed during the earlier academic year and were, therefore, entitled to admission under the said sub-paragraph in the academic year 1982-83. Frankly speaking, this line of reasoning is nothing but a laborious attempt to club in students who had passed the examination, held in October 1981 with the April 1982 batch for the purpose of this group of petitions. It is true that for the purpose of fixation of ratio between the two streams, the relevant criterion adopted was the total number of students passing the science stream with 55 per cent marks in the 12th Standard Higher Secondary Certificate Examination held in March/April/May 1982 on the one hand and its equivalent examination held by the Central Board of Secondary Education on the other hand. That was necessary because the bulk of the students seeking admission to the course in question would be from amongst those who passed the qualifying examination held in March/April/May 1982. Therefore, for the limited purpose of fixing the ratio between the two streams, this factor was considered relevant but that does not mean that thereby the rule-making authority intended to limit admission to the students belonging to the first batch to the detriment of the students belonging to the second batch. Even para 2 (a) of the first Part states that students who have passed the 12th Standard Higher Secondary Certificates Examination and are eligible for admission and seek admission to the seats allocated to the various institutions will have to apply to the Chairman of the Admission Committee in the prescribed form. This paragraph also does not indicate that students belonging to the second batch are not eligible for admission to the course in question. We, therefore, find it difficult to agree with the submission that students belonging to the second batch are not eligible for admission under the rules framed for the academic year 1982-83 by the State Government. Elsewhere in the rules provision made is that students who have passed the qualifying examination will be entitled to admission to the course in question. The question posed before us was whether the expression 'qualifying examination' means the examination cleared by the students belonging to the first batch only and not the second batch and this meaning was sought to be culled out from. para. 1 of Part I of the Schedule to the rules framed by the State Government.

6. (i) Reference was made to the pamphlet issued by the State Government in respect of the admission to the four institutions in question for the academic year 1982-83. In the said pamphlet in para 10 (1) it if stated that students who have passed the 12th Standard Higher Secondary Certificate Examination should fill in the forms for admission and submit the same to the Chairman of the Admission Committee within ten days from the date of declaration of the result. From this it was sought to be inferred that reference can only be to the examination which was held in April, 1982. Assuming for the sake of argument that these words can be read in the said instruction, that does not mean that only those students who have appeared and passed the said examination in the science subjects with the required minimum percentage of marks are eligible for admission to the four institutions in question. It merely fixes the outer date by which the admission forms must be received by the Chairman of the Admission Committee in order to enable him to declare the admissions in accordance with merit depending on whether a particular student is entitled to admission in the reserved quota or the general quota.

6. (ii) Reference was next made to another pamphlet issued by the Education Department of the State Government for guidance of students and their guardians insofar as college admissions are concerned. Our attention was specifically drawn to Rule 1 on page 7 of the booklet which states that admissions will be given only to students who have passed the 12th Standard Higher Secondary Certificate Examination (science stream) in March/April or October of the relevant year. From this rule contained in the information pamphlet, issued by the State Government it was sought to be argued that only students belonging to the first batch would be entitled to admission and not those belonging to the second batch. The learned counsel who placed considerable reliance on this rule totally overlooked the fact that the said rule has relevance to only the faculty of technology and engineering of M. S. University, Baroda, and not to the other institutions mentioned in the admission rules. It must be remembered that the faculty of Technology and Engineering was allocated seats for the first time in the pool for the academic year 1982-83. The booklet concerns the academic years 1980-81 and 1981-82 and has, therefore, no relevance whatsoever. Besides, the instruction in the booklet cannot override the rule, even if it can be cited for the limited purpose of supporting the submission made on behalf of the students belonging to the first batch. We are, therefore, of the opinion that on a proper construction of the relevant rules we must come to the conclusion that not only students belonging to the first batch but also students belonging to the second batch who have secured the minimum number of marks required and who are entitled to admission in the order of merit are eligible for admission to the B. E. course.

7. Strong reliance was placed on the fact that the rules of admission to the B. J. Medical College clearly provide that only students who have passed the qualifying examination shall be eligible for admission to the Medical College. Rule 1 in Part I of the rules to which our attention was drawn provides as under :--

'1. Qualifying examination for admission shall be Higher Secondary Certificate Examination (Science Stream) taking Physics, Chemistry, Biology, Mathematics and English under the 10 + 2 educational pattern conducted by the Gujarat Higher Secondary Education Board in March/April of the current year or October/November of the preceding year of the examination of the Central Board of Secondary Education, New Delhi, from any of the recognised institutions from Gujarat State, or insofar as candidates referred to in Rules 1.1, 1.2 and 1.4 are concerned other equivalent examinations with Science subjects specified above during the corresponding period.'

