1 CWP No. 17284 of 2008
HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
***
CWP No. 17284 of 2008
Date of Decision: 21st November, 2008.
***
Association of Education Colleges (Self Financing) of Haryana, registered
office at Swami Devi Dyal College Campus, Village Golpura, Barwala
District Panchkula through its General Secretary V.K.Sharma, Tulsi
College of Education for Women, Hisar Road, Ambala City.
….Petitioner.
Versus
1. State of Haryana through the Secretary to Government of Haryana ,
Department of High Education, Haryana, Chandigarh and others.
…Respondents.
***
CWP No.16171 of 2008
The Self-Financed B-Ed Colleges Association Punjab (Regd.)
Versus
The State of Punjab and 2 others
….
CWP No.18922 of 2008
Kirandeep Kaur and 5 others Versus State of Punjab and
others.
CWP No. 16893 of 2008.
Divya Shiksha Gurukul College of Education Vs. State of Punjab and
another.
CWP No.14116 of 2008
New Gobind Public Welfare Society and another Vs State of Punjab and
others.
….
CWP No.17376 of 2008
H.K.L.College of Education and 19 others Vs. State of Punjab and others.
***
2 CWP No. 17284 of 2008
CWP No.16860 of 2008
Sewa Devi S.D.College of Education Versus State of Punjab and others
….
CWP No.17315 of 2008
M.R.College of Education and others Vs. State of Punjab and another.
….
CWP No.18933 of 2008
Ishwar and others Versus State of Haryana and another
….
CWP No.19480 of 2008
Sushila Devi and 6 others Versus State of Haryana and others
….
CWP No.17938 of 2008
Narender Kaur and others Versus State of Haryana and others
….
CWP No.19541 of 2008
Amita Singh and others Versus State of Haryana and another
….
CWP No.19585 of 2008
Ruchika and others Versus State of Haryana and another
….
CWP No.18859 of 2008
Shashi Mehta and others Versus State of Haryana and others
….
CWP No.18980 of 2008
Geetu and others Versus State of Haryana and others
….
CWP No.19040 of 2008
Anju and others Versus State of Haryana and others
….
CWP No.19207 of 2008
Kiran Yadav and others Versus State of Haryana and others
….
CWP No.19232 of 2008
3 CWP No. 17284 of 2008
Meenakshi Nadal and others Versus State of Haryana and another
….
CWP No.19254 of 2008
Vanita Rohawal and others Versus State of Haryana and another
….
CWP No.19268 of 2008
Meenu Datta and others Versus State of Haryana and others
….
CWP No.19300 of 2008
Sarita Kumari and others Versus State of Haryana and another
….
CWP No.19312 of 2008
Uma Rani and others Versus State of Haryana and another
….
CWP No.19341 of 2008
Kavita and others Versus State of Haryana and others
….
CWP No. 19618 of 2008
***
Isha and others Versus State of Haryana and others.
***
Present: For the Petitioners.
Shri Rajiv Atma Ram, Sr.Advocate, with
Shri Daman Dhir, Advocate.
Shri Mukul Aggarwal, Advocate, for
Shri Ashok Aggarwal, Sr.Advocate, for the petitioners.
Shri Animesh Sharma,Advocate;
Ms. Madhu P.Singh, Advocate.
Mr. Animesh Sharma, Advocate;
Shri R.K.Girdhar, Advocate;
Shri Anil, Chawla, Advocate;
Shri Vijay Sharma, Advocate;
Shri Manjeet Singh, Advocate;
Shri Rajbir Sehrawat, Advocate;
Shri Rakesh Nehra, Advocate;
Shri Manjeet Singh, Advocate;
Shri Sanjiv Dahiya, Advocate;
4 CWP No. 17284 of 2008
Shri S.P.Khatri, Advocate;
Shri Varun Gupta, Advocate;
Shri J.S.Thind, Advocate;
Shri Hari Om Attri; and
Shri Akshay Bhan, Advocate.
FOR THE RESPONDENTS.
Shri Salil Sagar, Addl: A.G.Punjab;
Shri Kanwaljit Singh, Senior Advocate with
Ms. Aman Sibia, Advocate.
