C sca 9960_2013_j_6

C/SCA/9960/2013 CAV JUDGEMNT
SCA99602013Cj6.doc
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 9960 of 2013
With
With
With
With
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 ?
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SPECIAL CIVIL APPLICATION/9960/2013 23/07/2013 06:07:55 PM

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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
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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
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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
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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
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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,
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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 (Main) below KENIL TANNA
-------------------------------------------------------------------------------------------X 100
Total candidates registered for admission who have appeared in the JEE (Main)
70397
= -------- X 100
70416
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= 99.97301750 Percentile
(5). KENIL TANNA got 283 marks out of 300 in Gujarat Board
examination in Physics, Chemistry & Maths (PCM).
(5) Below KENIL TANNA, there are 66017 students who have
obtained less mark in Gujarat board in PCM below him.
(6) Total numbers of candidates of Gujarat Board who have
registered for admission are 66105.
(7) Percentile rank of Gujarat Board of KENIL TANNA calculated as
per following formula:
No. of candidates of Gujarat Board below KENIL TANNA
-------------------------------------------------------------------------------------------X 100
Total candidates of Gujarat Board who have registered for admission
66017
= -------- X 100
66105
(8) Corresponding Percentile of JEE (Main) of KENIL TANNA with
respect to his Board percentile (99.86687845) is between
99.86650761 and 99.86934788 of JEE(Main) means between
240 and 241 marks.
Hence Normalized Board Marks
(P – PL)
B1=BL +-----------X (BU-BL), if BU>BL
(PU – PL)
B1 = BL, if BU = BL
Where,
P = Board PCM Percentile = 99.86687845
B1 = Board normalized Marks
BL = JEE (Main) PCM Marks corresponding to PL = 240
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BU = JEE(Main) PCM Marks corresponding to PU = 241
PL = Largest PCM JEE(Main) Percentile that is smaller than or
equal to P = 99.86650761
PU = Smallest PCM JEE (Main) Percentile that is greater than or
equal to P = 99.86934788
99.86687845 – 99.86650761
B1 = 240 +------------------------------------- X (241 – 240)
99.86934788 – 99.86650761
= 240.13056505
(9) Therefore Total Merit Score is (275 x 0.4)+(240.13056505 x
0.6)
= 254.07833903
(10) Arrange merit score in descending order.
Example for a student from Central Board:
(1) VIVEK PATEL got 280 marks out of 360 in JEE (Main) in Physics,
Chemistry & Maths (PCM).
(2) Below VIVEK PATEL, there are 70401 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 VIVEK PATEL calculated as per
following formula:
No. of candidates of JEE (Main) below VIVEK PATEL
-------------------------------------------------------------------------------------------X 100
Total candidates registered for admission who have appeared in the JEE (Main)
70401
= -------- X 100
70416
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(5) VIVEK PATEL got 234 marks out of 240 in Central Board
examination in Physics, Chemistry & Maths (PCM).
(6) Below VIVEK PATEL, there are 3866 students who have obtained
less mark in Central board in PCM below him.
(7) Total number of candidates of Central Board who have
registered for admission are 3875.
(8) Percentile rank of Central Board of VIVEK PATEL calculated as
per following formula:
No. of candidates of Central Board below VIVEK PATEL
-------------------------------------------------------------------------------------------X 100
Total candidates of Central Board who have registered for admission
3866
= -------- X 100
3875
(9) Corresponding Percentile of JEE (Main) of VIVEK PATEL with
respect to his Board percentile (99.76774194 ) is between
99.75573733 and 99.76851852 of JEE(Main) means between
218 and 219 marks.
Hence Normalized Board Marks
(P – PL)
B1=BL +-----------X (BU-BL), if BU > BL
(PU – PL)
B1 = BL, if BU = BL
Where,
P = Board PCM Percentile = 99.76774194
B1 = Board normalized Marks
BL = JEE (Main) PCM Marks corresponding to PL = 218
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BU = JEE(Main) PCM Marks corresponding to PU = 219
PL = Largest PCM JEE(Main) Percentile that is smaller than or
equal to P = 99.75573733
PU = Smallest PCM JEE (Main) Percentile that is greater than or
equal to P = 99.76851852
99.76774194 – 99.75573733
B1 = 218 +------------------------------------- X (219 – 218)
99.76851852 – 99.75573733
= 218.93924040
(10) Therefore Total Merit Score is (280 x 0.4)+(218.93924040 x
0.6)
= 243.36354424
(11) Arrange merit score in descending order.
6. The respondents have filed affidavits opposing the prayers of
the petitioners. It has been disclosed in the affidavit that the merit list
has been prepared by the experts of Indian Statistical Institute,
Kolkata under the guidance of Professor Ashis Kumar Chakraborti,
[PH.D.] Head SQC & OR Division. According to them, a four-step
formula introduced and prepared by the experts of Indian Statistical
Institute cannot be said to be arbitrary. According to the respondents,
the petitioners have tried to make comparison between the marks of
the two Boards. However, the process introduced by the respondents
makes a balance of the marking pattern of the two different Boards
which is known as normalization and by using the correct method of
normalization, the merit list has been prepared. It is further stated
that the Committee requested the CBSE Board to submit the
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percentile scores of the students and accordingly, received the
percentile scores of all the candidates who had appeared for CBSE
examination. The respondents have further contended that the writ-
applications should be dismissed as those have been filed at a
belated stage when the process of selection has already started and
even the admissions have been given in the colleges.
7. Therefore, the only questions that fall for determination in these
writ-applications are [i] whether the respondent authority has
followed the Rules prescribed for preparing the merit list and [ii]
whether the Rules so prescribed are violative of any of the provisions
of the Constitution or the Act.
8. In order to appreciate the aforesaid questions, it will be
profitable to refer to the following provisions of the Act and the Rules
framed there under:-
“Section 2:
2[c] “Common Entrance Test” means the entrance test
conducted for determination of merits of the candidates for the
purpose of admission in the different professional courses;
xxx xxx xxx
2[j] “prescribed” means prescribed by the rules made under
this Act.
xxx xxx xxx
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Section 5:
“5 [1] For the purpose of admission in the professional
courses, each Admission Committee shall prepare the merit list
of students based on such criteria and in such ratio as may be
prescribed.
[2] For the purpose of preparing the list of students for
admission under sub-section[1], the authority or the body
authorized by the State Government in this behalf, shall
conduct the common entrance test in the manner as may be
prescribed.
