Bombay High Court
Miss. Umaisa Ahmed D/O Shoel Ahmed vs The State Of Maha. Thr. Secretary, ... on 24 March, 2021
Bench: S.B. Shukre, Avinash G. Gharote
(1) 1.wp.3801.2017
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
WRIT PETITION NO.3801 OF 2017
Umaisa Ahmed d/o Shoel Ahmed
Vs.
The State of Maharashtra through its Secretary, Department of Higher and Technical
Education, Mantralaya, Mumbai and others
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Abdul Subhan, Advocate for petitioner.
Shri A. A. Madiwale, AGP for respondent nos.1 to 3.
Shri H. S. Chauhan, Advocate for respondent no.4.
Shri Nitin P. Lambat, Advocate for respondent no.6.
CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE, JJ.
DATED : 24/03/2021
Hearing is conducted through Video
Conferencing and all the learned Advocates agreed that
the audio and visual quality was proper.
2. Heard Shri Abdul Subhan, learned counsel
for the petitioner and Shri Madiwale, learned AGP for
respondent no.2.
3. This petition has been filed on two grounds.
First ground is that, the minimum eligibility criteria for
securing admission to graduate Engineering course, as
prescribed by AICTE - respondent no.6, is passing with
minimum 45 % of marks in subjects Physics, Chemistry
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and Mathematics, But, respondent no.2 - the State
Directorate of Technical Education has raised the passing
percentage in these subjects to 50 %, which is not
permissible in view of the law laid down by the Hon'ble
Apex Court in the case of State of T. N. and another Vs.
Adhiyaman Educational & Research Institute and others ,
(1995) 4 SCC 104 and also State of Maharashtra Vs.
Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya and
others, (2006) 9 SCC 1. The second is that, the subject
of Engineering qualifying itself to be called as vocational
subject and if the marks of Engineering Graphics are
considered, the percentage of the marks secured by the
petitioner in three subjects namely Physics, Mathematics
and Engineering Graphics would be about 56 %, thereby
making petitioner eligible to secure admission to
graduate engineering course.
4. According to Shri Lambat, learned counsel
for respondent no.6, the first ground is not tenable at
law and so also Shri Madiwale, learned AGP submits on
similar lines.
5. So far as the first ground raised in this
petition is concerned, we do not find any merit in the
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same. In the case of Adhiyaman Educational & Research
Institute and others (supra) itself, the Hon'ble Apex
Court has held that if there are more applicants than the
available seats, the said Authority has the power to lay
down higher standards or qualifications from those laid
down by the Central Authority. Then, in the case of Dr.
Preeti Srivastava and another Vs. State of M. P. and
others, (1999) 7 SCC 120 in paragraph 39, the Hon'ble
Supreme Court has held that in every case the minimum
standards as laid down by the Central Statute or under
it, have to be complied with by the State while making
admissions. The Hon'ble Apex Court has further held that
the State may, in addition, lay down other additional
norms for admission or regulate admissions in the
exercise of its powers under entry 25 List III in a manner
not inconsistent with or in a manner which does not
dilute the criterion so laid down. Even in the subsequent
decision rendered in the case of Visveswaraiah
Technological University and another Vs. Krishnendu
Halder and others, (2011) 4 SCC 606, similar view has
been taken by the Supreme Court. The Supreme Court
in paragraph 13 observed that the first and foremost
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object behind fixing of eligibility criteria higher than
those fixed by AICTE is twofold. It found that the first
object was to maintain excellence in higher education
while ensuring that there is no deterioration in the
quality of candidates participating in professional
Engineering courses. The second object, as pointed out
by the Supreme Court, is to enable the State to shortlist
the applicants for admission in an effective manner,
when there are more applicants than available seats.
Thereafter, the Hon'ble Supreme Court went on to hold
that once the power of the State and the examining
body to fix higher qualifications is recognized, the rules
and regulations made by them prescribing qualifications
higher than the minimum suggested by AICTE, will be
binding and will be applicable in the respective State,
unless AICTE itself subsequently modifies its norms by
increasing the eligibility criteria beyond those fixed by
the University and the State. The Supreme Court also
explained the law laid down in paragraph 14, being
relevant are reproduced as under:-
"14. The respondents (colleges and the students)
submitted that in that particular year (2007-2008)
nearly 5000 engineering seats remained unfilled. They
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contended that whenever a large number of seats
remained unfilled, on account of non-availability of
adequate candidates, paras 41(v) and (vi) of
Adhiyaman would come into play and automatically the
lower minimum standards prescribed by AICTE alone
would apply. This contention is liable to be rejected in
view of the principles laid down in the Constitution
Bench decision in Preeti Srivastava (Dr.) and the
decision of the larger Bench in S.V. Bratheep which
explains the observations in Adhiyaman in the correct
perspective. We summarise below the position,
emerging from these decisions :
(i) While prescribing the eligibility criteria for
admission to institutions of higher education, the
State/University cannot adversely affect the
standards laid down by the Central Body/AICTE.
