Madras High Court
Unknown vs State Of Tamil Nadu on 26 November, 2010
Author: K.Chandru
Bench: K.Chandru
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 26/11/2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.(MD)NO.8167 of 2009 W.P.(MD)NO.10328 of 2009 W.P.(MD)NO.10509 of 2009 W.P.(MD)NO.11229 of 2009 W.P.(MD)NO.11407 of 2009 W.P.(MD)NO.11422 of 2009 W.P.(MD)NO.11887 of 2009 W.P.(MD)NO.11888 of 2009 W.P.(MD)NO.11898 of 2009 W.P.(MD)NO.12025 of 2009 W.P.(MD)NO.12282 of 2009 and W.P.(MD)NOs.12571, 12926, 12927, 13115, 13353 to 13356, 13465, 13508, 13840, 13841, 13877, 14276, 14262, 14263 of 2009 and W.P.(MD)NOs.15,16,128, 218, 219, 422, 423, 424, 764, 765, 784 to 787, 1153 to 1155 and 2629 of 2010 and M.P.(MD)Nos.2,3, 2 to 5, 1 to 4,1 to 4,1 to 4, 1 to 4, 1,1,2,2,3,3, 1,1,2,2,3,3,1 to 3, 2 to 4,1,2,1,2,1,2,2,2,3,3,4,4,1,2,3,1,2,3,1 to 4, 1 to 4,1,1,1,1,2,2,2,2,3,3,3,3,4,4,4 and 4, 1 to 4,1 to 3 of 2009, 1,1,1,1,2,2,3,3,1,2,1,1,1,2,2,2,3,3,3,4,4,4, 1,1,1,1,2,2,2,2,2,3,4,1,1,1,2,2,1,1, 1 to 4, 2 to 4, 1 to 3 (3) of 2010 S.Meenu .. Petitioner in W.P.(MD)No.8167/2009 vs 1.State of Tamil Nadu, rep. by the Secretary, Higher Education Department, Fort St.George, Chennai-600 009. 2.The Director, Anna University Tirunelveli, Government College of Engineering Campus, Tirunelveli-627 007 3.The Principal, P.S.N. College of Engineering & Technology, Melathediyoor, Palayamkottai, Tirunelveli-627 152. (cause title of third respondent amended as per order dt.30.11.2009 in MP(MD).4/2009) .. Respondents in WP(MD)No.8167/2009 W.P.(MD)No.8167 of 2009 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorari to call for the records in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009 and to quash the same. !For Petitioners ... Ms.D.Geetha Mr.T.S.Mohamed Mohideen Mr.M.Sureshkumar Mr.Babu Rajendran Mr.G.Kasinathadurai Mr.K.Neelamegam Mr.Isaac Mohanlal Mr.K.Mahendran Mr.T.Pon Ramkumar Mr.M.Ajmal Khan Mr.S.Saji Bino Mr.S.Palanivelayutham Mr.S.Jawaharlal Mr.S.S.Sundar Mr.C.Muthu Saravanan Mr.M.Alagathevan Mr.S.S.Sundar ^For Respondents ... Mrs.Chellammal Murthi, Additional Advocate General-V assisted by Mr.S.C.Herold Singh, GA Mr.Jafer Ali for R-2 in W.P.(MD)Nos.8167, 11229, of 2009 for R-3 in W.P.(MD)No.13877, 13840, 13841 of 2009 Mr.S.P.Maharajan for R-3 in W.P.(MD)Nos.8167, 11229, 11898, 12571, of 2009 Mr.K.Guhan for R-3 in W.P.(MD)Nos.11887, 11888, 12025, of 2009 Mr.M.Ramadhas for R-3 in W.P.(MD)No.14276 of 2009 Mr.R.Thangaperumal for R-4 in W.P.(MD)No.422 to 424 of 2010 Mr.Isaac Mohanlal for R-1 in WP(MD)No.13115 of 2009 - - - - :COMMON ORDER
Preamble :
"We have a hunch - we leave it at that - that these "workers" writ petitions are a kind of litigative puppetry, the illicit mine exploiters being the puppeteers. This set of writ petitions, where some private managements claim to have the right to extract coking coal on the score that prohibition enacted in the Coal Mines (Nationalisation) Amendment Act, 1976 does not affect or operate on coking coal mines, must be dismissed as devoid deserts."