Provided that it shall not be necessary to conduct
common entrance test for preparing merit list for the admission
to such professional courses as may be prescribed.”
xxx xxx xxx
Rules
2[g]: “percentile marks” means the percentile score obtained
by the candidate after normalizing the marks obtained by him
in the Board with respect to the marks from other Boards;
xxx xxx xxx
5. Eligibility for Admission.-
[1] For the purpose of admission, a candidate shall have
passed the Qualifying Examination with minimum eligibility
criteria of percentage of marks in subjects prescribed by
AICETE from time to time from,-
[i] the Gujarat Board; or
[ii] the Central Board of Secondary Education;
Provided that,
[a] the school in which the candidate has
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studied, shall have been located in the State of
Gujarat; or
[b] the school in which the candidate has
studied, shall have been located in the Union
Territories of Daman and Diu or Dadra and Nagar
Haveli and whose parents are of Gujarat origin; or
[iii] the Council of Indian School Certificate
Examination, New Delhi:
Provided that,
[a] the school in which the candidate has studied, shall
have been located in the State of Gujarat; or
[b] the school in which the candidate has studied, shall
have been located in the Union Territories of
Daman and Diu or Dadra and Nagar Haveli and
whose parents are of Gujarat origin; or
[iv] the National Institute of Open Schooling:
Provided that,
[a] the study Center/school in which the candidate
has studied, shall have been located in the State of
Gujarat; or
[b] the study Center/school in which the candidate has
Haveli and whose parents are of Gujarat origin; or
[v] the International School Board:
Provided that,
[a] the study Centre/school in which the candidate has
studied, shall have been located in the State of
Gujarat; or
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[b] the study Center/school in which the candidate has
Haveli and whose parents are of Gujarat origin; and
[vi] have appeared in JEE [Main] conducted in the
corresponding academic year:
[2] A candidate whose parents are of Gujarat origin and are
serving out of the Gujarat in the service of Central
Government or other State Government,Armed Forces,
Boards or Corporations owned or controlled by the
Central Government or other State Government or any
nationalised bank and who has passed the qualifying
examination from the State where parents are serving
and has appeared in the JEE[Main] conducted in the
corresponding academic year, shall be eligible for
admission and his candidature shall be included in the
merit list prepared in accordance with the provisions of
rule 11.
[3] A candidate who has passed the Qualifying Examination
from any other State and, -
[i] has appeared in JEE[Main] conducted in the
corresponding academic year; and
[ii] whose parents are serving in the category of
services as shown below and who are transferred
from other States to Gujarat and have resumed
their duties in the place where they are transferred
in Gujarat and shall remain so transferred in the
State of Gujarat at the time of registration for
admission, shall be eligible for admission and his
candidature shall be included in the merit list
prepared in accordance with the provisions of rule
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11.
Category of Services:
[a] Officers or Employees of Central Government; or
[b] Officers or Employees of Public Sector Undertakings
of Central Government or any State Government;
or
[c] Officers or Employees of nationalized banks; or
[d] Officers or Employees of United Nations, UNICEF,
World Health Organization and such other
International Institutions located in Gujarat State;
or
[e] Gujarat Cadre Officers of Indian Administrative
Service, Indian Police Service or Indian Forest
Service working in Gujarat or working in other
States on deputation; or
[f] Officers or Employees of Gujarat Government
posted outside Gujarat State for administrative
reasons.
[4] A candidate who has,-
[i] studied under Jawahar Navodaya Vidyalaya Scheme
up to Standard VIII in any of the schools located in
the State of Gujarat, and
[ii] thereafter studied in any of the schools located out
of the State of Gujarat under the said scheme, and
[iii] has passed Qualifying Examination from a
Navodaya Vidyalay located outside Gujarat State,
and
[iv] appeared in the JEE [Main] conducted in the
corresponding academic year shall be eligible for
admission and his candidature shall be included in
the merit list prepared in accordance with the
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provisions of rule 11.
Explanation.- “Jawahar Navodaya Vidyalaya
Scheme” means the Jawahar Navodaya Vidyalaya
scheme started during the year 1985-86 by the
Government of India in accordance with the
National Policy of Education. The scheme is
managed by Navodaya Vidyalaya Samiti, an
autonomous organisation under the Department of
Education, Ministry of Human Resource
Development, Government of India.
[5] A candidate who has passed the qualifying examination
after appearing in the supplementary examination
conducted by the Board shall be eligible for admission in
the current academic year on the vacant seats declared
under rule 19.
[6] Notwithstanding anything contained in these rules,
admission in the Bachelor of Technology Course, in -
[i] the Dhirubhai Ambani Institute of Information and
Communication Technology established under the
Dhirubhai Ambani Institute of Information and
Communication Technology Act, 2003 shall be
granted in the following manner, namely:-
[a] Fifty percent seats of the total sanctioned
seats shall be filled as Government seats
from the candidates who have passed the
Qualifying Examination from the schools
located in the State of Gujarat and have
appeared in JEE [Main] Examination for the
corresponding academic year, by the
Admission Committee on the basis of the
merit list prepared by the Admission
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Committee.
[b] Fifty percent seats shall be filled by the
Dhirubhai Ambani Institute of Information and
Communication Technology from the
candidates who have passed the Qualifying
Examination from the schools located in India
[including Gujarat State] and have appeared
in JEE [Main] Examination for the
corresponding academic year. Merit list for
these seats shall be based on percentile
score in JEE [Main] examination.
[ii] the Nirma University established under the Nirma
University Act, 2003 shall be granted in the
following manner, namely:-
Committee.
[b] Thirty five percent seats shall be filled by the
Nirma University from the candidates who
have passed the Qualifying Examination from
the schools located in India [including Gujarat
State] and have appeared in JEE [Main]
Examination for the corresponding academic
year. Merit list for these seats shall be based
on percentile score in JEE [Main] examination.
[c] Fifteen percent seats shall be filled by the
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Nirma University as NRI seats from the
candidates who have passed the Qualifying
Examination from the schools located in India
[including Gujarat State] or abroad. Seats
shall be filled in accordance with the
guidelines issued by the Admission
Committee in this behalf.
[iii] the Pandit Deendayal Petroleum University
established under the Pandit Deendayal Petroleum
University Act, 2007 shall be granted in the
following manner, namely:-
Committee;
Pandit Deendayal Petroleum University from
the candidates who have passed the
located in India [including Gujarat State] and
have appeared in JEE [Main] Examination for
the corresponding academic year. Merit list
for these seats shall be based on percentile
score in JEE [Main] examination.
[iv] the Institute of Infrastructure, Technology, Research
And Management established by Institute of
Infrastructure, Technology, Research And
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Management Act, 2012 [Guj.5 of 2013] shall be
granted in the following manner, namely:-
appeared in JEE[Main] Examination for the
Committee;
Central Counselling Board established by the
Government of India from the candidates who
the schools located in India [including Gujarat
State] and have appeared in JEE[Main]
Examination for the corresponding academic
year. Merit list for these seats shall be based
on 60% weightage of JEE [Main] and 40%
weightage of normalized board marks or
other qualifying examination as decided by
Central Counselling Board.
