Bombay High Court
Vikas Yuvraj Waydande And Ors vs State Of Maharashtra Through Dept. Of ... on 14 August, 2019
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari, G.S. Patel
Vikas Yuvraj Waydande & Ors v State of
Maharashtra & Ors
15-WPOJ-8478.2019.doc
Suresh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8478 OF 2019
1. Vikas Yuvraj Waydande
Age: 18 years, residing at Motewadi, Village
Malewadi, Tehsil Malshiras, District:
Solapur.
2. Pravin Bapuso Tarange
Age: 18 years, residing at Village Tarangphal,
Tehsil Malshiras, District: Solapur.
3. Omkar Baban Mergal
Age: 18 years, residing at Village Shirsupal,
Tal-Baramati, District Pune. ...Petitioners
~ versus ~
1. State of Maharashtra
through its Department of Higher and
Technical Education Department, 4th Floor,
Mantralaya Annex, Madam Cama Road,
Nariman Point, Mumbai - 400 032.
2. Directorate of Technical
Education,
3, Mahapalika Marg, Opp. Metro Cinema,
Mumbai - 400 001.
3. State Common Entrance Test
Cell,
8th Floor, New Excelsior Building, A.K.
Nayak Marg, Fort, Mumbai - 400 001.
4. All India Council For
Technical Education,
Western Regional Ofce, Industrial
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Assurance Bldg., 2nd Floor, V.N. Road,
Churchgate, Mumbai - 400 020.
5. Dattakala Institute of Hotel
Management And Catering
Technology,
having its ofce at Gat No.54141,2, 5412 , O
Pune-Solapur Highway, Swami-Chincholi
Bhigwan, Taluka: Daund, Dist: Pune. ...Respondents
APPEARANCES
FOR THE Mr. Vijay Thorat, i/by Mr. M.V. Thorat.
PETITIONER
FOR RESPONDENTS Mr. B.V. Samant, AGP
NOS 1 & 2
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, J
DATED : 14th August 2019
ORAL JUDGMENT (Per Shri S.C. Dharmadhikari, J.):
1. Rule. Respondent Nos.1 and 2 waive service. Respondent Nos. 3 to 541 being formal parties and since afdavits are not necessary to be fled, on the basis of the petition and its annexures, by consent heard fnally.
2. By this writ petition under Article 226 of the Constitution of India, the petitioners are praying that the criteria of appearing for a Common Entrance Test ("CET") prescribed under Rules and Page 2 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc 8(4)(e) of the Information Brochure and at serial No.541 of Schedule- B of Notifcation dated 19th May 2018 published by the State of Maharashtra be relaxed for admission to the Hotel Management and Catering Technology Course for the Academic Year 2019-20.
3. A direction is also sought to the CET Cell to admit the petitioners to this course at respondent No.541 college on the basis of the eligibility criteria prescribed under Appendix-1, Clause 1.3 of the Approval Process Handbook 2019-20 published by the All India Council of Technical Education. Prayer clauses (c) and (d) also require a reference and hence are reproduced below:
"(c) hold and declare that students passing HSC examination with 4541% aggregate marks in the said examination (and 40% in case of candidates belonging to reserved category) only are entitled to pursue undergraduate Hotel Management and Catering Technology Course for the academic year 2019-20;
(d) in the alternative, direct the Respondent CET Cell to admit students from other CETs to Hotel Management and Catering Technology Course after having exhausted the list of candidates from B. HMCT-CET-2019;"
4. The petitioners before us have been residing in the State of Maharashtra. They have fled this writ petition against the 1st respondent State through its Department of Higher and Technical Education and its Directorate. The 3rd respondent is the State CET Cell, which is the Competent Authority for conducting the CET and e ecting admission through Centralized Admission Process Page 3 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc ("CAP") into private professional education institutions. The 4th respondent is the All India Council for Technical Education ("AICTE") and the 541th respondent is a private institute of Hotel Management and Catering Technology at which the petitioners are seeking admissions to undergraduate Hotel Management Course.
