Abhimanayu & Others vs State Of U.P., Thru. Secretary, ...
2011 Latest Caselaw 6214 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. 24
 
AFR
 

 
Writ Petition No. 6743 (MS) of 2011
 

 
Abhimanyu and others 				...	Petitioners 
 

 
Versus 
 

 
State of U.P. and others 			...	Opposite parties 
 

 
A N D
 

 
Writ Petition No. 7093 (MS) of 2011
 

 
Shraddha Tripathi 				...	Petitioner 
 

 
Versus 
 

 
State of U.P. and others 			...	Opposite parties 
 

 
-------------- 
 

 
Hon'ble Rajiv Sharma, J.

As the common question of facts and law are involved in both the writ petitions, they are taken up together for common orders.

Heard Mr. Kapil Dev, Senior Advocate assisted by Mr. Pratyush Tripathi, Mr. Anurag Narain, learned Counsel for the petitioners, Mr. Sanjay Sarin, learned Standing Counsel, Mr. Sailesh Kumar, learned Counsel for the AICTE and Mr. Waseequddin Ahmed, learned Counsel for the University.

Afore-captioned writ petitions are directed against the impugned orders dated 10.10.2011 and 15.11.2011 issued by the State Government, by means of which the eligibility criteria in entry level qualification for admission in Under-Graduate programmes has been fixed as 50% for the General Candidates and 45% for the SC/ST candidates, which is against the decision of the Apex Body, i.e. All India Council for Technical Education approved in its meeting dated 28.6.2011 by which the entry level qualification for admission in Under-Graduate programmes was fixed as 45% for the General Candidates and 40% for the SC/ST candidates.

Learned Counsel for the petitioners submit that under the All India Council for Technical Education Act, 1987 (hereinafter referred to as the Act for the sake of brevity), it has been empowered to frame rules and regulations for proper management of norms and standard of technical education. The said Regulations are applicable to the Universities and Technical Institutions of Government, Government Aided and Private (Self-Financing) institutions conducting the courses in the field of Technical Education, Training and Research in Engineering, Technology, including MCA, MBA, Pharmacy, Hotel Management etc. notified by the Council from time to time.

Petitioners of aforementioned writ petitions are having the requisite qualification as per the eligibility criteria fixed by the AICTE. According to them, by notification dated 4.7.2011, the Apex Body has defined the entry level qualifications for admission in Under-Graduate programmes. The matter was reviewed by the Executive Committee of the Apex Body in its 69th meeting held on 28th June, 2011 and by the Council in the 21st meeting held on 30th June, 2011 and as per the decision of the Council, the eligibility for under-graduate programmes (full time) given under 1.1 of Appendix-1 of Approval Process Handbook 2011-12 is now 45% at qualifying level for general category students and 40% for reserved category students for admission for the year 2011-12.

The grievance of the petitioners is that they are being denied regular admission in B.Tech course against the vacant seats though they possess 45% marks as prescribed by the AICTE and as such denial of regular admission is wholly arbitrary and unjustified.

It has been argued by the Counsel for the petitioners that the University or the State Government cannot impose any restriction on the institution which is in utter disregard and contravention of the provisions of the AICTE as no policy can be laid down, which lies outside the scope of the Act. The action of the opposite parties is in gross breach of the provisions contemplated under Article 19 (1) (g) of the Constitution of India and the same is also in violation of the Jaya Gokul Educational Trust v. Commissioner-cum-Secretary, Higher Education and others [(2000) 5 SCC 231] and 'State of Maharashtra v. Sant Dhyaneshwar Shikshan Shastra Mahavidyalaya and others [(2000) 9 SCC 1].

