Bombay High Court
G.H.R.Education Foundation Society vs The State Of Maharashtra on 24 September, 2008
Author: F.I.Rebello
Bench: F.I. Rebello, K.U. Chandiwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5450 OF 2008
1) G.H.R.Education Foundation society
having its Registered Office at
Nagpur, Shraddha House, 6th Floor,
Kingsway, Nagpur, District Nagpur,
Through its Secretary.
2) G.H.R. Education Foundation
Society's G.H. Raisoni Institute
of Engineering & Management,
Pachora Road, Jalgaon - 425 002,
Through its Principal. .. PETITIONERS
VERSUS
1) The State of Maharashtra
Through Secretary,
Department of Higher and
Technical Education, Mantralaya,
Annexe, Mumbai.
2) The Director of Technical
Education, Govt. fo Maharashtra,
Mumbai.
3) The North Maharashtra University,
Jalgaon, Dist. Jalgaon,
Through its Registrar. .. RESPONDENTS
.....
Shri P.M.Shah, Sr.Counsel h/f Mr.Nitin B. Suryawanshi,
Advocate for petitioners;
Shri N.B.Khandare, Govt. Pleader, for Resp.Nos. 1 & 2;
Shri A.B.Girase, Advocate for Respondent No.3.
.....
CORAM: F.I.REBELLO &
K.U.CHANDIWAL,JJ.
Date : 24th SEPTEMBER,2008.
JUDGMENT (PER:- F.I.REBELLO,J.):
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. Rule. Heard forthwith.
2) The petitioner No.1 is a society, registered under
the Societies Registration Act. It has been recognized as
a minority institution. No Objection Certificate issued
by the Competent Authority dated 9th July, 2007 is annexed to the petition. Petitioner No.2 is an educational institution run by petitioner no.1-society. The Executive Body of petitioner no.1 is the body of petitioner no.2.
The primary object of petitioner no.1 is to impart education within the State of Maharashtra and presently it is conducting various courses and running various colleges at Nagpur, Jalgaon and Ahmednagar in the State of Maharashtra.
3) The petitioners applied to All India Council for Technical Education (A.I.C.T.E.) to run postgraduate courses in Business Administration, i.e. M.B.A. and Mechanical Engineering along with other courses, which are being conducted by the petitioners in their existing college. A.I.C.T.E. is constituted in pursuance of All India Council for Technical Education Act, 1987. The object of the A.I.C.T.E. is for the proper planning and coordinate development of technical education throughout the country, promotion of qualitative improvement of such ::: Downloaded on - 09/06/2013 13:54:05 :::
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education and proper maintenance of norms and standards in the technical education system and the matters connected therewith. A.I.C.T.E. is the final authority in respect of granting recognition to the technical courses throughout India. The law on this point is settled by the Judgment of the Supreme Court in Jaya Gokul Education Trust Vs. Commissioner & Secretary to Government Higher Education Department, Thiruvanathapuram, Kerala, State and Anr. - (2000) 5 SCC 231.
4) A.I.C.T.E. by its communication dated 30th June,
1998 addressed
to the Principal Secretary, Higher &
Technical Education and Employment Department, Govt. of
Maharashtra, Mumbai, informed that they have approved the
proposal of petitioner no.1-soceity for starting courses
in M.B.A. and Mechanical Engineering. A copy of this
communication was also addressed to the petitioners as
also to the Registrar of the concerned university in the
instant case Respondent No.3. The approval order clearly sets out that the approval is for introduction of additional courses for the academic year 2008-2009. In the note to the Revised order it was set out that the approval for the additional course(s)/Increase in Intake/variation in intake is valid for two years from the date of issue of the letter for getting affiliation with respective university and fulfilling State Government ::: Downloaded on - 09/06/2013 13:54:05 :::
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requirements of admission. It is the case of the petitioners that pursuant to the approval granted by A.I.C.T.E., the petitioners were entitled to admit students for M.B.A. and Mechanical Engineering courses.
