Bombay High Court
Dr. Bharati Gajanan Sadabal vs Government Of India, Through Its ... on 23 November, 2017
Bench: B.P. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 7248 OF 2017
AND
WRIT PETITION NO. 7407 OF 2017
WRIT PETITION NO. 7248 OF 2017
Dr. Ku. Ashifa Sharif Sheikh,
aged 28 years, occupation -
Student, r/o 39, Adarsha Colony,
Jafar Nagar, Nagpur 400 013. ... PETITIONER
Versus
1. Government of India
through its Secretary,
Ministry of Ayurveda, Yoga
and Naturopathy, Unani,
Siddha and Homeopathy,
Ayush Bhawan, B-Block,
G.P.O. Complex, I.N.A.
New Delhi 110 023.
2. State Common Entrance Test
Cell, Maharashtra State, Mumbai,
through its Commissioner, 305,
Government Polytechnic Building,
Aliyawar Jung Marg, Bandra (E),
Mumbai 400 051.
3. Government Ayurved College,
Nagpur through its Dean, Raghuji
Nagar, Nagpur.
4. Dr. Harsha Pundlikrao Gohatre,
aged - major, student first year
M.S. (Shalya-Trantra), Government
Ayurved College, Raghuji Nagar,
Nagpur.
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5. Dr. Vaishali Krishnaji Gajbhiye,
aged - major, occupation -
Student, first year M.D.
(Kayachikitsa), Government
Ayurved College, Raghuji
Nagar, Nagpur. ... RESPONDENTS
Shri B.G. Kulkarni, Advocate for the petitioner.
Shri Ulhas Aurangabadkar with Mrs. Mugdha R. Chandurkar,
Advocates for respondent No.1.
Shri N.S. Khubalkar, Advocate for respondent No. 2.
Mrs. M.A. Barabde, AGP for respondent No. 3.
Shri Vipul Bhise, Advocate for respondent Nos. 4 & 5.
.....
WRIT PETITION NO. 7407 OF 2017
Dr. Bharati Gajanan Sadabal,
aged 31 years, occupation -
Student, r/o Ward No. 1, Hata-
Andura, Tah. Balapur,
District - Akola. ... PETITIONER
Versus
1. Government of India
through its Secretary,
Ministry of Ayurveda, Yoga
and Naturopathy, Unani,
Siddha and Homeopathy,
Ayush Bhawan, B-Block,
G.P.O. Complex, I.N.A.
New Delhi 110 023.
2. State Common Entrance Test
Cell, Maharashtra State, Mumbai,
through its Commissioner, 305,
Government Polytechnic Building,
Aliyawar Jung Marg, Bandra (E),
Mumbai 400 051.
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3. Government Ayurved College,
Nagpur through its Dean, Raghuji
Nagar, Nagpur. ... RESPONDENTS
Shri B.G. Kulkarni, Advocate for the petitioner.
Shri Ulhas Aurangabadkar with Mrs. Mugdha R. Chandurkar,
Advocates for respondent No.1.
Shri N.S. Khubalkar, Advocate for respondent No. 2.
Mrs. M.A. Barabde, AGP for respondent No. 3.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
NOVEMBER 23, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Rule is made returnable forthwith and heard finally
with the consent of Shri Kulkarni, learned counsel for the
petitioner, Shri Aurangabadkar with Mrs. Chandurkar, learned
counsel for respondent No. 1, Shri N.S. Khubalkar, learned
counsel for respondent No. 2, Mrs. Barabde, learned AGP for
respondent No. 3 and Shri Bhise, learned counsel for
respondent Nos. 4 & 5 in Writ Petition No. 7248 of 2017.
2. Respondent Nos. 4 & 5 in Writ Petition No. 7248 of
2017 are the students admitted in respondent No. 3 - College,
allegedly by extending to them some concession i.e. relaxation
in marks. However, we find that during hearing, only prayer
clause (iii) in Writ Petition No. 7248 of 2017 is pressed before
us. Accordingly, we restrict the consideration to the aspects
arising out of that prayer clause (iii) or prayer clause (ii) in the
other petition.
3. The petitioner Dr. Ku. Ashifa Sheikh in Writ Petition
No. 7248 of 2017 is at Sr. No. 2 while the petitioner Dr. Bharati
Sadabal in other writ petition is at Sr. No. 4. If both of them
are held eligible for admission at Institution Level Rounds in
respondent No. 3 - Government Ayurved College, it is not in
dispute that in that event, there is one more student above Dr.
