C sca 9960_2013_j_6

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  • 1. C/SCA/9960/2013 CAV JUDGEMNT SCA99602013Cj6.doc IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 9960 of 2013 With SPECIAL CIVIL APPLICATION NO. 10150 of 2013 With SPECIAL CIVIL APPLICATION NO. 10577 of 2013 With SPECIAL CIVIL APPLICATION NO. 10586 of 2013 With SPECIAL CIVIL APPLICATION NO. 11030 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================== =============== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ?` 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================== Page 1 of 54 1 of 54 SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM
  • 2. C/SCA/9960/2013 CAV JUDGEMNT =============== HEEMAN DHOLARIYA & ORS. Versus STATE OF GUJARAT & ORS. ================================================================ Appearance: MR PH PATHAK, ADVOCATE for the Petitioners in SCA Nos. 9960/13, 10150/13, 10586/13 & 11030/13 MR GM JOSHI, ADVOCATE for the Petitioners in SCA 10577/13 MR PK JANI, GOVERNMENT PLEADER with MR DHARMESH DEVANI, AGP for the Respondents ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 23/07/2013 COMMON CAV JUDGEMNT (PER : HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA) 1. These Special Civil Applications were heard analogously as the reliefs claimed in these applications are more or less the same. 2. Some of the students who have passed the 12th Standard in the Science stream examination from CBSE Board have challenged the process of preparation of the merit list of the candidates for admission to the B.Tech course by the Admission Committee for Professional Courses as provided in the Bachelor of Engineering & Technology [Regulation of Admission & Payment of Fees] Rules, 2013, [hereinafter referred to as the Rules] as illegal, unjust and violative Page 2 of 54 2 of 54 SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM
  • 3. C/SCA/9960/2013 CAV JUDGEMNT of Article 14 of the Constitution of India and have even prayed for a declaration that the respondents have failed to prepare the merit list in accordance with the Rules as framed. 3. During the pendency of these Special Civil Applications before the learned Single Judge, by way of amendment in some of these applications, a prayer was made for declaration that Rule 11 and the method adopted by the respondents for preparation of the final merit list for admission to the Engg. Course, is unjust, arbitrary, without application of mind and ultra vires the Constitution of India. 4. Such being the position, the learned Single Judge released the matters and directed the Registry to place the same before the Chief Justice for listing the same before the appropriate Court and consequently, the matters have been placed before this Bench. 5. For discussion of facts, Special Civil Application No. 9960 of 2013 is taken as the lead matter, and the case made out by the petitioners in these applications may be summed up thus: 5.1 For the Degree of Engineering courses, the procedure for admission has been published by the respondent no.3 online and the Note dated 28th May, 2013 was also published by the Member Secretary pointing out that the intention of the said respondent is to prepare a common merit list of the students of different Boards who Page 3 of 54 3 of 54 SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM
  • 4. C/SCA/9960/2013 CAV JUDGEMNT have registered their names for admission. 5.2 According to the provisions of the Rules, the petitioners are eligible and required to be placed in the merit list. 5.3 To bring in the uniformity, the Government of Gujarat, in the Legislative Assembly has passed a Statute, viz. Gujarat Professional Technical Educational Colleges or Institutions [Regulations of Admission & Fixation of Fees] Act, 2007 (hereinafter referred to as the Act) to make special provision for regulation of admission in the professional technical educational colleges or institutions. 5.4 In terms of the powers conferred upon the State Government in Section 20[1] of the said Act, the government of Gujarat, Education Department, by way of a notification, has constituted two different Committees; [i] Admission Committee for Professional Courses [ACPC] and [ii] Admission Committee for Professional Diploma Course [ACPDC] to regulate admission of candidates to the professional Degree and Diploma courses respectively. 5.5 The functions of the Committees are prescribed as follows: [a] The Committee shall supervise, monitor and control the entire process of admission to the candidates seeking admissions to the professional educational colleges or institutions. [b] The Committee shall prepare the merit list in accordance Page 4 of 54 4 of 54 SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM
  • 5. C/SCA/9960/2013 CAV JUDGEMNT with the provisions of the Act and the Rules made there under. [c] The Committee shall allocate the Government Seats and the management seats in accordance with the provisions of the Act and the Rules made there under. [d] The Committee shall ensure that admissions in the Govt. seats and the management seats are made as per the merit list prepared and that no candidate is admitted against the management seats unless his name appears in the merit list. [e] The Committee shall perform such other functions as may be assigned to it by the government. 5.6 For regulating the admission to the professional courses, the State of Gujarat has published the Rules in the year 2013. 5.7 According to Rule 11, two merit lists are required to be prepared by the respondents; first merit list includes the candidates who have passed qualifying examination from the Boards for which the percentile marks are available and the second list should be prepared for the candidates from those Boards for which the percentile marks are not available. 5.8 So far as the CBSE board is concerned, the subjects Physics and Chemistry consist of both theory and practical containing 70% and 30% marks respectively. According to Rule 11, the merit list is Page 5 of 54 5 of 54 SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM
  • 6. C/SCA/9960/2013 CAV JUDGEMNT required to be prepared on the basis of 60% weightage of percentile marks obtained by the students in the theory subjects i.e. Physics, Chemistry and Mathematics in the Board Examination which are combined with 40% weightage of the percentile marks obtained in JEE [Main] examination. 5.9 Ignoring the above provisions of the Rule, the respondents have published a combined merit list of the students of the CBSE and the Gujarat Board without taking into consideration the correct percentile and percentage marks of the students, due to which, there has been gross injustice to the petitioners who have passed examination from CBSE Board. 5.10 A detailed chart has been prepared by the petitioners indicating that less meritorious candidates are placed in the higher order in the merit list resulting in gross injustice and mala fide exercise of power by the respondent authority for the reasons best known to them. 5.11 The formula adopted for normalization of the marks of different Boards by the respondent is not in accordance with the Rules nor was such mode of calculation disclosed in any of advertisements issued by the respondents nor was the method made known to the applicants for admission. 5.12 It appears that in the cases of Mr. Tanna and Mr. Vivek Patel, Page 6 of 54 6 of 54 SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM
  • 7. C/SCA/9960/2013 CAV JUDGEMNT who stood first in their respective Boards, Mr.Tanna of Gujarat Board has received 283 marks out of 300 and in JEE he has got 275 marks out of 360 whereas Shri Vivek Patel has acquired 234 marks out of 240 in the CBSE and in JEE he has got 280 marks out of 360. However, while preparing the final list on the basis of the present erroneous system introduced by the respondents, Mr. Tanna has been placed above Mr. Patel. Mr. Tanna has received 254.07833903 while Mr. Patel has received 243.36354424. The method of calculation is set out below:- Example for a student from Gujarat Board: (1) KENIL TANNA got 275 marks out of 360 in JEE (Main) in Physics, Chemistry & Maths (PCM). (2) Below KENIL TANNA, there are 70397 students who have obtained less marks in JEE (Main) in PCM below him. (3) Total number of candidates registered for admission who have appeared in the JEE(Main) are 70416. (4) Percentile rank of JEE (Main) of KENIL TANNA calculated as per following formula: No. of candidates of JEE (Mai