Gujarat High Court
Parish vs State on 26 April, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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SCA/10324/2010 16 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10324 of 2010
For
Approval & Signature:
HON'BLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HON'BLE
MR.JUSTICE K.M.THAKER
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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 ?
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PARISH
PRIEST CATHOLIC CHURCH MANGER:ST XAVIER'S PTC COLLEGE - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH SECRETARY & 1 - Respondent(s)
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Appearance :
MR
HJ NANAVATI for Petitioner(s) : 1,
MS KRINA CALLA ASST. GOVERNMENT
PLEADER for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 26/04/2011
CAV JUDGMENT
(Per : HONOURABLE MR.JUSTICE K.M.THAKER ) The petitioner, an institution imparting education in various streams, has preferred present petition seeking below mentioned relief(s):-
"6(A) Allow this petition.
(B) Quash and set aside the impugned direction of the respondent authorities to exclude names of the three religious Nuns referred to in the memo of this petition from the merit list of candidates submitted by the petitioner institution for granting admission to PTC course from the Academic Year 2010-11 to be countersigned by respondent authorities.
(C) Declare that the action of the respondent authorities in directing the petitioner institution to delete the names of three Religious Nuns referred to in this petition from the merit list submitted by the petitioner for countersigning of the respondent authorities for the purpose of granting admission for PTC course for the Academic Year 2010-11, on the ground that said candidates have passed qualifying examination from other States, is illegal, arbitrary, unjust, unreasonable, bad in law and violative of constitutional guarantees enshrined under article 30 of the Constitution of India.
(D) Declare that the impugned action of the respondent authorities in refusing to permit the petitioner institution to grant admissions to students belonging to minority community having passed qualifying examination from other States, in absence of any specific Rule or guidelines prescribed for grant of admissions to candidates belonging to minority community in a minority educational institution is without jurisdiction and without authority of law.
(E) Declare that as per the settled legal position, the petitioner Minority educational institution has right to grant admissions to candidates belonging to minority community, irrespective of the fact that such candidates have passed qualifying examination from other States.
(F) Direct the respondent authorities to countersign the merit list of 25 candidates for the purpose of granting admission to PTC course for the Academic year 2010-11, as submitted originally submitted by the petitioner institution, without insisting the petitioner to delete the names of the three Religious Nuns, whose names are referred to the memo of this petition.
(G) Direct the respondent authorities to permit the petitioner Minority Educational Institution to issue public notice inviting applications for admissions to PTC course in English Medium for the Academic Year 2010-11, in the event seats still remain vacant even after the process of admission as per the direction of Central Admission Committee is over."
2. The facts stated by the petitioner to justify the reliefs prayed for are that, the petitioner is a minority institution and runs various educational institutions in the State of Gujarat. The institutions run by the petitioner include a Teacher's Training College. It is also claimed that the priests and nuns of the minority community which runs the institution are placed at different institutions and their services are transferable from one place to another.
2.1 It is further claimed that the petitioner institution was granted permission by National Council for Teacher's Education to start an English Medium Primary Teacher's Training Course (PTC) with intake capacity of 50 students. Such permission was granted in 2005 pursuant to which the institution in question was started. The petitioner wants to fill up 50% of total intake capacity for the course under management quota by admitting students of its choice.
2.2 It appears that for the academic year 2010-2011, the respondent No.2 i.e. the Director of Primary Education issued an information brochure containing guidelines for admission in PTC in the state. It is claimed by the petitioner that the said guidelines, inter alia, prescribe the procedure to be followed for admission of students in PTC in the State. The guidelines prescribe 45% marks as the minimum eligibility criterion, however, according to the petitioner, the grievance is with regard to the issue of admission in minority institutes to the candidates having passed the qualifying Board examination from other States.
2.3 The petitioner has claimed that large number of nuns based in the State who have passed qualifying Board examinations from other States after completing their studies from schools also situate in other State/s intend to prosecute the study in PTC run by the petitioner, more particularly because there are very few institutes in the State who impart instructions for PTC in English Medium. It is also claimed that by communication dated 14.7.2010, specific request in respect of three candidates, belonging to minority community, was forwarded to the respondent authority. The said candidates have passed out their qualifying Board examination from other States. The petitioner institute had forwarded the merit list of the students to whom the petitioner intend to admit. However, the respondents returned the list asking the petitioner to submit fresh merit list after excluding the names of three candidates who had passed the qualifying Board examination from other states after studying in schools which are also situate in other States.
