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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 7248 OF 2017
AND
WRIT PETITION NO. 7407 OF 2017
WRIT PETITION NO. 7248 OF 2017
Dr. Ku. Ashifa Sharif Sheikh,
aged 28 years, occupation -
Student, r/o 39, Adarsha Colony,
Jafar Nagar, Nagpur 400 013. ... PETITIONER
Versus
1. Government of India
through its Secretary,
Ministry of Ayurveda, Yoga
and Naturopathy, Unani,
Siddha and Homeopathy,
Ayush Bhawan, B-Block,
G.P.O. Complex, I.N.A.
New Delhi 110 023.
2. State Common Entrance Test
Cell, Maharashtra State, Mumbai,
through its Commissioner, 305,
Government Polytechnic Building,
Aliyawar Jung Marg, Bandra (E),
Mumbai 400 051.
3. Government Ayurved College,
Nagpur through its Dean, Raghuji
Nagar, Nagpur.
4. Dr. Harsha Pundlikrao Gohatre,
aged - major, student first year
M.S. (Shalya-Trantra), Government
Ayurved College, Raghuji Nagar,
Nagpur.
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5. Dr. Vaishali Krishnaji Gajbhiye,
aged - major, occupation -
Student, first year M.D.
(Kayachikitsa), Government
Ayurved College, Raghuji
Nagar, Nagpur. ... RESPONDENTS
Shri B.G. Kulkarni, Advocate for the petitioner.
Shri Ulhas Aurangabadkar with Mrs. Mugdha R. Chandurkar,
Advocates for respondent No.1.
Shri N.S. Khubalkar, Advocate for respondent No. 2.
Mrs. M.A. Barabde, AGP for respondent No. 3.
Shri Vipul Bhise, Advocate for respondent Nos. 4 & 5.
.....
WRIT PETITION NO. 7407 OF 2017
Dr. Bharati Gajanan Sadabal,
aged 31 years, occupation -
Student, r/o Ward No. 1, Hata-
Andura, Tah. Balapur,
District - Akola. ... PETITIONER
Versus
1. Government of India
through its Secretary,
Ministry of Ayurveda, Yoga
and Naturopathy, Unani,
Siddha and Homeopathy,
Ayush Bhawan, B-Block,
G.P.O. Complex, I.N.A.
New Delhi 110 023.
2. State Common Entrance Test
Cell, Maharashtra State, Mumbai,
through its Commissioner, 305,
Government Polytechnic Building,
Aliyawar Jung Marg, Bandra (E),
Mumbai 400 051.
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3. Government Ayurved College,
Nagpur through its Dean, Raghuji
Nagar, Nagpur. ... RESPONDENTS
Shri B.G. Kulkarni, Advocate for the petitioner.
Shri Ulhas Aurangabadkar with Mrs. Mugdha R. Chandurkar,
Advocates for respondent No.1.
Shri N.S. Khubalkar, Advocate for respondent No. 2.
Mrs. M.A. Barabde, AGP for respondent No. 3.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
NOVEMBER 23, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) Rule is made returnable forthwith and heard finally with the consent of Shri Kulkarni, learned counsel for the petitioner, Shri Aurangabadkar with Mrs. Chandurkar, learned counsel for respondent No. 1, Shri N.S. Khubalkar, learned counsel for respondent No. 2, Mrs. Barabde, learned AGP for respondent No. 3 and Shri Bhise, learned counsel for respondent Nos. 4 & 5 in Writ Petition No. 7248 of 2017.
2. Respondent Nos. 4 & 5 in Writ Petition No. 7248 of 2017 are the students admitted in respondent No. 3 - College, allegedly by extending to them some concession i.e. relaxation ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 4 in marks. However, we find that during hearing, only prayer clause (iii) in Writ Petition No. 7248 of 2017 is pressed before us. Accordingly, we restrict the consideration to the aspects arising out of that prayer clause (iii) or prayer clause (ii) in the other petition.
