Dau Dayal Mahila(Pg)College ... vs State Of U.P. Thru Its ...
2015 Latest Caselaw 1338 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                           AFR
 
Reserved Judgment
 
Reserved on : 10.7.2015
 
Delivered on : 20.7.2015
 

 
Court No. 10
 
Case:- MISC. SINGLE No. - 3708 of 2015
 
Petitioner :- Dau Dayal Mahila (Pg) College Upsidc Campus Thru its President.
 
Respondent :- State of U.P. thru Its Princ. Secy.Higher Edu.Civil Sectt.& ors
 
Counsel for the petitioner:- Romit Seth, Stutti Mittal
 
Counsel for the Respondent :- C.S.C. Anurag Verma, M.M.Asthana, Savitra Vardhan Singh
 

 
Hon'ble Rajan Roy,J.

Heard Sri Prashant Chandra learned Senior counsel along with Stuti Mittal for the petitioner, Sri Mansoor Ahmad, Chief Standing Counsel for the State and its authorities, Sri Savitra Vardhan Singh for the Opposite Party No.3, Sri M.M. Asthana for the Opposite Party No. 4 and Sri Anurag Verma for Opposite Party No.2.

This Writ Petition has been filed by a private unaided post graduate college seeking following relief:-

"(a) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the State Government to issue appropriate orders to the State Universities to accept the admissions made by the petitioner on 290 vacant seats out of the 300 sanctioned seats in the B.Ed. course for academic session 2015-16 for which the petitioner is having affiliation and recognition by the State Government and the NCTE.

(b) issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the respondents to accept the students so admitted on the vacant seats as a bona fide students of students and to hold examinations and award degrees;"

It is not in dispute that the petitioner-institution is duly recognized by N.C.T.E. with an intake capacity of 300 seats for B.Ed. course and it has also been affiliated to the Opposite Party No.2-University. It is also not in dispute that the entrance examination was held by the Opposite Party No.3-University for admission to B.Ed. Course, 2015 on 25.4.2015. The results were declared on 25.5.2015. As per the University which conducted the C.E.T. against the 1,85,000 seats, 1,83,886 applied for appearing in the C.E.T., 16,254 actually appeared out of which 71,622 qualified, out of the qualified candidates 68,790 participated in the counseling and exercised their option, out of the aforesaid only 57,692 students took admission another 2147 are said to have been admitted under the orders of the Court, thereafter, the pool counseling was held in which 7000 more candidates exercise their option which form the wait listed pool for further allotment of seats. Thus, about 67000-68000 students have been admitted to be B.Ed. course in various colleges based on the C.E.T.-2015 and counseling held in pursuance thereof, meaning thereby about 1,17,000 seats are vacant. As out of an intake capacity of 300 seats only 10 students opted for the petitioner-institution, therefore, it issued an advertisement of its own for filling up the remaining seats, for which now he seeks a direction to the Court to the State Government to permit it to do so, so that the complications may not arise, subsequently when the students are to appear in the examination. It is against this background that the present writ petition has been filed.

The contention of Sri Prashant Chandra, learned senior counsel appearing for the petitioner is that college in question has been recognized by the National Council for Teacher Education (herein after called as "NCTE") with an intake capacity of 300 students for the B.Ed. Course. However, in the counseling based on the Common Entrance Test (herein after called as "CET") held by the opposite party No.3-University only 10 seats have been provided to the petitioner, which leaves 290 seats vacant, therefore, the petitioner should be allowed to fill in the remaining 290 seats, as it would be virtually impossible for the petitioner to conduct the course for only 10 students considering the huge amount of expenditure in arrangement and maintenance of the infrastructure including the requisite staff and their salaries. In this regard he invited the attention of the Court to Clause 3.2. and 3.3 of the National Council for Teacher Education (Recognition Norms and Procedure) Regulations, 2014 (herein after called as "Regulation,2014) which have been notified on 28.11.2014 in exercise of the powers conferred under Section 32 (2) of the National Council for Teacher Education Act, 1993. It is not out of place to mention that Regulation 3.2 and 3.3 of the Regulations, 2014 are in pari materia with the earlier Regulations contained in the Regulations, 2009 and 2001.

