JUDGMENT
A.P. Ravani, J.
1. Should there be adherence to the rules and regulations even when an expedient course is adopted by the Executive? Not expressly, but by necessary implication, the Government’s stand is that in a given situation it may compromise with the rules and regulations. Aggrieved by such a stance adopted by the Government the petitioners have moved this High Court by filing petition under Article 226 of the Constitution in representative capacity and prayed that the Government be directed to admit the students who have become the victims of such ad hocism to the third semester of different courses in the Polytechnics in the State.
2. By a resolution dated May 5, 1982 the State of Gujarat introduced a technical bias course at the Higher Secondary level. The students who take this course are required to appear in twelve subjects besides the common subjects of science stream. The students passing higher secondary examination with the technical bias subjects were to be considered eligible for an intended diploma or certificate course for a period of six to eighteen months. However, such course could not be started by the Government. Therefore, the Government resolved that students passing their Higher Secondary Examination with the aforesaid subjects be admitted straight to the third semester of Civil, Mechanical and Electrical Diploma courses? in the polytechnics. The Joint Secretary, Education Department, addressed a letter to this effect some time in September, 1983 to the Chairman, Gujarat Higher Secondary Education Board (Annexure-B to the petition.) As per this letter such students were to be considered eligible for being admitted to the third semester of various Diploma Courses. In the year 1983-84 and 1984-85 all such students were considered eligible for admission to the third semester of diploma courses and they were given admission. In October 1986 the Government advertised that the students who have passed the 12th standard examination with technical bias subjects may apply for being admitted to the third semester in different polytechnics of the State. The wards of the petitioners herein and other students applied in response to the advertisement. In all there were 148 such students. Out of these 148 students only 46 students have been admitted. Other students have been denied admission.
3. It may be noted that there is some discrepancy with regard to the number. In the petition it is stated that in all there were 148 students who had applied while in the affidavit-in-reply it is stated that there were 133 students who had applied and out of 133, forty-six students have been admitted. However, this minor discrepancy in the number is not very much material for the purpose of the decision of this petition.
4. The grievance of the petitioners is that the students concerned have been denied admission illegally, solely with a view to accommodate the ineligible students who had not appeared at the examination of second semester of respective diploma courses. As per Government decision these students have been promoted to higher semesters, though they have not passed the second semester. (See circular dated December 22, 1986, Annexure-IV to the affidavit-in-reply dated April 7, 1987). It is stated in the circular that in December, 1986 the students were on strike and hence many students of even semesters of diploma courses had not appeared at the examination held by the Board. Therefore, the examination of even semesters (2, 4, 6, 8) will be held in January, 1987. Consequently, the results of the examination of even semesters were likely to be delayed. Therefore, as a special case, for the term commencing from December 12, 1986, notwithstanding the provisions of Rule 3 of the Gujarat Technical Education Manual, Chapter 3, these students are to be given admission in further semesters. It is further stated that the examinations held in November, 1986/December, 1986 and the examination to be held in January, 1987 are not to be taken into consideration.
5. This circular probably gave respite to the Government from the trouble created in the academic world by the striking students. But this safety valve of the Government has proved to be trouble-creator for considerable number of students who passed 12th standard examination with technical bias subjects. Such students had applied for being admitted to the third semester of diploma courses in the Polytechnics of the State. The number of seats in third semester of different technical courses in the Polytechnics of the State is naturally limited. The Government’s decision as found in letter of September 1983 (Annexure B to the petition) indicates that the Government’s estimate was that about 5% of the seats be kept reserved for the students who pass 12th standard examination with technical bias subjects. The estimate was quite reasonable. Normally one can assume that even with most liberal results the percentage of failure would be around 5%. Therefore, taking this as the basis the Government estimated to keep 5% of the total number of seats reserved for students passing 12th standard examination with technical bias subjects. But on account of the circular dated December 22, 1986 the Government decided to promote all the students of second semester of diploma courses, whether they might have passed or not. Naturally this has caused heart-burning amongst the students who have passed 12th standard examination with technical bias subjects and who have been denied admission to third semester in various diploma courses of different Polytechnics in the Slate.