3. The petitioner Dr. Ku. Ashifa Sheikh in Writ Petition No. 7248 of 2017 is at Sr. No. 2 while the petitioner Dr. Bharati Sadabal in other writ petition is at Sr. No. 4. If both of them are held eligible for admission at Institution Level Rounds in respondent No. 3 - Government Ayurved College, it is not in dispute that in that event, there is one more student above Dr. Ku. Ashifa, who comes at Sr. No. 1 and becomes eligible for admission over and above her claim. Similarly, at Sr. No. 3, there is another student, who in that event becomes eligible for admission by getting precedence over the petitioner Dr. Bharati. These admissions are contingent upon answer to question whether the petitioners before this Court or then the other two students who have performed better than the respective petitioners are eligible for consideration at institute level ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 5 admissions in respondent No. 3 - Government Ayurved College, Nagpur.
4. The admissions are subject to Centralized Admission Process (CAP) as per Maharashtra Act No. XXVIII of 2015 i.e. the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admissions and Fees) Act, 2015 (hereinafter referred to as 2015 Act). This Act in terms i.e. expressly does not take into its fold Government Ayurved Colleges. The Act allows framing of Rules under Section 23 and Regulations under Section 24. The power to make rules under Section 23 is with the State Government. In exercise of this power, rules have been framed on 06.10.2016 and these rules are called as the Maharashtra Unaided Private Professional Educational Institutions (Regulation of Admission to the Post-graduate Ayurved, Unani and Homeopathy Courses) Rules, 2016 (hereinafter referred to as 2016 Rules). These Rules also do not expressly apply to respondent No. 3 - College. However, on 16.12.2015 i.e. after coming into force of the Act and before coming into force of the Rules, State Government ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 6 has issued a Government Resolution and has applied said Act also to Government Colleges like respondent No. 3. These facts are not in dispute.
5. The submission of Shri Kulkarni, learned counsel is, by issuing such Government Resolution, statutory provisions contained in 2015 Act cannot be amended and hence that Government Resolution cannot be relied upon before this Court to show that mechanism prescribed by 2015 Act or then 2016 Rules is being used even for admissions to respondent No. 3 - College. He submits that when 2015 Act or 2016 Rules are conspicuously silent about Government Colleges, Article 14 of the Constitution of India, must apply and students like the petitioners who have got better merit, therefore, must be held as eligible for admission. He also submits that after institution level admissions, when notice was published on 14.11.2017 for admissions to Post-graduate Courses in respondent No. 3 - College at institution level, the petitioners have applied and hence in terms of Article 14 and other enabling provisions, their better candidature must be considered. He submits that the ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 7 petitioners have not submitted any status retention form and in terms of scheme flowing from above mentioned Act or Rules, they are entitled to an opportunity to better their prospects and hence they can be admitted to Government Ayurved College at Nagpur. He submits that the petitioner Dr. Ku. Ashifa is presently admitted at Government Ayurved College, Nanded and the petitioner Dr. Bharati is admitted in Government Ayurved College, Osmanabad.
6. Shri Aurangabadkar, Shri Khubalkar, learned counsel and Mrs. Barabde, learned AGP for the respondents submit that the Government Resolution dated 16.10.2015 has not been questioned at any point of time and is being implemented since then. The petitioners have taken advantage of that Government Resolution and accordingly have been admitted in Government Colleges by clearing CAP rounds. They cannot, therefore, turn around and at this stage question the use of 2015 Act or then 2016 Rules, to claim admission to respondent No. 3 - College. It is further pointed out that admissions need to be completed in time bound manner in ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 8 prescribed schedule as directed by the Hon'ble Apex Court and hence various contingencies which are inherent in the admission procedure necessitate selection of some stage at which the admissions till then need to be finalized. The seats remaining vacant thereafter are only permitted to be filled-in at institution level and this "Scheme" is again not in challenge. If the seats available at institute level are not allowed to be filled in within the stipulated time or then the students already admitted in CAP rounds in various other institutions are permitted to participate therein, in the absence of any express stipulations, admissions will never come to an end and ensuing chain reactions will result in multiple cycles of admissions in which, because of mandate of Article 14 of the Constitution of India, at each stage the applications may be required to be invited. According to them, the entire admission process then may not be over within time schedule mandated by the Hon'ble Apex Court. Lastly it is pointed out that in any case, here if this Court holds in favour of the petitioners, the candidate who has more marks and, therefore, stands at serial number above Dr. Ashifa or then other candidate who stands above Dr. Bharati, ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 9 will get advantage and hence chance of the petitioners getting the seat are remote. They, therefore, pray for dismissal of present petitions.