It is indeed true that this rule clearly states that admission will be confined to those students who have passed the Higher Secondary Certificate Examination in March/April of the current year or October/November of the preceding year of the examination of the Central Board of Secondary Education, New Delhi, or any of the recognised institutions from Gujarat State. If the rule-making authority, namely, the Government, intended to make a similar provision in the rules pertaining to admission to the first Semester of the B. E. course, there was nothing to stop it from doing so in express terms. If the same rule-making body restricts the admission to the students passing the Higher Secondary Certificate Examination in March/ April of the current year or October/November of the preceding year and the examination of the Central Board of Secondary Education insofar as admission to the First M.B.B.S. Course and allied courses are concerned, there was nothing to stop it from making a similar provision if that was the intendment insofar as admission to the Engineering course is concerned. The fact that it has not done so clearly shows that it did not intend to do so. It must also be remembered that this change was brought about in the rules for admission to the First M. B. B. S. course after the decision of this Court in Special Civil Application No. 965 of 1972 decided on 5th July, 1972 by a Division Bench consisting of B. J. Divan and M. U. Shah, JJ. (as they then were). It was in this decision that on interpreting similar rules this Court came to the conclusion that admission could not be denied to students of the class belonging to the second batch. It was after this decision that the Government decided that in the case of M. B. B. S. course and certain other allied courses admissions should be restricted to students who have passed the examination in March/April of the current year or October/November of the preceding year, as the case may be. The Government was aware of the decision of this Court in the aforesaid petition and the interpretation put on similar rules and yet it decided to limit the eligibility criterion in the case of M. B. B. S. and allied courses but did not do so, so far as Engineering course is concerned. That clearly brings out the intention of the Government that it did not desire to deny admission to students belonging to the second batch so far as the Engineering course is concerned. In fact, the earlier decision of this Court on the question of interpretation of the rules fortifies the view that we take that the existing rules do not limit admission to the Engineering course to the first batch of students only. The earlier decision is binding on us but apart from its binding effect, we have on our own, on an analysis of the relevant provisions of the rules come to the conclusion that the contention that students belonging to the second batch are not eligible for admission to the Engineering course cannot be sustained. We are, therefore, of the opinion that merely because a different definition is given to the expression 'qualifying examination for admission' so far as M. B. B. S. course and certain other allied courses are concerned, the limitation imposed by that definition cannot be read into the rules with which we are presently concerned.

8. The submission that if on a strict grammatical interpretation of the existing rules students belonging to the second batch are eligible for admission we should read down the rules with a view to denying them admission does not appeal to us. It has been contended on behalf of the students belonging to the first batch that if we hold on an interpretation of the rules that the students belonging to the second batch are eligible for admission, the rules will be rendered unworkable, unreasonable and irrational inasmuch as no time limit is prescribed under the Rules and, therefore, even students who have passed the qualifying examination five to ten years back would be eligible for admission to the Engineering course. It is indeed true that as no time limit is prescribed, hypothetically speaking students who have passed the qualifying examination in the preceding years, the number of years notwithstanding, would be eligible for admission to the Engineering course. Technically it may appear to be so but there is nothing on the record to show that in actual practice it does so happen and even if it does, that cannot be helped because it is for the policy-makers to decide whether or not to eliminate such students from being considered for admission. Even if students who have passed in the past, may be two or five years back, seek admission and are granted admission on merits, we fail to understand how the rule becomes unworkable, unreasonable or irrational. It is reasonable to permit students who have passed the qualifying examination to compete on merits and if such competition is permitted, it cannot be said that the rule permitting such competition is unreasonable or irrational. In fact, as stated earlier, as a matter of fact, admissions are given since last several years on the premise that even students who have passed the qualifying examination in the past are eligible for admission to the Engineering course and the rules have been found to be workable. We are therefore, of the opinion that the interpretation which commends to us is not likely to render the rules unworkable, unreasonable or irrational as contended by the learned counsel representing the first batch of students.

