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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 5809 OF 2008
1) Dr. D.Y. Patil Educational Academy )
Sr.No.124 and 126, )
At Post-Ambi, Talegaon-Dabhade, )
Tal. Maval, District-Pune-410 506. )
2. Dr. D.Y. Patil College of Engineering )
Sr.No.124 and 126, )
At Post-Ambi, Talegaon-Dabhade,
ig )
Tal. Maval, District-Pune-410 506. )
Represented through its Director- )
Mr. Uday Shende. ).. PETITIONERS
Versus
1) The Director of Technical Education )
Government of Maharashtra )
3, Mahapalika Marg, Mumbai 400 001 )
2) State of Maharashtra )
represented through The Principal Secretary )
Higher and Technical Education and )
Employment Development, )
Government of Maharashtra )
Mantralaya, Mumbai 400 032 )
3) All India Council for Technical Education )
Western Regional Office, 2nd Floor )
Industrial Assurance Building, V.N. Road )
Opp. Churchgate Railway Station )
Churchgate, Mumbai 400 020. )..
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RESPONDENTS
Mr. Vikas Singh with Ms. Udita Singh and Mr. Navdeep Vora i/by M/s.
N.Vora & Associates for the petitioner.
Mr. V.S. Masurkar, Government Pleader for the State.
Ms. Beena Menon for respondent No.3.
CORAM: SWATANTER KUMAR, C.J., &
A.P DESHPANDE
, J.
JUDGMENT RESERVED ON : 21ST AUGUST 2008
JUDGMENT PRONOUNCED ON : 29TH AUGUST 2008
JUDGMENT : (Per Swatanter Kumar, C.J.)
In this Petition under Article 226 of the Constitution of India,
Petitioner No.1 Academy prays that the Respondents in the Writ
Petition be directed to include the name of Petitioner No.2 Dr. D.Y.
Patil College of Engineering in the list of eligible colleges for allotment
of students for the academic year 2008-2009 for Engineering courses
through Centralised Admission Process being monitored and
implemented by the Director of Technical Education, Government of
Maharashtra. As a necessary corollary to this relief, it is further
prayed that Petitioner No.2 college be permitted to give admissions to
the students for an intake of 240 students for the present academic
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year in accordance with the letter of approval issued by the All India
Council for Technical Education dated 31st July 2008.
2. These reliefs are claimed on the premise that Petitioner
No.1 is an educational academy imparting education through its
various institutions including Engineering college at Ambi, Talegaon-
Dabhade, Taluka Maval, District Pune. Petitioner No.2 is stated to be
one of the colleges managed and run by Petitioner No.1. Petitioner
No.1 applied to the University of Pune to recommend the
establishment of the Engineering college. University of Pune
informed the Petitioners vide their letter dated 3rd January 2008 that
the University had recommended to the State Government i.e.
Director of Technical Education, for establishment of Petitioner No.2
college. Thereafter, Petitioner No.1 also submitted a proposal for
establishment of the Engineering college to the All India Council for
Technical Education, New Delhi, who in turn vide their letter dated 18th
January 2008 required the authorities to be present for personal
hearing on 1st February 2008. In furtherance to which, the Petitioners
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were informed by Letter of Intent that they are required to furnish
documents and satisfy other requirements stipulated by them vide
letter dated 1st February 2008. In the Letter of Intent, various
documents were asked for and the Petitioners were required to satisfy
the requirements stated in the said letter and furnish among others,
inter alia, joint fixed deposit receipts, etc. and it was also stated that
the Petitioners may indicate the readiness for Expert Committee visit
within a period of two months for further consideration of the case.
The matter remained pending because of certain non-compliance and
as per the Petitioners for want of proper persuation by the All India
Council for Technical Education. However, vide letter dated 27th June
2008, the All India Council for Technical Education clearly stated that
the letter of approval cannot be issued due to following deficiencies :-
“The site of construction of the new Engg. College
building is not matching with the approved buildingplan
Workshop, Civil work is incomplete.”