[Ref.: Mahindra Nath Shukla v. State of Bihar reported in (1980) 3 SCC 353 (Justice V.R.Krishna Iyer)]
2.In the case referred to above, Justice V.R.Krishna Iyer on finding the workmen were set up by the mine owners to challenge the beneficial piece of a nationalized legislation, expressed an hunch and about the motive left the matter at that.
3.The present case is a classic case of greedy self financing Engineering colleges in connivance with the consenting parents of the students have set them up like Trojan Horse to move the court to legitimize the illegal admissions of the petitioners into various professional Engineering courses in the year 2009 under a so called Non Resident Indian (NRI) quota. The court's orders are obtained to justify their illegal action. The students have gone through four semesters of their study in B.E. Courses in various self financing engineering colleges, thanks to the interim orders passed by this court. They are now being used to camouflage the well laid conspiracy for extracting hefty amounts and make illegal admissions under the NRI quota and thereby to give a go-bye to the admission norms prescribed by the All India Council for Technical Education (AICTE) and the State legislation as well as various orders of the Supreme Court.
4.It is needless to state that the AICTE was established by the All India Council for Technical Education Act, 1987 (Central Act 52 of 1987). It is the sole authority for laying down regulations for admissions of Foreign Nationals and the Persons of Indian Origin (PIO) in the AICTE approved institutions. By the regulations made in the year 2000, the AICTE permitted NRIs eligible to be admitted to the AICTE approved private aided institutions with a ceiling of 5% of the total strength available. To leave no doubt over the definition of NRI, the AICTE defined the term "Non Resident" to have the same meaning as assigned to it under the Income Tax Act, 1961. The State Governments were merely directed to fix tuition and other fees for the candidates to be admitted under this quota. This circular had already been widely circulated including to the State Government.
5.Followed by the regulation, a circular, dated 3.10.2001 was also issued by the AICTE after consulting the Government of India, Ministry of Human Resources Department. The fees to be charged by these institutions under the NRI quota was to be decided by the State Level oversight committee or by the AICTE. The first respondent State of Tamil Nadu utilizing the circular referred to above issued G.O.Ms.No.109, Higher Education Department, dated 10.4.2002 after consulting the Director of Technical Education and laid down procedures for admission for the year 2002-2003. It was indicated that the NRI quota should not exceed 10%.
6.It was also indicated in paragraph 2 of the said G.O. as follows:
"2.The Government have examined the proposal of the Director of Technical Education received with his letter fourth read above and issue the following guidelines for admission of NRI students in the self-financing Engineering Colleges from the academic year 2002-2003.
i)The NRI quota shall not exceed 10% of the total sanctioned intake.
ii)There is no provision for admission of "NRI sponsored" students. The Institute shall not be permitted to charge equivalent amount of NRI fees from the students admitted under vacant NRI seats.
iii)The fees chargeable from the students admitted against vacant NRI seats shall be the same as chargeable for the students admitted against payment seats and not against the NRI seats.
iv)Admission to the NRI seats may be made on the basis of the marks in the qualifying examination.
v)The candidates who are seeking admission under NRI quota are exempted from appearing for the Tamil Nadu Professional courses Entrance Examination.
vi)The candidates are required to have obtained a just pass in the Higher Secondary Examination (10+2 pattern equivalent).
vii)NRI financially supporting the candidate must be a blood relation such as father/mother/brother/sister/uncle/Aunt only.
viii)Applicants for admission under NRI quota shall not have completed 21 years of age on the 1st July of the respective academic year.
ix)Candidates must furnish the Xerox copies of the following supporting documents:
(1)NRI status certificate of the financial supporter issued by the embassy of respective country under their seal.
(2)NRI Bank account pass book of the financial supporter. (3)Passport of the financial supporter.
(4)Nativity Certificate of the financial supporter. (5)Evidence for payment of development charges of US $1000."
