1. By way of this petition, petitioner has prayed for following reliefs:
“(A) Your Lordship may be pleased to allow this petition and issue of writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned decision dated 11.7.2012 where by the petitioner's candidature has been cancelled with immediate effect.
(B) Your Lordships be pleased to call for the relevant record in connection with the instant case.
(C) Your Lordship be pleased to direct the respondent authorities to consider the petitioner's representation in the right perspective and take a reasonable and fair view of the same and restore the petitioner to his original position.
(D) Pending the admission and final hearing of this petition, Your Lordships be pleased to direct the respondent No.2 to permit the petitioner to again join and continue with his term and further direct the respondent No.2 not to take any such course of action which may jeopardize, petitioner's position in case he is restored back to his original position.
(E) An ex-parte ad-interim relief in terms of prayer (C) above may kindly be granted”.
2. The brief facts leading rise to the present petition are as under:
2.1 The petitioner had passed his MBBS from the SMIMER Medical College of the respondent No.2 University and as on the date of the impugned decision was already admitted in the course of PG registration for MS ENT stream with the respondent university. The petitioner has remained an outstanding an distinguished student as well as an outstanding sports candidate throughout his academic carrier as a matter of record.
2.2 The petitioner's twin brother Dr.Prayaas Pradip Kumar has also passed his MBBS from the SMIMER Medical College of the respondent No.2-University and as on the date of the impugned decision was working as a Resident Doctor in 2nd year (Surgery) with the respondent No.2- University.
2.3 The petitioner (Prayatna Pradip Kumar) passed the said entrance test with merit No.126. Thereafter, he was present in the first counseling admission procedure on 16.5.2012 but did not get admission in specific branch of his choice and therefore, opted for second counseling, which was scheduled on 28.6.2012.
2.4 On 21.6.2012, the petitioner got admission in surgery at Pramukh Swami Medical College, Karamsad on the basis of his merit No.77 and joined at Karamsad.
2.5 On 29.6.2012, since the petitioner could not remain present in 2nd counseling, the petitioner's brother attended the counseling procedure for him with his duly signed authority letter and due to the fact that petitioner and his brothers are Monozygotic identical twins, having resembling faces, the admission committee, under a very disastrously misconstrued impression, that the petitioner's brother is in fact the petitioner (Prayatna), did not ask for his details and in turn did not verify the authority letter or any identity proof or signature whatsoever. In fact, the counseling procedure is a facility created by educational institutes to help students or candidates to choose the course of the study of their desire.
2.6 Since joining procedure was to close at 5.00 p.m. and the petitioner was yet to reach Surat, the petitioner's twin brother Dr.Prayaas Pradip Kumar signed the joining report on behalf of his brother and subsequently at 4.00 p.m. on the same day, Prayatna had reached Surat and the concerned HOD of ENT had cancelled the signature of the Prayaas and permitted the petitioner Prayatna to sign the joining report, which he did. Accordingly, the petitioner Prayatna Pradip Kumar joined.
2.7 The admission committee called upon him and his brother and questioned their conduct of representation in the counseling procedure.
3. Mr.Vyas, learned advocate for the petitioner submitted that relevant rules specifically permit and authorize representation in case a candidate is not able to remain present due to unavoidable circumstances, or accident or illness. It may be noted that various universities in the State of Gujarat do recognize the concept of authorized proxy representation in their rules. He further submitted that on 11.7.2012, the respondent No.2 passed the non speaking impugned decision without assigning any reasons and without any notice or providing any opportunity of hearing and that in view of the peculiar facts that merely because both the twins looking like identical, proper explanation could not be tendered at an appropriate stage.
4. Heard learned advocates for the parties.
5. Mr.Vyas drawn the attention of the Court to the notification issued by Education Department dated 29th May, 2009, wherein, para-6 reads as under:
“6. In case the candidate is unable to remain present personally, on the date, time and place of counseling, due to serious illness, accident or unavoidable circumstances, his parents or guardian shall, after obtaining prior approval of the Committee or any officer authorized by the Committee remain present on the scheduled date time and place. An authority letter signed by the candidate showing his order of preference and choice of discipline/ courses and colleges or institutions shall have to be produced by the parents or guardian who shall remain present in his behalf, along with the documentary evidence showing reason for the absence of inability to remain present personally”.
6. It is an admitted position that since the petitioner could not remain present in the 2nd counseling, the petitioner's brother attended the counseling procedure for him with his duly signed authority letter. In fact the counseling procedure is a facility created by educational institutes to help students or candidates to choose the course of the study of their desire. The merit is already predetermined and nobody has to prove or appear for any interview or perform anything. A representation or proxy in form of authority letter is a rule for the benefit of candidates, who cannot remain present on the day of counseling for securing admission, which was totally neglected by the respondent-University.
7. On the peculiar facts of the present case, this Court is of the opinion that the decision is too harsh since the same leads to be fatal to the entire career of the petitioner. This is a sole incident of controversy in the entire academic career of the petitioner as against his distinguished outstanding performance in academics and sports all throughout and the same is a matter of record. The punishment of permanent termination of Post Graduate Registration from MS ENT from the respondent university and permanent termination of Residency of Post Graduate Medical Student at SMIMER is unjustified.
8. In that view of the matter, order of the Authority dated 11th July, 2012 is required to be quashed and set aside and same is quashed and set aside. The period starting from his admission to the course till date shall be treated as special leave to avoid deficiency in attendance in the academic year.
9. The present petition is allowed. Rule is made absolute accordingly.
10. Direct service is permitted.
(K.S.JHAVERI, J.) (ashish)