Gujarat High Court
Saumil Hetalkumar Shah vs State Of Gujarat on 4 October, 2022
Bench: Ashutosh J. Shastri
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19057 of 2022
With R
R/SPECIAL CIVIL APPLICATION NO. 19059 of 2022
=============================================
SAUMIL HETALKUMAR SHAH
Versus
STATE OF GUJARAT
=============================================
Appearance:
MR ASIM PANDYA, SENIOR ADVOCATE WITH MR SHYAM M
SHAH(11348) for the Petitioner(s) No. 1,2,3
MS MANISHA LAVKUMAR, GOVERNMENT PLEADER for the
MR. KM ANTANI(6547), AGP for the Respondent(s) No. 2
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR
and
HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI
Date : 04/10/2022
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)
1. Both these petitions are filed under Article 226
of the Constitution of India challenging the validity of
eligibility criteria prescribed for admission to MD/MS/
Diploma/CPS and MDS courses for the academic year
2022 - 2023 uploaded on the Website on 15.09.2022 at
2.15 p.m.
2. Since the challenge laid in both these petitions
are one and the same, by consent of learned advocates
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
appearing for both, these petitions have been taken up
together for hearing by treating Special Civil Application
No.19057 of 2022 as lead matter.
3. The precise prayers made in the petition are
reproduced hereunder from the lead matter:-
"7.A. To pass appropriate direction, order
or writ, declaring that Eligibility Criteria (no.
2) for admission in MD/MS/Diploma/CPS &
MDS Courses for the Academic year 2022 -
2023, as uploaded on website (www.medadm
qujarat.org) of Admission Committee for
Professional Post Graduate Medical Course
(ACPPGMEC) - respondent no.2 on
15.09.2022 at 2.15 p.m. (at Annexure
P1/Pg.18) is ultra vires to the The Gujarat
Professional Medical Educational Colleges or
Institutions (Regulation of Admission and
Fixation of Fees) Act, 2007 and Rules framed
thereunder;
(7AA). To pass appropriate direction, Order
or Writ, declaring that the Rule 4(2) Gujarat
Professional Post - Graduate Medical
Educational Courses (Regulation of
Admission) (Amendment) Rules, 2022 (At
Annexure - P7) is unconstitutional and is
ultra vires to the The Gujarat Professional
Medical Educational Colleges or Institutions
(Regulation of Admission and Fixation of
Fees) Act, and the Constitution of India; (As
per the order dated 26.09.2022)
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
B. To pass appropriate direction, order or
writ quashing and setting aside Eligibility
Criteria (no. 2) for admission in
MD/MS/Diploma/CPS & MDS Courses for the
Academic year 2022 - 2023, as uploaded on
website (www.medadmqujarat.org) of
Admission Committee for Professional Post
Graduate Medical Course (ACPPGMEC) -
respondent no.2 on 15.09.2022 at 2.15 p.m.
(at Annexure P1/Pg.18).
(BB) To pass appropriate direction, order
or writ quashing and setting aside the Rule
4(2) of the Gujarat Professional Post-
Graduate Medical Education Courses
(Regulation of Admission) (Amendment)
Rules, 2022 (At Annexure P-7) (As per the
order dated 26.09.2022)
C. Pending admission and final hearing of
the present petition, be pleased to stay the
Eligibility Criteria (no. 2) for admission in
MD/MS/Diploma/CPS & MDS Courses for the
Academic year 2022 - 2023, as uploaded on
website (www.medadmgujarat.org) of
Admission Committee for Professional Post
Graduate Medical Course (ACPPGMEC) -
respondent no.2 on 15.09.2022 at 2.15 p.m.
(at Annexure P1/Pg.18).
(CC) Pending admission and final hearing
of the present petition, be pleased to stay the
effect and implementation of Rule 4 (2) of the
of the Gujarat Professional Post-Graduate
Medical Education Courses (Regulation of
Admission) (Amendment) Rules, 2022 (At
Annexure P-7) (As per the order dated
26.09.2022)
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
D. Pending admission and final hearing
of the present petition, be pleased to restrain
the respondent no.2 from considering the
Registration Forms of the candidates who
have passed their M.B.B.S. and B.D.S.
courses from Universities other than those
enacted under the laws of State of Gujarat
and situated in Gujarat.
E. Be pleased to pass any such other and
further order which this Hon'ble Court may
deem fit and appropriate in the interest of
justice and equity."
4. The brief background of the facts which has given
rise to these petitions are :
Petitioners are the candidates seeking admission
to Postgraduate Medical Course after qualifying in NEET
PG Exam, 2022. The respondent No.2 issued an
advertisement for online registration for admission in
Postgraduate MD/MS/Diploma/CPS & MDS courses for
academic year 2022-23. Online registration opened up on
15.09.2022 till 21.09.2022 and the document verification
and submission of photocopies at the Help Center to be
placed from 16.09.2022 till 22.09.2022. In response to
this advertisement, petitioners are said to have logged
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
their candidature on 15.09.2022 into the website of
respondent No.2 for the purpose of Pin for registration of
admission and on the main registration page itself,
petitioners were shocked and surprised to see an update
regarding the impugned eligibility criteria with the date
and time of uploading being 15.09.2022 at 2.15 p.m. as
indicated on the web page.
5. It is the case of the petitioners that petitioners
themselves also checked notifications on the website to
verify as to whether any amendment had taken place or
not, but from the notifications on the website, it appears
that the last amendment to the Rules was reflecting as
08.03.2019 and found that prevalent Gujarat Professional
Post-Graduate Medical Educational Course (Regulation of
Admission) Rules, 2018 dated 13.03.2018 were also
available on the notification page of said website. The
respondent No.2, according to the petitioners, released a
list of FAQs whereby the impugned eligibility criteria is
explained at point No.3. It is on account of this sudden
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
change having been found on 19.09.2022, a collective
body of students including the present petitioners made a
representation to respondent No.2 seeking the
circumstances regarding sudden change in the alleged
eligibility criteria and sought an explanation as well. But
despite this representation and knowing that medical
admissions are to be undertaken in a time scheduled
manner, no response was received from the authority in
respect of representation, which has constrained the
petitioners to present petition under Article 226 of the
Constitution of India.