Ku. Ashifa, who comes at Sr. No. 1 and becomes eligible for
admission over and above her claim. Similarly, at Sr. No. 3,
there is another student, who in that event becomes eligible for
admission by getting precedence over the petitioner Dr. Bharati.
These admissions are contingent upon answer to question
whether the petitioners before this Court or then the other two
students who have performed better than the respective
petitioners are eligible for consideration at institute level
admissions in respondent No. 3 - Government Ayurved College,
Nagpur.
4. The admissions are subject to Centralized
Admission Process (CAP) as per Maharashtra Act No. XXVIII of
2015 i.e. the Maharashtra Unaided Private Professional
Educational Institutions (Regulation of Admissions and Fees)
Act, 2015 (hereinafter referred to as 2015 Act). This Act in
terms i.e. expressly does not take into its fold Government
Ayurved Colleges. The Act allows framing of Rules under
Section 23 and Regulations under Section 24. The power to
make rules under Section 23 is with the State Government. In
exercise of this power, rules have been framed on 06.10.2016
and these rules are called as the Maharashtra Unaided Private
Professional Educational Institutions (Regulation of Admission
to the Post-graduate Ayurved, Unani and Homeopathy Courses)
Rules, 2016 (hereinafter referred to as 2016 Rules). These
Rules also do not expressly apply to respondent No. 3 - College.
However, on 16.12.2015 i.e. after coming into force of the Act
and before coming into force of the Rules, State Government
has issued a Government Resolution and has applied said Act
also to Government Colleges like respondent No. 3. These facts
are not in dispute.
5. The submission of Shri Kulkarni, learned counsel is,
by issuing such Government Resolution, statutory provisions
contained in 2015 Act cannot be amended and hence that
Government Resolution cannot be relied upon before this Court
to show that mechanism prescribed by 2015 Act or then 2016
Rules is being used even for admissions to respondent No. 3 -
College. He submits that when 2015 Act or 2016 Rules are
conspicuously silent about Government Colleges, Article 14 of
the Constitution of India, must apply and students like the
petitioners who have got better merit, therefore, must be held
as eligible for admission. He also submits that after institution
level admissions, when notice was published on 14.11.2017 for
admissions to Post-graduate Courses in respondent No. 3 -
College at institution level, the petitioners have applied and
hence in terms of Article 14 and other enabling provisions, their
better candidature must be considered. He submits that the
petitioners have not submitted any status retention form and in
terms of scheme flowing from above mentioned Act or Rules,
they are entitled to an opportunity to better their prospects and
hence they can be admitted to Government Ayurved College at
Nagpur. He submits that the petitioner Dr. Ku. Ashifa is
presently admitted at Government Ayurved College, Nanded
and the petitioner Dr. Bharati is admitted in Government
Ayurved College, Osmanabad.
6. Shri Aurangabadkar, Shri Khubalkar, learned
counsel and Mrs. Barabde, learned AGP for the respondents
submit that the Government Resolution dated 16.10.2015 has
not been questioned at any point of time and is being
implemented since then. The petitioners have taken advantage
of that Government Resolution and accordingly have been
admitted in Government Colleges by clearing CAP rounds.
They cannot, therefore, turn around and at this stage question
the use of 2015 Act or then 2016 Rules, to claim admission to
respondent No. 3 - College. It is further pointed out that
admissions need to be completed in time bound manner in
prescribed schedule as directed by the Hon'ble Apex Court and
hence various contingencies which are inherent in the
admission procedure necessitate selection of some stage at
which the admissions till then need to be finalized. The seats
remaining vacant thereafter are only permitted to be filled-in at
institution level and this "Scheme" is again not in challenge. If
the seats available at institute level are not allowed to be filled
in within the stipulated time or then the students already
admitted in CAP rounds in various other institutions are
permitted to participate therein, in the absence of any express
stipulations, admissions will never come to an end and ensuing
chain reactions will result in multiple cycles of admissions in
which, because of mandate of Article 14 of the Constitution of
India, at each stage the applications may be required to be
invited. According to them, the entire admission process then
may not be over within time schedule mandated by the Hon'ble
Apex Court. Lastly it is pointed out that in any case, here if this
Court holds in favour of the petitioners, the candidate who has
more marks and, therefore, stands at serial number above Dr.
