Dubariya Lensi Maheshbhai vs Union Of India
2021 Latest Caselaw 2342 Guj

        C/SCA/13674/2020                                        ORDER




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 13674 of 2020

==========================================================
                      DUBARIYA LENSI MAHESHBHAI
                                Versus
                            UNION OF INDIA
==========================================================
Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 6
MR AR THACKER(888) for the Respondent(s) No. 5
MR DEVANG VYAS(2794) for the Respondent(s) No. 1,2
SERVED BY RPAD (N)(6) for the Respondent(s) No. 3,4
SHIVANG A THACKER(7424) for the Respondent(s) No. 5
==========================================================

 CORAM: HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 15/02/2021

                              ORAL ORDER

1. The petitioner has preferred this petition with following prayers:

"26(A) Your Lordships be pleased to issue a writ of mandamus commanding the respondent no.1 to hold consultation with respondent no.2 by taking into consideration the various factors as existing so as to lower the minimum qualifying marks for the academic year 2019-2020 in BHMS course and thereby grant admission to students who are interested in pursuing BHMS course;

26(B) Your Lordships be pleased to issue a writ of mandamus commanding respondent no.1 and 2 to lower the qualifying percentile in BHMS course for the year 2019-2020 in view of availability of vacant seats and thereby permit the colleges to fill up such vacant seats with students who are interested in pursuing BHMS course;

26(C) Your Lordships be pleased to issue a writ of mandamus commanding respondent's no.4 to regularize the conditional admission of petitioners on the vacant seats for the academic year 2019-2020 of BHMS course;

26(D) Pending admission, hearing and final disposal of present petition, Your Lordships be pleased to issue appropriate directions to respondent no.1 to hold consultation with respondent no.2 by taking into

C/SCA/13674/2020 ORDER

consideration the various factors as existing so as to lower the minimum qualifying marks for the academic year 2019-2020 in BHMS course and thereby grant admission to students who are interested in pursuing BHMS course;

26(E) Pending admission, hearing and final disposal of present petition, Your Lordships be pleased to issue appropriate directions to respondent's no.1 and 2 to lower the qualifying percentile in BHMS course for the year 2019-2020 in view of availability of vacant seats and thereby permit respondent's no.4 to fill up the vacant seats with students who are interested in pursuing BHMS course;

26(F) Pending admission, hearing and final disposal of present petition, Your Lordships be pleased to issue appropriate directions to respondent's no.4 to regularize the conditional admission of petitioner on the vacant seats for the academic year 2019-2020 of BHMS course;

26(G) Pending admission, hearing and final disposal of the present petition, Your Lordships be pleased to issue directions to respondents no.1 to 5 to not disturb the conditional admission granted to them for pursuing the BHMS course for the year 2019-2020 and thereby permit the petitioners pursue their course;

26(H) Your Lordships may be pleased to grant such other and further relief and/or order, as deemed fit, in the interest of justice in favour of the petitioners."

2. Mr. Bharat Rao, learned advocate for the petitioner fairly submits that the issue raised by the petitioner in the present petition is squarely covered by the CAV judgment rendered on 04/02/2021 by the coordinate bench of this Court in Special Civil Application No.20824 of 2019 and allied matters in the case of Surela Zarna Nareshbhai and others vs. Union of India and others. However, Mr. Rao, learned advocate points out that thereafter on 08/02/2021, the Hon'ble Supreme Court has delivered a judgment in case of Harshit Agrawal and others vs. Union of India and others in Writ Petition (C) No.54 of 2021 and draws attention of this Court to observations made in para 12 and 13 of the said decision. By pointing out aforesaid paragraphs of the Hon'ble Supreme Court decision dated 08/02/2021, Mr.Rao, learned advocate submits that if the petitioner is permitted to withdraw this petition with a view to make a

C/SCA/13674/2020 ORDER

representation to the respondent authority to take a decision afresh in light of observations made in para-12 and 13 of decision of the Hon'ble Supreme Court, interest of justice would be served. He further points out that the petitioner is short by only one mark from the cut off marks and, therefore, if observations made in para 12 and 13 of the decision of the Hon'ble Supreme Court are considered in its true spirit, in that case, carrier of the petitioner would be saved. Since examinations are likely to commence from 22/02/2021 i.e. after seven days only, Mr. Rao, learned advocate urges this Court that if the petitioner is permitted to withdraw the petition and if the same is permitted to be treated as representation, he will send soft copy of the petition with all annexures by today evening only to respondents by e-mail. He also will sent supplementary representation along with copies of the judgments he is relying upon and along with necessary points for consideration by the respondent to help the respondent authority to take a fresh decision objectively. He will file supplementary representation latest by 16/02/2021 through e-mail.

3. Said request of Mr. Rao, learned advocate is opposed by learned advocates appearing for the other side submitting that at belated stage, such permission to make a representation may not be granted.

4. Be that as it may, since Mr. Rao, learned advocate submits that issue raised by the petitioner in this petition is squarely covered by the decision of this Court rendered in Special Civil Application No.20824 of 2019 and allied matters and also considering the observations made in para-12 and 13

C/SCA/13674/2020 ORDER

of the subsequent decision dated 08/02/2021 of the Hon'ble Supreme Court upon which reliance is placed by him, interest of justice would be served if necessary directions are issued to consider the representation of the petitioner and take a fresh decision in view of the decision rendered by the Hon'ble Supreme Court in the case of Harshit Agrawal (supra).

5. Hence, the petitioner is permitted to withdraw the present petition with following directions:

1) This petition itself be treated as representation and the petitioner is directed to send soft copy of the petition as well as all annexures and all relevant documents to respondent no.1 latest by today evening through e-mail. Mr. Rao, learned advocate is directed to file supplementary representation addressed to respondent no.1 raising any other grounds which might have left out to be taken in this petition along with the judgment of the co-ordinate bench of this Court as well as decision of the Hon'ble Supreme Court upon which reliance is placed latest by tomorrow i.e. 16/02/2021 before 5:00 p.m. in the evening through e-mail.

2) Once respondent no.1 receives said representation and supplementary representation from the petitioner, considering the fact that examinations are commencing from 22/02/2021, respondent no.1 is directed to decide the representation of the petitioner latest by 20/02/2021.

3) Decision taken by the authority be communicated through e-mail to the petitioner or advocate of the petitioner as well as other respondents by 20/02/2021.

C/SCA/13674/2020 ORDER

6. With the aforesaid directions, present petition stands disposed of as withdrawn.

7. Mr. Rao, learned advocate points out at this juncture that the petitioner has secured 75% marks in standard 12th and the authority may be directed to take a sympathetic view while deciding the representation.

8. The respondent authority is, therefore, directed to consider the grounds urged by Mr. Rao, learned advocate for the petitioner in accordance with law. A decision is expected to be taken by 20/02/2021.

9. As this petition is withdrawn, with a view to make a representation, it is clarified that this Court has not gone into merits of the matter. It also goes without saying that whatever the decision the respondent may take, the same shall be subject to the rights and contentions of the parties.

10. Notice is discharged. No order as to costs.

(NIRZAR S. DESAI,J) ila