5. Petitioner No.1 belongs to a Scheduled Caste and petitioner Nos.2 and 3 belong to Nomadic Tribe category. They are domiciled in Maharashtra. After completing their 10th Standard in the year 201 by securing, respectively, 2%, 61% and 5413.40% marks, in 2019, they completed the Higher Secondary Certifcate Course (12th Standard) and each of them secured more than 4541% aggregate marks. The petitioners seek admission to Hotel Management and Catering Technology ("HMCT") course. It is a four-year full-time degree course. Petitioner Nos.1 and 2 appeared for the Maharashtra CET-2019. Petitioner No.3 did not appear for any such test. The petitioners submit that upon inquiry with the authorities they realized that a large number of seats have remained vacant in this course. The number of students applying for admission is less than the number of available seats in the State of Maharashtra. After setting out the development of this course and, particularly, how its administration is controlled by the AICTE, the petitioners make a detailed reference to the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 201541 (Maharashtra Act No. XXVIII of 201541). It is submitted that under sub-sections (1) and (2) of Section 3 of the Act, the State of Maharashtra issued a Notifcation specifying eligibility conditions and requirements for admissions to HMCT course. Annexure "D" is a copy of the Notifcation dated 19th May 2018 issued under this Page 4 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc provision. That prescribes the eligibility criteria for the HMCT course in the State of Maharashtra. For ready reference, serial No.541 of Schedule-B of this Notifcation is reproduced below:
Sr. Name of Eligibility conditions and requirements No. Professional for admissions Course 5 Undergraduate (1) Maharashtra State Candidature Course in Hotel Candidate. All India Candidature Management and Candidate and Jammu and Kashmir Catering Migrant Candidature Candidate.-
Technology
(i) The Candidate should be an Indian (Bachelor in National;
Hotel
Management and (ii) Passed HSC or its equivalent
Catering examination and obtained at least
Technology 4541% marks in aggregate (at least 40%
B.HMCT.) marks in aggregate for backward class
category and Persons with
Disabilities candidates belonging to
Maharashtra State only);
(iii) Obtained non-zero score at CET.
Note:- After exhausting the candidates with non zero score at CET, the candidates qualifying JEE conducted by National Council for Hotel Management and Catering technology will be considered eligible for institutional level admission subject to vacancies.) (2) NRI/OCI/PIO, Children of Indian workers in the Gulf countries, Foreign National,-
(i) Passed HSC or its equivalent
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Sr. Name of Eligibility conditions and requirements
No. Professional for admissions
Course
examination and obtained at least
4541% marks in aggregate.
(ii) Any other criterion declared from
time to time by the appropriate
authority as defned under the Act.
6. Then it is stated that Rule 8(4), clause (e) of the Information Brochure deals with First Year HMCT course. There, the merit list, as per the rule preceding this rule, is to be prepared on the basis of marks or score secured by the candidate in the Maharashtra CET- 2019 conducted by the Competent Authority or marks or score secured in any other examination conducted by the Appropriate Authority designated for the purpose of admission to these courses. This Rule and the clause referred above contains a proviso to enable the determination of entitlement to admission should there be a tie.
7. It is stated that the CET is held to ascertain the inter se merit of the students. Generally, in every professional course, the number of aspiring students always exceeds the number of available seats. To compare their inter se merit, the CET is prescribed. The CET is thus basically for judging inter se merit. This is necessary because candidates applying for professional courses are drawn from di erent Universities. One University may be liberal in its marking, and the manner in which it conducts examinations may di er fundamentally from the standards of another University. The CET is intended to even out these di erences. Where, however, there are Page 6 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc fewer students than seats available, the CET has no real utility, conceivable application or legal requirement. In the present case, the relevant criteria are the Regulations framed by the AICTE. A bare perusal of these indicates that there is no requirement of holding a CET or selection through CET. It only envisages that the candidate must have passed the 10+2 examination with at least 4541% marks. Then it is stated that in the present academic year there are totally 86 seats in the HMCT course, but the number of students who have registered for the Bachelor in HMCT-CET-2019 are only
608. There is therefore a shortfall of 1 8 candidates, and all 1 8 available seats will lapse in the present academic year if not flled, and this lapsing of seats will happen if the authorities insist that only students who took the relevant CET, i.e. the HMCT-CET-2019, are eligible for admission to the HMCT Course.