7. Shri Kulkarni, learned counsel, in reply, submits that the omission in a Statue or Rules cannot be supplemented by Government Resolution and in any case by Government Resolution, Article 14 of the Constitution of India cannot be violated. He contends that apprehension of chain reaction resulting in multiple rounds of admission process is misconceived and cannot be the reason to defeat the mandate of said Article. He further adds that because there are two seats at Respondent No. 3 - College, petitioner Dr. Ashifa has full chance of getting admission. He submits that as the petitioners have not submitted status retention form, they are eligible and accordingly responded to the advertisement dated 14.11.2017.
8. The arguments itself show that both the petitioners before this Court have gone through CAP round as per Act No. ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 10 28 of 2015 and 2016 Rules framed thereunder. This obviously is on account of Government Resolution dated 16.12.2015. The petitioners have not questioned the Government Resolution dated 16.12.2015 or then any provision in Act No. 28 of 2015 or then 2016 Rules.
9. The petitioners admittedly have not submitted status retention form. However, looking to the mandate and scheme of 2016 Rules and 2015 Act, it is apparent that CAP admissions are over in the manner prescribed in Rule 8 up to Rule 12. Rule 13 then speaks of admission in institution quota and vacancies. These admissions begin after CAP rounds. The admissions are to be carried out in transparent manner strictly as per State Merit of the candidates who have applied to the institution. The institutions have to invite applications by notifying schedule of admission along with number of seats and the aspirant has to apply to the Principal of the concerned institution. Last sub-rule therein i.e. Rule 13(i) provides that if any CAP seat remains or become vacant after the CAP Rounds, then the same needs to be filled in by the candidate from the ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 11 same category for which it was earmarked during the CAP. It further prescribes that if the seats remain/ become vacant after Personal Preference round i.e. final round then the seats shall be filled on the basis of inter-se-merit of the candidate.
10. Rule 14 is about Institution Level Round. It contemplates that if the seats remain vacant after last CAP Rounds, the seats are to be filled in by the institute by inviting applications from desirous candidates who have cleared CET. The admissions are to be made on the basis of inter-se-merit of CET of the applicants.
11. Vide Government Resolution dated 16.12.2015, the fact that admissions to unaided institutions are required to be made as per Section 10 of 2015 Act through CAP has been noticed with an observation that only private, unaided or minority educational institutes are subjected to it. The government has then pointed out that apart from such educational institutes, such one window admission process (CAP) also needed to be used for effecting admissions to ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 12 Government, Government aided and Municipal Corporation Colleges running professional courses. Accordingly, the Government decisions stipulates adoption of very same procedure as laid in 2015 Act. In other words, briefly it subjects Government, Government aided colleges and Municipal Corporation Colleges also to 2015 Act and, therefore, to 2016 Rules.
12. This Government Resolution is not in question before this Court. On the contrary, as pointed out by the learned respective counsel for the respondents, the petitioners have accordingly participated in CAP and on account of this Government Resolution, could get admission in Government Ayurved Colleges at Nanded and Osmanabad respectively. Having secured that admission, now they are trying to strike at the root thereof by pointing out that this Act and Rules cannot be used to effect admissions to Government Ayurved Colleges. The contention, therefore, is erroneous and unsustainable. The petitioners bank upon their admissions in Government College at Nanded and Osmanabad and seek betterment of their ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 13 prospects by shifting to other Government College. If this contention is accepted, their admissions at Nanded and Osmanabad itself becomes bad.
13. In this background, it is apparent from the Scheme of the Act and the Rules as also AIA-PGET- 2017 Brochure, which contains important information that provisions give an option to the candidate to submit status retention form during CAP rounds if he is satisfied with the admission i.e. if he does not want to better his prospects further. Only candidates who have submitted such forms, are eliminated from further CAP On line round as per Rule 8.3. As per Rule 8.3, those who do not submit status retention form, are eligible for personal counselling round which is last or end of CAP. The brochure does not speak of the Institution Level admission at all.
