Gujarat High Court
Association Of Self Financing Colleges vs State Of Gujarat & on 27 August, 2013
Author: Chief Justice
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
ASSOCIATION OF SELF FINANCING COLLEGES....Petitioner(s)V/SSTATE OF GUJARAT C/SCA/12255/2013 CAV JUDGEMNT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12255 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?2
To be referred to the Reporter or not ?3
Whether their Lordships wish to see the fair copy of the judgment ?4
Whether 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 ?
================================================================ ASSOCIATION OF SELF FINANCING COLLEGES....Petitioner(s) Versus STATE OF GUJARAT &
1....Respondent(s) ================================================================ Appearance:
MR DHAVAL DAVE, SR. COUNSEL with MR PA JADEJA, ADVOCATE for the Petitioner(s) No. 1 MR.
VANDAN BAXI, ASSISTANT GOVERNMENT PLEADER for the Respondent(s) No. 1
- 2 ================================================================ CORAM:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date :27/08/2013 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) This writ-application under Article 226 of the Constitution of India has been filed by an Association of self-financing technical institutions and colleges of the State of Gujarat, seeking the following reliefs:-
(A) That this Hon'ble Court be pleased to declare Rule 17 of the Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules, 2013 and the Master of Computer Application Course (Regulation of Admission and Payment of Fees) Rules, 2013 as ultra vires the Constitution of India to the extent that the said Rule 17 mandates that vacant seats there under for MBA and MCA course are to be filed in only by offering the same to the students who have appeared at either CMAT/CAT/MAT or any other entrance test in the alternative.
(B) That, in the alternative, this Hon'ble Court be pleased to read down the said Rule 17 of the Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules, 2013 and the Master of Computer Application Course (Regulation of Admission and Payment of Fees) Rules, 2013 by construing the same as making it permissible for the colleges to offer vacant seats there under to the students who had not appeared at either CMAT/CAT/MAT or any other entrance test in the alternative after offering the same in the first instance in the order prescribed in the said Rule 17 to the student s who had appeared for either CMAT/CAT/MAT or any other entrance test in the alternative.
(C) That pending admission, hearing and final disposal of the present petition, this Hon'ble Court be pleased to permit the colleges imparting education for MBA and MCA courses to admit students in respect of vacant seats by offering the same to the students who had not appeared at either CMAT/CAT/MAT or any other entrance test in the alternative after offering the same in the first instance in the order prescribed in the said Rule 17 to the students who had appeared for either CMAT/CAT/MAT or any other entrance test in the alternative.
2. The case made out by the petitioner in this petition may be summarized thus:
2.1 The petitioner is an Association of self-financing technical institutions and colleges of the State of Gujarat. The petitioner is a Public Trust registered under the Bombay Public Trusts Act, 1950. The Association has been recognized by the State of Gujarat through its Education Department as a Body representing the self-financing technical institutions and colleges of the State of Gujarat.
2.2 According to the petitioner, the State of Gujarat, in exercise of powers conferred upon it under Section 20 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (hereinafter referred to as "the said Act" for short) has framed the Rules called "The Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules, 2013 and the Master of Computer Application Course (Regulation of Admission and Payment of Fees) Rules, 2013 (hereinafter referred to as "the said Rules" for short).
The object of the said Rules is to regulate the process of admission, as also the payment of fees by the students in respect of the courses in the disciplines of Management and Computer Applications at the level of Post Graduation. Rule 5 of the said Rules prescribes the eligibility criteria for admission to MBA and MCA Courses. According to the said Rule, in order to become eligible for admission to the said Course, the concerned student should have passed the qualifying examination as mentioned in Rule 2, Clause (g) of the said Rules with minimum marks specified in Rule 5 of the said Rules and in addition to that, a student should also have appeared at the Common Management Aptitude Test (for short "CMAT") conducted by the All India Council for Technical Education (for short "AICTE") for the academic year 2013-14.
2.3 According to the petitioner, so far as CMAT is concerned, no minimum qualifying marks have been prescribed in order to become eligible for admission to the said courses. The only requirement is to appear at CMAT. Rule 11 of the said Rules provides for the preparation of a merit list for the purpose of admission to the said courses. According to the petitioner, a conjoint reading of Rules 5 and 11 would make it clear that even if a student has not secured any marks at CMAT, such a student would still find a place in the merit list for admission under Rule 11 of the said Rules, if such a student has passed the qualifying examination as defined by Rule 2 Clause (g) of the said Rules. The entire petition is based on the premise that the marks secured at CMAT would assume importance if there are more number of students aspiring for admission to the said courses as compared to the available seats for the said courses. The reason being that in such a case, the marks at CMAT would decide as to who would get the admission and in which college.