8. It is submitted that there is a time schedule for counselling and admission of students published by the State of Maharashtra. As per that time schedule, the frst two CAP rounds have been completed and only two students have confrmed their admission at the respondent-college. It is, therefore, clear that large number of seats will remain vacant and the same will lapse if they are not flled in by candidates as per the eligibility criteria prescribed by the AICTE. Thus, the eligible, meritorious and deserving candidates like the petitioners will not be permitted to take admission and for all these reasons this writ petition is the only remedy to set right the wrong done.
9. The essential ground on which this writ petition is fled is that the CET introduced by every State is not the eligibility criteria. It is Page 7 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc only a method to select the students on inter-se-merit. The CET is conducted only to ensure that the inter-se-merit of the students is not ignored and if that presupposes more students than available seats, then alone such a process will serve the purpose. If the students are less, then on the basic eligibility criteria being fulflled, they ought to be safely admitted.
10. The State has fled an afdavit in reply in which it says that the petition is not maintainable and must be dismissed. It is stated that by the power vesting in the State under Section 3 of the Maharashtra Act No.XXVIII of 201541, a Notifcation dated 11-3-2016 has been issued. That has been modifed on 24-4-201 whereby the eligibility prescribed is 4541% marks for general category students and 40% marks for the Backward Class students along with non zero score at the CET. These Notifcations have not been challenged by the petitioners.
11. The other objection is that this writ petition is fled belatedly. A common admission process is underway. All three rounds of this process are already completed. Now, the cut-o date prescribed is 14-8-2019. Nothing that would disturb this time schedule should be directed by this Court. It is also said that Clause 1.1.2 of the Approval Process Handbook 2019-20 of the AICTE reserves rights in the State Government to decide the modalities of admission to technical education. Merely because there are vacant seats available does not mean these modalities should be altered and that too at the fag end of the admission process. That would set a bad precedent.
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12. It is submitted that there is a di erence between the eligibility criteria to be fulflled to apply for admission to the subject-course and the requirement of passing CET so as to secure admission. If admissions have to be granted in a fair and transparent manner in private professional colleges, then the State is empowered to issue the subject Notifcation. It is in that endeavour that this Notifcation has been issued. Its object and purpose is to bring fairness, transparency and openness in the admission process. There is no substance in the argument that it is only to judge the inter-se-merit. It is a common test to check the aptitude and standard of the candidates. The numbers of the applicants desirous of seeking admission to HMCT course or any other course are not known in advance. Once the eligibility criteria is notifed, thereafter the HMCT-CET, which is part and parcel of it, has to be undergone. After having undergone it, or knowingly not attempting it, but later on challenging the whole process is thus impermissible and the writ petition be dismissed.
13. We have heard Mr. Thorat, learned counsel appearing for the petitioners. Consistent with the stand of the petitioners in this petition, Mr. Thorat would submit that at page 13541 of the paper- book the Notifcation contains a reference to the Hotel Management and Catering Technology course. That is in Appendix-1 of the AICTE Handbook. It is stated that this gives the eligibility criteria and that is passing of 10+2 examination, obtaining at least 4541% marks in the qualifying examination, which are relaxed for candidates belonging to reserved category to 40%. Mr. Thorat then invited our attention to page 343 of the paper-book. He submits that there as well the Maharashtra State candidature candidate, the all India Page 9 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc candidature candidate and Jammu and Kashmir migrant candidature candidate ought to be an Indian National and passed the 10+2 examination. However, there is a note appended below the same which says that, after exhausting the candidates with non zero score at CET, the candidates qualifying JEE conducted by National Council for Hotel Management and Catering Technology will be considered eligible for institutional level admission subject to vacancies. Mr. Thorat then invites our attention to the category of Non Resident Indian ("NRI"), Overseas Citizen of India ("OCI"), Person of Indian Origin ("PIO"), children of Indian workers in the Gulf countries and foreign nationals. Mr. Thorat submits that such students are kept out of the CET regime. He would, therefore, submit that for them no such CET is prescribed. Mr. Thorat premises his argument on the mandate of equality enshrined in Article 14 of the Constitution of India. He would submit that the discrimination is writ large in this case. He would submit that the basic qualifcation is not passing of a CET but of the qualifying examination. The CET is only to enable judging of the inter-se- merit. He would submit that there is a further discrimination in the sense the candidates who have not taken the Maharashtra State HMCT-CET can also enter institutions in the State of Maharashtra for the HMCT course, provided they have appeared for a Joint Eligibility-cum-Entrance Test - JEE. Granting such candidates a preference over students like the petitioners is thus discriminatory. That allows candidates from one stream to enter another course. This violates the mandate of equality enshrined in Article 14 of the Constitution of India.