[v] the Institute Navrachna University established
under the Gujarat Private Universities Act, 2009
[Guj.8 of 2009] shall be granted in the following
manner, namely:-
[a] Seventy five percent seats of the total
sanctioned seats shall be filled as
Government seats from the candidates who
the schools located in the State of Gujarat
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and have appeared in JEE [Main] Examination
for the corresponding academic year, by the
Committee;
[b] Twenty five percent seats shall be filled by
the Navrachna University from the candidates
who have passed the Qualifying Examination
from the schools located in India [including
Gujarat State] and have appeared in
JEE[Main] Examination for the corresponding
academic year. Merit list for these seats shall
be based on percentile score in JEE [Main]
examination.”
xxx xxx xxx
9. Distribution of Seats between Candidates of
Gujarat Board and Other Boards.-
For the purpose of admission, the available seats shall be
distributed based on the merit list prepared under sub-rule[1]
of under rule 11:
Provided that if percentile marks are not available from
any of the Boards mentioned in the sub-rule [1], sub-rule[2],
sub-rule [3] or, as the case may be, sub-rule [4] of rule 5, then
the available seats shall be distributed between candidates of
the Boards for which percentile marks are available and other
Boards for which percentile marks are not available, on pro-rata
basis taking into consideration the two merit lists prepared as
per the provisions of sub-rule [1] of rule 11.”
xxx xxx xxx
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11. Preparation of Merit List.-
The merit list of the candidates who have applied for
admission in the manner prescribed by the Admission
Committee, within the prescribed time limit and who are found
eligible for admission under these rules, shall be prepared in
the following manner, namely:-
[1] For the candidates who have passed the Qualifying
Examination from any of the Boards mentioned in the sub-rule
[1], sub-rule [2], sub-rule [3] or, as the case may be, sub-rule
[4] of Rule 5, sum of sixty percentage weightage of the
percentile marks obtained in the theory subjects [Physics,
Chemistry and Mathematics] and forty percentage weightage
of the percentile marks obtained in the JEE [Main] shall be the
merit marks:
Provided that if percentile marks are not available from
any of the Boards mentioned in the sub-rule [1], sub-
rule [2], sub-rule [3] or, as the case may be, sub-rule [4]
of Rule 5, two separate merit lists shall be prepared namely:-
[i] The first merit list shall include the candidates who have
passed the Qualifying Examination from the Boards for
which the percentile marks are available. The merit
list shall be prepared with sixty percentage weightage of
the percentile marks obtained in the theory subjects
[Physics, Chemistry and Mathematics] combined with
forty percentage weightage of the percentile marks
obtained in the JEE [Main].
[ii] The second merit list shall include the candidates who
have passed the Qualifying Examination from the Boards
for which the percentile marks are not available.
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This shall be based on sixty percentage weightage of
marks obtained in theory of the subjects [Physics,
Chemistry and Mathematics] after converting it to 100
combined with the forty percentage weightage of the
percentile marks obtained in the JEE [Main].
2. The criteria for deciding merit order in case of candidates
having equal merit marks shall be based on the
percentage of marks obtained in the Qualifying
Examination in the following sequence, namely:-
[a] Mathematics and Physics
[b] Mathematics and Chemistry
[c] Physics and Chemistry
[d] Mathematics
[e] Physics
[f] Chemistry
[g] English
[h] Aggregate marks”
(Emphasis supplied by us)
9. After hearing the learned counsel for the parties and after going
through the materials on record, we find that according to Rule 11,
the merit list of the candidates who had applied for admission in the
manner prescribed by the Admission Committee within the prescribed
time limit and who are found eligible for admission should be
prepared in the following way:-
9.1 For the candidates who have passed the Qualifying Examination
from any of the Boards mentioned in the sub-rule [1], sub-rule [2],
sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5, sum of
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sixty percentage weightage of the percentile marks obtained in the
theory subjects [Physics, Chemistry and Mathematics] together with
forty percentage weightage of the percentile marks obtained in the
JEE [Main] shall be the merit marks.
9.2 According to the proviso, if the percentile marks are not
available from any of the Boards mentioned in the sub-rule [1], sub-
rule [2], sub-rule [3] or, as the case may be, sub-rule [4] of Rule 5,
two separate merit lists shall be prepared.
10. There is no dispute that the respondents have obtained the
percentile marks available from all the Boards to which the
candidates belong and thus, there is no necessity of preparation of
two merit lists, but only one merit list should be prepared, which shall
include the candidates who have passed the Qualifying Examination
from the Boards for which the percentile marks are available and shall
be prepared with sixty percentage weightage of the percentile marks
obtained in the theory subjects [Physics, Chemistry and Mathematics]
combined with forty percentage weightage of the percentile marks
obtained in the JEE [Main].
11. We have already pointed out above that according to the
definition of “percentile marks” in Rule 2[g], percentile marks means
the percentile score obtained by the candidate after normalizing the
marks obtained by him in the Board with respect to the marks from
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other Boards.
12. It may not be out of place to mention here that in the Rules or
the Act, there is no method of normalizing the marks obtained in the
Board with respect to the marks obtained from other Boards. But as
pointed out in the affidavit used by the respondent authority, it has
taken the help of Indian Statistical Institute, Kolkata for the purpose of
normalization of such marks. There is also no dispute that the actual
method of normalizing marks was not disclosed in any of the
advertisements given and the students were totally kept in dark.
13. However, before us, the respondent authority has placed the
method of normalization prepared by Dr. Ashis Kumar Chakraborty
and Moutushi Chatterjee, SQC & OR Unit, Indian Statistical Institute,
Kolkata. The method of preparation of merit list mentioned therein is
disclosed below:
“The Problem:
• Admission to the Engineering and Pharmacy courses in
the institutions of the State of Gujarat is governed by the
Admission Committee of Professional Courses [ACPC].
• This year, Gujarat Government has decided to introduce
percentile based merit list by including the marks of
different boards.
• Among the students, who successfully passed JEE-Main,
70416 students have registered themselves for
admission in Engineering Courses.
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• These students have appeared or passed [in cases of
previous year candidates ] their +2 board exams from 5
different boards viz., CBSE,Gujarat State Board, IB, ICSE
and NIOS.
• The distribution of students, registered for engineering
admission, based on their respective boards are as
follows:
Name of Board Number of Students
Gujarat State Board 66105
CBSE 3875
ICSE 410
NIOS 17
IB 9
The Existing Approach:
• Until 2012, the admission was done on pro-rata basis.
• There were rooms for injustice specially towards students
from boards having comparatively smaller number of
students.