Shri Vinod S.Bhardwaj, Advocate;
Shri Rameshwar Malik, Addl: A.G.Haryana’
Dr.Balram Gupta, Sr.Advocate, with
Shri Anurag Goyal, Advocate; and Shri S.S.Brar, Advocate.
****
CORAM: Hon’ble Mr. Justice T.S.Thakur, CJ and
Hon’ble Mr. Justice Jasbir Singh.
***
T.S.Thakur, Chief Justice
In a country with a population of over one billion, the
problems generally arise out of scarcity of resources and infrastructure.
That is true even in regard to seats available in educational institutions
where candidates seeking admission more often than not far exceed the
number of vacancies available. The present batch of petitions however
present a different scenario. The problem here is not of scarcity but one
arising out of plenty. There are more seats in different colleges offering
Bachelor of Education (B.Ed) courses in the States of Punjab and Haryana
than the candidates seeking admission against the same. This situation
has arisen entirely due to setting up of a large number of institutions in this
region. It is common ground that in the State of Haryana alone there are
456 colleges offering B.Ed course to candidates as against 176 such
institutions in the State of Punjab. The total number of seats available in
these institutions is so large that even when the last candidate who
appeared in the Common Entrance Test (CET) for admission is admitted to
the course, thousands of seats have remained unfilled. What should
5 CWP No. 17284 of 2008
happen to these seats is the real question that falls for determination in
these petitions. While, according to the Association of Self Financing
institutions established in Punjab and Haryana who are petitioners in
C.W.P No. 16171 of 2008 and CWP No. 17284 of 2008, such seats ought
to be filled up by admitting candidates who are otherwise eligible for such
admissions, the respondents opposed any such admission not only on the
ground that admission sought to be made only through the medium of
Common Entrance Tests but also on the ground that any admission made
at this belated stage, is likely to affect the academic standards and the
calendar fixed by the University. Before we advert to the merits of the
contentions urged on either side, we consider it proper to set out in brief
the factual back-drop in which the controversy arises.
For admission to B.Ed institutions in the State of Haryana, the
government authorized respondent No.3- Kurukshetra University,
Kurukshetra to invite applications from eligible candidates for taking the
Entrance test which would then become the basis of admission to those
emerging successful. As many as 42704 candidates applied for admission
in response to the said notification for admission against a total of 53000
seats available in 456 colleges in the State. A total number of 41103
candidates actually appeared in the CET examination held on 18.08.2008.
The result of the examination was declared on 18.9.2008 and since no
minimum qualifying marks were prescribed for being declared successful,
all the candidates who had taken the examination were found eligible for
admission. The number of those who filled in their option forms for
counseling, was however not more than 30585. It is also common ground
that around 25000 candidates only appeared for counseling and were
admitted, thereby leaving as many as 28000 seats vacant and un-filled.
It was in the above back ground that the petitioner Association
of Self Financing Colleges from the State of Haryana filed a representation
6 CWP No. 17284 of 2008
before the Kurukshetra University, Kurukshetra for permission to fill up the
vacant seats on the basis of merit of the candidates in the qualifying
examination. The said representation was, however, rejected by the
University in terms of a communication dated September 19, 208 on the
ground that only such students as had appeared in the Entrance Test,
could be admitted to the colleges and that no digression from that Rule was
permissible.
Aggrieved by the rejection of its request, the Association of
Colleges has filed Writ Petition No. 17824 of 2008 in this Court inter alia for
a writ of certiorari quashing the order passed by the university and for a
mandamus directing the respondents to permit the member colleges of the
society to fill up the vacant seats on the basis of merit of the candidates in
the qualifying examination.
Apart from the writ petition filed by the Association, there are
as many as 14 other petitions bearing Nos. 18933, 17938, 19541, 19585,
18859, 18980, 19040, 19207, 19232, 19254, 19268, 19341, 19312 and
19300 of 2008 filed by candidates who were unable to take the CET but
who otherwise claim to be eligible for admission as they fulfill the condition
of eligibility stipulated in the prospectus issued by respondent No.3-
Kurukshetra University, Kurukshetra. In addition Civil Writ Petition No.
17315 of 2008 is filed by four other colleges offering the B.Ed course in the
State of Haryana, making a common cause with each other and the
Association for permission to fill up the seats that are lying vacant and un-
utilized with them.
