JUDGMENT
Jayant Patel, J.
1. Rule.
Mr.Dipen A.Desai, learned AGP, appears and waives service of Notice of Rule on behalf of the respondents.
With the consent of the parties, both the matters are taken up for final hearing today.
2. The short facts of the case are that the petitioners have passed 10th S.S.C. Examination with two technical subjects, to which there is no dispute by the respondent-Admission Committee. After passing S.S.C. Examination, the petitioners have passed H.S.C. Examination. The petitioners applied to the Joint Admission Committee for getting admission in Engineering Degree Course.
3. So far as the grant of admission in the Engineering Degree Course after H.S.C.Examination is concerned, Rules are framed by the Government for the Academic Year, 2003-2004, which are known as “Rules and Regulations For Admission To First Year Courses in Degree/Diploma; Engineering/Pharmacy & Degree Courses in MBBS/BDS/B.Physio/Ayurveda/Homeopathy”. The present case is concerned with the admission to the Engineering Degree Course. Rule-18 of the said Rules provides that if a student has passed S.S.C. Examination from any school of the Gujarat State with minimum two technical subjects, then, for the purpose of Engineering Degree Course, grace marks shall be granted as mentioned in the Rule, namely, 10 marks if the percentage is between 50 to 55; 15 marks if the percentage is between 55 to 60; 20 marks if the percentage is between 60 to 70; and, 25 marks if the percentage is above 70. Since the present petitioners are the students who have passed H.S.C. Examination and in this petition, as it is not necessary to refer to the grace marks of the students, who have passed 12th C.B.S.E. Examination, such marks are not referred to. In the very Rule, by a note, it has been provided that such grace marks shall not be considered for the purpose of considering the minimum eligibility criteria and such grace marks shall not be considered for admission to pharmacy. It appears that after the petitioners filled up the form, since there is a common merit list for various courses, namely, for MBBS/BDS/B.Physio/Ayurveda/Homeopathy as well as Engineering and Pharmacy, names of the petitioners were shown in the merit list.
4. In the merit list, so far as the petitioner of Special Civil Application No.13666 of 2003 is concerned, two merit numbers were shown, one was including the grace marks and another was excluding the grace marks, being 1471 and 2946 respectively, while in the merit list, so far as the petitioner of Special Civil Application No.13361 of 2003 is concerned, only one merit number was given as that of 3856 and the grace marks were not at all considered. It is further the case of the petitioners that when the case of the petitioners of Special Civil Application No.13666 of 2003 came up for allotment of seat in the admission process, the grace marks included in the merit order were excluded and, therefore, the petitioner of Special Civil Application No.13666 of 2003 had to file the petition.
5. Mr.Dipen A.Desai, learned AGP, contended, inter alia, that in the Rules framed for admission for the Academic Year 2001-02, it was also provided vide Rule-6.7 that only certain technical subjects shall be included for the purpose of grace marks. It has been, therefore, submitted on behalf of the authority by Mr.Desai that for the last Academic Year also, though there was no express provision of Rule-6.7, as it was in the Rules framed for admission for the Academic Year 2000-01, such yardsticks were applied and grace marks were considered while preparing the merit order only in respect of those students who passed technical subjects’ examinations, which are provided and are covered under Rule 6.7 of the Rules of admissions for the Academic Year 2000-01. Mr.Desai, therefore, submitted that the same yardstick is also to be made applicable for the current Academic Year 2003-04. However, Mr.Desai has not been able to show any rule, which was there as Rule-6.7 in the Rules of admission for the Academic Year 2000-01, in the present Rules framed for admission for the Academic Year 2003-04.
6. Mr.Desai also relied upon Rule-23 of the Admission Rules of 2003-04 and contended that if any dispute or difficulty arises for interpretation of the rules for admission, matter should be referred to the State Government and the decision of the State Government is to be treated as final. Mr.Desai also submitted that pending the petition, large numbers of students are granted admissions and, therefore, the admissions, which are already granted to the students, may not be disturbed even if this Court is to find that the Rules do not provide for exclusion of grace marks and such grace marks are required to be included while preparing the merit order.