6. The challenge in the petition is with regard to the
following eligibility criteria (no.2) as indicated on notice
put up on the website of respondent No.2. Same reads as
under:
"On 19.09.2022, the Gujarat Professional
Post - Graduate Medical Educational Course
(Regulation of Admission) Rules, 2018 came
to be amended vide amendment being
Gujarat Professional Post - Graduate Medical
Educational Courses (Regulation of
Admission) (Amendment) Rules, 2022
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
whereby inter alia the Rule 4(2) OF THE
SAID Rules was substituted by the Impugned
Eligibility Criteria. A Copy of the
amendment dated 19.09.2022 in the Gujarat
Professional Post Graduate Medical
Educational Course (Regulation of
Admission) Rules, 2018 is annexed hereto
and marked as Annexure - P7. (As per the
order dated 26.09.2022)"
7. In view of aforesaid situation, apprehending
petitioners are not likely to get any urgent respite or
response from the authority, they have approached this
court contending rights of the petitioners is at stake.
8. The petitioners have laid the challenge briefly on
the ground that there is no intelligible differentia and
rationale sought to be achieved by keeping both rules in
force; the action of respondent No.2 in enacting
impugned eligibility criteria is manifestly arbitrary and by
pointing out the circumstances in the petition, the
aforesaid reliefs are sought.
9. In respect of Special Civil Application No.19059 of
2022 also the very same challenge is made and grievance
voiced in this petition is similar to the one urged in
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Special Civil Application No.19057 of 2022. Hence,
without burdening the present order with facts pleaded,
this petition is also being dealt with by taking up the lead
matter.
10. Looking to the urgency and importance of the
challenge, we permitted the amendment which has been
sought for by the learned senior counsel Mr. Asim Pandya
appearing for the petitioners and issued notice calling
upon the authorities to submit their reply, if any, in
bringing the change in eligibility criteria and on account
of extreme urgency being expressed by the learned senior
counsel appearing for the petitioners that seat allotment
stage has already commenced, we passed the following
order on 27.09.2022 and it reads :
"We have heard the arguments of Mr. Asim
Pandya, learned senior counsel appearing for
the petitioners.
Learned AGP Seeks time on the ground that
the learned Government Pleader would
address the arguments. In view of the
urgency expressed by the counsel for the
petitioners and the seat allotment having
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
already commenced, we make it clear that
any steps taken by the respondents would be
subject to the result of the special civil
application and this shall be notified to all
the students who would be participating in
the allotment process either individually or
collectively, and an affidavit for having
intimated or taken steps for having intimated
shall be filed by the Secretary, Admission
Committee by tomorrow.
Relist the matters tomorrow, i.e. on
28.09.2022 at 4.00 p.m."
11. Later on, final hearing has taken place of the
present petitions in which Mr.Asim Pandya, learned
senior counsel has taken lead to submit on behalf of the
petitioners; whereas on behalf of concerned respondent -
authority Ms.Manisha Lavkumar, learned Government
Pleader has advanced her arguments; with consent and
request of both the learned advocates, we have taken up
the petitions for final disposal.
12. Mr.Asim Pandya, learned Senior Advocate
appearing for the petitioners has vehemently contended
that process of admission to Post Graduate Course for the
academic year 2022-23 has already begun by virtue of
steps taken on 15.09.2022 and the Admission Committee
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
has published an advertisement for online registration to
the Post Graduate course i.e. for Professional Post
Graduate Medical Courses. By referring to the Rules
prevailing as on 15.09.2022, Mr. Pandya, learned Senior
Advocate has referred to eligibility criteria stipulated
under Notification dated 13.03.2018 by virtue of which,
Rules have been framed, known as "Gujarat Professional
Post Graduate Medical Educational Courses (Regulation
of Admission) Rules, 2018. A reference is made to the
eligibility clause contained under Rule 4. By referring to
sub-rule (2) of Rule 4, it has been brought to our notice
that same prescribes that a candidate must have
completed recognized MBBS or BDS course from the
University established under any law of Government of
Gujarat and situated in State of Gujarat and completed
compulsory rotating internship on or before 31 st March of
academic year of admission and has contended this Rule
as on date of publication of admission schedule on
15.09.2022 was prevailing and as such State quota
deserves to be maintained accordingly.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
13. Mr. Pandya, learned Senior Advocate has pointed
out that during the midst of such admission process
which had been commenced, a Notification came to be
issued on 19.09.2022 (Annexure-P) surprisingly, whereby
the effect of aforementioned Rule 4(2) has been diluted to
the detriment of the students prosecuting their studies in
the State of Gujarat and aspiring for admissions in Post
Graduate Medical Courses. He would submit by this
Notification dated 19.09.2022 sub-rule (2) of Rule 4 has
been substituted and contending same adversely affect
the students who are inclined to be considered under the
State quota. Hence, he has prayed for quashing of same
or alternatively to hold that same would be prospective in
nature.
14. It has been pointed said change and substitution
has taken place by virtue of Notification dated 19.09.2022
which came to be uploaded in the evening of 19.09.2022
and it has got adverse effect on the State quota and it
would not only dilute the State quota, but curtail the
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
rights of petitioners to substantial extent.
15. Mr. Pandya, learned Senior Advocate has
submitted that merit-list is to be prepared on the basis of
this amended rule and to the reasonable knowledge of
petitioners, approximately around 450 students will come
in the State quota in view of this change which has been
effected in the midst of the process of admission it would
jeopardise their rights. Hence, in view of the law laid
down by catena of decisions, such change cannot be
given in the midst of admission process.
16. Learned Senior Advocate has raised a contention
that settled position of law is that in the midst of
recruitment process, no change can be effected in
eligibility criteria and the Rules which are already
prevailing as on date of the publication would be made
applicable. Hence, Notification dated 19.09.2022 at the
best can be applied for the next academic year.
17. Mr. Pandya, learned Senior Advocate has further
contended that apart from this, a bare reading of the
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Notification itself makes it clear that same shall come into
force from the date of its publication in official gazette
and to the reasonable knowledge of petitioners as on
date, no such publication in the official gazette is made.