2.4 Rule 17 of the said Rules provides for admission on vacant seats. After offering admission to all the students whose names appear in the merit list or after completion of the admission proces, if the seats remain vacant, it would be open for the college or the institute to fill up such vacant seats in accordance with the directions of the Admission Committee and in the manner prescribed in sub-rule (2) to Rule 17. It needs to be stated that sub-rule (2) does provide that a student shall be offered admission provided such student fulfills the eligibility according to sub-rule (2) of Rule 5 and has appeared in CMAT or any other such tests conducted in the corresponding year as prescribed by the AICTE.
2.5 According to the petitioner, the first round of counseling got concluded at the end of the respondent No.2 Committee for the said courses. At the end of the first round of counseling, out of 10,453 seats available for admission, only 5,300 students opted for admission for MBA course, leaving in all 5,153 seats as vacant. In the same manner, out of 6,126 seats available for MCA Course, only 2,024 seats have been filled up, leaving in all 4,102 seats as vacant.
2.6 According to the petitioner, even after the second round of counseling, substantial number of seats would remain vacant as the number of students who appeared at CMAT are very less. Even if the said seats are to be filled in by the concerned colleges as vacant seats by operating under Rule 17 of the said Rules, the situation would not improve as there are no sufficient number of students who have either appeared for CMAT/CAT/MAT or any other entrance test. However, there are students who have secured the minimum marks in the qualifying examination as specified by Rule 5 of the said Rules. According to the petitioner, before the introduction of CMAT by AICTE, the admissions in respect of MBA and MCA Courses were granted in the State of Gujarat on the basis of an entrance test called "GCET". In the past, whenever it was found that even after admitting the students who had appeared at GCET the seats remained vacant, the State of Gujarat thought fit to amend the Rules so as to make a student eligible to seek admission in the said course, despite the fact that such a student had not appeared at GCET examination. According to the petitioner, the State of Gujarat is not inclined to issue any such Notification for this particular academic year on the ground that from this year onwards the students would have to appear in CMAT, which has been introduced by AICTE, having done away with GCET.
3. In such circumstances, the petitioner prays that the impugned Rule 17 of the said Rules is absolutely without a purpose or object and deserves to be declared as ultra-vires the provisions of the Constitution of India.
4. Stance of the State Government:
An affidavit-in-reply has been affirmed by one Shri R.J. Joshi, Joint Director of Technical Education, Gandhinagar for and on behalf of the State of Gujarat. According to the State Government, the relaxation which was given in the previous two years was to those students who were otherwise eligible, but had not appeared at GCET Examination. The GCET Examination was an open entrance test conducted by the State Government itself. The same relaxation is not permissible as there is no power with the State Government because CMAT is an aptitude test conducted by the AICTE. It is also the case of the State Government that the Admission Committee for the professional course i.e. the respondent No.2, vide letter dated 6th August, 2013, had brought to their notice that out of the total intake of 20,810 MBA/MCA seats for the year 2013-14, the total number of seats which went vacant were 12,880 and a request was also made that the institutions be permitted to admit the students who had not appeared at CMAT. According to the State Government, the approval process Handbook prepared by the AICTE for the current academic year 2013-14 specifically stipulates that for admission to MBA and similar course, the student will be required to qualify in CMAT conducted by the AICTE.
In such circumstances, it has been prayed that there being no merit in this application, the same deserves to be rejected.
5. On behalf of the petitioner, an affidavit-in-rejoinder has been filed to the affidavit-in-reply filed by the State Government. In the said affidavit-in-rejoinder, it has been stated on the basis of documentary evidence that even those students who had obtained zero mark or marks in the negative at CMAT have been offered admission by the respondent No.2 in the MBA and the MCA courses for the current academic year 2013-14. Along with the affidavit-in-rejoinder, a list of students who have been offered admission by the respondent No.2 Admission Committee despite the fact that all those students have scored negative marks, has been annexed. It is also the case of the petitioner in the affidavit-in-rejoinder that the reliance placed by the State Government on the approval process Handbook 2013-14 published by the AICTE is of no consequence for two reasons. First, the concerned rule of which the validity has been challenged in the present petition has been framed by the State of Gujarat in exercise of the power conferred upon it under the relevant statute. The framing of such rule was in no manner dependent upon, guided or influenced by any directive of the AICTE. Secondly, even AICTE which conducted CMAT has not prescribed any marks as the minimum marks for the purpose of declaring any student, who appeared at CMAT, as having passed the CMAT.