7. Mr.Desai relied upon a judgement of the Apex Court in the case of Chandigarh Administration & Anr. vs. Manpreet Singh & Ors., reported at AIR 1992 SC 435, for contending that the High Court, at the most, may strike down the rules but it should not include the provisions under the Rules, which are not contained in itself. Mr.Desai also relied upon the judgements of the Apex Court in the case of Maharashtra State Board of Secondary & Higher Secondary Education vs. Amit & Anr., reported at 2002 (6) SCC 153, and in the case of Delhi Pradesh Registered Medical Practitioners vs. Director of Health, Delhi Admn. Services & Ors., reported at 1994 (2) SCC 687, for contending that the provisions of grace marks must be strictly construed since it is to result into disturbing and lowering down of the academic standard. Mr.Desai also relied upon a judgement of the Apex Court in the case of Board of School Education, Haryana vs. Arun Rathi & Ors., reported at 1997(11) SCC 526, for contending that whether grace marks should be awarded or not must be left to the academicians and the expert body to decide and this Court would not have judicial scrutiny for such matter. It is submitted that since the Joint Admission Committee, which is an expert body in the present case, has taken such a decision of only considering two technical subjects, which are covered under Rule 6.7 of the Rules for Admission for 2001- 02, this Court may not direct for considering the grace marks on the basis that any two technical subjects are to be included.
8. There cannot be any dispute on the proposition that whether grace marks should be awarded or granted to a student or not is essentially for the expert body to decide and this Court would, normally, not substitute its wisdom unless it creates absolutely absurd situation. It may be stated that the provisions of the Rules providing for inclusion of grace marks to the student, who has passed 10th standard examination with technical subjects, were challenged before this Court by preferring Special Civil Application No.610 of 1999, in case of Rahul Nanavati & Ors. vs. State of Gujarat, and while examining the constitutional validity of such a rule, the Division Bench of this Court [Coram : Chief Justice Mr.K.G.Balakrishnan (as he then was), and Mr.Justice R.K.Abichandani) as per decision dated 6th May, 1999, has observed at paragraph-4 as under : “The question however is as to how merit is to be determined. Undoubtedly, the outcome of the 12th standard examination would have bearing on the question of merit. The impugned rule for admission is in respect of admission to Engineering Degree Course and it is in context of admission to that discipline that one has to consider whether the provision for grace marks to candidates who had taken two technical subjects at their S.S.C. Examination, which are related to the same discipline, could be treated differently by giving them weightage of grace marks. The candidates who opted at an earlier age for two technical subjects which are offered in the Technical Secondary Schools had to undergo studies in those subjects in 8th, 9th and 10th standards. It is in context of their training in technical subjects which commenced much earlier than others that the question of weightage has to be viewed while considering them for admission to the Engineering Degree Course on the basis of having passed qualifying 12th standard examination. Those who have earlier undergone studies in two technical subjects, in our view, could legitimately be treated on this beneficial footing than others who did not opt for technical subjects, in context of admission to the Engineering Degree Course to which the technical subjects in which they studied in their formative years were relatable. Giving of grace marks in this context has a reasonable nexus with the object of giving admissions to the Engineering Degree Course to such candidates who had chosen technical subjects which made them better equipped than their counter-parts who had also passed 12th standard examination but without having undergone studies in any technical subject in their secondary education. It cannot be said that by such provision of grace marks any irrational classification is created among similarly situated students or that it has no reasonable nexus with the object sought to be achieved by the rules of giving admission to the Engineering Degree Course. We, therefore, hold that the impugned Rule does not violate Article 14 of the Constitution.”