Hence, Mr. Pandya has submitted that effect cannot be
given to the present eligibility criteria which is tried to be
altered in the midst of admission process. By referring to
Section 20 of Parent Act, under which Rules are being
framed namely, the Gujarat Professional Medical
Educational Colleges or Institutions (Regulation of
Admission and Fixation of Fees) Act, 2007 (hereinafter
referred to as "2007 Act"), he would contend that no
doubt power is vested with the authority to frame Rules,
but the mandate of statute will have to be followed by the
Rule making authority before permitting any such change
in the Rules. He has drawn the attention of the Court to
sub-section (2) and (3) of Section 20 of 2007 Act to
substantiate his contention and to contend that same has
not been followed in the instant case.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
18. By referring to the aforesaid statutory provision,
Mr.Pandya, learned Senior Advocate has vehemently
contended that no such procedure has been followed till
date by the authority and straightway the process of
admission has been commenced on the basis of this
amended eligibility criteria. He would submit that
present merit-list is prepared, but same has not been
operative till date and he prays for protection being
extended to the petitioners for ensuring that no
irreversible situation would take place in the admission
process which would affect the career of students.
19. Mr. Pandya, learned Senior Advocate has further
submitted that requirement of laying down the Rules
before the State Legislature is not an empty formality and
it has to be done within the stipulated period as
contemplated under the statutory provisions, namely
within 30 days, and as such, before expiration of 30 days
also, no effect can be given to such Rules by which the
existing Rules are being amended and as such, he has
contended when law requires a particular thing to be
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
done in a particular manner, it has to be done in the very
same manner only. In support of this proposition, learned
Senior Advocate Mr. Pandya has referred to and relied
upon the following decisions:
(1) In the case of Neil Nunes v. Union of India
reported in (2022) 4 SCC 1 (paragraph 56, 57,
58 and 59).
(2) In the case of Dipak Babaria & Ors. v. State
of Gujarat reported in AIR 2017 SC 1792
(paragraph 53).
(3) In the case of Quarry Owners Association v.
State of Bihar reported in AIR 2000 SC 2870
(paragraph 49).
(4) In the case of Union of India v. National
Hydroelectric Power Corporation Ltd.,
rendered in Appeal (Civil)No. 2885 of 2000
decided on 25.07.2001.
20. By referring to the aforesaid decisions, learned
Senior Advocate Mr. Pandya has pointed out that in the
midst of admission process, existing eligibility criteria
could not have been altered to the detriment of large
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
number of students who have planned out their study and
resources so as to opt for State quota as they belong to
the State of Gujarat. By introducing this amendment, not
only there will be adverse effect on students who were
aspiring to secure seat in Post Graduate / Diploma course
under State quota but also such quota will recede to
background or would be diluted to a substantial extent
and as such, this action is impermissible and same is not
in consonance with the well sounded proposition of law
and no effect can be given to the Notification dated
19.09.2022 insofar as it relates to eligibility criteria
prescribed under 2018 Rules.
21. Mr. Pandya, learned Senior Advocate has further
submitted that this action of introducing the amendment
in the midst of admission process if permitted, then it
would be a classic example of manifest arbitrariness and
it would result in hostile discrimination and thereby
students who have studied outside the State of Gujarat or
even outside Country would be permitted to enter into
admission process under the State quota by this process
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
and same would prejudice the entire structure of State
quota. It has been further contended that these students
if allowed to participate by virtue of this amendment then
such students will have double benefit namely the benefit
of participating in other State's quota as well as in the
present admission process and as such, in the interest of
justice, the State quota may not be diluted in any form.
According to Mr. Pandya, learned Senior Advocate the
intention of the Legislature all throughout has been to
maintain the State quota and if amended rule is allowed
to stand it would frustrate the same by virtue of
introduction of change in the eligibility criteria and that
too, in the midst of admission process once it has already
begun and that too without following the procedure
established by law and as such, the action of State is
manifestly unjust, arbitrary, discriminatory and
impermissible in view of the settled position of law and as
such, petitioners are entitled to the relief as prayed for in
the petition. Hence, he has prayed for petition being
allowed.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
22. Learned Government Pleader Ms.Manisha
Lavkumar Shah appearing for respondent authority has
vehemently opposed the petitions and has submitted the
List of Dates & Events along with short affidavit-in-reply
on behalf of respondent No.2 and would contend that
undergoing process of admission is subject to outcome of
these petitions. She would also contend that State
Government received representations from students
espousing their grievance that though they are born in
Gujarat and/ or domicile of Gujarat, the existing rule
disabled them from seeking admission to post-graduate
studies from State of Gujarat, merely because they have
undergone their under-graduate studies from institutions
outside State of Gujarat/ India and as such with a view to
bring meritorious students and talent in the field of
medicine and who are from Gujarat, amendment has been
brought about with a laudable object. It has been
submitted that by virtue of amending the rule, State of
Gujarat has ensured that candidates having talent should
undergo post-graduate studies in M.D./ M.S/ Diploma/
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
CTS and MDS course and by virtue of this, State has
ensured that 25% institutional quota prescribed under
Rule 5A(2) has remained intact, whilst ensuring 313 seats
out of 1367 seats is available under State quota and as
such there may not be any prejudice to the students to
secure admissions.
23. It has been submitted that rule has specifically
put a cap to see that schools in which they have
undergone studies are located in State of Gujarat; they
must have born in Gujarat State/ be domicile of Gujarat
State and as such with a view to see that students
belonging to State of Gujarat can have fair chance to
participate in the admission process, amendment has
been brought about.
24. It has been vehemently contended that an
impression is tried to be created as if without undergoing
any process, amendment has been brought in. On the
contrary, amendment has been reflected on the very first
day of beginning of process of admission, as can be seen
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
from the notice published on the website on 15.09.2022,
at 2.15 p.m. whereunder the eligibility criteria, as
reflected in the amended rule, has been published to the
notice of all aspiring candidates and no change has been
brought in the midst of admission process. It has been
further contended that State is quite conscious about the
process which has to undergo while bringing such
amendment and as such, every step has been taken to see
that formality of bringing an amendment is complied
with. It has been further submitted that from very first
day of process of admission, all aspiring candidates were
informed about eligibility criteria and in addition to it, on
19.9.2022 itself, request to publish in Extraordinary
Government Gazette has been forwarded to the
Government press for publication and also sending 50
copies to the concerned department and further it has
been brought to our notice that inward entry which has
been made with regard to such forwarding which
indicates that process has commenced. Hence, it does not
lie in the mouth of petitioners to contend that State has
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
not undertaken due process or rules of the game has
been changed in the midst of process. On the contrary,
every candidate was aware about this new eligibility
criteria which is not changing the basic structure, but it is
merely supplemental to the object sought to be achieved.