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3. It was also stated in the said letter that as per Approval
Process Handbook (2008), they could avail the opportunity of
reconsideration of the proposal. No correspondence or facts have
been averred as to what transpired between 27th June 2008 and 31st
July 2008 when the letter of approval for establishment of the
Engineering college in all 240 seats was issued by the All India
Council for Technical Education. This letter did not indicate as to for
which academic year the approval was issued. The approval was
granted subject to various terms and conditions and the Petitioners
were required to comply with all the conditions. In terms of Clause 17,
it was stated that in the event of non-compliance with regard to the
guidelines, norms and conditions, action for withdrawal would be
taken.
4. After the Petitioners received this letter of approval, the
Petitioners without approaching the State Government through
Director of Technical Education as well as the affiliating University,
filed the present Writ Petition seeking the above reliefs and for
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appropriate steps to be taken for grant of permission to commence
the courses in the Institution and affiliation to the University.
5. When the Writ Petition was filed, the Petitioners had also
not impleaded All India Council for Technical Education as a
Respondent. However, on oral request of the learned Counsel
appearing for the Petitioners, leave to amend was granted and the All
India Council for Technical Education was added as Respondent No.3
where after the All India Council for Technical Education appeared in
the present Petition.
6. The learned Counsel appearing for the Petitioners
vehemently argued that after the grant of approval by the All India
Council for Technical Education, the Director of Technical Education
and the affiliating University has hardly any role to play and thus there
was no need to approach them for any permission. It is also
contended that the College has complete infra-structure. The fourth
round of counselling is to be held by the centralised agency between
25th and 28th August 2008. Therefore, the Respondents are liable to
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be directed for inclusion of the name of Petitioner No.2 in the list of
colleges and they are obliged to allocate students for admission to the
said college. In the larger interest, it is also contended that the seats
will go waste and no prejudice would be caused to anybody if the
students are allocated to the college and the college commence its
Engineering courses. In support of its contention, reliance is placed
upon the judgments of the Supreme Court in the case of Medical
Council of India vs. Madhu Singh and others, (2002) 7 SCC 258,
Manish Ujwal and others vs Maharishi Dayanand Saraswati University
and others, (2005) 13 SCC 744 and Mridul Dhar (Minor) and another
vs Union of India and others, (2005) 13 SCC 65 and an order of the
Division Bench of this Court in the case of The Shetkari Shikshan
Mandal vs. State of Maharashtra and others passed in Writ Petition
(Lodging) No.1826 of 2008 decided on 1st August 2008.
7. Because of shortage of time and persistent request of the
Petitioners that the matter be heard expeditiously, no reply could be
filed on behalf of All India Council for Technical Education. However,
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the reply on behalf of the State of Maharashtra was filed and the
prayers of the Petitioners were strictly opposed. It has been averred
on behalf of the State that if the permission is granted to the Petitioner
Institution to commence the courses at this juncture, it will defeat the
merit and it will be unfair to higher and meritorious candidates for
picking up college of their choice. According to the State, it will be
serious breach of the golden rule of merit cum preference. It is
averred that in the advertisement given by All India Council for
Technical Education on 24th September 2007, much prior to the time
when the application was submitted on behalf of the Petitioners, that
the applications for establishment of new institutions for technical
programmes received after 30th June shall not be valid for the current
academic year but shall be valid for next two academic years. Thus,
the Petitioner Institute does not have a valid and existing approval for
the current academic year i.e. 2008-2009. It was argued with some
emphasis that number of other colleges have not been considered for
the current year on the same basis and if the Petitioners are permitted
to be included in the list now, it will result in patent discrimination by
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the State inasmuch as other colleges who have been granted
approval after 30th June have not been included in the list on the same
analogy and clear direction and rule made by the All India Council for
Technical Education. It will be useful to refer to some portions of the
reply filed on behalf of the State, which reads as under :-
“…. Moreover it is pertinent to note that in the
State of Maharashtra `The Director of TechnicalEducation’ is appointed as the Competent Authority by
the State of Maharashtra to conduct the admissionprocess of various educational institutions conducting
technical education courses. I say that the Director of
Technical Education has prescribed a specific
schedule for conduct of admissions to variousEngineering courses in the State of Maharashtra.
