1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8847 OF 2007
Mahatma Gandhi Missions Institute,
N-6, CIDCO, Aurangabad,
Through its Directorate
Suryabhan Apparao Somawanshi
Age 62 years, Occ. Service,
R/o. 2/1/2, Nandanwan Colony,
Cantonment, Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary, Higher and
Technical Education, Maharashtra State,
Mumbai.
2. Director of Technical Education,
Maharashtra State, Mumbai,
3, mahapalika Marg, Post Bom No.1967,
Mumbai-400 001.
3. All India Council For Technical Education,
Indira Gandhi Sports Complex,
I.P. Estate, New Delhi-110 002.
4. Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad
Through its Registrar. .. Respondents
(Copy to be served on standing counsel)
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ALONGWITH
WRIT PETITION NO.8848 OF 2007
Mahatma Gandhi Missions Institute,
N-6, CIDCO, Aurangabad,
Through its Directorate
Suryabhan Apparao Somawanshi
Age 62 years, Occ. Service,
R/o. 2/1/2, Nandanwan Colony,
Cantonment, Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra
Through Secretary, Higher and
Technical Education, Maharashtra State,
Mumbai.
2. Director of Technical Education,
Maharashtra State, Mumbai,
3, mahapalika Marg, Post Bom No.1967,
Mumbai-400 001.
3. All India Council For Technical Education,
Indira Gandhi Sports Complex,
I.P. Estate, New Delhi-110 002.
4. Dr. Babasaheb Ambedkar Marathwada
University, Aurangabad
Through its Registrar. .. Respondents
(Copy to be served on standing counsel)
ALONGWITH
WRIT PETITION NO.8849 OF 2007
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Bhartiya Gramin Punarrachana Sanstha,
Aurangabad
Rajarshi Shahu Institute of Management
Campus, P-75, Behind Garware Polyester,
Chikalthana, Aurangabad-431 210
Through its President
Shri Jagannath Khanderao Jadhav, Age 58 years. .. Petitioner
Versus
1.The State of Maharashtra
Through Principal Secretary,
Technical and Higher Technical Education,
Mantralaya, Mumbai-32
(Copy to be served on Govt.Pleader,
High Court of Judicature of Bombay bench
at Aurangabad)
2. The Director of Technical Education,
Government of Maharashtra,
3, Mahapalika Marg, Post Bom No.1967,
Mumbai-400 001.
3. The Joint Director of Technical Education,
Government Technical Institute,
Osmanpura, Post Box No.516,
Aurangabad-431 005. .. Respondents
ALONGWITH
WRIT PETITION NO.8850 OF 2007
1. Vishwabharati Academy's
College of Engineering,
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Jamkhed Road, At Post Sarola-baddi,
Tal & Dist. Ahmednagar.
2. Vishwabharati Academy's .. Petitioners
C/o. Flat No.402, Nakoda Court,
Sanghavi Compound, Shivaji Nagar,
Pune-411 005.
Versus
1.The State of Maharashtra
Through department of Higher and
Technical Education,
Mantralaya, Mumbai
(Copy to be served on Govt.Pleader of
High Court at Aurangabad)
2. The Director of Technical Education,
Mahapalika Marg, Post Bom No.1967,
Mumbai-400 001.
3. University of Pune,
Through it's Registrar,
Ganeshkhind Road, Pune. .. Respondents
ALONGWITH
WRIT PETITION NO.8851 OF 2007
Shri Sai Samajik Vikas Sanstha,
"Swam", Seven Hills Colony,
Near Flyover Bridge, Jalna Road,
Aurangabad.
Through its President
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Shri Jagannath s/o Khanderao Jadhav .. Petitioner
versus
1. The Union of India
Through Principal Secretary,
Ministry of Human Development and
Resources, Delhi.
(Copy to be served on Standing Counsel,
High Court of Judicature at Bombay Bench
At Aurangabad).
2. All India Council For Technical Education,
Industrial Assurance Building,
2nd floor, Veer Nariman Road,
Church Gate, Mumbai-400020
Through its Chairman.
3. The Director of Technical Education,
(Desk-10),Maharashtra State,
Mahapalika Marg,
Mumbai-400 001.
4. The Joint Director,
Divisional Officer,
Technical Education Department,
Mantralaya Extension,
Mumbai-400 032. .. Respondents
ALONGWITH
WRIT PETITION NO.8309 OF 2007
1. Mr. Kale Deoraj Premkumar
2. Mr. Sangale Omkar Suresh
3. Mr. Kachkure Sainath Vishnu
4. Mr. Lohoti Akshay Pramod
5. Mr. Deovare Jayesh Ramdas
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6. Mr. Jadhav Sagar Dilip
7. Mr.Abuj Ashok Gangaram
8. Mr. Gavhane Sumeet Prakash
9. Ms. Shejal Vivek Dhanaji
10.Mr. Gavandhe Sandeep Bappasaheb
11.Mr. Rajhans Pranav Prakashrao
12.Mr. Bodhene Sharad Sainath
13.Mr.Salve Sandeep Sudam
14.Mr. Kakade Rahul Bhagwan
15.Mr. Shaikh Zubir Sayed
16.Mr. Pathare Satish Shankar
17.Mr. Ghodake Tushar Namdeo
18.Mr. Kakade Kailash Prabhakar
19.Mr. Jadhav Balasaheb Janardan
20.Mr. Patil Amol Ashokrao
21.Mr. Farooqui Wasimuddin E.
