Bombay High Court High Court

G.H.R.Education Foundation … vs The State Of Maharashtra on 24 September, 2008

Bombay High Court
G.H.R.Education Foundation … vs The State Of Maharashtra on 24 September, 2008
Bench: F.I. Rebello, K.U. Chandiwal
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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                 WRIT PETITION NO.5450 OF 2008




                                                                   
    1) G.H.R.Education Foundation society
       having its Registered Office at




                                           
       Nagpur, Shraddha House, 6th Floor,
       Kingsway, Nagpur, District Nagpur,
       Through its Secretary.

    2) G.H.R. Education Foundation




                                          
       Society's G.H. Raisoni Institute
       of Engineering & Management,
       Pachora Road, Jalgaon - 425 002,
       Through its Principal.                    .. PETITIONERS

        VERSUS




                              
    1) The State of Maharashtra
                   
       Through Secretary,
       Department of Higher and
       Technical Education, Mantralaya,
       Annexe, Mumbai.
                  
    2) The Director of Technical
       Education, Govt. fo Maharashtra,
       Mumbai.

    3) The North Maharashtra University,
      


       Jalgaon, Dist. Jalgaon,
       Through its Registrar.                    .. RESPONDENTS
   



                               .....

    Shri P.M.Shah, Sr.Counsel h/f Mr.Nitin B. Suryawanshi,
    Advocate for petitioners;





    Shri N.B.Khandare, Govt. Pleader, for Resp.Nos. 1 & 2;
    Shri A.B.Girase, Advocate for Respondent No.3.

                               .....


                           CORAM:   F.I.REBELLO &





                                    K.U.CHANDIWAL,JJ.

                           Date :   24th SEPTEMBER,2008.


    JUDGMENT (PER:- F.I.REBELLO,J.):

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    .         Rule.        Heard forthwith.




                                                                                 
    2)        The       petitioner No.1 is a society, registered under

    the Societies Registration Act.                It has been recognized as




                                                        
    a     minority institution.            No Objection Certificate                 issued

by the Competent Authority dated 9th July, 2007 is annexed

to the petition. Petitioner No.2 is an educational

institution run by petitioner no.1-society. The Executive

Body of petitioner no.1 is the body of petitioner no.2.

The primary object of petitioner no.1 is to impart

education within the State of Maharashtra and presently it

is conducting various courses and running various colleges

at Nagpur, Jalgaon and Ahmednagar in the State of

Maharashtra.

3) The petitioners applied to All India Council for

Technical Education (A.I.C.T.E.) to run postgraduate

courses in Business Administration, i.e. M.B.A. and

Mechanical Engineering along with other courses, which are

being conducted by the petitioners in their existing

college. A.I.C.T.E. is constituted in pursuance of All

India Council for Technical Education Act, 1987. The

object of the A.I.C.T.E. is for the proper planning and

coordinate development of technical education throughout

the country, promotion of qualitative improvement of such

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education and proper maintenance of norms and standards in

the technical education system and the matters connected

therewith. A.I.C.T.E. is the final authority in respect

of granting recognition to the technical courses

throughout India. The law on this point is settled by the

Judgment of the Supreme Court in Jaya Gokul Education

Trust Vs. Commissioner & Secretary to Government Higher

Education Department, Thiruvanathapuram, Kerala, State and

Anr. – (2000) 5 SCC 231.





                                            
    4)        A.I.C.T.E.          by its communication dated 30th                       June,

    1998     addressed
                            
                             to     the   Principal         Secretary,           Higher         &

    Technical       Education and Employment Department, Govt.                                of
                           
    Maharashtra,          Mumbai, informed that they have approved the

    proposal        of petitioner no.1-soceity for starting                          courses

    in     M.B.A.         and Mechanical Engineering.                A copy        of     this
      


    communication          was    also addressed to the                petitioners            as
   



    also     to the Registrar of the concerned university in                                the

instant case Respondent No.3. The approval order clearly

sets out that the approval is for introduction of

additional courses for the academic year 2008-2009. In

the note to the Revised order it was set out that the

approval for the additional course(s)/Increase in

Intake/variation in intake is valid for two years from the

date of issue of the letter for getting affiliation with

respective university and fulfilling State Government

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requirements of admission. It is the case of the

petitioners that pursuant to the approval granted by

A.I.C.T.E., the petitioners were entitled to admit

students for M.B.A. and Mechanical Engineering courses.