Referring to the aforesaid Regulations, the learned Senior Counsel submitted that the entrance examination is only one of the modes of admission provided by the said Regulation, 2014. It is not the sole mode. The admissions could be made on merit on the basis of marks obtained in the qualifying examination also. Regulation 3.2 prescribes the eligibility for admission for the programme for various streams by prescribing a minimum cut off mark. These Regulations have been framed under a central enactment and prevail over any other provision contained in any law made by the state legislature or any order of the State Government including the recently notified U.P. State Universities (Regulation of Admission to Courses of Instruction for Degree in Education in Affiliated, Associated and Constituent Colleges) (Tenth Amendment) Order, 2015 (herein after called as "Order, 2015). In this regard he placed reliance on a decision of the Supreme Court rendered in Maa Vaishno Devi Mahila Mahavidyalaya Vs. State of Uttar Pradesh and others (2013) 2 SCC 617.

In view of the above, he submitted, as the CET had failed to provide the requisite number of students, therefore, there is no reason why the petitioner-institution cannot be permitted by the state to fill up the remaining intake capacity on its own after due advertisement and adherence to the triple tests of "transparency" "merit" and "non-exploitation" as according to him this was permissible even as per P.A. Inamdar's case (2005) 6 SCC 537, which has been recently considered in the case of Christian Medical College, Vellore Vs. Union of India (2014) 2 SCC 305, (2012) 4 SCC 707 Modern Dental College and Research Centre and others Vs. State of Madhya Pradesh and others, wherein the Supreme Court had permitted to fill up all remaining vacant seats in the professional colleges by the institutions.

He submitted that the requirement of making admissions in unaided private professional colleges imparting teaching in education only on the basis of CET and the consequential counseling/wait listed pool vide Order, 2015 is not in conformity with Regulations 2014 made by N.C.T.E.. It violates the rights of such unaided educational institution as declared in P.A. Inamdar's case. It violates Article 19(1) (g). It amounts to 100 % nationalization of seats. It amounts to compelling the unaided educational institutions to seat sharing even when they have not consented to the same, which is clearly against the dictum of the Supreme Court in P.A. Inamdar's case (supra). In this regard he placed reliance on Modern Dental College's case (supra) .

He further submitted that as per past experience C.E.T. and counseling held under the aegis of the State Government/University has clearly failed to provide a transparent mechanism of admission as it is rampant with corruption, favoritism and discrimination. In such counseling students are prompted to take admission in a particular college thereby tilting the balance in their favour for extraneous reasons. Representatives of the colleges are not allowed to participate in the counseling. He submitted as against 1.80 lakh seats available in the State for B.Ed. course in unaided private educational institution only about 1.50 lakh candidates had appeared in the entrance examination, thereby leaving 35,000 seats outside the zone of consideration. Even out of this 1.50 lakh only few thousand had appeared and ultimately had qualified in the said entrance examination. Only 10 seats had been provided to the petitioner against its intake capacity of 300 students. The petitioner is under an obligation to maintain the infrastructure, staff etc. for an intake capacity of 300 students which is a precondition for the recognition granted by N.C.T.E. It will well-nigh impossible for it to impart teaching to only 10 students considering the economics involved.

He also informed the Court that in the last Academic Session as against an intake capacity of 300 only 43 students had been provided to it based on C.E.T./counseling by the University

He also submitted that the petitioner had issued its own advertisement after the State failed to provide the requisite number of students and according to him about 300 students had applied, therefore, it is evident that students do not want to participate in the C.E.T. and counseling conducted by the University under the aegis of the State, otherwise, if there was any other reason, then the institution would not have received about 300 applications from students, most of whom did not participate in the C.E.T./counseling. Thus, the state is under an obligation to permit the petitioner to fill up the seats on its own. He further submitted that in the past State Government had allowed the institutions to fill up such seats on their own after issuing requisite advertisement. He invited the attention of Court in this regard to certain Government Orders annexed with the writ petition relating to the Technical Courses contained in Annexure-7 to the writ petition, based thereon he submitted that there was no reason why it should not grant similar permission to the petitioner-institution. The permission according to him was necessary as otherwise they will not allow the students to appear in the examination subsequently.