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14. Mr. B.V. Samant, learned AGP, supported the stand of the Government as set out in the afdavit in reply.
15. Mr. Thorat, in support of his arguments, handed over to us the Information Brochure of Centralized Admission Process (Academic Year 2019-20) for Admission to Professional Degree Courses in Agricultural Universities of Maharashtra. He would submit that this information brochure would enable us to conclude that insofar as B.Sc. (Hons) Agriculture, B.Sc. (Hons) Horticulture, B.Sc. (Hons) Forestry, B.F. Sc., B.Tech. (Agricultural Engineering), B. Tech. (Food Technology), B.Sc. (Hons) Community Science and B.Tech. (Biotechnology) degree courses are concerned, the CET taken for admission to other courses would enable these candidates to enter the same. Thus, this is a common entrance test. It is an admission process for admission to the above professional degree courses. Therefore, the common entrance examination for Maharashtra State HMCT course, JEE, NEET and other entrance tests candidates are also eligible. Mr. Thorat has also invited our attention to the Maharashtra Act No.XXVIII of 201541. He says that the defnition of the term "CET" means entry test conducted for determination of merit of the candidates for centralized admission process for the purpose of admission to professional educational courses through a single window system. It is in these circumstances, he would submit that his arguments fnd support from this defnition.
16. For properly appreciating the rival contentions, we must commence our reasoning by making reference to the annexures to this writ petition. After the individual mark-sheets are annexed, our Page 11 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc attention is invited to the All India Council for Technical Education (Grant of Approvals for Technical Institutions) Regulations, 2016. There, the Notifcation itself says that the Regulations are framed in exercise of powers conferred by the All India Council for Technical Education Act, 198 . They succeed the 2012 Regulations. These are 2016 Regulations regarding grant of approval for starting new Technical Institutions, introduction of courses or programmes and increase,variations of intake capacity of seats for the courses or programmes, extension of approval and regarding admissions under lateral entry in degree engineering programme for the existing Technical Institutions. These Regulations contain certain defnitions and the defnition of the term "Competent Authority for Admission" means an organization that has, the legally delegated authority, capacity, or power to do admission to Technical Institutions in the State,Union Territory concerned. The term "Course" means one of the branch of learning in programme such as Civil Engineering, Mechanical Engineering, etc.. The term "Overseas Citizen of India" is defned to mean a foreign national, who was eligible to become citizen of India on 26-1-195410 or was a citizen of India on or at any time after 26-1-195410 or belonged to a territory that became part of India after 1541-8-194 . Minor children of such person are also eligible for OCI status. However, if the applicant had ever been a citizen of Pakistan or Bangladesh, he,she will not be eligible for this status. "Non-Resident Indian" means an Indian citizen who is ordinarily residing outside India and holds an Indian Passport. The terms "Foreign National" means the citizen of countries other than India who are not of Indian origin as defned under OCI,PIO. The term "Person of Indian Origin" is also defned to mean a foreign citizen (except a national of Pakistan, Afghanistan, Page 12 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc Bangladesh, China, Iran, Bhutan, Sri Lanka and Nepal) who at any time held an Indian Passport or who or either of their parents,grandparents,great grandparents were born and permanent resident in India as defned in Government of India Act, 193541 and other territories that became part of India thereafter provided neither was at any time a citizen of any of the aforesaid countries, or who is a spouse of a citizen of India or a PIO. The term "Technical Institution" is defned in Regulation 2.43 to mean an Institution set up by Government, Government Aided and Self-Financing,Trust,Society,Company for conducting courses or programmes in the feld of HMCT. The Regulations thereafter provide for an elaborate procedure. The very title of these Regulations, therefore, would enable us to conclude that they are on the subject which has been extensively referred by us while setting out the title of these Regulations. Consistent with the same, there is a Public Notice for Approval Process 2019-20, published by the AICTE, copy of which is at page 43 of the paper-book. Then there is a Handbook which is also styled as a Legal Document as per the AICTE Act, 198 . In this there are several chapters and what Mr. Thorat invites our attention to is an Appendix but which are norms for duration and entry level qualifcation and statutory reservations for the technical programmes. There, the HMCT is referred at page 133 of the paper-book, and when it comes to Under Graduate Degree Programmes (Full Time), the eligibility criteria is passing of 10+2 examination with minimum 4541% marks, which are relaxed for the reserved category students to 40%. These marks have to be