(Emphasis added)
7.After this order was issued, the AICTE issued a fresh guidelines, dated 24.4.2002 regulating the admission for persons of Foreign nationals and Persons of Indian Origin as well as NRI quota. The term "NRI" was defined in the said notification, dated 24.4.2002, which is as follows"
3.9."NRI" in this context means Non-Resident Indian as defined in Income Tax Act, 1961 with the following clarifications:
An individual is Non-Resident when he is "not a resident" or who is "not ordinarily resident". A person is treated as "not ordinarily resident" when any of the following conditions is satisfied:
(1)If he/she has not been resident in India in nine out of ten preceding years; or (2)If he/she has not been in India for a period of 730 days or more during the preceding seven years"
8.Subsequent to the circular, the Supreme Court gave a direction in Islamic Academy of Education and another Vs. State of Karnataka and others reported in 2003 (6) SCC 697. In the said judgment decided on 14.8.2003 in the writ petitions filed under Article 32 of the Constitution, several directions were issued. In paragraph 20 of the said judgment, it was indicated that the said directions were issued under Article 142 and shall remain in force till appropriate legislation is enacted by Parliament. The permanent oversight committees were to be established by the State Government both for monitoring the admissions as well as for fixation of fees.
9.The directions issued in Islamic Academy of Education (cited supra) was the matter once again dealt with by the subsequent 7 Judges Bench in P.A.Inamdar and others Vs. State of Maharashtra and others reported in 2005 (6) SCC 537. After interpreting the larger bench judgment in T.M.A.Pai Foundation Vs. State of Karnataka reported in 2002 (8) SCC 481 case and Smaller bench of Islamic Academy of Education case (cited supra), the Supreme Court gave further guidelines. With reference to quota relating to NRI, in P.A.Inamdar's case in paragraph 131, it was directed as follows:
"131*. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians ("NRI" for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to a certain number of students under such quota by charging a higher amount of fee. In fact, the term "NRI" in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen their level of education and also to enlarge their educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with the Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilised bona fide by NRIs only and for their children or wards. Secondly, within this quota, merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilised for benefiting students such as from economically weaker sections of the society, whom, on well-defined criteria, the educational institution may admit on subsidised payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to the direction in Islamic Academy2 to regulate." (Emphasis added)
10.Taking advantage of these directions, the State Government enacted the Tamil Nadu Admission in Professional Educational Institutions Act, 2006 (Tamil Nadu Act 3 of 2007). With reference to admission to unaided professional educational institutions as well as NRI quota, Section 4 stipulated as follows:
"4(1)Notwithstanding anything contained in any relevant law or any rules, regulations or by laws made thereunder, admission to seats, excluding the seats referred to in item (iii) of clause (c) of section 2, in all unaided professional educational institutions shall be made by the consortium of unaided professional educational institutions approved by the Government or by any Authority authorised by the Government, on the basis of the marks obtained by a student in the relevant subjects, in the qualifying examination. (2)Notwithstanding anything contained in sub-section (1), any unaided professional educational institution may fill up seats equivalent to 15 per cent of the total sanctioned strength, in each branch, by the candidates belonging to the non-resident Indians, in accordance with such guidelines as may be issued by the Government from time to time." (Emphasis added)
11.The first respondent State Government not realizing that the NRI quota has been diluted by them by including any students who got sponsorship by his near relatives also coming under the said quota and the directions by the Supreme Court was completely nullified by the stand of the State Government regarding the students being admitted under the NRI quota merely on the sponsorship of their near relatives in abroad. This understanding of the State was not only in clear violation of the Supreme Court's order, but also devised by which the self financing educational institutions can charge hefty fees disregarding the norms of merits in such admissions. Virtually, the seats were completely auctioned by the private colleges by earning foreign exchange without adhering to the orders of the Supreme Court or the Regulations of the AICTE.
12.Subsequently, the State Government consulted the Oversight committee regarding the admission in the self financing engineering colleges. The committee headed by a retired Judge of this court was of the unanimous view that the NRI quota should be regulated as per the observations made by the Supreme Court in P.A.Inamdar's case (cited supra).