He also submitted that the petitioner, if, permitted to admit the students on its own will be able to fulfill the requirements of 200 teaching days.

In support of his contentions, he also relies upon the decisions reported in (2004) 6 SCC 224 Brahmo Samaj Education Society and others Vs. State of W.B. and others, (1998) 8 SCC 501 State of H.P. and others Vs. Himachal Institute of Engg. And Technology, Shimla, (2012) 10 SCC 770 Rajan Purohit and others Vs. Rajashthan University of Health Sciences and others and a Division Bench judgment of the Punjab and Haryana High Court dated 21.11.2008 in C.W.P. No. 17284/2008 (Association of Educations Colleges Vs. State of Haryana).

Sri Savitra Vardhan Singh, learned counsel appearing for the University which conducted the C.E.T., submits that as against 1,83,886 total B.Ed. seats for Academic Session 2015-16, 1,62,564 candidate appeared in the C.E.T. out of which 71,622 qualified and registered themselves at the time of counseling. Out of these 68,790 exercised their option in the counseling, The option of 4857 candidates were rejected, 2832 candidates did not avail their choice, 63,933 candidates were allotted seats out of which 57,692 took admission, 5241 candidates who were allotted seats had not deposited the fee. The total vacant seats at the end of the counseling process was 1,22,678. Two thousand one hundred forty seven (2147) candidates had been admitted on the basis of orders of the High Court. Thus, 1,24,825 seats which remained vacant were available for pool counseling for preparing a Pool of Wait listed Candidates. In the pool counseling initially 75000 students who appeared in the entrance examination were called, thereafter, remaining 88,000 were also called. Ultimately, a wait listed pool of about 7000 students was created. He admitted that the number of students who opted for the petitioner-institution was only 10.

Sri Singh further stated that it was not for the University to provide the students to the educational institution, but for the students themselves to opt for the institution. The students exercise their option based on various factors including the reputation and academic atmosphere of the institution etc, for which the University cannot be held responsible.

Sri Mansoor Ahmad, learned Chief Standing counsel appearing for the state submitted that the question as to whether the private unaided educational institutions could be allowed to fill up their intake capacity including vacant seats on their own or not, has already been considered by a Full Bench decision of this Court in Tuples Educational Societies Vs. State of Uttar Pradesh and another 2008(26) LCD 687 answered in the negative. The question as to whether such institution could fill up the seats on merit on the basis of qualifying examination marks instead of C.E.T. was also considered by the Full Bench and the same was also answered in negative. He also pointed out that Regulation 3 of Regulations of 2001, which were in pari materia with Regulation 3.2 and 3.3 of the Regulations, 2014, had been considered by the aforesaid Full Bench decision, therefore, the law laid down therein fully applied in this case also.

He further informed the Court that the State Government had recently notified the Order, 2015 on 10.6.2015, to regulate admission to courses of instruction for degree in education in affiliated, associated and constituent colleges. The said Order, 2015 had been issued in exercise of the powers under Section 28(5) of the U.P. State Universities Act, 1973 and it was in accordance with the N.C.T.E. Regulations, 2014 as also the judgment of the Supreme Court in the case of College of Professional Education, 2013 (2) SCC 721, which is binding on the State and its authorities. According to him the said Order, 2015 clearly provides that, even if after the counseling, the seats remained vacant a wait listed pool of 5000 candidates or more as per requirement shall be prepared. The candidates in the wait listed pool shall be arranged in order of their merit of the entrance examination and allotted against vacant seats in order of their merit list. The action for admission to the vacant seats from the wait listed pool shall be taken only on the request of the colleges made within 3 days after the end of counseling, but in any admission session the said University conducting the entrance test shall not allotted candidates after 8th July. The Order, 2015 provides that the vacancy shall be intimated on the website and notice board for the public with a copy of the State Government. Along with this an advertisement in the news papers having wide circulation in the State shall be published by the State University conducting C.E.T. to the effect that such candidates who appeared in the entrance examination of that particular session and are enrolled in the wait listed pool and could not get admission in any college may apply to the college of their choice, where seats are vacant. The candidates whose applications are thus received shall be arranged in order of merit and admissions shall be made against vacant seats accordingly. In case any difficulty arises in this regard, college shall contact the said University conducting the entrance test. Even after that, in case any unforeseen difficulty arises in filling of seats, the colleges shall contact the Principal Secretary/Secretary to the Higher Education, Government of U.P. and/or the State University conducting C.E.T. for filling up the seats and the State Government shall direct the said State University to allot the candidate from the wail listed pool within 3 working days. According to him this Order, 2015 takes care of the admission process for filling up all the seats, therefore, no cause of action has arisen for the petitioner to file this writ petition.