2.4 The petitioner has alleged that due to the coercion and pressure by the respondent authorities, it had to submit revised merit list after deleting the names of the said three students who are nuns and belong to minority community.
2.5 Therefore, the petitioner feels aggrieved and has preferred present petition, inter alia, claiming that the instructions and guidelines issued by the respondents violates Constitutional guarantees granted under Articles 14, 19(1)(g), and 30.
3. The petition is resisted by the respondents. The respondent No.2 has filed reply affidavit opposing the allegations made by the petitioner. It is, inter alia, claimed by the respondents that the three candidates who were not found eligible for admission passed their qualifying Board examination i.e. standard 12th examination not only from the Board of other State but also from schools outside the State of Gujarat and that therefore, their candidature was not in accordance with the rules for PTC admission hence, their candidature was not found acceptable and the petitioner was asked to make necessary changes. The respondents, to support their stand and contentions, have relied upon Rules 4.1, 4.1.1, 4.1.2 and 4.1.3 governing admissions in PTC institutes.
4. The petitioner is aggrieved by the said provisions.
4.1 Differently put, the said provisions are the main plank of dispute and contentions between the petitioner and the respondents.
4.2 So as to appreciate the position emerging from the said rules, it is necessary to take into account the provisions contained under the said rules, which read thus:-
"(4) Eligibility for Admission :-
These are the rules for want to admission in P.T.C. for the All the Teacher Training colleges.
(4.1) Examination for the Eligibility of Admission:-
Candidate should have passed any one Examination mentioned below:
(4.1.1) Exam of Gujarat Secondary and Higher Secondary Education Board Exam of std. -
12 in Science, General, Uttar Buniyadi and vocational stream by Gujarat Secondary and Higher Secondary Education Board.
(4.1.2) Exam of Central Board of Education Exam of std. - 12 by Central Board of Education. New Delhi in Secondary and Higher Secondary schools run in Gujarat State and also they are approved by component authority. (In above mentioned stream as 4.1.1) (4.1.3) Exam of Council of the Indian School Certificate:-
Exam of std. -
12 by Council of the Indian School Certificate, New Delhi in Secondary and Higher Secondary schools run in Gujarat State and also they are approved by component authority. (In above mentioned stream as 4.1.1)."
5. The Counsel for petitioner contended that the aforesaid provisions, which, in particular, require that the candidate intending to secure admission in PTC in the State should have passed Higher Secondary Education Board Examination by Gujarat Board or by Central Board from Higher Secondary Schools situate in Gujarat State or 12th standard examination held by Council of Indian Schools having studied in the school run in Gujarat State, are violative of Constitutional guarantees, particularly, violative of minority right guaranteed under Article 30 of the Constitution.
5.1 Before proceedings further, it deserves to be noted that similar provisions contained under the Rules, particularly Rule 5 of Rules 2008, governing admission in MCA course and MBA course came to be considered by the Division Bench in Special Civil Application No.10356 of 2010. The said Rules read thus:-
" MCA Rules 2008 " 5.
Eligibility for Admission:- (1) For the purpose of admission, a candidate shall have appeared in the Gujarat Common Entrance Test (GCET).(2)
To appear in the Gujarat Common Entrance Test (GCET), a candidate shall have passed the qualifying examination form,-
(a) a University situated in the Gujarat State; or
(b) a University situated outside the Gujarat State provided 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 Board provided that the school in which the candidate has studied, should have been located in the State of Gujarat; or
(iii) the Council of Indian School Certificate Examination, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat:
Provided that a candidate shall have passed the Higher Secondary School Examination (Standard XII, 10+2 pattern) or Bachelors' degree with Mathematics or Business Mathematics or Statistics as one of the subjects."
MBA Rules 2008 " 5.
Eligibility for Admission.-(1) For the purpose of admission, a candidate shall have appeared in the Gujarat Common Entrance Test (GCET).
(2)To appear in the Gujarat Common Entrance Test (GCET), a candidate shall have passed the qualifying examination with minimum of 50% marks (45% marks in case of Scheduled Castes or Scheduled Tribes candidates) from,-
(a) a University situated in the Gujarat State; or
(b) a University situated outside the Gujarat State provided 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 Board provided that the school in which the candidate has studied, should have been located in the State of Gujarat; or
(iii) the Council of Indian School Certificate Examinations, New Delhi Board provided that the school in which the candidate has studied should have been located in the State of Gujarat."
