Bombay High Court
Vidarbha Youth Welfare Society, ... vs State Of Maharashtra Thr. ... on 14 September, 2016
Bench: B.P. Dharmadhikari
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
Writ Petition No. 4793 of 2016
AND
Writ Petition No. 4794 of 2016
[A] Writ Petition No. 4793 of 2016 :
1. Vidarbha Youth Welfare Society,
a Public Trust registered
under Bombay Public Trusts Act,
Chaitanya Building,
Camp Road, Amravati-444 602,
through President Nitin Ramdas
Dhande, aged 46 years,
Amravati.
2. Prof. Ram Meghe College of
Engineering & Management,
New Express Highway Badnera,
Amravati, through its Principal
Dr. M. S. Ali, aged about 57 years,
resident of Jamil Colony,
Walgaon Road,
Amravati-444 601. ..... Petitioners.
Versus
1. State of Maharashtra,
through Secretary,
Department of Higher &
Technical Education,
Mantralaya,
Mumbai-32.
2. Commissioner of State
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CET Cell [M.S.],
305, Govt. Polytechnic
Building, 49,
Kherwadi, Ali Yawar Jung Marg,
Bandra [East], Mumbai-400 051
[M.S.].
3. Directorate of Technical
Education,
through its Director, 3,
Mahapalika Marg, Elphinstone
Technical High School,
Campus,
Mumbai-400 001 [M.S.].
4. All India Council for Technical
Education, a Statutory Body
under the Ministry of HRD,
Govt. of India, through its Chairman,
Nelson Mandela Marg,
Vasanth Kunj,
New Delhi - 110 067. ..... Respondents.
*****
Mr. M. M. Sudame with Mr. R.D. Bhuibhar, Advs., for the
petitioners.
Mr. N.R. Roade, Asstt. Govt. Pleader for respondent nos. 1 to 3.
*****
[B] Writ Petition No. 4794 of 2016 :
1. Shree Hanuman Vyayam Prasarak
Mandal,
a Public Trust registered
under Bombay Public Trusts Act,
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HVPM Campus, Amravati, through
General Secretary,
Amravati.
2. College of Engineering & Technology,
through its Principal Dr. A.B. Marathe,
aged about 59 years,
resident of Ambar Apartments,
HVPM Campus, Amravati. ..... Petitioners.
ig Versus
1. State of Maharashtra,
through Secretary,
Department of Higher &
Technical Education,
Mantralaya,
Mumbai-32.
2. Commissioner of State
CET,
305, Govt. Polytechnic
Building, 49,
Kherwadi, Ali Yawar Jung Marg,
Bandra [East], Mumbai-400 051
[M.S.].
3. Directorate of Technical
Education,
through its Director, 3,
Mahapalika Marg, Elphinstone
Technical High School,
Campus,
Mumbai-400 001 [M.S.].
4. All India Council for Technical
Education, a Statutory Body
under the Ministry of HRD,
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Govt. of India, through its Chairman,
Nelson Mandela Marg,
Vasanth Kunj,
New Delhi - 110 067. ..... Respondents.
*****
Mr. M. M. Sudame with Mr. R.D. Bhuibhar, Advs., for the
petitioners.
Mr. N.R. Roade, Asstt. Govt. Pleader for respondent nos. 1 to 3.
ig *****
CORAM : B. P. DHARMADHIKARI
AND
A.S. CHANDURKAR, JJ.
Date : 14th September, 2016
ORAL JUDGMENT [Per B.P. Dharmadhikari, J.]:
01. Looking to the nature of controversy and developments
after orders of this Court dated 19th August, 2016 in both these
matters, as requested by parties, we have heard the matters finally by
issuing Rule and making it returnable forthwith. Learned Adv. Mr.
Sudame with Adv. Mr. Bhuibhar has argued the matters on behalf of
the petitioners. Learned Asstt. Govt. Pleader Mr. N.R. Rode
represented the State Govt.
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02. Learned Adv. Mr. Sudame has submitted that filling in the
quota at institute level for the purposes of admissions to various
Engineering Courses, the Principals/Directors of respective colleges are
the final authority and they have to draw the list of students selected
for admission. In this case, as, after completion of Centralized
Admission Process [CAP] rounds, the separate final merit list was not
displayed till 8th August, 2016, Writ Petition No. 4734 of 2016 was
required to be filed by petitioners and this Court then noted
submission of counsel appearing for competent authority that only
students registered with Common Entrance Test [CET] Cell are entitled
to seek admission. It was further stated that competent authority had
again opened that process of registration of students with CET Cell for
that day, i.e., for 12th August, 2016. The students getting themselves
registered could be then admitted in terms of Rule 3 (2) (b) of the
Admission Rules. He contends that no such list was made available.