As such, there is no irregularity of any nature which can
be agitated by the petitioners. It has been further
submitted that even petitioners are quite aware of the
eligibility criteria which was published on the web portal
and all the students have filled in their forms and all
candidates have loged-in keeping in view the eligibility
criteria fixed thereunder and as such they cannot now
contend that behind their back, State has brought the
amendment. Publication of notification process has
already been set in motion, the moment notification dated
19.9.2022 was published and as such there is no
irregularity of any nature and hence challenge must fail.
25. Learned Government Pleader has further submitted
that rules of business require the process to be
undergone for its publication in Official Gazette and there
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is no delay on the part of State authority in undertaking
such process, as has been indicated in the List of Dates
and Events with Annexures and as such, simply because
same has not been published on that very day in the
Official Gazette, rules cannot be said to be invalid or
inoperative. It is a settled position of law according to
learned Government Pleader that eligibility should be
considered as on the date when process began and
15.09.2022 is the date when all the prospective
candidates have been intimated about the eligibility
criteria and at the best, notification could have been in
fact from 19.09.2022 and as such, it is contended that
contention which has been raised that there has been
change in the rules of the game in the midst of admission
process is absolutely far from truth.
26. It has been further contended that by virtue of
this amendment on the eligibility criteria impugned in the
petition, State is not ousting any candidate from State
quota. Nor State quota is given go-bye in any form. It is
merely enlarging the scope of eligibility criteria of
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meritorious students and as such, it merely supplements
the main eligibility criteria fixed and it cannot be said
that State has committed any illegality. In view of the
settled position of law propounded by Hon'ble the Apex
Court, the process of medical admission is to be
concluded in a specific time schedule which is of great
importance, she prays for rejection of these Special Civil
Applications by contending interest of students from
State of Gujarat is protected and students who belong to
the State and are having eligibility would benefit by this
amended rule as well.
27. Learned Government Pleader has further
submitted that petitioners have raised a too technical
issue or plea just to deprive the eligible students to
participate in the admission process and have an aim to
complicate and create hurdle in the process of admission.
Learned Government Pleader has further submitted that
in the immediate next admission assembly session, rules
will be placed in view of Section 20 of the main Act, but
simply because same has not been laid before the State
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
legislature, such amendment cannot be said to be invalid
or illegal in any form.
28. Learned Government Pleader would substantiate
her contentions and she would rely upon the decision
delivered by Hon'ble Apex Court reported in the case of
Jan Mohammad Noor Mohammad Bagban Vs. State
of Gujarat and Another, reported in 1966 (1) SCR 505
and by drawing attention to paragraphs 5 and 18, a
contention is raised that failure to place the rule before
the House of Legislature does not affect validity of such
rules and as such, she has submitted that no irregularity
of any nature whatsoever has been committed and has
informed the Court that said requirement would be
observed scrupulously in the very next session of the
assembly and she submits for placing all reasonable steps
that have already been taken.
29. By referring to the expressions found in sub-rule
(2) of Rule 4, a submission is made that solely with a view
to protect the interest of students belonging to State of
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Gujarat and more meritorious candidates can participate
in the admission process this amendment is brought
about and as such, when this is the benevolent object of
the new rule which takes care of merit in medical
admission, there is hardly any justifiable reason for
petitioners to challenge the same. Said challenge is too
technical and looking to supplemental effect of eligibility
criteria, it is not justifiable on the part of the petitioners
to assail the same.
30. It has been also contended that admission process
has been scheduled and framed in such a manner that if
delay were to occur, same will seriously prejudice large
section of aspiring students who are inclined to prosecute
their post-graduate studies. As a result of this, petitions
may not be entertained and same be dismissed.
31. In reply, learned Senior Advocate Mr. Asim Pandya
appearing for petitioners has submitted that there is no
grievance of petitioners with regard to competition which
is being faced by large number of students from amongst
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
eligible candidates, but it is only with a view to see that
no illegality is perpetuated, challenge is laid to the Rules
which has been introduced after admission process has
commenced. Mr.Pandya has contended that even before
publication of the Notification, an amendment has been
brought in and process of admission has been begun on
the basis of such amended rule, which has not seen the
light of the day, meaning thereby that before publication
in the Official Gazette, process has been begun in
advance under such altered eligibility criteria. It has been
further submitted that all students have been made to
believe that process of admission will be as per the rules
prevailing, i.e. Rule 4 of Rules of 2018. By referring to the
advertisement which has been published by Admission
Committee in the newspaper whereunder it has also been
clearly indicated that "candidates who are qualified in
NIT PG 2022 and are eligible as per respective council
and admission rules of Gujarat State can apply as per the
following schedule", meaning thereby, even said
advertisement which has been published does not
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
indicate that rules of 19.09.2022 are to be operated. In
fact, not only State authority has not observed the
mandate of Statute by observing and taking steps as
contemplated under Section 20 of the parent Act but even
effect of this amended rule is also self-explanatory since it
has now been published in Extraordinary Gazette on
27.09.2022. He would contend that sub-rule (2) of Rule 1
of this notification dated 19.09.2022, published on
27.09.2022, clearly indicate that Rules of 2022 would
come into force from the date of its publication in the
Official Gazette and as such, when this is apparently
made clear, the process of admission which is sought to
be undertaken under amended rule is absolutely invalid,
void, non est in the eye of law and as such, by no stretch
of imagination, stand taken by authority can be justified.