9. It was said that if students who havepassed in the past are granted admission tothe Engineering course, many students whowere offered admission to the Engineeringcollege last year or the preceding year butwho refused to join and instead preferred tojoin the First M. B. B. S. or other alliedcourses, would opt for the Engineering courseresulting in precious seats in medical collegesbeing lost and the amount spent by thecountry on such students being fritteredaway. In support of this contention strongreliance was placed on the decision of theKarnataka High Court in G. P. HemanthaKumar v. Govt. Medical Colleges, Bangalore,AIR 1981 Kant 22. In that case the learnedJudge had observed that if for any reason aseat had become vacant within the prescribedquota and that seat could be filled by anothercandidate eligible for that seat then samecould not be denied on any ground whatsoever as medical education being very important, no seat in the prescribed quotashould go waste. It is indeed true that asfar as possible seats in such academic fieldswhere the demand is heavy and the amountwhich the Nation spends on educating suchstudents is enormous, should not be allowedto go vacant. But, that is a matter of policyand cannot bear on the interpretation of therules which are otherwise clear and unambiguous. In this connection (we are ?) reminded of the observations of the SupremeCourt in Chitra Ghosh v. Union, of India, _AIR 1970 SC 35, Grover, J., speaking forthe Supreme Court in para 9 of the judgment observed as under :--

'It is the Central Government which bearsthe financial burden of running the medicalcollege. It is for it to lay down the criteriafor eligibility. From the very nature ofthings it is not possible to throw the admission open to students from all over the country. The Government cannot be denied the right to decide from what source the admission will be made. That essentially is a question of policy.....'

It is, therefore, obvious that in matters pertaining to policy, the decision must be taken by the State Government and if it is clear from the plain reading of the rules that the State Government did not intend to rule out students belonging to the second batch from being considered for admission, we cannot by a process of reading down the rules deny to them admission to which they are entitled under the rules. Students who have sought admission in the Medical Colleges and now Keek admission in the Engineering course have to forfeit a certain amount and if the Government considers such forfeiture as penalty enough for such students who abandon the course half-way, that is also a matter of policy and students who have paid the penalty cannot be denied admission even thereafter by reading down the rules as suggested by the learned counsel for the students belonging to the first batch. That may amount to imposing an additional penalty by a process of interpretation which the rules otherwise do not impose. We are, therefore, of the opinion that this contention is also not well-founded.

10. It was next contended by the learned counsel representing the first batch of students that students who have appeared and passed the qualifying examination in the year 1982 cannot be equated with students who have passed in the previous years and to do so would tantamount to treating un-equals as equals. According to the petitioners the evaluation was liberal in the preceding year as compared to the evaluation in the last examination held in April 1982 and, therefore a higher percentage of students got through the examination in the former case as compared to the percentage of students passing in the latter case. It was further submitted that the liberal evaluation brought about a higher percentage of marks and if those students are considered eligible for admission with students who could secure lesser percentage of marks because of strict evaluation the Court would be treating un-equals as equals and would thereby flout the equality clause contained in Article 14 Of the Constitution. The Supreme Court in P. Rajendran v. State of Madras, AIR 1968 SC 1012 observed that rules promulgated by the State for selection of candidates for admission to the First Year Integrated M. B. B. S. course are intended to pick and choose talent and this objective would be denied if districtwise allocation of seats is permitted. In State of Kerala v. T. P. Roshana, AIR 1979 SC 765 the transitory scheme of admission to the medical colleges of the State evolved by the State Government was sought to be invalidated on the ground of discrimination. In that case the question which arose for consideration was formulated by the Full Bench of the Kerala High Court (reported in AIR 1978 Ker 176 at p. 181) in the following words :--

'The question is not whether one University is superior to the other or maintains higher standards in the matter of syllabus, examination and evaluation than the other, but whether the operation of different Universities with varying standards of their own is productive of inequality.'

The learned single Judge of the Kerala High Court who first answered the contention observed as under :--

'Even in the case of candidates appearing for the same examination in the same University there may be a cause for complaint in the matter of marks awarded to the candidates. Quite often revaluation has shown that at least in some cases there is justification for the plea for such revaluation. Different examiners value the answer papers and though there is a chief examiner his role is quite limited. But these are inevitable and the marginal errors may have to be ignored. By and large the comparative merits of the candidates will be reflected in the marks they obtain in the examination to which all candidates are uniformally (sic) subjected to. But the same could not be said in the case of examinations conducted by two or more Universities. It is well known that sometimes question papers are tough and sometimes valuation is liberal.....'.

The Full Bench agreed with these observations and came to the conclusion that un-equals were treated equally and voided the selection process. The matter was carried in appeal to the Supreme Court and the Supreme Court speaking through Krishna Iyer, J., made the following pertinent observations in paragraph 17 of the judgment:--

'The vagarious element in marking and moderation of marks may be a fact of life, but too marginal to qualify for substantial difference unless otherwise made out. In-deed, there may be differences among the colleges under the same University, among the examiners, in the same University Such fleeting factors or ephemeral differences cannot be: the solid foundation for a substantial differentiation which is the necessary pre-condition for quashing an executive or legislative act as too discriminatory to satisfy the egalitarian essence of Article 14. The functional validation of the writ jurisdiction is an appropriate examination of the sub-stantiability of the alleged disparity.'