The position is no different in the State of Punjab where also
applications were invited for admission to the B.Ed institutions through the
medium of a Common Entrance Test to be held by respondent No.2-
Punjabi University, Patiala. It is not in dispute that as against 35000
candidates who appears in the CET for admission against a total of 20120
7 CWP No. 17284 of 2008
seats in 163 colleges advertised as per the prospectus, only about 12000
candidates qualified for admission. This means that there are as many as
8000 or so seats still vacant in different colleges situate in the State of
Punjab which will go abegging if the colleges are not allowed to fill up the
same from out of candidates who had not appeared in the CET. Writ
Petition No. 16171 of 2008 filed by the Self Financed B.Ed Colleges
Association, Punjab seeks a writ of certiorari quashing clauses 8(b) and 9
(1) of the Government Notification dated 17.04.2008 and a mandamus
directing the respondents to permit the members of the petitioner society to
fill up the vacant seats on the basis of the qualifying examination or on the
basis of Entrance test conducted by the petitioner society. In addition, writ
petition No. 17315 of 2008 has been filed by M.R. College of Education
and four other colleges seeking permission to fill up the vacant seats
available with them. Writ Petition No. 18922 of 2008 filed by Ms. Kirandeep
Kaur and five other candidates seeks a direction for admission to the B.Ed
course in the Colleges established in the State of Punjab.
In response to the notice of motion issued by this Court, the
State of Haryana has appeared in Writ Petition No. 17284 of 2008 and filed
a counter affidavit. Even, respondent No.3, Kurukshetra University,
Kurukshetra has filed a reply to the said writ petition, wherein refusal of
permission to admit candidates against the available vacant seats is sought
to be justified on the ground that the colleges cannot commercialize
education simply because the same are Self Financing institutions. It is
also stated that keeping in view the large number of colleges that have
been recognized it is inevitable that some seats in each college will remain
vacant. The University further states that the colleges cannot complete the
admission process before December 01, 2008 in which event the
candidates would fall short by two months in completing the course of their
studies nor would they be able to complete 180 working days stipulated for
8 CWP No. 17284 of 2008
that purpose. It is also stated that the requirement of 180 working days is a
statutory requirement which the University would not like to be
compromised as the same would affect the academic standards prescribed
under the National Council for Teacher Education ( Recognition, Norms
and Procedures) Regulations, 2007. In addition requirement of at least 40
days of “practice teaching” is also, according to the University vital and
cannot be compromised. The University has also expressed difficulties
regarding extension in the academic calendar, as according to it if the
teaching schedule is extended the same would result in delay in holding
the examination for the B.Ed candidates thereby delaying the admission to
M.Ed course also. All told, the counter affidavits filed by the State and the
University in Writ Petition No. 17284 of 2008 support the stand taken by
the said respondents against the admission of any candidates, at this
stage.
A counter affidavit has been filed similarly in Writ Petition No.
16171 of 2008 filed for the benefit of the colleges in Punjab in which also
the respondents have opposed the prayer made in the writ petition and
relied upon the provisions contained in Regulation 9 of the National Council
for Teacher Education (Recognition, Norms and Procedures) Regulations,
2007 (hereinafter to be referred to as Regulations, 2007). It is stated that
the State Government has issued its policy for the academic Session 2008-
09 in terms of notification dated 17.04.2008 in which a Joint Entrance
Examination has been prescribed under which a candidate can be held
successful in the entrance examination only if he scores at least 30%
marks in CET for a general category candidate and 25% marks for those
from SC/ST category. The counter affidavit further states that while
instructions have been issued by the Government not to insist upon the
requirement of 30% marks in CET for candidates admitted against
management quota the rest of 85% admissions can be granted only in
9 CWP No. 17284 of 2008
case the candidates have passed their Entrance test with the minimum
percentage stipulated for that purpose. Grant of admission to candidates
who have not appeared in the CET, would not according to the
respondents be permissible and would tantamount to admitting students
not otherwise eligible for such admissions which could in turn lower the
academic standards and affect public interest.