• For example, there were ample chances that a student
from Gujarat Board with lesser merit will get admission to
a particular stream while a brighter student from CBSE
will be deprived.
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Some Important Observations:
• Distributions of the marks vary from board to board.
• None of the boards have marks distributions identical to
that of JEE.
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• Neither JEE nor the board marks follow normal
distribution.
• For example, for CBSE, the marks distributions are
negatively skewed, while the situation is just the opposite
for the remaining boards as well as for JEE.
• This implies, higher proportion of students of CBSE
secure higher marks.
• Most of the students from other boards receive lesser
marks.
• Therefore, before preparing the merit list comprising of
students from miscellaneous boards, their marks need to
be properly normalized.
Some Methods for Normalizing Board Marks
By Adjusting for the Mean and Standard Deviation:
• This method normalizes marks by subtracting the mean
and dividing by the standard deviation [s.d.] of the marks
corresponding to the particular board.
• Such normalized scores have mean 0 and s.d.1.
• Another linear transformation may be applied to these
‘normalized scores’ so that the transformed scores have
mean and s.d. identical to that of JEE_Main.
• Valid only if the marks are comparable across different
boards.
Using percentiles
The percentile score for a particular candidate can be
defined as
Number of Eligible Candidates with Aggregate Marks Less Than the Candidate
---------------------------------------------------------------------------------------------------------------------
X 100
Total Number of Eligible Candidates
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Here it is assumed that aggregate marks for a board are
in order of merit.
The Procedure:
• The subject combination common to all the 5 boards as
well as the JEE-Main examination is Physics, Chemistry
and Mathematics [PCM].
• Percentiles are to be calculated for
1. PCM marks for JEE-Main of all the registered candidates
irrespective of their boards.
2. PCM Marks of the registered students of individual boards
with respect to the registered students of that board only.
• Board percentiles are to be mapped with the JEE-Main
percentiles and the corresponding PCM marks.
Assumptions:
• The students, who passed their board examinations in
2012 or earlier and have registered themselves for
engineering admission in 2013, have similar marks
distributions as those of the current year candidates
within each board.
Description of the Data Set
The data set consisted of the following information on the individual
candidates:
1. Roll Number of JEE-Main Examination
2. Application Number of JEE-Main Examination
3. Name of the Student
4. Name of the Board
5. Seat Number of the Board Examination
6. Aggregate Marks of PCM in JEE-Main Examination
7. Aggregate Marks of PCM in Board Examination
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The Algorithm:
1. Calculate percentiles of PCM marks for all the registered
candidates of JEE-Main using the following formula.
Number of registered candidates with PCM Total Marks Less
Than the Candidate for JEE-Main X 100
Total Number of Registered Candidates for JEE_main
2. Calculate percentiles of PCM board marks for all the
registered candidates of JEE-Main corresponding to their
respective boards using the following formula
Number of Registered Candidates with PCM Total Marks Less
Than the Candidate for the corresponding Board X100
Total Number of Registered Candidates for the respective
Board
3. Once these percentile ranks are obtained, the normalized
board marks can be obtained using the following formula:
{ [P-PL]
B1 = {BL + ______ X [BU – BL], if BU > BL
{ [PU - PL]
BL if BU = BL
Where,
P = Board PCM Percentile,
B1= Board Normalized Marks,
BL = JEE-main PCM marks corresponding to PL,
BU = JEE-main PCM marks corresponding to PU,
PL= Largest PCM JEE-Main Percentile that is smaller than or
equal to P,
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PU = Smallest PCM JEE-Main percentile that is greater than or
equal to P.
4. The normalized board marks thus obtained are then used
to find out the weighted marks obtained by a student using
the following formula:
Standardized Merit Marks = 0.4 X JEE_Main PCM Total + 0.6 X B1
5. The final merit list is obtained by sorting these
standardized merit marks in descending order.
6. All the computed values including the percentiles, the
normalized marks and the standardized merit marks are
expressed with eight places after decimal.
7. The ties are to be resolved based on the existing rules
followed by ACPC.
Steps for Calculating Percentile using Excel
1. Sort the PCM values [for JEE-Main or for individual boards]
in descending order of the values.
2. In the data set there are 70417 rows of which the first
row is the header i.e. it contains the column names while
the others are for data. Thus, to compute percentiles for JEE-
Main PCM marks, the Excel formula will be
100*COUNTIF [F2:$F$70417,”<”&F2]/70416
3. For calculating individual board percentiles, one needs to
apply double sorting – first with respect to the boards and
then with respect to the board PCM marks within each board
in descending order.
4. The similar formula, as in case of JEE-Main, can then be
applied to the PCM marks of each board.
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Execution of Numerical Interpolation Using R
• Excel does not have any in-build function for linear
interpolation.
• A function, called ‘Forecast’, is available primarily for
extrapolation and often it gives satisfactory result for linear
interpolation as well.
• To avoid any ambiguity, a software called ‘R’ is used.
• ‘R’ is an open source [free downlodable] statistical software.
• It is widely accepted among statisticians all over the world
for its efficiency and speed in numerical calculations even
for considerably large data set.
• Moreover, it is easy to import and export data sets in Excel
from R.
R-Code for Linear Interpolation
Board_norm<-read.table
(“interpolation_24_6_2013.txt”,header=TRUE,sep=’t’)
attach(board_norm)
names(board_norm)
jee_tot<-board_norm[,1]
jee_tot
jee_per<-board_norm[,2]
jee_per
board_per<-board_norm[,3]
board_per
normalized_scores<-
approx(jee_per,jee_tot,xout=board_per,method= “linear”)
normalized_scores
# saves data in ‘my documents’ as Excel file
write.table(normalized_scores,“normalized_scores_24_06_13
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.xls”,sep=”t”,row.names=FA LSE,col.names=TRUE)
CONCLUSION
• The proposed approach of preparing merit list for admission
in the engineering colleges affiliated to the state of Gujarat
has lesser degree of disparity in a sense that the
performance of each student is now judged with respect to
the other students appearing for the same examination.
• The approach involves no difficult calculation and is easy to
interpret.
• Percentile is an internationally accepted mode of expressing
the performance of individual students specially in
admission tests.
REFERENCES
• Report on 6th
Meeting of the councils of NITs on 09/04/2013
at ICAR, NASC Complex, New Delhi.”
14. The first question that falls for determination is as to the
meaning of the phrase “percentile score”. The word “percentile” has
been defined in Merriam – Webster, published in the year 2003 as
follows:
“a value on a scale of 100 that indicates the percent of a
distribution that is equal to or below it< a score in the 95th
percentile>”
According to the Little Oxford Dictionary, Seventh edition,
“percentile” means “each of the 99 points at which a range of data is
divided to make 100 groups of equal size; each of these groups”.
