1999 Supreme(Guj) 497

Gujarat High Court
Judgename :A.L.DAVE, J.M.Panchal
STATE OF GUJARAT - Appellant
Versus
BRIJKISHIORE GARG - Respondent
L.P.A. 1135 of 1995
Decided On : 09/23/1999

Headnote:(a) Constitution of India, 1950 - Art. 226 - Oral prayer on basis of mere apprehension at the time of hearing - Maintainability - Court would not be justified in examining such apprehensions - It would confine its decision to the existing facts & will not enter into presumptions & inferences - In the instance case respondent had approached the Court with a specific case that appellant was not justified in not placing his daughter in merit list on ground that she had not passed examination in subject of Mathematics - Except making oral prayer at the time of hearing no relief was sought by respondent that name of his daughter was not likely to be included in merit list as the authorities were bent upon deducting 15 marks interms of Rule 5.2 of the rules - Single Judge still merely on oral request based on apprehension gave impugned direction on that basis - Court held that in this back drop of situation direction given by Single Judge is liable to be setaside.

       The respondent had approached the Court with a specific case that the appellants were not justified in not placing his daughter in the merit list on the ground that she had not passed the examination in the subject of mathematics. Therefore, the decision should have been confined to the facts pleaded in the petition and should not have been reached on apprehension expressed by the learned counsel for the respondent. In the petition no relief was sought by the respondent that name of his daughter was not likely to be included in the merit list, as the authorities were bent upon deducting 15 marks in terms of Rule 5.2 of the Rules. No ground was taken in the writ petition assailing so-called action to be taken by the appellants on the basis of Rule 5.2 of the Rules. We find that the learned Single Judge has granted a relief not even prayed for by the respondent. A writ Court normally would not grant relief in excess of what is prayed for unless the petition is permitted to be amended in the manner known to law and appropriate reliefs are claimed. In our opinion, the learned Single Judge was in error in entertaining oral apprehension and proceeding to give impugned direction on that basis.

       This Court think that the proper course for the Court would have been to require the respondent - original petitioner to amend the petition incorporating subsequent development, if any, and claiming appropriate reliefs on that basis so as to give proper opportunity to the otherside to meet the totally new plea raised for the first time, at the time of hearing of the petition. Having regard to all these salutory principles, we are of the opinion that the petition could not have been decided on apprehension and, therefore, operative direction given by the learned Single Judge is liable to be set aside.

       [Para 9]

       (b) Constitution of India, 1950 - Art. 226 - Rules framed for admission to Ist M.B.B.S./Ist B.D.S./Ist B. Physio Course at Govt. Medical College - Rules 1, 1.3 & 5.2 - Provision under requires a student seeking admission to first year medical course to pass examination conducted for the subjects of Physics, Chemistry, Biology, Mathematics & English in Central Board of Secondary Examination - Single Judge was not justified in holding that student who has not taken Mathematics as one of the subject is eligible for admission to the said course - It is to rewrite the rule which is not permissible to a Court hearing petition under Art. 226 of Constitution - Single Judge was also in error in its finding to the effect that mention about the month of March/April of current year or October/November of preceding year to pass qualifying examination for admission can not be applied with vigour and in the case respondent daughter was eligible for admission - Conclusion of Single Judge that authorities are not entitled to deduct 15 marks is also not sustainable in view of Rule 5.2 of the rules - It is an admitted position that daughter of respondent did not appear in the subject of Mathematics when examination of said subject was due & had appeared at the qualifying examination in part - Moreover she had passed the subject of Mathematics in May 1995 & thus liable to deduction of 15 marks - Finding of Single Judge being contrary to clear provision under Rules 1 & 5.2, it could not be upheld.