As such, learned senior advocate Mr. Pandya has
reiterated his submission that effect of amended rule
cannot be given effect to the admission process which has
already been begun after the existing rules viz.
unamended rules.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
32. Learned senior advocate Mr. Asim Pandya has
reiterated that students who have prosecuted their
studies outside State of Gujarat will be benefited by
virtue of this amendment and he would contend that a
candidate from Jharkhand who is aspiring to opt for
admission in the State of Gujarat, will have benefit of
both States, namely in Gujarat State as well as in State of
Jharkhand, and by referring to Rules of 2021 brought in
on 11.01.2022, a contention is raised that double benefit
would be made available to such kind of students which
ultimately affect the rights of students from the State of
Gujarat. Mr. Pandya has also drawn the attention of this
Court to the decision of Hon'ble the Apex Court in the
case of Harla Vs. State of Rajasthan reported in 1951
(0) AIJEL SC 10825 to contend that necessity of
publication in the Official Gazette has its own effect and
force and when law requires it to be published, same
cannot be diluted in any form and in the instant case, not
only the parent Act is prescribing a specific procedure to
be followed, but even notification dated 19.09.2022 itself
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
is indicating that effect of this rule will be from the date
of publication in the official gazette and undisputedly,
gazette publication by competent authority has been
made on 27.09.2022 and as such, on the disputed position
itself, process which has been commenced from
15.09.20222 till 27.09.2022 is non est, illegal, void and
cannot be sustained. Hence, the relief prayed for
deserves to be granted in the interest of justice.
33. Two other decisions have also been brought to
the notice, which are (2006) 9 SCC 507 and 1986
Suppl. SCC 543 and by referring to the same, by both
the sides, a request is made to take suitable decision so
as to see that students may not be put to any situation
whereby their career prospects may become uncertain
and as such, it is requested to dispose of the petitions at
the earliest looking to the time schedule which is to be
maintained by the authorities in respect of this process of
admission. No other submissions have been made.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
FINDINGS AND CONCLUSION :
34. For admission to MD/MS/Diploma/CPS and MDS
course for the Academic Year 2022-23 through Admission
Committee for Professional Post Graduate Medical
Courses - respondent No.2, a notification came to be
published in the website on 15.09.2022 whereunder the
eligibility criterion has been fixed. Contending, inter alia,
that said notification contains the eligibility criteria
contrary to what is prescribed under the Gujarat
Professional Post Graduate Medical Educational Courses
(Regulation of Admission) Rules, 2018 ('Rules 2018' for
short) and subsequent amendment brought to the
eligibility criteria fixed under Rules 2018 viz. Rule 4
cannot be made applicable to the admission of the
Academic Year 2022-23 on the ground that rules are
prospective in nature viz. it would come into force from
the date of its publication in the official gazette, it has
been questioned in the present Special Civil Application.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
35. Section 20 of Act 2007 reads as under :
"20. Power of State Government to make
rules.
(1) The State Government may, by notification
in the Official Gazette make rules for carrying
out the purposes of this Act.
(2) All rules made under this section shall be
laid for not less than thirty days before the
State legislature as soon as possible after they
are made and shall be subject to the rescission
by the State Legislature or to such modification
as the State Legislature may make during the
session in which they are so laid or the session
immediately following.
(3) Any rescission or modification so made by
the State Legislature shall be published in the
Official Gazette, and shall thereupon take
effect."
36. By virtue of the power vested under sub-section (1)
of Section 20, the State Government has made Rules,
2018 with effect from 13.03.2018. Same came to be
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
amended by issuance of impugned Notification dated
19.09.2022. On the same day, it was forwarded to the
Manager, Government Press for its publication in the
official Gazette and acknowledgment by the Government
press (Annexure-4) placed on record by Government
Pleader along with list of dates and events would
evidence this fact. It was published on 27.09.2022 as
could be seen from Annexure-5. The controversy in these
applications revolves around Rule 4 which prescribes the
eligibility criteria for admission to Post Graduate Medical
course. The said rule as then existing under the 2018
Rules, and as amended with reference to the notice
published on the website which has been the bone of
contention requires to be noticed. In this background, we
deem it proper and necessary to extract in the following
tabular column the qualification as prescribed under
notification published in the website / portal of
respondent No.2, the qualification as prescribed under
Rule 4 of Rules 2018 and the Amended Rules:
As per Notification Existing Rules Amended
4. Eligibility for Admission:-(1) The candidate must have completed the 2(a) The ca
recognized MBBS or BDS course from the recogn
1. ... ... ... university established under any law of from unive
Government of Gujarat and situated in State law of the
2. The candidate must have of Gujarat.
completed the recognized (b) The ca
MBBS or BDS course from (2) The candidate must have completed the the recogn
University established under recognized MBBS or BDS course from from unive
any law of Government of university established under any law of the Parliam
Gujarat and situated in State Government of India and situated in any / Union T
of Gujarat and completed State Union territory of India / Out of India completed
compulsory rotating subject to fulfilling the Eligibility criteria of
outside of
internship on or before 31st NMC, New Delhi / Govt. of India and must criteria of
March of academic year of have passed 12th qualifying examination with India, as
admission; "B-group" or "AB-group" either from (a) have passe
Gujarat board OR (b) from central Board of with "B-g
3. ... ... ... Secondary Education / The Council of Indian from (a)
School Certificate Examination Board / The Central Bo
International School Board (International The Counc
Baccalaureate and Cambridge) / The Examinatio
National Institute of Open Schooling School
provided that school is located in the State Baccalaure
of Gujarat and must be born in Gujarat State National I
/ be the Domicile of Gujarat State. provided t
State of Gu
(3) The candidate must have completed have born
compulsory rotating internship on or before Domicile o
31st July 2022.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
37. A perusal of Rules 2018 would indicate that
candidate seeking admission to Post Graduate Course
must have completed his/her MBBS or BDS or equivalent
course from university established under any law of
Government of Gujarat and situated in State of Gujarat
and completed compulsory rotating internship on or
before31st March of academic year of admission. In fact,
the publication of the notice as web-hosted calling for
applications from the candidates for Post Graduation and
same would indicate that if such candidate has completed
the recognized MBBS or BDS course from university
established under any law of Government of India and
situated in any State Union territory of India / Out of
India subject to fulfilling the Eligibility criteria of NMC,
New Delhi / Govt. of India and have passed 12th qualifying
examination with 'B-group' or 'AB-group' either from (a)
Gujarat board OR (b) from central Board of Secondary
Education / The Council of Indian School Certificate
Examination Board / The International School Board
(International Baccalaureate and Cambridge) / The
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
National Institute of Open Schooling provided that school
is located in the State of Gujarat and must be born in
Gujarat State / be the Domicile of Gujarat State, such
candidate would become eligible to be considered or
eligible to apply for Post Graduate course. It is this
condition prescribed in the notification which is sought to
be incorporated in the rule which is being assailed as
changing the rule of the game after game has begun. If
the rule is sought to be applied by amending the same
with retrospective effect, wherein no existing right of any
person is taken away, said rule cannot be struck down.