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15. Thus, percentile score for individual examinee represents the
score of an individual examinee compared to the scores of other
examinees within a particular comparison group. Percentile scores
range from the 1st
through 99th
percentile, indicating the percentage
of scores in the comparison group which are lower than the
particular examinee’s score, e.g. if score report of ‘X’ says that his
overall score of 19 is in the 67th
percentile, this means that ‘X’ has
tested better than 66% of the examinees compared to aggregate
sample of the examinees like him. In other words, the percentile
score of ‘X’ is equal to number of people who got less than or equal to
‘X’, taking it to 100. Thus, if in examination, 10 people give test and 9
people get either less than what ‘X’ got or equal or equal to what ‘X’
got, ‘X’’s percentile score is 9/10 x 100 = 90 percentile. Following
example will further clarify the position:
15.1 A class of 20 students had the following scores on their most
recent test: 75,77,78,78,80,81,81,82,83,84, 84, 84, 85, 87, 87, 88,
88, 88, 89, 90. The score of 80% has four scores below it, viz. 75, 77,
78 and 78. Since 4/20=20%, 80 is the 20th
percentile of the class, the
score of 90 has 19 scores below it, and since 19/20 =05%, it
corresponds to the 95 percentile of the class. Thus, although 80%
mark is ordinarily considered to be fairly good mark, in the above
example, having regard to the fact that 16 students out of 20 have
obtained 80 or more marks, the percentile of a person obtaining 80
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marks should be taken to be 20 only. Let us now take into
consideration the result of another class of 20 students where the
following was the scores in a separately taken examination on the
selfsame subject: 90, 87, 85, 80, 80, 78, 76, 76, 75, 70, 70, 70, 65,
64, 62, 62, 61, 61, 60, and 60. In the above examination, the
percentile of a student having obtained 80 marks would be 15/20 =
75th
percentile of the class. If we are required to compare the
standard of two students one from the former class and the other
from the latter one when both have obtained 80 marks, by applying
the percentile method, we will assess the merit of the one from the
former example by giving 80x20=1600 marks while the student from
latter example will be assessed by giving 80x75= 6000 marks.
16. At this stage, one must not confuse the meaning of the words
“percentile” with “percentage”. A percentage score indicates the
proportion of a test that someone has completed correctly. A
percentile score indicates what percent of other scores is less than
the data point we are investigating. From the percentile-scores-data
given by the different Boards to the Respondents which have been
placed before us, it appears that each Board has furnished the actual
marks obtained by each candidate in physics, chemistry and
mathematics and also their respective positions in reference to the
other candidates appearing from that Board in the final Board
Examination.
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17. In cases before us, although according to the definition of
“percentile marks” indicated in Rule 2[g], it means the percentile
score obtained by the candidate after normalizing the marks
obtained by him in the Board with respect to the marks from other
Boards, it appears from the procedure adopted by the respondents
that the normalization has been made on the basis of percentile
marks obtained by a candidate with respect to the other candidates
who have registered in the process of selection from that Board which
is not the law. In other words, the lists of percentile obtained from the
concerned Boards have not been taken into consideration although
the Rules prescribe for percentile marks available from the Board in
respect of the Board Examination after taking into consideration the
marks of all the students who appeared at the Board Examination. We
find from the percentile-score-data furnished by the different Boards
that the full marks on the subjects concerned are not the same and it
varies from Board to Board and for that reason, in the definition of
percentile marks, normalization of the marks from different Boards
has been asked. If the full marks of the three subjects of the Boards
are different, the same can be normalized by the application of simple
arithmetic for bringing parity of marks with reference to a common
full mark. For example, the total mark obtained out of 240 is bound to
increase if the full marks is 300. Therefore, the word “normalizing”
appearing in Rule 2(g) of the Rules, in our opinion, must be held to be
one arrived at by simple arithmetical method of normalizing marks
out of different full marks of different Boards for sake of uniformity
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e.g. by converting into 100 by way of obtaining percentage of marks
and for the above reason, the method of normalizing has not been
separately defined either in the Act or in the Rules. Thus, the
procedure adopted by the Indian Statistical Institute, Kolkata is not in
conformity with the Rules. Moreover, neither the Act nor the Rules has
given any authority to the Indian Statistical Institute to invent the
formula of normalization and in the Rules also, such power has not
been given even to the Admission Committee.
18. Otherwise, if in the Rules, a complicated method of
normalization of marks obtained by a student with that of a student of
the other Boards is intended without defining the method of
comparison, the Rules must be held to be arbitrary for vagueness; on
the other hand, if normalization is intended by simple application of
arithmetic by fixing a common full mark, no separate definition of
normalization is necessary. The formula adopted by the Indian
Statistical Institute is only the method which the said Institute thinks
to be rational, but neither the Act nor the Rules has vested such
power in favour of that Institute nor is the method adopted was
intended by the legislature.
19. Therefore, we find substance in the contention of Mr. Pathak
and Mr. Joshi, the learned counsel appearing on behalf of the
petitioners that the method adopted by the respondents is not
authorized by the legislature.
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20. It is settled law that in policy matters, this Court has a very
limited scope of interference. The Court cannot sit in judgment over
the wisdom of the policy evolved by the legislature and the
subordinate regulation making body and any drawbacks in the policy
incorporated in a rule or regulation will not render it ultra vires and
the Court should not strike it down on the ground that in its opinion, it
is not a wise or a prudent policy. But the law is equally settled that
such expert must be authorized by the legislature either through
direct legislation or by delegated legislation to arrive at such policy
decision. The respondent authority, in our opinion, should not, in the
absence of delegation prescribed by the Act or the Rules, have invited
the Indian Statistical Institute to adopt the method of normalization.
21. At the same time, every State action must be reasonable and in
public interest and any infraction of that duty is amenable to judicial
review.
22. As held by the Supreme Court in Dwarkadas Marfatia and
Sons v. Board of Trustees of the Port of Bombay reported in
(1989) 3 SCC 293 State actions are amenable to judicial review only
to the extent that the State must act validly for a discernible reason,
not whimsically for any ulterior purpose. The observations of His
Lordship, Sabyasachi Mukherjee, J. (As the learned Chief Justice then
was) made in paragraph 25 are worth noting.
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“………….. Where there is arbitrariness in State action, Article
14 springs in and judicial review strikes such an action down.
Every action of the executive authority must be subject to rule
of law and must be informed by reason. So, whatever be the
activity of the public authority, it should meet the test of Article
14. …….”
23. In Kumari Shrilekha Vidhyarthi and Others v. State of
U.P. and Others reported in (1991) 1 SCC 212, the Supreme Court
made the following observations in paragraphs 36 and 37.
