Bombay High Court
Vidarbha Youth Welfare Society, ... vs State Of Maharashtra Thr. Secretary ... on 14 September, 2016
Author: B.P. Dharmadhikari
Bench: B. P. Dharmadhikari, A.S. Chandurkar
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 4793 of 2016
AND
Writ Petition No. 4794 of 2016
[A] Writ Petition No. 4793 of 2016 :
1. Vidarbha Youth Welfare Society,
a Public Trust registered
under Bombay Public Trusts Act,
Chaitanya Building,
Camp Road, Amravati-444 602,
through President Nitin Ramdas
Dhande, aged 46 years,
Amravati.
2. Prof. Ram Meghe College of
Engineering & Management,
New Express Highway Badnera,
Amravati, through its Principal
Dr. M. S. Ali, aged about 57 years,
resident of Jamil Colony,
Walgaon Road,
Amravati-444 601. ..... Petitioners.
Versus
1. State of Maharashtra,
through Secretary,
Department of Higher &
Technical Education,
Mantralaya,
Mumbai-32.
2. Commissioner of State
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2
CET Cell [M.S.],
305, Govt. Polytechnic
Building, 49,
Kherwadi, Ali Yawar Jung Marg,
Bandra [East], Mumbai-400 051
[M.S.].
3. Directorate of Technical
Education,
through its Director, 3,
Mahapalika Marg, Elphinstone
Technical High School,
Campus,
Mumbai-400 001 [M.S.].
4. All India Council for Technical
Education, a Statutory Body
under the Ministry of HRD,
Govt. of India, through its Chairman,
Nelson Mandela Marg,
Vasanth Kunj,
New Delhi - 110 067. ..... Respondents.
*****
Mr. M. M. Sudame with Mr. R.D. Bhuibhar, Advs., for the
petitioners.
Mr. N.R. Roade, Asstt. Govt. Pleader for respondent nos. 1 to 3.
*****
[B] Writ Petition No. 4794 of 2016 :
1. Shree Hanuman Vyayam Prasarak
Mandal,
a Public Trust registered
under Bombay Public Trusts Act,
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HVPM Campus, Amravati, through
General Secretary,
Amravati.
2. College of Engineering & Technology,
through its Principal Dr. A.B. Marathe,
aged about 59 years,
resident of Ambar Apartments,
HVPM Campus, Amravati. ..... Petitioners.
ig Versus
1. State of Maharashtra,
through Secretary,
Department of Higher &
Technical Education,
Mantralaya,
Mumbai-32.
2. Commissioner of State
CET,
305, Govt. Polytechnic
Building, 49,
Kherwadi, Ali Yawar Jung Marg,
Bandra [East], Mumbai-400 051
[M.S.].
3. Directorate of Technical
Education,
through its Director, 3,
Mahapalika Marg, Elphinstone
Technical High School,
Campus,
Mumbai-400 001 [M.S.].
4. All India Council for Technical
Education, a Statutory Body
under the Ministry of HRD,
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Govt. of India, through its Chairman,
Nelson Mandela Marg,
Vasanth Kunj,
New Delhi - 110 067. ..... Respondents.
*****
Mr. M. M. Sudame with Mr. R.D. Bhuibhar, Advs., for the
petitioners.
Mr. N.R. Roade, Asstt. Govt. Pleader for respondent nos. 1 to 3.
ig *****
CORAM : B. P. DHARMADHIKARI
AND
A.S. CHANDURKAR, JJ.
Date : 14th September, 2016
ORAL JUDGMENT [Per B.P. Dharmadhikari, J.]:
01. Looking to the nature of controversy and developments after orders of this Court dated 19th August, 2016 in both these matters, as requested by parties, we have heard the matters finally by issuing Rule and making it returnable forthwith. Learned Adv. Mr. Sudame with Adv. Mr. Bhuibhar has argued the matters on behalf of the petitioners. Learned Asstt. Govt. Pleader Mr. N.R. Rode represented the State Govt.
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02. Learned Adv. Mr. Sudame has submitted that filling in the quota at institute level for the purposes of admissions to various Engineering Courses, the Principals/Directors of respective colleges are the final authority and they have to draw the list of students selected for admission. In this case, as, after completion of Centralized Admission Process [CAP] rounds, the separate final merit list was not displayed till 8th August, 2016, Writ Petition No. 4734 of 2016 was required to be filed by petitioners and this Court then noted submission of counsel appearing for competent authority that only students registered with Common Entrance Test [CET] Cell are entitled to seek admission. It was further stated that competent authority had again opened that process of registration of students with CET Cell for that day, i.e., for 12th August, 2016. The students getting themselves registered could be then admitted in terms of Rule 3 (2) (b) of the Admission Rules. He contends that no such list was made available.