13.In the light of the above, the State Government had issued a Government Order in G.O.Ms.No.162, Higher Education Department, dated 2.6.2009 regulating the admission of students under the NRI quota in the Engineering colleges for the academic year 2009-2010. In the said order, it was stated that the NRI quota shall not exceed 15 % of the total sanctioned strength in each branch. Insofar as the definition of NRI and the method under which they should be admitted are indicated in paragraph 4(a) to 4(e), which are as follows:
"4(a)The NRI quota shall not exceed 15% of the total sanctioned strength in each Branch.
(b)Admission to the NRI seats may be made on the basis of the marks obtained in the qualifying examination.
(c)The candidates to be admitted under NRI quota are required to have obtained a pass in the Higher Secondary Examination (10+2 pattern or equivalent).
(d)The seats under NRI quota should be utilized bonafide by the NRIs only and for their children or wards. Therefore, the NRI financially supporting the candidates should either be the parent (Father or Mother) of the candidate or legally declared as guardian of the candidates by the Court as per provisions in "The Guardians and Wards Act, 1890".
(e)Candidates admitted under "NRI" quota should submit the following documents:
(i)NRI status certificate of the financial supporter issued by the Indian Embassy of the respective country under their seal.
(ii)Certificate of Relationship between the NRI financial supporter and the candidate issued by the competent authority. Valid India Passport of the NRI Financial supporter.
(iii)NRE (Non Resident External) Bank Account Pass Book of the Financial supporter.
(iv)Evidence for Payment of Development charges of US $1000/- to the college by the NRI financial supporter (One time payment at the time of admission only)."
(Emphasis added)
14.Whatever may be the legality or correctness of the earlier stand of the State Government, for the academic year 2002-2003 till 2008-2009, the order passed by the Government for admission for the year 2009-2010 with reference to admission of students under the NRI quota is in tune with the AICTE Regulations as well as the directions of the Supreme Court in P.A.Inamdar's case (cited supra) in defining the term "NRI".
15.However, the petitioners herein (most of them are currently students and in some cases parents of such students) have approached the respondent Colleges for admissions under the NRI quota. Obviously, the students were not admitted either through the counselling done by the State Government or by the Management against the Management quota as they were ineligible for admissions under such quotas. The NRI quota only provides for admission for a mere pass in higher secondary education unlike other categories. Therefore, the petitioners would have not got admitted under the merit quota or under the management quota in view of the earlier eligibility norms. By diluting the norms, they were admitted under the NRI quota on the specious plea that students' distant relatives are living abroad and are willing to sponsor them and support for their education. Therefore, they were admitted under the NRI quota. But none of their relatives have got declaration that the students are their wards under the Guardian and Wards Act by an appropriate court.
16.The claim made by the petitioners in these writ petitions was that even before the admission programme for the year 2009-2010 was started, the self financing managements have doled out the applications and after fulfilling the norms regarding sponsorship certificate, they were given admissions subject to the production of higher secondary certificate. The colleges never waited for the Government's directives for admission programme for the year 2009-2010 even though under Tamil Nadu Act 3/2007 under Section 4(2), they are bound to wait for the Government guidelines issued from time to time. The allegations made by the petitioners in their affidavits were not denied by any of the self financing colleges in which students had got admitted even though they were served with notice. Therefore, the stand of the petitioners that admission exercise started even before the Government guidelines were issued and their admissions were strictly not in commensurate with the G.O.(Ms.)No.162, Higher Education Department, dated 2.6.2009 were not denied. Admittedly, none of the petitioners in these writ petitions were coming under the NRI quota as either their parents were not NRI or they did not come within the norms prescribed by the State Government.
17.The following table will show the number of writ petitions, name of students, the name of the college under which they were admitted including the status of the respondent College in these writ petitions:
Sl.No. W.P.No. College Name Status of the college
& Name in WP
of the
petitioner
1 8167 of 2009 P.S.N.College of Engineering 3rd respondent
S.Meenu and Technology, Tirunelveli
2 10328 of 2009 James College of Engineering 2nd respondent
P.Lisho Paul and Technology, Kanyakumari.
3 10509 of 2009 Bharat Nikethan Engineering 3rd respondent
Anoop Mathew College, Theni.
