Punjab-Haryana High Court
Educate India Society (Regd) vs The State Of Haryana And Ors. on 18 March, 1999
Equivalent citations: (1999)122PLR357
Author: Harjit Singh Bedi
Bench: Harjit Singh Bedi
JUDGMENT Harjit Singh Bedi, J.
1. The petitioner, a society registered under the provisions of the Societies Registration Act, 1860, is a non-profit unaided organisation set up with the objective of providing quality education to the general public in the field of engineering. The petitioner, accordingly, proposed to set up the college called the Institute of Technology & Management (hereinafter called 'the Institute'). Vide Annexure P-2 dated the 29th July, 1995, respondent No. 2 i.e. the Director of Technical Education, Haryana, conveyed to the petitioner permission of the State Government for the setting up of the Institute at Gurgaon, which would offer a four years degree course in Computer, Mechanical, Electronics and Communication Engineering, It was also provided that the Institute would get itself affiliated with the Maharshi Dayanand University, Rohtak. This affiliation was also granted but later on shifted to the Guru Jambeshwar University, Hissar and subsequently reverted to the Maharshi Dayanand University. Vide Annexure P3 dated 18th July, 1996, the All India Council for Technical Education (hereinafter called the Council' accorded its conditional approval to the petitioner for the establishment of the Institute for the session 1996- 97 and it was stipulated, interalia that the admissions would be made to the various courses by a centralised agency in accordance with the guidelines issued by the Council and the Regulations issued vide notification dated 20th May, 1994 (Annexure R-1 with the reply; hereinafter called 'the Regulations'), which in turn had been framed under the guidelines issued by the Hon'ble Supreme Court in Unni Krishnan J.P. and Ors. v. State of Andhra Pradesh and Ors., A.I.R. 1993 Supreme Court 2178. The Institute, accordingly, admitted students in terms of the Regulations inasmuch as that 50% of the total seats were offered as free seats and the remaining 50% as payment seats and that 50% of the total seats available in both these categories were to be filled in from amongst students belonging to the Scheduled Castes/Scheduled Tribes and Backward Classes as provided by the instructions issued by the State Government. The admissions for the year 1996-97 and 1997-98 were, accordingly, made as per these guidelines. Vide letter dated 16th March, 1998, respondent No. 3, the Regional Engineering College, Kurukshetra, which was the authorised body to make admissions for the session 1998-99, asked the Institute to furnish detailed information with regard to the courses that were being run; the fee that had been received and the reservation policy that was being followed while admitting students. The Institute, however, informed respondent No. 3 that from the ensuing academic session 1998-99, the reservation provided for the constitutionally permissible classes i.e. Scheduled Castes etc was being discontinued in accordance with the option left with the petitioner by Unni Krishnan's case (Supra) itself. Vide Annexure P-8 dated 1st April, 1998, respondent No. 3 asked the petitioner to supply a copy of the judgment in Unni Krishnan's case to respondent No. 1 - i.e. the State Government. This judgment was, accordingly, supplied to respondent. This judgment was, accordingly, supplied to respondent No. 1 on 8th April, 1998 and it was also intimated therein that respondent No. 3 be advised not to notify any reserved seat in the institute while publishing the Admission Brochure for that year. Vide Annexure P-10, a communication dated 10th April, 1998 addressed to respondent No. 1, the petitioner asked respondent No. 3 to supply a copy of the State Policy with regard to reservations and various reminders were also addressed by the respondents on this score. Respondent No. 3, nevertheless, on 10th July, 1998, issued a Admission Brochure for the session 1998-99 notifying that 76 out of the total 160 seats which were available in the Institute were to be filled in from amongst the reserved category candidates. A copy of the Admission Brochure has been attached as Annexure P-15 to the petition. The Institute vide its letter dated 10th July, 1998 Annexure P16 to the petition, conveyed its opposition to this proposal to respondent No. 2 and pointed out that as no policy had thus far been formulated with regard to the reserved seats for constitutionally permissible categories, admission, could not be made under those categories. As respondent No. 3 had nevertheless set the admission process in motion, the petitioner-society has come to this Court by way of this writ petition.
