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

========================================== =============== Whether Reporters of Local Papers may be 1 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 ?

Whether this case involves a substantial question 4 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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=============== HEEMAN DHOLARIYA & ORS. Versus STATE OF GUJARAT & ORS.
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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
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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 [a]

The functions of the Committees are prescribed as follows: 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 = 99.86687845 Percentile

(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 B1 99.86687845 99.86650761 = 240 +------------------------------------- X (241 240) 99.86934788 99.86650761

= 240.13056505 (9) Therefore Total Merit Score is 0.6) (275 x 0.4)+(240.13056505 x

= 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 = 99.97869802 Percentile

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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 = 99.76774194 Percentile

(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
B1=BL +-----------X (BU-BL), if BU > BL (PU PL) B1 = BL, if BU = BL

(P PL)

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

B1

99.76774194 99.75573733 = 218 +------------------------------------- X (219 218) 99.76851852 99.75573733

= 218.93924040 (10) Therefore Total Merit Score is 0.6) = 243.36354424 (11) Arrange merit score in descending order. (280 x 0.4)+(218.93924040 x

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 writapplications 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 2[j] xxx this Act. xxx xxx xxx xxx prescribed means prescribed by the rules made under

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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 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 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] [ii] the Gujarat Board; or 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] [b] the school in which the candidate has studied, shall have been located in the State of Gujarat; or 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 Gujarat; or [b] the study Center/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 [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 the candidate

has studied, shall have been located in the State of

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[b]

the study Center/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; and

[vi] have [2]

appeared

in

JEE

[Main]

conducted

in

the

corresponding academic year: 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] [ii] has appeared in JEE[Main] conducted in the

corresponding academic year; and 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] [b] Officers or Employees of Central Government; or Officers or Employees of Public Sector Undertakings of Central Government or any State Government; or [c] [d] Officers or Employees of nationalized banks; or Officers or Employees of United Nations, UNICEF, World 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] [iii] thereafter studied in any of the schools located out of the State of Gujarat under the said scheme, and has 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 passed Qualifying Examination from a Navodaya Vidyalay located outside Gujarat State, Health Organization and such other International Institutions located in Gujarat State;

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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 managed Education, Policy by of Education. The scheme Samiti, is an Navodaya Ministry of Vidyalaya Human

autonomous organisation under the Department of 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 merit list academic by year, the by the Admission Committee on the basis of the prepared 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:[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 merit [b] list academic by year, the by the Admission Committee on the basis of the prepared Admission Committee. 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 by the with the guidelines [iii] the Pandit issued Admission University

Committee in this behalf. Deendayal Petroleum established under the Pandit Deendayal Petroleum University Act, 2007 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 merit [b] list academic by year, the by the Admission Committee on the basis of the prepared Admission Committee; Fifty percent seats shall be filled by the Pandit Deendayal Petroleum 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. [iv] the Institute of Infrastructure, Technology, Research And Management established by Institute of And Infrastructure, Technology, Research

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Management Act, 2012 [Guj.5 of 2013] 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 merit [b] list academic by year, the by the Admission Committee on the basis of the prepared Admission Committee; Fifty percent seats shall be filled by the Central Counselling Board established by the Government of India 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 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 under the University established 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 have passed the Qualifying Examination from 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 Admission Committee on the basis of the merit [b] list prepared by the Admission Committee; 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 9. Distribution of xxx Seats between xxx 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 in the manner prescribed by the Admission

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], subrule [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] [b] [c] [d] [e] [f] [g] [h] Mathematics and Physics Mathematics and Chemistry Physics and Chemistry Mathematics Physics Chemistry English 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], subrule [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 Gujarat State Board CBSE ICSE NIOS IB The Existing Approach:

Number of Students 66105 3875 410 17 9

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 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. 2. 3. 4. 5. 6. 7. Roll Number of JEE-Main Examination Application Number of JEE-Main Examination Name of the Student Name of the Board Seat Number of the Board Examination Aggregate Marks of PCM in JEE-Main Examination Aggregate Marks of PCM in Board Examination 1. PCM marks for JEE-Main of all the registered candidates

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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 Board 3. Once these percentile ranks are obtained, the normalized board marks can be obtained using the following formula: { { 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, [P-PL] [PU - PL] if BU = BL X100 Total Number of Registered Candidates for the respective

B1 = {BL + ______ X [BU BL], if BU > BL

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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 JEEMain 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 examinees 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, Xs 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,

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. ultimately to be answered on the facts and in The the question, whether an impugned act is arbitrary or not, is 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 A. Roll No.90900926 1. JEE Main Marks Board Science mark ACPC merit list no B.Roll No.90691284 1. JEE Main Marks Board Science mark ACPC merit list no 118

Gujarat Board Roll No. 82100499 JEE Main Marks 103 78% 4682

90% Board Science Mark 4920 ACPC Merit List no. Roll No. 81801147 100 JEE Main Marks

91 88% 2161

95% Board Science Mark 2422 ACPC Merit List no.

27.

From the above two comparative instances, it appears that both in the Board examination and the JEE[Main]

although

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 9 th 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 of the select creation lists, of which the was a necessary cadre of

consequence

divisional

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. depend on its own facts. Each case must 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. impediment. cause of action, etc. It is not an absolute There can be mitigating factors, continuity of 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 It will

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. 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 partys 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 1 2 Distribution of information booklets with PIN from designated branches of bank

Date 20.05.2013 to 01.06.2013

Online Registration & submission of filled 22.05.2013 to Registration form with necessary 03.06.2013 documents at Help Centers

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3 4 5 6 7 8 9 10

Finalisation of Seat Matrix Declaration of Provisional Merit List Choice Filling for Mock Round Display Result of Mock Round Declaration of Final Merit List Final list of institutes and Seat Matrix

08/06/13 10/06/13 10.06.2013 to 15.06.2013 18.06.2013 20.06.2013 20.06.2013

Filing & Alteration of choices by the 20.06.2013 to candidates for actual Admission: Round-1 24.06.2013 Display of Filled & locked choices and reporting to ACPC if any discrepancy found Declaration of First Allotment List 25.06.2013

11 12

27.06.2013

Deposition of Tuition Fees in the Bank 27.06.2013 to and Reporting with original Documents / 03.07.2013 certificates / testimonials at Help Centres Intimation to not-reporting students by SMS Choice filling for candidates who have given consent for Management Quota admissions Reporting at ACPC for not reported students Display of vacancy after Round-1 Consent for Reshuffling and alteration of choices if any: Round 2 Declaration of Second Allotment List 04/07/13 04.07.2013 to 05.07.2013 05/07/13 06/07/13 06.07.2013 to 08.07.2013 10/07/13

13 14

15 16 17 18 19

Deposition of Tuition Fees in the Bank 10.07.2013 to and Reporting with original Documents / 15.07.2013 certificates / testimonials at Help Centres Intimation to non-reporting students by SMS Reporting at ACPC for not reported students Display of vacancy after Round-2 Commencement of Academic Term 16.07.2013 17.07.2013 18.07.2013 18.07.2013

20 21 22 23

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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