Dr. A.P.J Abdul Kalam Technical ... vs G.L. Bajaj Inst. Of Techn. And ...
2023 Latest Caselaw 560 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 1
 
Case :- SPECIAL APPEAL No. - 6 of 2023
 
Appellant :- Dr. A.P.J Abdul Kalam Technical University Thru. Its Registrar Lko. And Another
 
Respondent :- G.L. Bajaj Inst. Of Techn. And Manag. , Gautam Budh Nagar Thru. Regi. Sri Sunil Dutt And Others
 
Counsel for Appellant :- Utsav Mishra,Sr. Advocate
 
Counsel for Respondent :- Amit Jaiswal Ojus Law,A.S.G.I.,C.S.C.,Lalit Shukla
 

 
Hon'ble Ramesh Sinha,J.

Hon'ble Manish Kumar,J.

1. Heard Shri Sandeep Dixit, learned Senior Advocate, assisted by Shri Utsav Mishra, learned counsel for the appellants, Shri Jaideep Narain Mathur, learned Senior Advocate assisted by Shri Amit Jaiswal, learned counsel for the respondent no. 1/writ petitioner, Shri Raj Kumar Singh, learned counsel for the Union of India/respondent no. 2, Shri Anand Kumar Singh, learned Standing Counsel for the respondent no. 3 and Shri Lalit Shukla, learned counsel for respondent no. 4/AICTE.

2. Present special appeal has been preferred against the interim order dated 20.12.2022 passed by the learned Single Judge in Writ C No. 8770 of 2022 (G.L.Bajaj Institute of Technology and Management, Gautam Buddh Nagar, through its Registrar Vs. Union of India and others) allowing the respondent no.1- Institution to register/admit the students under 10% E.W.S. quota in accordance with the procedure prescribed by the University, as an interim measure.

3. Shri Sandeep Dixit, learned Senior Advocate has submitted during the course of hearing that the Writ Court had narrowed down the points for which according to the Court require consideration in the writ petition but without adjudicating the same passed an interim order granting permission to the respondent institution to admit/register students merely, on the ground that the last date fixed by Supreme Court for admitting student is 20.12.2022 but completely ignored the law laid down by Hon'ble Supreme Court in the cases of Priya Gupta Vs. State of Chhattisgarh reported in (2012) 7 SCC 433, Medical Council of India Vs. Kalinga Institute of Medical Sciences reported in (2016) 11 SCC 530 and in Dental Council of India Vs Dr. hedgewar Smruti Rugna Seva Mandal Hingoli and others reported in (2017) 13 SCC 115.

4. It has further been submitted that the directions given by the learned Single Judge by permitting the respondent No.1-petitioner institution for registration/admission of the students under 10 per cent Economical Weaker Section (hereinafter referred to as, the E.W.S.) quota in accordance with the procedure prescribed by the University with a rider that their admission would be subject to the order passed by the Court on the next date fixed or final disposal of the writ petition and will not accrue any right in favour of the respondent No.1-petitioner, are in contravention of the judgments/dictum of the Hon'ble Supreme Court in the catena of judgments which are Priya Gupta (supra), Medical Council of India (supra) and in Dental Council of India (supra) wherein the Hon'ble Supreme Court has held that in the matter of admission, where the career of the students are involved, the Courts should ordinarily decline to grant interim relief and hear the petitions finally.

5. It is further submitted that as per the 103rd Constitutional Amendment Act, 2019 (hereinafter referred to as the Amendment Act, 2019), the AICTE has determined the seats without any jurisdiction as determination of reservation for socially and educationally backward classes, Scheduled Caste and Scheduled Tribes as well as for E.W.S. is within the exclusive domain of Central and State Government. Even the said issue has not been decided by the learned Single Judge while passing the impugned order herein.

6. It is further submitted that as per the Amendment Act, 2019, there will only be an increase of 10 per cent seats under the E.W.S. quota excluding the reservation for Scheduled Caste, Scheduled Tribes and O.B.C. In order to weigh his submission, he drew attention of this Court towards the dictum of Hon'ble Supreme Court in the case of Janhit Abhiyan vs Union of India [2022 SCC Online SC 1540], wherein it has been held that there cannot be any increase in the percentage of quota for Scheduled Caste, Scheduled Tribes and OBC, which has been made by the A.I.C.T.E.

