(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)

1. This writ petition under Article 226 of the Constitution of India has been preferred by a student seeking admission in nursing course after clearing the Gujarat Secondary and Higher Secondary Education Board examination i.e. Standard XII, securing 39.85 percentage of marks.

2. The petitioner has prayed for the following reliefs :-

“(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents to consider the name of the petitioner for admission by giving the benefit of rounding of his marks and to give him admission in the Management quota in the Resp. No.2 school forthwith;

(B) Pending admission, hearing and final disposal of this Writ petition, Your Lordships may be pleased to direct the respondents to give the admission to the petitioner provisionally and allow him to pursue his study in the Resp. No.2 school;

(C) Be pleased to pass such other and further reliefs as may be deemed just and proper by Your Lordships in the facts and circumstances of the case.”

3. Facts relevant for the purpose of deciding this petition can be summarised as under :

1. Petitioner cleared her Standard XII examination in General (Science) stream securing 39.85 percentage (337/700) of marks.

2. Pursuant to the advertisement issued by respondent no.1 in the local newspaper for a nursing course, the petitioner applied for the same with requisite fees.

3. It appears that admission came to be refused by respondent no.1 on the ground that the petitioner has failed to secure minimum 40 percentage of marks in the qualifying examination i.e. Standard XII, as per sub-rule (4) of Rule 6 of the Gujarat Diploma in General Nursing and Midwifery (Regulation of Admission and Fixation of Fees) (Amendment) Rules 2011 which prescribes the eligibility criteria for admission in various General Nursing and Midwifery course.

4. We have heard learned advocate Ms.Mamta R.Vyas for the petitioner and learned AGP Mr.Pranav Dave for the respondents.

5. Learned advocate for the petitioner would vehemently submit that refusal on the part of the respondents in not giving admission to the petitioner in General Nursing and Midwifery course is untenable in law and contrary to the rules governing such admission. Learned advocate would submit that 40 percent is the minimum marks required for admission and the petitioner has secured 39.85 percentage of marks, just falling short by 0.15 percentage of aggregate marks. She would submit that the respondents ought to have applied the rule of rounding off the marks. She would submit that the rule of rounding off is based on logic and commonsense. She would vehemently contend that on the basis of logic and commonsense, when the Admission Rules prescribes 40 percentage marks at the qualifying examination as the eligibility criterion, a student with 39.50 percentage or higher marks has to be considered eligible.

6. She would further contend that in the case of candidates of reserved categories, relaxation of 5 percentage is given and thereby they are entitled to get admission even at 35 percentage of marks, whereas the petitioner though obtained 39.85 percentage marks i.e. 0.15 percentage short of 40 percentage of marks, is denied admission by the centralized admission committee. Lastly, she submitted that the petitioner will not only lose the chance of getting admission in nursing course, but will not be able to get admission in any other faculty since the colleges have already started from 5th September 2011.

7. Learned counsel for the petitioner relied upon few case-laws to fortify her contentions. Reliance has been placed on the judgment of the Apex Court in the case of State of U.P. and another v/s. Pawan Kumar Tiwari and others, reported in (2005)2 SCC 10. Reliance has also been placed on an unreported judgment rendered by the Division Bench of this High Court in Special Civil Application No.5854 of 2008 deci