obtained in the qualifying examination. We do not think that any further reference is required to be made to the AICTE Regulations. They do not in any manner assist us in dealing with the issue raised Page 13 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc before us. Then we can safely make a reference to the Notifcation, copy of which is at page 310 of the paper-book, issued by the Higher and Technical Education Department, Maharashtra. This Notifcation is issued in exercise of the powers conferred by sub- sections (1) and (2) of Section 3 r,w clause (r) of Section 2 of the Maharashtra Act No.XXVIII of 201541. This Notifcation substitutes the Notifcation of 24-4-201 . This Notifcation notifes the Professional Education Diploma Courses and specifes that the eligibility conditions and requirements for admission of the said professional courses are such as mentioned in column (3) of the Schedule. The Professional Education Under Graduate Courses mentioned in column (2) of Schedule-B, appended to this Notifcation, to be the professional education and specifes that the eligibility conditions and requirements for admission to the said professional courses are such as mentioned in column (3) of the Schedule. We are only concerned with the undergraduate courses. Then, there is a detailed reference made to several of these undergraduate and postgraduate courses, and what is material for our reference is the fact that the Notifcation says that there is a method of calculating marks at qualifying examination for deciding eligibility and that is also set out in Explanations-1 to 4 at the end of this Notifcation at page 324 of the paper-book. At Exhibit "E" (page 32541) is the Information Brochure (Academic Year 2019-20) for admission to Full Time Professional Undergraduate Technical Courses. In the index, there is a reference made to the various sections of this brochure. It is stated that, in exercise of the powers conferred by Section 23 of the Maharashtra Act No.XXVIII of 201541, the Government of Maharashtra has published the rules on 24-4- 201 and its amendments on 541-6-2018 and 4-6-2019 to regulate the Page 14 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc admissions to the First Year of Full Time Professional Undergraduate Technical Courses which includes the HMCT and Direct Second Year Engineering and Technology and Pharmacy courses. These Rules also includes admissions in frst year of degree in planning. These Rules are also applicable for admissions in Government and Government Aided Professional Educational Institutions vide Government Resolution of Higher and Technical Education Department of 2541-4-201 and amendments thereto by the Government Notifcation of 4-6-2019. The brochure gives information regarding the eligibility and rules of admission to frst and second year of various technical professional undergraduate degree courses in the State. This also provides information about invitation of applications for admissions, preparation of merit list, distribution of seats, details of reservation, various rounds and stages of CAP, admissions in Institutional Quota Seats and vacant seats after CAP, supernumerary seats, refund of fees, etc.. The defnitions of "CAP Seats" and "CET" are relevant. The CAP means Centralised Admission Process. The CAP Seats means the seats flled in through the centralised process of admission carried out by the Competent Authority. The CET means Common Entrance Test. The term "Competent Authority" means the Commissioner of State CET appointed by the Government under Section 10, for conducting CET through CAP for the admissions into Private Professional Educational Institutions. The term "Courses" is defned to mean the full time undergraduate technical courses inter alia in Hotel Management and Catering Technology. Then we have the defnition of the term "Institutional Quota". It means seats available for admission to eligible candidates at institution level as declared by the Government or appropriate Page 15 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc authority from time to time. "Inter-se-Merit" is defned to mean the order of merit declared by the Competent Authority in respect of various classes,category of candidates. "JEE Main" means the Joint Entrance Examination conducted by the National Testing Agency, New Delhi for the concerned academic year. "NEET" is defned to mean the National Eligibility-cum-Entrance Test conducted by National Testing Agency, New Delhi for the concerned academic year. The defnition of the term "Overseas Citizen of India" in this Notifcation also includes the PIO. The important defnition of the term "Qualifying Examination", appearing in Rule 2, clause (y), means examinations on the basis of which a candidate becomes eligible for admission or its equivalent examination. The other Rule set out is about how the Competent Authority shall invite online applications from candidates for participating in CET and,or CAP for seeking admission to the Professional Courses for which State CET or alternative entrance examination is required for the academic year. The role of the Competent Authority is then set out with details of jurisdiction of the Universities. The sanctioned intake and supernumerary seats for various courses and their allocation are dealt with by Rules 6 and and reservations together with other aspects are also elaborately provided for.
