Bombay High Court
Miss Quconio Ester Maureon De Melo And ... vs Director, Directorate Of Technical ... on 15 October, 1998
Equivalent citations: AIR 1999 BOMBAY 143, (1999) 2 MAHLR 366
Bench: R.K. Batta, J.A. Patil
JUDGMENT Batta, J.
1. All these petitions raise common questions and challenged admission to payment category seats in Padre Concicao College of Engineering, Verna, Goa (hereinafter referred to as "Padre College"). The petitions have been filed by the students who have passed XIIth examination through their guardians.
2. The petitioners case is that they have applied for admissions to Engineering Courses in the general as well as reserved category of payment seats. For the payment seats, they had duly filled in a separate additional pro forma at Page 5 of the application form. On 24-6-1998, provisional Merit List of all the applicants was displayed, in which there was an additional column 'local.' The petitioners along with about 87 names were described as 'local' in the said provisional Merit List. On 6-7-1998, the Director of Technical Education displayed improved provisional Merit List, which displayed only general category seats and reserved seats, but payment seats were not shown. The petitioner in Writ Petition 265/98, through her father filed representation on 7-7-1998 with the Director of Technical Education, respondent No. 1 and similar representation was filed to Secretary Education, Government of Goa, who is respondent No. 3. On 8-7-1998, the Director of Technical Education, displayed final merit list, namely list of general category candidates, list of S.C., S.T., O.B.C., Freedom Fighter and other reserved categories, as well as a separate list of candidates for paid seats. The petitioners in Writ Petition Nos. 269/ 98 and 270/98 allege that the following notice was displayed by the Director of Technical Education:--
"Only those candidates who have indicated their options of categories applied for by ticking () in category 10 on page No. 1 of admission form and also claimed category of payment seats in engineering college and added additional pro forma V of admission form completed in all respects will be considered for payment seats.
The same will be verified at the time of counselling before confirming admission for payment seat."
Reliance is also placed by these petitioners on the news item published on 8-7-1998 in daily newspaper Navhind Times. On 9-7-1998, the admission process started, but the Merit List of payment seats, was withdrawn by Notice, which reads as follows:
"The Government of Goa has directed the Director of Technical Education that students who have filled up the application forms without specifically indicating any preference for payment seats should be allowed to be considered against payment seats as per inter se merit to allow all candidates to compete for payment seats as per conditions laid down in the prospectus."
According to the petitioners, this Merit List of payment seats was withdrawn illegally, arbitrarily and unconstitutionally with an intention to give backdoor entry to those candidates who did not apply for the payment seats in the application form, as required under the prospectus. They also state that the withdrawal of the Merit List of payment seats tantamounts to altering the admission Rules and change of terms and conditions for admission as given in the prospectus, and amounts to violation of Article 14 of the Constitution. The petitioners, therefore, seek directions that the admissions to payment seats be made in accordance with the Merit List of payment seats which was displayed on 8-7-1998. The petitioners names figure in the said list of payment seats, which consists of 87 candidates. The petitioners had also sought for interim directions and the admission to Padre College respondent No. 4 as against the paid seats was made subject to decisions of these petitions.
3. The admissions against payment seats were made strictly in order of merit from the Merit List amongst the general category candidates. The petitioner in writ petition No. 265/98 is at Sr. No. 678 in the general category merit list; the petitioner in writ petition No. 266/98 is at Sr. No. 639 in the said Merit List; the petitioner in writ petition No. 269/98 is at Sr. No. 543 of the said Merit List and the petitioner in writ petition No. 270/98 is at Sr. No. 604 of the said Merit List. However, in the list of payment category which was displayed on 8-7-1998 and which was subsequently withdrawn, the petitioners fall within 87 candidates listed therein. Out of the said 87 candidates in that list, 4 petitioners have approached this Court. Though the admissions were made subject to the decision in the writ petitions, even then, taking into consideration the larger interest of the students who had been admitted, it was considered necessary to publish a notice in four local newspapers -- 2 in English, one in Marathi and one in Konkani, so that if any of the students who were likely to be affected, desired to intervene, they could approach the Court. The notice was duly published. In all 52 students sought intervention. On behalf of the intervenors, the Advocates appearing for them had suggested that one common affidavit be permitted to be filed on behalf of the intervenors, which request was granted and the intervenors have filed one common affidavit which is placed in writ petition No. 265/98. Likewise, on behalf of the respondents, an affidavit, as well as supplementary affidavit has been filed by the Director of Technical Education, respondent No. 1.
4. In affidavit dated 12-8-1998, the Director of Technical Education informed that 3 students had been admitted prior to the passing of the interim order dated 13-7-1998. However, it appears that all these candidates have already shifted to free seats by virtue of vertical mobility. It was further pointed out in this affidavit that the petitioner in Writ Petition 267/98 has been admitted in College of Architecture; the petitioner in Writ Petition 266/98 has been admitted in O.B.C. category in Electrical Engineering in Goa College of Engineering; the petitioner in Writ Pet. 269/98 has been admitted in Padre College of Engineering at Verna against the payment seats and only the petitioner in writ petition 270/98 did not gel admission. According to the learned Senior Advocate for the petitioners in writ petition 265/98, the petitioner had applied for Computer Engineering in payment seats and the petitioner in writ petition 266/98 had applied for electronics in payment seats. According to the learned Advocate for the petitioners in Writ Petn. 269/98 and 270/98, the said petitioners had applied for payment seats in Mechanical Engineering, but they have been admitted in Electronics and Civil Engineering respectively.