It can be seen that the Rules for PTC admissions are almost (barring some minor changes) similar to the MBA and MCA admission Rules.
5.2 The Division Bench examined the MBA & MCA admission Rules and the rival contentions and considered the same in light of the decision in the case of Dr. Pradeep Jain v/s. Union of Indian & Ors. [(AIR 984 SC 1420(1)] as well as the decision in case of D.R.Joshi v/s. State of Madhya Bharat [AIR 1955 SC 334] and the decision in the case of Jagdish Saran v/s. Union of India [AIR 1980 SC 820] as well as the decision in the case of Saurabh Chaudhari & Ors. v/s. Union of India [AIR 2004 SC 361] and the decisions by this Court in case of Swapnaprakash Pande v/s. State of Gujarat [2009(2) GLH 495] and the decision in the case of Karamsad Medical Association v/s. State of Gujarat [2000(2) GLR 1648], in the case of Ronald Jagdish Thakore v/s. Gujarat University [Special Civil Application No.3950 of 2010 with Special Civil Application No.4622 of 2010 dated 5.5.2010 wherein the term "preference" was also taken into consideration]. The Division Bench, inter alia, observed thus:-
"6. A close look to the above Rules reveal that the legislature has prescribed eligibility criteria and preference is given to institution and keeping in mind law laid down by the Apex court in this regard in the case of Dr. Pradeep Jain v. Union of India and Ors. [AIR 1984 SC 1420(1)], there is no absolute reservation and preference in favour of any institution. On the contrary a student who has passed out from the University situated in the State of Gujarat or who has passed out higher secondary (Standard XII 10+2 pattern) or its equivalent examination from Gujarat Board or CBSE or ICSE, provided the school in which the candidate has studied is located in the State of Gujarat is held eligible subject to fulfillment of securing minimum marks in the entrance test in the case of MBA entrance examination. Thus, it cannot be said that there is absolute reservation in favour of a student passing out his examination namely graduation or higher secondary or equivalent from the State of Gujarat only. Such requirement prescribed in the above Rules cannot be said to be contrary to Article 14, 15(1) or 16(2) of the constitution of India inasmuch as in the case of Dr. Pradeep Jain v. Union of India and Ors.(supra), the Supreme Court has in no uncertain terms has held that reservation on basis of residence requirement within the State and institutional preference was held permissible subject to reasonable percentage and reservation. The Apex Court while considering the concept of place of birth and domicile in the context of Article 5 of the Constitution of India held that so far admissions to an educational institution such as a medical college are concerned, Article 16(2) has no application. It has further held that if there is any residence requirement for admission to a medical college in a State, it cannot be condemned as unconstitutional on ground of violation of Article 16(2) nor can Article 16(2) be invoked for invalidating such residence requirement. The Apex Court further made it clear that residence and place of birth are two distinct conception with different connotations both in law and in fact while referring to the case of D.P. Joshi v. State of Madhya Bharat [AIR 1955 SC 334]. The Apex Court also referred to earlier decision in time in the case of Jagdish Saran v. Union of India [AIR 1980 SC 820] and reiterated that a fair preference, a reasonable reservation, a just adjustment of the prior needs and real potential of the weak with the partial recognition of the presence of competitive merit such is the dynamics of social justice which antimates the three eagalitarian articles of the Constitution and only fond that wholesale reservation on the basis of residence is unconstitutional being violative of Article 14 of the Constitution of India. So far as the extent of reservation based on residence requirement within the State or on institutional preference for students passing the qualifying examination held by the university or the State be regarded as constitutionally permissible, the Apex Court laid down certain outer limits with regard to total number of open seats to be considered after taking into account other kinds of reservation validly made.......
6.1. That another decision of the Apex Court in the case of Saurabh Chaudri and Ors. vs. Union of India and Ors. [AIR 2004 Sc 361], the Apex Court reiterated the law laid down in Dr. Pradeep Jain v. Union of India and Ors.(supra) and also held that reservation on the basis of domicile is not impermissible in terms of Clause (1) of Article 15 of the Constitution of India and further held that institutional preference is not violative of Article 14 of the Constitution of India and extent of such preference was held to be 50%.