Ashifa or then other candidate who stands above Dr. Bharati,
will get advantage and hence chance of the petitioners getting
the seat are remote. They, therefore, pray for dismissal of
present petitions.
7. Shri Kulkarni, learned counsel, in reply, submits
that the omission in a Statue or Rules cannot be supplemented
by Government Resolution and in any case by Government
Resolution, Article 14 of the Constitution of India cannot be
violated. He contends that apprehension of chain reaction
resulting in multiple rounds of admission process is
misconceived and cannot be the reason to defeat the mandate
of said Article. He further adds that because there are two
seats at Respondent No. 3 - College, petitioner Dr. Ashifa has
full chance of getting admission. He submits that as the
petitioners have not submitted status retention form, they are
eligible and accordingly responded to the advertisement dated
14.11.2017.
8. The arguments itself show that both the petitioners
before this Court have gone through CAP round as per Act No.
28 of 2015 and 2016 Rules framed thereunder. This obviously
is on account of Government Resolution dated 16.12.2015.
The petitioners have not questioned the Government Resolution
dated 16.12.2015 or then any provision in Act No. 28 of 2015
or then 2016 Rules.
9. The petitioners admittedly have not submitted
status retention form. However, looking to the mandate and
scheme of 2016 Rules and 2015 Act, it is apparent that CAP
admissions are over in the manner prescribed in Rule 8 up to
Rule 12. Rule 13 then speaks of admission in institution quota
and vacancies. These admissions begin after CAP rounds. The
admissions are to be carried out in transparent manner strictly
as per State Merit of the candidates who have applied to the
institution. The institutions have to invite applications by
notifying schedule of admission along with number of seats and
the aspirant has to apply to the Principal of the concerned
institution. Last sub-rule therein i.e. Rule 13(i) provides that if
any CAP seat remains or become vacant after the CAP Rounds,
then the same needs to be filled in by the candidate from the
same category for which it was earmarked during the CAP. It
further prescribes that if the seats remain/ become vacant after
Personal Preference round i.e. final round then the seats shall
be filled on the basis of inter-se-merit of the candidate.
10. Rule 14 is about Institution Level Round. It
contemplates that if the seats remain vacant after last CAP
Rounds, the seats are to be filled in by the institute by inviting
applications from desirous candidates who have cleared CET.
The admissions are to be made on the basis of inter-se-merit of
CET of the applicants.
11. Vide Government Resolution dated 16.12.2015, the
fact that admissions to unaided institutions are required to be
made as per Section 10 of 2015 Act through CAP has been
noticed with an observation that only private, unaided or
minority educational institutes are subjected to it. The
government has then pointed out that apart from such
educational institutes, such one window admission process
(CAP) also needed to be used for effecting admissions to
Government, Government aided and Municipal Corporation
Colleges running professional courses. Accordingly, the
Government decisions stipulates adoption of very same
procedure as laid in 2015 Act. In other words, briefly it
subjects Government, Government aided colleges and
Municipal Corporation Colleges also to 2015 Act and, therefore,
to 2016 Rules.
12. This Government Resolution is not in question
before this Court. On the contrary, as pointed out by the
learned respective counsel for the respondents, the petitioners
have accordingly participated in CAP and on account of this
Government Resolution, could get admission in Government
Ayurved Colleges at Nanded and Osmanabad respectively.
Having secured that admission, now they are trying to strike at
the root thereof by pointing out that this Act and Rules cannot
be used to effect admissions to Government Ayurved Colleges.
The contention, therefore, is erroneous and unsustainable. The
petitioners bank upon their admissions in Government College
at Nanded and Osmanabad and seek betterment of their
prospects by shifting to other Government College. If this
contention is accepted, their admissions at Nanded and
Osmanabad itself becomes bad.
13. In this background, it is apparent from the Scheme
of the Act and the Rules as also AIA-PGET- 2017 Brochure,
which contains important information that provisions give an
option to the candidate to submit status retention form during
CAP rounds if he is satisfied with the admission i.e. if he does
not want to better his prospects further. Only candidates who
have submitted such forms, are eliminated from further CAP On
line round as per Rule 8.3. As per Rule 8.3, those who do not
submit status retention form, are eligible for personal
counselling round which is last or end of CAP. The brochure
does not speak of the Institution Level admission at all.