4 11229 of 2009 Tamilan College of Engineering 3rd respnodent
V.Vinesh and Technology,
Nainar Karthik- Kanyakumari
S.Arumuga
J.Michael Richards
T.Abishake Titto
Binchu
5 11407 of 2009 SCAD College of Engineering 2nd respondent
J.Rizwana Fathima and Technology, Tirunelveli.
6 11422 of 2009 -do- 2nd respondent
P.Daniel Philip
7 11887 and 11888 Sethu Institute of Technology, 3rd respondent of 2009 Administrative office at Madurai S.Shahul Hameed M.Muneeskumar 8 11898 of 2009 Tamilan College of Engineering 3rd respondent G.Arun Gnana and Technology, Kanyakumari.
Paulin
9 12025 of 2009 Sethu Institute of Technology, 3rd respondent
R.Ambika Administrative office at Madurai
Priyadharshini
10. 12282 of 2009 J.P.College of Engineering, 3rd respondent
H.Gowthamraj Tirunelveli.
11 .12571 of 2009 P.S.N.College of Engineering 3rd respondent
Tinto P Devasia and Technology, Tirunelveli.
12. 12926 of 2009 R.V.S.College of Engineering 4th respondent
Koushick and Technology, Dindigul.
12927 of 2009
Mohammed-
-Jakariya
13. 13115 of 2009 Vins Christian College of 1st respondent
Chandramanuvel Engineering, Kanyakumari.
Doss
14. 13353 of 2009 SCAD College of Engineering 3rd respondent
Ponpackiyaraj and Technology,
13354 of 2009 Tirunelveli.
Anto Abraham
13355 of 2009
L.Lordson
13356 of 2009
Sam Aaron
15 13465 of 2009 Jeyaram College of Engineering, 3rd respondent
M.K.Mohammed Thuraiyur, Trichy.
Ashraf
16 13508 of 2009 SCAD College of Engineering 3rd respondent
Vijayalakshmi and Technology, Tirunelveli
17 13840 of 2009 PSN College of Engineering 4th respondent
Alan Raju and Technology,Tirunelveli.
13841 of 2009 PSN Institute of Technology
Shifan Safar and Science, Tirunelveli.
18 13877 of 2009 James College of Engineering 2nd respondent
J.Kodeeswaran and Technology, Kanyakumari.
19 14276 of 2009 Sun College of Engineering 3rd respondent
M.Aswani and Technology, Kanyakumari.
20 14262 of 2009 -do- 3rd respondent
Lekshmi Jayan
14263 of 2009
Anuradha A. Nair
21 15 and 16 of 2010 Sivaji College of Engineering 4th respondent M.K.Arun Mohan & Technology,Kanyakumari Mithun Mohan 22 128 of 2010 M.A.M.College of Engineering, 4th respondent B.Thangeshram Trichy.
23 218 of 2010 St.Michaels College of Engineering 3rd respondent
Aiybel Thomas and Technology, Sivagangai
219 of 2010
Jeevi Elizabeth
24 422 of 2010 Raja College of Engineering, 4th respondent
M.Mohamed Madurai.
Abubuckar Siddiq
25 423 of 2010 S.Veerasamy Chettiar College of 4th respondent
A.M.Sheik Mydeen Engineering and Technology,
Tirunelveli.
26 424 of 2010 S.Veerasamy Chettiar College 4th respondent
L.Priyanka of Engineering and Technology,
Tirunelveli.
27 764 of 2010 SCAD College of Engineering 3rd respondent
Berlik Jacob and Technology
765 of 2010 Tirunelveli.
M.Nowfal
28 784 of 2010 M.E.T. Engineering College, 4th respondent
S.Ramees Saleem Kanyakumari.
29 785 of 2010 M.E.T. Engineering College, 4th respondent
P.Arun Prabhakar Kanyakumari.
30 786 of 2010 M.E.T. Engineering College, 4th respondent
M.S.Sabeer Kanyakumari.
Samsudeen
31 787 of 2010 M.E.T. Engineering College, 4th respondent
M.S.Sameer Kanyakumari.