Hereto annexed and marked as EXHIBIT `A’ is thecopy of the Notification issued in this regard on 9th
June, 2008 by the aforesaid Director.”
….. ….. …..
9. I say that in as much as the provisions of the
Maharashtra Universities Act, 1994 (for the sake of
brevity, hereinafter referred to as `the said Act’
) are
concerned, Sub-section 6 of Section 83 of the said Act
makes it abundantly clear that no student shall be
admitted by the Petitioner College/Institution unless the
first time affiliation has been granted by the University
to the Petitioner College/Institution. I say that in view
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of this clear unequivocal mandate of the Legislature, it
is impermissible for the Petitioner to admit even a
single student in absence of such first time affiliation
from the concerned University.
10. However, I will hasten to add that the State
Government cannot permit at this stage grant of even a
single admission at the Petitioner Institution. The
reasons for the same are more particularly set out in
the aforesaid paragraphs. In short, I say that the
Petitioner Institution does not have affiliation and
therefore, it is just not possible to permit the Petitioner
to admit even a single student at the Institution/college.
It is worthwhile to note that in the advertisement given
AICTE on 24/09/2007 vide Advt. No. AICTE/Legal/09
(04)/2007, it is clearly mentioned in category – I under
serial no. 4 of “APPLICATION FOR ESTABLISHMENT
OF NEW INSTITUTIONS FOR TECHNICAL
PROGRAMMES” such as “The letter of Approval
issued after 30th June shall not be valid for the current
academic year but shall be valid only for next two
Academic years”. The AICTE has issued the Letter of
Approval (LOA) to the Petitioner’ s Institute vide letter
dated 31/07/2008 which is already annexed at page
no. 19 of the petition. Therefore the Petitioner’ s
Institute is not valid for the current academic year i.e.
2008-2009 but shall be valid only for next two
Academic years.
….. ….. …..
12. If to obviate the aforesaid situation the
Petitioner College is offered to all the students who
have been already admitted, the entire admission
process will get unsettled. Allowing shifting of an
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already admitted single student from one college to
another college, sets in chain reaction that unsettles all
the admissions so far settled. In other words, allowing
admissions to the Petitioner college at this stage, will
amount to re-opening of the entire admission process.
This is certainly against the public interest and will be
counter productive from the point of view of student
community and starting of educational activities of the
present academic year. As per this Hon’b le Court
Order s passed in W.P. No. 3916 of 2001 and W.P.
No. 1647 of 2007, the Respondent No.1 and 2 have
not considered the petitioner’ s institute for admission
during the academic year 2008-09. At the same time
as per the Order passed by this Hon’b
ig le High Court,
Mumbai Full Bench on 08/08/2008 in Writ Petition No.
8849 of 2007 along with other Petitions and as the
AICTE has issued the Letter of Approval (LOA) to the
Petitioner’ s Institute vide letter dated 31/07/2008 the
Petitioner’ s Institute is not entitled to fill in seats for the
current academic year i.e., 2008-2009 and shall be
valid for next two academic years. Hereto annexed
and marked as EXHIBIT `B’ is the copy of the above
mentioned Order delivered on 08/08/2008.”
8. It is argued on behalf of the Respondents that the
consistent and uniform stand of the Respondent authorities is
that the approvals granted post the cut off date (i.e. 30th June
2008) will be valid only for next academic year and not for the
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current academic year. It will be inappropriate and unjust now to
make the admissions in undue haste as it would cause serious
prejudice to the meritorious students, commencement of the
courses and would introduce an inevitable element of arbitrariness as
many other colleges which have already been excluded on this
ground would be deemed to have been treated unfairly.
9.
The main emphasis which has been placed by the parties
and particularly by the Respondents is on the Handbook and the
Advertisement issued by the All India Council for Technical Education.
Under both these documents, the stipulation with regard to the
issuance of letter of approval on and after a particular date has been
clearly stated. In the advertisement which was issued by the College
for the current academic year on 9th April 2007 and even published
subsequently on 24th September 2007, the relevant clause reads as
under :-
“3. SUBMISSION OF APPLICATION
The application can be submitted “anyn time” round
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the year. However, the applications complete in all
respects received up to 31st December shall be
considered for the following academic year.