Sri M.M. Asthana, learned Counsel for the N.C.T.E. submitted that the new Regulation, 2014 had been notified, which govern the field of admissions in B.Ed. course.

Heard learned counsel for the parties and perused the records.

A perusal of the Order, 2015 notified by the State Government shows that it provides for filling up the vacant seats on the basis of C.E.T. and counseling and the pool counseling. Even after 8th,July, the provision made therein for filling up the remaining vacant seats is from the wait listed pool and not otherwise. The Order, 2015 does not permit filling up of vacant seats by the institutions on their own.

As is evident from the facts and figures given herein above, even after conducting the pool counseling and including the wait listed pool the total number of students available for admission are about 67000-68000 whereas the intake capacity for which the institutions have been recognized by N.C.T.E. in the State is about 1,85,000, thus, about 1,17,000 seats are still vacant.

The question which arises for consideration in this case is whether the petitioner-institution can be permitted to fill up the remaining vacant seats within its intake capacity on its own and also whether it can do it on merit based on the marks obtained in the qualifying examination as per Regulation 3.2 and 3.3 of the Regulations, 2014 or not?

The factual position, which exists in this case is that on the basis of C.E.T. and counseling including pool counseling the total number of the candidates available for admission are way short of the total seats. This factual scenario does not seem to have been envisaged earlier.

In this context, it is relevant to point out that neither the State nor the University is under any obligation to provide students to the private unaided educational institution for B.Ed course. It is for the students to opt for the institution. The entire scheme referred in P.A. Inamdar's Case (supra), the time schedule for admission referred in Colleges of Professional Education (supra), the time schedule for recognition and affiliation referred in Maa Vaishno Devi Mahila Mahavidyalaya (supra) is for facilitating the smooth and timely conduct and completion of the Academic Session and the educational courses. None of the judgments obligate upon State or the University to provide students to the unaided institutions. It is for the students to exercise their choice for admission in a particular institution through counseling held for the said purpose.

The petitioner herein seeks permission to fill up the remaining vacant seats i.e. 290 on its own for which it has issued the advertisement and is said to have received applications from students in pursuance thereof.

The question of autonomy of private unaided educational institution in matter of admission to professional courses was considered in TMA Pai's Case (2002) 8 SCC 481, thereafter, in Islamic Academy Case (2003) 6 SCC 697 ultimately the matter went before the Larger Bench in P.A. Inamdar's case (supra), wherein, after considering the earlier judgments their Lordship framed various questions, which fell for its consideration. One of the questions which fell for consideration was as under:

"The questions spelled out by orders of reference

(1) ........................................

(2) Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether the direction made in Islamic Academy for compulsorily holding an entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation?"

The answer to the aforesaid question was given by their Lordship in Paragraph 133 to 138, which are reproduced here under:

"Q2. Admission procedure of unaided educational institutions

133. So far as the minority unaided institutions are concerned to admit students being one of the components of "the right to establish and administer an institution" the State cannot interfere therewith. Up to the level of undergraduate education, the minority unaided educational institutions enjoy total freedom.

134. However, different considerations would apply for graduate and postgraduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognised by or affiliated with any competent authority created by law, such as a university, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfil these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth.