Petitioners are entitled to admit twenty per cent of the strength as
institute quota and similarly seats remaining vacant after CAP could
have been also filled in at institute level. Thus, admissions were made
by last date, i.e., 14th August, 2016; but the lists were not getting
uploaded and hence a representation was sent to competent authority.
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Joint Director of Technical Education [respondent no.3] on 13th August,
2016 sent impugned communication, stating that candidates, who did
not satisfy prescribed eligibility norms, cannot be admitted.
03. Learned counsel submits that these respondents did not
fulfill their obligation of making a merit list of students eligible for
admission to petitioners - institutes and found fault with admissions
made by the petitioners when the petitioners made admission by
adhering to merit only well before the last date.
04. Inviting attention to the provisions of Rule 13 (d), he states
that norms envisaged there & to be notified by State Govt. must be
different and distinct than the norms specified by appropriate
authority. According to him, both authorities cannot, therefore, apply
their mind on same norm and then arrive at a finding to apply different
yardstic. He draws support for this from the provisions of Section 3 (1)
of the Maharashtra Unaided Private Professional Educational
Institutions (Regulation of Admissions & Fees) Act, 2015. He contends
that harmonious reading of these statutory provisions with
Maharashtra Unaided Private Professional Educational Institutions
(Regulation of Admission to Full-time Professional Undergraduate
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Technical Courses) Rules, 2016, is necessary and as such no fault can
be found with admissions made by the petitioners. The appropriate
authority, namely All India Council for Technical Education, has
prescribed minimum of forty-five per cent marks for Open Category
and forty per cent marks for Reserved Category. The State Govt.,
through the respondent no.3 has revised it to 50% and 45%
respectively. Thus, this prescription of higher percentage is arbitrary
and unwarranted.
05. Lastly, he submits that only to facilitate admissions to be
completed after High Court's orders, advertisements were issued on
21st August, 2016 in Dailies - "Deshnotti" and "Lokmat" by the
petitioners in Writ Petition No. 4794 of 2016. He explains the vital
importance of admissions to be made in institute quota and submits
that if such admissions are not made, petitioner institutes cannot
function.
06. He has invited our attention to various documents on record
and we find it appropriate to refer to them as and when occasion
therefor arises.
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07. Learned Asstt. Govt. Pleader, on the other hand, submits
that merit list for institute level admissions was already displayed on
9th August, 2016 itself and contention that respondent no.3 did not
discharge its obligation is, therefore, erroneous. He has invited our
attention to orders of this Court dated 5th August, 2016 in Writ Petition
No. 4149 of 2016 and to a Division Bench Judgment in Akash Laxman
Sakat Vs. State of Maharashtra & others [2014 (5) Mh. L.J. 576],
to urge that prescription of a higher eligibility percentage by
respondent nos. 1 and 3 is upheld and found not arbitrary by this
Court.
08. Submission is open students admitted by the petitioners
possess less than fifty per cent marks or forty-five per cent marks
[Reserved Category] and hence their admissions cannot be regularized
or legalized. He submits that indirect effort of petitioners is to upset
the norm on the basis of which admission rounds began about 5
months back. Advertisement in this respect was published in March,
2016 itself and CAP rounds have been completed accordingly. He
states that thus an indirect challenge to advertisement dated 11th
March, 2016 cannot be entertained at this stage. Inviting attention to
advertisements as published by the petitioners in Writ Petition No.
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4794 of 2016 on 21st August, 2016, he contends that not only students
were misled, but order of this Court was also wrongly quoted and
attempt has been made to drag this Court into unnecessary
controversy. He prays for taking appropriate action for misleading this
Court. He submits that fact that 14th August, 2016 was the last date
for making admissions was deliberately not brought to the notice of
this Court.
09. In reply arguments, Adv. Mr. Sudame submits that
petitioners in Writ Petition No. 4794 of 2016 could get only fifty-six
candidates against institute quota. But then because of pending
controversy before this Court, 40 students have already left the college
while sixteen are still taking education. In Writ Petition No. 4793 of
2016, about 282 students took admissions in institute quota. Only 112
candidates are still continuing with education, while remaining 170
students have already left the institute.
10. He points out that after orders of this Court dated 12th
August, 2016, the respondents have not displayed any list and as such
petitioners were within their rights to effect admissions in institute
quota.