6.2 xxx xxx xxx 6.3. That, another decision of the Division Bench[per Hon'ble the Chief Justice S.J.Mukhopadhaya] dated 23.8.2010 delivered in Special Civil Application No.7406 of 2010 in the case of Sidharth Jadgishbhai Panchal through Father Jagdish D Panchal v. Admission Committee for Professional Diploma Course (ACPDC), while considering admission rules in the course of diploma in any of the Polytechnic Colleges in the State of Gujarat considered Rule 5 prescribing eligibility for admission was in pari materia to Rule 5 of MCA/MBA Rules of this case and in paras 15 and 16 observed as under:
"15. It has not been disputed that CBSE, CISCE, as also NIOS, all Boards have been constituted by the Education Department, Government of India. For all purposes, they are equivalent. It is also not in dispute that there are institutions in the State of Gujarat, including the institution in which the petitioner has studied, which is recognized by the NIOS and certificate is granted by NIOS. Previously, on behalf of the NIOS, CBSE used to grant the certificate and now after the decision of the Central Government, since 2002, it has been granted by NIOS.
16. It is true that the State Government can frame Rules and confine recognition of institution located within the State of Gujarat, though the Board may be located outside the State like CBSE or CISCE. If any institution is located outside the State of Gujarat, and if the Board which grants certificate is also located outside Gujarat, it is always open to the State not to allow the students of such institutions for admission in one or the other courses within the State, but it cannot discriminate among two institutions or Board similarly situated."
6.4 xxx xxx xxx
7. Considering the above aspects on facts as well as on law, none of the contentions including the challenge to Rule 5 is ultra virus to Article 14 of the Constitution of India as contended by learned counsel for the petitioner can be again tested on the touch stone of Articles 14, 15, 16 and 21 of the Constitution of India, since the law on this subject is no more res integra."
Accordingly, the Division Bench has held that the said provisions cannot be held to be ultra virus Article 14 of the Constitution. It emerges from the aforesaid discussion that the institutional preference is not held to be impermissible.
5.3 It is appropriate to note that the provisions in question in present case, like the Rule 5 of 2008 Rules for MBA and MCA admissions provide for preference to the institution and any absolute reservation in favour of any institution is not incorporated.
5.4 According to the Rules in question, the candidates who have passed-out the higher secondary examination or its equivalent from Gujarat Board or CBSE ISC upon having studied in the schools which are located in the State of Gujarat are held eligible subject to their fulfilling other criteria regarding minimum qualifying marks etc. Thus, it cannot be said that there is absolute reservation in favour of student passing out the examination from the state of Gujarat only.
6. So far as the petitioner's contention on the ground that it is a minority institution and consequently enjoys rights guaranteed under Article 30 of the Constitution and such rights are violated on account of the Rule 4 in question, is concerned, it deserves to be noted that the Rule in question does not, in any manner curtail or impeach upon the rights of the institution to admit students of religious minority or to give preference to such students. The Rule in question merely prescribes an eligibility criteria that such students of minority community ought to be those students who should have passed any one of the examinations mentioned in clause 4.1.1 to 4.1.3.
6.1 A glance at the disputed rules gives out that the legislature has merely prescribed eligibility criteria for admission in Teacher Training College. According to the provision / eligibility criteria, the candidates who have passed Standard 12 examination held by Gujarat Secondary & Higher Secondary Education Board or the student who have passed the examination held by Central Board of Education, New Delhi upon having studied in the schools run in Gujarat State and which are approved by the competent authority or the student who have passed Standard 12 examination held by Council of Indian School Certificate upon having studied in schools run in Gujarat State are, subject to other requirements, considered eligible. Meaning thereby, any absolute reservation, as held in para 6 of the decision in SCA No.10356 of 2010, is not prescribed but preference is given to the student who has studied in the institution situate in the State of Gujarat subject to fulfillment of the requirement regarding minimum marks, etc. While interpreting similar provision framed for admission in course of MBA and MCA, the Division Bench held in the aforesaid decision in SCA No.10356 of 2010 that it cannot be said that such provision prescribes absolute reservation.
6.2 When the learned counsel for the petitioner was confronted, by the learned Government Pleader, with the aforesaid decision by the Division Bench, the learned counsel for the petitioner, having regard to the said decision, fairly submitted that though in view of the said decision, the contention against the provision on the ground that the provision is unconstitutional on the ground that it prohibits admission on the ground of locality may not find favour and may not survive in present petition, however, the contention against the said provision on the ground that the provision violates the right enshrined under Article 30 of the Constitution of India for the educational institutions run by religious minority or available to the student belonging to religious minority, is still available to the petitioner. He, therefore, contended that when the petitioner institution is granted status of minority educational institution by National Commission for Minority Educational Institution, then, petitioner is entitled to fill-up 50% of total intake capacity of management quota by admitting candidates belonging to minority community, irrespective of the state of domicile.
