Madhav Himanshu Joshi vs State Of Gujarat
2022 Latest Caselaw 7234 Guj

     C/SCA/15737/2022                                   ORDER DATED: 22/08/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 15737 of 2022
==========================================================
                          MADHAV HIMANSHU JOSHI
                                  Versus
                        STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
AADITYA D BHATT(8580) for the Petitioner(s) No. 1
CHANDNI S JOSHI(9490) for the Petitioner(s) No. 1
MR KM ANTANI, AGP for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

                                Date : 22/08/2022

                                 ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. We have heard Shri Aaditya Bhatt, learned counsel

appearing for petitioner and Mr. K.M. Antani, learned Assistant

Government Pleader, appearing for State on advance notice.

2. Mr. Aaditya Bhatt, learned counsel appearing for

petitioner, after arguing the matter for some time, would submit

that petitioner would not press his prayers as specified in

paragraphs 7(A) to 7(B) and he would be satisfied if a direction

is issued to the respondents to consider comprehensive

representation which petitioner proposes to submit to

respondents and for passing orders thereon within a time frame.

C/SCA/15737/2022 ORDER DATED: 22/08/2022

3. Father of the petitioner is carrying out business at Ambaji,

District Banaskantha, Gujarat State by running a medical shop

and on account there being no school providing CBSE education

in Ambaji, petitioner is said to have got admitted to 10 th

standard to a school located outside State of Gujarat, namely to

a school situated in Abu Road, District Sirohi (Rajasthan).

Petitioner on completion of his 10 th standard is said to have

shifted to Gujarat and studied for two years at Gujarat in

standard 11 and 12 in the school known as St. Ann's School,

situated at Ahmedabad, which is affiliated to Central Board of

Secondary Education.

4. Petitioner thereafter has appeared for the National

Eligibility-cum- Entrance Test, All India Pre-Medical Test 2020-

21 (for short, NEET). However, petitioner fell short of marks to

fall within the merit list. Hence, he did not get admission in

medical college for the academic year 2020-21.

5. Brother of petitioner was said to be suffering from

Carcinoma- cancer and petitioner as a stem cell donor had

offered his cells to his brother which eventually is said to have

C/SCA/15737/2022 ORDER DATED: 22/08/2022

saved the life of his brother and on account of said incident,

therapeutic implications are said to have arisen and as such,

petitioner is said to have not concentrated on studies during the

academic year 2020-21, which resulted in not obtaining

requisite marks for being eligible to be admitted to medical

course within the merit list.

6. For the academic year 2021-22, petitioner is said to have

obtained All India rank of 157012, applied for UG Medical merit

list and was not successful in securing the medical seat.

7. Petitioner is said to have appeared for examination for the

academic year 2022-23 and apprehending that his claim for

allotment of a seat in one of the medical colleges in the State of

Gujarat would not be considered on account of the mandatory

requirement of Rule 4(3) of the Gujarat Professional Medical

Educational Courses (Regulation of Admission in Under-

Graduate Courses) Rules, which stipulates that candidates who

have not passed out 10th standard from a school situated in

Gujarat State would become ineligible for getting admission for

the academic year 2022-23 and forcing his request being turned

C/SCA/15737/2022 ORDER DATED: 22/08/2022

down, petitioner is before this Court seeking for declaration of

Rule 4(3) as ultra vires and has sought for said Rule being

quashed.

8. It is the contention of Mr. Bhatt, learned counsel

appearing for the petitioner that said Rule which was in

existence during the academic year 2018-19 and 2019-20 had

been relaxed by the appropriate Government taking into

consideration the observations made by this Court in earlier

orders passed by this Court in the case of Ishika Satyajit Das Vs.

State of Gujarat passed on 6.11.2020 in Letters Patent Appeal

No.799 of 2020 and as such he has prayed for a direction being

issued to the State to reconsider the matter from the

perspective of observations made by the Coordinate Bench in

the said case by taking into consideration the predicament

situation in which petitioner was placed, which perforced the

petitioner from utilizing relaxation period as he was attending to

his brother who was suffering from cancer. Hence, he submits

that State is required to evolve a policy for seeing such

circumstances and relax Rule 4(3), which prohibits the

candidates who have not studied Class-10 in the State of

C/SCA/15737/2022 ORDER DATED: 22/08/2022

Gujarat, to be entitled to apply for allotment of a medical seat in

the medical college situated in State of Gujarat.

9. Per contra, learned Assistant Government Pleader

appearing for the State would draw attention of this Court to

the order dated 31.1.2022 passed in Special Civil Application

No.1831 of 2022, where-under similar request/ prayers came to

be considered and rejected, to buttress his argument that

present petition has to follow similar fate. Hence, he prays for

dismissal of the petition.