Respondent No.2-Punjabi University, Patiala has also filed a
counter affidavit and opposed the prayers made in the writ petitions inter
alia on the ground that classes for the Session 2008-09 have already been
started and a part of the syllabus already completed. Any relaxation to the
institutions and any admission of candidates at this stage would adversely
affect the academic schedule of the University.
We have heard learned counsel for the parties at considerable
length and perused the record.
In so far as colleges established in the State of Haryana are
concerned, admissions to the same are regulated by the Rules and Norms
set out in the prospectus issued by respondent No.3 – Kurukshetra
University, Kurukshetra. Two distinct features emerging from the said
prospectus need to be noticed at the very out-set. In the first place, the
prospectus does not give an exhaustive list of Self Financing Colleges for
whom the selection process is undertaken by the University. As a matter of
fact the prospectus enlists a large number of colleges in the State of
Haryana in Annexure XVI forming part of the said document. A reading of
the Annexure shows that the updated list of Colleges of Education had to
be provided at the University Website at the time of counseling. Annexure
XVI to the prospectus also made it clear that the number of colleges as well
as the number of seats in a specific college could increase or decrease at
the discretion of the competent authority and the university . Paras 3 and 4
appearing in Annexure XVI are in this regard relevant and may be
10 CWP No. 17284 of 2008
extracted:-
3.Updated list of Colleges of Education will be
provided at the time of counseling on University
Website https://www.kukinfor.com.
4. The No. of Colleges as well as the No. of seats
in a specific college may increase or decrease
depending upon the decision by the competent
authority depending upon university notification. For
example, notified by Kurukshetra University,
Kurukshetra vide letter No. CG-VI/08/3217-3333
dated 19.04.2008″.
It is thus evident that the list of colleges for whom the
admission process was undertaken by the University was not exhaustive.
As a matter of fact, Colleges could be included in the Counseling for the
Session 2008-09 upto September 16, 2008. This is clear from the following
para appearing in the prospectus:-
“No private College which obtains recognition
from NCTE after the date of 2nd Counseling i.e.
September 16, 2008 shall be included in the
Counseling for the session. Therefore, such colleges
may submit their request for inclusion in the counseling
process before the date of 2nd Counseling i.e
September 16, 2008”.
Consistent with the terms of the prospectus, the Kurukshetra
University, had issued an”INSTRUCTION BOOKLET” in which the
particulars of the Colleges including the number of seats available in the
same was indicated. The total number of Colleges included in the said
Instruction Booklet is around 456. It is in the light of the above, difficult for
us to appreciate how the respondent university can argue that seats that
remain vacant after admitting all the candidates, who appeared in the CET
are referable to those available in the institutions established after
16.09.2008. The true position is that the unfilled excess seats are available
in the Colleges which the University has recognized in the prospectus and
11 CWP No. 17284 of 2008
the Instruction Booklet issued by it. We, therefore, have no hesitation in
rejecting the contention urged by Mr. Gupta counsel for the university that
the vacant seats are in Colleges that have come up subsequent to the
issue of the prospectus and could not, therefore, be taken into
consideration for the issue of any direction by this Court. The vacant seats
that remains unfilled are actually available in the very same Colleges that
have already been notified and included by the respondent University and
against which the University has itself made admissions, based on the
CET.
The other aspect that stands out prominently is that all the
Colleges included in the list published by the University are recognized by
the NCTE and affiliated to one University or the other. This implies that
seats available in the said Colleges are duly supported by the
infrastructural requirements stipulated by the NCTE. There is no gain said
that availability of seats in educational institutions is a valuable resource,
which should not go waste, subject to fulfillment of other requirements
including maintenance of academic standard. The non-filing of available
seats will not even otherwise benefit the affiliating University, the
Institutions or the candidates in any way, nor would filing of such vacant
seats cause any harm to any one of them. This position was accepted even
by Mr. Gupta, appearing for the affiliating University, who argued that while
refusal of permission to fill up the vacant seats will not help anyone, filing
up of these vacant seats at this stage, may lead to dilution of academic
standard and disturbance of academic calendar fixed by the affiliating
University. Mr.Gupta, was however, unable to explain as to why the
respondent-University had not been able to fore-see a situation in which the
number of candidates applying for admissions through NCTE may be less than
the number of seats that were available in the Colleges. According to Mr. Gupta,
experience of immediate past year had not given rise to any such anomaly and
12 CWP No. 17284 of 2008
the current situation has taken the University’s authorities by surprise. That
explanation does not appear to be wholly acceptable. With a very large number
of Colleges coming up in the State of Haryana and the number of seats
available in the same going up considerably, the University ought to have known
better. It should have realized that as against 59390 seats available for
admission, the total number of candidates, who had applied was only 42,704.
