By way of this application, the applicants-original petitioners have, inter alia, prayed for the following reliefs:
(A) The Hon'ble Court be pleased to direct the opponent No.4 to permit the applicant to appear in the examinations of ANM Course to be held by the opponent No.4 Gujarat Nursing Council subject to final outcome of the Hon'ble Court.
Heard Mr.Dipen Desai, learned advocate for the applicants-original petitioners, Ms.V.S.Pathak, learned Assistant Government Pleader for opponent Nos.1 and 2, Mr.Dilip B. Rana, learned advocate for opponent No.3, and Mr.J.J.Yagnik, learned advocate for opponent No.4-Council.
While issuing notice this Court (Coram: S.R.Brahmbhatt, J) passed the following order on 28.09.2012:
1. Draft amendment is granted. The same shall be carried out forthwith.
Heard learned advocate for the petitioners. Learned advocate for the petitioners has invited this court's attention to averments made in the petition in para-2.8 at page No.6 qua that admission in the college concerned on earmarked seats for management quota. Admission Rules namely Rule 7 indicates two modes of securing admission namely Rule 7A Government seats and Rule 7B Management quota and quota is provided thereunder. The concerned college has entitlement to fill-in 8 seats. It is not in dispute that 8 seats of management quota are available, out of which, 4 seats have been intended to allot to petitioners. The admission committee cannot encroach upon the management quota seat. The decision of the Division Bench of this Court in Special Civil Application No.15506 of 2008 rendered in 26.12.2008 as well as learned Single Judge in group of matters being Special Civil Application No. 17385 of 2006 to 17388 of 2006 and allied matters rendered on 30.08.2006 is relied upon to canvass submission that the admission committee has no role so far management quota is concerned in Professional Unaided Institution. The attempt to take away the 4 seats as a result of reshuffling is evident from the communication received by the institution, which is produced at Page-58 dated 22.9.2012.
3. This Court is therefore of the prima-facie view that the action appears to be contrary to law laid down by the Division Bench of this Court in respect of management quota seats. Hence, let there be a notice returnable on 05.10.2012. In the meantime and till the returnable date, there shall be ad-interim relief in terms of Paragraph No. 6(C). Direct service permitted.
By Civil Application No.12393 of 2012 the applicants-original petitioners, who applied directly to opponent No.3-College in management quota, have prayed, inter alia, for the following reliefs:
(A) The Hon'ble Court be pleased to direct the opponent No.2 to approve the admissions of the applicants in A.N.M. Couse in the opponent No.3 college.
(B) The Hon'ble Court be pleased to permit the applicants to attend the classes in opponent No.3 college in the ANM Course.
It appears that the aforesaid Civil Application is pending and is ordered to be heard along with the main matter vide order dated 05.12.2012 by this Court (Coram:
S.R.Brahmbhatt, J):
Interim relief granted earlier in main matter being SCA No.13162 of 2012, it is adjourned to 10/12/2012. It would be open to the counsels to urge for further relief if the matter is not heard on that day. Registry to notify main matter along with civil application.
It is also found from the record that in Civil Application No.12393 of 2012, this Court (Coram: Anant S. Dave, J) has passed the following order on 08.11.2012:
1. Without prejudice to the rights and contentions of the parties, namely, petitioners as well as respondents, if the petitioners attend the classes, they would not claim equity in case outcome of the civil application and/or writ petition is contrary to their stand and such attendance would be subject to further order that may be passed by this Court.
2. S.O.
to 27th November 2012.
3. Direct service is permitted.
Considering the averments made in the present Civil Application it appears that on the basis of the aforesaid orders passed by this Court the applicants-original petitioners have attended their classes in opponent No.3-College.
Mr.J.J.Yagnik, learned advocate for opponent No.4-Council, has submitted that except the aspect that opponent No.3-College has given admission to the applicants-original petitioners in the management quota, the other conditions are fulfilled by opponent No.3-College and even the applicants-original petitioners have attended the classes on the basis of the interim orders, which are passed in the main petition as well as in CA No.12393 of 2012.
Mr.Dipen Desai, learned advocate for the applicants, states that the applicants-original petitioners have attended classes as per the aforesaid orders of this Court and the examination is to start on 08.07.2013. It is submitted that in view of the fact that the applicants-original petitioners have attended the classes and have undertaken studies, if the applicants-original petitioners are not permitted to appear in the forthcoming examination they would lose their academic year and, therefore, the prayers prayed for in the present application may be granted and the applicants-original petitioners may be permitted to appear in the examination on any conditions, that may be thought fit by this Court.
Relying upon the averments made in the application, more particularly at Paragraph Nos.8 and 9 thereof, learned advocate for the applicants-original petitioners has submitted that even though the applicants-original petitioners wanted to fill in the forms for appearing in the forthcoming examination, the same were not accepted by opponent No.4-Council as there was no specific order to appear in the examination.
Mr.J.J.Yagnik, learned advocate for opponent No.4-Council, states that the applicants did desire to file forms, however, the same were not accepted since the present proceedings are pending before this Court and, therefore, opponent No.4-Council thought it fit not to accept the forms of the applicants-original petitioners.
Ms.V.S.Pathak, learned Assistant Government Pleader for opponent Nos.1 and 2, has objected to the present application and has submitted that as the admission of the applicants-original petitioners are given directly by the management of opponent No.3-College and as their names do not appear in the merit list prepared by opponent No.2, as per the provisions of Rules 7 of the Gujarat Diploma in General Nursing and Midwifery (Regulation of Admission and Fixation of Fees) (Amendment) Rules, 2012 the applicants' admission are illegal.
This Court finds that the said issue is the main issue, which is already raised in the main petition. However, in view of the earlier interim orders passed by this Court in the main matter as well as in CA No.12393 of 2012, the applicants-original petitioners have been permitted to attend the classes and, therefore, even on the ground of equity, the objections raised by the learned Assistant Government Pleader as far as this application is concerned, praying for permission to appear in the examination, deserves to be negatived.
Considering the aforesaid orders passed by this Court, interest of justice would be served if the applicants-original petitioners are permitted to appear in the forthcoming examination, after complying all formalities required under the Rules i.e. for filling of forms and payment of requisite fees, etc. Applicants-original petitioners are permitted to fill in the forms and if the said forms are found to be in accordance with the Rules, opponent No.4-Council shall permit the applicants-original petitioners to appear in the examination of A.N.M. Course, which is to start on 08.07.2013. However, the result of the applicants-original petitioners shall not be declared without prior permission of this Court and till the main writ petition is decided by this Court.
Applicants-original petitioners shall file undertaking before this Court latest by 05.07.2013 to the effect that they shall not claim any equity. It is made clear that this order shall not prejudice to the rights and contentions of all parties in the main matter.
Disposed of accordingly.
Direct service permitted.
Sd/-
[R.M.CHHAYA, J ] *** Bhavesh* Page 8 of 8