Samsudeen
32 1153 of 2010 Arul College of Technology, 3rd respondent
G.Vishnu Tirunelveli.
1154 of 2010
Rakhil
1155 of 2010
Litto Samuel
33 2629 of 2010 SCAD College of Engineering 3rd respondent
Laiju Lal and Technology, Tirunelveli.
18.It must be noted that pursuant to the Government Order, the Directorate of Technical Education by its communication, dated 3.6.2009 had issued a circular informing the colleges that with reference to NRI quota for the year 2009-2010, orders from the Government were awaited and hence the Principals were requested not to proceed with the admission of students under the NRI quota. After issuance of the G.O., the Anna University, Tirunelveli had also issued an application for provisional eligibility certificate for candidates seeking admission in affiliated colleges under the NRI category as well as the children of Indian Workers in Gulf Countries category (CIWGC). The application form issued by the University contained several conditions incorporating the clause found in paragraph 4(d) as a precondition for eligibility.
19.After paying hefty amounts to the colleges contrary to the rules and norms, the petitioners apprehended that either their admissions will be cancelled by their respective affiliated University, Anna University Tirunelveli in which colleges were affiliated since their admissions have been made contrary to law or the College fearing of their recognition and affiliation may be withdrawn by the AICTE and the University respectively for flouting the law, have set up the students to approach this court with writ petitions under Article 226 of the Constitution of India to challenge the Government order made in G.O.Ms.No.162, Higher Education Department, dated 02.06.2009.
20.Some of the writ petitions were admitted and notices were ordered. In the petition for interim injunction, the petitioners have obtained interim injunctions against the Colleges from denying permission to attend the 1st year Engineering course. On the strength of the interim orders, the petitioners and in some cases their wards are studying in various colleges set out in the table above. Even after notice, the respondent self financing Engineering colleges neither filed any counter affidavit nor filed any vacate injunction application. Subsequently, the students who got interim orders against the colleges also filed applications for writing examinations. On 19.12.2009, this court passed the following directions:
"In view of the submissions of the learned counsel for the petitioners that in similar matters and in these petitioners, except W.P.(MD)No.11407, 11422, 12926 & 12927 of 2009, this Court granted the interim relief of direction to the respondents not to disturb the admission of the petitioner under NRI Quota considering that the concerned respondent/University is not accepting the applications and as the applications have to be submitted only to the University, this Court is constrained to grant the similar relief to the petitioner in WP(MD)Nos.11407, 11422, 12926 & 12927 of 2009 and also constrained to direct the concerned respondent/University to accept the applications of the petitioner submitted by the colleges on condition that the petitioners paying necessary fees and complying with the other conditions and their admissions are subject to the final orders of tis Court in these writ petitions. It is made clear that the concerned respondent/University is entitled to process the applications in the manner known to law as per the Rules.
2.In view of the further submission made by the learned counsel for the petitioners that the examinations are going to be conducted in the near future, this Court is also constrained to direct the respondent/University to permit the petitioners in all these writ petitions to write the examinations, but the results may be published subject to the final orders in this writ petition."
(Emphasis added)
21.When the second semester examination came, the petitioners moved once again applications for further orders stating that they have not been permitted to write the second semester examinations. By an order, dated 28.4.2010 this court gave further directions which are as follows:
"3.Heard the counsel for the petitioners. A perusal of the order dated 19.12.2009, would make it very clear that the order is blanket order and is not restricted to any particular semester or particular examination. In view of that the respondents are directed to permit all the petitioners to write all the examination to be conducted in future also. Further, the result may be published subject to result of the writ petitions. It is again made it clear that the order would cover all the examinations conducted during the entire period of course."
But, either the University or the State Government which were slapped with such interim directions, never took steps either to vacate the interim orders or to go on appeal against those orders, and allowed the orders to continue to be implemented. The net result is that the petitioners are in the 4th semester.