According to the petitioners, admission to M.B.A. and Mechanical Engineering courses is governed and controlled by Respondent nos. 1 and 2. Respondent Nos. 1 and 2 are the appropriate authority to frame the Rules, governing admissions and which conducts Central Admission Process (C.A.P.), in which students are allotted to various colleges. Respondent No.3 is the affiliating body, who conducts examinations and declares the results and confers respective degrees on the students. For obtaining admission in any Institution for the course in M.B.A. or Mechanical Engineering, it is necessary for the candidates of State of Maharashtra to undergo an examination, i.e. Common Entrance Test (C.E.T.).
5) The schedule of C.E.T. was published by Respondent No.2 in its notification dated 9.6.2008. As far as M.B.A. course is concerned, admission to the said course was to commence on 3.7.2008 and it was scheduled to be completed by 30.08.2008. In respect of Mechanical Engineering course, it was to commence on 16.6.2008 and was to be completed by 15.09.2008. According to the petitioners, pursuant to the approval by A.I.C.T.E. dated 30.06.2008, ::: Downloaded on - 09/06/2013 13:54:05 :::
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petitioner no.2 forwarded a communication/representation dated 7.8.2008 to the Respondent No.1 informing about the approval of A.I.C.T.E. and thereby requested that petitioner no.2-college be included in the list of institutions imparting education leading to M.B.A. and Mechanical Engineering courses. Though the petitioners have approached Respondent No.1 and 2 for inclusion of name of petitioner no.2-college in the list of colleges in Maharashtra State for admission of students to both the courses, the name of petitioner no.2 was considered only for the degree course of M.B.A. The Respondent Nos. 1 and 2 forwarded ig the students through C.A.P. to the petitioner no.2-college only for admission to M.B.A. course. This is clear from the Government Resolution/Circular dated 31.7.2008.
6) Petitioners, it is submitted, have already invested huge amounts in the infrastructure and purchasing equipments for mechanical engineering course. The petitioners have also appointed required staff and lecturers for imparting education, as AICTE has granted permission to start the said course. As AICTE is final authority for granting approval, according to the petitioners, Respondent Nos. 1 to 3 ought to have granted consequential permission to start the new course in Mechanical Engineering. The respondents could not have ::: Downloaded on - 09/06/2013 13:54:05 :::
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ignored the same, considering the law laid down by the Supreme Court in State of Maharashtra Vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors., reported in 2006 AIR SCW 2048. Another institution of the petitioner no.1, namely G.H.Raisoni College of Engineering at Nagpur, run by Ankush Shikshan Sanstha, a society which is sister concern of petitioner no.1, was granted approval on 30.06.2007 for two post graduation courses, i.e. M.C.A. and M.Tech. Respondent nos. 1 and 2 permitted both the courses in the said institution and the same is reflected in Govt. Resolution dated 31.7.2008. The action therefore ig on the part of the respondents in not granting permission/affiliation to the petitioners herein is discriminatory and violative of Article 14 of the Constitution of India.
7) In spite of repeated requests on the part of the petitioners, Respondent nos. 1 and 2 did not forward any students to the petitioner no.2-college for admission to Mechanical Engineering course. Petitioner no.2, being unaided minority institution, and as per its intake capacity, is entitled to admit 60 students in its college by following transparent admission process. In the list of documents filed before this Court, they have annexed an advertisement issued in Dainik Janshakti on 8.7.2008 for inviting applications in the various faculties including ::: Downloaded on - 09/06/2013 13:54:05 :::
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Mechanical Engineering and M.B.A. The courses was started in the month of August 2008 for the first term and the examination are likely to be held in October 2008 and the last date for submission of examination forms is 17th September, 2008. It is in these circumstances that the respondents have moved this Court for the reliefs as prayed in the petition.
8) Reply has been filed on behalf of Respondent No.2 by Ajit Ramrao Thete, Joint Director of Technical Education, Aurangabad. It is pointed out that, that notification dated 9th June, 2008 would show that the IVth and last round of admission to Engineering/Technology courses in the State of Maharashtra has been conducted by the Director as and by way of personal counselling from 25th to 28th August, 2008 and after this last round, no admission whatsoever can be effected. In view of that, it was not possible to add into the admission process even a single new seat, whether as and by way of new Engineering College or a new course in an existing Engineering College or addition in the intake capacity of an old Engineering college with old recognition and affiliated course.