38. The Hon'ble Apex Court in the case of Marripati
Nagaraja and others vs. Government of Andhra
Pradesh and others [(2007) 11 SCC 522], has held to
the following effect:
"14. It is now a well settled principle of law
that the rules which would be applicable for
selecting the candidates would be the one
which were prevailing at the time of the
notification. It is also equally well settled that
the State may, subject to constitutional
limitations, amend the rule with retrospective
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
effect. Rule 22-A which was applicable as on
the date of the said notification reads as under:
"Rule 22-A. Notwithstanding
anything contained in these Rules or
Special or Ad hoc Rules, (1) In the
matter of direct recruitment to posts
for which women are better suited
than men, preference shall be given
to women : (G.O.Ms. No.472, G.A.,
Dt.11.10.85) Provided that such
absolute preference to women shall
not result in total exclusion of men in
any category of posts.
(2) In the matter of direct
recruitment to posts for which
women and men are equally suited,
other things being equal, preference
shall be given to women and they
shall be selected to an extent of at
least 30% of the posts in each
category of O.C., B.C., S.C. and S.T.
quota.
(3) In the matter of direct
recruitment to posts which are
reserved exclusively for being filled
by women they shall be filled by
women only (Vide G.O.Ms. 691, G.A.
(Ser-D), Dt.22.11.1984, w.e.f.
2.1.1984)"
15. The women candidates, in terms thereof,
were, therefore, only entitled to preference. By
reason of the said notification merely, the
percentage has been increased from 30% to
331/3%. It has been given a retrospective
effect; as the existing sub-rule (2) of Rule 22-A
was substituted. By reason of the said
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Notification, no existing right of any person has
been taken away. In fact, as the selection
process was not over, the question of
applicability of the said notification would have
fallen for consideration only when a final
selection list was to be made and not prior
thereto.
16. The State, in exercise of its power
conferred upon it under the proviso appended
to Article 309 of the Constitution of India, is
entitled to make rules with retrospective effect
and retro-active operation. Ordinarily, in
absence of any rule and that too a rule which
was expressly given a retrospective effect, the
rules prevailing as on the date of the
notification are to be applied. But if some rule
has been given a retrospective effect which is
within the domain of the State, unless the same
is set aside as being unconstitutional, the
consequences flowing therefrom shall ensure.
In such an event, the applicable rule would not
be the rule which was existing but the one
which had been validly brought on the statute
book from an anterior date. The Tribunal and
the High Court, therefore, in our opinion,
committed an error in opining otherwise,
particularly when the constitutionality of the
said rule was not in question."
39. Whether the rules have retrospective effect or not
primarily depends upon the language of the rules and its
construction to ascertain the legislative intent. The
legislative intent is ascertained either by express
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
provision or by necessary implication. It depends largely
on the facts of each case having regard to the terms and
conditions set out in the advertisement and the relevant
rules. If there is right created to a candidate as per the
advertisement and such right is taken away by the
amended rule that too applied retrospective, then
necessarily it has to be held that existing rules would
prevail and the selection process ought to proceed
accordingly. However, if the right of the candidate is not
taken away and such candidate continues to be eligible
and is otherwise qualified in accordance with the
amended rule, then terms contained in the advertisement,
would not vest any right to the candidate for being
considered for selection only in accordance with the rules
as they existed as on the date of advertisement. In the
instant case, the qualification as prescribed in the
advertisement is not in dispute.
40. There is yet another fact which cannot go
unnoticed. Where the advertisement issued inviting
applications expressly states that eligibility would be as
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
per the existing rules or government orders and it
indicates the extent of reservation if any in favour of
various categories, then selection in such cases would be
in accordance with the existing rules and the government
orders. Generally, the candidate has a right to be
considered in accordance with the terms and conditions
set out in the advertisement as his right crystallizes on
the date of publication of advertisement. However, the
candidate has no absolute right to be selected. If the
rules are amended retrospectively during the pendency of
selection, in that event selection must be held in
accordance with the Amended Rules. Whether the rules
have retrospective effect or not primarily depends upon
the language of the rules and its construction. The
legislative intent is ascertained either by express
provision or by necessary implication. The Hon'ble Apex
Court in the case of Panchi Devi vs. State of Rajasthan
and others [(2009) 2 SCC 589] has held that a right or
a liability which is created for the first time, cannot be
given a retrospective effect. It has been further held:
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
"9. A delegated legislation, as is well known,
is ordinarily prospective in nature. A right or a
liability which was created for the first time,
cannot be given a retrospective effect.
Furthermore, the intention of the State in
giving a prospective effect to that rule is clear
and explicit; the amendment in Rule 22A was
also to be effective from 1.9.1982 itself. No
relief can be granted to the appellant herein on
the basis of the decision in Prabhati Devi
(supra). The said decision did not lay down the
correct law. Article 14 of the Constitution of
India has a positive concept. Equality, it is trite,
cannot be claimed in illegality. Even otherwise
the writ petition as also the review petition
have rightly not been entertained on the
ground of delay and latches on the part of the
appellant."
41. It is a well settled law that an office memorandum
or an executive order cannot have retrospective effect
unless and until the intention of the authorities to make it
as such, is revealed expressly or by necessary implication
in the office memorandum or executive order as the case
may be. For this proposition, the judgment of the Hon'ble
Apex Court in Sonia vs. Oriental Insurance Co. Ltd.
and others [(2007) 10 SCC 627] vide paragraph 11 can
be looked up. An executive order which is clarificatory in
nature could be given a retrospective operation. It may
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
not have force of law but same may come within the
purview of the well-known principle of contemporaneous
exposito. The Hon'ble Apex Court in the case of Tamil
Nadu Electricity Board and Another vs. Status
Spinning Mills Limited and Another [(2008) 7 SCC
353] has held that administrative instructions / orders
can be given retrospective effect. It is also held:
"9. The clarification issued by the State
during pendency of the appeals should have,
therefore, been considered by the High Court
in its proper perspective. If it is clarificatory in
nature, it could be given a retrospective
operation. Such a question, however, should
have been posed and answered. Furthermore,
the letter dated 1.08.1997 was issued as some
confusion arose. When a subordinate
legislation is made by the State Government, it
must be done in terms of the constitutional
provision. An executive order is also issued
keeping in view the rules and executive
business. It may not have the force of law but
the same may come within the purview of the
well-known principle of contemporaneous
exposito. Rules of executive construction are
also relevant.