According to the petitioners, admission to M.B.A. and

Mechanical Engineering courses is governed and controlled

by Respondent nos. 1 and 2. Respondent Nos. 1 and 2 are

the appropriate authority to frame the Rules, governing

admissions and which conducts Central Admission Process

(C.A.P.), in which students are allotted to various

colleges. Respondent No.3 is the affiliating body, who

conducts examinations and declares the results and confers

respective degrees on the students. For obtaining

admission in any Institution for the course in M.B.A. or

Mechanical Engineering, it is necessary for the candidates

of State of Maharashtra to undergo an examination, i.e.

Common Entrance Test (C.E.T.).

5) The schedule of C.E.T. was published by Respondent

No.2 in its notification dated 9.6.2008. As far as M.B.A.

course is concerned, admission to the said course was to

commence on 3.7.2008 and it was scheduled to be completed

by 30.08.2008. In respect of Mechanical Engineering

course, it was to commence on 16.6.2008 and was to be

completed by 15.09.2008. According to the petitioners,

pursuant to the approval by A.I.C.T.E. dated 30.06.2008,

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petitioner no.2 forwarded a communication/representation

dated 7.8.2008 to the Respondent No.1 informing about the

approval of A.I.C.T.E. and thereby requested that

petitioner no.2-college be included in the list of

institutions imparting education leading to M.B.A. and

Mechanical Engineering courses. Though the petitioners

have approached Respondent No.1 and 2 for inclusion of

name of petitioner no.2-college in the list of colleges in

Maharashtra State for admission of students to both the

courses, the name of petitioner no.2 was considered only

for the degree course of M.B.A. The Respondent Nos. 1

and 2 forwarded
ig the students through C.A.P. to the

petitioner no.2-college only for admission to M.B.A.

course. This is clear from the Government

Resolution/Circular dated 31.7.2008.

6) Petitioners, it is submitted, have already invested

huge amounts in the infrastructure and purchasing

equipments for mechanical engineering course. The

petitioners have also appointed required staff and

lecturers for imparting education, as AICTE has granted

permission to start the said course. As AICTE is final

authority for granting approval, according to the

petitioners, Respondent Nos. 1 to 3 ought to have granted

consequential permission to start the new course in

Mechanical Engineering. The respondents could not have

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ignored the same, considering the law laid down by the

Supreme Court in State of Maharashtra Vs. Sant

Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.,

reported in 2006 AIR SCW 2048. Another institution of the

petitioner no.1, namely G.H.Raisoni College of Engineering

at Nagpur, run by Ankush Shikshan Sanstha, a society which

is sister concern of petitioner no.1, was granted approval

on 30.06.2007 for two post graduation courses, i.e.

M.C.A. and M.Tech. Respondent nos. 1 and 2 permitted

both the courses in the said institution and the same is

reflected in Govt. Resolution dated 31.7.2008. The

action therefore
ig on the part of the respondents in not

granting permission/affiliation to the petitioners herein

is discriminatory and violative of Article 14 of the

Constitution of India.

7) In spite of repeated requests on the part of the

petitioners, Respondent nos. 1 and 2 did not forward any

students to the petitioner no.2-college for admission to

Mechanical Engineering course. Petitioner no.2, being

unaided minority institution, and as per its intake

capacity, is entitled to admit 60 students in its college

by following transparent admission process. In the list

of documents filed before this Court, they have annexed an

advertisement issued in Dainik Janshakti on 8.7.2008 for

inviting applications in the various faculties including

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Mechanical Engineering and M.B.A. The courses was started

in the month of August 2008 for the first term and the

examination are likely to be held in October 2008 and the

last date for submission of examination forms is 17th

September, 2008. It is in these circumstances that the

respondents have moved this Court for the reliefs as

prayed in the petition.

