Bombay High Court
Utsav S/O Tushar Sodha vs The State Of Maharashtra And 4 Ors on 16 August, 2017
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (LODGING) NO. 1685 OF 2017
Utsav S/o Tushar Sodha ....Petitioner.
Vs.
The State of Maharashtra & Ors. ....Respondents.
Mr. S.B. Talekar, a/w Mr. V.P. Sangvikar, Ms. Madhavi Ayyappan i/by
Talekar & Associates and Vinod Sangvikar for the Petitioner.
Mr. L.M. Acharya, Special Counsel a/w Mr. Kunal Bhanage-AGP for
Respondent Nos. 1, 2 and 4.
Mr. Rui Rodrigues for Respondent No.3-University.
Ms. Dipali Chimane i/by M/s. S.K. Srivastav and Co. for Respondent
No.5.
CORAM : ANOOP V. MOHTA AND
SMT. BHARATI H. DANGRE, JJ.
DATE : 16 AUGUST 2017.
ORDER:-
Leave granted to correct the name of Respondent No.2 and
prayer clauses. Amendment to be carried out forthwith.
2 This is a case of transfer of a student (Petitioner) from
unaided institution to aided institution and not for the first time
admission on merits.
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3 The Petitioner has passed his first year LLB examination
from Respondent No.5-Pravin Gandhi College, Vile Parle (an unaided
Institution/college) in this year itself and now is seeking transfer in
Respondent No.4-Government Law College (GLC)(The aided
institution) in second year LLB Course.
4 The Petitioner has filed this Petition on 27 June 2017 and
amended the same as per Court order dated 24 July 2017. The
subsequent events after 24 July 2017, are not placed on record,
through affidavit.
5 The constitutional challenge is raised to Rule 16(2)(c), (d)
(e) and (f) of the Maharashtra Unaided Private Professional
Educational Institutions (Regulation of Admission to the Full Time
Professional Undergraduate Law Courses) Rules 2017, ("Rules") stated
to be ultra-vires of Section 4 of the Maharashtra Unaided Private
Professional Educational Institutions (Regulation of Admissions and
Fees) Act 2015, ("The Institutions Act"). Rules 16(2) (c) to (f), read as
under:-
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"16. Change of Institution after First year-
(c) There shall be no transfer of students at any
stage in any case from Unaided Institutions to
Government or Government Aided, University
Departments, University Managed Institutions.
However, the Candidate from Government or
Government Aided University Departments,
University Managed Institution may seek transfer
to Unaided Educational Institution;
(d) There shall be no transfer of students at any
stage to Autonomous Institutions;
(e) The Principals of Unaided institutions shall
consider the Candidates from other institutions
for transfer with prior approval from the
Directorate of Higher Education on submission of
No Objection Certificate (NOC) from institution,
Eligibility Certificate from University and Vacancy
position. The Principal or Director shall ascertain
the eligibility of Candidates as laid down by the
concerned University for the course to which the
Candidate is being transferred;
(f) No application without recommendation of
the Principal of Institution shall be entertained by
the Directorate of Higher Education ;"
6 The "unaided institution" is also defined under Section 2
(x) of Unaided Institutions Act-2015. These concepts have been
otherwise settled and well-known to the parties.
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7 Heard the learned counsel appearing for the Petitioner as
the insistence is to pass an interim order so prayed, in view of
subsequent development also. The Petitioner's application dated 30
July 2017 for transfer to GLC, submitted to Respondent No.5-the
unaided college. It is stated to be forwarded further to Respondent
No.2- the Director of Higher Education and the same is still pending
for further action. The apprehension is that in view of these
impugned Rules, the Petitioner's case may not be considered.
Therefore, the payer is made to direct the Respondents to consider the
Petitioner's case positively.
8 Mr. Acharya, the special Counsel for the State refers to the
two affidavits in reply filed only to oppose the interim reliefs. They
resisted the interim relief, so sought. No detail reply is filed to the
validity of the provisions, so raised. Therefore, we are permitting the
contesting Respondents to file their detailed reply to the validity, so
that at the stage of admission itself, we would dispose of this matter
finally.
