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

=========================================================

1Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?`

3Whether their Lordships wish to see the fair copy of the judgment ?

4Whether 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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=============== 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 BHATTACHARYAandHONOURABLE 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 100Total 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 = 99.86687845B1 = Board normalized MarksBL = JEE (Main) PCM Marks corresponding to PL = 240

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BU = JEE(Main) PCM Marks corresponding to PU = 241PL = Largest PCM JEE(Main) Percentile that is smaller than or equal to P = 99.86650761PU = Smallest PCM JEE (Main) Percentile that is greater than or equal to P = 99.86934788

99.86687845 – 99.86650761B1 = 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 100Total 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 = 99.76774194B1 = Board normalized MarksBL = JEE (Main) PCM Marks corresponding to PL = 218

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BU = JEE(Main) PCM Marks corresponding to PU = 219PL = Largest PCM JEE(Main) Percentile that is smaller than or equal to P = 99.75573733PU = Smallest PCM JEE (Main) Percentile that is greater than or equal to P = 99.76851852

99.76774194 – 99.75573733B1 = 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 StudentsGujarat State Board 66105CBSE 3875ICSE 410NIOS 17IB 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 to24.06.2013

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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