135. Pai Foundation has already held that the minority status of educational institutions is to be determined by treating the States as units. Students of that community residing in other States where they are not in minority, shall not be considered to be minority in that particular State and hence their admission would be at par with other non-minority students of that State. Such admissions will be only to a limited extent that is like a "sprinkling" of such admissions, the term we have used earlier borrowing from Kerala Education Bill, 1957. In minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured.

136. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on the same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting the common entrance test ("CET" for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single-window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of the list of successful candidates prepared at CET without altering the order of merit inter se of the students so chosen.

137. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admission and the procedure therefor subject to its being fair, transparent and non-exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the above said triple test. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing maladministration. The admission procedure so adopted by a private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.

138. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb malpractices, it would be permissible to regulate admissions by providing a centralized and single-window procedure. Such a procedure, to a large extent, can secure grant of merit-based admissions on a transparent basis. Till regulations are framed, the Admission Committees can oversee admissions so as to ensure that merit is not the casualty."

From perusal of Para 136, 137 and 138 of the P.A. Inamdar's case (supra) the ratio which can be culled out, is, if there is only a single institution imparting particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative, then it can do so. In other cases the professional educational institutions can join together for holding C.E.T. satisfying the triple test as aforesaid referred above or if they so agree, the State can provide procedure for holding another entrance test in keeping with the triple test. The admission procedure so adopted, if it fails to satisfy all or only of the triple test, can be taken over by the State substituting its own procedure.

The Supreme Court provided a centralized single-window procedure having regard to the interest and welfare of the student community to promote merit, achieve excellence and curb malpractices. With this object in mind it permitted regulation of admissions by the aforesaid procedure and asked the State Government to make Regulations, in this regard, further providing that till Regulations are framed the Admission Committees constituted vide Islamic Academy Case (supra) can oversee admissions so as to ensure that merit is not the casualty. The Supreme Court justified a Centralized Single-Window procedure to admissions vide Para 136 of its judgment, the only exception in Para 137 was in respect of a situation where there was a single institution imparting a particular type of education, even there, fulfillment of triple test was mandatory and failure in this regard would entitle the State to substitute to its own procedure. Thus, clearly the Supreme Court did not lay down any proposition allowing an individual educational institution in general to hold their own admissions. It preferred a centralized single-window procedure i.e. C.E.T.

The issues involved in this writ petition came up for consideration earlier also before a Full Bench of this Court in Tuples Educational Societies Case, wherein their Lordship framed 06 questions for consideration and answered them, out of which Question No. 1, 3 & 5 are relevant to this case. In this context relevant extracts of Para 44, 45 and 46 of the Full Bench judgment are reproduced hereunder:

"44. A reference to all these three judgments makes certain things very clear. Firstly, the main judgment in Pai Foundation (supra) rendered by eleven Judges emphasized merit for admission, at the same time fairness and transparency. For determining merit, it is stated in para 59 that it is usually determined in the qualifying examination or school-leaving certificate followed by an interview or by a common entrance test. In para 68, it did not rule out the University or the Government to require, at the time of granting recognition to private unaided institutions, to provide for merit-based selection while, at the same time, giving the Management sufficient discretion in admitting students. What is most important is that this is stated in the first part of para 68. Therefore, even if this paragraph is split into two parts, as read in Inamdar's case, the first part itself permits a University to require a private unaided institution to give admissions on the basis of merit-based selection. It is stated that at the same time sufficient discretion be given to the Management. In the present case, the Government Order permits the Management of private unaided institutions to have 15% of the candidates of their own and non-minority institutions to have 50% candidates of their own. Thus sufficient discretion in the present case is already available. But the selection procedure is however done by the University. Besides, we cannot merely read paras 59 and 69. We must also read the answer of question No. 5(b) to the question referred above in Pai Foundation (supra). The answer clearly permits such an admission test at the admission or at the entrance level. If it is so provided and University so insists thereon, it cannot be said to be bad in law. A committee is constituted to oversee these admissions as per the judgment in Islamic Academy (supra). This is a temporary measure. Even para 155 of P.A. Inamdar (supra) permits the State Government to come out with appropriate legislation. The Committees regulating admission procedure and fee structure shall continue to exist under Inamdar's judgment (supra) until the regular arrangement is made.

