Dhariniben Pareshbhai Doshi vs Veer Narmad South Gujarat ...
2021 Latest Caselaw 1043 Guj

     C/SCA/16404/2018                                      CAV JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CIVIL APPLICATION NO. 16404 of 2018
                               With
          CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2019
          In R/SPECIAL CIVIL APPLICATION NO. 16404 of 2018
                               With
           R/SPECIAL CIVIL APPLICATION NO. 16406 of 2018
                               With
          CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
          In R/SPECIAL CIVIL APPLICATION NO. 16406 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV
================================================================

1 Whether Reporters of Local Papers may be allowed to see No the judgment ?

2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the No judgment ?

4 Whether this case involves a substantial question of law as No to the interpretation of the Constitution of India or any order made thereunder ?

================================================================ DHARINIBEN PARESHBHAI DOSHI Versus VEER NARMAD SOUTH GUJARAT UNIVERSITY ================================================================ Appearance:

MS MAMTA R VYAS(994) for the Petitioner(s) No. 1 MR BS PATEL, SR. COUNSEL with MR CHIRAG B PATEL(3679) for the

RULE SERVED(64) for the Respondent(s) No. 2,3 ================================================================ CORAM: HONOURABLE MR. JUSTICE BIREN VAISHNAV Date : 22/01/2021

1. Both these petitions are filed by student who has

sought admission to the B.Ed Course under the

Management Quota. Petitioner of Special Civil

Application No.16404 of 2018 was granted

admission in the subject of science in the Open

category of the Management Quota, whereas, the

petitioner of Special Civil Application No.16406 of

2018 was granted admission in the category of the

Management Quota belonging to the Scheduled

Tribe category.

2. Pending the petitions, initially, this Court in Special

Civil Application Nos.16406 and 16404 of 2018

passed separate orders on 22.10.2018 (Coram:

Ms.S.G. Gokani - J.) which read as under:

"1.The present petitioner seeks intervention of this Court, since, the order has been passed on 17.10.2018 by the University- respondent No1 not approving her admission in the First Year of the B.Ed. Course with respondent No4. She has, on completion of her B.Sc. Studies, been given admission in the B.Ed. course. She has been given admission in the Management Quota, pursuant to an advertisement published by respondent No3. She belongs to Schedule Tribe category and she is desirous of pursuing her studies of B.Ed. with Mathematics and Science subjects.

2.It is averred in the petition that the examination is commencing from 26th October, 2018 for the First Semester of B.Ed. course and she has is orally intimated that in wake

of the subsequent developments, she may not be given the permission to appear in the examination.

3.This Court has heard the learned Advocate, Ms. Vyas, for the petitioner, who has urged that no reason is given by the University- Respondent No1 while making the impugned communication to the petitioner denying admission. She further, has urged that even if, there is any objection with regard to the Management Quota, then also she fulfills the criteria.

4.Let an urgent NOTICE be issued, keeping in mind the ensuing examination, making the same returnable on 24TH OCTOBER, 2018.

5.Since, learned Advocate, Mr. Vin, appears for Respondent No1-University, he shall be served an advance copy.

Direct service is permitted, TODAY."

3. On 25.10.2018, a common order was passed by this

Court (Coram: S.H. Vora-J.) which reads as under:

"Learned advocate for respondent seeks time to file reply.

Heard learned advocates appearing for the respective parties. Upon hearing learned advocates at bar and considering the facts of the case, it appears that there is a clear vacancy under Management Quota with respect to Science subject and such vacancy fell on account of surrender of seat of one Ms. Prachi Kamleshbhai Talati. It is a matter of fact that respondent - College accepted fees of 15

students under Management Quota (including present petitioners).

In light of this position, present petitions deserve consideration and therefore, pending hearing of the present petitions relief in terms of para-8(B) is granted but on condition that the admission and appearance of the petitioners in the examination shall remain subject to further order that may be passed by this Court after considering the pleadings to be filed by the respondents in the present proceedings. S.O. to 14.12.2018."

4. Since both these petitions arise out of a common

controversy i.e. the order dated 17.10.2018 by which

the respondent No.1 - University did not approve

their admission to the B.Ed Course, learned counsels

Ms.Mamta Vyas for the petitioners, Mr.C.J. Vin for

the respondent No.1 - University and Mr.B.S. Patel,

learned Senior Counsel with Mr.Chirag Patel for the

respondent No.4 confined their arguments and facts

on facts of Special Civil Application No.16404 of

2018.

5. The facts in brief are as under:

* Prayer in both the petitions were common i.e.

to set aside an order of 17.10.2018 passed by the

respondent University by which the admission of the

petitioners was not approved by the Centralized

Admission Committee and accordingly the

respondent No.4 College was directed to see that

the petitioners discontinued their pursue in the B.Ed

course.