8) Reply has been filed on behalf of Respondent No.2

by Ajit Ramrao Thete, Joint Director of Technical

Education, Aurangabad. It is pointed out that, that

notification dated 9th June, 2008 would show that the IVth

and last round of admission to Engineering/Technology

courses in the State of Maharashtra has been conducted by

the Director as and by way of personal counselling from

25th to 28th August, 2008 and after this last round, no

admission whatsoever can be effected. In view of that, it

was not possible to add into the admission process even a

single new seat, whether as and by way of new Engineering

College or a new course in an existing Engineering College

or addition in the intake capacity of an old Engineering

college with old recognition and affiliated course.

Reference is made to the advertisement issued by

A.I.C.T.E. on 24.9.2007 wherein it is set out that

letters of approval issued after 30th June shall not be

valid for the current academic year, but shall be valid

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only for the next academic year. It is, therefore, set

out that all these colleges to whom letters of approval

have been issued by A.I.C.T.E. after 30th June, 2008,

those approvals are not valid for effecting admissions in

the current academic year 2008-2009, but valid for the

next two academic years. We may mention here itself that

in the said advertisement, the terminology used is as

under :

“The letter of Approval issued after 30th June

shall not be valid for the current academic year

but shall
ig be valid only for next two Academic

years.”

It is, therefore, clear that only those to whom letters of

approval are issued after 30th June, which cannot be

considered but those issued up to 30th June would be

entitled to admit students for the current academic year.

Reference is also made to the Judgment of the Full Bench

of this Court passed on 8.8.2008 and 22.8.2008 in Writ

Petition No. 3916 of 2001 and other petitions. Various

paragraphs from the said judgment have been quoted. We do

not find in any of the paragraphs any legal bar on the

respondents or on the petitioners admitting the students

for the academic year 2008-2009.

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9) Reply has also been filed on behalf of Respondent

No.3-university by Digambar s/o Maroti Mahajan, Section

Officer. It is pointed out that though the order was

passed by A.I.C.T.E. on 30th June, 2008, the petitioner

institution has not taken any steps for getting

affiliation till date and on this ground of delay alone,

the petition is liable to be dismissed. The State

Government, by letter dated 31.7.2008 has granted

permission to the petitioner institution for various other

courses, but the course of Mechanical Engineering has not

been included in the said list. In terms of the

Maharashtra

Universities Act, from the academic year

2001-2002, such permission of the State Government shall

be communicated to the university on or before 31st May,

of the year in which new college is proposed to be

started. Permission received thereafter shall be given

effect by the university only in the subsequent academic

year. The petitioner, as pointed out earlier, till

18.9.2008 has not received any permission/recognition

order and as such the University is not in a position to

grant affiliation for this academic year. As per the

norms prescribed by the AICTE as well as the university,

the student has to complete the term prescribed by the

AICTE as well as university. The first term of the

Engineering Course ends in the month of November. As per

the norms of the university, 80% attendance is necessary

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to grant the term. Reference is also made to the

provisions of Section 82 and 83 of the Universities Act.

It is, therefore, submitted that the petition ought to be

dismissed.

10) The questions for consideration before this Court

would be :

(i) After AICTE had granted approval on 30th

June, 2008, was the State Government within its

authority not to grant recognition to the

petitioners
ig for admitting the students to the

Mechanical Engineering course ?

(ii) If the petitioners have admitted the

students, was it in breach of the brochure and or

any other statutory provisions ?

(iii) What is the procedure that the petitioner

had to follow in admitting the students, and if

admitted, role of the respondents in allowing the

students to prosecute their studies and appear for

the examinations ?

11) In so far as the issue of recognition of the

petitioner by Respondent No.1 and affiliation by

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Respondent No.3 is concerned, in our opinion, once AICTE

granted approval, the said respondents are bound by what

is set out in the Judgment in the case of Sant Dnyaneshwar

Shikshan Shastra Mahavidyalaya (supra) as also the

Judgment of the Supreme Court in Jayu Gokul Educational

Trust (supra). Once permission is granted, it is neither

open to the State Government, nor to the university to

refuse permission or affiliation, as the case may be. The

State Government has no power to reject the prayer of the

institution or overrule the decision of N.C.T.E. In the

instant case, the State Government, to whom letter of

approval was

addressed, granted permission for M.B.A.

course, but did not communicate their decision for

granting permission to Mechanical Engineering course on

the spacious plea that the Brochure has already been

published and the names of the institution could not be

included. Such a plea is unavailable to the State

Government. The State Government, was, therefore, duty

bound to grant approval based on the approval granted by

AICTE in favour of the petitioners.