This meant that there was an excess of nearly 17000 seats even on the last date
for the receipt of the applications. The University could, therefore, well anticipate
a situation where the number of candidates applying for admission through CET
was less than the number of seats available in the Institutions and should have
made a provision for filling up of such seats in a manner that would ensure that
eligible and meritorious students get admitted to these Institutions against such
excess seats. It could make a provision that in case seats remain vacant, even
after all the candidates, who have applied for admission, through CET were
admitted, the Colleges shall be free to admit students of their own provided that
they were otherwise eligible for such admissions. It may even have made a
provision that such excess seats may be filled by the University on its own from
one of eligible candidates. Nothing of that sort was done by the University. This
resulted in confusion not only amongst the Colleges but even the students, who
are eligible but may not have, for one reason or the other, appeared in the CET.
Suffice it to say that the situation with which we are faced is not attributable to
the Colleges where seats have remained unfilled. It is on the contrary
attributable to the University because of whose failure to make specific
provisions for filling of the excess seats we have a spate of writ petitions before
us.
The next question then is whether this Court should permit
admissions or let the available seats go waste, Which out of the two options
would serve the ends of justice is the only question that detained us. If one
were to adopt a pedantic and hyper technical approach, one could say that
admissions need not be made at this stage as the University’s apprehension of
dilution of academic standards and disturbance of academic calendar should not
13 CWP No. 17284 of 2008
be disregarded. The wisdom behind that approach however, appears out-
weighed by the compelling need to avoid the wastage of seats and denial of an
opportunity to eligible students to get admitted against the same. It is true that
academic standard needs to be maintained and academic decisions by expert
bodies respected as far as possible, but it is equally true that when admissions
are delayed, a certain amount of adjustment can and ought to be made by the
Institutions as also the affiliating University. These adjustments do not, however,
necessarily dilute the academic standard as is apprehended by the University in
the instant case. The Institutions are ready and capable of making up the
requisite number of working days by holding special classes for the students,
who have joined late. The admission granted at this stage will not also require
the University to compromise on the 40 days practice teaching or the percentage
of lectures, which a student must have for being declared eligible for taking the
examination. It is noteworthy that candidates admitted to a session has to
perform by the same standard as is required of the other candidates in order to
be declared successful in the examination. If a student, otherwise admitted late,
is unable to come up to the standard of the University, he/she will be declared
unsuccessful. Super-added to the above is the fact that the number of students,
who may even now seek admissions, may not be very large to require holding of
any test to determine their inter-se merit for grant of admission. The argument
advanced by Mr. Gupta that the Colleges may have to hold independent CET for
granting admissions, which may delay the completion of admission process, is in
our opinion, misplaced. Such a situation could arise only where the number of
students applying is more than the number of seats available in the Institutions.
That, however, is not the position in the instant case. Even so, the apprehension
that lesser merited students may be admitted while ignoring meritorious
students, can be allayed by directing that the Institutions shall grant admissions
strictly in accordance with the merit in the qualifying examination, which is one
of the recognized norms for granting such admissions.
That brings us to the writ petitions filed by the Institutions
established in the State of Punjab. The ground situation in Punjab, as already
14 CWP No. 17284 of 2008
noticed, is no different from that in the State of Haryana. The number of seats in
Punjab is far more than the number of candidates seeking admissions through
CET. It was, however, argued on behalf of the respondents in cases relating to
State of Punjab that the prospectus issued by the University required candidates
to score a minimum of 30% marks in the CET. It was submitted that the
Government had, no doubt, relaxed the requirement of cut-off in the 15% seats
reserved for the Management Quota but the fact that the said relaxation was
given, did not imply that the requirement of cut-off should be made relevant even
for the unfilled seats. It was contended by Mr. Salil Sagar that no matter
students, who are ineligible for admission in Punjab could get admitted to the B.