2. This petition came up for motion hearing on 31st July, 1998 and while issuing notice to the respondents, the Council was also impleaded as respondent No. 4 and by way of interim directions, it was ordered that the admissions be made to the reserved seats subject to further orders of this Court. The petition was, thereafter, admitted to regular hearing on 6th October, 1998 and after having been adjourned on a number of occasions, has come up for final disposal today.
3. On notice of motion, various replies have been filed on behalf of the respondents. In the written statement filed on behalf of respondent Nos. 1 and 2, the stand taken is that the Council which had been set up under All India Council for Technical Education Act, 1987 (hereinafter called 'the Act') had notified a scheme under Sections 10 and 23 thereof which provided that while granting approval for the opening of a professional college (such as the Institute), the State Government policy for admission of Scheduled Castes/Scheduled tribes candidates had to be adhered to and that Clause 9(1) of the Regulations, gave an option to a private college to provide for reservation as per the Central Government Policy or the State Government Policy, whereas condition No. 8 of the General Conditions specifically provided that the State Government Policy for admission of Scheduled Castes/Scheduled Tribes and other weaker sections, would be followed by the Institute. It has, accordingly, been pleaded that as a No Objection Certificate had been given by the State Government, approval and affiliation duly granted by the Council and the University respectively subject to Condition No. 8 aforementioned, the Institute could not deviate there from.
4. A separate reply has also been filed by the Council and it has been pointed out that as per Clause 9(1) of the Regulations, it was open to a professional college to provide reservation of seats for candidates belonging to weaker sections of the society in accordance with the rules of the Central Government or the State Government as the case may be and in this background, the petitioner was duty bound to abide by the policy of the State Government.
5. A replication has also been filed by the petitioner reiterating the submissions made in the writ petition.
6. Mr. M.L Sarin, the learned senior counsel appearing on behalf of the petitioner has raised two arguments in the course of the hearing before me today; firstly that the petitioner was not bound to accept the reservation policy framed by the State Government as this option had been left with it by the Supreme Court itself in Unni Krishnan's case (supra); and in Regulation 9(1) and secondly that even assuming that the petitioner was bound to accept the policy, yet in the absence of any policy having so far been framed by the State Government, respondent No. 3 could not make any admission to the reserved categories of seats.
7. The learned Advocate General, Haryana, appearing for respondent Nos. 1 and 2 has, however, urged that from a bare reading of Regulation 9(1), it was apparent that the petitioner was bound to follow a policy of reservation and the only option left to it was to follow either the State Government Policy or the Central Government Policy at its discretion. He has also controverted the petitioner's plea that no rules for admission against the reserved categories had been framed by the State Government and in this connection has referred to Annexure R-6 with the reply. He has finally urged that after having obtained a No Objection Certificates from the State Government; the approval for the Council and Affiliation with the M.D.U. Rohtak, on the basis of General Condition No. 8 and its undertaking Annexure R-5, the petitioner could not, at this stage, make a volte-face and to make a claim that there was no policy in existence, and if there was one, it was not bound to follow it.
8. It will be evident that the arguments would really flow from the directions issued by the Hon'ble Supreme Court in Unni Krishnan's case (Supra). In paragraph 170 of the report, the Court set out a scheme pertaining to admissions etc. to be made to private un-aided Colleges such as the Institute. In sub paragraph 2 of paragraph 170, it has been directed that:-
"It shall, however, be open to a professional college to provide for reservations of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority and the appropriate authority at least one month prior to the issuance of notification calling for applications for admission to such category of colleges. In such a case, the competent authority shall allot students keeping in view the reservation provided by a college. The rule of merit shall be followed even in such reserved categories".
9. This direction has in essence been reproduced as Regulation 9(1) in Annexure R-1. This clause is reproduced below: -
"Regulation 9 (1) It shall be open to a professional college to provide for reservation of seats for candidates belonging to weaker section of society in accordance with the rules of the Central Government or the State Government as the case may be".