22.On receipt of the notice, a common counter affidavit was filed by the first respondent State, dated 31.12.2009. In that counter affidavit, the narration of the facts leading to fixation of NRI quota was set out. In rebutting the contentions of the petitioners that the Government Order was invalid as their admissions were made well before the Government Order and that the Government Order can only be prospective, in paragraph 10 of the counter affidavit, it was averred as follows:
"10.It is submitted that the averment made by the petitioners that the G.O. cannot be applied to the academic year 2009-2010 as the admission under NRI quota for the academic year 2009-2010 has been completed cannot be accepted. The G.O issued is dated 2.6.2009, whereas the single window counseling for admission to students under Government quota started on 10.7.2009 and was held till 12.8.2009. The last date of admission for first year B.E./B.Tech./B.Arch, Degree Courses for the year 2009-2010 was declared as 10.9.2009. It is crystal clear that the G.O. was issued sufficiently well in advance before the commencement of the academic year. Further, in the Circular No.3986/J1/2009, dated 13.4.2009 issued by the Directorate of Technical Education, the colleges have been informed that guidelines for admission under "NRI" quota will be sent in due course and in continuation of this letter another circular vide ref.3986/J1/2009, dated 3.6.2009 was sent by him, to the Principals informing them that in respect of NRI quota admission, orders from the first respondent are awaited and hence not to proceed with the admission of students under NRI quota until further orders are issued. Simultaneously, when this circular was communicated, the Government order has been issued. Therefore the G.O. was communicated to the various Colleges immediately on receipt of the order and hence the guidelines for admission to the NRI quota shall be made applicable from the academic year 2009-2010. The G.O. was issued and communicated sufficiently well in advance to admission of candidates to NRI quota for the academic year 2009-2010. Hence, the contentions of the petitioners that the G.O. cannot be made applicable for the academic year 2009-2010 is untenable."
23.It is at this juncture, these matters were grouped together and posted for final hearing. Various counsels appearing for petitioners had reiterated the same contentions raised in their affidavits and also alternatively pleaded for sympathetic consideration in view of the fact that they are in the fourth semester and had spent considerable amount in getting their admissions and to pursue their career.
24.Some of the counsels appearing for self financing colleges had stated that because of the interim orders issued by this court, they were forced to continue the students. Therefore, they should not be penalised. Though this argument is attractive, but coming from the oral statements of the counsel, it cannot be accepted. In most of the affidavits, the petitioners' plea was that admissions were made even before guidelines were issued by the State Government by the impugned G.O. Therefore, the G.O must be held to be prospective and not applicable to the present petitioners or wards of petitioners in some of the cases. In the previous guidelines of the State Government, allowing sponsorship of NRI by the near relatives was also permitted. Since these allegations were made in the solemn affidavits which can only be denied by the College, and they having not chosen to deny these allegations and must be taken to be truth. It is these self financing Engineering colleges who are responsible in making such admission even before the academic year began and the admission programmes were notified by the State Government which had empowered itself in prescribing guidelines regarding the NRI quota from time to time.
25.Though the earlier Government Order in G.O.Ms.No.109, Higher Education Department, dated 10.4.2002 regarding the eligibility norms under the NRI quota was not valid, in the light of the AICTE regulations and the Supreme Court's judgments, that issue need not be gone into these writ petitions. Therefore, only a passing remarks is made on the state of affairs. However, armed with the new legislation and the power to prescribe the guidelines, the State Government had defined with precision the qualifications for admission to the NRI quota. Therefore, the admissions of the petitioners was clearly contrary to the rules and regulations and per-se illegal.
26.Mrs.V.Chellammal Murthi, the learned Additional Advocate General instructed by Mr.S.C.Herold Singh, learned Government Advocate submitted that since admissions were made completely disregarding the rules and regulations and the norms, they should be cancelled. The writ petitions are clearly the abuse of the process of Court and they are liable to be dismissed. She had also referred to the judgment of the Supreme Court in State of Tamil Nadu Vs. St. Joseph Teachers Training Institute reported in 1991 (3) SCC 87, wherein the Supreme Court had held that in respect of students admitted to an unrecognized teacher training institution, sympathy cannot be the factor to grant the relief.