5. In the supplementary affidavit dated 21-8-98 filed by the Director of Technical Education, it is submitted that the payment seats do not fall within the category of reserved seals, but they form part of general category; the payment seals in Padre College were never intended to be separate category/reserved seats, but they are only general category seats to be allotted on the basis of inter se merit; that in the application form also additional pro forma for the candidates to be considered for different categories other than general was required to be filled; that there were printing mistakes in the prospectus and some of the prospectus were sold without correcting the printing mistakes; that in the admission form there was no mention regarding payment seals, but it was only mentioned as 'local and other states'; that payment seats were never considered as reserved seals, but they were seats in general category which were to be allotted strictly on me basis of inter se merit and the said seats have accordingly been allotted strictly on the basis of inter se merit of the candidates; that the data in relation to 884 application received for various courses, shows that approximately 747 did not fill Form No. V though they had ticked in the general category and approximately 797 candidates did not mark tick at column No. 10; that even those candidates who had marked tick in column No. 10 (local), it is found that only about 39 candidates filled form V and out of that about 19 candidates indicated 'local' or 10 in form V and the others did not fill Form V. This data which has been placed, has been specifically pointed out during the course of arguments by learned Govt. Advocate to suggest that the prospectus was not properly understood by the candidates at large and we shall deal with this aspect, in detail, later in this Judgment.
6. The common affidavit filed on behalf of the intervenors states that on 8-7-98, apart from other merit lists, a list of 87 students was displayed as against payment category seats at the Padre College and this list includes 10 candidates who have secured less than 60% marks in Physics, Chemistry and Mathematics, who are not even eligible for the admission to Engineering Course. When this list of 87 candidates was displayed, the parents of many candidates approached to the Director of Technical Education, as well as the Secretary Education, Government of Goa and pointed out the confusion caused on account of the discrepancies in the prospectus and the application forms. Consequent to their representation, the Director of Technical Education announced that the admissions shall be made strictly on the basis of merit. According to the intervenors, the entire problem arose on account of glaring defects in the prospectus issued by the Director of Technical Education and from the prospectus, it was apparent that the paid seats were always considered as part and parcel of the general category seats. This contention is sought to be justified by reference to various clauses of the prospectus with which we shall deal while discussing the matter on merits. The intervenors have also placed details in respect of 34 forms, out of eligible 77 candidates shown in the payment seats list published on 8-7-98. This information is based on the inspection taken by the intervenors of the said 34 forms from the Director of Technical Education. Their contention is that on account of discrepancies in the prospectus, majority of the students were misled into believing that if category one is ticked, the same would entitle them for consideration for payment category seats as well.
7. We have heard learned Advocates appearing on both sides, who argued at length. The advocates for the parties look us through various clauses of the prospectus and had to make strenuous efforts to bring home their point of view in the matter. It almost took one full working day for the legal brains to interpret whether the paid seats fall under the reserved category or that the payment seats were sub-category under the general category or that the payment seats form part of general category. The prospectus is to be filled by the student who have passed XIIth Standard. The prospectus should be so drafted so that a student is able to understand the same and fill it up normally without any outside help and if at all help is required, it should be in the nature of parental help. The prospectus should not be so designed that in order to understand and fill the same one has to take assistance of a legal expert. We have made these observations at the outset since, as already pointed out, the Advocates on either side had to make strenuous efforts to interpret the various clauses of the prospectus in order to support their stand. Be that as it may, we shall now proceed to record the arguments submitted before us by the learned advocates for the parties. However, before proceeding ahead and for the purpose of better appreciation of the arguments advanced on either side, it is considered necessary that the relevant provisions of the prospectus and the application form to which reference had been made on either side may first be noted.
8. Clause 3 of the prospectus deals with abstract of distribution of seats :
Category Course GEN SC ST OBC FF CSP Ex-Service man PH N R I All India Exm.
other State Grand total 1 2 3 4 5 6 7 8 9 10 11 MBBS 41 1 1 9 1 4 1 1 11 70 B.D.S. 14 1 1 4 1 2 1 1 5 30 B.E. 172 5 I 36 2 14 2 7 I 240 B.E. Payment 81 9 90 B.Arch.23 1 1 6 1 2 1 1 1 3 40
B. Pharm.
Sc.26 1 1 6 1 2 1 1 1 40
The relevant portion of Clause 4, on which reliance has been placed on either side are :
"4. General Instructions to Candidates 4.1 & 4.2 ...........