* The case of the petitions is that she completed

her B.Sc. An advertisement was issued on 6.4.2018

by the respondent University for admission to the

B.Ed Course pursuant to which under the

Management Quota, the petitioner applied for

pursuing their studies. The petitioners of Special

Civil Application No.16404 of 2018 applied for

admission under the open category whereas the

petitioner of Special Civil Application No.16406 of

2018 applied for admission under the Scheduled

tribe category. Fees were paid. Admissions were

granted in September, 2018 and when the ensuing

exams of the first semester were due on 21.10.2018,

the petitioners were faced with the communication

of 17.10.2018 directing that the admission granted

by the respondent No.4 be cancelled. It was in these

circumstances, the Court was on 22.10.2018 and

thereafter 25.10.2018 passed the orders which have

been referred to hereinabove.

6. Ms.Mamta Vyas, learned counsel for the petitioners

submitted that during the interregnum by virtue of

the interim orders, the petitioners were permitted to

appear and have competed their 1st to 4th semester

examinations. The results of the 2nd semester have

been declared whereas the results of the 1st, 3rd and

4th semesters have not been declared due to the

pendency of the petitions. She would submit that the

order of 17.10.2018 was passed when the petitioners

were to sit for the first semester examination. The

B.Ed. Course the petitioners have already undergone

in June, 2020.

7. Mr.C.J. Vin, learned counsel for the respondent

University would submit as under:

* He would submit that the national council for

teacher education has by notification dated

28.11.2014 and the relevant Clauses thereunder

stipulated a time limit within which the admission

process needs to be over. The admission notice was

dated 6.4.2018 and the admission process had to be

completed by 6.6.2018. He would submit that there

was two basic units of 50 students each and in all

100 students. In a class of 100 students, 50 seats

were reserved for the Management Quota. The

admission was to be given by the centralized

admission committee. He would invite the attention

of the Court to the notification of the NCTE dated

28.11.2014 stipulating the time limit.

* He would also rely on a communication of the

Government through the Commissioner of Higher

Education dated 6.8.2008 in support of his

submission that if the management makes

admissions contrary to the centralized admission

committee's recommendation or such admissions are

not routed through the committee, such admissions

be treated as cancelled. He would submit that the

admission process in the present scenario was

extended to 18.8.2018, in the interest of seeing that

all students as far as possible are accommodated.

Admittedly, the College submitted a list on

23.8.2018 showing the name of the petitioners of

Special Civil Application Nos.16404 of 2018 and of

16406 of 2018 as not being approved. He would rely

on the communication dated 21.7.2008 produced

alongwith the additional affidavit filed in subsequent

point of time to indicate that the College was

informed that the Management Quota will be of 15

seats and each subject seats would not be more than

2 to 3, therefore, based on the merit list of 23.8.2018

produced by the College itself, the petitioners of

Special Civil Application Nos.16404 and 16406 of

2018 were at Sr. Nos.13 and 14 respectively much

below the approved merit rank of the subject of

science to which admissions were granted to the

candidates at Sr. Nos.8, 9 and 11. Admittedly, those

3 were belonging to the science stream and looking

to the communication of 21.7.2018 since the

allocation of subject was for 2 seats, the petitioners

were in excess of the quota of the management and,

therefore, the petitioners were not entitled than to

be accommodated in the B.Ed Course. A subsequent

order of withdrawal of recognition dated 21.6.2018

has also been placed on record by the University to

contend that now the institution itself is not

recognized and, therefore, there is no reason why

the petitioners are entitled to the relief of having

undergone and being awarded the degree of B.Ed.

8. Mr.B.S. Patel, learned Senior Counsel appearing

with Mr.Chirag Patel, learned advocate for the

respondent No.4 - College would draw the attention

of the Court to the affidavit-in-reply and submit that,

true it is that, a communication dated 21.7.2018 was

issued by the University, he would rely on para 2 of

the communication to indicate that though it was a

fact that 15% of the seats were entitled to be filled

in by the Management Quota, what the

communication indicated that the subject wise

allocation of minimum of 2 to 3 seats would be a

consideration that would be taken care of

henceforth. It was not a binding rule and, therefore,

nothing amidst has happened for the College to have

committed a defalcation so as to render the

admissions of the petitioners as cancelled.

* He would even otherwise submit that if the

College was entitled to fill in the Management Quota

of 15 seats from the chart sent on 7.8.2008 of 15

seats, what is evident that one Ms.Prachi Talati

allocated to the science subject under the

Management Quota opted out and went for masters

in science. It was under these circumstances that

only 7 students were their for science subject and 1

student in maths quota. If the petitioner of Special

Civil Application No.16404 of 2018 was next in line

in the merit and to be accommodated in place of

Ms.Prachi Talati, only 1 student who belonged to the

Scheduled Tribe category was to be accommodated

and the University would have considered as a

special case, as admittedly, even counting the

candidate the 15 seats of the Management Quota

were not acceded.