6. At this stage it would be appropriate to refer to the eligibility criterion prescribed for admission to third semester of different diploma courses of various Polytechnics of the State. The eligibility for admission to these courses is that the student should have passed 11th and 12th standards with technical bias subjects. The merit list of candidates seeking admission to the third semester of different diploma courses is to be prepared in the following order:
(i) Students who have passed the first and second semesters of diploma courses in Civil, Mechanical and Electrical Engineering from the respective Polytechnics:
(ii) Students of the same Polytechnic who seek transfer-from one discipline to another discipline.
(iii) Students who seek transfer from one Polytechnic to another Polytechnic in the State.
(iv) After filling in the seats in the aforesaid order, the remaining seats to be filled in order of merits from amongst the students who have passed Higher Secondary Examination in Vocational (Technical) stream.
(See rule regarding merit list, at page 23 of the petition, in Information Booklet published by Technical Education Department of Government of Gujarat.)
7. There is no dispute with regard to the fact that the students concerned have passed the Higher Secondary Examination in technical stream and their names have been included in the merit list. In the month of December, 1986 the examination of even semesters of different diploma courses was to be held, but could not be held on account of the strike of the students. The result is that there were no students available of category (i). Probably the same would be the position with regard to the students belonging to category (ii) and (iii). At any rate it is an undisputed position that as far as the students of category (i) are concerned, there was not a single student who was declared passed. As stated in the petition the number of such students is around 1000 and this is not controverted. The authorities decided to admit these students to third semester of different diploma courses in various Government Polytechnics. This is ordered to be done by Government notwithstanding the provision of regulation 3 of Chapter 3 of the Gujarat Technical Education Manual. Regulation 3 inter alia prescribes that the student should have cleared all heads of passing of semester and 11 examinations taken together except two heads of passing or should have passed Semester I examination and fulfilled the conditions for appearing in Semester 11 examination. By the circular of December 22, 1986 the Government relaxed the aforesaid condition. However, the criterion for preparing the merit list which has been noted hereinabove and which has been notified by the Government both in the Information Booklet issued by the Technical Education Department of the Government (Annexure-F to the petition) and in the advertisement dated October 19, 1986 (Annexure-C to the petition) has not been changed at all. The merit list was required to be prepared in accordance with the aforesaid criterion. Admittedly this has not been done. Though there were no eligible students of category (i), (ii) and (iii), the mass of students who had not passed the second semester examination has been considered eligible. Thus, ineligible students have been considered eligible in preference to the students who are eligible and who have legitimate claim to be admitted to third semester of diploma courses.
8. The respondent-authorities contend that on account of the strike by the students, as a special case all the students have been promoted and allowed to be admitted in the next semester. Once these students have been admitted to the third semester, very limited number of students who passed 12th standard examination with technical bias subjects (about 46 students) could be accommodated in third semester. Other students of vocational (technical) stream could not be accommodated because there were no vacant seats. It is further contended that the Director of Technical Education is empowered to determine the number of seats available for each academic year in the respective Polytechnics of the State. For this purpose reliance is placed on Government Resolution dated February 14, 1984. It is submitted that the Director of Technical Education should be deemed to have fixed the number of vacancies available to the extent of the students who have been promoted and further to the extent of number of students of 12th standard of vocational (technical) stream who have been admitted to third semester. Beyond this, there are no further vacancies and therefore the petitioners cannot claim admission.
9. Even if the contention of the respondent-authorities is accepted it does not flow from the same that the ineligible students may be admitted in preference to the eligible students. Power to fix the number of vacancies in such academic year does not mean power to exclude eligible students in preference to ineligible students. What is complained of by the petitioners is that the Government cannot give admission to the students who are ineligible and exclude the eligible students. It may be that in a given situation created on account of the disturbances in the academic world, the Government may have to relax the rules and regulations regarding eligibility criterion, for admission to different courses. But even so, the same has to be done in accordance with the rules and regulations. While adopting an expedient course, care has to be taken by the executive that no injustice is done to the students who are not at fault for creating the anomalous situation.
10. A very awkward situation has been created on account of the course adopted by the Government. The students who indulged in indiscipline and disturbed the even tempo of the academic life are given benefits and are being garlanded with the promotion to the higher semester. The students who opted for technical bias subjects and who started their course of future career on the path laid down by the Government as per its Resolution dated May 5, 1982 and subsequent letter of September, 1983 and gave up their opportunities of pursuing other courses elsewhere are denied admission. They are stopped mid-way. They cannot go back, they are not allowed to march forward. Why? Because, the executive has yielded or was forced to yield to the pressure from the indisciplined mass of students? There may be valid reasons for the executive to do so. But this can never be permitted to be done at the cost of the legitimate rights of another section of students.