10. Having heard the learned advocates appearing for the

parties and on perusal of the records, we notice that while

dismissing Special Civil Application No.1831 of 2022 and

connected matters on 31.1.2022, where-under contentions

similar and identical contentions the one raised in the present

petition came to be urged, adjudicated and held after

extensively hearing the learned advocates appearing for the

parties and also referring to the earlier judgments which have

been relied upon by Mr. Bhatt in the present petition, by opining

thus:

C/SCA/15737/2022 ORDER DATED: 22/08/2022

18. Thus, if amended rule is reckoned from the academic year, it would relate back to the year 2017- 18 and it is for this precise reason, the learned Government Pleader has rightly contended that State has extended the exemption for the last time for the academic year 2020-21. Hence, the contention of petitioners that such exemption should be extended for further years namely till they complete 25 years cannot be accepted.

19. As such, the contention raised by the learned advocates appearing for the parties that Rule 4(3)(ii) is to be struck down as ultra vires of the Constitution requires to be considered for the purposes of outright rejection and we do so accordingly.

20. Learned advocates appearing for petitioners have also contended that on account of the candidates who had appeared for the SSC Examination in the year 2017 prior to 23.06.2017 being deprived of the earlier existing Rules namely the benefit flowing prior to amendment was found to be defective by the appropriate government itself and as such, it had issued the exemption thrice namely for the academic year 2018-19, 2019-20 and 2020-21 and it requires to be extended till the students who had appeared in the SSC Examination in the academic year 2016-17 upto the age of 25 years inasmuch as the rules governing admission to undergraduate medical course enables them to seek for admission till the age of 25 years, is an argument which requires to be considered for the purposes of outright rejection. The purpose and intent with which the 2017 Rules came to be amended is to ensure that candidates who have passed both the 10th Standard Examination as well as 12th Standard Examination in the State of Gujarat are not being deprived of a medical seat in the medical colleges established in the State of Gujarat and to deny the said benefit to students who have gone out of the State for studying 10th Standard or 12th Standard as the case may be. Thus, State having noticed that candidates who had got admitted prior to the amendment of the Rules came into force should not be deprived from seeking admission to the undergraduate medical course since by that time they had already joined the 10th Standard course, rightly extended the benefit of exemption for the period of 3 years that is upto 2020-21 and it cannot be gainsaid by the candidates that till they attain the age of 25 years, they should be extended the benefit as they would be eligible to seek for admission to undergraduate course upto the age of 25 years. Insofar as the State of Gujarat is concerned, Rules2017 prescribe or

C/SCA/15737/2022 ORDER DATED: 22/08/2022

clearly mandate that such of the students who have passed the examination of 10th Standard and 12th Standard would only be eligible which is intra vires of the Constitution and the benefit of exemption notifications being extended for 3 years has reasonable nexus to the object of the Act as well as Rules-2017 which is just and proper and as such, the claim of the petitioners cannot be accepted. The issue relating to competence to legislate not being an issue in these writ petitions, we do not propose to go into said aspect and as such the contention raised by petitioners stands rejected. It would not be out of context to refer before we conclude our decision that petitioners/applicants in Special Civil Application No.1609 of 2022 and Special Civil Application No.1831 of 2022 who were though not eligible to secure admission by virtue of Rules-2017, yet got the benefit of exemption notification issued for the academic year 2020-21 and they attempted to seek admission to UG - Medical Course in the academic year 2020-21 and were unsuccessful, namely petitioner/applicant in Special Civil Application No.1609 of 2022 had secured a Medical Seat in State of Gujarat under management quota but did not get admitted for the reason of financial difficulties. Whereas applicant/petitioner in Special Civil Application No.1831 of 2022 did not secure requisite ranking to secure admission to UG - Medical Course though appeared for entrance examination.

11. On this short ground, namely that issue relating to

extending the relaxation to the rigour of Rule 4(3) of the Rules

for present academic year also cannot be acceded to and as

such, for reasons indicated by us in aforesaid order dated

31.1.2022 passed in Special Civil Application No.1831 of 2022,

prayer sought for in the present petition deserves to be rejected

and accordingly, it stands REJECTED.

12. Though Mr. Aaditya D. Bhatt, learned counsel, has made

C/SCA/15737/2022 ORDER DATED: 22/08/2022

valiant attempt to contend that extant policy would prohibit

candidates who have not studied / passed 10 th standard in State

of Gujarat from seeking allotment of a seat for under-graduate

medical courses in the State of Gujarat, requires to be re-looked

into by the State, he would fairly admit that decision with

regard to evolving policy would be in the domain of the State.

As such, we are of the view that it would be open to the

petitioner to approach appropriate Government, if so advised,

by submitting a representation to evolve a policy in this regard

and we have no hesitation in the event of such representation

being submitted to the Government, same would be examined

by appropriate Government in accordance with law.

13. We make it expressly clear that we have not expressed any

opinion on merits of the claim and with regard to ultimate

decision that would be taken by the State and it is open for the

State to take such decision as it deems fit.

Sd/-

(ARAVIND KUMAR,CJ)

Sd/-

(ASHUTOSH J. SHASTRI, J) OMKAR