Bombay High Court
The Association Of Muslim ... vs State Of Maharashtra Through Its ... on 26 August, 2015
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Writ Petition NO. 5106 OF 2015
MAHARASHTRA MEDICAL EDUCATION AND
RESEARCH CENTRE AND ANR. ...Petitioner(s)
Versus
STATE OF MAHARASHTRA THROUGH
ITS PRINCIPAL SECRETARY, MEDICAL
EDUCATION DEPT. AND ORS. ...Respondent(s)
ig WITH
Writ Petition NO. 5107 OF 2015
THE ASSOCIATION OF MUSLIM MINORITYS
MEDICAL EDUCATIONAL OF MAHARASHTRA, PUNE ...Petitioner(s)
Versus
STATE OF MAHARASHTRA THROUGH
ITS PRINCIPAL SECRETARY, MEDICAL
EDUCATION DEPT. AND ORS. ...Respondent(s)
Mr. S. N. Biradar for the petitioners in both matters.
Mr. Anil Singh, Advocate General with Mr. C. P. Yadav, AGP for
respondents 1 and 2 in both matters.
Mr. Ajay Magdum i/by Mr. S.S. Patwardhan for respondent No.3 in
both matters.
CORAM: ANOOP V. MOHTA AND
A. A. SAYED, JJ.
DATE : August 26, 2015
ORAL JUDGMENT (Per Anoop V. Mohta,J.):
The Petitioners are minority institutions and have been
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imparting technical education - professional courses, after
obtaining requisite permissions and approvals since many years.
Based upon the orders passed by this Court including the Supreme
Court, they have been conducting separate CET/CAP which is
required for selecting the meritorious students and transparency in
selection process.
2 The Petitioners, therefore, have applied for similar
permission for academic year 2015-2016 on respective dates. Those
permissions were not granted by the then existing Pravesh
Niyantran Samiti (Medical Education) (PNS)-Respondent No.3 by
respective orders. Hence these Petitions filed prior to 12 May 2015.
3 The State of Maharashtra (The State) on 12 May 2015
promulgated an Ordinance called "Maharashtra Unaided Private
Professional Educational Institutions (Regulation of Admissions and
Fees) Ordinance, 2015" (The Ordinance) for regulation of
admissions and fees of Unaided Private Professional Educational
Institutions in the State of Maharashtra and for matters connected
therewith or incidental thereto.
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4 By notification dated 17 August 2015, the Ordinance is
converted into Maharashtra Act No. XXVIII of 2015 - "Maharashtra
Unaided Private Professional Educational Institutions (Regulation of
Admissions and Fees) Act, 2015" (The Act). The State is therefore
required to take all necessary steps, to implement the scheme of
the Act effectively in every respect including the regularisation of
admissions and fees even by unaided private professional
educational institutions. This Act also covers the aspect of
Common Entrance Test (CET)/CAP and all related mechanisms
and the machineries.
5 The State in both these matters have filed an affidavit in
reply dated 26 August 2015. Considering the interest of students
and to avoid further delay and in the interest of justice only for
academic year 2015-2016, made the arrangements, by stating in
paragraphs 3, 5 and 6 as under:
"3. I further submit that during the deliberations
held with the Senior Officials of the Higher and
Technical Education Department, who has processed
the said Ordinance and the Act, had clarified with
respect to inclusion of provision of sub section 7 of
Section 10 of the Ordinance. I say that as per
clarification now given by the Higher and Technical
Education Department, the Affidavit dated 27.7.2015
filed by me in the above matter is hereby withdrawing
un-conditionally. Therefore, after the discussion with
the Higher authorities of the Higher and Technical
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Education Department, I am filing this Affidavit to
place on record the stand of the Government and
interpretation of provisio of sub section 7 of section 10
and the intention and object of the State with respect
to the said provisio of the Ordinance/Act.