7. So far as the said contention of the petitioner on the ground that its right as minority educational institute is adversely affected by the impugned provision is concerned, it deserves to be noted that the provision does not, in any manner, abridge or impeach upon the petitioner's right to admit or to give preference and priority in admission to the students belonging to their own community / minority community in any manner whatsoever and that therefore, the contention is misconceived and unsustainable.
7.1 It is pertinent to note that the dispute has arisen and the petitioner has raised the contention in view of the respondent's decision of not approving admission to three students. However, the said 3 students undisputedly passed their qualifying board examination from school outside the Gujarat State.
7.2 The disputed provision does not restrict or prohibit the petitioner institute from admitting candidates of its community or to fill-up, to the permissible extent out of total intake capacity by way of management quota by admitting students from minority community, but it merely prescribes eligibility criteria which the student of minority community ought to fulfill.
According to the disputed provision all that is required is that while the petitioner institute may fill-up the admission/seats to the permissible extent out of, its total intake capacity, by treating it as management quota and fill-up the said quota by admitting students of minority community, it should only ensure that the students sought to be admitted must have passed the qualifying Board examination i.e. 12th standard examination either held by Gujarat Secondary & Higher Secondary Education Board or the student who have passed the examination held by Central Board of Education, New Delhi after having studied in the schools run in Gujarat State and which are approved by the competent authority or the student who have passed Standard 12 examination held by Council of Indian School Certificate after having studied in schools run in Gujarat State. The provision does not curtail the petitioner's right to fill-up, to the permitted extent out of the total intake capacity, by way of management quota admissions and by admitting candidates, on such management quota basis, from minority community. The petitioner's contention would mean that the respondent State cannot even prescribe any eligibility criteria and even the requirement that the candidate should have passed 12th standard examination with particular (minimum) numbers/marks also cannot be prescribed. By any stretch of imagination the eligibility criterion prescribing as eligibility/qualifying criterian that the Board which held the qualifying exams may be Board from Gujarat or CBSE or ISC and institute from which the candidate has passed 12th standard examination should be situate in Gujarat State does not mean and cannot be construed to mean that it curtails, in any manner, petitioner's right to admit candidates of minority community, to the permissible extent, out of the total intake capacity. The rules have not disturbed the quota and even after introduction of the disputed provision, the petitioner would still be entitled to fill-up the seats as per and to the extent of the permissible quota, out of the total intake capacity, as management quota and it would still be entitled to admit students on such management quota by admitting students belonging to minority community. The only qualifying criterion would be that such candidate should have passed the examination from the institutes contemplated / described in the rules in question. The foregoing discussion makes it clear that the disputed provision does not violate the provision under Article 29 and / or Article 30 of the Constitution and also does not violate the rights guaranteed in favour of minority educational institutions.
8. So far as the issue about the three students whose admissions are not approved by the respondent authorities is concerned, it deserves to be noted that the approval is not denied or declined on the ground that the petitioner institute cannot admit the said students on its management quota seats and/or the approval is not denied on the ground that the petitioner institute cannot admit the said students treating them as minority community candidates or even on the ground that the proposed admissions were in excess of the permissible quota of management seats or such other ground. The approval is declined only on the ground that the said three candidates, undisputedly, did not pass their 12th standard examination from the institute/s fulfilling the prescription contained under the rules in question i.e. the institutes is/are not located in Gujarat State. When it is undisputed that the institutes from which the said three students passed their examination are not located in Gujarat State and the said students do not fulfill the criterion prescribed under the rules, the decision of the respondent authority cannot be faulted.
9. In view of the situation which emerges from the foregoing discussion, it cannot be said that the action of the respondent authorities requiring the petitioner institute to delete three names from the merit list of the candidates proposed to be admitted by the petitioner in its college for the academic year 2010-2011 is arbitrary or violative of Constitutional guarantees under Article 30 of the Constitution of India. Since the said three students undisputedly did not fulfill the criteria of having passed the 12th standard examination from the institute located in Gujarat State, the decision of the respondent University cannot be faulted and does not deserve to be set aside, as claimed by the petitioner.
The petition, therefore, fails and deserves to be rejected. Accordingly the petition is rejected, however, in the facts of the case, there shall be no costs.
[ S.J.MUKHOPADHAYA, CJ.] [K.M.THAKER, J.] kdc Top