4.3 An applicant seeking admission to various professional courses covering both General and Reserved categories is required to submit only one application form. In the event that any applicant submits more than one application form, the application submitted last will be considered and his/her earlier application (s) shall stand cancelled. However, an applicant may apply for more than one category subject to fulfilment of the eligibility conditions for that category. To this effect an applicant should tick () appropriate category/categories in application Form (page 1). The main application form shall be treated as an application form for General category. However, an applicant who wishes to be considered for other than General Category should fill a separate additional pro forma given at page V of application form. The specimen copy of such pro forma is attached to application form. If an applicant wishes to apply for more than one categories, he/she should use photo copy of the said pro forma.
4.4 & 4.5 ............
4.6 Coursewise reservation in Engineering shall be available to candidates belonging to SC/ ST/OBC. Physically Handicapped, children of Freedom Fighter, children of Central/State Govt. Employees, children of Central/State Govt./Public undertaking and children of employees of private sector/business will avail the reservation but the allotments of branches to them shall be on par with the candidates of general category.
4.7 The last date for receiving applications in the office of Admission Centre is 15th June 1998, upto 16.00 hrs. The application should preferably be submitted by the candidate personally at the Admission Centre.
4.8 to 4.10 ...........
4.11 Admission shall be strictly on the basis of inter se merit, determined as per the provisions of the prospectus for each course.
4.12 ...........
4.13 All the candidates should verify the correctness of their merit position in the provisional list. In case of any detected mistake, one should immediately inform the Admission Centre failing which the candidate himself/herself shall be responsible for the consequences of such an error.
4.14 to 4.19 .............
4.20 There is no provision in the application form to indicate the order of preference. The procedure to allot discipline/branch has been simplified. Under the present dispensation, (Spot Admission) the candidates shall be in position to select the branch/discipline at the time of counselling which will be subject to the availability of vacancies. High ranking candidates shall have ample disciplines to choose from, whereas the availability of branch and seats continue to shrink as one descends the merit list and finally culminating at the least opted branch before exhausting all vacancies.
4.21 to 4.23 .............
4.24 Scrutiny of the Application Form :-- The candidate is advised to submit the complete application form on or before 15th June, 1998 at Admission Centre and collect an Acknowledgement cum Registration Card. Incomplete applications shall be summarily rejected. The Admission Centre will scrutinize all applications and any found deficient shall be treated as incomplete. However, candidates will be given an opportunity to comply. The list of such applicants shall be displayed on the notice board at Admission Centre on 24th June, 1998. Candidates should personally take care and note any deficiency and comply with the objections latest by 25th June, 1998, the same shall stand rejected, and no communication will be entertained in this regard.
4.25 ..............."
The relevant part of Rule 5.3 in relation to admission to Engineering Colleges, upon which reliance has been placed, prescribes that a candidate for the purpose of eligibility to admission to the Engineering Courses should have secured not less than 60% marks in Physics, Chemistry and Mathematics, taken together at one and the same sitting. In case of candidates belonging to SC/ST/ OBC of Goa only, this requirement is relaxed to 40% marks in the said subject, taken together at one and the same sitting.
9. The next clause upon which reliance has been placed is Clause 6, which reads as under :
"6. Classification of Categories and Residential Requirement :
6.1. Category 1 : General Applicants must have residence in the State of Goa continuously for a minimum period of 10 years (5 years for those whose either of the parents/grand parents is born in Goa) immediately preceding the last date for receipt of application and studied & passed Std. XII or its equivalent examination from schools/Colleges in the State of Goa.
An applicant who is found eligible once according to the above rule shall continue to be eligible for the subsequent 3 years.
6.2 Category 2 : Scheduled Castes of Goa (2%) .........
6.3 Category 3 : Scheduled Tribes of Goa (0.5%.) ..........
6.4 Category 4: Other Backward Communities of Goa 15%) ..........
6.5 Category 5: Children of Freedom Fighters (1%) ...........
6.6 Category 6 : Physically Handicapped Candidates (3%) ..........
6.7 Category 7 : Children of Central and Defence Personnel and Para Military forces, State Government and Public/Private Sector Employees (6%) ...........
6.8 Category 8: Children of Ex-servicemen.
(1%) ..........
6.9 Category 9 : Children of Non-Resident Indian (14 Scats).
One seat has been provided in each professional college and 9 seats have been reserved in Padre Conceicao College of Engineering, Verna.
Eligibility :-- Either of the parents should be NRI and candidate should have satisfied the academic eligibility conditions applicable to a course of study.
6.10 Category 10 ; Payment seats in Engineering in Padre Conceicao College of Engineering, Verna. (8 f Seats) Preference will be given as follows :
10(a) The candidate must have resided in the State of Goa continuously for a minimum period of 10 years (5 years for those, whose either of the parents/grandparents is born in Goa) immediately preceding the last date of receipt of application and studied and passed Std. XII or its equivalent examination from Schools/Colleges in the State of Goa, provided further that an applicant who is found eligible once according to the above rules shall continue to be eligible for subsequent 3 years.
10(b) Applicants who have passed Std. XII or its equivalent examination from Schools/Colleges in the State of Goa.
10(c) The candidates who have passed qualifying examination Std. XII from anywhere in India.
Foot Note :-- Preference in admission shall be given in the following Order 10(a), 10(b), 10(c)."
