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Judgment
Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned counsel for the respondents. The petitioner claims to be a non-resident Indian student pursuing her studies, who was admitted to B.Sc. Nursing course in the institution run by the second respondent. She had completed her Pre-University course in Nepal and had obtained a Migration Certificate to continue her education in India and got admitted in the second respondent - College in October 2012.
The petitioner had filed an application to the first respondent - University seeking an Eligibility Certificate, to have her admission approved and to continue her course with the College. The application was rejected on the ground that she had not completed 17 years of age as on 31.12.2012.
The petitioner being aggrieved by the action of the University, had filed a writ petition in W.P. No. 18872/2003 before this Court. The said petition was disposed of on 4.6.2013 with a direction to the respondents to consider the claim of. the petitioner. The petitioner thereafter had made a representation furnishing a certificate dated 18.06.2013 to claim that she had indeed completed 17 years of age as on 31.12.2012. In response to which, a letter dated 2.8.2013 was issued by the University calling upon the petitioner to produce certain documents. The petitioner produced yet another certificate dated 9.8.2013 furnishing an explanation as to how she is deemed to have completed 17 years of age as on 31.12.2012. The respondent - University thereafter issued the eligibility certificate dated 17.08.2013 at Annexure-"H".
The respondent - University notified the examination for the I Semester B.Sc. which was scheduled to commence on 20.08.2013, which was postponed and renotified to commence on 22.08.2013. The petitioner had paid the requisite examination fee, but it was later found that her admission to the course had been denied and therefore, she was not permitted to take the examination. It is at that stage that the petitioner approached this court by way of the present writ petition. And by virtue of an interim order of this Court, she was permitted to take the I Semester examination.
The denial of admission in spite of the Eligibility Certificate issued by the University, the present petition having been filed on the several grounds, the respondents have entered appearance and have filed objections to point out that the petitioner is not entitled to any relief. That in terms of the Regulations and curriculum of the basic B.Sc. Nursing Degree course, 2006 framed as per the Indian Nursing Guidelines of 2004, the candidate should have completed 17 years of age on or before 31st December of the year of admission. Since the petitioner was seeking approval for admission for the academic year 2012-13, she had not completed 17 years of age as on 31.12.2012. The petitioner had furnished certificates to claim that she had attained 17 years as on 31st December of the year of admission. However, the Eligibility Certificate as admitted by the petitioner, had been denied in the first instance and it is only by virtue of the direction issued in a writ petition filed by the petitioner that there was a reconsideration and an Eligibility Certificate had been issued, which however, as claimed later, is said to have been issued under a mistaken impression that the petitioner was 17 years of age.
On the other hand, it is pointed out that the discrepancy has occurred on account of the fact that the petitioner was a student of a College in Nepal and her marks card as well as the Migration Certificate issued by the institutions in Nepal had indicated the date of issue by the Hindu calendar adopted in Nepal, and not the Gregorian calendar. Therefore, the respondents were unclear about the corresponding date of issue as well as the Date of Birth of the petitioner, which again was indicated according to the Hindu calendar and it is on the say of the petitioner when she had produced the certificate claiming that she had attained 17 years as on 31.12.2012, that the Eligibility Certificate had been issued.
It is claimed by the respondent that though an Eligibility Certificate was issued, it was withdrawn on the very day of issuance, upon realisation that there was a mistake in the calculation of the age and the equivalence vis-�-vis the Hindu calendar, as opposed to the age under the Gregorian calendar.
It is alleged that the petitioner had misled the respondents in claiming to be 18 years old, in the application form, for her Eligibility Certificate. Since the Hindu calendar proceeds on the basis that a year consists of 359 days, whereas it is 365 1/4 days under the Gregorian calendar. If this is taken into account, the age claimed by the petitioner is 54 days short of 17 years as on 31.12.2012. Hence, the petitioner was ineligible in terms of the Regulations, which the respondents are not in a position to dilute and hence, the denial of the petitioner''s admission is in order and seeks that the petition be dismissed with costs.