22.Mr. Wadhe Gajanan Shankar
23.Mr. Joshi Prashant Bapusaheb
24.Mr. Pawar Appasaheb Gangadhar
25.Mr. Kandare Umesh Achyutrao
26.Mr. Pare Balaji Sopan
27.Mr. Babar Jaykumar Sakharam
28.Mr. Shinde Deepak Adinath
29.Mr. Nade Sandeep Narhari
30.Mr. Navthar Nilesh Chandrakant
31.Mr. Bobade Gajanan Lahurao
32.Mr. Ghodkar Vishal Vasant
33.Mr. Korde Sandeep Kundalik
34.Mr. Waghande Shreyash Ravindra
35.Mr. Akkalkotkar Aniket Ashok
36.Mr. Khedkar Hari Dinkar
37.Mr. Patphode Pranit Dattaram
38.Mr. Shaikh Mohd. Shakib Eliyas
39.Mr. Rathod Vaibhav Kondiram
40.Mr.Kavale Bhausaheb Baburao
41.Mr.Zatte Nilesh Madhukar
42.Mr.Pare Haribhau Bhagwan
43.Mr.Tayade Kailash Subhash
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44.Mr. Dabhade Dinesh Ashok
45.Mr. Daspute Amol Bhagwan
46.Mr.Amale Dnyaneshwar Devidas
47.Mr.Ghule Ravindra Annasaheb
48.Mr.Kakade Roshan Ankushrao
49.Mr. Tamaner Vikas Ankush
50.Mr.Giri Ashish Durgadas
51.Mr.Mhasale Alkesh Govind
52.Mr.Nolle Kailas Prabhakar
53.Mr.Gopal Sharad Visantrao
54.Mr. Sarvade Sachin Prabhakar
55.Mr.Meshram Nilesh Govind
56.Mr.Yadav Anil Ramkrishna
57.Mr.Gaikwad Ganesh Prakash
58.Mr.Kute Bhushan Subhash
59.Mr.Gangawane Ravirai Pandurang
60.Mr.Kadam Pravin Prabhakar
61.Mr.Shaikh Wasimali Mohammed
62.Mr.Dahifale Shripad Bhaskarrao
63.Mr.Naik Krishna Ambadas
64.Mr.Varhal Shrikant Kashinath
65.Mr.Mohd. Basnod Ali Amodi Abdulla
66.Mr.Malwade Somnath Annasaheb
67.Mr.Kakade Roshan Ankushrao
68.Mr.Thorat Rahul Vithal
69.Mr.Shinde Siddhanath Sudhakar
70.Mr. Thombare Deepali Raghunath
71.Mr.Jagtap Aparna Ashokrao
72.Mr.Muttemwar Venkatesh Naganath
73.Mr.Kedare Umesh Arun
74.Mr.Nakhate Shahaji Shivaji
75.Mr.Puri Ajay Rameshrao
76.Ms. Bhagwat Yogita Madhukarrao
77.Ms. Narwade Anupama Sudhakar
78.Ms. Kulkarni Vaibhav Prabhakar
79.Mr. Vidhwans Abhijit Kondiram
80.Mr. Adhagale Ganesh Motiram
81.Mr. Garje Anand Shivaji
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82.Mr. Amrutakar Chetan Chandrakant
83.Mr. Ghayal Ranjit Rameshrao
84.Ms. Kachewar Jayshree Sureshrao
85.Mr. Sapkal Vishal Ramrao
86.Ms. Nikam Manjiri Gajendra
87.Mr. Belsare Prathamesh Ashok
88.Ms. Suryawanshi Snehal Dattatraya
89.Mr. Avhad Ravindra Suresh
90.Mr. Satpute Shashikatn Anil
91.Mr. Ghavane Pravin Kalyanrao
92.Mr. Madrap Sunaykumar S.
93.Mr. Kharad Ravindra Madhukar
94.Mr. Gaikwad Mayur Sitaram
95.Mr. Kale Satish Bhimrao
96.Mr. Raut Akash Sitaram
97.Mr. Khonde Ravindra Kalyan
98.Mr. Kachakure Sandeep Sureshrao
99.Mr. Kolhe Kapil Satyanand
100.Mr. Salunkhe Rahul Madhavrao
101.Mr. Kharode Mukta Keshav
102.Mr.Dhangar Sunil Pandit
103.Mr. Thote Prashant Devidas
104.Mr. Sant Vinod Ashok
105.Mr. Lokhande Anmol Shriram
106.Mr. Ahire Ganesh Mhasu
107.Mr. Jagtap Mahesh Gangadhar
108.Mr. Patil Amol Jigarrao
109.Mr. Chavare Prasad Suresh
110.Mr. Davane Rahul Shivanath
111.Ms. More Anju Madhukar
112.Mr. Kale Yogesh Fulchand
113.Mr. Mohan Pritesh Diliprao
114.Mr. Devaraye Sandeep Kaduba
115.Mr. Deshmukh Gauri Bhagwan
116.Mr. Jaibhar Ajay Gulabrao
117.Mr. Ingale Roshan Ramdas
118.Mr. Lad Sagar Suryakant
119.Mr. Kambale Sanket Vinayak
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120.Mr. Shinde Mayur Bapusaheb
121.Ms. Borude Priyanka Ramchandra
122.Mr. More Sachin Ramrao
123.Ms. Shendage Priti Santoshrao
124.Mr. Bobade Prabhakar Vithalrao
125.Mr. Kale Abhijeet Lalasaheb
126.Mr. Thakare Pravin Rameshwar
127.Mr. Gajabhir Anand Kacharu
128.Ms. Jadhav Pratibha Bhagwanrao
129.Mr. Varape Balasaheb Gorakh
130.Mr. Wagh Ravindra Shridhar
131.Mr. Shelare Kailash Vishwanath
132.Ms. Misal Savita Bhahusaheb
133.Mr. Gunjal Mahendra Kisanrao
134.Mr. Latpate Santosh Vasantrao
135.Mr. Dhage Pravin Mannusingh
136.Mr. Harkal Amol Nanarao
137.Mr.Chavan Mahendra Chandarsingh
138.Mr. More Vinod Suresh
139.Mr. Khedkar Mahadeo Arjun
140.Mr. Gohal Ganesh Gagajinath
141.Mr. Bhingare Sagar Akash
142.Mr. Dilware Shyam Laxman
143.Mr. Varpe Deepak Jalindar
144.Mr. Bhabal Vithal Raosaheb
145.Mr. Dalvi Jitendra Balasaheb
146.Mr. Shirsat Prashant Prakash
147.Mr. Bangar Madhukar Bhanudas
148.Mr. Husain Irfan Irshad
149.Mr. Khulase Dnyaneshwar Sadashiv
150.Mr. Nimbalkar Abhijit Babasaheb
151.Mr. Gurange Rajendra Amrit
152.Mr. Bhagwat Rahul Ketan
153.Mr. Mane Mahendra Navnath
154.Mr. Bhalerao Prashant Deelip
155.Mr. Late Narendra Babanrao
156.Mr. Shaikh Anis Ayub
157.Mr. Salve Sanjaykumar Ramrao
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158.Mr. Pathak Pranav Prabhakar
159.Mr.Gajare Sachin Suryakant
160.Mr. Gaikwad Amit Ramkrishna
161.Mr. Kakade Nandkishor Ashok
162.Mr. Limbhade Nandkishor Radhakisan
163.Mr. Kulkarni Kiran Krishna
164.Mr. Unawane Eknath Manik
165.Mr. Maniyath S.S.