17. Mr. Thorat would submit that insofar as the frst year course for the HMCT is concerned, the Maharashtra State candidature candidate and the all India candidature candidates, Jammu and Kashmir migrant candidature candidate should be an Indian national and having passed the qualifying examination and has appeared at the JEE, which is equivalent to CET, are all entitled for admission. A NRI, OCI, PIO candidate can enter a college like respondent Page 16 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc No.541, according to Mr. Thorat, without any entrance examination such as CET.
18. There is a basic fallacy in the argument of Mr. Thorat. NRI, OCI and PIO students are a class by themselves. They are not to be equated with students who are Indian citizens. The classifcation has been made with a defnite purpose. The avowed object is that such of these students who are children of NRI, OCI and PIO should also have an opportunity to obtain admission in colleges of repute in India. They qualify on the grounds that their parents had connection or nexus or origin in India. It is to give them an opportunity to apply for admission that such clauses,sections, as are referred to us by Mr. Thorat, are found in the Notifcations in question. There will always be a doubt as to whether the Government of India and the Government of States have the powers to prescribe for any tests for such students and surely they cannot be a part and parcel of a common admission process and common admission,entrance test. That has to be taken by students in India alone. There is a purpose in excluding them from this process but for being eligible to apply they must secure 5410% marks in the subjects mentioned in the brochure. They cannot enter the institutions without any qualifying examination and with these subjects. For them any other criteria declared from time to time by the Appropriate Authority as defned under the Maharashtra Act No.XXVIII of 201541, would also have to be fulflled. In the circumstances, the contention that such students can enter a college of their choice or like respondent No.541 straight away is fallacious. Once they cannot be said to be equals, then there is no discrimination at all. The second argument of Mr. Thorat on discrimination is in relation to those candidates who appeared for Page 17 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc the JEE conducted by the National Council for Hotel Management and Catering Technology. They are considered eligible for institutional level admissions subject to vacancies but their turn will come after the candidates in the CET with non zero score are exhausted and the seats are vacant. There is a defnite nexus with the examination styled as JEE conducted by the National Council for Hotel Management and Catering Technology. It is the apex body for the hotel management and catering technology which conducts this JEE. The candidates passing such examination, therefore, can safely be held to be eligible for admission at the institutional level, subject to vacancies. Their turn comes after exhausting the candidates with non zero score at the CET Maharashtra. Therefore, this is not a case of any examination, having no nexus with the subject course, being cleared. A candidate clearing JEE is entitled for admission to the HMCT course. These candidates are on par with the candidates who appeared for the CET Maharashtra. The petitioners cannot insist that they be admitted in the vacant seats although none of them has appeared in the HMCT-CET Maharashtra. The other petitioners may have appeared for CET but in the order of merit they could not obtain any admission as the list got exhausted. Now, the seats may have remained vacant. However, the petitioners cannot insist that they should be admitted on the basis of the marks obtained by them in the qualifying examination. To our mind, students like the petitioners before us cannot be introduced in the system or allowed to enter it by a process unknown to the rules. We do not think that there is any discrimination for there is enough opportunity given for them to enter the institution. Once they obtained the minimum marks in the qualifying examination, they would have been eligible to apply and appear for Page 18 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc the CET. They could have entered the common admission process on the basis of the CET as well. It is not as if no opportunity was given to these candidates at all.