The Supreme Court did not pronounce finally on the point with reference to the two Universities for want of necessary material but the above observations clearly show that rules cannot be struck down on such fleeting factors and ephemeral differences as pointed out by the learned counsel for the students belonging to the first batch.

11. In Jagdish Saran v. Union of India, AIR 1980 SC 820, the Supreme Court once again speaking through Krishna Iyer, J., observed in paragraph 33 of the judgment as under :--

'Even so, what is fundamental is equality, not classification. What is basic is equal opportunity, for each according to his ability, not artificial compartmentalisation and institutional aparthedisation, using the mask of handicaps. We cannot contemplate as consistent with Article 14 a clanish exclusivism based upon a particular university, without more.'

In the instant case, the effort of the students belonging to the first batch is to put the students belonging to the second batch in a separate class altogether when the State has not chosen to classify them into two groups. In view of the observations of the Supreme Court in T. P. Roshana's case (AIR 1979 SC 765) (supra) it is obvious that the grounds on which the classification is sought to be canvassed are merely fleeting factors or ephemeral differences which cannot form the foundation for quashing the executive action under Article 14 of the Constitution. The view that we take also finds support from the decision of the Karnataka High Court in G. S. Radhika v. Government of Karna-taka, AIR 1981 Kant 53.

12. In fact, this question is concluded so far as this Court is concerned in view of the decision rendered in Special Civil Application No. 965 of 1972 (supra). That was a case in which the main grievance of the petitioner was that not only students who passed the pre-University science examination in the year 1972 have been allowed to apply in order of merit to secure admission to the two Medical Colleges but also students who passed the pre-University science examination in any of the earlier years, that is, in 1969, 1970 or 1971. It was, therefore, contended that by thus granting admission to the students belonging to the latter category, the authorities of the two colleges practised discrimination by treating unequals as equals contrary to Article 14 of the Constitution. The four grounds on which the challenge was put forward were-

(i) The percentage of passing and the number of first classes in each year differed;

(ii) the changed circumstances between 1972 and the previous years;

(iii) the different syliabi having been prescribed for the same examination in different years; and

(iv) the method of examination carried out in different years.

But none of these appealed to the Division Bench. So far as the first ground of challenge was concerned, the Bench observed that the result of the examination depends upon several imponderables and it cannot be said that because of toe difference in results in different years ii must be accepted that the students who passed in 1972 are a class by themselves and that students who passed in each of the preceding years constituted a class by themselves. The Court pointed out that one cannot judge from the point of view of an ideal state of affairs but one must take a practical view of the existing state of affairs. So far as the second ground is concerned, it was rejected on the premise that it was an imponderable factor and could cot be helped. The third ground was negatived on the plea that merely because a different syllabus is prescribed, it does not mean that the performance of the students is being differently judged. So far as the last ground is concerned, the Court observed that there was nothing before if to show how and to what extent different methods of examination have affected the percentage of results or the number of first classes or performance of students and in the absence of such material as in the present case, it will be unsafe and extremely hazardous to speculate as to whether different methods of examination have affected the results in different years. Therefore, in view of this decision of the Division Bench of this Court which is binding on us and in view of the observations of the Supreme Court to which we have referred earlier, we must conclude that the contention that unequals are sought to be treated as equals in contravention of Article 14 of the Constitution has no valid basis.

13. In the view that we take so far as the application of Article 14 is concerned, it is not necessary for us to examine the contention that we should so interpret the rules as to avoid their being hit by Article 14 of the Constitution. This contention was advanced on the premise that if we take the view that students belonging to the second batch are eJigible for admission, the rules would be hit by Article 14 of the Constitution. On the other hand it was contended by the learned counsel representing the second batch of students that if we hold that the second batch is not eligible for admission, we would be violating Article 14 of the Constitution as held by the Additional Judicial Commissioner in Mukul's case (AIR 1981 Goa 39) (supra). Since it is not necessary for us to examine this contention in the view that we take on the question whether unequals are sought to be treated as equals, we need not attempt to read down the rules so that they do not fall within the mischief of Article 14 of the Constitution.