166.Mr. Dabhade Sushil Yashwant
167.Mr. Rokade Mahesh Fulchand
168.Mr. Bangar Parsaram M.
169.Mr. Chormale Sudhir Ramanath
170.Mr. Kok Gotiram Bhausaheb
171.Mr. Pawar Manohar Narayan
173.Mr. Mane Ram Ganpat
172.Mr. Kundalwal Rohit Popatlal
174.Mr. Harak Akash Shivaji
175.Mr. Narwade Sachin L.
176.Mr. Shaikh Ubed Abdul Rasheed
177.Mr. Shaikh Kaisar Ashad
178.Mr. Shaikh Shahabuddin B.
179.Mr. Salave Samadhan Ramdas
180.Mr. Gawali Bhaskar Kashiram
181.Mr. Raorane Vipul Vilas
182.Ms. Sawadekar Shilpa M.
183.Mr. Jadhav Lahu Uttamrao
184.Mr. Gadage Sachin Bhagwanrao
185.Mr. Shaikh Zuber Iqbal
186.Mr. Mohammed Shahabaz Akhtar
187.Mr. Walunje Anil Chhagan
188.Mr. Abdul Hamid Shahabuddin
189.Mr. Gaikwad Sumit Popat .. Petitioners
All Studetns of Nath Poly TechnicalB-1, MIDC Paithan,
Tal. Paithan, District Aurangabad
Versus
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1. The Union of India
Through Principal Secretary,
Ministry of Human Development and
Resources, Delhi.
2. The All India Council For Technical Education,
Through its Chairman,
Industrial Assurance Building,
2nd floor, Veer Nariman Road,
Church Gate, Mumbai-400020
3. The Director of Technical Education,
(Desk-10),Maharashtra State,
Mahapalika Marg,
Mumbai-400 001.
4. The Secretary,
Maharashtra State Board of
Technical Education,
Bandra (E), Mumbai-400 051.
4A.The Joint Director,
Divisional Office,
Technical Education,
Aurangabad.
5. The Dy. Secretary,
Maharashtra State Board of
Technical Education (MSBT)
Regional Officer, Osmanpura,
Aurangabad.
6. Shree Sai Samajik Vikas Sanstha
"Swam" Seven Hills Colony,
Near Flyover Bridge,
Jalna Road, Aurangabad,
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7. The Principal,
Nath Poly Technic,
B-1, MIDC Paithan, Tal. Paithan,
District Aurangabad.
8. The State of Maharashtra,
Higher & Technical Education
Department, Mantralaya (Extn.)
Mumbai-400 032. .. Respondents
Ms. Kumud A. Bhatia for the petitioner in W.P. Nos.8849/07, 8309/07,
and 8851/07.
Mr. S.H. Aney, senior advocate with Mr. Ranjit Bhosale i/by Mr. V.D.
Salunke for the petitioners in W.P. Nos. 8847/07 and 8848/07.
Mr. S.R. Ganbavale for the petitioner in W.P. No.8850/07.
Mr. V.S. Masurkar, Government Pleader for the State in all the Writ
Petitions except W.P. No.8309/07.
Mr. R.P. Behere, Additional Government Pleader for the State in W.P.
No.8309/07.
Mr. P.K. Samdani, senior advocate i/by Ms. Beena Manon for All India
Council for Technical Education.
Mr. R.V. Govilkar for Respondent Nos.4 and 5 in W.P. No.8847/07.
CORAM : SWATANTER KUMAR, C.J.
A.P. DESHPANDE &
SMT. NISHITA MHATRE, JJ.
DATE OF RESERVING THE JUDGMENT : 7TH AUGUST, 2008
DATE OF PRONOUNCING THE JUDGMENT: 22ND AUGUST, 2008
JUDGMENT (Per Swatanter Kumar, C.J.)
The law is essentially mutable and requires to mould itself
with the changing need of the society. In some spheres, the laws
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emerge from values, discipline and progression of the society as a
whole. The laws normally emerge from the need of the social fabric
and they meliorate for the betterment, development and progression
of laws as well as administrative governance. Sometimes, the law
changes by amendments or new enactments as the Legislatures feel
credulous of such change. It is equally settled cannon of civil
jurisprudence that the Legislative law leaves sometimes either the
field of law untouched or the enacted law leaves vacant or gray areas
which then are supplied by judicial pronouncements. This necessity
arises not as a concept of judicial activism but more out of a need to
fill up the lacuna or supply the gaps left by the Legislature primarily to
ensure due protection against arbitrary administrative action and also
to ensure that actions are in conformity to the constitutional mandate
of equality and fairness. Education is one such field where the Judge
made law has shown greater impact by application of this principle in
matters relating to admission to educational institution. The legislative
law and more particularly the notifications issued in exercise of
subordinate legislation have lacuna or open areas in the sphere of
execution which fall short of clarity and exactitude. Without
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adherence to such judicial dictum, achievement of the real object
behind such enactments or notification is not possible. Doctrine of
merit and fairness is often trivialized by delayed administrative actions
in regard to implementation of methodology specified for admission to
various professional courses. In the present days, education is one
of the most highly competitive field where fraction of one mark even
can materially affect or alter the course of admissions on the one
hand and future of the students on the other. Ab antique it is accepted
in the principle that Actus legitimi non recipiunt modum. The purpose
of law is to be in conformity with the constitutional mandate that the
legislative or administrative action of the State should always been in
conformity with the laws in force and should essentially be devoid of
any arbitrariness or discrimination. They must have an essence of
fairness in State action and they should not only be just ex facie but in
substance should avoid wrong to the public at large. Whatever the
laws in force, the notifications issued in furtherance to the provisions
of the different Acts, the State Government policy as well as the
judicial pronouncements including those of Supreme Court of India
have without fail emphasised the need for adherence to the specified
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parameters in relation to various aspects of professional education in
the country. Even the object of judicial intervention in educational
matters is primarily aimed at scrupulously following these essential
features for maintaining proper administration of admission to different
fields in the education.