       A student seeking admission to first year medical course,has to pass examination conducted for the subjects of Physics, Chemistry, Biology, Mathematics and English. On comparison of the pattern adopted by the Gujarat Higher Secondary Education Board and Central Board of Secondary Education New Delhi, it is not proper to come to the conclusion that a student should be considered eligible even if he has not opted for the subject of mathematics at the examination conducted by Central Board of Secondary Education, New Delhi. In our considered opinion, to say that a student who has not taken mathematics as one of his subjects and passed the same, is eligible for admission to 1st M.B.B.S./1st B.D.S./1st B.Physio course at the Government Medical Colleges, it to rewrite the rule, which is not permissible to a Court hearing a petition under Art. 226 of the Constitution. The eligibility of a student has to be determined with reference to requirements prescribed in Rule 1 and the Court has no power to relax the requirements prescribed in the Rule. It is relevant to note that validity of Rule 1 and Rule 5.2 of Admission Rules as being irrational, arbitrary and violative of provisions of Art. 14 of the Constitution, was not challenged; whereas validity of Rule 1.3 of the Rules was not pressed at the time of hearing of the petition. It is well settled that which standards should be prescribed for determining eligibility is the task assigned to academicians and the Court, which is least equipped in such matters, should not venture either to relax the requirment of eligibility or substitute its own view for that of academicians. Under the circumstances, the conclusion of the learned Single Judge that from the language employed in Rule 1 it is not discernible as to how a student is not eligible only on the ground that had not opted for subject of mathematics in the Central Board of Secondary Education Examination, is erroneous and deserves to be set aside.

       [Para 10]

       The task of laying down guidelines for admission to be effected is in the realm of a policy decision of the executive and as policy decision is not arbitrary, direction could not have been given to the authorities to consider case of the daughter of the respondent for admission in the year 1995 ingnoring requirement of Rule 1 that a candidate must pass qualifying examination in the month of March/April of the current year or in October/ November of the preceding year. To direct the authorities that requirement of passing qualifying examination by the student in the month March/April of the current year or October/November of the preceding year should be ignored tantamounts to directing the authorities to commit breach of essential requirement of Rule 1. A Court while hearing petition under Art. 226 of the Constitution cannot direct the authorities to commit breach of the rule and do a thing which is not contemplated by a rule. If such a direction is given, it is bound to result into chaos and those students who have not passed the qualifying examination in the month March/April of the current year or October/November of the preceding year would also be entitled to seek admission to medical course contrary to rule.

       A student, who has not passed qualifying examination in the month of March/April of the current year or October/November of the preceding year, cannot be admitted to medical course next year in view of clear and mandatory provisions of Rule 1 of the Rules. Therefore, the finding recorded by the learned Single Judge to the effect that mention about the month" March/April of the current year or October/November of the preceding year" cannot be applied with vigour and case of the daughter of the respondent for admission for the year 1995-96, is erroneous and liable to be set aside.

       [Para 10]

       The conclusion reached by the learned Single Judge that the authorities would not be entitled to deduct 15 marks as provided in Rule 5.2 of the Rules because the daughter of the respondent had passed Senior School Certificate Examination conducted by the Central Board of Secondary Education as additional subject of mathematics in the year 1995 does not get support from the plain language of Rule 5.2 Rule 5.2 which is reproduced above makes it very clear that for the purpose of said Rule, non-appearance in the qualifying examination when due or appearance at the qualifying examination in part must be treated at par and entail deduction of 15 marks. It is an admitted position that daughter of respondent did not appear in the subject of mathematics when examination for the said subject was due and had appeared at the qualifying examination in part. Moreover, she had passed the subject of mathematics in May, 1995. Thus, there is no manner of doubt that for the purpose of Rule 5.2, daughter of the respondent had not appeared in the qualifying examination when it was due and had appeared at the qualifying examination in part enabling the authorities to deduct 15 marks while considering her case for admission to medical course. It is true that the daughter of respondent had passed the Senior School Certificate Examination conducted by the Central Board of Secondary Education, but as required by Rule 1 of the Rules, she had not taken mathematics as one of her subjects and had passed in the examination conducted for the said subject next year i.e. in the month of May, 1995. Though in terms of requirement of Rule 1 she was required to appear in subject of mathematics in the qualifying examinatiion, she had not taken the said subject at the relevant time and thus, for the purpose of Rule 5.2, there was non-appearance by her in the qualifying examination when due. So also her appearance at the qualifying examination was in part. Under the circumstances, the competent authority would be entitled to deduct 15 marks for failure or drop at the qualifying examination in view of the clear language of Rule 5.2. The learned Judge was, therefore, not justified in directing the authorities not to deduct 15 marks while considering the case of daughter of the respondent for admission to medical course in the year 1995-96. The said finding being contrary to explicit language of Rule 5.2 of the Admission Rules, will have to be set aside.

       [Para 11]