Petitioners are entitled to admit twenty per cent of the strength as institute quota and similarly seats remaining vacant after CAP could have been also filled in at institute level. Thus, admissions were made by last date, i.e., 14th August, 2016; but the lists were not getting uploaded and hence a representation was sent to competent authority.
::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 :::wps4793.16 & 4794.16 6 Joint Director of Technical Education [respondent no.3] on 13th August, 2016 sent impugned communication, stating that candidates, who did not satisfy prescribed eligibility norms, cannot be admitted.
03. Learned counsel submits that these respondents did not fulfill their obligation of making a merit list of students eligible for admission to petitioners - institutes and found fault with admissions made by the petitioners when the petitioners made admission by adhering to merit only well before the last date.
04. Inviting attention to the provisions of Rule 13 (d), he states that norms envisaged there & to be notified by State Govt. must be different and distinct than the norms specified by appropriate authority. According to him, both authorities cannot, therefore, apply their mind on same norm and then arrive at a finding to apply different yardstic. He draws support for this from the provisions of Section 3 (1) of the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions & Fees) Act, 2015. He contends that harmonious reading of these statutory provisions with Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission to Full-time Professional Undergraduate ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 7 Technical Courses) Rules, 2016, is necessary and as such no fault can be found with admissions made by the petitioners. The appropriate authority, namely All India Council for Technical Education, has prescribed minimum of forty-five per cent marks for Open Category and forty per cent marks for Reserved Category. The State Govt., through the respondent no.3 has revised it to 50% and 45% respectively. Thus, this prescription of higher percentage is arbitrary and unwarranted.
05. Lastly, he submits that only to facilitate admissions to be completed after High Court's orders, advertisements were issued on 21st August, 2016 in Dailies - "Deshnotti" and "Lokmat" by the petitioners in Writ Petition No. 4794 of 2016. He explains the vital importance of admissions to be made in institute quota and submits that if such admissions are not made, petitioner institutes cannot function.
06. He has invited our attention to various documents on record and we find it appropriate to refer to them as and when occasion therefor arises.
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07. Learned Asstt. Govt. Pleader, on the other hand, submits that merit list for institute level admissions was already displayed on 9th August, 2016 itself and contention that respondent no.3 did not discharge its obligation is, therefore, erroneous. He has invited our attention to orders of this Court dated 5th August, 2016 in Writ Petition No. 4149 of 2016 and to a Division Bench Judgment in Akash Laxman Sakat Vs. State of Maharashtra & others [2014 (5) Mh. L.J. 576], to urge that prescription of a higher eligibility percentage by respondent nos. 1 and 3 is upheld and found not arbitrary by this Court.
08. Submission is open students admitted by the petitioners possess less than fifty per cent marks or forty-five per cent marks [Reserved Category] and hence their admissions cannot be regularized or legalized. He submits that indirect effort of petitioners is to upset the norm on the basis of which admission rounds began about 5 months back. Advertisement in this respect was published in March, 2016 itself and CAP rounds have been completed accordingly. He states that thus an indirect challenge to advertisement dated 11th March, 2016 cannot be entertained at this stage. Inviting attention to advertisements as published by the petitioners in Writ Petition No. ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 9 4794 of 2016 on 21st August, 2016, he contends that not only students were misled, but order of this Court was also wrongly quoted and attempt has been made to drag this Court into unnecessary controversy. He prays for taking appropriate action for misleading this Court. He submits that fact that 14th August, 2016 was the last date for making admissions was deliberately not brought to the notice of this Court.
09. In reply arguments, Adv. Mr. Sudame submits that petitioners in Writ Petition No. 4794 of 2016 could get only fifty-six candidates against institute quota. But then because of pending controversy before this Court, 40 students have already left the college while sixteen are still taking education. In Writ Petition No. 4793 of 2016, about 282 students took admissions in institute quota. Only 112 candidates are still continuing with education, while remaining 170 students have already left the institute.
10. He points out that after orders of this Court dated 12th August, 2016, the respondents have not displayed any list and as such petitioners were within their rights to effect admissions in institute quota.
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11. Petitioners in Writ Petition No. 4794 of 2016 had approached this Court in Writ Petition No. 4734 of 2016 for a direction to competent authority to prepare and publish a merit list as required under Rule 3 (2) (b) of 2016 Rules, for admissions in Academic Year 2016-17. This Court has noted submissions of Asstt. Govt. Pleader that on 1st August, 2016, after Circular dated 28th July, 2016, approval was given to institutes to fill in such seats at institute level by strictly complying with provisions of Clauses 3 and 13 of 2016 Rules. Thus, seats remaining vacant after all CAP rounds were permitted to be filled in as per rules. Competent authority also stated before the Court that petitioners were trying to admit students not registered with CET Cell and only students registered with CET Cell could be admitted against institute quota. Competent authority stated that it had opened the process for registration of students for 12th August, 2016 only and students getting registered would be eligible for admission in terms of Rule 3 (2) (a) and Rule 3 (2) (b) also.