The rudiments can veritably be stated as under:
(a) The admission to academic course moreso, to
professional courses has to be strictly on merit.
Meritorious students should be given their
choice, thus, admission on merit coupled with
institution preference should be the basis.
(b) All courses and more particularly, professional
courses should essentially commence on the
date fixed for commencement for such courses.
In other words, the courses must start timely.
(c) Midstream/ midterm admissions should be
avoided and more particularly, the students in
the professional courses must go through the
complete course of education which should not
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16be reduced or narrowed for adjusting such
admissions.
(d) The professional and technical councils and
State bodies should take appropriate steps to
maintain proper educational standards in
examination and teaching courses in all its
institutions.
obligation
(e) The State, Universities and Institutions have an
and duty to maintain requisite
standard of professional excellence by giving
admission on merit to eligible students by a fair
and transparent admission process.
(f) Information and admission brochures should be
timely issued by the respective authorities which
would be binding upon the administration and
the students equally. It is not expected of any of
the authorities/institutions involved in the
process of admission to alter the conditions or
process of admission once the process has
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begun except in rare circumstances and that too
in accordance with law.
2. These are precepts stated by judicial pronouncement for
fair and timely admission to professional courses. The State issues
notifications for admissions to various courses in discharge of its
statutory obligation. Various judgments of the Supreme Court and
various High Courts have deliberated upon these issues at great
length and all uniformly have emphasised the principle of just, fair and
transparent method of admission with adherence to the rule of merit.
In fact, emphasising the need for adherence to merit in admissions,
the Constitution Bench of Supreme Court in the case of Saurabh
Chaudhary v. Union of India, 2003(11) SCC, 146, not only equated
but in fact, declared that right of meritorious student of his admission
is a fundamental right. The court while examining different aspects
including that of institutional reservation clearly stated as under:
“28. Right of a meritorious student to get
admission in a postgraduate course is a fundamental
and human right, which is required to be protected.
Such a valuable right cannot be permitted to be
whittled down at the instance of less meritorious
students.”
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3. One of the most important aspect of maintaining admissions
on merit is adherence to time schedule and granting admission at the
earliest in order of merit. Delayed display of merit list not only affects
commencing courses on time but it also affects counseling and taking
other institutional steps essential for admission to courses. It can have
adverse effect on admission on merit which totally frustrate the
process of admission of meritorious students to the institution of their
preference.
4. Divergent judicial opinions can lead to development of law
and settling the point of law which may repeatedly arise for
consideration of the court. Being influenced with this principle and
keeping to the principles of judicial propriety, a Division Bench of this
court to which one of us was a party, on 26th March, 2008 while
placing the cases for settling the controversy and position of law,
passed the following order:
“1. Learned counsel appearing for the
parties commonly state that there are divergent
views taken by different benches of this Court.
One view has been taken by the Division Bench at
the Principal Bench at Mumbai in Civil Writ Petition
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19Studies & Others V/s. Directorate of Technical
Education & Ors.) dated 20th September, 2007 andother view has been expressed by the Division
Bench at Nagpur in Civil Writ Petition No.3423 of2007 (Guru Nanak Educational Society & Anr. V/s.
The State of Maharashtra & Ors.) dated 31st
August, 2007.
2. It is not necessary for us to have any
detailed discussion. In view of the above admitted
position, it is necessary that the controversy in the
present case, including the questions of law,should be answered by a Full Bench of this Court.
3.
Let these matters be listed before the
Full Bench on 28th March, 2008 for directions.”
5. Before we proceed to examine the legal issue arising from
the order of the Division Bench in the case of Atharva Institute of
Management Studies on one hand and Guru Nanak Educational
Society on the other, it would be appropriate for us to notice the facts
giving rise to the above order of reference. Writ Petition Nos.5272 of
2007, 5276 of 2007, 5290 of 2007 and 5291 of 2007 were filed before
the Aurangabad Bench of the Bombay High Court. Writ petition
Nos.5290 of 2007 and 5291 of 2007 had been filed by Mahatma
Gandhi Mission’s Institute of Management through its Director. This
institute is run by Mahatma Gandhi Mission, a Public Trust registered
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under the Bombay Public Trust Act, 1950, which was running different
educational courses at Aurangabad and amongst others, it was
running the course of MBA since 1994. It was averred in the writ
petition that vide letter dated 24th August, 2007 which was received by
the institute by fax dated 30th August, 2007, they had been granted
permission to admit 30 more students from the academic year 2007-
2008. Obviously, these seats were available to them in addition to
their existing quota and direction was prayed against the respondent
Nos.1 and 2 to provide 30 students additionally for that academic
year. This college claimed to have been granted sanctioned intake
capacity of 60 students for MBA first year with effect from 1994 by
respondent No.3 AICTE. It may be noticed that the last date for
admission in all the courses was declared under the State policy and
in the MAH-MBA/MMS-CET-2007 information brochure published by
Director of Technical Education, Maharashtra, Mumbai for the
academic year 2007-2008 was 22nd August, 2007. The case of the
institute was that as they have received the sanctioned letter late,
though they had applied quite in time, they should be given an
additional strength of 30 students. An interim relief under clause (d)
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of the prayer clause was also prayed for by this institute which vide
order dated 14th September, 2007 was granted by the Division Bench
at Aurangabad dealing with the matter.
6. Similarly, Writ Petition No.5291 of 2007 was filed before
Aurangabad Bench by the same institute in regard to filling up of nine
additional seats which had been added to the existing strength of the
institute over and above the intake capacity i.e. 60 for the academic
year 2007-2008 for foreign nationals/PIO/ Children of Indian Workers
in gulf countries category. It was pleaded in that case that this
information was received by them in terms of the order dated 16th
August, 2007 which was received on 22nd August, 2007 and as the
admissions had already been closed by 22nd August, 2007, they could
not admit the students against this category and they should be
permitted to do so. Again an interim order was prayed for seeking
directions in terms of prayer (d) of the same prayer clause which also
was allowed by the same Bench vide its order dated 14th September,
2007.