Clause 9 upon which heavy reliance has been placed by the petitioner is as under :
"9 DISTRIBUTION OF SEATS FOR VARIOUS COURES Category Head of Allotment Medical Dental Engineering GEC + PCV Architecture Pharmacy (1) (2) (3) (4) (5) (6) (7)
1. General 41 14 172 23 26 2 Applicants who belong to SC of Goa (2)% 01 01 05 01 01
3. Applicants who belong to ST of Goa (0.5) % 01 01 01 01 01
4. Applicants who belong to OBC of Goa (15)% 09 04 36 06 06
5.
Seats reserved for children of Freedom Fighter of Goa (l)% 01 01 02 01 01
6. Seats reserved for Physically Handicapped (3) % 07 01 01
7. Seats reserved for (a+b+c) (6) %
(a) Children of Central Government Employees, including Defence & Para Military Personnel, Govt. Public Sector Undertaking.
(b) Children of Goa State Govt. Employees including employees of Goa State Govt. Public/Sector Undertaking.
(C) Children of Employees of Private Sector/Business Professionals etc. in Goa.
0402, 14 02 02
8. Seats reserved for children of Ex-Service Personnel registered in Goa (1) % 01 01 02 01 01
9. N.R.I. Seats in Professional Colleges.
01 0101 +09 01 01
10. Payment seats in Engineering.
-
-
81excluding 09 seats for N.R.1.
-
-
11. *Seats to be filled on the basis of an All India Competitive Test MBBS/BDS.
11 0512. Seats reserved for States not having facilities for Architecture Education.
-
-
03Total number of seats under each Professional course 70 30 240 + 90 40 40 The State Government has approached the Hon'ble Supreme Court for exclusion of Goa from the scheme of All India Entrance Examination. If these seats are returned to the State, the same will be added to the State quota."
Clause 10 deals with Reservation of Seats and is as follows :
"10. RESERVATION OF SEATS :
There exists a reservation for the candidates belonging to various categories subject to fulfilment of the eligibility criteria. Details of reservation are as under :(1)
Scheduled Caste 2% (2) Scheduled Tribe 0.5% (3) OBC 15% (4) Freedom Fighter 1% (5) Physically Handicapped 3% (6) CSP 6% (7) Ex-Serviceman 1% Government provides reservation to socially and economically backward classes/caste candidates in each discipline. There shall be no coursewise reservation for Physically Handicapped candidates. Children of Freedom Fighter, Children of the Central/State/Public Sector Undertakings and Defence Personnels and persons settled in Goa for the purpose of occupation and NRI students.
TABLE Discipline/Institute/ Category E & TC Computer Mechanical Elect.
GEC Civil GEC Total GEC PCV GEC PCV GEC PCV
1) SC
-1 1 1 1 1 5
2) ST One seat in any branch
3) OBC 3 4 4 5 6 5 3 6 36
4) PH/FF/CSP/Ex-Serv-iceman/NRI Strictly according to the merit on par with General Category but limited to percentage applicable to each category (PH - 3% (07 Seats) FF - 1 % (02 seats) CSP 6 % (14 seats) and Ex-serviceman - 1% (02 seats) NRI (1 + 9 Seats) "
10. The next relevant part of Clause 12.3, upon which reliance has been placed relates to firstround of admission and second round of admission, which is as under :
"12.3 Counselling and Admission.
.....
FIRST ROUND OFF ADMISSION ; The total seats in Professional Colleges shall cover all the disciplines including payment seats in Engineering. The first round of admission will be made against all those seats in the order of Merit.
Details of (491) Seats* :
TABLE Course MBBS BDS B. Engg.
B. Arch.
B. Pharm Sc.
Total General Category 41 14 172+81 (PS) excluding (9) NRI seats 23 26 357 Reserved Category 17 10 67 13 13 120 NRI Seats 1 1 1 + 9 GEC PVC 1 1 14 *This excludes 19 seals to be filled through All India Test/Other States.
SECOND ROUND : The seats remaining vacant at the end of the first round, shall then be offered to remaining candidates on the Merit Lists. Please note that the first round of admission covered all candidates under both the Free Category as well as Payment category. Those who remained absent in the first round of admission shall not be considered for admission as they have already forfeited their claims."
Clause 12.4 provides that all the seats in category 6.10(a), 6.10(b) and 6.10(c) shall be offered in order of merit and order of preference thereunder.
11. Clause 14 lays down details of admissions of various rounds and reliance has been placed on the Time Table and the first round, which is as follows :
"14. DETAILS OF ROUNDS OF ADMISSION Ist ROUND :
Sr. No. Date Day Category Merit No. 9.30-12.30hrs.
Merit No. 14.00-17.00hrs.
1. 9-7-1998 Thursday All Reserved SC/ST/OBC 01-100 (PCB Group)
2. 10-7-1998 Friday General 101-200 (PCB Group) 01-100 (PCM Group)
3. 13-7-1998 Monday General 101-200 (PCM Group) 01-100 (Architectural Group)
4. 14-7-1998 Tuesday General 201-300 (PCM Group) 101-150 (Architectural Group)
5. 15-7-1998 Wednesday General 301-400 (PCM Group) 401 & onwards (PCM Group)"
The admission fee which is payable for the first year for free Engineering seats is Rs. 2,650/- and for paid Engineering seats is Rs. 17,650/-.