6. Submissions on behalf of the petitioner:
Mr. Dhaval Dave, the learned Senior Advocate appearing for the petitioner submitted that Rule 17 of the said Rules is violative of Article 14 of the Constitution of India, inasmuch as there is no nexus between the requirement prescribed thereunder for the admission and the object sought to be achieved thereby, so far as the reference of CMAT and other entrance test for filling up vacant seats is concerned. Mr. Dave submitted that even otherwise the impugned Rule 17 is irrational and unreasonable.
Mr. Dave, therefore, prays that this petition merits consideration and deserves to be allowed.
7. Submissions on behalf of the State Government:
Mr. Vandan Baxi, the learned Assistant Government Pleader appearing for the State-respondent submitted that Rule 17 of the said Rules is valid and reasonable. According to Mr. Baxi, the colleges or the institutions should not be permitted to fill up the vacant seats unless the student has appeared in CMAT. According to Mr. Baxi, whatever its worth, since the AICTE has prescribed such a test, the students desirous of securing admission in MBA/MCA courses are obliged to appear in the open entrance test.
Mr. Baxi, therefore, prays that there being no merit in the petition, the same deserves to be dismissed.
8. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question that falls for our consideration in this petition is whether Rule 17 of the Rules, 2013 is ultra-vires Article 14 of the Constitution of India, or deserves to be read down in a manner so as to make it reasonable and rational.
9. Before we proceed to answer the aforesaid question, we should look into the relevant provisions of the Rule 2013, which are as follows:-
NOTIFICATION EDUCATIONAL DEPARTMENT Sachivalaya, Gandhinagar.
Dated the 21st, June 2013.
No.GH/SH/34/2013/PVS/102011/282/S:-
In exercise of the powers conferred by sub-section (1) of section 20 read with section 4 of the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Guj. 2 of 2008), the Government of Gujarat in supersession of all the rules made in this behalf, hereby makes the following rules to regulate admission to the first year of the Master of Business Administration (MBA) Course and payment of fees, as follows, Namely:-
1. Short Title and Commencement.- These rules may be called the Master of Business Administration Course (Regulation of Admission and Payment of Fees) Rules, 2013.
2. Definitions.- (1) In these rules, unless the context otherwise requires,-
(a) Act means the Gujarat Professional Technical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007;
(b) Admission for the purpose of these rules, means admission of students in the first year of the Master of Business Administration (MBA) Course;
(c) Admission Committee means the Admission Committee constituted by the State Government under section 4 of the Act, for the purpose of admission to the first year of the Master of Business Administration (MBA) Course;
(d) Common Management Aptitude Test (CMAT) means the entrance test, conducted by the All India Council of Technical Education, for determination of merit of the candidate for the purpose of admission in the Master of Business Administration (MBA) Course;
(e) Help Centres means the centres notified by the Admission Committee for facilitation of the candidates for off campus online admission process;
(f) Professional Educational Colleges or Institution means a college or an institution including a University imparting Master of Business Administration (MBA) course, leading to award a post-graduate degrees approved or recognised by the All India Council for Technical Education, New Delhi;
(g) Qualifying Examination means a degree obtained from,-
(i) a University established or incorporated by Central or State Act, or
(ii) any institution declared as deemed to be University under Section 3 of the University Grants Commission Act, 1956, or
(iii) any other equivalent qualification recognised by the Government;
3-4 .... ....... .........
5. Eligibility for Admission.- (1) For the purpose of admission, a candidate shall have appeared in the Common Management Aptitude Test (CMAT) as prescribed by AICTE, for the corresponding year.
(2). A candidate shall have passed the qualifying examination with minimum of 50% marks (45% marks in case of SC/ST/SEBC category candidates from-
(a) a University situated in the Gujarat State; or
(b) a University situated outside the Gujarat State provided that the candidate shall have passed the Higher Secondary School Certificate Examination (Standard XII, 10+2 pattern) or its equivalent examination from,-
(i) the Gujarat Board; or
(ii) the Central Board of Secondary Education:
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, 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.
(3) Subject to the provisions of sub-rules (1) and (2), a candidate who has appeared in the final year of Bachelor's Degree examination shall also be eligible to apply provided that he shall have passed the qualifying examination with 50% marks (45% marks in case of Scheduled Castes, Scheduled tribes and SEBC candidates) at the time of admission.