10. Mr. Sarin, has, accordingly, argued that the express words in paragraph 170 and that of Regulation 9(1) clearly suggests that it was open to a private college to provide for reservation or decline to do so. He has, in fact, laid emphasis on the judgment to contend that it was only after the college had taken a decision at its own level to admit students against reserved seats that it was called upon to notify the competent authority i.e. the Admitting, Body at least one month prior to the date of filing of the applications for admissions that it proposed to make admission against the reserved categories and it was only in such a situation that the admissions could be made to those categories. To my mind, Regulation 9(1) is a mere derivative of the parent paragraph of the judgment and cannot, therefore, be read in isolation. The learned Advocate General's argument that Regulation 9(1) was to be read as giving only a limited choice to a private college inasmuch as it could accept the Central Government Rules or the State Government Rules on the issue would, thus, be doing violence to the very clear directions of the Hon'ble Supreme Court. It needs to be reiterated that the petitioner is a wholly unaided and self financing body and it is to such Institutions that the direction of the Hon'ble Supreme Court in Unni Krishnan's case have been made applicable.
11. The learned Advocate General has finally pointed out that the petitioner had been granted approval by the Council vide letter dated 18th July, 1996 Annexure R-3 in terms of General Conditions for approval, and condition No. 8 specifically provided that the State Government Policy for admission of Scheduled Castes/Scheduled Tribes Categories and other weaker sections of society, was to be followed by it. He has also urged that Annexure R-4 dated 25th April, 1996, by which the Guru Jambeshwar University, Hissar, had granted affiliation to the petitioner also stipulated (in clause 17) that admissions would be made as per the policy of the government and that if any condition was violated, affiliation could be withdrawn. Special reference has, however, been made by the learned Advocate General to Annexure R-5, the undertaking dated 13.9.1995 given by the Chairman of the petitioner-society that admissions would be made as per the State Government instructions. The learned Advocate General has also relied upon a Division Bench judgment of this Court on Gulmohar Estates Limited and Ors. v. State of Haryana and Anr., (1997-2)116 P.L.R. 547 in support of his case to contend that once having accepted certain conditions of approval and affiliation, the petitioner could be permitted to wriggle out of them.
12. Mr. Sarin has however, controverted the arguments advanced and has pointed out that conditions for approval or affiliation being contrary to the directions of the Hon'ble Supreme Court could not bind the petitioner.
13. There appears to be merit in Mr. Sarin's assertion in the light of the directions of the Hon'ble Supreme Court quoted above and Regulation 9(1). It is apparent therefrom that it was not open to the respondents to even impose such a clause before approval or affiliation or a No Objection Certificate (as the case may be) could be granted to the petitioner and in fact such a condition if enforced, would have the effect of violating the directions of the Hon'ble Supreme Court in Unni Krishnan's Case (Supra). The judgment in Gulmohar Estate's Case (Supra) is wholly inapplicable on facts and does not advance the respondents' case.
14. The learned Advocate General, has finally argued that paragraph 170 of the report itself postulated that in addition to the guidelines laid down by the Hon'ble Supreme Court in the judgment, it was open to the appropriate government and the authorities granting recognition and affiliation to impose such other conditions in addition as may be appropriate. He has, accordingly, urged that it was open to the State Government to lay down a policy of reservation in the light of the liberty granted by the Hon'ble Supreme Court.
15. This argument, to may mind, is also without substance. After sub paragraph (9) of paragraph 170, it has been further clarified that it would be open to the appropriate and the competent authority "to issue such further instructions or directions, as they may think appropriate not inconsistent with this scheme by way of elaboration or elucidation". These words, crystal clear as they are, grant liberty to issue directions which are not inconsistent with the scheme and only if such directions are by way of elaboration or elucidation. The interpretation suggested by the learned Advocate General is, to my mind, contrary to the explicit directions in Unni Krishnan's Case (and not in elucidation or elaboration thereof) and if accepted, would make the order of this Court inconsistent with the observations and guidelines of the Hon'ble Supreme Court.
16. In the light of what has been held above, the argument that no reservation policy has so far been framed by the State Government, does not arise.
17. This petition is, accordingly, allowed and a direction is issued to the respondents that the Institute will not be compelled to make reservation for Scheduled Castes, Scheduled Tribes and other weaker sections of the society in future. Mr. Sarin has, however, stated at the bar that the Institute will not disturb the admissions already made for the session 1998-99 and the students who had been granted admission while this writ petition was pending will be allowed to continue their course of study. No order as to costs. Dasti Order.