“36. The meaning and true import of arbitrariness is more
easily visualized than precisely stated or defined. The
question, whether an impugned act is arbitrary or not, is
ultimately to be answered on the facts and in the
circumstances of a given case. An obvious test to apply is to
see whether there is any discernible principle emerging from
the impugned act and if so, does it satisfy the test of
reasonableness. Where a mode is prescribed for doing an act
and there is no impediment in following that procedure,
performance of the act otherwise and in a manner which does
not disclose any discernible principle which is reasonable, may
itself attract the vice of arbitrariness. Every State action must
be informed by reason and it follows that an act uninformed by
reason, is arbitrary. Rule of law contemplates governance by
laws and not by humour, whims or caprices of the men to
whom the governance is entrusted for the time being. It is trite
that ‘be you ever so high, the laws are above you’. This is what
men in power must remember, always.
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37. Almost a quarter century back, this Court in S.G.
Jaisinghani v. Union of India indicated the test of arbitrariness
and the pitfalls to be avoided in all State actions to prevent
that vice, in a passage as under:
“In this context it is important to emphasize that the
absence of arbitrary power is the first essential of the
rule of law upon which our whole constitutional system is
based. In a system governed by rule of law, discretion,
when conferred upon executive authorities, must be
confined within clearly defined limits. The rule of law
from this point of view means that decisions should be
made by the application of known principle or without
any rule it is where he is. If a decision is taken without
any principle or without any rule it is unpredictable and
such a decision is the antithesis of a decision taken in
accordance with the rule of law. (See Dicey, Law of
Constitution, 10th
edn. Introduction, cx). ‘Law has reached
its finest moments’, stated Douglas, J. in United States v.
Wunderlich, ‘when it has freed man from the unlimited
discretion of some ruler…. Where discretion is absolute,
man has always suffered’. It is in this sense that the rule
of law may be said to be sworn enemy of caprice.
Discretion, as Lord Mansfield stated it is classic terms in
the case of John Wilkes, ‘means sound discretion guided
by law. It must be governed by rule, not humour: it must
not be arbitrary, vague and fanciful’.””
24. We, therefore, find that the method adopted by the Indian
Statistical Institute for determining the fate of the candidates should
be declared to be invalid on the above ground alone.
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25. The next question is, even assuming for the sake of argument,
that the Statistical Institute, Kolkata has the authority to invent the
formula, whether the application of the same has resulted in failure of
justice.
26. In our opinion, if a Statute and the Rules framed there under
have provided that the merit list should be prepared on the basis of
60% weightage of percentile marks obtained by a candidate in a
board examination after normalizing with other Boards along with
40% weightage of percentile marks obtained by a candidate in
JEE[Main] Examination, it necessarily follows that the merit list should
be prepared solely on the basis of the performance of a candidate in
those two examinations based on the system of percentile and no
other factor can influence its process of marking. It appears from the
method invented by the Indian Statistical Institute, Kolkata that the
fate of a candidate will not solely depend upon his performance in
those two examinations but also on a factor as to how many
candidates have registered their names in the process of selection
from his own Board who have obtained less number in the Board
Examination than that of the said candidate. The Respondents, as it
appears from the record, have not taken into consideration the
percentile sent by the concerned Boards after taking into
consideration the marks obtained by all the candidates who have got
less amount of marks than the concerned candidate in the Board
Examination; on the other hand, they have arrived at the different
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percentile based on the lesser amount of marks obtained by the
candidates of that Board who have registered their names in the
process of selection. The Rules, we have already pointed out,
prescribe that the merit list would be based on percentile available
from the Board which necessarily implies percentile based on the
result of all candidates of the Board Examination but not based only
on the result of those candidates who have registered their
candidature in the present process. For the above reason, it is
specifically provided in the Rules that if the percentile of any of the
Boards is not available, a separate list would be prepared for those
candidates on pro rata basis. The purpose of the above Rule is to
decide the percentile of the Board Examination on the basis of the
result of all the candidates of the Board on the three subjects and not
on the basis of marks obtained by only those candidates who have
registered their names in the process of selection. It is needless to
mention that the marks obtained by those candidates are very much
available to the Respondents and thus, without the help of the
percentile prepared by the Boards, they could prepare the list if the
intention of the legislature was to prepare percentile based on the
marks of only those students of the Board who have registered their
names. The above Rule indicates that the intention of the legislature
is to get the percentile with reference to all the examinees in the
Board Examination. In this connection, we may refer to the following
two instances given by the petitioners:-
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C.B.S.E. Board Gujarat Board
A. Roll No.90900926 Roll No. 82100499
1. JEE Main Marks 118 JEE Main Marks 103
Board Science mark 90% Board Science Mark 78%
ACPC merit list no 4920 ACPC Merit List no. 4682
B.Roll No.90691284 Roll No. 81801147
1. JEE Main Marks 100 JEE Main Marks 91
Board Science mark 95% Board Science Mark 88%
ACPC merit list no 2422 ACPC Merit List no. 2161
27. From the above two comparative instances, it appears that
although both in the Board examination and the JEE[Main]
Examination, the candidate of CBSE Board has performed much
better than the above two students of the Gujarat Board, in the merit
list prepared by the respondents, the students of the CBSE Board
have been placed much below those of the Gujarat Board students.
The same thing can be stated about the example of Shri Tanna and
Shri Vivek Patel who stood first in their respective board examinations
and although Mr. Vivek Patel scored more marks in the JEE[Main]
Examination and at the same time, obtained much more higher
percentage of marks in his Board examination, he was placed below
Mr. Tanna. We are unable to accept the principle adopted that “Board
percentiles are to be mapped with JEE-Main percentiles and the
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corresponding PCM marks” and that in stead of the percentile marks
of the Board with reference to all the students of the Board, only the
marks obtained by the students who have registered their
candidature in the process of selection should be taken into
consideration as suggested by the Statistical Institute, Kolkata, which
is in conflict with the method prescribed in the Rules. If the percentile
of the concerned Boards with reference to all the students of the
Boards as provided in the Rules is taken into consideration, Mr. Tanna
would come below Mr. Vivek Patel in the merit list. It may not be out
of place to mention here that according to the percentile given by JEE
authority in regard to all the students of JEE, the percentile of Mr.
Patel is 99.98 whereas that of Mr. Tanna is 99.97. On the contrary, by
applying the formula impugned, the respondents have arrived at the
percentile of Mr. Tanna in JEE to a figure of 99.97301750 and that of
Mr. Patel to 99.97869802 which is in conflict with the JEE percentile.
Thus, the formula of the respondents does not reflect the correct
merits of the candidates. Same thing would happen in case of the
other two instances mentioned above where the candidates of the
CBSE Board will be above the candidates of the Gujarat Board.