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11. Petitioners in Writ Petition No. 4794 of 2016 had approached
this Court in Writ Petition No. 4734 of 2016 for a direction to
competent authority to prepare and publish a merit list as required
under Rule 3 (2) (b) of 2016 Rules, for admissions in Academic Year
2016-17. This Court has noted submissions of Asstt. Govt. Pleader that
on 1st August, 2016, after Circular dated 28th July, 2016, approval was
given to institutes to fill in such seats at institute level by strictly
complying with provisions of Clauses 3 and 13 of 2016 Rules. Thus,
seats remaining vacant after all CAP rounds were permitted to be filled
in as per rules. Competent authority also stated before the Court that
petitioners were trying to admit students not registered with CET Cell
and only students registered with CET Cell could be admitted against
institute quota. Competent authority stated that it had opened the
process for registration of students for 12th August, 2016 only and
students getting registered would be eligible for admission in terms of
Rule 3 (2) (a) and Rule 3 (2) (b) also.
12. Rule 3 (2) (a) deals with admissions of students through CAP
rounds. Clause (b) thereof deals with admissions against institute
quota as per Rule 7 (4). In present petitions, therefore, we are
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concerned only with admissions to be done as per Rule 3 (2) (b). The
advertisement for these admissions was published on 28th July, 2016,
which is referred to as Notification in the order of this Court dated 12th
August, 2016. The schedule begins with online registration of
applications for admission at institute level. The registration was to be
done between 30th July, 2016 and 5th August, 2016. Document
verification was to be carried out between 1st August, 2016 and 5th
August, 2016. Separate provisional merit list for admission to institute
quota was to be displayed on 6th August, 2016. Grievance about it
was to be submitted by 7th August, 2016. Separate final merit list for
these admissions was to be displayed on 8th August, 2016. Admission
rounds at institute level were to continue from 9th to 14th August,
2016 and cutoff date prescribed is 14th August,2016.
13. Petitioners have not asked for postponing the cutoff date or
then for a suitable modification/amendment in this notification. They
have come up with a specific case that they have made all admissions
before the cutoff date.
14. Orders of this Court dated 12th August, 2016 take note of
statement made by respondent no.3 that registration could have been
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done by such students even on 12th August, 2016. In view of this
order in Writ Petition No. 4734 of 2016, Notification dated 28th July,
2016 or preparation of & display of a separate final merit list as on 8th
August, 2016 or thereafter does not remain relevant. As per stages
prescribed therein, separate final merit list ought to have been
displayed after 12th August, 2016. But then petitioners are not
making any grievance in that respect before this Court.
respondents also do not submit that after 12th August, 2016, they
The
have prepared any separate final merits list and displayed it. Learned
AGP attempted to urge that as per instructions with him such a list was
displayed on 8th August, 2016, however the same can not be
countenanced.
15. Orders of this Court in present Writ Petitions on 19th
August, 2016 reveal that because of urgency, petitions were circulated
and were taken up at 2.30 in the afternoon only, with the result,
learned Asstt. Govt. Pleader appearing for respondents was not having
any instructions in the matter. On that day, we have permitted
petitioners to admit students till 22nd August, 2016 by staying the
communication dated 13th August, 2016. On the next date of hearing,
i.e., on 29th August, 2016, learned Asstt. Govt. Pleader pointed out
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that petitioners were aware about 14th August, 2016 being the last
date and this Court was, therefore, misled by seeking a direction to
permit it to admit students till 22nd August, 2016. 22 nd August was the
last date for uploading the list of students validly admitted till
14.08.2016.
16.
Perusal of records reveals that after our orders, petitioners
have published advertisements in two newspapers mentioning the said
High Court orders and further added that applications would be
accepted till 1 O'clock in the afternoon on 22nd August, 2016 and
merit list would be published at 2.00 p.m. Mobile number has also
been given to contact for such admission. After our orders dated 29th
August, 2016 calling explanation from petitioners , affidavits have
been filed in WP 4794 of 2016 stating therein that last date for
uploading approval of admissions made on or before 14th August,
2016 was 22nd August, 2016. The date 22nd August, 2016 was
communicated to this Court as the last date because of communication
dated 13th August, 2016 sent by respondent no.3 on the subject of
uploading of admission. During arguments, effort has been made to
show that all admissions have been made before 14th August, 2016.
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17. The list of students produced before this Court is annexed
as a part of petition. Petitioners have come up with a grievance that
they could not upload that list. If after Court orders dated 19th August,
2016, they had effected any admissions in pursuance of
advertisements mentioned supra, the petitioners would have filed a
different or additional list of students admitted by them as annexure in
Writ Petition No. 4794 of 2016. That has not been done.
therefore, find that only petitioners in Writ Petition No. 4794 of 2016
We,
issued advertisement and tried to make admissions after 14th August,
2016. The advertisement was published on 21st August, 2016 and in
advertisement, 22nd August, 2016 was mentioned as last date. From
record, it does not appear that the petitioners before us has made any
admission after orders of this Court dated 19th August, 2016.