27.In the light of the above factors, it has to be seen whether the petitioners are entitled to get any relief? In the present case, the petitioners and in some cases their wards are in the 4th semester of the B.E. course. Their parents had spent hefty amounts in securing admissions. In the normal course, they were not eligible to get admissions either on the merits quota or on the management quota. They had taken subterfuge of the NRI quota with the clear collaboration of self financing engineering colleges, whose motive seems to be making aggrandizement of their wealth of collecting huge amounts from the students or their parents. This Court had granted not only directions against the College from permanently attending the classes, but allowed them to write third semester examinations conducted by the affiliated University. Therefore, by dismissing the writ petitions only the students and their parents will be punished and that too when they had incurred huge expenditures for the last two years both towards towards fees and also for other expenses.
28.If any aggrieved student who did not get admission in the college by virtue of such illegal admissions made under the NRI quota had come before this court, this court would have had no hesitation to set aside the selection of those students so that meritorious candidate can be admitted. In fact when once NRI quota seats are not filled up, the Supreme Court had directed in P.A.Inamdar's case (cited supra) such quotas will have to be filled up by the other meritorious candidates. But, there is no case filed by any aggrieved individual. Even the State Government had not contended that the candidates sent by them were not taken in by these colleges. Therefore, dismissing these writ petitions on the basis of the students' admission in those colleges cannot be a proper solution. Besides, students having gone through examinations and are in 4th semester by pursuing their career in the engineering courses, need not be punished, though the beneficiaries from this exercise may be the self financing colleges who are also respondents herein.
29.Hence while granting relief to the students, the activities of the self financing colleges who are respondents which were per-se illegal cannot be condoned. The stand of the self financing engineering colleges that they had merely obeyed the orders of the court is rejected. They have not filed any application to vacate the interim orders. At their instance, the students are before this court and are continuing their courses thanks to the interim orders of this court. Hence it is necessary to find out a method by which an appropriate punishment should be given to the colleges who are really responsible for such fraudulent admissions in the name of NRI quota. Therefore while the students who are undergoing the course are in the 4th semesters are allowed to continue, but at the same time, the erred managements should be punished.
30.In view of the above, the following findings and directions are issued:
(i)The self financing engineering colleges are bound by the admission procedures indicated in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009.
(ii)The G.O. is legally and constitutionally valid.
(iii)Inasmuch as the G.O is allowing the admission procedure for 2009- 2010, it cannot be held to be prospective because the very G.O itself is intended to be issued covering the admission procedures for 2009-2010. Hence the contentions of the petitioners are without any legal basis.
(iv)Since the petitioners claimed that their admissions were made even before admission programme were started, the self financing engineering colleges will have to be punished by imposing exemplary costs.
(v)Since the petitioners and in some cases wards are in the 4th semester of their engineering programme and also they had spent huge amounts, in the absence of any challenge of their admissions by any deserved candidates, they should be allowed to continue their engineering courses in the same college as if their admissions are valid. The authorities are directed to act accordingly.
(vi)The self financing engineering colleges whose names are set out in the table in paragraph 17 above, are hereby imposed with cost of Rs.1,00,000/- (Rupees one lakh only) to be paid by each one of them to the first respondent State Government within a period of four weeks from today, so as to act as a deterrent in future years and prevent the misuse of NRI quota. Even though normally the costs are imposed on the losing petitioners, in this case since the petitioners are only Trojan horses, the costs should be only levied against the named respondent self financing colleges who had indulged in illegal acts and have also set up the students to approach this court for getting orders for their continuance in utter disregard of law.
(vii)The official respondents including the State Government, Director of Technical Education, the affiliating University and the AICTE are hereby directed to take action in future if the colleges violate the NRI quota and even to cancel their recognition/affiliation which permitted them to run the colleges.
31.With these directions, all writ petitions are disposed of with costs as quantified above at Rs.1 lakh against each of the college referred to in paragraph 17 of this order. The amount shall be paid to the State within four weeks from today. Consequently, all connected miscellaneous petitions stand closed.
vvk To
1.The Secretary, State of Tamil Nadu, Higher Education Department, Fort St.George, Chennai-600 009.
2.The Director, Anna University Tirunelveli, Government College of Engineering Campus, Tirunelveli-627 007
3.The Principal, P.S.N. College of Engineering & Technology, Melathediyoor, Palayamkottai, Tirunelveli-627 152.