. In so far as Respondent No.3 is concerned, it is

true that the petitioners have not yet applied for

affiliation. The contention of the petitioners is that

they were waiting for the approval of the State Government

so as to apply for affiliation with Respondent no.3. As

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respondent no.3 has not granted approval, they did not

apply, but they would apply now considering that they have

already admitted the students and approval is for the

academic year 2008-2009. In so far as the university is

concerned, the Supreme Court in Sant Dnyaneshwar Shikshan

Shastra Mahavidyalaya (supra) has specifically set out

that once recognition has been granted by N.C.T.E, every

university is obliged to grant affiliation to such

institution and sections 82 and 83 of the University Act

do not apply to such cases.

.

Question No.1 is answered accordingly.

12) We then proceed to consider the process of

admission. We may first refer to the Govt. Resolution of

11th June, 2007 in the matter of giving recognition to the

educational institutions of minority societies, who wish

to acquire the status of religious/linguistic minority

institutes in the State. In terms of the said Government

Resolution, following paragraphs are relevant :

“(3) While giving admission to the first year of
the educational portion, it is binding on the
institute which has been given the status of

minority to give admission to at least 51% of the
students of the religion of which the minority
institute belongs. In case it is not possible to
get the students of that minority society to the
management, the concerned minority educational
institute can seek students from the State

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Government authorities.

(4)………………………………………..
(A)……………………………………….
(B)……………………………………….

(C)………………………………………

(5) All the minority students who are admitted

by management running the educational portion by
the prescribed method, as per merits and by
transparent admission method, shall be residents of
Maharashtra State as also it is incumbent that they
shall pass the Secondary School Education and

Higher Secondary Education Examination from
Maharashtra only.

(6) The management running the educational
portions in addition to school education shall, by
following the policy of the State Government of

provisions of prescribed percentage of admission to
every Department, the management shall give

admission to minimum 51% of the admission strength
to the students who are residents of Maharashtra.”

. It would therefore be clear that an institution

which has been granted minority status will have to comply

with the said directions.

. Next reference can be made to the brochure issued

by Respondent nos. 1 and 2. In terms of para 2.1 of this

brochure, seats available for admission through

Centralized Admission Process (C.A.P.) is set out. In so

far as unaided minority engineering colleges are

concerned, Maharashtra State seats would be 85% of CAP

Seats and All India seats on the basis of AIEEE would be

15% of the CAP seats. The CAP seats would be carved out

based on the formula given as under :

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“CAP Seats = Sanctioned Intake – (Minority Seats +

Institute level seats.)

13) We have then para 2.4 of the brochure, which sets

out the Seats as mentioned below are not covered under the

CAP and the respective institutions are the authority for

admissions to these seats. The candidates seeking

admission under these seats shall submit separate

application/s to the concerned admission

authority/authorities. In so far as unaided minority

Engineering

Colleges are concerned, the Admission

Authority is The Principal of the Un-Aided Minority

Engineering College. In so far as the seats to be filled

in at Institute level, it is to be decided by the

respective Minority Institute. We are not here

considering the seats over and above sanctioned intake.

Our attention was invited by counsel for the respondents

to admission of NRI candidates to point out that they are

eligible to apply only against Institute level seats.

Para 2.6.2 provides for allocation and reservation of

seats for admission through CAP for all types of

institutes and seats available for Institute level

admission/seats for Minority community in unaided

institutes. Under column 4 – Unaided Minority Colleges

Maharashtra State seats would be the CAP seats – 15% of

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CAP seats for AIEEE and they would be divided as 70% of

Maharashtra State seats coming under CAP, which are to be

divided under Home University and Other than Home

University.

14) From all the Paras of the Brochure what emerges is

that in so far as unaided minority Engineering colleges

are concerned, the procedure for filling in the seats

would be that the candidates have to directly apply to the

concerned authority/authorities. The allocation of seats

has to be decided by the concerned Admission Authority.

In

the instant case, according to the petitioners, under

the sanctioned strength of 60 students in terms of the

approval granted by Pravesh Niyantran Samiti in respect of

their sister institution, they have reserved admission for

minority students as 51% and admissions at institute level

at 20% and admissions through CAP or governing CET at 29%.