Further, while upholding the constitutional validity of such rule, the Division Bench of this Court has abstracted the earlier view of the Division Bench of this Court in case of Pareshkumar Mahendrabhai Shah Vs. State of Gujarat & Ors., reported in 1983 (3) GLR. 173, has observed at paragraph-5 as under :
“5. The question whether weightage can be given in form of additional marks for the purpose of admission under an identical rule of admission to Engineering Degree Course, framed by the State Government for the academic year 1982-83 came up for consideration before a Division Bench of this Court in Pareshkumar Mahendrabhai Shah (supra), in which while considering the impact of the rule laying down that weightage of marks be given to those who had passed their S.S.C. examination with atleast two technical subjects, it was held that the object and purpose of the rules was to grant admission to the engineering faculty to the most meritorious students only and students who had passed the S.S.C. examination with atleast two technical subjects were to be awarded grace marks under the rule which did not violate the equality clause engrafted under Article 14 of the Constitution because the students who have passed S.S.C. examination with atleast two technical subjects form a class by themselves and further because the technical subjects taught to the S.S.C. students belong to the family of Applied Sciences to which the engineering courses also belong. It was therefore held that there can be no objection if weightage is given in the form of addition of marks for the purpose of admission to the Engineering faculty as it had a direct and rational nexus to the object sought to be achieved viz. granting admission to those who are best qualified. It was held that by giving such weightage, it cannot be said that the authorities had acted in an arbitrary manner. We find ourselves in respectful agreement with the ratio of the said decision in Pareshkumar’s case (supra), and we are also of the view that the weightage upto 25 marks on the basis of the result of the S.S.C. examination in which the candidates had taken two technical subjects has a reasonable nexus with the object of giving admission to the Engineering Degree Course. The technical subjects, in which the candidates had undergone the course which others had not undergone, made them more suitable for admission to the Engineering Degree Course, depending, of course, on their performance at the qualifying examination of the 12th standard. The cumulative effect of the result of their 12th standard examination and the additional marks by virtue of grace so obtained, due to having undertaken the studies in technical subjects much earlier, is to provide the best available meritorious students for the Engineering Degree Course.”
Therefore, so far as the enabling power of the authority to consider grace marks and awarding of grace marks is concerned, such practise is found to be legal and valid. As such, the Rule has provided for inclusion of such grace marks and such rule is also held to be legal and valid. Similar is the rule, more or less, at par with the present Rule-18, providing for inclusion of grace marks while preparing the merit order for admission to Engineering Degree Course, and, therefore, when the expert body, who framed the Rules, having considered and found that grace marks are to be included for the purpose of preparing the merit order in giving admissions in the admission process of Engineering Degree Course, and when the constitutional validity of such a rule is also upheld by the Division Bench of this Court, I am of the view that the contention of Mr.Desai that it must be left to the academicians to decide, is ill founded and without there being any basis.
9. When the rule itself provides for inclusion of grace marks while preparing the merit order, the question which arises for the consideration is whether the Admission Committee should be allowed to make its own interpretation by considering only particular subjects and not any two technical subjects. There is no dispute on the point that Rule-18 provides for any two technical subjects and it does not speak for any two technical subjects, which may be provided specifically, and, therefore, on a plain and simple reading of the Rule-18, a student, who has passed 10th standard examination with minimum two technical subjects, would be entitled to the grace marks, as provided under the Rules. It is not the case of the respondent authority that the petitioner has not passed such examination with minimum two technical subjects. However, the only contention is that such technical subjects should be only those which are covered under Rule-6.7 of the Admission Rules of 2000-01. I am afraid such a contention can be accepted of the authority, when there is conscious omission of Rule-6.7 in the present Rules framed for the Academic Year 2003-04. It may be that while framing the Rules for the Academic Year 2000-01, the authority or the expert body might have thought that only certain two technical subjects should be considered for the purpose of awarding grace marks, but, for the subsequent year, more particularly, for the current Academic Year 2003-04, such Rule-6.7, which was there in the Rules of 2000-01, is not included. It cannot be validly contended by the authority that such rule continues to apply for the current Academic Year 2003-04. Merely because it was applied and nobody challenged during the period when the admission process was conducted for the Academic Year 2002-03, and when there is conscious omission on the part of the rule making authority, the Admission Committee, which is only an implementing machinery of the Rules, cannot be allowed to dilute the effect of the rule nor can it be said that there is any power with the Joint Admission Committee to interpret the rule in the manner, which is not provided. It is obligatory on the part of the Joint Admission Committee to act pursuant to the Rules. It may be stated that the Rules are framed by the State Government and a resolution for such purpose dated 31st May, 2002 is also produced on record. In the Rules itself, which are framed by the State Government, Rule-7.2 is same as it is provided under the present Rule as per Rule-18 and, therefore the Joint Admission Committee has no power or authority to provide any addition to any clause under the Rules for excluding grace marks while preparing the merit order.