9. Having considered the submissions of the learned

counsels for the respective parties and consciously

having read the interim orders passed by this Court

on 25.10.2018 and uninfluenced by these orders

inasmuch as merely because the petitioners were

permitted to appear, in an examination, that itself

could not create and equity in their favour. However,

there are facts which indicate that in indulgence

ought to be granted to students, the petitioners, 2 in

number, who have undertaken and finished their

B.Ed. Course in June, 2020 so that their results

which have been withheld for the 1, 3 and 4th

semesters are declared and they can pursue their

academic pursuits in further for further studies.

10. The following facts warrant discretion to be

exercised in favour of the petitioners.

* On a conjoint reading of the affidavit filed by

the University initially and the additional affidavit

filed subsequently, what is evident is that though the

admission process was, as stipulated by the NCTE

Rules, 2014 to be conducted within 60 days and was

to end on 6.6.2018, admittedly, the same continued

beyond the stipulated period upto 11.8.2018.

* What is evident from the list of students sent on

7.8.2018 by the College and the second which is

annexed by the University in its affidavit-in-reply

which is dated 4.8.2018 is that the Management

Quota of 15 had not been acceded by the College.

* Reading the list of 7.8.2018, in conjunction with

the affidavit-in-reply filed by the respondent No.4, it

is evident that as per the communication dated

21.7.2018, the University had expressed its desire to

see that the Management Quota of 15 is not

accededed by the Colleges concerned and each

subject not more than 2-3 students are admitted

under that quota.

* In the facts of the case, what is evident is in the

subject of science, Ms.Prachi Talati figured above of

the petitioner of Special Civil Application No.16404

of 2018 and left the College for other higher studies.

She was the 3rd in the subject of Science. It was

under these circumstances by the letters of

20.8.2018 and September, 2018, that the College

requested the University that even according to the

letter of 21.7.2018 which was sent by the University

stipulating that in each subject not more than 2-3

students be accommodated, with Ms.Prachi Talati

having been removed from the list the 3rd subject

wise allocattee would be petitioner of Special Civil

Application No.16404 of 2018. Admittedly, this

submission was, therefore, in accordance with the

stipulation prescribed by letter of 21.7.2018. No rule

position is pointed out by the University or the

management to suggest that there was a rule and,

therefore such a rule to be strictly adhered to. What

was communicated in terms of the letter of

21.7.2018 was a mere communication requesting the

College to adhere to the maximum of 3 management

seats in a subject. That takes care of student of

Special Civil Application No.16404 of 2018 and,

therefore, her admission cannot be said to be in

excess of the Management Quota even as per the

subject wise allocation required by the

communication of the University dated 21.7.2018.

* That brings us to the candidature of Special

Civil Application No.16404 of 2018. Admittedly, she

applied in the Management Quota and reserved seat

i.e. the Scheduled Tribe category. Letters are on

record written by the management to the University

as early as in August, 2018 that as a special case,

the candidature of the petitioner of Special Civil

Application 16406 of 2018 being in a reserved

category, be considered, as it was within the

stipulated of maximum of 15 Management Quota

seats. No action was taken over a period of two

months in the exchange of communications and

repeated reminders sent by the management. The

petitioner of Special Civil Application No.16406 of

2018 came to know of her fate of her admissions

being cancelled only was she was to seat for the

semester examination, compelling them to approach

this Court and the Court passing an interim order of

25.10.2018. Albeit, aware of the fact that the interim

order would not give the petitioner of Special Civil

Application No.16406 of 2018 the benefit of an

equity in her favour, but looking to the fact that she

belongs to the Scheduled Tribe category and has

already completed her course during the pendency

of this petition in June, 2020, in the interest of

justice, it would be fit to exercise the discretion in

favour of the petitioner too, to see that the

respondent No.4 - University recognizes her

admission and her course being undertaken in the

concerned faculty of B.Ed which she has undergone

in June, 2020.

11. Accordingly, both the petitions are allowed. The

petitioners shall be treated to have undergone their

B.Ed Course with the respondent University subject

to their passing the examinations after the results

are declared as if the communication dated

17.10.2018 was not issued. The cancellation of their

admissions pursuant to the impugned

communication is quashed and set aside. The

petitioners shall be treated to have rightfully and

rightly undertaken the academic sessions of B.Ed

and the respondent University shall declare the

results of their 1, 3 and 4th semesters and issue

degree certificates of the petitioners having

undertaken the B.Ed. Courses in accordance with

law. Rule is made absolute to that extent. No order

as to costs.

12. In view of the allowing of the main m a t t e r s ,

c o n n e c t e d Civil Applications will also not survive

and hence, the same s t a n d disposed of.

13. The Registry is requested to communicate this

order through E-mail / Fax.

[ BIREN VAISHNAV, J.] *** VATSAL