45. In all these cases, the Apex Court was concerned with admissions to professional courses though with emphasis on engineering and medical admissions. The provision of various State Acts and concerning those with degrees in B.Ed. and other educational courses were not before the Apex Court. The last judgment on this issue has permitted the State Government to come out with detailed well-thoughtout legislation. The Government Orders prescribing the procedure for admission and allowing the Universities to hold examinations at the University level held the field during the two relevant years. As pointed out earlier, this arrangement is not in conflict with the regulations framed by NCTE either. In the circumstances, the procedure laid down in these three judgments cannot, in any manner, lead the Court to hold the examinations held by the Universities to be bad in law. As read by us, once any such procedure for admission is prescribed, the private admissions on the basis of last qualifying marks cannot be permitted under the NCTE Regulation 3(b) as well. That apart, Justice Tilhari Committee itself has given finding that the conduct of the Association of the private institutions was not fair, transparent and non-exploitiveness.

46. In the circumstances, we answer these issues as follows:

"1. Whether the admissions to private unaided (minority and non-minority) Colleges imparting education for Bachelor of Education Courses recognized by NCTE and affiliated to the University can be made by any method other than by holding a common entrance test either by the State/Universities or by all the Colleges of the State coming together as provided in P.A.Inamdar's case?

Ans. No.

2...........................

3. Whether in the absence of any common entrance test held by all the Colleges coming together or a common entrance test conducted by the State Government or all the Universities in the State, the admissions can be made through the entrance examinations held by the individual Universities providing list of students through counseling to these Colleges?

Ans. Yes

4...........................

5. Whether for the session 2005-06 the students admitted to the Management of the private unaided Colleges imparting education for B.Ed. recognized by NCTE and affiliated to Veer Bahadur Singh Purvanchal University, Jaunpur on the basis of their procedure of admission can be said to be properly and legally admitted students and entitled for the study examination and the declaration of the result."

Ans. No.

6................................

Their Lordships sitting in the Full Bench considered the pronouncement of the Supreme Court in TMA Pai's Case (supra), Islamic Academy Case (supra), P.A. Inamdar's Case (supra) and various other decisions and ultimately answered Question No. 1 & 5, quoted herein above in the negative, whereas Question No. 3 was answered in the affirmative.

The aforesaid judgment was rendered in the context of the admissions made by private unaided institutions to the B.Ed. course i.e. the same Course to which this writ petition is related.

The Full Bench categorically held that admission to private unaided (minority or non minority) colleges imparting education for B.Ed. courses recognized by N.C.T.E. and affiliated to the University cannot be made by any method other than by holding a Common Entrance Test either by State/University or by all the Colleges of the State coming together as provided in P.A. Inamdar's case (supra). It is also held that admissions held in the absence of any common entrance test held by all the colleges coming together or a Common Entrance Test conducted by N.C.E.T. or by State Government or by the Universities in the State can be made through entrance examination held by individual Universities providing list of students through counseling to these colleges. The Full Bench nullified the admissions made by the private unaided colleges by adopting their own procedure of admission. In addition to the majority judgment rendered in the said case by Chief Justice Gokhale, Justice D.P.Singh rendered a separate concurring judgment and in paragraph 46 thereof he considered the provisions contained in Regulation 3.2 of the Regulations 2001 framed by the N.C.T.E., thereafter, in para 47 of his judgment his Lordship also turned down the contention of Sri Prashant Chandra, learned Senior Advocate that individual colleges have got right to admit candidates on the basis of qualifying marks obtained in the qualifying examination i.e. Graduation or Post Graduation level. Para 46 and 47 referred above are quoted herein below:

"46. In Regulation 3.2 provides the minimum marks which is 50%. Earlier, it was 45%. However, it has been subjected to Regulations 3.3 which deals with the actual admission procedure. The word, ''or' as well as the word, ''and' has been used in disjunction. It is settled law that ''or' sometimes denors or may be used as and ''and' may be used as ''or'. In the present case, it appears that admission shall be made in pursuance of qualifying examination. Such qualifying examination or the entrance examination shall be held in pursuance of the policy of the State Government. Thus, the examination can be held either by the State Government and in case the State Government decides, it can delegate such power to the Universities. The NCTE to its wisdom, had provided that admission procedure shall be in accordance with the policy decision taken by the State Government. Thus, instead of proceedings on its own, the NCTE delegated its power to the State Government.