Explanation.- 50% marks (45% marks in case of SC/ST/SEBC category candidates)shall be computed on the basis of grand total or, cumulative grade point average as shown in the final year mark sheet of the University. In case of grade points, the candidate shall be required to produce equivalence percentage certificate from the University.
(4) Notwithstanding anything contained in these rules, admission to the Master of Business Administration course in-
(i) The Nirma University established under the Nirma University Act, 2003 (Guj. 10 of 2003) shall be granted on the basis of merit order obtained in the Common Admission Test (CAT) conducted by the Indian Institute of Management.
(ii) the Pandit Deendayal University established under the Pandit Deendayal Petroleum University Act, 2007 (Guj. 14 of 2007) shall be granted on the basis of merit order obtained in the Common Admission Test (CAT) conducted by the Indian Institute of Management; and
(iii) Amrut Modi School of Management, Ahmedabad, a constituent college of the Ahmedabad University established under the Ahmedabad University Act, 2009 (Guj. 08 of 2009) shall be granted in the following manner, namely:-
(a) fifty per cent. of the total sanctioned seats shall be filled in by the candidates who have appeared in the Common Admission Test (CAT) conducted by the Indian Institute of Management, on the basis of the merit order of Gujarat State Rank obtained herein:
(b) remaining fifty per cent. of the total sanctioned seats shall be filled in by the candidates who have appeared in the Common Admission Test (CAT) conducted by the Indian Institute of Management, on the basis of the merit order of All India Rank obtained therein.
6. - 10 ...... ...... .....
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 Qualifying Examination from any of the Boards mentioned in the sub-rule (2) or rule 5, on the basis of marks obtained in the Common Management Aptitude Test (CMAT).
(2) The criteria for deciding merit order in case of students having equal merit marks in Common Management Aptitude Test (CMAT) shall be in the following sequence, namely:-
(i) Marks obtained in QT & Data Interpretation section of CMAT,
(ii) Marks obtained in General Awareness section of CMAT,
(iii) Marks obtained in Language Comprehension section of CMAT,
(iv) Percentage of marks obtained in Mathematics subject of S.S.C. Examination (Std. X (10th),
(v) percentage of marks obtained in S.S.C. Examination (Std. 10th).
12-16 . ..... .......
17. Vacant Seats.- (1) After offering admission to all the candidates whose names appear in the merit list or after completion of the admission process, if seats remain vacant, such vacant seats shall be filled by the college or Institute, in accordance with the directions of the Admission Committee and in the manner prescribed in sub-rule (2).
(2) Such College or Institution shall, invite application from the eligible candidates and prepare and inter-se merit-list in the following order, namely:-
(i) names of the candidates whose name appears in the merit list of the Admission Committee,
(ii) candidate who are eligible as per sub-rule (2) or rule 5 and have appeared in CMAT/CAT/MAT or any other such test conducted in the corresponding year as prescribed by the AICTE,
(iii) Candidate who have passed the qualifying examination with at least for open category with 50% (45% for SC/ST/SEBC) marks from any of the Universities or institutes situated outside the Gujarat State and have appeared in CMAT/CAT/MAT or any other such test conducted in the corresponding year as prescribed by the AICTE, by any agency/body approved by AICTE.
10. It may not be out of place to state at this stage that the State Government in the past did issue Notifications dated 10th October, 2011 and 27th September, 2012, permitting the colleges or the institutions to admit students on vacant seats, despite the fact that such students had not appeared at the GCET examination. We take note of the fact, as vociferously submitted by Mr. Baxi, the learned AGP, that the GCET examination, at the relevant point of time, was conducted by the State Government itself. We deem fit to quote both the Notifications.
NOTIFICATION EDUCATION DEPARTMENT SACHIVALAYA, GANDHINAGAR Dated 10th October, 2011 No.GH/SH/53/2011/PVS/102011/1313/S:- In exercise of the powers conferred by sub-section (1) of the section 20 read with section 4 of the Gujarat Professional technical Educational Colleges or Institutions (Regulation of Admission and Fixation of facts) Act, 2007 (Guj. 2 of 2008), the Government of Gujarat hereby makes the following rules further to amend the Master of Business Administration Courses (Regulation of Admission and Payment of Fees) Rules, 2008, namely:-
1. (1) These rules may be called the Master of Business Administration Course (Regulation of Admission and Payment of Fees) (First Amendment) Rules, 2011.