10. The judgements upon which the reliance is placed by Mr.Desai are not at all applicable to the facts of the present case. In the present case, there is no question of striking down the validity of the Rule nor there is any question of adding to the provisions of the Rule. It is only a plain and simple meaning of the Rule to be given effect to by the Court while testing the action of the authority, who is implementing such rule in the admission process. Similarly, as observed earlier, the expert body has taken a decision for awarding of grace marks and even if a strict and literal interpretation is given to Rule-18, it does provide that the grace marks are to be considered and be given while preparing the merit order and, therefore, the decisions of the Apex Court in the case of Maharashtra State Board of Secondary & Higher Secondary Education vs. Amit & Anr. (supra) and Board of School Education vs. Arun Rathi & Ors. (supra) are of no help to the respondent authority for justifying the action.
11. The attempt made by Mr.Desai to contend that the Joint Admission Committee is an expert body, which has taken a decision to interpret the rule by including only specified or particular subjects, as they were under Rule 6.7 of the Admission Rules of 2000-01, in my view, is misconceived and ill founded. The Joint Admission Committee is not an expert body, who has framed the Rules. The Rules are framed by the State Government, may be upon the opinion of the experts. Therefore, the powers for framing the Rules are with the State Government and not with the Joint Admission Committee. When the State Government, for the Academic Year 2000-01, had found it appropriate to include only certain technical subjects by providing Rule-6.7 at the relevant point of time, and when the State Government, for the current Academic Year 2003-04, has not included such provisions of Rule-6.7, as it were earlier, it can, on the contrary, be said that the expert body has found it appropriate to exclude such prescription of certain technical subjects for the purpose of grace marks and has taken the decision to include any two technical subjects. Therefore, the contention of Mr.Desai also fails and cannot be accepted. 12. Similarly, the contention raised by Mr.Desai for referring the matter to the State Government is also misconceived and ill founded because in absence of Rule-6.7, which was in the Rules of Admission to 2000-01, plain and simple meaning of Rule-18 is apparent and, therefore, there is no basis for any other interpretation at all. Further, when the admission process is going on and in absence of any two possible interpretation, if the matter is referred to the State Government, irreversible situation may arise and it may cause irreparable damage to the petitioners-students. Hence, such contention of Mr.Desai cannot be accepted.
13. It is true that both the matters were preferred by the petitioners at the stage when the admission process was going on and the matters are being decided today. As per the submission of Mr.Desai, learned AGP, large number of students are admitted thereafter pending the petition. It is also an admitted position that the said students, who are admitted pending the petition, are not impleaded as parties. Therefore, when this Court is interpreting Rule-18 finally today, facts and circumstances of the case justify that the admissions, which are already granted, should not be disturbed. However, from tomorrow onwards, the merit order of the concerned petitioner shall be considered by inclusion of the grace marks. Similarly, it would also be for the respondent authority to treat the other similarly situated students, while ascertaining the merit order, by including the grace marks for the admission process, to be undertaken henceforth.
14. Mr.K.M.Paul, learned Counsel for the petitioners, submitted that on account of wrong interpretation of the rule by the Joint Admission Committee, it has resulted into depriving the students for getting admission at the relevant point of time of their choice.
Prima facie, there appears to be substance in the contention of Mr.Paul, but, as observed earlier, the students, who are already admitted and who are not party to the proceedings, cannot be disturbed and their admissions should not be disturbed. However, if the petitioners are so advised the petitioners may file a suit for recovery of the damages in accordance with law.
15. In view of the aforesaid observations and discussion, both the petitions deserve to be allowed by declaring the action of the Joint Admission Committee of not including the grace marks as per Rule-18 while considering the merit order of the concerned petitioner for admissions to Engineering Degree Course for Academic Year 2003-04. The respondents are, consequently, directed to consider the merit order of the petitioners by addition of grace marks for admission to Engineering Degree Course for the Academic Year 2003-04, without disturbing the admissions of the students which are already granted till today.
16. Mr.Desai shall communicate this order to the respondent authority for implementing the same from tomorrow onwards.
17. Accordingly, both the petitions stand allowed to the aforesaid extent. Rule is made absolute accordingly. Considering the facts and circumstances of the case, since it is on account of ex facie wrong interpretation of the rule, the petitioners had to prefer the petitions, the respondents shall pay costs of Rs.2,500=00 to each of the petitioner.