11. To adopt an expedient course and sacrifice the disciplined section of students is to say the least highly improper, unjust and illegal. The rights of honest, industrious and disciplined students cannot be jeopardised because indisciplined mass of students is more vociferous and is in a position to bring pressure on the executive in an organised way. In a society governed by rule of law even when the executive is forced to adopt an expedient course it cannot act otherwise than in accordance with rules and regulations. In this connection reference may be made to the decision of the Supreme Court in the case of Jaisinghani v. Union of India . In para 14 of the judgment the Supreme Court has observed as follows:
In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits The rule of law from this point of view means that decisions should be made by the application of known principles and rules, and. in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law.
In the instant case the decision has been taken in total disregard of the principles made known to the students. The decision was also unpredictable. No one could have conceived that the eligible students would be excluded in preference to ineligible students. If such a decision is allowed to operate, no student would ever know where he is and how he has to plan his future course of career.
12. There may be difficult time for the executive. The executive may have to make adjustments and accommodations. It may have to adopt expedient course and resort to ad hocism in order to tide over the exigencies of the situation. But while adopting such a course the least that is expected of the executive is that the benefits that may be conferred upon and the relaxation that may be granted to a section of population exerting pressure should never be at the expense of other section which is legitimately entitled to claim such benefits. If such course is adopted it would not be conducive to the creation of healthy atmosphere in the sphere of academic world. It would further lower down educational standards. The students who are at the threshold of their career would enter the mainstream of society with a sense of burning in their heart and also with a feeling that organised force can break or bend the law and the Government can be asked to take decisions otherwise than in accordance with law. By adopting such course no one serves the basic ideal ‘the rule of law’ enshrined in the Constitution. The governance of this vast country is a very difficult and complex business. Therefore, one may not doubt or criticise the executive for adopting an expedient course or for resorting to ad hocism. But this can never be permitted at the cost of the legitimate rights of another section of the population. Thus, viewed from any angle, the petitioner’s claim has got to be upheld.
12.1. It is very unfortunate that the petition filed in January, 1987 could not be heard till today. Look at the plight of the students who have been denied their legitimate right of being admitted in the third semester of the respective diploma courses commencing from January, 1987. Now the time which they have lost cannot be compensated. The clock cannot be put back. It would neither be desirable nor proper to direct the Government that all these students who applied in response to the Government advertisement dated October 19, 1986 and who are found eligible be admitted to third semester course which commenced from January, 1987. To do so would amount to doing another impropriety. Because the students who have not studied for a period of about more than six months cannot be deemed to have undergone the necessary training. Therefore, the prayer which has been made in para 9(a) of the petition seeking direction to admit them in third semester commencing from January, 1987 cannot be granted. Hence the relief that may be granted shall have to be suitably moulded so as to meet with the ends of justice. This can be done by directing the Government to treat all the students with technical bias subjects who applied in response to the advertisement dated October 19, 1986 and who are eligible for being admitted to the third semester of various diploma courses in various polytechnics of the State as deemed to have been admitted in third semester commencing from January, 1987. However, they shall not be considered to have undergone the necessary training of the term commencing from January, 1987. They shall not be required to apply for admission in the next academic year. Their actual training should start from the next academic year commencing from January, 1988.
13. In the result the petition is allowed. The action of the respondent-authorities denying admission to the petitioners’ wards and the like students who have passed 12th standard examination with technical bias subjects is quashed and set aside as being illegal and void. It is further directed that all such students who applied in response to the advertisement dated October 19, 1986 and who are found eligible for admission to third semester of respective diploma course be treated as having been admitted in the third semester of various diploma courses commencing from January, 1987. The respondent authorities shall accept their fees and shall treat them as having been admitted in the respective courses. It will be open to the respondent-authorities to admit them in accordance with their merits in different disciplines at different Polytechnics of the State. This shall be done latest before September 30, 1987. If possible all these students may be permitted to attend the classes. Even if it is not possible to permit them to attend the classes, they shall be deemed to be students of third semester of respective courses commencing from January, 1987. However, their actual training will start from the term commencing from January, 1988. They shall not be obliged to apply again for admission and they shall be deemed to have been admitted in the previous year as indicated hereinabove. They shall pay the fees for one year only and not for both the years i.e. 1987 and 1988. Rule made absolute accordingly with no order as to costs.