2. In the Master of Business Administration Course (Regulation of Admission and Payment of fees) Rules, 2008, rule 17 shall be numbered as sub-rule (1) of that rule and after sub-rule (1) as so renumbered, the following sub-rule shall be added, namely:-
(2) Notwithstanding anything contained in these rules, for admission in the academic year 2011-12, a candidate who is otherwise eligible under these rules but has not appeared at GCET examination shall also be eligible for admission to the first year Master of Business Administration Course, on the seats declared vacant under sub-rule (1) of rule17.
By order and in the name of the Governor of Gujarat.
Sd/-
(Lalit Vyas) Under Secretary to Government"
************* Date: 27th Sept. 2012 Important Notice for MBA/MCA Institutes regarding Non-GCET Candidates Read:
(1) Notification No.GH/SH/49/2012/PVS/102011/1313/S Dt. 26th September, 2012 (2) Notification No.GH/SH/50/2012/PVS/102011/1313/S Dt. 26th September, 2012 It is hereby informed that, as per the above notification (1) from Education department, Sachivalaya Gandhinagar, a candidate who is otherwise eligible for MBA but has not appeared in GCET-12 examination shall also be eligible for admission to the first year Master of Business Administration course, on the seats declared vacant by the GCET committee under Rule 17.
And as per the notification (2) from Education department, Sachivalaya Gandhinagar, a candidate who is otherwise eligible for MCA but has not appeared in GCET-12 examination shall also be eligible for admission to the first year Master of Computer Application course, on the seats declared vacant by the GCET committee under rule-17.
All the interested candidates and Institutes are hereby informed to download the application form (fee NIL) from GTU web site. The candidates have to submit the filled form with necessary documents in the institute in which they are interested to take admission.
All the other eligibility criteria would be as per the Govt. of Gujarat notification no.PVS/102011/336/S, dated 16th May, 2012 (available on website of GTU, GCET link). For more details please refer GTU website http://www.gtu.ac.in//gcet.
All MBA/MCA institutes are hereby informed to complete the admission process on vacant seats by Non GCET candidates and submit the file of admitted candidates along with application form and necessary documents before 8th October 2012, 5=00 PM.
All the institutes should note that No forms and files regarding this would be accepted after the given deadline.
Nodal Officer GCET-2012"
11. It is a settled law that in interpreting a statute or a rule, the Court must bear in mind that the legislature does not intend what is inconvenient and unreasonable. If a rule leads to an absurdity or manifest injustice from any adherence to it, the Court can step in. A statute or a rule ordinarily should be most agreeable to convenience, reason and as far as possible to do justice to all. A law/rule should not be made without a purpose or object and when it is found so, the Court should not be hesitant in applying the principle of 'reading down' or 'reading into' the provision to make it effective and workable, more particularly when it is found that the object is illusory and appears to be nothing but a shadow hunting process. A law/rule should be beneficial in the sense that it should suppress the mischief and advance the remedy. In interpreting a rule, it is legitimate to take into consideration the reasonableness or unreasonableness of any provision. Gross absurdity must always be avoided in a statute/rule. The expression reasonable means rational, according to the dictate of reason and not excessive or immoderate.
12. We are of the opinion that Mr. Dave is quite justified in submitting that insistence as provided in sub-rule (2)(ii) of Rule 17 of appearing in the CMAT even for the purpose of obtaining admission in MBA/MCA course on vacant seats, appears to be unreasonable and without any object. There is no reply at the end of the State Government that if the students who secured negative marks in CMAT have also been admitted in the MBA course, then why a student who has not appeared in CMAT should not be admitted at a later stage, if he is desirous of seeking admission on a vacant seat as provided in Rule 17 of the said Rules. We are also not impressed by the argument of Mr. Baxi that the State Government is unable to issue the Notification relaxing such requirement as it had done in the previous two years because CMAT has been provided by AICTE and it is not an open entrance test conducted by the State Government.
13. The question which is begging is the importance of the open entrance test CMAT. We do not find any importance which could be attached to such an open entrance test, more particularly when AICTE has not prescribed any minimum standards or requirements for CMAT.
14. An entrance examination is an examination that many educational institutions use to select students for admission. The most common purpose of the competitive examinations centers on the prospect of separation. Irrespective of the institution one would look forward to, do bear in mind that it is keen on extracting the cream from the diluted whole, because everyone looks forward to the best of the lot. Besides being focused on the "best", entrance examinations serve respective institutions to conform to its seat limit. In order to realise it, there has to be a tool of elimination and the purpose of entrance examinations is to serve as a powerful tool of screening.