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7. Writ petition No.5137 of 2007 was filed by Bhartiya Gramin
Punarrachana Sanstha, Aurangabad, an institute which was running
various educational courses of MBA, Engineering and Polytechnic
College, B.Ed. College, Master of Management Studies and Junior
and Senior Colleges. They made an application on 11th December,
2006 to the AICTE for grant of additional strength. After inspection,
the report was submitted to the Apex body. As the intake capacity for
existing MBA Course was granted but according to the institution, they
did not get any intervention of the Master of Computer Application
course. Therefore, they preferred an appeal before the AICTE, as a
result of which, on 10th August, 2007, the petitioner received
permission to MBA and MCA courses with intake capacity of 60. After
receiving the approval, an application was made by the petitioner to
the respondent Nos.2 and 3 who have authority to allot the students to
the said courses from the merit list of the test conducted by CET.
However, no students were allocated. Faced with these facts, the
petitioner filed writ petition before Aurangabad Bench of Bombay High
Court with the prayer that intake capacity of 60 students should be
permitted for the academic year 2007-2008. Interim order in terms of
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prayer clause (cc) of the prayer clause was also prayed. This petition
was amended even praying for grant of affiliation to the petitioner-
institute from the Dr. Babasaheb Ambedkar Marathwada University,
Aurangabad to the MCA Course for the academic year 2007-2008.
When this matter came up for admission, another Bench at
Aurangabad, while referring to the judgment of the Supreme Court in
State of Maharashtra v. Sant Dnyaneshwar Shikshan Shastra
Mahavidyalaya and others, 2006 AIR SCW 2048 and the order
passed by that Bench in Writ Petition No.4638 of 2007 on 21st August,
2007, also granted interim order in terms of prayer clause (CC) and
amended prayer clause (DD).
8. Still another writ petition being Writ Petition No.5276 of
2007 was filed by Shri Sai Samajik Vikas Sanstha at Aurangabad. It
was claimed by the petitioner that they were running diploma courses
in Engineering (Polytechnic) in different trades for the academic year.
They had issued advertisement on 2nd December, 2006 inviting
applications for the purposes of granting permission to start the
Diploma courses in Engineering for the academic year 2007-2008. An
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24
application was submitted by them to respondent No.3 Director of
Technical Education on 29th December, 2006. After conducting the
inspection and vide letter dated 15th January, 2007, they were
informed that there were certain shortcomings in the documents and
the same should be removed. Thereafter, local enquiry committee
was constituted and the petitioner was directed to deposit the
requisite fee for visit of the committee. On 23rd February, 2007,
petitioner deposited the said fee. The committee visited the institution
and thereafter, certain shortcomings were to be complied with. The
committee visited the institute on 22nd July, 2007 and the proposal
was recommended on 13th August, 2007. The respondents did not
act timely and as respondents did not take decision, the present writ
petition was filed with the prayer that respondent No.3 be directed to
forward their recommendations and the decision be taken in that
regard by respondent No.5 for the academic year 2007-2008. Interim
order was also prayed that respondent No.5 be directed to take
immediate decision to forward the proposal and they be permitted by
an interim order. This writ petition was also amended by which, it was
prayed that respondent Nos.3 and 4 should grant approval to the
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25
petitioner to admit the students to the four courses including Diploma
in Computer Engineering and to grant approval of admissions made
by the petitioner-institute to the said four course in pursuance to the
approval granted by AICTE dated 10th September, 2007 and also to
declare results and take steps of further admissions. The Division
Bench at Aurangabad vide its order dated 14th September, 2007,
granted interim prayers in terms of clauses (DD) and (EE) subject to
the condition stated in the letter dated 1st September, 2007 issued by
the Director, Maharashtra State Technical Education Board.
9. Writ Petition No.5272 of 2007 was filed by Vishwabharati
Academy’s College of Engineering, Ahmednagar. Petitioner No.1 was
an Engineering College and had been duly recognized. It was
granted approval by All India Council for Technical Education vide
their letter dated 7th August, 2007. After following the requisite
procedure and inspection of the college, the said approval was
granted. It was stated that despite the said order, respondent No.2 is
refusing to give permission for admission to the students to the
petitioner primarily on the ground that admission date was over. It was
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26
done on the ground that after the cut off date if the approval was given
by All India Council for Technical Education , the students would not
be allocated. Referring to an order passed by the Division Bench at
Nagpur Bench of this court, it was prayed that order should be passed
setting aside the approval dated 8th August, 2007 and the petitioner
should be permitted to take the students for admission to the course
of Engineering. This writ petition was ordered to be circulated on 13th
September, 2007. It appears that the interim order was earlier passed
in this case on 13th September, 2007 in Civil Application No. 17647 of
2007.
10. Writ Petition No.8309 of 2007 was filed nearly by 189
students of Nath Polytechnic, Taluka Paithan, District Aurangabad
impleading Union of India, the State Government, AICTE, Director of
Technical Education, Maharashtra State, Mumbai as well as Shree
Sai Samajik Vikas Sanstha which was running the said institute
(which had also filed Writ Petition No.5276 of 2007 at Aurangabad) at
the principal seat of High Court at Bombay stating that the students
were pursuing their Engineering courses in different faculties run by
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27
respondent No.6 i.e. Diploma in Mechanical Engineering, Information
Technology, Civil Engineering and Electronic Engineering etc. They
had taken admission in Nath Polytechnic bonafidely. They further
stated that they have been informed by the official respondent, that
the Maharashtra State Board of Technical Education i.e. Respondent
No.5 has refused to accept their examination forms on/or about 12th
November, 2007 on the ground that respondent No.7 is not affiliated
to Maharashtra State Board of Technical Education, Mumbai which is
Exhibit `A1′ to that writ petition. They also referred to writ petition
No.5276 of 2007 while relying upon the letter of the AICTE dated 10th
September, 2007 and praying for due recommendation of leave to
admit the students in all those courses. Other facts stated in the writ
petition are similar to that of Writ Petition No.5276 of 2007. In the
circumstances, the students prayed for issuance of appropriate writ
directing respondent Nos.3 to 5 and respondent No.8 to accept
examination forms of the petitioners for the first semester of first year
and accept the duly filled-in forms and further grant them permission
as students of Nath Polytechnic College, run by respondent No.6 to
appear for the said practical examinations and theory examinations
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28
commencing from 20th November, 2007. Interim and ad-interim reliefs
were prayed in terms of clause (c). When the matter came up before
the Division Bench at Bombay, vide order dated 15th November, 2007
direction was issued to the respondents to permit the students to
appear for the examination and not to declare the results without
further orders of the court. When this writ petition i.e. Writ petition
No.8309 of 2007 was listed before another Division Bench of this
court on 26th March, 2008 when the Division Bench noticed the
conflict between the orders of the two Division Benches in the case of
Atharva Institute of Management Studies and Guru Nanak
Educational Society and referred the matter to the Full Bench on 8th
April, 2008, the Bench passed the following order:
“We are informed at bar that Writ Petition
No.5276 of 2007 filed by the Management is pending
before the Hon’ble the Chief Justice wherein issue ofpermission granted by AICTE into Respondent Nos.6
and 7 is under consideration. This petition is filed by
the students who were admitted after the said
permission and, therefore, we find it appropriate that
this petition be heard along with Writ Petition No.5276of 2007 wherein main issue is pending. Therefore, we
direct the office to place this petition before the
Hon’ble The Chief Justice on or before 22nd April
2008.”