12. Rule 3 (2) (a) deals with admissions of students through CAP rounds. Clause (b) thereof deals with admissions against institute quota as per Rule 7 (4). In present petitions, therefore, we are ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 11 concerned only with admissions to be done as per Rule 3 (2) (b). The advertisement for these admissions was published on 28th July, 2016, which is referred to as Notification in the order of this Court dated 12th August, 2016. The schedule begins with online registration of applications for admission at institute level. The registration was to be done between 30th July, 2016 and 5th August, 2016. Document verification was to be carried out between 1st August, 2016 and 5th August, 2016. Separate provisional merit list for admission to institute quota was to be displayed on 6th August, 2016. Grievance about it was to be submitted by 7th August, 2016. Separate final merit list for these admissions was to be displayed on 8th August, 2016. Admission rounds at institute level were to continue from 9th to 14th August, 2016 and cutoff date prescribed is 14th August,2016.
13. Petitioners have not asked for postponing the cutoff date or then for a suitable modification/amendment in this notification. They have come up with a specific case that they have made all admissions before the cutoff date.
14. Orders of this Court dated 12th August, 2016 take note of statement made by respondent no.3 that registration could have been ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 12 done by such students even on 12th August, 2016. In view of this order in Writ Petition No. 4734 of 2016, Notification dated 28th July, 2016 or preparation of & display of a separate final merit list as on 8th August, 2016 or thereafter does not remain relevant. As per stages prescribed therein, separate final merit list ought to have been displayed after 12th August, 2016. But then petitioners are not making any grievance in that respect before this Court.
respondents also do not submit that after 12th August, 2016, they The have prepared any separate final merits list and displayed it. Learned AGP attempted to urge that as per instructions with him such a list was displayed on 8th August, 2016, however the same can not be countenanced.
15. Orders of this Court in present Writ Petitions on 19th August, 2016 reveal that because of urgency, petitions were circulated and were taken up at 2.30 in the afternoon only, with the result, learned Asstt. Govt. Pleader appearing for respondents was not having any instructions in the matter. On that day, we have permitted petitioners to admit students till 22nd August, 2016 by staying the communication dated 13th August, 2016. On the next date of hearing, i.e., on 29th August, 2016, learned Asstt. Govt. Pleader pointed out ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 13 that petitioners were aware about 14th August, 2016 being the last date and this Court was, therefore, misled by seeking a direction to permit it to admit students till 22nd August, 2016. 22 nd August was the last date for uploading the list of students validly admitted till 14.08.2016.
16. Perusal of records reveals that after our orders, petitioners have published advertisements in two newspapers mentioning the said High Court orders and further added that applications would be accepted till 1 O'clock in the afternoon on 22nd August, 2016 and merit list would be published at 2.00 p.m. Mobile number has also been given to contact for such admission. After our orders dated 29th August, 2016 calling explanation from petitioners , affidavits have been filed in WP 4794 of 2016 stating therein that last date for uploading approval of admissions made on or before 14th August, 2016 was 22nd August, 2016. The date 22nd August, 2016 was communicated to this Court as the last date because of communication dated 13th August, 2016 sent by respondent no.3 on the subject of uploading of admission. During arguments, effort has been made to show that all admissions have been made before 14th August, 2016.
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17. The list of students produced before this Court is annexed as a part of petition. Petitioners have come up with a grievance that they could not upload that list. If after Court orders dated 19th August, 2016, they had effected any admissions in pursuance of advertisements mentioned supra, the petitioners would have filed a different or additional list of students admitted by them as annexure in Writ Petition No. 4794 of 2016. That has not been done.
therefore, find that only petitioners in Writ Petition No. 4794 of 2016 We, issued advertisement and tried to make admissions after 14th August, 2016. The advertisement was published on 21st August, 2016 and in advertisement, 22nd August, 2016 was mentioned as last date. From record, it does not appear that the petitioners before us has made any admission after orders of this Court dated 19th August, 2016.