15. We have taken note of the fact that out of 10,453 available seats for admission to the MBA course, only 5,300 students opted for admission, leaving in all 5,153 seats vacant. In the same manner, out of 6,126 available seats for the MCA course, only 2,024 seats have been filled in, leaving in all 4,102 seats vacant. Among those students who have been admitted, majority of them have secured either zero or negative marks in CMAT, which is evident from the statement annexed by the petitioner with its affidavit-in-rejoinder. This position has not been even disputed by the State Government.
16. Therefore, the first question that arises is whether we should strike down Rule 17 holding it to be ultra-vires Article 14 of the Constitution or we should uphold the validity by adopting the principle of "reading down" or "reading into", so as to make Rule 17 effective, workable and ensure the attainment of the object of the rule. Ordinarily, the Courts would be reluctant to declare a law or rule invalid or ultra-vires on account of unconstitutionality. The Court should make all possible endeavour to interpret in a manner which would be in favour of the constitutionality, as declaring the law or a rule unconstitutional should be one of the last resorts which the Court may take.
17. A validity of a rule has to be adjudged on three well recognized tests: (1) whether the provisions of such regulations fall within the scope and ambit of the power conferred by the statute on the delegate; (2) whether the rules/regulations framed by the delegate are to any extent inconsistent with the provisions of the parent enactment and lastly (3) whether they infringe any of the fundamental rights or other restrictions or limitations imposed by the Constitution (Maharashtra State Board of Secondary and Higher Secondary Education Vs. P.B. Mukarsheth, AIR 1984 SC 1543). There is presumption in favour of the validity of the rule.
18. In Venkayya Vs. Pullayya reported in AIR 1942 Mad. 466, a Division Bench of the Madras High Court, after referring to a decision by the House of Lords in Blackwood Vs. London Chartered Bank of Australia (1874) 5 PC 92, at p.108 observed as under:-
"As has been pointed out by the House of Lords in (1874) 5 PC 92, at pg. 108, the tests to apply in considering whether rules are within the powers of the rule-making authority under a statute are: (1) Whether the rules are reasonable and convenient for carrying the Act into full effect; (2) Whether the rules relate to matters arising under the provisions of the Act; (3) Whether they relate to matters not in the Act otherwise provided for and (4) Whether they are consistent with the provisions of the Act. The validity of a rule is to be determined not so much by ascertaining whether it confers rights or merely regulates procedure, but by determining whether the rule is in conformity with the powers conferred under the statute and whether it is consistent with the statute, reasonable and not contrary to general principles."
19. We may quote with profit the observations of the Supreme Court in the case of Namit Sharma Vs. Union of India reported in (2013) 1 SCC 745. In that case, the subject matter before the Supreme Court was the one under the Right to Information Act, 2005. The Court made the following observations in paragraphs 51 and 61, which are reproduced hereinbelow:-
"51.
Another most significant canon of determination of constitutionality is that the courts would be reluctant to declare a law invalid or ultra vires on account of unconstitutionality. The courts would accept an interpretation which would be in favour of the constitutionality, than an approach which would render the law unconstitutional. Declaring the law unconstitutional is one of the last resorts taken by the courts. The courts would preferably put into service the principle of reading down or reading into the provision to make it effective, workable and ensure the attainment of the object of the Act. These are the principles which clearly emerge from the consistent view taken by this court in its various pronouncements."
"61. It is a settled principle of law, as stated earlier, that courts would generally adopt an interpretation which is favourable to and tilts towards the constitutionality of a statute, with the aid of the principles like reading into and/or reading down the relevant provisions, as opposed to declaring a provision unconstitutional. The courts can also bridge the gaps that have been left by the legislature inadvertently. We are of the considered view that both these principles have to be applied while interpreting Section 12(5). It is the application of these principles that would render the provision constitutional and not opposed to the doctrine of equality. Rather the application of the provision would become more effective."