42. Keeping these principles in mind when the facts on
hand are examined, it would not detain for us too long to
hold that under the Amended Rule, right of the
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
petitioners is in no way affected. They continue to possess
the right to participate in the selection process. The State
having received representations from students raising a
grievance that though they are born in the State of
Gujarat and/or being domicile of Gujarat are being
disabled from pursuing their post graduate studies from
the State of Gujarat merely because they would have
undergone undergraduate studies from the institutions
situated outside Gujarat / India. This situation prevailing
in State of Gujarat has perforced the State to publish in
the advertisement by web-hosting on the web portal of
respondent No.2 prescribing conditions for permitting a
candidate having completed recognized MBBS or BDS
course from university not only under the law of the
Government of Gujarat and situated in the State of
Gujarat but also those candidates who have completed
the recognized MBBS or BDS course from university
established under any law of the Government of India and
constituted in any State / Union Territory of India / Out of
India and subject to such candidates fulfilling the
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
eligibility criteria of fulfilling the eligibility criteria of
NMC, New Delhi / Government of India with 12 th
qualifying examination with 'B-group' or 'AB-group'
either from (a) Gujarat board OR (b) from central Board
of Secondary Education / The Council of Indian School
Certificate Examination Board / The International School
Board (International Baccalaureate and Cambridge) / The
National Institute of Open Schooling provided that school
is located in the State of Gujarat and must be born in
Gujarat State / be the Domicile of Gujarat State. This
would not only take care of petitioners' interest but also
the larger interest of the candidates who were born in
Gujarat State and who have continued to be domicile of
Gujarat and who are having the status of domicile of
Gujarat State and having passed 12th qualifying
examination in the State of Gujarat as is indicated in the
advertisement, as also the amended rule.
43. With a laudable object that candidates born in
Gujarat or being domicile of Gujarat should also be
extended the benefit of participating in the selection
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
process and exclusion of such candidates only on the
ground of they having passed the undergraduate course
from an institution outside State of Gujarat or India,
though they are born in Gujarat or domicile of Gujarat
would not only be too harsh but also would be unjustified.
The State of Gujarat has ensured that to harness the
talent of Gujarat in the field of medicine, the candidates
fulfilling the criteria prescribed under the advertisement
which is now amended or brought in tune with the
advertisement would be able to bring in the talent of
Gujarat in the field of medicine for undertaking post-
graduate studies.
44. It is also noteworthy to mention that quota
prescribed under Rule 5A(2) has remained intact whilst
assuring 313 seats of the total 1367 seats available in
State quota in the seat matrix. It would also be
noteworthy to mention that seat matrix for MD/MS/
Diploma course by applying either conditions prescribed
under the advertisement or the Amended Rules as under :
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Seat matrix for MD/MS/Diploma
[See Rule 2(i) & 5 of Rules, 2018 read with Amendment Rules,
2022]
2144 Seats - MD/MS/Diploma
(1) 532 Seats (2) 532 Seats (3) 1080 Seats
Government State Quota SFI
AIQ Government
(3.1) 835 Seats (3.2) 245 Seats
State Quota Management
(75%) Quota + NRI
(25%)
1367 Seats [2+3.1] - State Quota
(Refer Rule 5 of the Rules, 2018)
75% 25%
Govt. Quota University (Institution Quota)
1054 Seats 313 Seats
* Approximate 250 CPS Diploma Seats in addition to 1367
Seats of State Quota
45. In view of aforesaid analysis, we are of the
considered opinion that amendment of the Rules with
regard to eligibility criteria is brought with a view to
ensure more meritorious candidates and to secure best
talent in the field of medicine who are born in State of
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Gujarat and are domicile of Gujarat.
46. For a short period, a student might have gone out
of State or out of country but has returned back to the
State of Gujarat to pursue higher studies. The amended
Rule takes care of such candidate's interest also. Hence,
in our opinion petitioner's participation in the admission
process is not thwarted or taken away in any way. On the
contrary, the larger participation will have to be faced by
the petitioner or similarly placed person and this would
not be a ground to challenge the validity of change in the
eligibility criteria. The basic structure of eligibility
criteria has not damaged the State quota or altered the
position to the deterrent of the petitioner or similarly
placed candidates. On the contrary, with a view to give
more number of students a chance to participate who
belong to the State of Gujarat it is intended under
amended Rule to include such candidates also and as
such, questioning of validity of Rule is ill-founded in our
opinion.
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
47. In view of aforesaid circumstances, which are
prevailing on record, we have noticed that steps which
have been taken by the authority for the purpose of
undertaking a process for bringing the eligibility criteria
under the impugned rules is in consonance with settled
principles of law. On perusal of the stand of the authority
and relevant records, we find that eligibility criteria has
been brought in, with an object to consider more number
of meritorious students studying in the field of medicine
belonging to State of Gujarat would be able to participate
in selection process along with petitioners and similarly
placed persons. This eligibility criteria has not altered the
substratum or the object of existing rules and the interest
of students of State of Gujarat has been taken care of.
Perusal of the impugned notification dated 19.09.2022
would indicate to enlarge the scope of consideration of
large section of students who have studied outside the
State for some time, as indicated in the sub-rule itself
said amendment is brought about. But while bringing
this, the basic object of giving due benefit to the local
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
students, that is the students of State of Gujarat, is not
jeopardized. Substituted rule 4(2)(b) clearly indicates that
such candidate must have passed 12 th qualifying
examination from a school located in the State of Gujarat
and such candidate must have been born in the State of
Gujarat or should be the domicile of Gujarat State. These
words or expression found in the substituted sub-rule (2)
would indicate that State quota is not removed nor
diluted but maintained with little enlargement and the
resultant effect is that more numbers of candidates who
are from State of Gujarat will be in a position to seek for
admission to Post Graduate / Diploma course in the
academic year 2022-2023 itself. If these words -
expressions were not to be found in sub-rule (2) of Rule 4,
we would have viewed the matter from different angle.