Therefore, out of 60 seats available, 31 to be filled in

from minority community; 12 to be filled in at institute

level; and remaining 17 seats were divided – 3 for AIEEE;

10 for Home University; and 4 for other than Home

University. Thus, in so far as 31 seats and 12 seats are

concerned, the authorized authority for granting admission

is the Principal of the unaided minority institution.

Merit being a criterion, as set out by the Supreme Court

in T.M.A. Pai Foundation Vs. State of Karnataka – (2002)

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8 SCC 481, reiterated in Islamic Academy of Education and

Anr. Vs. State of Karnataka and Ors. – (2003) 6 SCC

697; and further reiterated in the case of P.A.Inamdas

Vs. State of Maharashtra & Ors.- (2005) 6 SCC 537. The

seats to be filled in by the authorized Admission

Authority, will have to be based on merit of the

candidates who have applied and in terms of the Rules for

admission.

15) In so far as seats to be filled in through CAP,

admittedly, the Respondent nos. 1 and 2 have not made

available

the students to the said seats. The last date

for admission was extended from 8.9.2008 to 15.9.2008. In

these circumstances, the institute could have filled in

the seats again by following the order of merit and the

other rules. In so far as this aspect is concerned, the

same is covered by Para 6.8 of the brochure, which sets

out as under :

“The Principal/Director of the un-aided institution

has to carry out the admissions for the vacancies

after the CAP Round-IV as per the guide lines given

in Annexure-III.”

16) The petitioners have admitted the students without

getting approval of Respondent nos. 1 and 2 or

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affiliation from Respondent no.3 university. The fact,

however, remains that the petitioners had approached the

Respondent no.2 for approval, which, till date has not

been granted. Thereafter, they have moved this Court on

11.09.2008 and since then the Court is seized of the

matter. Once the Respondents were bound to grant approval

and or affiliation, as AICTE had granted permission to

start the courses from the academic years 2008-2009, it

was open for the petitioners, being a minority un-aided

institute, considering the brochure issued by the

Respondent nos 1 and 2, to have commenced the admission

process subject
ig to the procedural requirements to be

completed and further admitting the students in order of

merit and in terms of the brochure as also the Govt.

Resolution of 11th June, 2007.

17) The petitioners to apply to the Respondent No.3 for

affiliation. On the petitioners so applying, considering

Para 78 of the Judgment in Sant Dnyaneshwar (supra), the

Respondent No.3-university to grant affiliation. This

affiliation would be subject to the petitioner and the

students who have been admitted being eligible and

fulfilling their requirements, if any.

18) In terms of the Govt. Resolution dated 11.6.2007,

the petitioners being minority institution will have to

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admit at least 51% of students. Though the Govt.

Resolution only speaks of religious minority, considering

that minority is both for religious and linguistic

minority, para 3 will have to be read as applicable to

both religious and linguistic minorities. The 20%

management quota will have also to be filled in

considering the brochure as also the other seats

considering para 6.1.




    19)       The        issue       as     to whether the           students         meet       the




                                                 
    requirements           for admission will have to be considered                                by

    the     Respondent
                               
                                 No.2.        The petitioners,            therefore,           will

    have     to submit the requisite information and                               particulars
                              
    to     the Respondent No.2 within seven days from today.                                     The

Respondent No.2 thereafter, within fifteen days of receipt

of such information and particulars, to decide as to

whether the students have been admitted in terms of the

Rules and the brochure and communicate the decision to the

petitioners and Respondent no.3.

20) The petitioners to apply to the Respondent no.3 for

affiliation and the Respondent no.3, considering the

Judgment in Sant Dyaneshwar Shikshan Shastra Mahavidyalaya

(supra) to grant affiliation. It will be open to the

Respondent no.3 to decide the eligibility of the students

for admission based on the report submitted by the

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Respondent no.2 and it will also be open to them to

consider the eligibility of admission in the context of

the rules of the University.

. Questions 2 and 3 answered accordingly.

21) In the light of the above, Rule is made absolute in

the terms of what is set out hereinabove.

(K.U.CHANDIWAL,J.) (F.I.REBELLO,J.)

bdv/uniplex/wp5450.08

Authentic copy

(BD VADNERE,PA)

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