28. Therefore, it is apparent that the mode of preparation of merit
list is not in conformity with the Rules, which suggested that after
normalization of marks of the students from different Boards,
weightage of 60% percentile marks in respect of Board Examination
and weightage of 40% percentile marks in JEE examinations should
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alone be taken into consideration based on the presumption that
percentile is the determining factor of comparison of the respective
standard of different Boards. We have already pointed out that there
is no justification of taking into consideration the factor of number of
candidates who have registered in JEE [Main] Examination from a
particular Board or the number of candidates registered in the
process of selection in question. It appears from the material placed
before us that only 9 students of IB Board have participated in the
process of selection. If we assume for the sake of argument that the
1st
to 9th
students of that Board on merit only have registered their
names in the process of selection, the percentile mark of 9th
student
will be Zero notwithstanding the fact that he ranked 9th
in his Board
Examination and hence, otherwise a brilliant student. Therefore, the
principle adopted cannot be said to be reasonable as apart from the
actual performance of the candidates on merit, some extraneous
considerations not related to actual performance in those two
examinations are taken into consideration.
29. At this stage, we may profitably refer to the decision of the
Supreme Court in the case of Saurabh Chaudhary vs. Union of
India reported in AIR 2004 SC 361 = 2003 (11) SCC 146 where
the Supreme Court has categorically held that the right of a
meritorious student to get admission in a course is a fundamental and
human right, which is required to be protected. It was further held
that such a valuable right cannot be permitted to be whittled down at
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the instance of less meritorious students.
30. We may at this stage also refer to the decision of the Supreme
Court in the case of Bangalore Medical Trust vs. B.S. Mudappa
reported in AIR 1991 SC 1902 = 1991 (4) SCC 54 where the
Supreme Court held that in administration action, discretion of
framing of policy or issuing directions should be used in public
interest and should be exercised objectively, rationally, intelligibly,
fairly and non-arbitrarily. The Supreme Court further cautioned that it
should not be made in an undue haste, disregarding the procedure
and in any case, should not vitiate the spirit of Article 14 of the
Constitution of India.
31. In the case of S.G. Jaisinghani v. Union of India and Ors.
reported in AIR 1967 SC 1427, the Supreme Court held that the
absence of arbitrary power is the first essence of the rule of law upon
which our whole constitutional system is based and discretion when
conferred upon executive authorities must be continued with clear
defined limits and the power should be so exercised that such
decision in normal exercise of power should be predictable.
32. We also find that the observations of the Supreme Court in the
case of M/S. Hochtief Gammon v. State of Orissa reported in AIR
1975 SC 2226 = 1975 (2) SCC 649 are relevant, which are quoted
below:
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“The Executive have to reach their decisions by taking
into account relevant considerations. They should not
refuse to consider relevant matter nor should they take
into account wholly irrelevant or extraneous consideration.
They should not misdirect themselves on a point of law.
Only such a decision will be lawful. The Courts have power
to see that the Executive acts lawfully. It is no answer to
the exercise of that power to say the executive acted bona
fide nor that they have bestowed painstaking
consideration. They cannot avoid scrutiny by Courts by
failing to give reasons. If they give reasons and they are
good reasons, the Court can direct them to reconsider the
matter in the light of relevant matters, though the
propriety, adequacy or satisfactory character of these
reasons may not be open to judicial scrutiny. Even if the
Executive considers it inexpedient to exercise their powers
they should state their reasons and there must be material
to show that they have considered all the relevant facts”
33. We, therefore, find that on the face of the materials on record,
the procedure adopted cannot be said to be reasonable and is
opposed to the Rules.
34. The next question is whether we should entertain these
applications on the alleged ground of delay.
35. In the aforesaid context, we may quote with profit a Five Judge
Bench decision of the Supreme Court in the case of Ramchandra
Shankar Deodhar and Others v. The State of Maharashtra and
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Others reported in AIR 1974 SC 259. The issue before the
Supreme Court was one relating to promotion to the post of Deputy
Collector. A preliminary objection was raised on behalf of the
respondents that the petitioners were guilty of gross laches and delay
in filing the petition. Such objection was raised as the divisional
cadres of Mamlatdars/ Tehsildars were created as far back as 1st
November 1956 by the Government Resolution of that date, and the
procedure for making promotion to the posts of Deputy Collector on
the basis of divisional select lists, which was a necessary
consequence of the creation of the divisional cadre of
Mamlatdars/Tehsildar, had been in operation for a long number of
years. It was pointed out by the respondents that there was a delay
of more than ten to twelve years in filing the petition since the
accrual of the cause of complaint and such delay was sufficient to
disentitle the petitioners to any relief in a petition under Article 32 of
the Constitution. The Supreme Court negatived such preliminary
objection by observing as under:
“…………. We do not think this contention should prevail with
us. In the first place, it must be remembered that the rule
which says that the Court may not inquire into belated and
stale claims is not a rule of law, but a rule of practice based on
sound and proper exercise of discretion, and there is no
inviolable rule that whenever there is delay, the court must
necessarily refuse to entertain the petition. Each case must
depend on its own facts. The question, as pointed out by
Hidayatullah, C.J., in Tilockchand Motichan v. H.B.Munshi,
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(1969) 2 SCR 824 = (AIR 1970 SC 898), “is one discretion for
this Court to follow from case to case. There is no lower limit
and there is no upper limit…. It will all depend on what the
breach of the Fundamental Right and the remedy claimed are
and how the delay arose.” ”
36. In a very recent pronouncement of the Supreme Court in the
case of Tukaram Kana Joshi and Others v. M.I.D.C. and Others
reported in AIR 2013 SC 565, His Lordship Dr. B.S.Chauhan, J.
reiterated the position of law on the issue of delay. What was
assailed before the Supreme Court was the judgment and order
passed by the High Court of Bombay by way of which the High Court
had rejected the claim of the appellants for compensation due to
them for the land taken by the respondent authorities, without
resorting to any procedure prescribed by law. It was contended
before the Court that the delay and laches on the part of the
appellants had extinguished the right to put forth a claim. In such
circumstances, His Lordship made the following observations in
paragraphs 10, 11 and 12, which, in our opinion, are very apt and
helps the petitioners.
“10. The State, especially a welfare State which is governed
by the Rule of Law, cannot arrogate itself to a status beyond
one that is provided by the Constitution. Our Constitution is an
organic and flexible one. Delay and laches is adopted as a
mode of discretion to decline exercise of jurisdiction to grant
relief. There is another facet. The Court is required to exercise
judicial discretion. The said discretion is dependent on facts
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and circumstances of the cases. Delay and laches is one of the
facets to deny exercise of discretion. It is not an absolute
impediment. There can be mitigating factors, continuity of
cause of action, etc. That apart, if whole thing shocks the
judicial conscience, then the Court should exercise the
discretion more so, when no third party interest is involved.