Application received after 31st December shall be
considered for the next academic year.
.... ..... ....
4. APPROVAL PROCESS
* “Letter of Intent (LOI)” issued will be valid for “3
years from the date of issue”.
* “Letter of Approval (LOA)” issued will be valid for
“2 academic years from the date of issue”.
* The decisions of grant of approval or otherwise
shall be communicated “throughout the year”.
However, the letter of Approval (LOA) for the
current academic year shall be issued by 30th
June for completed application received by 31st
December of the previous calendar year which
have fulfilled norms and standards prescribe4d by
the Council for establishment of new institutions.
LOA issued on or before 30th June shall be valid
for Two academic years including the current
academic year for obtaining affiliation with the
respective Universities and fulfilling concerned
State Government requirement for admission.
* The Letter of Approval issued after 30th June shall
not be valid for the current academic year but
shall be valid only for next two Academic years.
* The Applicant institutions, whose cases have
been rejected for grant of Letter of Approval (LOA)
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may submit compliance for reconsideration or
may prefer to appeal by 30th May. The requests
for reconsideration or appeal received after 30th
May will not be considered for LOA for the current
academic year but only for next two academic
years. The Applicant shall have only one
opportunity for reconsideration or/for making an
appeal for issue of LOA for the current academic
year. The applicant may submit requests for
reconsideration or prefer an appeal after 30th June
for consideration for issue of LOA for subsequent
academic years.”
10. The All India Council for Technical Education is a statutory
body with the obligation to maintain proper standards relating to
technical education in the entire country. Once the Council in
exercise of the statutory powers frames out a policy or issues
guidelines, then such guidelines are binding on all concern and should
essentially be adhered to. The Handbook issued by the All India
Council for Technical Education is a legal and binding document
issued for information of the concerned parties i.e. Students and
Institutions and other public. Authorities cannot be heard contrary to
the specific language of the Notifications issued by the Council in
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exercise of its statutory power. No doubt it is a settled proposition of
law that the All India Council for Technical Education enjoys
supremacy in regard to grant of approval for technical courses. Once
the approval is granted, the University or the other authority like
Director of Technical Education cannot sit in judgment over the grant
of approval but their function is not so ministerial that it has no
significance in the field of education whatsoever. The Director of
Technical Education is required to grant permission for
commencement of courses and allot students by central counselling
strictly in accordance to the merit and preference of the student. The
University is expected to grant affiliation subject to satisfaction of the
conditions. What they cannot do is to interfere with the approval
granted by the All India Council for Technical Education or its
compliance. In terms of Maharashtra University Act, 1994, the
students can be admitted to the course only when the institution is
affiliated to the University in terms of Section 83(6) of the Act. The
Petitioners did not even care to approach these authorities for taking
appropriate action in accordance with law. The attempt on behalf of
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the Petitioners was to completely bye pass the process required to be
followed on the ground that All India Council for Technical Education
has granted approval. We are unable to accept this contention as
every authority, no matter how formal is its function, is expected to act
in accordance with the prescribed procedure. It is for the University
and the Director of Technical Education to examine various aspects
and then to grant or decline permission or affiliation in accordance
with law. Of course, they may be expected to act with
expeditiousness, but certainly their role cannot be wiped out entirely
and that too contrary to law.
11. We may also notice that in the meanwhile, the Full Bench of
this Court has also pronounced the judgment in the case of Mahatma
Gandhi Missions Institute vs The State of Maharashtra and others (Writ
Petition No.8847 of 2007 alongwith other connected matters),
wherein these principles have been reiterated and the Full Bench has
issued the following directions :-
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(a) As far as all colleges of the petitioner
institutions/trusts for the academic year 2007-2008
are concerned, the students who were admitted in
furtherance to orders of the court against variation
in intake of seats duly approved by the Council,
their admissions would not be disturbed.
(b) The colleges/institutions shall ensure that in the
courses already undergone by them, there is no
deficiency. If the students have joined their
respective courses late, they shall be required to
make up the deficiency.