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29
That is how all these writ petitions after transfer have been listed
before the Full Bench for answering the question of law and for
settling the controversy arising from these orders.
11. In furtherance to order of the Court, the Registry had put up
a note before the Chief Justice stating that all the five writ petitions
which were filed at Aurangabad were pending and in view of the order
passed in writ petition No.8309 of 2007, order was sought whether
only writ petition No.5276 of 2007 should be transferred or all the writ
petitions raising the same question should be transferred, particularly,
in view of the reference being made to the Full Bench. After obtaining
the orders of the Chief Justice, all these writ petitions were transferred
to the Principal Bench at Bombay and upon transfer, they were re-
registered as writ petition Nos.8847 of 2007, 8848 of 2007, 8849 of
2007, 850 of 2007 and 8851 of 2007 and were put up for hearing
before the Full Bench.
12. We may notice at the very outset that in none of these
cases, reply has been filed on behalf of any of the respondents. In
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30
fact, there is hardly any controversy on facts and learned counsel
appearing for the parties had, more or less, argued all matters on law
and policies keeping in view the admission and information brochures
issued by the State Government or the institutes as the case may be.
13. Guru Nanak Educational Society and other institutions had
filed writ petitions at Nagpur Bench of this court which came up for
hearing before the Division Bench relating to the admission for
academic year 2007. Guru Nanak Educational Society which had
started new Engineering College, made an application on 30th
October, 2006 for starting the college with intake capacity of 60. Vide
letter dated 31st July, 2007, the AICTE had also forwarded to the
petitioner and State of Maharashtra their permission to start an
Engineering college having four courses within intake capacity of 60.
The petitioner applied to the State of Maharashtra for permission to
start the college. As no action was taken, the writ petition was filed on
6th August, 2007. The admission process had begun and the first
round was conducted on 19th August, 2007, requiring the candidates
to join on 21st August, 2007 and the cut-off date for all admissions to
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31
Engineering and Technology Course was 31st August, 2007.
Somewhat similar were the facts in the other writ petitions listed along
with this writ petition. The court vide its judgment dated 31st August,
2007, made the rule absolute and issued certain directions including
holding of a special round of counseling for the remainder of the list of
qualified candidates who have not been admitted and allot the
students to the petitioner-Institutions giving a clear 7 days notice and
process of counseling should commence from 12th September, 2007.
In this judgment, reference was made to various interim orders or
orders in the different writ petitions. However, as it appears, the
recent judgment of the Bombay Bench in the case of Atharva Institute
of Management Studies and many other judgments and interim orders
were not brought to the notice of the Bench. Noticing that adherence
to the golden rule of merit-cum-choice, the State should have
complied with the directions issued by the court in different orders.
This judgment of Nagpur Bench was assailed before the Supreme
Court by the State of Maharashtra and vide order dated 6th
September, 2007, the Supreme Court while declining to interfere in
the order, made it clear that students who had already been admitted
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32
in various institutions, their admissions shall not be disturbed in
furtherance to the order of the Division Bench and the State should
complete the process of admission on/or before 17th September, 2007
by holding only one round of admission. Special Leave Petition was
disposed of accordingly. However, merits of the case and the legal
issues arising therefrom were not discussed by the Supreme Court as
the matter itself was disposed of upon mentioning and taking the
matter on board.
14. It may also be noticed that Division Bench of this court at
the Principal Bench in the case of Yerala Medical Trust & Research
Center and others v. State of Maharashtra and others, 2006(1) Bom.
C.R. 701, decided on 15th September, 2005 much prior to the decision
of the Nagpur Bench referred to the directions issued by another
Bench in Writ Petition No.3196 of 2001 wherein intake cut-off date
was fixed as 30th June, 2005 and it is on this account that the
respondents did not grant permission or approval to the new
institutions. The Bench while maintaining the concept of cut-off date
for intake capacity as set down in that judgment, issued further
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33
directions. The directions issued read as under:
“10. In the light of that, the Petition can be
disposed of by issuing the following directions:
i) The State Government will consider the
intake capacity as on 30th June, 2005 to
commence the process for filling in seatssubject to what is set out hereunder;
ii) If before the last date of the
admission/counseling process, AICTEincreases the intake of existing institutions
or grants permission for new colleges, the
State igGovernment will take
consideration such additional seats and
take steps to fill in these seats from
intoamongst students already on their list and
without interfering with the admission
process already completed;
iii) This would, however, be subject to the
condition that such institutions must have
affiliation in terms directed by Respondent
No.3 and the institutional students are in a
position to complete the necessary number
of days for appearing for the examinationin terms fixed by Respondent No.3 as
followed by Respondent No.6.
iv) It is made clear that those who have
already been admitted before theincreased intake or approval by
Respondent No.3 by granting approval of
new institutions or additional intake will not
be entitled to apply nor will the State
consider their applications for admission in
the new college where approval has been::: Downloaded on – 09/06/2013 13:43:04 :::
34granted or intake increased.”