47.It was submitted by Sri Prashant Chandra, Learned Senior Counsel that individual Colleges have got right to admit candidates on the basis of qualifying marks obtained in qualifying examination i.e., graduation or post graduation level but the submission of Sri Prashant Chandra seems to be not correct. While interpreting the statutory provisions, a meaning should be given to each and every word and not in isolation."

The judgment of Hon'ble Justice D.P.Singh, J. being a concurring one and there being nothing in the majority judgment to the contrary, in fact it is on the same lines, it is to be read as part of the ratio of the Full Bench decision.

Regulation 3.2 & 3.3 of the Regulations, 2014 is in pari materia with Regulation 3 of Regulation, 2001 considered by the Full Bench (supra), therefore, the ratio contained therein applies for understanding and interpreting Regulations contained in Regulation, 2014 also. It is true Regulation 3.3 of Regulations, 2014 does not mandate the admissions to be made on the basis of C.E.T. alone but permits the same to be made on merit on the basis of marks obtained in the qualifying examination and/or in the entrance examination or any other selection process as per policy of the State Government/U.T. Administration and University, but the State Government in its discretion as vested in it by the said Regulation 3.3 has notified the Order, 2015 dated 10.6.2015 prescribing a procedure of admission to B.Ed. course based on C.E.T. followed by counseling and pool counseling.

The Order, 2015 has been issued in exercise of powers under Section 28(2) of the U.P. State Universities Act, 1973 read with Section 21 of the University General Clauses Act, 1904 with a view to amend the earlier order,1987 on the subject. It is in accordance with N.C.T.E. Regulation, 2014 notified on 28.11.2014 as also the judgment of the Supreme Court in College of Professional Education case (supra). There is nothing to show that the scheme mentioned in the Order, 2015 is contrary to Regulation 3.3. & 3.2 of Regulations, 2014, as, the said Regulations permits the State to lay down such an admission process. Moreover, the order, 2015 is in accord was the judgment of the Supreme Court in the College of Professional case (supra) as it is virtually a verbatim reproduction of the Time Schedule/Scheme mentioned in the said judgment, as agreed upon by the educational institutions and the State Government.

In view of the above the contention of Sri Prashand Chandra, that the petitioner-institution should be permitted to fill up the remaining vacant seats with the permission of the State Government based on an advertisement issued by it on merit on the basis of marks obtained in the qualifying examination as prescribed in Regulation 3.2 & 3.3 of Regulations, 2014 cannot be accepted by this Court being bound by the dictum of the Supreme Court in P.A. Inamdar's case (supra) and Full Bench decision in Tuples Educational Societies Case (supra), specially, as these questions were considered in the aforesaid decisions and were answered in the negative as already stated above. More so, in view of the subsequent decision in the case of College of Professional Education (supra).

The validity of the order, 2015 and the Regulations, 2014 has not been challenged.

The intake capacity of an institution as mentioned in the recognition order issued by N.C.T.E. or as mentioned in any order of the affiliating University only refers to the maximum number of students, which the institution is permitted to admit in the B.Ed. Course considering its infrastructure and other facilities including teaching and other staff. It does not mean that such number of students are available for admission nor that such number of students have necessarily to be admitted or they have to be provided by the affiliating University/University conducting C.E.T./State. There is no such constitutional or statutory/legal right in favour of an educational institution nor corresponding obligation on the aforesaid authorities. If the students do not opt for admission in an educational institution through counseling and its seats remain vacant it cannot have any cause for grievance in the eyes of law.