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9 So far as the interim relief is concerned, we are not
inclined to grant any relief/prayer so made, for the following reasons-
a) The Institutions Act is for regulating the admissions and
fees for unaided private professional educational institutions in state
of Maharashtra. The "private professional educational institution" is
specifically defined in Section 2 (q) of Unaided Institutions Act-2015,
which excludes any such institution established, maintained or
administered by the Central Government, any State Government or
any local authority. This definition itself makes the position clear that
the private professional educational institutions are different for
various purposes, including for regulation of admissions and fees.
b) The admission process and related aspects are governed
differently of Aided Institutions/State Government Institutions and/or
of Private Institutions. The Act and the Rules in question, are
provided for the regulations and admissions only of unaided private
institutions. Keeping in mind the object and purpose of the Act, the
classification and/or class, so created for such admissions and
regulations of fees, at this stage cannot be stated to be unreasonable,
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unconstitutional and/or unjustifiable, or violative of Article 14 of the
Constitution of India. There is such case made out also, based upon
the Judgments so cited. All these Judgments are distinct and
distinguishable on fact.
c) We are concerned, at this stage, the aspect of transfer of
students from unaided to State or aided institution/college, so
referred in Rules. The plain reading of these Rules show that it deals
with the change of institution after first year. We are concerned with
the Petitioner, who after passing first year from unaided institution,
seeks transfer in Government College/Aided Institution. It makes the
position clear that such student shall not be transferred, at any stage,
and in any case, from unaided institution to Government and/or
Government Aided, Managed college/Institution. There is a further
provision, which according to us, cannot be stated inconsistent to the
Act, whereby it is clarified that the candidates from the Government
and/or Government Aided, University Departments may seek transfer
to the Unaided Educational Institution. This situation is different and
so also the requirement if and when occasion comes; the provision is
made only for the Government/aided institution. The Petitioners is
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not concerned with such situation. This, on the contrary, supports the
Act, as well as, the Rules to achieve the object of the Act.
d) The submission referring to various Supreme Court
Judgments, revolving around Articles 14, 21A and 29(2) of the
Constitution of India, at this stage, those are in our view, required to
be tested in the background of the facts and the Act. The principle of
Articles 14 and 21 of the Constitution of India so laid down, need no
discussion and it is a settled and unacceptable position of law. The
challenge to the Rules only without challenge to the Act and the
power so provided to the Authority, in no way breaches any provisions
of the Act.
e) The provisions of the Act/Rules are always, unless
declared illegal and/or bad in law, need to be respected, by all the
concerned. No case of violation of Article 21A or 29(2) of the
Constitution of India is made out.
10 Prima facie, considering the scheme, as well as, the settled
principle of law, revolving around Articles 14 and 21A of the
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Constitution of India, we see no case is made out by the Petitioner for
any interim relief so sought by whatsoever nature. The submission
that the meritorious candidates need to be given preference in any
Institution, whether aided and/or unaided, at any stage of career, is
unacceptable referring to the Rules in question. The whole admission
process and the further final list of the students in such aided and
unaided colleges are different. The Act/Rules are not applicable
retrospectively.
11 Therefore, taking overall view of the matter, we see no
case made out by the Petitioner for any interim relief. The prayer for
interim relief is, rejected. However, we are inclined to admit this
Petition. Order accordingly.
ORDER
a) Rule returnable six weeks.
b) Issue notice to the Advocate General.
c) The Respondents-State to file detailed reply within
four weeks from today. The rejoinder, if any, to be
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filed within two weeks thereafter.
d) Stand over to 27 September 2017, for final
disposal.
e) The parties to take appropriate steps accordingly.
f) All interim reliefs are rejected.
(BHARATI H. DANGRE, J.) (ANOOP V. MOHTA, J.)