12. The relevant portion of Utility Pro forma (2) to which the reference had been made in the course of arguments is as under :
"UTILITY PRO FORMA (2) (TO BE PRESENTED BY THE CANDIDATE AT THE TIME OF COUNSELLING) To, The Admitting Authority, Admission Centre, Directorate of Technical Education, Alto-Porvorim.
Sub :-- Admission to Professional Courses in State of Goa for the year 1998-99.
Sir, I present myself on_____ for I/II/III round of admission as per the schedule. My registration No. is_____ and my merit position/s are as under :
PCM Group CATEGORY GEN SC ST OBC FF PH CSP Ex-Serv.
PS MERIT POSITION PCB Group CATEGORY GEN SC ST OBC FF PH CSP Ex-Serv.
PS MERIT POSITION PCMA Group (Architecture) CATEGORY GEN SC ST OBC FF PH CSP Ex-Serv.
PS MERIT POSITION PHARMACY CATEGORY GEN SC ST OBC FF PH CSP Ex-Serv.
PS MERIT POSITION I have noted the vacancy position as on date and discipline,__________ Yours faithfully,
----------------------
Signature of the Candidate Name_________________
---------------------------------------
Admitted to:_________ _______ Signature of the Admitting Authority"
13. The relevant portion of application form to filled by the candidates in respect of which arguments had been advanced on either side is as follows :
"CATEGORY APPLIED FOR :1 2 3 4 5 6 7 8 9 10
GEN SC ST OBC FF PH CSP Ex-
Service-
Man NRI Local Other States
14. Additional pro forma for the candidates to be considered under different categories other than General is as under :
"Additional Pro forma for the Candidate to be considered under different categories other than General.
(1) Registration No.______________ (2) Name :___________________ (3) Marks obtained PCM PCB in Std. XII Sc._______ _______ (4) Total Marks including addi-____________ ______________ tional marks, if any : ________________ ______________ I wish to he considered under the following category :
I, mention only one category along with relevant documents _____________ ______________ Important:--
-------------------------------------------------------------------------------------
If to be considered under more categories, use photo copy of the this pro forma, for each additional category.
-------------------------------------------------------------------------------------
Total categories claimed (Mention the categories in appropriate block for ready reference).
Signature of the Candidate To To Admission In-charge, Admission Centre, Directorate of Technical Education."
14A. Learned Senior Advocate Shri S.G. Dessai appearing on behalf of the petitioners in Writ Petitions 265/98 and 266/98 placed before us two submissions, namely : (1) Payment seats is a category in itself and is not covered by general category and there is no ambiguity in the prospectus; (2) those students who did not indicate their preference for payment seats while filling the form cannot be considered against payment seats and, as such, the admissions given by respondent No. 1 those students who did not apply for payment category seats have to be quashed. After placing reliance upon Clauses 4.3 4.7, 4.20, 4.24, 6.1, 6.10, as well as the Utility Proforma (2), it is submitted that the category of general seats is totally different from the category of payment seats and that reading of the prospectus shows that payment seats is sub-category under the general category, but has separate identity. In support of this conclusion further reliance has been placed on Clause 3 where payment seats are shown separately though under general category; Clause 9 where payment seats are shown as a separate category altogether under category 10, whereas general seats are shown under category 1 and that payment seats are to be offered to candidates of category 6.10 in order of merit in the preference shown thereunder. Thus, according to learned Senior Advocate for the said petitioners, a candidate who has not indicated his preference for payment seats while filling the admission form, cannot be considered for admission against payment seats even though such candidates may be more meritorious and the admissions granted by respondent No. 1 cannot be sustained in the light of various provisions contained in the prospectus. Those candidates who have not opted for payment seats in the form, cannot be subsequently offered payment seats by giving them option at that time even though they may be more meritorious than those who have initially indicated their preference for payment seats. The learned Senior Advocate for the petitioners after placing reliance on the judgment of the Apex Court in Unni Krishnan, J.P. v. State of Andhra Pradesh, has drawn our attention to the scheme evolved by the Apex Court which has been followed in the common prospectus issued by the Government of Goa for admissions to professional colleges. It is specifically pointed out by him that the guidelines provide that the application form should contain a column or a separate part wherein the applicant can indicate whether he wishes to be admitted against a payment seat and the order of preference upto three professional Colleges. According to the learned Senior Advocate for the said petitioners, the admissions given by respondent No. 1 against payment seats ignoring the claim of petitioners and other candidates who had initially indicated their preference for payment seats are required to be quashed. According to him, the petitioners and other candidates fulfilling eligibility condition indicated in the payment seats list published on 8-7-98 are entitled for admission against payment seats and necessary directions may, therefore, be given by allowing the writ petitions, at least in case of the petitioners who have approached this Court.