18. The perusal of Section 3 (1) of 2015 Act reveals that
eligibility conditions and requirements for admission are to be notified
by the Govt., from time to time; but the same can not be lesser than
those stipulated by appropriate authority. Though Adv. Mr. Sudame
has pointed out use of plural number in said rule while imploying
"conditions and requirements", to us that does not make any material
change. The provisions of Rules of 2016 need to be understood in the
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backdrop of 2015 Act. Fact that State Govt., has, in terms of Section 3
(1), prescribed fifty per cent of marks for Open Category and forty-five
per cent of marks for Reserved Category is not dispute. Similarly, fact
that All India Council for Technical Education has/had stipulated the
lesser percentage, i.e. forty-five for Open Category, and forty per cent
for Reserved Category is not in dispute.
19.
Rule 13 of 2016 Rules deals with admissions in institutional
quota and vacant seats after CAP rounds. There, Clause (d) stipulates
that an aspiring candidate has to fulfill eligibility criteria as notified by
Govt. and specified by appropriate authority. Whether use of words
"notified" and "specified" implies that this Clause (d) speaks of
different yardsticks to be adopted as eligibility criteria by State Govt.,
and by appropriate authority, or then it can be the same yardstick, is
the moot question. According to Adv. Mr. Sudame, if on one yardstick
[norm], both Govt., and appropriate authority are allowed to take a
decision, it would result in inconsistency or absurdity. In present facts,
we do not find it necessary to delve more into this argument. Section
3 (1) of 2015 Act speaks of eligibility conditions and it also envisages
that the same may be prescribed by appropriate authority. But then
said Section gives primacy to the norms ie eligibility conditions
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decided by Govt. Only rider is, such eligibility conditions decided by
Govt., cannot be less than the standards laid down by appropriate
authority. Section 2 (b) defines appropriate authority to mean
authorities declared by State or Central Govt., which approve and
regulate provisional courses or educational disciplines.
20.
Harmonious reading of Rule 13 (d) with Section 3 (1) [supra]
leaves no manner of doubt that higher standards prescribed by State
Govt. have to prevail provided the same do not dilute the standards
prescribed by the appropriate authority. More rigorous standards
adopted by the State Government are valid here.
21. The Division Bench Judgment of this Court in Akash Laxman
Sakat [supra] deals with this aspect and finds that higher standards
can be prescribed by State authority if it is not prevented from doing
so. Other Division Bench of this Court, while admitting Writ Petition
No. 4149 of 2016 on 5th August, 2016 declined to grant interim relief.
It has recorded reasons for doing so and those reasons also support
the defence raised by learned Asstt. Govt. Pleader.
22. Though the field may be occupied by Central enactment
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and, therefore, All India Council for Technical Education may be
competent to regulate admissions in terms of Section 10 of that Act, in
view of 2015 Act, particularly its Section 3 (1) when the eligibility
conditions are to be prescribed by State Govt., it is apparent that the
present qualifications prescribed by State Govt., need to be adhered
to. Petitioners have not questioned validity of any statutory provision
before this Court.
23. As such, we find no substance in the contention that
insistence for adherence to eligibility norm of fifty per cent [for Open
Category] and forty-five per cent [for Reserved Category] is not in
accordance with law. The norm as prescribed by the State needs to be
sustained. Challenge thereto must fail.
24. It is not in dispute that admissions made by both the
petitioners before this Court are of students who do not meet these
higher eligibility conditions. These students satisfy the lower norms of
forty-five per cent [for Open Category] and forty per cent [for Reserved
Category]. The higher norms have been in use since 11th March,
2016, i.e., when admission process commenced. All admissions
through Centralized Admission Process in the State have been done on
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the strength of these higher norms. Rule 13 (d), therefore, does not
support contention that for admissions against quota/seats at institute
level, other norms can be prescribed and acted upon. Admission
process, which has commenced on 11th March, 2016, must be
completed by following one & same norm on uniform basis. Circular
dated 28th July, 2016 envisages preparation of a merit list by the
competent authority of such students also who did not avail of
opportunity to be admitted in government seats / quota, in CAP
rounds. Their names have to figure in the merit list prepared for filling
in the institute quota or vacant seats. Petitioners could not have
deviated from the higher eligibility percentage prescribed by the State
Government.
25. In this situation, we find no merit in any petition. Petitions
are accordingly dismissed.
26. We put on record a warning to the petitioners in Writ
Petition No. 4794 of 2016 for their wrongful conduct in publishing a
misleading advertisement on 21st August, 2016, and if such mischief
is repeated in future, serious cognizance thereof shall be taken. The
note of this warning shall be taken in records of said petitioners by all
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the respondents.
27. With this direction the Rule is discharged. In the
circumstances of the cases, there shall be no order as to costs.
Judge
ig Judge
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