20. In the aforesaid context, we may also refer to and rely upon a decision of the Supreme Court in the case of Ahmedabad Municipal Corporation and anr. Vs. Nilaybhai R. Thakore and anr. reported in 2000 (1) G.L.H 388. In that case, under Rule 7 of the impugned Rules, "a local student" was defined as a student who has passed SSC/new SSC examination and the qualifying examination from any of the High Schools or Colleges situated within the Ahmedabad Municipal limits. According to that Rule, it was only those students who had qualified from the educational institutions situated within the Municipal limits would be eligible to be treated as 'local students'. While the permanent resident students of Ahmedabad city who for fortuitous reasons, happen to acquire qualification from educational institutions situated just outside the Municipal limits, namely, AUDA, would not be eligible for being treated as the local students. The Supreme Court noticed that the object of the rule was to provide medical education to the students of Ahmedabad who had acquired the necessary qualification, their selection being based on merit. If that was the object, the Supreme Court observed whether the classification based only on the location of the educational institutions within or outside the Municipal area would be a reasonable classification. The Court held that the answer had to be in the negative. However, despite coming to the conclusion that the High Court was right in holding that the rule in question suffered from an element of arbitrariness, the remedy did not lie in striking down the impugned Rules, the existence of which was necessary in the larger interest of the institution as well as the populace of the Ahmedabad Municipal Corporation. The Court observed that the striking down of the rule would mean opening the doors of the institution for admission to all the eligible candidates in the country, which would definitely be opposed to the very object of the establishment of the institution by a local Body. In such circumstances, the following observations of the Supreme Court in paragraph 14 are very apt and could be made applicable to the facts of the present case.
14. Before proceeding to interpret Rule 7 in the manner which we think is the correct interpretation, we have to bear in mind that it is not the jurisdiction of the court to enter into the arena of the legislative prerogative of enacting laws. However, keeping in mind the fact that the rule in question is only a subordinate legislation and by declaring the rule ultra vires, as has been done by the High Court, we would be only causing considerable damage to the cause for which the Municipality had enacted this rule. We, therefore, think it appropriate to rely upon the famous and oft-quoted principle relied on by Lord Denning in the case of Seaford Court Estates Ltd. v. Asher ( [1949] 2 K.B. 481 (CA)) wherein he held "[When a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, ... and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. ... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
This statement of law made by Lord Denning has been consistently followed by this Court starting in the case of M. Pentiah v. Muddala Veeramallappa 1961 AIR(SC) 1107 ) and followed as recently as in the case of S. Gopal Reddy v. State of A.P. ( 1996 (4) SCC 596, 608 :
1996 SCC(Cri) 792 : 1996 AIR(SC) 2184, 2188) (SCC at 608 : AIR at p. 2188). Thus, following the above rule of interpretation and with a view to iron out the creases in the impugned rule which offends Article 14, we interpret Rule 7 as follows "Local student means a student who has passed HSC (sic SSC)/New SSC Examination and the qualifying examination from any of the high schools or colleges situated within the Ahmedabad Municipal Corporation limits and includes a permanent resident student of the Ahmedabad Municipality who acquires the above qualifications from any of the high schools or colleges situated within the Ahmedabad Urban Development Area."
21. Bearing in mind the aforesaid principles as explained by the Supreme Court, we are of the view that although Rule 17, more particularly Clause 2(ii) and (iii) may not be declared as invalid, but at the same time, in a situation of the present nature, it is permissible and would be much more reasonable to read into Rule 17 so as to make it more consistent with the object with which Rule 17 has been enacted.
22. In almost an identical case, the Supreme Court in State of Himachal Pradesh Vs. Himachal Institute of Engineering and Technology, Shimla reported in (1998) 8 SCC 501, permitted the management to fill up vacant seats without insisting for appearance of a student at the entrance test. In that case, the contention on behalf of the Institute before the Supreme Court was that if all the payment seats were not exhausted on the basis of the merit criteria, either on account of paucity of students prepared to take admission on payment basis or on account of drop outs after the cut-off date, the vacancy or vacancies, if any, had to be filled by the management. It was also argued that for filling such vacancies, the management had to determine its own criteria since none from amongst those who had qualified at the entrance test was forthcoming to take the seat on payment basis. In such a situation, it was contended that either the seats might remain vacant and be wasted or the management should be permitted to fill those seats on a reasonable criteria which the management may adopt. It was also argued that if the payment seats remained vacant in such large numbers, the Institute would not be able to meet with the expenses for running the professional course and would be placed on the Hobson's choice of either suffering huge losses or closing down the Institute.