Reference is made to the advertisement issued by A.I.C.T.E. on 24.9.2007 wherein it is set out that letters of approval issued after 30th June shall not be valid for the current academic year, but shall be valid ::: Downloaded on - 09/06/2013 13:54:05 :::
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only for the next academic year. It is, therefore, set out that all these colleges to whom letters of approval have been issued by A.I.C.T.E. after 30th June, 2008, those approvals are not valid for effecting admissions in the current academic year 2008-2009, but valid for the next two academic years. We may mention here itself that in the said advertisement, the terminology used is as under :
"The letter of Approval issued after 30th June shall not be valid for the current academic year but shall ig be valid only for next two Academic years."
It is, therefore, clear that only those to whom letters of approval are issued after 30th June, which cannot be considered but those issued up to 30th June would be entitled to admit students for the current academic year.
Reference is also made to the Judgment of the Full Bench of this Court passed on 8.8.2008 and 22.8.2008 in Writ Petition No. 3916 of 2001 and other petitions. Various paragraphs from the said judgment have been quoted. We do not find in any of the paragraphs any legal bar on the respondents or on the petitioners admitting the students for the academic year 2008-2009.
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9) Reply has also been filed on behalf of Respondent No.3-university by Digambar s/o Maroti Mahajan, Section Officer. It is pointed out that though the order was passed by A.I.C.T.E. on 30th June, 2008, the petitioner institution has not taken any steps for getting affiliation till date and on this ground of delay alone, the petition is liable to be dismissed. The State Government, by letter dated 31.7.2008 has granted permission to the petitioner institution for various other courses, but the course of Mechanical Engineering has not been included in the said list. In terms of the Maharashtra Universities Act, from the academic year 2001-2002, such permission of the State Government shall be communicated to the university on or before 31st May, of the year in which new college is proposed to be started. Permission received thereafter shall be given effect by the university only in the subsequent academic year. The petitioner, as pointed out earlier, till 18.9.2008 has not received any permission/recognition order and as such the University is not in a position to grant affiliation for this academic year. As per the norms prescribed by the AICTE as well as the university, the student has to complete the term prescribed by the AICTE as well as university. The first term of the Engineering Course ends in the month of November. As per the norms of the university, 80% attendance is necessary ::: Downloaded on - 09/06/2013 13:54:05 :::
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to grant the term. Reference is also made to the provisions of Section 82 and 83 of the Universities Act.
It is, therefore, submitted that the petition ought to be dismissed.
10) The questions for consideration before this Court would be :
(i) After AICTE had granted approval on 30th June, 2008, was the State Government within its authority not to grant recognition to the petitioners ig for admitting the students to the Mechanical Engineering course ?
(ii) If the petitioners have admitted the students, was it in breach of the brochure and or any other statutory provisions ?
(iii) What is the procedure that the petitioner had to follow in admitting the students, and if admitted, role of the respondents in allowing the students to prosecute their studies and appear for the examinations ?
11) In so far as the issue of recognition of the petitioner by Respondent No.1 and affiliation by ::: Downloaded on - 09/06/2013 13:54:05 :::
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Respondent No.3 is concerned, in our opinion, once AICTE granted approval, the said respondents are bound by what is set out in the Judgment in the case of Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) as also the Judgment of the Supreme Court in Jayu Gokul Educational Trust (supra). Once permission is granted, it is neither open to the State Government, nor to the university to refuse permission or affiliation, as the case may be. The State Government has no power to reject the prayer of the institution or overrule the decision of N.C.T.E. In the instant case, the State Government, to whom letter of approval was addressed, granted permission for M.B.A. course, but did not communicate their decision for granting permission to Mechanical Engineering course on the spacious plea that the Brochure has already been published and the names of the institution could not be included. Such a plea is unavailable to the State Government. The State Government, was, therefore, duty bound to grant approval based on the approval granted by AICTE in favour of the petitioners.