14. However, that by itself, cannot be said to be
decisive in this matter. The brochure is subject to 2015 Act and
2016 Rules as also Government Resolution dated 16.12.2015.
Respondent No. 3 - College, therefore, has been submitted to
CAP Rounds and, therefore, to Institution Level Rounds also.
The petitioners do not question submission of respondent No. 3
- College to such institution round of admissions. However,
the Scheme of the Act and Rules, to bring an end logically to
the CAP rounds and thereafter to throw open vacant seats at
institution level, cannot be lost sight of. If this is not done, the
admission process will never come to an end and the
candidates who have not submitted status retention form, will
again participate in Institutional Level Rounds for betterment of
their admissions. With the result, if they succeed in getting
admission, thereafter seats allotted to them in CAP round will
become vacant and will again be required to be thrown open
after Institution Level Round is over. Thus, such seats may be
required to be advertised again. In each process, some vacancy
in some college will occur and will need a fresh admission
process.
15. We have expressly inquired whether seats of
students who have secured their admission in CAP round
against CAP vacancy but have not submitted status retention
form are treated as vacant and, therefore, are again available
for consideration/ counselling at Institution Level. All the
learned counsel unanimously answered the question in
negative. They submitted that once a student gets admission
against such seat, the seat ceases to be vacant seat and is not
subjected to institution level admission. This answer, therefore,
shows that if because of mandate of Article 14, such a student
shifts to some other college, his seat in his original college will
become vacant and will again required to be advertised. This
may go on, therefore, in cycles or rounds and the end to
admission process entirely as such within reasonable or
stipulated time, may never be reached. Not only this, student
getting admission in institutional round may also vie for such
CAP vacancy contending that student with less merit than him/
her cannot be admitted against that vacancy.
16. We, therefore, find justification in
compartmentalization of admission process. After the CAP
rounds, seats remaining vacant are subjected to institutional
level and, therefore, those who have not secured admission till
then anywhere can only appear in it. The candidates like the
petitioners who have already secured admission on their merit
in CAP are barred and not eligible. This appears to be a logical
solution which is must if the education of admitted student has
to start within stipulated time. The completion of admission
process in time bound manner aims at it. Division Bench of this
Court in Raju Gajanan Koparde vs. State of Maharashtra,
reported at (2006) 6 Mh. L.J. 518, in paragraphs 16 & 17
reaches similar conclusions while emphasizing importance of
time bound completion of admission process. There no doubt
Rule 13 of Rules prescribing admission to engineering courses
contains an express embargo and debars admitted candidate
from further process of admission, principles illustrated also
govern the present situation. Scheme in Clause 8.1 of AIA-
PGET 2017 shows that on the basis of CET, in CAP final or last
round of admission is by personal counselling. Clause 8.5.1 &
8.5.2 together show that seats occupied by students in earlier
CAP rounds where status retention form is not submitted are
available in this final round. However, clause 8.1 itself
mandates that during seat allotment in final round, no fresh
vacancies in allotments in earlier round are envisaged. AIA -
PGET - 2017 does not extend to admissions at institution level.
All seats remaining vacant after this final CAP round qualify for
admission at institution level under Rule 14 of 2016 Rules.
Concept of status retention form, therefore, looses its relevance
after CAP rounds. Vacant seats constitute an entirely different
sphere distinct from CAP admissions. Admissions made in CAP
are not contingent upon institutional admissions. Bar as seen
in Rule 13 of Engineering Admission Rules in Raju Gajanan
Koparde vs. State of Maharashtra (supra), therefore, is also
apparent in the present matter.
17. We, therefore, find that by Government Resolution
dated 16.12.2015, the State Government has provided a
transparent and non arbitrary mechanism for admission to its
colleges i.e. Government Colleges, Government aided colleges
or the colleges run by local authorities. We do not see any
justification in argument that it violates mandate of Article 14
of the Constitution of India. The petitioners are, therefore, not
eligible to participate in Institutional Level Round insofar as
respondent No. 3 - College is concerned.
18. Accordingly, writ petitions are dismissed. Rule
discharged. Needless to mention that interim orders, if any,
stand vacated. However, in the facts and circumstances of the
case, there shall be no order as to costs.
JUDGE JUDGE
******
*GS.