5. I say and submit that considering various facts
stated in para 4 hereinabove, the State Government
vide G.R dated 3.7.2015 has approved creation of posts
for the said CET Cell, Admissions Regulating Authority
and Fee Regulating Authority. I further say and submit
that the State Government has vide Government order
dated 3.7.2015 appointed the officer as a
Commissioner of State CET. I also say and submit that
as it would take some time to constitute the admission
regulating authority and the fee regulating authority,
the Government has given extension vide orders dated
8.7.2015 to the erstwhile Pravesh Niyantran Samiti and
Shikshan Shulka Samiti and decided that these then
existing Samities shall discharge the functions of
regulating the admission and fees for the different
private professional courses under the said Ordinance.
Therefore, Government has taken all possible
immediate steps to implement various provisions under
the said Ordinance in true letter and spirit, so that
various provisions under the ordinance other than
Section 10 could be implemented from academic year,
2015-2016 with immediate effect.
6. I say and submit that considering the various
facts as stated above and the real intention of the
Government including the legislature with respect to
inclusion of provisio to sub section 7 of section 10 of
the said Act, is to have smooth conduct of CET and
CAP for academic year, 2015-2016, in the manner as it
was being conducted prior to the Ordinance. As the
petitioner, institution has been allowed to conduct their
own CET by the order of this Hon'ble Court as well as
the Hon'ble Apex Court prior to the promulgation of
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the said Ordinance. Therefore, considering the
interpretation of the aforesaid provisio and the
intention of the legislature, the admission process
should not affect due to the promulgation of this
Ordinance for the academic year, 2015-2016. In view
of these said facts, the petitioner may be allowed to
conduct their own CET and CAP. Else the Directorate of
Medical Education and Research can provide the
detailed list of all those eligible candidates who
appeared for the Government Medical CET (MH-CET)
and from this list, the petitioner can choose the
required number of candidates to enrol into their
institutions on the basis of the merit. While doing so, as
the petitioner is a minority institution, it is expected
that from the proposed said list of candidates, firstly
the minority candidates need to be admitted and if
seats remain vacant, thereafter, may be filled from
general category."
6 In view of the affidavits filed on record and considering
the interest of students at large and as urgent attention is required
to conduct, by private unaided institutions their own CET and CAP
and as the same was earlier practice based upon the Supreme
Court judgments, till the date of Ordinance and now Act, we see
there is no reason now to delay and/or postpone the procedure for
conducting private owned CET/CAP, specifically for want of full
mechanism/machinery, under the provisions of the
Ordinance/Act.
7 Submission is also made by the learned counsel
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appearing for the Petitioners that it would not be practicable for
them to accept the alternate suggestion given by the State and to
implement the same as was not done at any earlier point of time,
specifically at this stage of fag end of the academic year 2015-2016
in question. Therefore, to avoid further complications, they have
submitted that for this year also the earlier year's practice of
conducting their own CET/CAP be permitted.
The learned Advocate General appearing for State of
Maharashtra, in view of the averments so made and quoted, also
conceded to the position that the State has no objection for the
same in view of the circumstances so referred above, and to avoid
further delay and in the interest of students, to permit the
Petitioners and/or such unaided institutions to conduct their own
CET/CAP.
9 The learned Advocate General also makes position clear
that this arrangement is only for academic year 2015-2016. In
next year, the provisions of the Act will be applicable in every
respect. The State has been taking effective steps for the proper
and effective implementation of the scheme and object of the Act.
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10 There is no challenge to the provisions of the Ordinance
and the Act. We are also not dealing with the same, even
otherwise. However, considering the interest of all and in view of
the affidavit so filed by the State and as all the parties consented
and by keeping all points open, we are inclined to disposed of these
Petitions by passing the following order :
ig ORDER
(i) The rejection orders passed by the then
existing Pravesh Niyantran Samiti dated
16.01.2015 are quashed and set aside in both
the matters.
(ii) The Petitioners are permitted to conduct its own
CET followed by CAP for the academic year 2015-
2016 for their respective under-graduate and
post graduate courses, in accordance with law
and the practice so adopted last year.
(iii) It is made clear that the above arrangement is
only for academic year 2015-2016. For next
year, the provisions of Act will be applicable in
every respect.
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(iv) All points are kept open.
(v) Both the writ petitions are accordingly disposed
of.
(vi) No costs.
(A. A. SAYED, J.) (ANOOP V. MOHTA, J.)