. In so far as Respondent No.3 is concerned, it is true that the petitioners have not yet applied for affiliation. The contention of the petitioners is that they were waiting for the approval of the State Government so as to apply for affiliation with Respondent no.3. As ::: Downloaded on - 09/06/2013 13:54:05 :::
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respondent no.3 has not granted approval, they did not apply, but they would apply now considering that they have already admitted the students and approval is for the academic year 2008-2009. In so far as the university is concerned, the Supreme Court in Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya (supra) has specifically set out that once recognition has been granted by N.C.T.E, every university is obliged to grant affiliation to such institution and sections 82 and 83 of the University Act do not apply to such cases.
.
Question No.1 is answered accordingly.
12) We then proceed to consider the process of admission. We may first refer to the Govt. Resolution of 11th June, 2007 in the matter of giving recognition to the educational institutions of minority societies, who wish to acquire the status of religious/linguistic minority institutes in the State. In terms of the said Government Resolution, following paragraphs are relevant :
"(3) While giving admission to the first year of the educational portion, it is binding on the institute which has been given the status of minority to give admission to at least 51% of the students of the religion of which the minority institute belongs. In case it is not possible to get the students of that minority society to the management, the concerned minority educational institute can seek students from the State ::: Downloaded on - 09/06/2013 13:54:05 :::
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Government authorities.
(4)............................................... (A).............................................. (B)..............................................
(C).............................................
(5) All the minority students who are admitted by management running the educational portion by the prescribed method, as per merits and by transparent admission method, shall be residents of Maharashtra State as also it is incumbent that they shall pass the Secondary School Education and Higher Secondary Education Examination from Maharashtra only.
(6) The management running the educational portions in addition to school education shall, by following the policy of the State Government of provisions of prescribed percentage of admission to every Department, the management shall give admission to minimum 51% of the admission strength to the students who are residents of Maharashtra."
. It would therefore be clear that an institution which has been granted minority status will have to comply with the said directions.
. Next reference can be made to the brochure issued by Respondent nos. 1 and 2. In terms of para 2.1 of this brochure, seats available for admission through Centralized Admission Process (C.A.P.) is set out. In so far as unaided minority engineering colleges are concerned, Maharashtra State seats would be 85% of CAP Seats and All India seats on the basis of AIEEE would be 15% of the CAP seats. The CAP seats would be carved out based on the formula given as under :
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"CAP Seats = Sanctioned Intake - (Minority Seats + Institute level seats.)
13) We have then para 2.4 of the brochure, which sets out the Seats as mentioned below are not covered under the CAP and the respective institutions are the authority for admissions to these seats. The candidates seeking admission under these seats shall submit separate application/s to the concerned admission authority/authorities. In so far as unaided minority Engineering Colleges are concerned, the Admission Authority is The Principal of the Un-Aided Minority Engineering College. In so far as the seats to be filled in at Institute level, it is to be decided by the respective Minority Institute. We are not here considering the seats over and above sanctioned intake.
Our attention was invited by counsel for the respondents to admission of NRI candidates to point out that they are eligible to apply only against Institute level seats.
Para 2.6.2 provides for allocation and reservation of seats for admission through CAP for all types of institutes and seats available for Institute level admission/seats for Minority community in unaided institutes. Under column 4 - Unaided Minority Colleges Maharashtra State seats would be the CAP seats - 15% of ::: Downloaded on - 09/06/2013 13:54:05 :::
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CAP seats for AIEEE and they would be divided as 70% of Maharashtra State seats coming under CAP, which are to be divided under Home University and Other than Home University.
14) From all the Paras of the Brochure what emerges is that in so far as unaided minority Engineering colleges are concerned, the procedure for filling in the seats would be that the candidates have to directly apply to the concerned authority/authorities. The allocation of seats has to be decided by the concerned Admission Authority.
In the instant case, according to the petitioners, under the sanctioned strength of 60 students in terms of the approval granted by Pravesh Niyantran Samiti in respect of their sister institution, they have reserved admission for minority students as 51% and admissions at institute level at 20% and admissions through CAP or governing CET at 29%.