15. Learned Advocate Shri M. B. D'Costa appearing on behalf of the petitioners in Writ Petitions No. 269/98 and 270/98 adopted the arguments advanced by learned Senior Advocate Shri S. G. Dessai and in addition has urged before us that under Clause 6.1 general category only those candidates who have minimum residence of 10 years (5 years for those whose either of the parents/grand parents is born in Goa) immediately preceding the last date for receipt of application and have studied and passed Std. XII or equivalent examination from schools/Colleges in the State of Goa, can be considered for admission thereunder; whereas under Clause 6.10 payment seats category even those who do not have 10/5 years residence can be considered under Clause 6.10(b) provided they had passed XII of its equivalent examination from Schools/Colleges in the State of Goa and even those candidates who do not fulfil requirement of residence as well as passing of XIIth Standard from the State of Goa and have passed XIIth Standard in anywhere in India, can be considered under Clause 6.10(c). According to him, Clause 4.3 is clear on the issue inasmuch as if a candidate wants to apply for admission in the category other than the general category, he is required to fill additional pro forma given at page 5 of the application form. Thus, those who have not filled additional pro forma for payment seats cannot obviously be considered for payment seats at later stage on the ground that they arc more meritorious than those who had opted initially for payment seats. It was strenuously urged by him that granting of admissions to candidates who had not initially opted for payment seats would amount to change of prospectus, which cannot be done and is not permissible. The prospectus was approved by Government and it is the Director of Technical Education who is required to take decision in the matter. But in the instant case, decision has been taken by the Government that those candidates who had not specifically indicated preference for payment seals, should be allowed to be considered against payment seats as per inter se merit. He, therefore, contends that the Director of Technical Education has abdicated his duties and the exercise of the same by the Government is not permissible. He also criticized the inspection allowed by the Director of Technical Education to the intervenors which could result in tampering with the admission forms inspected by the interveners. Is is also pointed out by the learned Advocate that the candidates who absented at the first round have been given admission in the second round, which is contrary to the rules of admission pertaining to second round under Clause 12.3 of the prospectus. According to him, the statistics relied upon by the Director of Technical Education cannot be taken as an index to determine whether the students had properly understood the prospectus or not. He submitted that although the petitioners have prayed for scrapping of the entire list of the selected candidates, the relief can be moulded in favour of the petitioners by issuing directions that the petitioners be admitted against the payment seats.
16. Learned Government Advocate Shri H. R. Bharno appearing on behalf of Government of Goa as well as Director of Technical Education, urged before us that reading of various clauses of the prospectus would go to show that the payment seats do not fall under the category of reserved seats and are forming part of the general category seats, on account of which it was not necessary for the candidates to fill separate Form V which was required to be filled only in case a candidate wants to be considered for the category other than general category. Alternatively, it was submitted by him that there is considerable ambiguity in the prospectus on the question under consideration and even the statistical data furnished by the Director of Technical Education goes a long way to establish that the prospectus was misunderstood by more than 95% candidates who did not tick mark at column No. 10 of the application form even though the payment seats are well within the reach of candidates who have to pay a small price of Rs. 15,000/- per year extra to pursue career of their choice. According to him, the admissions to payment category have been done strictly according to merit of the candidates in the general category and in the circumstances, the admissions granted on that basis cannot be faulted with. He also placed reliance on paragraphs 169 and 170 of the judgment of the Apex Court in Unni Krishnan, J.P. v. State of Andhra Pradesh (supra).
17. Learned Advocate Shri S. S. Kanatak appearing on behalf of 46 intervenors in Writ Petition No. 270/98, urged before us that Clause 4.3 speaks of general and reserved category and Form V is required to be filled if a candidate also applies for admission to the reserved category in addition to the general category. He pointed out that the eligibility conditions arc same for general category and for payment seats category and only in case of reserved category, one has to fill a separate pro forma at page 5 of the application form. He pointed out that as per Clause 3, payments seals fall within the general category and the reserved categories are separately shown including the payment seats for N.R.I. According to Shri Kanatak, Clause 6.10 does not carve out a separate category as such, but only speaks of preference to be given (sic) in seats amongst candidates inter se in the sub-category enumerated therein. He further pointed out that even though the application form speaks of local/other States under category 10, yet under Clause 6.10(b), the applicants could be cither local or outsider. With reference to additional pro forma V, it is urged that no additional documents arc required to be filed for payment seats and the payment seats neither fall in the reserved category nor the same would fall under sub-category of general category with separate identification as referred to by learned Senior