Further, out of total number of seats i.e. 1.85 lakh about 1.62 lakh candidates did appear in C.E.T., but only about 67000 qualified. The question is, in stead of C.E.T. whether admission on merit based marks obtained in the qualifying examination as mentioned in Regulation 3.2 read with 3.3 of Regulations, 2014 should be opted, as, it is one of the options permissible under the said Regulations? This aspect has already been considered by Full Bench in Tuples Educational Societies case (supra) as already discussed in the earlier part of the judgment, therefore, it is not open for this Court to take any other view of the matter, more so, as a similar provision contained in Regulation, 2009 was in existence when the Supreme Court pronounced its judgment in the case of College of Professional Education in the year, 2011, but based on a consensus arrived at between the state and the private unaided educational institutions a scheme of admission based on C.E.T. to be conducted by a University followed by counseling was laid down including a time frame for the same. Further, a direction was issued to the State to incorporate the scheme mentioned therein in the rules to be made by the State in this regard which have now been made by the State vide Order, 2015 notified on 10.6.2015, thus, an entrance examination has to be conducted by a University under the aforesaid scheme of admission. The provisions contained in Regulation 3.3 of the Regulations, 2014, in its application to the State of U.P., thus, have to be read down and understood harmoniously in consonance with the aforesaid scheme laid down by the Supreme Court as incorporated in the Order, 2015.

In view of the above consensual arrangement regarding the scheme of admission affirmed by the Supreme Court and incorporated in the Order, 2015, it is doubtful, if the Group of Institutions imparting education in the field of education could hold an entrance examination of their own without seeking a modification of the said arrangement, which in any case cannot be granted by this Court.

The petitioner, however, is an individual institution seeking a direction to the State to permit it to fill up its vacant seats on its own on the basis of advertisement issued by it individually, which for reason already stated herein above, is impermissible.

The contention of the petitioner that it never consented to the aforesaid arrangement mentioned in the judgment of the Supreme Court, therefore, it is not bound by it, is not open for consideration by this Court.

It being a consensual arrangement between the State and the institutions imparting teaching in the field of education, there is no question of 100% nationalization of seats as alleged. The institutions have consented to admissions through C.E.T. and counseling to be held by the individual University.

The dictum of the Supreme Court in College of Professional Education case (supra) is binding on the state authorities as also on this Court.

The question is even if after adopting the procedure prescribed in the College of Professional Education case (supra) and the Order, 2015, the seats still remain vacant and neither the State nor the University is under an obligation to provide students to the petitioner-institution whether it should not be allowed to fill up the remaining seats on its own by adhering to the triple test laid down in P.A. Inamdar's case (supra). In view of the Full Bench decision referred herein above and the dictum of the Supreme Court in College of Professional Education (supra) as well as the subsequent decisions in Maa Vaishno Devi Mahila Mahavidyalaya case (supra), all of which are in respect to B.Ed. course, it is not possible for this Court to answer in favour of the petitioner, therefore, the answer has to be in the negative. A perusal of the dictum of the Supreme Court in College of Professional Education case shows that the Supreme Court had approved a time schedule for admission based on C.E.T. and counseling, there is nothing therein to suggest that educational institutions could fill up the seats individually on their own. In Maa Vaishno Devi Mahila Mahavidyalaya's case (supra) the time schedule/scheme relating to admission as laid down in College of Professional Education case was reiterated and reaffirmed, in addition thereto, a time schedule was laid down regarding affiliation and recognition, all the authorities were directed to strictly adhere to the time schedule referred therein, failing which, they were held liable for proceedings under the Contempt of Court's Act even departmental disciplinary action in accordance with law. The Order, 2015 also only permits filling up the vacant seats on the basis of C.E.T., counseling and wait listed pool. It does not permit individual institutions to make admissions on their own. For the aforesaid reasons the decisions relied by Sri Prashant Chandra are of no help to the petitioner.

In view of the above discussion, the writ petition fails and is dismissed.

Order Dated: 20.7.2015

Arvind.

(Rajan Roy)