(c) For the current academic year 2008-2009, we see
no reason to interfere with the notification issued
by the All India Council of Technical Education or
Directorate of Technical Education. The said
courses shall commence strictly in accordance
with the schedule and no institution which is not
duly approved by the AICTE with the concurrence
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of opinion by the Directorate of Technical
Education and the affiliating University as per the
requirements of law upto 30th June, 2008 shall
admit any students. However, as per the stand
taken by the AICTE after completing the requisite
formalities and satisfying the authorities concerned
in regard to infrastructure and educational
standards, such seats would be available to have
for the next academic year. The AICTE and other
authorities are permitted to adhere to the schedule
notified by them. In fact, it is directed that
henceforth, there shall be strict adherence to the
schedule specified in the law and hand-book
printed by AICTE in exercise of its statutory
powers.
(d) The AICTE and all other concerned authorities are
hereby directed to communicate to every applicant
institution, university or trust about refusal and/or
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grant of approval of their proposal by 15th June of
every academic year where the applications have
been received in terms of its brochure upto 31st
December of the previous year, regarding
admissions for the academic year.
12. As held by the Full Bench judgment of this court in
Mahatma Gandhi Missions Institute v. The State of Maharashtra and
others (Writ Petition No.8847 of 2007 alongwith other connected
matters), we cannot find any fault in the stand of the All India Council
for Technical Education in its attempt to adhere to the notified
schedule. It is also a correct stand that adherence to the prescribed
standards, cut-off dates and grant or refusal of approval has a direct
nexus to the performance of its duties in terms of the Act. The
Council cannot grant approvals in a mechanical manner. It is
expected to adhere to its schedule and conduct inspections in
accordance with its policy and provisions of the All India Council for
Technical Education Act. The stand of the All India Council for
Technical Education is that the approval is for the next academic year
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as it was granted subsequent to the notified date of 30th June, 2008.
This fact is not in dispute even before us. Not only this, even the
application for approval was moved by the petitioner subsequent to
the cut-off date for that purpose i.e. 31st December, 2008 as it was
moved on 8th January, 2008. Thus, there is substance in the
argument of the State that Petitioners do not have any valid and
proper sanction for the current year. Furthermore, the approval is
subject to the compliance of the conditions stipulated in the approval
letter. Vide their letter dated 27th June, 2008 which was just three
days prior to the cut-off date of 30th June, 2008, the Council had
clearly stated that there were deficiencies including the deficiency in
regard to the infrastructure i.e. College building was not in
accordance with the approved building plans and the workshop and
civil work is incomplete. The college was also clearly informed that
the college could avail the opportunity of reconsideration of proposal.
These substantial compliances could hardly be completed for the
current academic year. In the letter of approval dated 31st July, 2008,
there is nothing to state that those deficiencies had been made good.
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The letter of approval dated 31st July, 2008 had also informed the
college in no uncertain terms “You are required to submit compliance
report as per AICTE’
s requirements by 31st August, 2008.” There is
nothing on record to show that such compliance was made by the
college even till date. All these events clearly indicate that the entire
process was for the next academic year and not for 2008-2009. The
college cannot drive any benefit for the reason that they claimed to
have engaged certain staff members, teachers for the current
academic year. The college cannot take advantage of its own wrong
as the AICTE had put them to a notice by virtue of notification and
hand-book that application submitted subsequent to 31st December
and approvals granted subsequent to 30th June, 2008 would be for
the next academic year and not the current academic year. The
Letter of Approval dated 31st July, 2008 opens with the language that
the regulations notified by the Council, norms and standards and
conditions prescribed by Council from time to time would be
applicable. It is not even the case of the petitioners that they had not
submitted the application in furtherance to such hand-book and
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notification. By 31st August, the date for compliance of counseling is
expected to be completed and courses are expected to commence as
per the calendar. Another aspect which cannot be ignored by the
court is that the petitioners did not even care to approach either the
University or the Director of Technical Education, State of
Maharashtra for their affiliation and permission respectively. The
University, in fact, has not even been impleaded as respondent in the
present petition. The Court cannot, in these circumstances, take unto
itself compliance of the requirements of affiliation and permission to
commence the courses by deeming fiction. The grant of approval by
All India Council for Technical Education is a principal permission
which was granted conditionally and as already noticed, there is not
even a document on record to show that compliance report was
submitted by 31st August, as stated by the Council. No matter how
formal is the requirement of the University granting affiliation and
Director of Technical Education, State of Maharashtra granting
permission to commence the courses but the law in that regard has to
be essentially followed by the petitioners and he ought to have
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approached these authorities for appropriate action in accordance
with law. The petitioners have none else to blame except its own
conduct for the present situation.