14. However, that by itself, cannot be said to be decisive in this matter. The brochure is subject to 2015 Act and 2016 Rules as also Government Resolution dated 16.12.2015. Respondent No. 3 - College, therefore, has been submitted to ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 14 CAP Rounds and, therefore, to Institution Level Rounds also. The petitioners do not question submission of respondent No. 3
- College to such institution round of admissions. However, the Scheme of the Act and Rules, to bring an end logically to the CAP rounds and thereafter to throw open vacant seats at institution level, cannot be lost sight of. If this is not done, the admission process will never come to an end and the candidates who have not submitted status retention form, will again participate in Institutional Level Rounds for betterment of their admissions. With the result, if they succeed in getting admission, thereafter seats allotted to them in CAP round will become vacant and will again be required to be thrown open after Institution Level Round is over. Thus, such seats may be required to be advertised again. In each process, some vacancy in some college will occur and will need a fresh admission process.
15. We have expressly inquired whether seats of students who have secured their admission in CAP round against CAP vacancy but have not submitted status retention ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 15 form are treated as vacant and, therefore, are again available for consideration/ counselling at Institution Level. All the learned counsel unanimously answered the question in negative. They submitted that once a student gets admission against such seat, the seat ceases to be vacant seat and is not subjected to institution level admission. This answer, therefore, shows that if because of mandate of Article 14, such a student shifts to some other college, his seat in his original college will become vacant and will again required to be advertised. This may go on, therefore, in cycles or rounds and the end to admission process entirely as such within reasonable or stipulated time, may never be reached. Not only this, student getting admission in institutional round may also vie for such CAP vacancy contending that student with less merit than him/ her cannot be admitted against that vacancy.
16. We, therefore, find justification in compartmentalization of admission process. After the CAP
rounds, seats remaining vacant are subjected to institutional level and, therefore, those who have not secured admission till ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 16 then anywhere can only appear in it. The candidates like the petitioners who have already secured admission on their merit in CAP are barred and not eligible. This appears to be a logical solution which is must if the education of admitted student has to start within stipulated time. The completion of admission process in time bound manner aims at it. Division Bench of this Court in Raju Gajanan Koparde vs. State of Maharashtra, reported at (2006) 6 Mh. L.J. 518, in paragraphs 16 & 17 reaches similar conclusions while emphasizing importance of time bound completion of admission process. There no doubt Rule 13 of Rules prescribing admission to engineering courses contains an express embargo and debars admitted candidate from further process of admission, principles illustrated also govern the present situation. Scheme in Clause 8.1 of AIA- PGET 2017 shows that on the basis of CET, in CAP final or last round of admission is by personal counselling. Clause 8.5.1 & 8.5.2 together show that seats occupied by students in earlier CAP rounds where status retention form is not submitted are available in this final round. However, clause 8.1 itself mandates that during seat allotment in final round, no fresh ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 17 vacancies in allotments in earlier round are envisaged. AIA - PGET - 2017 does not extend to admissions at institution level. All seats remaining vacant after this final CAP round qualify for admission at institution level under Rule 14 of 2016 Rules. Concept of status retention form, therefore, looses its relevance after CAP rounds. Vacant seats constitute an entirely different sphere distinct from CAP admissions. Admissions made in CAP are not contingent upon institutional admissions. Bar as seen in Rule 13 of Engineering Admission Rules in Raju Gajanan Koparde vs. State of Maharashtra (supra), therefore, is also apparent in the present matter.
17. We, therefore, find that by Government Resolution dated 16.12.2015, the State Government has provided a transparent and non arbitrary mechanism for admission to its colleges i.e. Government Colleges, Government aided colleges or the colleges run by local authorities. We do not see any justification in argument that it violates mandate of Article 14 of the Constitution of India. The petitioners are, therefore, not eligible to participate in Institutional Level Round insofar as ::: Uploaded on - 30/11/2017 ::: Downloaded on - 01/12/2017 00:40:26 ::: wp7248.17 18 respondent No. 3 - College is concerned.
18. Accordingly, writ petitions are dismissed. Rule discharged. Needless to mention that interim orders, if any, stand vacated. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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