18. The perusal of Section 3 (1) of 2015 Act reveals that eligibility conditions and requirements for admission are to be notified by the Govt., from time to time; but the same can not be lesser than those stipulated by appropriate authority. Though Adv. Mr. Sudame has pointed out use of plural number in said rule while imploying "conditions and requirements", to us that does not make any material change. The provisions of Rules of 2016 need to be understood in the ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 15 backdrop of 2015 Act. Fact that State Govt., has, in terms of Section 3 (1), prescribed fifty per cent of marks for Open Category and forty-five per cent of marks for Reserved Category is not dispute. Similarly, fact that All India Council for Technical Education has/had stipulated the lesser percentage, i.e. forty-five for Open Category, and forty per cent for Reserved Category is not in dispute.
19. Rule 13 of 2016 Rules deals with admissions in institutional quota and vacant seats after CAP rounds. There, Clause (d) stipulates that an aspiring candidate has to fulfill eligibility criteria as notified by Govt. and specified by appropriate authority. Whether use of words "notified" and "specified" implies that this Clause (d) speaks of different yardsticks to be adopted as eligibility criteria by State Govt., and by appropriate authority, or then it can be the same yardstick, is the moot question. According to Adv. Mr. Sudame, if on one yardstick [norm], both Govt., and appropriate authority are allowed to take a decision, it would result in inconsistency or absurdity. In present facts, we do not find it necessary to delve more into this argument. Section 3 (1) of 2015 Act speaks of eligibility conditions and it also envisages that the same may be prescribed by appropriate authority. But then said Section gives primacy to the norms ie eligibility conditions ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 16 decided by Govt. Only rider is, such eligibility conditions decided by Govt., cannot be less than the standards laid down by appropriate authority. Section 2 (b) defines appropriate authority to mean authorities declared by State or Central Govt., which approve and regulate provisional courses or educational disciplines.
20. Harmonious reading of Rule 13 (d) with Section 3 (1) [supra] leaves no manner of doubt that higher standards prescribed by State Govt. have to prevail provided the same do not dilute the standards prescribed by the appropriate authority. More rigorous standards adopted by the State Government are valid here.
21. The Division Bench Judgment of this Court in Akash Laxman Sakat [supra] deals with this aspect and finds that higher standards can be prescribed by State authority if it is not prevented from doing so. Other Division Bench of this Court, while admitting Writ Petition No. 4149 of 2016 on 5th August, 2016 declined to grant interim relief.
It has recorded reasons for doing so and those reasons also support the defence raised by learned Asstt. Govt. Pleader.
22. Though the field may be occupied by Central enactment ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 17 and, therefore, All India Council for Technical Education may be competent to regulate admissions in terms of Section 10 of that Act, in view of 2015 Act, particularly its Section 3 (1) when the eligibility conditions are to be prescribed by State Govt., it is apparent that the present qualifications prescribed by State Govt., need to be adhered to. Petitioners have not questioned validity of any statutory provision before this Court.
23. As such, we find no substance in the contention that insistence for adherence to eligibility norm of fifty per cent [for Open Category] and forty-five per cent [for Reserved Category] is not in accordance with law. The norm as prescribed by the State needs to be sustained. Challenge thereto must fail.
24. It is not in dispute that admissions made by both the petitioners before this Court are of students who do not meet these higher eligibility conditions. These students satisfy the lower norms of forty-five per cent [for Open Category] and forty per cent [for Reserved Category]. The higher norms have been in use since 11th March, 2016, i.e., when admission process commenced. All admissions through Centralized Admission Process in the State have been done on ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 18 the strength of these higher norms. Rule 13 (d), therefore, does not support contention that for admissions against quota/seats at institute level, other norms can be prescribed and acted upon. Admission process, which has commenced on 11th March, 2016, must be completed by following one & same norm on uniform basis. Circular dated 28th July, 2016 envisages preparation of a merit list by the competent authority of such students also who did not avail of opportunity to be admitted in government seats / quota, in CAP rounds. Their names have to figure in the merit list prepared for filling in the institute quota or vacant seats. Petitioners could not have deviated from the higher eligibility percentage prescribed by the State Government.
25. In this situation, we find no merit in any petition. Petitions are accordingly dismissed.
26. We put on record a warning to the petitioners in Writ Petition No. 4794 of 2016 for their wrongful conduct in publishing a misleading advertisement on 21st August, 2016, and if such mischief is repeated in future, serious cognizance thereof shall be taken. The note of this warning shall be taken in records of said petitioners by all ::: Uploaded on - 20/09/2016 ::: Downloaded on - 22/09/2016 00:00:14 ::: wps4793.16 & 4794.16 19 the respondents.
27. With this direction the Rule is discharged. In the circumstances of the cases, there shall be no order as to costs.
Judge
ig Judge
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CERTIFICATE
I certify that this Judgment/Order uploaded is a true and correct copy of original signed Judgment/Order.
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