13. Full Bench of this Court in Mahatma Gandhi Missions
Institute (supra) has directed strict adherence to notified schedules
and cut-off dates, ensure implementation of merit-cum-preference
principle and not to shorten the length of the courses in professional
education. If the relief prayed for by the petitioner is granted at this
stage, it would directly or indirectly have the effect of infringing these
principles. Even in the case of Mridul Dhar (Minor) and another v.
Union of India and others,(2005) 2 SCC 65, relied upon by the
petitioners, the Supreme Court unequivocally stated the principle in
relation to desirability of commencement and completion of courses
according to schedule and in paras 22 and 23 of the judgment stated
that if any student is admitted after commencement of the course, it
would be against the intended object of fixing the time schedule.
Further in its conclusion, the court also stated that there is no scope
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for admitting the students mid-stream and even if seats are unfilled,
there cannot be a ground for making mid-session admission. In the
case of Mridul Dhar (supra) where the Supreme Court issued certain
directions, the court re-emphasised the need to adherence to time
schedules in professional colleges, however, required the Medical
Council of India and the Central Government to examine the
applications for approval. None of these judgments help the
petitioners to sustain a claim before the court that in face of clear
stipulation of the hand-book and the notification, this court should
compel the All India Council for Technical Education to violate its own
rules and issue directions against other respondents including the
University (which is not even a party to the writ petition) to grant
permission without compliance to their requirements and even to
allocate the students for admission to the college. Such expansion of
jurisdiction under Article 226 of the Constitution of India would be
opposed to the very spirit of law stated in different Acts including All
India Council for Technical Education Act, Maharashtra Universities
Act and the Notifications issued by the Director of Technical
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Education. The Full Bench of this Court in Mahatma Gandhi Missions
Institute (supra) considered the Division Bench order of this court in
Shetkari Shikshan Mandal v. State of Maharashtra and others and
Atharva Institute of Management Studies and others v. Director of
Technical Education, Maharashtra State and others. The Bench
approved the principle stated in the case of Atharva Institute of
Management Studies and directed that for the current academic year,
the All India Council for Technical Education and Director of Technical
Education should adhere to the notified schedule and the colleges
whose approvals were granted that too conditionally after 30th June,
2008 were to be included in the list of colleges published for
admission for the next academic year.
14. We are unable to find any error of law or element of
unfairness in the stand taken by the respondents. Such stand and
timely implementation of schedule would hardly call for any judicial
intervention. There is merit in the submission of the State that
number of other colleges have not been included in the list as
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approval of the All India Council for Technical Education subsequent
to 30th June, 2008 and there is no reason to treat the petitioners
differently and in any case, there are no exceptional or compelling
circumstances which would justify grant of relief to the petitioners.
Nothing prevented the petitioners from acting timely and submitting
their applications prior to 31st December, 2007 and then pursuing the
same vigoursly to ensure that the approval was granted prior to 30th
June, 2008 and their names were included in the list of colleges for
allocation of students. Even if they were to be granted any relief
today, it would be unfair as firstly, the admission process would be
over by that date and secondly, most of the students have already
been admitted and they even may not know about the availability of
seats in the Petitioners’
college. Thus, it would hurt the golden rule of
merit-cum-preference and would obviously result in late
commencement of courses. It needs to be noticed with some
emphasis that the colleges still have to comply with the requirements
of letter of approval dated 31st July, 2008 and still have to approach
the University and Director of Technical Education for affiliation and
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grant of permission to commence the courses respectively.
15. For the reasons aforestated, we find no merit in the Writ
Petition and the same is dismissed, however, leaving the parties to
bear their own costs.
CHIEF JUSTICE
A.P. DESHPANDE, J.
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