7. It is further submitted that issues that whether the increase in seats by A.I.C.T.E. has rightly been made or not and whether the A.I.C.T.E. is empowered to do so are still to be adjudicated.

8. Under these circumstances, it was not appropriate to permit the respondent No.1-petitioner to get admission/registration of the students against the enhanced number of seats, as determined by the AICTE.

9. On the other hand, Sri J.N. Mathur, learned Senior Advocate assisted by Sri Amit Jaiswal, learned counsel for the respondent no. 1 has submitted that the Hon'ble Supreme Court has fixed the last date for taking admission i.e. 20.12.2022 and if the impugned order would not have been passed, the respondent-petitioner institution would not have been able to take admission against the enhanced number of seats under 10 per cent, as per the Amendment Act, 2019.

10. It is further submitted that the Harcourt Butler Technical University (H.B.T.U.) and Board of Technical Education, U.P. (B.T.E) are following the determination made by the A.I.C.T.E.. It is further submitted that the appellant University has also permitted one of the institutions to fill up the seats by giving admission as per the determination made by the A.I.C.T.E. Hence, there is no illegality in the order impugned which is subject matter of the present appeal.

11. After hearing learned counsel for the parties and going through the record of the case, the position which emerges out in the present case is that the issues involved in the writ petition are as to whether the A.I.C.T.E. is empowered to determine the seats as per the Amendment Act, 2019 and whether the State Government or the Central Government is competent to issue an order/notification as per the Amendment Act, 2019 are yet to be adjudicated by the writ court, thus, when the disputes are yet to be adjudicated and the determination of the seats are still sub-judice in the writ petition, any admission made against the increased seats is nothing but to play with the career of the students.

12. The Hon'ble Supreme Court in the case of Dental Council of India vs. Dr. Hedgewar Smruti Rugna Seva Mandal, Hingoli and Ors. [(2017) 13 SCC 115] in paragraph 11 has held as under:-

" 11. True it is, the High Court has qualified its order by stating that the admission process shall be at the risk of the college and the students shall be intimated, but the heart of the matter is, whether the High Court should have stayed the order with such conditions. Basically, the order amounts to granting permission for the admission of students in certain courses in a college which had not received approval. There may be a case where the court may ultimately come to the conclusion that the recommendation is unacceptable and eventually the decision of disapproval by the Government of India is unsustainable. But the issue is whether before arriving at such conclusions, should the High Court, by way of interim measure, pass such an order."

13. The Hon'ble Supreme Court in the case of Medical Council of India vs. Kalinga Institute of Medical Sciences (KIMS) and Ors. [(2016) 11 SCC 530] in paragraph 27 has held has under:-

"27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-2015 [Kalinga Institute of Medical Sciences v. Union of India, WP (C) No. 15685 of 2015, order dated 25-9-2015 (Ori)] . There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved ? what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty."

14. The parity as claimed by learned counsel for the respondent-petitioner institution cannot be accepted as no negative parity could be given as per the law settled by Hon'ble Supreme Court in the case of R. Muthukumar and Ors. vs. Chairman and Managing Director TANGEDGO [(2022) SCC Online SC 151].

15. While passing the order impugned, the learned Single Judge has only considered the fact that the Hon'ble Supreme Court has fixed the cut-off date i.e. 20.12.2022 for permitting the respondent-institution to admit/register the students but the law propounded by the Hon'ble Supreme Court in the catena of judgments wherein it has been held that in the matter of admission, where the career of the students are involved, the Courts should ordinarily decline to grant interim relief and hear the petitions finally, has been ignored.

16. In view of the discussion made hereinabove, the Special Appeal is partly allowed.

17. The impugned order dated 20.12.2022 is hereby modified/quashed to the extent as far as it permits the respondent No.1-petitioner to admit/register the students under 10% EWS quota.

18. Let the matter be remitted to the learned Single Judge with a request to decide the matter preferably within three weeks from the first date of listing.

[Manish Kumar, J.] [Ramesh Sinha, J.]

Order Date :- 6.1.2023/Ashish