The learned counsel for the petitioner, by way of reply, would point out that it is indeed true that the petitioner''s age as indicated in her application form, is calculated according to the Hindu calendar under which she has obtained her eligible educational qualifications, going by the marks card and other certificates which have been issued under the Hindu calendar. The Regulations of the University do not indicate that the candidate should indicate the age according to the Gregorian calendar and therefore, the testimonials that she possessed being issued with reference to the Hindu calendar and age having been calculated on that basis, cannot be held against her and she cannot be accused of misleading the respondents, when there is no indication that the age should be according to the Gregorian calendar. In any event, it is not the case of the respondents that apart from the discrepancy insofar as the age is concerned, the petitioner is otherwise disqualified with reference to her educational qualification or the equivalence certificate relating to the eligibility insofar as her educational qualification is concerned. Hence, it is stated that the petitioner having been permitted to take her examination though the results have been withheld, subject to the result of this petition, the calculation of her age and the admission to the College on the basis of that age, cannot be taken away only by reference to the difference in the Hindu calendar and the Gregorian calendar, which is a situation brought about by circumstance and not a situation which has been forced by the petitioner and hence, the same would have to be reconciled notwithstanding the Regulations prescribing completion of 17 years of age on, or before 31st December of the year of admission and hence, seeks that the present petition be allowed notwithstanding the above circumstances, in the interest of justice. In the light of the above facts and circumstances, it is to be seen that there have been similar instances where candidates have approached this Court on more than one occasion and it is also to be noticed that differing opinions have been expressed in dealing with the circumstances. The first of the instances in the case of Anshu Rajbanshi v. Rajiv Gandhi University of Health Sciences and others in W.P. 47449/2012, dated 23.01.2013, was a decision of this Court wherein the petitioner was a student who had completed her Higher Secondary examination Classes XI and XII in Nepal and she had applied for admission to the B.Sc. Nursing course. It was found therein that the petitioner was born on 1.1.1996 and she was required to have completed 17 years of age as on 31.12.2012. This Court found that the petitioner had completed 17 years as on 31.12.2012 and as a matter of fact, found that the respondents therein had miscalculated the age of the petitioner and in any event, it was opined that since the course commences in the month of September, there was no rational nexus sought to be achieved by imposing a condition that by 31st December of the previous year, the candidate should have completed 17 years at the time of admission when the petitioner in that case had completed 17 years and 8 months by the time the course commenced and therefore, held that the Regulation was arbitrary in imposing that a candidate should have completed 17 years on 31st December of the previous year and held the Regulation to be invalid. The said decision does not appear to have been questioned and there is no material placed on record that it was subject to any challenge.
However, there is yet another decision of an identical nature rendered by another Single Judge of this Court under similar circumstances, but in a case pertaining to Pharma-D course governed by different Regulations, however involving a similar controversy in the case of Saurav Khatiwada v. Rajiv Gandhi University of Health Sciences & Another ILR 2013 KAR 5358, wherein the petitioner had joined the Pharm-D course for the academic session 2012-13. He was admitted on 5.10.2012 in the management quota. His admission to the course however was not approved by the University. He was not permitted to take the examination held in August 2013 and hence, he had filed the writ petition. The respondents, in contesting the petition claimed that he had not completed 17 years of age as on 31.12.2012. The petitioner therein was born on 24.01.1996 and therefore, the learned Single Judge found that the petitioner had not attained 17 years on or before 31.12.2012 and opined that he was not eligible for admission, in accordance with the Regulations. However, the Court opined that it was no fault of the petitioner that he was admitted to the College and he ought not to suffer on account of the inadvertence on the part of the College and thought it fit to award damages to the petitioner, who was not permitted to take the examination for no fault of his. There is no reference made to the earlier decision of the learned Single Judge.
In the case of the present petitioner herself is as already pointed out, she had approached this Court earlier in W.P. 18872/2013 and it was hotly contested that the petitioner was not entitled to claim that she was 17 years of age with reference to the Hindu Calendar, which was about 56 years and 8 1/2 months ahead of the Gregorian calendar and the petitioner''s date of birth being shown as 15.11.2052 according to the Hindu calendar and the corresponding date of birth in the Gregorian calendar not being clear, this Court had directed that the corresponding date be asserted and that the petitioner''s eligibility or otherwise be considered thereafter. It is in that background that the respondent - University appears to have issued and immediately withdrawn the Eligibility certificate, possibly unsure of the corresponding date of birth of the petitioner under the Gregorian calendar vis-�-vis the Hindu calendar. It in that circumstance that the petitioner is before this Court.