Thus analysed, the petition is not hit by the doctrine of delay
and laches as the same is not a constitutional imitation, the
cause of action is continuous and further the situation certainly
shocks judicial conscience.
11. The question of condonation of delay is one of the
discretion and has to be decided on the basis of the facts of the
case at hand, as the same vary from case to case. It will
depend upon what the breach of fundamental right and the
remedy claimed are and when and how the delay arose. It is
not that there is any period of limitation for the Courts to
exercise their powers under Article 226, nor is it that there can
never be a case where the Courts cannot interfere in a matter,
after the passage of a certain length of time. There may be a
case where the demand for justice is so compelling, that the
High Court would be inclined to interfere in spite of delay.
Ultimately, it would be a matter within the discretion of the
Court and such discretion, must be exercised fairly and justly
so as to promote justice and not to defeat it. The validity of the
party’s defence must be tried upon principles substantially
equitable. (Vide: P.S.Sadasivaswamy v. State of T.N. AIR 1974
SC 2271; State of M.P. and Ors. V. Nandlal Jaiswal and Ors., AIR
1987 SC 251; and Tridip Kumar Dingal and Ors. v. State of West
Bengal and Ors., (2009) 1 SCC 768: (AIR 2008 SC (Suppl) 824);)
12. No hard and fast rule can be laid down as to when the
High Court should refuse to exercise its jurisdiction in favour of
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a party who moves it after considerable delay and is otherwise
guilty of laches. Discretion must be exercised judiciously and
reasonably. In the event that the claim made by the applicant
is legally sustainable, delay should be condoned. In other
words, where circumstances justifying the conduct exist, the
illegality which is manifest, cannot be sustained on the sole
ground of laches. When substantial justice and technical
considerations are pitted against each other, the cause of
substantial justice deserves to be preferred, for the other side
cannot claim to have a vested right in the injustice being done,
because of a non-deliberate delay. The court should not harm
innocent parties if their rights have infact emerged, by delay on
the part of the petitioners. (Vide:Durga Prasad v. Chief
Controller of Imports and Exports and Ors. AIR 1970 SC 769;
Collector, Land Acquisition, Anantnag and Anr. V. Mst. Katiji and
Ors., AIR 1987 SC 1353; Delhi Rohtas Light Railway Company
Ltd. v. District Board, Bhojpur and Ors., AIR 1993 SC 802: (1992
AIR SCW 3181); Dayal Singh and Ors. v. Union of India and Ors.
AIR 2003 SC 1140: (2003 AIR SCW 685); and Shankara Co-op.
Housing Society Ltd. v. M.Prabhakar and Ors. AIR 2011 SC 2161
: (2011 AIR SCW 3033))”
37. In the cases before us it appears that the impugned admission
rules were published on 30th
April 2013, and the following are the key
dates [schedule] for the process of filling up the seats:
Sr.No. Activities Date
1 Distribution of information booklets with
PIN from designated branches of bank
20.05.2013 to
01.06.2013
2 Online Registration & submission of filled
Registration form with necessary
documents at Help Centers
22.05.2013 to
03.06.2013
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3 Finalisation of Seat Matrix 08/06/13
4 Declaration of Provisional Merit List 10/06/13
5 Choice Filling for Mock Round 10.06.2013 to
15.06.2013
6 Display Result of Mock Round 18.06.2013
7 Declaration of Final Merit List 20.06.2013
8 Final list of institutes and Seat Matrix 20.06.2013
9 Filing & Alteration of choices by the
candidates for actual Admission: Round-1
20.06.2013 to
24.06.2013
10 Display of Filled & locked choices and
reporting to ACPC if any discrepancy
found
25.06.2013
11 Declaration of First Allotment List 27.06.2013
12 Deposition of Tuition Fees in the Bank
and Reporting with original Documents /
certificates / testimonials at Help Centres
27.06.2013 to
03.07.2013
13 Intimation to not-reporting students by
SMS
04/07/13
14 Choice filling for candidates who have
given consent for Management Quota
admissions
04.07.2013 to
05.07.2013
15 Reporting at ACPC for not reported
students
05/07/13
16 Display of vacancy after Round-1 06/07/13
17 Consent for Reshuffling and alteration of
choices if any: Round 2
06.07.2013 to
08.07.2013
18 Declaration of Second Allotment List 10/07/13
19 Deposition of Tuition Fees in the Bank
and Reporting with original Documents /
certificates / testimonials at Help Centres
10.07.2013 to
15.07.2013
20 Intimation to non-reporting students by
SMS
16.07.2013
21 Reporting at ACPC for not reported
students
17.07.2013
22 Display of vacancy after Round-2 18.07.2013
23 Commencement of Academic Term 18.07.2013
37.1 The Special Civil Application No. 9960 of 2013 has been filed on
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18th
June, 2013. After taking into consideration the aforesaid
schedule of dates and also taking into consideration the fact that the
method of normalization was not at all informed to the students
earlier and such method has been disclosed for the first time before
this Court, practically there has been no delay and, thus, delay
cannot be a ground for rejection of these writ-applications. Moreover,
we have found that the procedure adopted by the respondent
authorities is beyond the scope of the Act and the Rules, and, at the
same time, most unreasonable as it was not solely based on
performance of candidates in the two examinations prescribed. We,
thus, find that there is no delay on the part of the petitioners in
approaching this court.
38. On consideration of the entire materials on record, we declare
that the merit list has not been prepared in accordance with the
existing Rules and at the same time, the method adopted itself is
violative of Article 14 of the Constitution of India. We, accordingly,
pass order in terms of paragraph 18.A of Special Civil Application No.
9960 of 2013 in all these matters and direct the respondents to
strictly follow the provisions contained in the Rules as indicated
below.
38.1 The merit list in accordance with the existing Rules should be
prepared in the following way:
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The total marks obtained by a candidate will be A +B where,
A is the Percentage of actual marks obtained by a candidate
in his Board Examination x percentile given by that Board in
respect of that candidate in comparison to all the similar
candidates appearing in that Board Examination irrespective
of the fact whether they have registered in this process of
selection or not X 0.6 and B is the Percentage of marks
actually obtained by that candidate in JEE X percentile given
to that candidate with reference to the performance of all
the persons appearing in JEE irrespective of the fact whether
they have registered in this process of selection or not X
0.4.
38.2 The respondents are directed to act accordingly and
prepare fresh merit list.
No costs.
(BHASKAR BHATTACHARYA, CJ.)
(J.B.PARDIWALA, J.)
mathew
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C sca 9960_2013_j_6

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