19. Having taken that opportunity, now they are turning around and alleging that the whole process is vitiated by discrimination and inequality. We fnd that argument to be entirely unsound. To say that the basic qualifcation should be the sole criteria after the CET is over, is an argument too late in the day to be accepted. The petitioners even otherwise are totally confused about this. If we refer to the Maharashtra Act No.XXVIII of 201541, that is an Act which came to be enacted to provide for regulation of admissions and fees by unaided private professional educational institutions in the State and for matters connected therewith or incidental thereto. The Act itself says that there is an Admissions Regulating Authority and that means the Authority constituted under Section for regulating the admissions in unaided private professional educational institutions and conducting the CETs. The Appropriate Authority means the Authorities declared by the State or Central Government which approve and regulate the professional courses or educational disciplines. The term "Centralized Admission Process"
means the centralized process of admission carried out by the Competent Authority through single window system in a transparent manner for admitting the students for various professional courses in educational institutions. The "Common Entrance Test" means the entrance test conducted for determination of merit of the candidates by CAP for the purpose of admission to professional education courses through a single window system. The defnitions themselves make the distinction Page 19 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc between CAP and CET clear. While one is a whole or the entire process, the other is a test conducted for determination of merit of the candidates for centralized admission process for the purpose of admission to professional education courses through a single window system. The need for openness, transparency in admissions to private professional education institutions demand the enactment with the defnitions inserted therein. A foreign student is understood by this Act to mean a student who is a citizen of India. Then, there are other defnitions but what is material for our purpose is Section 2(q) which defnes the term "Private Professional Educational Institution". That defnition reads as under:-
"(q) "Private Professional Educational Institution"
means any college, school, institute, institution or other body, by whatever name called, conducting any professional course or courses approved or recognized by the appropriate authority and afliated to any university, but shall not include,-
(i) any such institution established, maintained or administered by the Central Government, any State Government or any local authority;
(ii) institution declared to be a deemed university under section 3 of the University Grants Commission Act, 195416; or
(iii) a university to which the provisions of the University Grants Commission (Establishment and Maintenance of Private Universities) Regulations, 2003 are applicable;"
The "regulations" are defned to mean the regulations framed by the Regulating Authorities. We are then concerned with Chapter- II which is titled as Regulation of Admissions. The eligibility for Page 20 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc admission is dealt with by Section 3. It says that the eligibility conditions and requirements for admission to a professional course at any private professional educational institution shall be such as may be notifed by the Government from time to time, but shall not be less than, those stipulated by the Appropriate Authority. No student shall be admitted to a private professional educational institution unless the student possesses such educational or equivalent qualifcation as may be notifed. The manner of admission is dealt with by Section 4 and what we have and relevant for our purpose are clauses (a), (b) and (c) of Section 4. The same read thus:
"(a) admission to seats in a Private Professional Educational Institution excluding institutional quota declared by Government from time to time, shall be made on the basis of merit by following the procedure of Common Entrance Test (CET) conducted in the manner,as may be prescribed by rules:
Provided that, the admission to institutional quota shall be on the basis of merit and after following the procedure specifed by the appropriate authority:
Provided further that, the State Government may by order issued from time to time exempt any professional courses, from requirement of the Common Entrance Test (CET) thereto.
(b) admissions to such institution shall be carried out by the competent authority through the Centralized Admission Process on the basis of Common Entrance Test (CET) and Centralized Admission Process (CAP);
(c) the Competent Authority shall supervise and guide Page 21 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc the entire Centralized Admission Process in such manner as it may specify with a view to ensuring that the process is fair, transparent, merit-based and non-exploitative."
20. A bare perusal of this section and above clauses denotes that admission to seats in a private professional educational institution excluding institutional quota declared by Government from time to time, shall be made on the basis of merit by following the procedure of CET conducted in the manner, as may be prescribed by rules, provided that, the admission to institutional quota shall be on the basis of merit and after following the procedure specifed by the Appropriate Authority. The second proviso to clause (a) says that, the State Government may by order issued from time to time exempt any professional courses, from requirement of the CET thereto. Thus, admissions to private professional educational institution shall be carried out by the Competent Authority through the CAP on the basis CET. Thus, there is a role and which has to be played by the Competent Authority and for the Competent Authority to be guided, we have this elaborate provision in law. There is a rule making power and to which a reference is already made, namely, Section 23. This requirement can also be applied and can be made applicable to others is also clear from the law itself.