23. Reliance was placed on the decision of the Supreme Court in T.M.A Pai Foundation Vs. State of Karnataka, reported in (1995) 5 SCC 220. The Court observed that the situation was such which had to be resolved because according to the Supreme Court, the choice was between running huge losses or closing the Institute for want of availability of such students. The Court also observed that the finance had to come from those students according to the scheme envisaged in Unni Krishnan's case, reported in (1993) 1 SCC 645 , and if the State Government did not permit the Institute to fill up the vacancies not filled up from amongst students who had qualified at the entrance test, a solution to the question of financing the Institute would also have to be found. In that case, the counsel for the Institute had submitted that if the State Government wanted to adopt the attitude of not permitting the Institute to fill up those vacancies by students prepared to pay but who had not qualified at the entrance examination, then the Government should be prepared to bear the financial burden by paying a sum equivalent to the payment seats remaining vacant to the Institute as a grant to run the Institute, or otherwise it would have to close down. The Supreme Court granted time to the State Government to give response. It appears from the decision that finally the Court concluded the matter vide order dated 25th January, 1996 by observing as under:-
"We had dealt with this matter at length and had passed the speaking order on 4.1.1996. It was at the fag end of the submissions that the learned counsel for the State of Himachal Pradesh had desired that we give him an opportunity to place the matter before the State Government to enable it to make a positive response to the State Government in the matter of filling up the vacancies. There is no response to the same except that the counsel states that the State Government has no desire to fund this Institute because, according to her, it is no more authorised. We have set out earlier the facts leading to the making of the IAs and have also referred to the decision of this Court in Unni Krishnan case as well as in the case of T.M.A Pai Foundation. We had extracted the relevant paragraph from the decision of Unni Krishnan case which clearly stated that any vacancies still remaining after the cut-off date can be filled by the management. In the instant case also, there have been vacancies which have remained unfilled after the cut-off date and it would, there, be open to the management to fill them up in the manner they consider appropriate. The SLP will stand disposed of in the light of and as per directions in Unni Krishnan case."
24. It was brought to our notice by Mr. Baxi that the entire process of admission has come to an end on 15th August, 2013 and now it is too late in the day to contend that all those students who had not appeared at CMAT should be permitted to be admitted on vacant seats because that would upset the merit list which has already been prepared and finalised.
25. We are not impressed by such submission of Mr. Baxi for the simple reason that the schedule for admission has been prescribed by the Supreme Court, in the case of Parshvanath Charitable Trust and ors. Vs. AICTE, reported in (2013) 3 SCC 385, which is as under:-
|Event |Schedule__________ |Conduct of Entrance Examination |In the month of May |(AIEEE/State CET/ Mgt. quota | |exams etc.) | |Declaration of Result of |On or before 5th |Qualifying Examination (12th |June |Exam or similar) and Entrance | |Examination | |1st round of counselling/ |To be completed on |admission for allotment of seats |or before 30th June |2nd round counselling for |To be completed on |allotment of seats |or before 10th July |Last round of counselling for |To be completed on |allotment of seats |or before 20th July |Last date for admitting |30th July.
|candidates in
seats other than |However, any number
|allotted above
|of rounds for
|
|counselling could be
|
|conducted depending
|
|on local
|
|requirements, but
|
|all the rounds shall
|
|be completed before
|
|30th July
|Commencement of
academic session |1st August
|Last date upto
which students |30th August
|can be admitted
against |
|vacancies arising
due to any |
|reason (no
student should be |
|admitted in any
institution |
|after the last
date under any |
|quota)
|
26. We
are not impressed by such submission for one more reason. In the present case, the issue is regarding filling up vacant seats and, therefore, all those students who have already been admitted would not get disturbed. Even otherwise, having regard to the number of seats vacant and considering that hardly 10% of the vacant seats would be filled up if permitted, the students will be able to secure admission in the college of his or her choice without any difficulty.
27. Thus, following the above rule of interpretation as explained by the Supreme Court and with a view to iron out the creases in the impugned rule, we interpret rule 17 as follows.
"Rule 17(2) sub-clause (ii) as under:-
Candidates who are eligible as per sub-rule (2) or rule 5 and have appeared in CMAT/CAT/MAT or any other such test conducted in the corresponding year as prescribed by the AICTE, and thereafter, to the candidates who are eligible as per sub-rule (2) of Rule 5, but have not appeared at CMAT/CAT/MAT or any other such tests."
28. In the result, this petition succeeds and is hereby allowed. The State Government is directed to permit the Colleges and Institutes, notwithstanding anything contained in Rule 17 of the Rules, to admit the students in the current academic year 2013-14, who are otherwise eligible under the Rules, 2013, but had not appeared at CMAT Examination, and are eligible for admission to the First Year MBA/MCA on the seats declared vacant under sub-rule (1) of Rule 17.
(BHASKAR BHATTACHARYA, C.J.) (J.B.PARDIWALA, J.) Mohandas Page 27 of 27