Counsel for the petitioners in Writ Petitions 265/98 and 266/98, but payment seats form part of the general category seats. He also pointed out that first round off admission under Clause 12.3 of the prospectus provides that the total seats in professional colleges shall cover all the disciplines including payment seats in Engineering and the first round of admission will be made against all those seats in the order of merit. According to him, 81 payment scats are shown in the table under the first round of admission under Clause 12.3 under the general category and the reserved category seats as well as payment seats for N.R.I. are shown separately which shows that the payment seals arc part of general category only and do not form part of separate category as such. It was next pointed out by him that if the payment seats are treated under reserved category, then such seals were required to be filled on 9-7-98 in the first round under Clause 14 of the prospectus, which means that the payment seals shall have to be filled first and the general seats would be filled only on 10-7-98, which cannot be the order in which payment seats should be filled because only when the candidates are not able to get free seats of their preference, the question of taking payment seat would normally arise. According to him, except for table under Clause 9, reading of the prospectus, as whole, would go to show that payment seats are part of general category and Form V has to be filled in, in accordance with Clause 4.3 of the prospectus, only in case a candidate wants to be considered for category other than general category, namely the reserved category, like SC/ST/ OBC/FF/PH/CSP etc. He also placed reliance on the judgment of the Apex Court in Unni Krishnan, J.P. v. State of Andhra Pradesh (supra), on the guidelines of the scheme evolved by the Apex Court and pointed out that the Apex Court has ruled that criteria of eligibility and other conditions shall be same in respect of both -- free seats as also payment seats and the only difference shall be the requirement of higher fees by 'payment students' and that the allotment of students against payment scats shall also be done on the basis of inter se merit determined on the basis as in the case of free scats. He also pointed out that the Apex Court has laid down that after free seats in the professional Colleges are filled, at least 10 days lime will have to be given to the candidates to opt to be admitted against payment seals, which means that the free scats have to be filled first and then only the payment seats are required to be filled. According to him, if the payment seals are treated as reserved seats, then according to Clause 14, payment seats shall have to be filled even before general category scats. It was further pointed out by him that the Director of Technical Education has given statistical data which is a clear indication that the prospectus was not understood by more than 95% of the applicants who were misled by the complicated prospectus. Thus, the number of applicants for payment seats initially would have been much higher since there is only difference of Rs. 15,000/- per year in the free seats and the payment seals, which can, these days, be afforded by a common man for the purpose of pursuing the course of choice of their wards. It is also urged that out of 77 eligible candidates, under the list displayed on 8-7-98, only four persons have sought scrapping of the admission which has been done strictly on merit and the remaining students out of the said 77 did not even choose to intervene even though notice was widely published in four newspapers, which would indicate that they had no grievance whatsoever. Lastly be submitted that merit should not be sacrificed on account of the vagueness and want of clarity of the prospectus in question, which is the root cause of the state of affairs which emerged in the matter under consideration. He, therefore, submits that the petitions be dismissed.
18. Learned Advocate Shri M. S. Sonak who appeared for 6 intervenors in Writ Petition No. 265/98 has adopted the arguments advanced by learned Advocate Shri S. Kantak and in addition has submitted before us that Clause 4.3 of the prospectus speaks of only two categories, namely general and reserved and reserved categories are specified in Clause 4.6; that Clause 4.5 prescribes minimum percentage of 60% in PCM for admission to Engineering College and the list of payment seats consisting of 87 published on 8-7-98 comprises of 10 candidates who do not fulfil the said minimum requirement; Clause 10 of the prospectus which deals with reservation of seats does not at all speak of payment seats falling within the reserved category and that even the table under Clause 12.3 shows that the payment seats are included in the general category except for N.R.I. seats and the reserved scats which are shown as separate category. According to the learned Advocate Shri Sonak, the various provisions of the prospectus had created genuine confusion as to whether pro forma V was required to be filled by the candidates who were willing to take up payment seats. This confusion, according to him, is fortified by the fact that only 2% of the total number of applicants that is to say 19 candidates out of 884 had filled up the said pro forma V and, whereas all the candidates who did not get free seats are willing to go for payment seats and pursue their career of their choice. Lastly, it was submitted that the Court should not interfere with the admissions already done even though they were made subject to the final result of these petitions, since it would result in ignoring the merit and less meritorious students would steal march over the meritorious students. Shri Sonak has placed reliance on Dattatraya Satwaji Narwane v. State of Maharashtra, and Dr. A. Franklin Joseph v. State of T. N., . These authorities are not directly on the point, but have laid down that admissions have to be made on the basis of merit.