14. Two more submissions were made by Mr. R. H. Mehta, the learned counsel for the petitioners in Special Civil Application No. 2823 of 1982. He firstly submitted that by Rule 7.3 of the Admission Rules weightage is given to students passing the qualifying examination if they had passed the S. S. C. Examination with at least two technical subjects, to the extent of adding 25 marks in their total. There is no doubt that Rule 7.3 thus provides for 25 grace marks to such students who had passed the S. S. C. Examination (Standard 10th Examination) with two technical subjects. In the affidavit-in-reply filed by the Principal of L. D. College of Engineering, Ahmedabad, it has been stated that students who have passed the S. S. C. Examination with at least two technical subjects have been awarded 25 grace marks because the study of such technical subjects is conducive to the pursuit of engineering subjects at the college level. It is stated that the Engineering courses basically belong to the family of Applied Sciences and the technical subjects which are taught to students of the S. S. C. class also belong to the same family and, therefore such students have been awarded 25 grace marks. Rule 6 prescribes the minimum marks required to qualify for admission. The rules lay down that admission will be granted strictly in the order of merit. The object and purpose of the rules is to grant admission to the Engineering faculty to the most meritorious students only. Students who have passed the S. S. C. Examination with at least two technical subjects have been awarded 25 grace marks by Rule 7.3 of the Admission Rules for the reason set out in the affidavit-in-reply of the Principal of L. D. Engineering College, Ahmedabad. Does the granting of grace marks to this class of students violate the equality clause engrafted in Article 14 of the Constitution, The poser must be answered in the negative, firstly because students who have passed the S. S. C. Examination with at least two technical subjects form a class by themselves and secondly because the technical subjects taught to S. S. C. students belong to the family of Applied Sciences to which family the Engineering courses also belong and hence there can be no objection if weightage is given in the form of addition of marks for the purpose of admission as it has a direct and rational nexus to the object sought to be achieved viz., granting admission to those who are best qualified. If those who passed the S. C. C. Examination with at least two technical subjects which belong to family of Applied Sciences to which the Engineering courses belong are given weightage by addition of 25 marks we do not think that in so doing the authorities have acted in an arbitrary manner as was faintly urged by Mr. R. H. Mehta in the course of his submissions. We, therefore reject this contention.

15. It was lastly submitted by Mr. R. H. Mehta that about four or five years ago, seats were reduced in the First Year Degree Course in Electrical Engineering even though the teaching staff and the equipment for practical courses were available. In the first place, on the face of the averment it is clear that something done four or five years back is belatedly sought to be challenged. While denying the said allegation, Mr. Chawda, the Principal of the L. D. Engineering College, states in paragraph 11 of his affidavit-in-reply that till 1972 there were 90 seats for the P. Y. Electrical course in his college; in 1972 the said seats were split up into 15 seats for Electronic and Communication 15 seats for Instrumentation and Control and the rest for Electrical course. This was the position till 1979 when the distribution was changed to 25, 15 and 50 seats respectively for the aforesaid three courses belonging to the same branch. So far as the Morvi college is concerned there was reshuffling of the seats amongst the various branches, namely. Civil Engineering, Mechanical Engineering and Electrical Engineering, but the total number of seats were not reduced. The reduction in the seats in the Electrical Engineering course was necessitated having regard to the total number of students opting for the Electrical Course. Besides the State's requirements have also to be kept in mind in determining the allocation of seats to various branches of the Engineering course. If the demand for Electrical Engineers falls and the demand for Civil or Mechanical Engineers goes up, the allocation of seats to these different courses will also undergo a change. It would be useless to waste the Nation's funds after Electrical Engineer when the need is for Civil or Mechanical Engineers. If the country needs Civil or Mechanical. Engineers what useful purpose will be served by producing Electrical Engineers except to add to the list of the unemployed. There cannot, therefore, be any hard and fast rule regarding the allocation of seats to the different courses and the number is bound to fluctuate according to the nation's changing needs. Besides, the first two semesters are common for all Engineering courses and therefore, the reshuffle is, not likely to affect the petitioners immediately. Therefore, apart from the fact that the challenge is state, for the above reasons it is without merit and is, therefore, rejected.

These were the only submissions made on behalf of the students belonging to the first batch and since we do not find any merit many of these submissions, this group of petitions must fail. The petitions are, therefore, dismissed. Rule in each petition is discharged with no order as to costs, the interim relief granted will stand vacated and it will be open to the authorities to proceed to grant admissions according to the existing rules on the premise that even students who passed the H. S. C. or equivalent examination prior to October 1981 are eligible for admission to course in question. Admissions given pursuant to interim orders passed earlier will have to be regulated according to the existing rules, the validity whereof we uphold.


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