Therefore, out of 60 seats available, 31 to be filled in from minority community; 12 to be filled in at institute level; and remaining 17 seats were divided - 3 for AIEEE;
10 for Home University; and 4 for other than Home University. Thus, in so far as 31 seats and 12 seats are concerned, the authorized authority for granting admission is the Principal of the unaided minority institution.
Merit being a criterion, as set out by the Supreme Court in T.M.A. Pai Foundation Vs. State of Karnataka - (2002) ::: Downloaded on - 09/06/2013 13:54:05 :::
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8 SCC 481, reiterated in Islamic Academy of Education and Anr. Vs. State of Karnataka and Ors. - (2003) 6 SCC 697; and further reiterated in the case of P.A.Inamdas Vs. State of Maharashtra & Ors.- (2005) 6 SCC 537. The seats to be filled in by the authorized Admission Authority, will have to be based on merit of the candidates who have applied and in terms of the Rules for admission.
15) In so far as seats to be filled in through CAP, admittedly, the Respondent nos. 1 and 2 have not made available the students to the said seats. The last date for admission was extended from 8.9.2008 to 15.9.2008. In these circumstances, the institute could have filled in the seats again by following the order of merit and the other rules. In so far as this aspect is concerned, the same is covered by Para 6.8 of the brochure, which sets out as under :
"The Principal/Director of the un-aided institution has to carry out the admissions for the vacancies after the CAP Round-IV as per the guide lines given in Annexure-III."
16) The petitioners have admitted the students without getting approval of Respondent nos. 1 and 2 or ::: Downloaded on - 09/06/2013 13:54:05 :::
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affiliation from Respondent no.3 university. The fact, however, remains that the petitioners had approached the Respondent no.2 for approval, which, till date has not been granted. Thereafter, they have moved this Court on 11.09.2008 and since then the Court is seized of the matter. Once the Respondents were bound to grant approval and or affiliation, as AICTE had granted permission to start the courses from the academic years 2008-2009, it was open for the petitioners, being a minority un-aided institute, considering the brochure issued by the Respondent nos 1 and 2, to have commenced the admission process subject ig to the procedural requirements to be completed and further admitting the students in order of merit and in terms of the brochure as also the Govt.
Resolution of 11th June, 2007.
17) The petitioners to apply to the Respondent No.3 for affiliation. On the petitioners so applying, considering Para 78 of the Judgment in Sant Dnyaneshwar (supra), the Respondent No.3-university to grant affiliation. This affiliation would be subject to the petitioner and the students who have been admitted being eligible and fulfilling their requirements, if any.
18) In terms of the Govt. Resolution dated 11.6.2007, the petitioners being minority institution will have to ::: Downloaded on - 09/06/2013 13:54:05 :::
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admit at least 51% of students. Though the Govt.
Resolution only speaks of religious minority, considering that minority is both for religious and linguistic minority, para 3 will have to be read as applicable to both religious and linguistic minorities. The 20% management quota will have also to be filled in considering the brochure as also the other seats considering para 6.1.
19) The issue as to whether the students meet the
requirements for admission will have to be considered by
the Respondent
No.2. The petitioners, therefore, will
have to submit the requisite information and particulars
to the Respondent No.2 within seven days from today. The
Respondent No.2 thereafter, within fifteen days of receipt of such information and particulars, to decide as to whether the students have been admitted in terms of the Rules and the brochure and communicate the decision to the petitioners and Respondent no.3.
20) The petitioners to apply to the Respondent no.3 for affiliation and the Respondent no.3, considering the Judgment in Sant Dyaneshwar Shikshan Shastra Mahavidyalaya (supra) to grant affiliation. It will be open to the Respondent no.3 to decide the eligibility of the students for admission based on the report submitted by the ::: Downloaded on - 09/06/2013 13:54:05 :::
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Respondent no.2 and it will also be open to them to consider the eligibility of admission in the context of the rules of the University.
. Questions 2 and 3 answered accordingly.
21) In the light of the above, Rule is made absolute in the terms of what is set out hereinabove.
(K.U.CHANDIWAL,J.) (F.I.REBELLO,J.) bdv/uniplex/wp5450.08 Authentic copy (BD VADNERE,PA) ::: Downloaded on - 09/06/2013 13:54:05 :::