Ed courses in the State of Haryana where there was no cut-off, the Institutions in
Punjab should not be allowed to fill up the vacant seats available with them.
Para 5 of the Prospectus published by the Punjabi University
envisages the preparation of a merit list based on the performance of candidates
in the entrance test. It reads:-
(a) The merit list of successful candidates in the Entrance
Test will be available on University website on the basis of
the attainment of a minimum of 30% marks (75 marks)
(25% in case of SC/ST(62.5) marks) of the maximum
marks in the test taken as a whole.
(b) when two or more candidates have secured equal
marks in the Entrance test, their inter se merit for
admission will be decided on the following criteria in the
order of preference;
i) Candidate with higher percentage of marks in Master’s
degree.
ii) Candidate with higher percentage of marks in the
qualifying examination.
iii) Candidate older in age.
It is evident from the above that the merit list of successful
candidates has to be prepared on the basis of their performance in the entrance
15 CWP No. 17284 of 2008
test in which a candidate must have scored a minimum of 30% marks (25% in
cases of SC/ST) but the said requirement it is obvious is applicable only to those
who are seeking admission based on the entrance test. It would not apply to
candidates seeking admissions against seats that are available even after the
last candidate found eligible in the CET has been admitted. The requirement of
30% marks in the entrance test is in any case not sacrosanct for admissions to
be made by the Institutions against 15% seats reserved for Management. If the
University or the State Government do not have any candidate to offer to the
Institutions for admissions on the basis of entrance test held by them, the unfilled
seats need not be wasted by preventing the Colleges from admitting students,
who are otherwise eligible for such admissions as per the NCTE norms. It is
common ground that said norms do not prescribe any minimum percentage of
marks in CET as a conditional precedent for admissions. In the totality of
circumstances, therefore, the unfilled excess seats available with the Institutions
could be allowed to be utilized by the Institutions by admitting students, who are
otherwise eligible as per NCTE norms.
In the result, we allow these writ petitions but only in part and to the
following extent:-
i) the Colleges duly recognized by NCTE and affiliated
to the Universities in the States of Punjab and Haryana and
those, who have been included in the list of Colleges eligible
for admitting students by the University holding the CET,
shall be free to fill up the seats that are lying vacant by
admitting suitable candidates eligible for such admissions to
the B.Ed Courses;
ii) Admissions against the excess seats shall be made
only on the basis of merit of the candidates in the qualifying
examination. In the event of seats being less than the
number of candidates seeking admission to any College,
the College shall grant admission strictly in accordance with
the inter-se merit of the candidates;
16 CWP No. 17284 of 2008
iii) the College shall conclude the admission process
and submit a list of the candidates admitted by them to the
University concerned latest by 5th December, 2008. We
make it clear that the Institutions shall not grant any
admission to any candidate after 5th December 2008 for the
academic session 2008-09. In the event of violation of
these directions, the University concerned and NCTE shall
initiate proceedings for withdrawal of recognition and for de-
affiliating the defaulting College/ Colleges;
iv) Such of the Colleges as make admissions against the
excess seats pursuant to this order, shall take steps to
ensure that special classes are held by them so that the
candidates are in a position to complete 180 working days
and other requirements of attendance and practice teaching
etc. The Universities shall not, by reason of this order, relax
its academic standard stipulated for the Courses in any
manner whatsoever;
v) the admissions granted shall not exceed the intake
capacity of the Colleges. Any default thereof, shall expose
the College to risk of de-recognition and withdrawal of
affiliation;
vi) the affiliating University shall for the future examine
and take an appropriate decision regarding the mechanism
to be adopted for filling up of unfilled excess seats in the
Institutions for the session 2009-10 onwards. They shall
consider whether Colleges can be allowed to fill up the
remaining vacant seats of their own after the admissions
through CET had been completed within the time frame
stipulated for this purpose and if so, the terms on which and
safeguard subject to which this can be done. The University
concerned shall also be free to devise any other mechanism
17 CWP No. 17284 of 2008for filling up unfilled seats considered appropriate.
The parties are left to bear their own costs.
( T. S. THAKUR )
CHIEF JUSTICE
November 21, 2008 (JASBIR SINGH )
Malik/kalra JUDGE