In rebuttal, Mr. Waseequddin Ahmed, learned Counsel for the University submits that the UPSEE - 2011 was conducted by Mahamaya Technical University, which was held on 16.4.2011 and 17.4.2011 respectively for different technical courses, including B.Tech., M.B.A., M.C.A., etc. The minimum marks to appear in the examination were modified as 50% marks for General Category and 45% marks for reserved category as per eligibility criteria laid down by the AICTE in its Approval Process Handbook 2011. He further submits that the Mahamaya Technical University had already informed the public at large vide notice dated 7.2.2011 and in all the leading newspapers and also through its website much before examination scheduled for 16.4.2011 and 17.4.2011 respectively.

Elaborating his arguments, Counsel for the respondents submitted that the petitioners possessed below 50 % marks in 10+2 and as such they do not fulfill the minimum eligibility criteria as fixed by the Mahamaya Technical University while conducting UPSEE-20011, therefore, they are not entitled to any relief from this Hon'ble Court.

Lastly, it has been submitted that number of writ petitions involving similar controversy have already been dismissed and the petitioners have been refused the relief so sought and as such on this ground alone, writ petitions are liable to be dismissed.

The main and the only question that arises for consideration is whether it was open for the State Government to prescribe higher qualifications than the minimum qualifications prescribed by the AICTE.

Considered the submissions made by the learned counsel for the parties and perused the record.

It needs to be noticed that the AICTE has only prescribed the minimum qualifications. The State Government, in its wisdom, could therefore, prescribe qualifications higher than the qualifications prescribed by the AICTE but certainly could not have prescribed lower qualifications. This view of mine is strengthened by the decisions of the Apex Court in State of Tamil Nadu and another v. S. V. Bratheep (minor) and others [AIR 2004 SC 1861], following its earlier decision in Dr. Preeti Srivastava and another v. State of M.P. And others [(1999) 7 SCC 120] and the observations are as under:-

"..... The appellant in the present case prescribed the qualification of having secured certain percentage of marks in the related subjects which is higher than the minimum in the qualifying examination in order to be eligible for admission. If higher minimum is prescribed by the State Government than what had been prescribed by the AICTE, can it be said that it is in any manner adverse to the standards fixed by the AICTE or reduces the standards fixed by it? In our opinion, it does not. On the other hand, if we proceed on the basis that the norms fixed by the AICTE would allow admission only on the basis of the marks obtained in the qualifying examination the additional test made applicable is the common entrance test by the State Government. If we proceed to take the standard fixed by the AICTE to be the common entrance test then the prescription made by the State Government of having obtained certain marks higher than the minimum in the qualifying examination in order to be eligible to participate in the common entrance test is in addition to the common entrance test. In either event, the streams proposed by the AICTE are not belittled in any manner. The manner in which the High Court has proceeded is that what has been prescribed by the AICTE is inexorable and that that minimum alone should be taken into consideration and no other standard could be fixed even the higher as stated by this Court in Dr. Preeti Srivastava's case. It is no doubt true as noticed by this Court in Adhiyaman's case that there may be situations when a large number of seats may fall vacant on account of the higher standards fixed. The standards fixed should always be realistic which are attainable and are within the reach of the candidates. It cannot be said that the prescriptions by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission for engineering colleges. It is not very high percentage of marks that has been prescribed as minimum of 60% downwards, but definitely higher than the mere pass marks. Excellence in higher education is always insisted upon by series of decisions of this Court including Dr. Preeti Srivastava's case. If higher minimum marks have been prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education.

Arguments advanced on behalf of the respondents is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. ............."

Thus, it cannot be said that the impugned order issued by the State Government whereby the eligibility criteria in entry level qualification for admission in under-graduate programmes has been fixed as 50% for the general candidates and 45% for the SC/ST candidates is unjustified or suffer from infirmities. The State Government is well competent to prescribe higher qualifications than the minimum qualifications prescribed by the AICTE in its notification dated 7th February, 2011.