The term "adversely affect the standards" refers
to lowering of the norms laid down by Central
Body/AICTE. Prescribing higher standards for
admission by laying down qualifications in
addition to or higher than those prescribed by
AICTE, consistent with the object of promoting
higher standards and excellence in higher
education, will not be considered as adversely
affecting the standards laid down by the Central
Body/AICTE.
(ii) The observation in para 41(vi) of Adhiyaman
to the effect that where seats remain unfilled,
the State authorities cannot deny admission to
any student satisfying the minimum standards
laid down by AICTE, even though he is not
(6) 1.wp.3801.2017
qualified according to its standards, is not good
law.
(iii) The fact that there are unfilled seats in a
particular year, does not mean that in that year,
the eligibility criteria fixed by the
State/University would cease to apply or that
the minimum eligibility criteria suggested by
AICTE alone would apply. Unless and until the
State or the University chooses to modify the
eligibility criteria fixed by them, they will
continue to apply in spite of the fact that there
are vacancies or unfilled seats in any year. The
main object of prescribing eligibility criteria is
not to ensure that all seats are in colleges are
filled, but to ensure that excellence in standards
of higher education is maintained.
(iv) The State/University (as also AICTE) should
periodically (at such intervals as they deem fit)
review the prescription of eligibility criteria for
admissions, keeping in balance, the need to
maintain excellence and high standard in higher
education on the one hand, and the need to
maintain a healthy ratio between the total
number of seats available in the State and the
number of students seeking admission, on the
other. If necessary, they may revise the eligibility
criteria so as to continue excellence in education
and at the same time being realistic about the
attainable standards of marks in the qualifying
examinations."
(7) 1.wp.3801.2017
6. Thus, it would be clear that the State can
always prescribe higher eligibility criterion as such
prescription helps in improving the standard of
education. This principle of law has also been followed
in a decision rendered in the case of Dr. Keval S/o
Rameshrao Dhone and others Vs. Kasturba Health
Society's Mahatma Gandhi Institute of Medical Sciences,
Sevagram, Wardha and others, (2017) 4 Mah. L.J. 837,
delivered by another Division Bench of this Court of
which one of us was of a party. We therefore, find that
the first ground on which this petition rests is devoid of
any merit and it stands rejected.
7. As regards Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya (supra), we are of the view that it
is on different subject. The issue therein has been as to
whether or not the Central law occupies wholly and
completely the field and whether there is any residuary
power to enact laws under entry No.25 List III of the
Constitution of India. This is not the issue involved in
this petition, rather the issue is about the power of the
State to prescribe higher criterion of eligibility. This
issue, as stated by us earlier, has been dealt with and
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explained in the judgment of Adhiyaman Educational &
Research Institute and others (supra) and Visveswaraiah
Technological University and another (supra) and
therefore, we find that said case would render no
assistance to the petitioner.
8. So far as the second ground is concerned,
we are of the view that the State Government must come
out with a specific reply as regards the same, in view of
the fact that while giving interim relief to the petitioner,
this Court in its order passed on 07.09.2017 had
observed as follows:
"Even today few seats are lying vacant in First Year
B.E. Course. We, therefore, direct respondent no.3
to provisionally grant admission to petitioner in
First Year Engineering Course at her risk and at her
cost".
9. After passing of this order, the State
Government did not come up with any specific stand and
even today has not stated as to whether or not, by way of
concession and a special case, it would allow the
petitioner to complete her education in B.E. Engineering
course.
(9) 1.wp.3801.2017
10. At this juncture, learned counsel for the
petitioner submits that some time may be granted to the
State to make its stand specific in the matter, in order to
save the academic year of the petitioner, and the
petitioner be permitted to appear at the course and final
year examination of B.E. course and tomorrow is the last
date for issuance of admission card. We are not inclined
to grant such a request and there is a reason for this. Up
till now, petitioner has enjoyed the benefit of the interim
relief and has completed three years of course. Now, the
petitioner is desirous of appearing at the final year
examination. If, the State does not give any concession
to the petitioner, the result in this case would be that of
dismissal of the petition. If that happens, and the
petitioner is already permitted to appear at the final year
examination, it would cause permanent damage to the
petitioner. But, if tomorrow the State is agreeable to give
concession to the petitioner, this petition could be
allowed on the basis of such concession. In such a case,
the petitioner would have to skip just one examination
and the damage caused thereby would be temporary in
nature. Therefore, we would now take up this petition
(10) 1.wp.3801.2017
for final disposal on the next date on the issue referred to
earlier.
Stand over to 30.03.2021.
JUDGE JUDGE
Sarkate