There is no dispute that the petitioner was otherwise qualified, in that, the educational qualification she possessed is equivalent to the qualification prescribed for the admission to the Nursing course. It is however claimed that the petitioner is short of 17 years of age as on 31.12.2012 by 54 days. It is not clear as to the basis of the information on which it is claimed that petitioner''s age falls short of 54 days in claiming that she was 17 as on 31.12.2012. It is the lot of the petitioner that she was born in Nepal and she was admitted to School there and completed her education in Nepal where the Hindu calendar has been adopted for the purpose of calculating her birth and issuing the certificate. The requirement of the respondent -University that a candidate should have attained 17 years of age on or before 31st December of the year of admission being with reference to the Gregorian calendar, is not explicit in the Regulation, though it is possible to hold that the Regulations could only be with reference to the official calendar, namely Gregorian calendar that is followed as the official calendar - by the University. Therefore, the respondent may even be justified in holding that in terms of the Regulations, the petitioner has not attained 17 years of age as on 31st December of the year of admission. However, in spite of this Court having directed in the earlier petition in W.P. No. 18872/2013, in clear terms, that the petitioner obtain and produce an equivalent certificate from a competent authority of Nepal and the Certificate was to indicate the corresponding date to 15.11.2052 under the Hindu Calendar, vis-�-vis the official calendar followed in India and secondly, it was also to state the age of the petitioner as on the cut-off date, namely 31.12.2012 and the University was directed to act on the equivalence certificate if it was satisfied of the equivalence and if it was not satisfied, it was open to the University to seek such clarification as necessary, from the concerned authority in Nepal and take a decision afresh in the matter. The petitioner had accordingly produced an equivalent certificate as at Annexure-"G" issued to state that the Nepali calendar has 359 days for a year and the date of birth of the petitioner indicated as 15.11.2052 would correspond to 27.02.1996 of the Gregorian calendar and the number of days in a Nepali or Hindu calendar year are 359 and proceeding on that basis, the calculation is shown to indicate that the petitioner would have attained 17 years one month and 21 days by 31.12.2012, applying the Nepali calendar. Apparently, the University was not satisfied with the equivalence certificate that was issued and has proceeded to withdraw the admission. The respondents apparently were not satisfied with the same, as the equivalence is indicated not with reference to the Gregorian calendar, but again with reference to the Nepali calendar. In that, though the equivalent date of birth under the Gregorian calendar is indicated, her age is calculated only with reference to the Nepali calendar and not with reference to the Gregorian calendar. The University did not choose to secure another equivalence certificate in view of the above glaring fallacy as was indicated by this Court in the earlier order and have withdrawn the admission. The decision of the learned Single Judge in Saurav Khatiwada case, though pertaining to the Pharma-D course, a strict application of the Regulations would not enable the candidate to sustain the admission and therefore, a view had been taken that the candidate ought to be awarded damages though the relief of sustaining his admission could not be granted is a prudent and conservative view that may even be appropriate.
However, the circumstances that the petitioner has pursued the course and was even permitted to take the examination and the benefit of the same hinges only on the decision in the present petition is relevant. As already indicated, the petitioner cannot be disqualified on the ground of her educational qualification. It is only with reference to the age and having regard to the peculiar circumstances of having to reconcile the Nepali calendar or the Hindu calendar, as it is known, and the Gregorian or the official calendar followed in India, which has resulted in this controversy, while making it clear that if at the stage of admission to any institution that if any discrepancy had been noticed, the petitioner would have been saved the misery of having to go through these proceedings. Since the petitioner has been permitted to go through the course and even take her examinations, it would be a travesty of justice to deny her the benefit of the time spent and the effort involved in relegating her to a position where she has to undertake the course all over again when she has otherwise gained the knowledge, and may also emerge successful in the examinations that she has taken.
Hence, while upholding the Regulations which requires a minimum age for admission, the present case is to be treated as resulting from an accidental circumstance and therefore, would require this Court to direct the respondents to permit the petitioner as a special case, to have the benefit of the admission and the examinations that she has taken. The same would not be a precedent, for it is not possible for any admissions to be permitted if the candidate is below 17 years on or before 31st December of the year of admission. It is for the College authorities to curb and prevent admissions without properly ascertaining the age of the student and save the suffering of the student.
Therefore, in the interest of justice, without meaning to dilute or to otherwise lower the standards fixed by the University, the present petition is allowed. The respondents are directed to approve the admission of the petitioner for the academic year 2012-13 and to announce the result of the petitioner of the I Semester examination for the B.Sc. Nursing Course, which she has already taken, and permit her to complete the course, notwithstanding that she may not have attained 17 years of age as on 31st December of the year of her admission.