Fixing of percentage for entry level examination in professional courses is a policy decision of the State Government or the Examining Body. Therefore, the Court should not substitute its own opinion for that of the expert body which is entrusted with the work to find out as to what principle or policy would best serve the objects and purposes of the examination and the Courts shall not sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the academic body. It is exclusively within the domain of the academic body to determine, as a matter of policy, what measures should be incorporated for the efficient holding of examination.

It has been brought to the notice of the Court that 19 petitioners of Writ Petition No. 6743 (MS) of 2011, Abhimanyu and others Versus State of U.P. and others having below 50% marks in 10+2 and as such, they do not fulfill the minimum eligibility criteria fixed by the University while conducting the UPSEE-2011. Therefore, the State Government vide order dated 10.10.2011 passed a detailed order in compliance of the judgment and order dated 25.8.2011 passed in Writ Petition No. 47505 of 2011. The relevant portion of the order dated 25.8.2011 is reproduced hereunder:-

"State Government is the best judge to see what should be standard in technical education in the State of U.P. and State Government is fully empowered to fix eligibility criteria of qualifying examination over and above the eligibility criteria fixed by AICTE. In this background once decision has been taken on 04.07.2011 by AICTE and discussion has been made by Central Committee in its meeting dated 13.07.2011 and there it has been mentioned that Central Admission Committee would consider the matter after counselling process is over. The matter is thus engaging attention. As per Resolution No. 7.6 quoted above as such Technical University Noida is directed to ensure that said meeting is held at the earliest as per convenience of the members who are to participate therein preferably within two months and thereafter on the basis of decision so taken matter be referred to the Principal Secretary Technical Education who will take final decision in the matter in accordance with law, keeping in view the over all situation."

In Thapar Institute of Engineering & Technology and another versus Gagandeep Sharma and another [(2001) 9 SCC 157], the Apex Court observed that the court would normally not interfere with such prescribed standards and especially when they are intended to improve the academic standards in their respective institutes.

In Bhartia Education Society and another versus State of Himachal Pradesh and others [(2011) 4 SCC 527, the Apex Court held that the examining body can impose its own requirements in regard to eligibility of students for admission to a course in addition to those prescribed by NCTE.

Thus, it is imminently clear that the State Government and the examining body has ample power to regulate the manner of admission for improving the academic standards in Institutions. The impugned government orders cannot be said to be in breach of the recommendations of the AICTE or in violation of any Article of the Constitution as if, higher minimum marks are prescribed, it would certainly add to the excellence in the matter of admission of the students in higher education. Furthermore, it cannot be said that the prescriptions formulated by the State Government in addition to those of AICTE in the present case are such which are not attainable or which are not within the reach of the candidates who seek admission in professional courses.

It may also be noted that the policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown, it is not open for the court to interfere. At the same time, it is also true that the courts, in exercise of their power of judicial review, do not ordinarily interfere with the policy decisions of the executive unless the policy can be faulted on ground of malafide, unreasonableness, arbitrariness or unfairness.

In view of the aforesaid discussions, I am of the firm opinion that the petitioners are not entitled to any relief and the writ petition is liable to be dismissed.

It is not disputed by the Counsel for the parties that number of the writ petitions involving similar question have already been dismissed. However, the Counsel for the petitioners made a feign attempt to show that the points raised in the instant writ petition have not been considered on earlier occasions. Having examined the material on record and the submissions made by the Counsel for the parties, I find no force in the submission advanced by the Counsel for the petitioners.

It is pertinent to add that uniformity and consistency is core of judicial discipline. There should be similarity in the orders passed by the Court in the cases having identical facts and the judgment passed in earlier case should be respected by the co-ordinate bench in identical matter. In these circumstances, it would not be permissible to take different view on the same set of facts and question of law when earlier writ petitions involving identical question of law have been dismissed.

Thus these writ petitions are liable on this ground too as the similar writ petitions have already been dismissed.

Taking the holistic view of the matter, I find no good ground to interfere under Article 226 of the Constitution and the writ petitions are hereby dismissed.

Dt.29.11.2011

lakshman/