15. In writ petition No.6327 of 2006, Pravara Rural Education
Society v. The State of Maharashtra and another, alongwith other
matters, another Division Bench of this court noticing the peculiar
facts of that case accepted the contention that from the next year,
addition of new colleges or increase intake capacity should be
permitted upto 30th June as the same goes to disturb the whole
process of admission and no finality is reached. On behalf of the
Government, it was stated that Director of Technical Education will
notify the availability of seats with the petitioners- colleges on the
website and consider the candidates who are eligible for the fourth
round for admission of the petitioner-college. In no uncertain terms,
the Bench directed as under:
“We direct that from the next year students shall not
be admitted in colleges/institutions who are granted
permission to start the course after 30th June of that
year, so also, no additional intake capacity would
be taken into consideration if the same has beenincreased after 30th June of the year. It is further
made clear that there shall be no further/additional
round after the fourth round which is scheduled on
15th September, 2006.”
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35
16. Still in another Division Bench at the Principal Seat in the
case of Marwadi Vidyalaya Trust v. the State of Maharashtra and
others, writ petition No.2215 of 2006, decided on 12th September,
2006, held as under:
“5. We agree with the Petitioners that
considering the law declared by the Apex Court in
the matter of approval for opening a college, to the
extent that AICTE Act operates in the field, theprovisions of the local Act including University Act
to that extent would not be applicable. Thathowever, does not mean that the institution to
whom approval has been granted need not take
affiliation from the University. AICTE itself wasaware of the position and has inserted the clause
requiring institutions to whom approval is granted
to make admissions only after grant of affiliation by
the University/State Board to start the course. It isthus clear that it will not be open to the Petitioner
institution to admit students without first gettingaffiliation. At the highest the Petitioners may point
out to the University at the stage of affiliation that
they may not be required to go through the entire
gamut or process for grant of approval which hadalready been undertaken by the AICTE. The
Institution however, will have to comply with other
requirements before getting first time affiliation to
start the courses.
6. In the instant cases, therefore,
considering the condition imposed by AICTE and
the directions issued by us in Yerla Medical Trust
(supra), we are of the considered opinion that on
the facts of the present cases, it will not be possible
for us to issue directions which have been prayed::: Downloaded on – 09/06/2013 13:43:04 :::
36for. In the light of that, Rule discharged in all the
Petitions. There shall be no order as to costs.”
17. After considering these views, the Division Bench of this
court in the case of Atharva Institute of Management (supra) followed
the view taken by the different Division Benches in these cases. As
there was considerable variation in the view expressed in the orders
noticed by Nagpur Bench in Guru Nanak case (supra) and all other
writ petitions including Atharva Institute of Management case,
reference to larger Bench was inevitable so that the position of law as
well as controversies raised in these Writ Petitions are well settled.
18. In process of admission to professional colleges relating to
technical courses, primarily three institutional bodies are involved. (i)
All India Technical Council for Technical Education, (ii) State of
Maharashtra through Director of Technical Education and (iii)
University to which such institution is affiliated. The role of all these
institutions is distinct and different but for a common object. Primacy
of the role of All India Council for Technical Education (AICTE) is now
well settled but that certainly does not mean that role of the State
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37
Government and for that matter the University is without any purpose
or of no importance.
19. The Division Bench of this Court in the case of Atharva
Institute of Management (supra) by following the views expressed by
different Division Benches of this Court in earlier cases, stated the
principle that there has to be cut off date after which the intake
capacity cannot be given effect to and process of admission to the
students in those courses cannot be continued over an indefinite
period. The Bench also issued certain directions.
Role of various Authorities
20. As is evident from the factual matrix of these cases, the
colleges are blaming one institution or the other including the State for
the delay in disposal of their applications for increased intake or
commencement of fresh courses. It is averred that the applications
were made quite in time and even after the inspections were
conducted approval was not granted, while in other cases even the
approval was granted but sanction by the Director of Technical
Education to start the course was not given before the cut off date
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38
leading to great hardship. As far as the technical courses are
concerned, it is settled position in law now that the All India Council
for Technical Education is the paramount body for granting the
approval to the various colleges for increased intake or
commencement of fresh course. There is definite responsibility upon
the Council to ensure maintenance of educational standards as well
as to ensure that the prescribed parameters for imparting of such
educational courses including the infra-structure, etc. are strictly
adhered to.
21. In the case of State of Tamil Nadu and another vs.
Adhiyaman Educational & Research Institute and others, 1995 (4) SCC
104, the Supreme Court while discussing various aspects in regard to
constitutional validity of Tamil Nadu Private College Regulation Act,
1976 and the provisions of the All India Council for Technical
Education Act clearly spelled out the preferential role of the Council
as under :-
“22. The aforesaid provisions of the Act
including its preamble make it abundantly clear
that the Council has been established under the
Act for coordinated and integrated development of::: Downloaded on – 09/06/2013 13:43:04 :::
39the technical education system at all levels
throughout the country and is enjoined to promotequalitative improvement of such education in
relation to planned quantitative growth. TheCouncil is also required to regulate and ensure
proper maintenance of norms and standards in the
technical education system. The Council is further
to evolve suitable performance appraisal systemincorporating such norms and mechanisms in
enforcing their accountability. It is also required to
provide guidelines for admission of students and
has power to withhold or discontinue grants and tode-recognise the institutions where norms and
standards laid down by it and directions given by itfrom time to time are not followed. This duty and
responsibility cast on the Council implies that the
norms and standards to be set should be such aswould prevent a lopsided or an isolated
development of technical education in the country.
….. …….. ………….
…. It is necessary to bear this aspect of the norms
and standards to be prescribed in mind, for a
major debate before us centered around the right
of the States to prescribe standards higher than
the one laid down by the Council. What is further
necessary to remember is that the Council has on
it representatives not only of the States but also of
the State Universities. They have, therefore, a say
in the matter of laying down the norms and
standards which may be prescribed by the Council
for such education from time to time. The Council
has further the Regional Committees, at present,
at least, in four major geographical zones and the
constitution and functions of the Committees are to
be prescribed by the regulations to be made by the
Council. Since the Council has the representation
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40
of the States and the provisional bodies on it which
have also representation from different States and
regions, they have a say in the constitution and
functions of these Committees as well. ….”
22. Further, the Court while noticing the inconsistency between
the Central and State statutes or the State authorities acting contrary
to the Central statute, held as under :
“(vi) However, when the situations/seats are
available and the State authorities deny an
applicant the same on the ground that the
applicant is not qualified according to its standardsor qualifications, as the case may be, although the
applicant satisfies the standards or qualifications
laid down by the Central law, they act
unconstitutionally. So also when the State
authorities de-recognise or disaffiliate an institutionfor not satisfying the standards or requirement laid
down by them, although it satisfied the norms and
requirements laid down by the Central authority,
the State authorities act illegally.