But when the State authority have taken care of the
interest of students from State of Gujarat, we hardly see
any reason for the petitioners to agitate and merely
because a student will have to face larger competition,
would not be a justifiable ground to assail any change of
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
eligibility criteria. It is trite law that hardship is no
ground to question the validity of a provision. Hence, we
are of the view that challenge laid in these petitions is not
justified.
48. Apart from that much grievance of rule having not
been notified was raised at the initial stage by the
petitioners which persuaded us to issue notice. However,
it is brought to our notice that such change has already
been gazetted and immediately upon bringing the same
50 copies were sent to the Manager, Government Press,
Gandhinagar with a request to publish in the
extraordinary Government gazette and even the inward
register of Government Press disclose the receipt of such
request from Government having been received and with
no time being wasted, publication also having been
effected, said contention has to fall. At this juncture, we
also take note of the fact, that from the beginning
petitioners were aware about the eligibility criteria which
is questioned in the petition and on the web portal itself
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
the eligibility criteria was published and petitioners have
also loged-in seeking admission to Post Graduate/Diploma
course pursuant to same whereunder eligibility criteria
now impugned in the petition is reflected. As such it is not
the case of the petitioners that after substantial process
having been completed of admission, change in the
eligibility criteria has been brought about. In fact, this
change has been made known to all the aspiring students
from the beginning of the process and as such
undisputedly it is not a case that rules of the game has
been changed, either in the midst of admission process or
at a belated stage. The main grievance which was voiced
out, at a relevant point of time, was that it was not
published in the official gazette. In a similar situation the
Hon'ble Apex Court in the case of Jan Mohammad Noor
Mohammad Bagban versus State of Gujarat and
another reported in (1966) 1 SCR 505 wherein also a
grievance was raised that rules at relevant point of time
were not placed before the House and thereby it had
become invalid, came to be considered and held by the
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
Hon'ble Apex Court, when there was no legislature in
session at the relevant point of time and on account of
exigencies as indicated therein it was notified and later
said rules were placed in the Assembly in the second
session and as such, it came to be held that Rules cannot
be invalidated on said ground. It has been further held by
the Hon'ble Apex Court as under :
"18. Finally, the validity of the rules framed
under the Bombay Act 22 of 1939 was
canvassed. By s. 26(1) of the Bombay Act the
State Government was authorized to make
rules for the purpose of carrying out the
provisions of the Act. It was provided by sub-s.
(5) that the rules made under s. 26 shall be laid
before each of the Houses of the Provincial
Legislature at the session thereof next
following and shall be liable to be modified or
rescinded by a resolution in which both Houses
concur and such rules shall, after notification in
the Official Gazette, be deemed to have been
modified or rescinded accordingly. It was urged
by the petitioner that the rules framed under
the Bombay Act 22 of 1939 were not placed
before the Legislative Assembly or the
legislative Council at the first session and
therefore they had no legal validity. The rules
under Act 22 of 1939 were framed by the
Provincial Government of Bombay in 1941. At
that time there was no Legislature in session,
the Legislature having been suspended during
the emergency arising out of World War II. The
session of the Bombay Legislative Assembly
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
was convened for the first time after 1941 on
May 20, 1946 and that session was prorogued
on May 24, 1946. The second session of the
Bombay Legislative Assembly was convened on
July 15, 1946 and that of the Bombay
Legislative Council on September 3, 1946 and
the rules were placed on the Assembly Table in
the second session before the Legislative
Assembly on September 2, 1946 and before the
Legislative Council on September 3, 1946.
Section 26(5) of Bombay Act 22 of 1939 does
not prescribe that the rules acquired validity
only from the date on which they were placed
before the Houses of Legislature. The rules are
valid from the date on which they are made
under S. 26(1). It is true that the Legislature
has prescribed that the rules shall be placed
before the Houses of Legislature, but failure to
place the rules before the Houses of
Legislature does not affect the validity of the
rules, merely because they have not been
placed before the Houses of the Legislature.
Granting that the provisions of sub-s. (5) of s.
26 by reason of the failure to place the rules
before the Houses of Legislature were violated,
we are of the view that sub-s. (5) of S. 26
having regard to the purposes for which it is
made, and in the context in which it occurs,
cannot be regarded as mandatory. The rules
have been in operation since the year 1941 and
by virtue of s. 64 of the Gujarat Act 20 of 1964
they continue to remain in operation."
49. Keeping the aforesaid proposition in mind we find
in the instant case that when the eligibility criteria was
prescribed, as indicated on the Website on 15.09.2022
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
and notification to that effect has also been
published/notified and as submitted by learned
Government Pleader, the Assembly not being in session,
has assured the Court that same will be laid before the
Assembly session as and when it is convened and as such,
keeping the said position in mind, we are of the view that
on account of said factual situation, the eligibility criteria
fixed under the amended rules cannot be set at naught.
As noticed earlier, had there been a case to change in the
rules of the game, either in the middle or at the end of
the admission process, in all probability we would have
accepted the grievance of petitioners. However, in the
instant case we notice that all aspirants were put to
notice from the very first day about the conditions or
eligibility criteria. That apart, students of State of Gujarat
have not been deprived of being within the zone of
consideration for admission under the amended rule, we
are of the view, applying the principle of convenient
interpretation the challenge made in the petition deserves
no consideration. The State on the contrary has made an
C/SCA/19057/2022 CAV JUDGMENT DATED: 04/10/2022
attempt to protect the interest of students of State of
Gujarat to a larger extent by retaining the latter part of
substituted rule. Hence, we see no reason to entertain the
challenge made by the petitioners. Hence, based upon
overall consideration of material on record vis-a-vis the
principles laid down by the Hon'ble Apex Court in the
decision which have been brought to our notice, we are of
the considered opinion that petitioners have not made out
strong case to accept their contentions. Petitions being
meritless, we deem it proper to dismiss the same.
50. Hence, we proceed to pass the following
ORDER
(i) Both the Special Civil Applications are
dismissed. Notice stands discharged.
(ii) There shall be no order as to costs.
(ARAVIND KUMAR, CJ)
(ASHUTOSH J. SHASTRI, J)
GAURAV/PH/OM/BH/DHM