19. In the light of rival contentions, we shall now examine the various clauses of the prospectus in order to decide the facts of these petitions. Clause 3 of the prospectus deals with abstract of distribution of seats wherein free seats and payment seats are shown under general category one and not in any separate category. This chart shows other categories, namely S.C., S.T., O.B.C, F.F. (Children of Freedom Fighter), C.S.P. (children of Government Servants, ex-serviceman, P.H. (physically handicapped), N.R.I., All India Examination and other Stales. Thus free seats and payment seats for Engineering are shown in the said chart under the general category No. 1, whereas N.R.I. payment seals are shown under category No. 9 and All India examination seats are shown under category 10. If we compare the abstract of distribution of seats shown under Clause 3 with distribution of seats for various courses under Clause 9 of the prospectus, the latter chart under Clause 9 shows general category free seals under, under category 1 N.R.I. seats, under category 9 and payment seats under category 10; whereas All India seats are shown under category 11. Thus, there is contradiction in terms of categories relating to general free seats, payment seats as well as All India seats. Whereas in the chart, under Clause 3 free seats and payment seats are shown under the general category 1, in the chart under Clause 9, general category is shown as category 1, payment seats are shown as category 10 and whereas, All India Examination seats are shown under category 10 in the chart under Clause 3, the same are shown under category 11 in the chart under Clause 9 of the prospectus. The application form, in column 2, shows various categories, including general category and N.R.I., category, but specifically payment seats category is not shown, though it is urged on behalf of the petitioners that the said category would fall under category 10 shown in the prospectus which is local/other States. The payment seats are only available in Padre College of Engineering. In the classification of categories under Clause 6, payment seats are shown under Clause 6.10 as category 10 which deals with preference to be given to inter sc category 10(a), 10(b) and 10(c). Even the categorization under Clause 6.10 shall be of three different types and not merely local/other States as shown under category 10 in the application form for admission because the candidates falling in Clause 6.10(b) may be either local or outsider. In order to give a clear picture to the candidates who have to fill the admission form on the basis of information given in the prospectus, it was necessary that the payment category should have been specifically shown under serial No. 2 of the application form for admission, rather than showing it merely as 'local/other States'. If one reads Clause 4.3 of the prospectus it speaks of only two categories, namely general and reserved categories for which only one application form is required to be filled. However, an applicant may apply for more than one category and should tick appropriate category/categories in the application form to (page 1). It further provides that the main application form shall be treated as an application form for general category. However, an applicant who wishes to be considered for other than general category should fill a separate additional pro forma given at page 5 of the application form. We have clearly pointed out that in the chart shown under Clause 3 of the prospectus, both -- free and payment seats are shown under the general category No. 9 and All India Examination seats under category No. 10. Obviously the payment seats other than N.R.I. seats would not fall in any of the reserved categories. In fact, the learned Advocates for the petitioners had themselves submitted that the payment seats would be sub-category under general category with its special identity. They did not contend that the payment seats would fall under reserved categories in terms of Clause 4.3 of the prospectus. It is pertinent to note at this stage that even under Clause 10 which deals with reservation of seats, the payment category does not fall within the reserved category, though N.R.I. seats are shown in the table under Clause 10. Even in the chart under Clause 12.3 below first round of admission, payment seats are clubbed together in general category along with free seats, but 9 N.R.I, seats are excluded from the general category and the said seats are shown in the separate category of N.R.I. seats. Free seats numbering 172 and payment seats numbering 81 are shown in the general category scats. Reserved category is separately shown and N.R.I, scats are shown separately. Nowhere in the prospectus it has been specifically made clear that those candidates who do not give their option for payment seats initially, shall not be considered against the said seats. Even Clause 14 of the prospectus would rule out the possibility of payment seats falling in the reserved category since it speaks of the first round of admission on 9-7-98 for all reserved categories and for general category, the date for first round is 10-7-98. The question of allotment of payment seats arises after the allotment of free seats and the candidates who are not able to get free seats in the course which they wish to pursue, could opt for payment seats in the branch of their choice. Incidentally, it may be mentioned here that utility pro forma No. 2 which is to be presented at the time of counselling even shows payment seats in the Medical branch. Architecture and Pharmacy; whereas no such payment seats exist in the said branches. Even the additional pro forma at page 5 of the application form is entitled as "Additional Pro forma for the Candidate to be considered under different Categories other than General". We have already pointed out that the payment seats can, by no stretch of imagination, be categorized as reserved seats, but they fall within the category of general seats only. There are contradictions galore, printing mistakes, creating considerable confusion pertaining to the category of payment seats, as a result of which the candidates were misled result ing in ticking of only general category under the circumstances. The difference in fee structure for the payment scats and free seats is to the tune of Rs. 15,000/- every year, which any candidate can afford to pursue the course of his choice. The statistical data which had been furnished by the Director of Technical Education shows that out of total applications numbering 884 received for the purpose of admission, 747 candidates did not fill form V, though they had ticked the general category and 797 candidates did not tick at column No. 10 in the application form. Even those 87 candidates whose names had figured in the payment seats in the list published on 8-7-98, it was found by the Director of Technical Education that only 39 candidates had filled Form V and only 19 candidates indicated 'local' or 10 in Form V and others did not fill the Form V. This statistical data also strengthens the conclusion that various provisions of the prospectus, in so far as option to payment seats is concerned, were not capable of being properly understood by the candidates at large. It is in this context we have made the observations at the outset in this connection in paragraph 7 of the judgment. We expect that the prospectus would be simplified and the contradictions shall be taken care of in future. The prospectus as well as the application form should contain a specific clause in bold letters that the candidates who do not opt for payment category seats at the time of filing of the application, shall not be considered for payment seats subsequently. If the authorities had been careful and had taken proper care at the time of finalising the prospectus, the inconvenience caused to students and resulting litigation could be avoided.
20. Admittedly, the candidates who have been admitted against payment seats are more meritorious than the petitioners. The petitioners have been able to get admission in various courses, though not of their choice. In the light of the fact that various provisions of the prospectus did create genuine confusion in relation to the option for payment seats, we are not inclined to interfere with the admissions which have been granted by respondent No. 1 to the students who are more meritorious than the petitioners. In those circumstances, we are not inclined to grant of any relief sought by the petitioners. The petitions arc accordingly dismissed and the rule is discharged. The interim order passed on 13-7-1988 stands vacated. In the facts and circumstances, we would leave the parties to bear their costs.