21. The argument of Mr. Thorat that the CET is only to test the inter-se-merit and admissions to professional courses at any private professional educational institution can be on the basis of qualifying marks, is without any substance. Both are to be understood in the backdrop and in the context which we have referred to herein above. We cannot see them in isolation for nobody can claim, once there is Page 22 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc a CAP and one has to appear for the CET, an admission otherwise. The qualifying examination is required to be cleared so as to be eligible to take the CET. The marks obtained at the CET or the inter-se-merit enable the student to secure admission at any private professional educational Institution to undergraduate or post- graduate courses therein. Once we understand the scheme of the law in this manner and the placement of the sections, then it is futile to urge that anybody outside this process can be admitted solely on the basis of the marks obtained in the 10+2 examination. That is a basic or minimum qualifcation. A student cannot enter any undergraduate course unless he,she is a matriculate or has cleared the Higher Secondary Certifcate Examination of the Board of Secondary and Higher Secondary Education in the State of Maharashtra or an equivalent Board. That is how a student is eligible to enter a college for an undergraduate course. That such private professional educational institutions do not indulge in malpractices and do not grant admission clandestinely but in a transparent manner had to be therefore ensured. That is the reason why the State stepped in and that is why the Competent Legislature enacted this law. That is how the role of each of the authorities has been extensively defned and set out. We do not see how anybody and placed like the petitioners can then insist on being admitted to courses against vacant seats. That the seats which are remaining vacant will lapse may be the anxiety of the management of this private professional educational institution but surely in the circumstances in which the Hon'ble Supreme Court having already clarifed this aspect in series of decisions to which reference has been made in the afdavit in reply of the State Government. We cannot hold otherwise. One such decision is reported in the case of Page 23 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc Visveswaraiah Technological University & Anr. Vs. Krishnendu Halder & Ors.1 The Supreme Court after making a detailed reference to the eligibility criteria held as under:
"1 . No student or college, in the teeth of the existing and prevalent rules of the State and the University can say that such rules should be ignored, whenever there are unflled vacancies in colleges. In fact the State,University, may, in spite of vacancies, continue with the higher eligibility criteria to maintain better standards of higher education in the State or in the colleges afliated to the University. Determination of such standards, being part of the academic policy of the University, are beyond the purview of judicial review, unless it is established that such standards are arbitrary or "adversely a ect" the standards if any fxed by the Central Body under a Central enactment. ...."
22. Thus, the Supreme Court very clearly makes a distinction between admissions in accordance with the rules and admissions beyond the rules. Merely because some seats are vacant, no student or college, in the teeth of the existing and prevalent rules of the State and the Universities can say that such rules should be ignored or thrown aside whenever there are unflled vacancies in colleges, is the clear principle laid down in this decision. The law laid down in this decision is therefore binding on us. We do not think that even otherwise there is any scope for an argument to introduce students on the basis of their qualifying marks after some students or at least some of them like the petitioners before us have taken their chance by appearing at the CET. They were not so lucky for the merit list, which is stated to be maintained after the results of this CET were 1 (2011) 4 SCC 606.
Page 24 of 2514th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 ::: Vikas Yuvraj Waydande & Ors v State of Maharashtra & Ors 15-WPOJ-8478.2019.doc declared, do not provide any admission to the courses desired by the petitioners. The petitioners then looked out for vacant seats in other colleges. Once they could not get admission on the basis of the inter- se-merit, which is the foundation for admission to this institution, they fall back on their qualifying marks and seek admission. If we allow such introduction and by a back door method, then, the whole gamut of the Rules and Regulations placed before us would be set at naught and the legislation totally redundant. In the process the act enacted by the Competent Legislature would be rendered otiose. We do not think that we can place an interpretation, as desired by Mr. Thorat, on the scheme of these Rules and which enables introduction of the petitioners against the vacant seats, contrary to law.
23. As a result of the above discussion, the writ petition fails. Rule is discharged. There will be no order as to costs.
24. All concerned to act upon an authenticated copy of this Judgment.
(S.C. DHARMADHIKARI, J.) (G.S. PATEL, J.) Page 25 of 25 14th August 2019 ::: Uploaded on - 28/08/2019 ::: Downloaded on - 16/04/2020 21:56:49 :::