……… ……….. ………..
43. As a result, as has been pointed out
earlier, the provisions of the Central statute on the
one hand and of the State statutes on the other,being inconsistent and, therefore, repugnant with
each other, the Central statute will prevail and the
de-recognition by the State Government or the
disaffiliation by the State University on grounds
which are inconsistent with those enumerated in
the Central statute will be inoperative.”
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41
23. Still, in another case of Jaya Gokul Educational Trust vs.
Commissioner & Secretary to Government Higher Education Deptt.,
Thiruvananthapuram and another, AIR 2000 SC 1614, the Court
reiterating the above principle, held as under :-
“22. As held in the Tamil Nadu case (1995 AIR
SCW 2179), the Central Act of 1987 and ;inparticular, Section 10(K) occupied the field
relating the `grant of approvals’ for establishing
technical institutions and the provisions of theCentral Act alone were to be complied with. So
far as the provisions of the Mahatma Gandhi
University Act or its statutes were concerned and
in particular statute 9(7), they merely required theUniversity to obtain the `views’ of the State
Government. That could not be characterised asrequiring the “approval” of the State Government.
If, needed, the University statute could be so
interpreted, such a provision requiring approval of
the State Government would be repugnant to theprovisions of Section 10(K) of the AICTE Act,
1987 and would again be void. As pointed out in
the Tamil Nadu case there were enough
provisions in the Central Act for consultation by
the Council of the AICTE with various agencies,including the State Governments and the
Universities concerned. The State Level
Committee and the Central Regional Committees
contained various experts and State
representatives. In case of difference of opinion
as between the various consultees, the AICTE::: Downloaded on – 09/06/2013 13:43:04 :::
42would have to go by the views of the Central Task
Force. These were sufficient safeguards forascertaining the views of the State Governments
and the Universities. No doubt the question ofaffiliation was a different matter and was not
covered by the Central Act but in the Tamil Nadu
case, it was held that the University could not
impose any conditions inconsistent with theAICTE Act or its Regulation or the conditions
imposed by the AICTE. Therefore, the procedure
for obtaining the affiliation and any conditions
which could be imposed by the University, couldnot be inconsistent with the provisions of the
Central Act. The University could not, therefore,in any event have sought for `approval’ of the
State Government.”
24. This view of the Supreme Court was reiterated with
approval by a larger Bench of the Supreme Court in the case of State
of Maharashtra vs. Sant Dnyaneshwar Shikshan Shastra Mahavidyalaya
and others, (2006) 9 SCC 1. While discussing in detail the various
legal issues in relation to affiliation/ recommendation of the institution
and permission to start new college, while permission was granted
under Section 14 of the NCTE Act in that case, the impediment
caused by the State were held to be unjustifiable in fact and in law
and the Court held as under :-
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43
“53. The Court then considered the argument
put forward on behalf of the State that while it
would be open for the Council to lay down
minimum standards and requirements, it did not
preclude the State from prescribing higher
standards and requirements.
54. Negativing the contention, the Court
quoted with approval the following observations of
B.N. Rau, J. in G.P. Stewart v. Brojendra Kishore
Roy Chaudhury:
“It is sometimes said that two laws
cannot be said to be properly repugnant unless
there is direct conflict between them, as when one
says `do’ and the other `don’t’, there is no true
repugnancy, according to this view, if it is possible
to obey both the laws. For reasons which we shall
set forth presently, we think that this is too narrow
a test; there may well be cases of repugnancy
where both laws say `don’t’ but in different ways.
For example, one law may say `no person shall
sell liquor by retail, that is, in quantities of less than
five gallons at a time’ and another law may say,
`no person shall sell liquor by retail, that is, in
quantities of less than ten gallons at a time’. Here,
it is obviously possible to obey both laws, by
obeying the more stringent of the two, namely, the
second one; yet it is equally obvious that the two
laws are repugnant, for to the extent to which a
citizen is compelled to obey one of them, the
other, though not actually disobeyed, is nullified.”
64. Even otherwise, in our opinion, the High
Court was fully justified in negativing the argument
of the State Government that permission could be
refused by the State Government on “policy
consideration”. As already observed earlier, policy
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44
consideration was negatived by this Court in
Thirumuruga Kirupananda Trust as also in Jaya
Gokul Educational Trust.
74. It is thus clear that the Central
Government has considered the subject of
secondary education and higher education at the
national level. The Act of 1993 also requires
Parliament to consider teacher-education system
“throughout the country”. NCTE, therefore, in our
opinion, is expected to deal with applications for
establishing new Bed colleges or allowing increase
in intake capacity, keeping in view the 1993 Act
and planned and coordinated development of
teacher- education system in the country. It is
neither open to the State Government nor to a
university to consider the local conditions or apply
“State policy” to refuse such permission. In fact,
as held by this Court in cases referred to
hereinabove, the State Government has no power
to reject the prayer of an institution or to overrule
the decision of NCTE. The action of the State
Government, therefore, was contrary to law and
has rightly been set aside by the High Court.”
25. The above enunciated principles clearly show that the
Council is the authority constituted under the Central Act with the
responsibility of maintaining education standards and judging upon
the infra-structure and facilities available for imparting such
professional education. Its opinion is of utmost importance and shall
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45
take precedence over views of the State as well as that of the
University. The concerned Department of the State and the affiliating
University has a role to play but it is limited in its application. They
cannot lay down any guidelines or policies which would be in conflict
with the Central statute or the standards laid down by the Central
body. State can frame its policy for admission to such professional
courses but such policy again has to be in conformity with the
directives issued by the Central body. In the present cases, there is
not much conflict on this issue, but it needs to be clarified that while
the State grants its approval and University its affiliation for increased
intake of seats or commencement for a new course/college, its
directions should not offend and be repugnant to what has been laid
down in the condition of approval granted by the Central authority or
Council. What is most important is that all these authorities have to
work ad idem as they all have a common object to achieve i.e. of
proper imparting of education and ensuring maintenance of proper
standards of education, examination and ensuring proper infra-
structure for betterment of educational system. Only if all these
authorities work in a coordinated manner and with cooperation they
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46
would be able to achieve the very object for which all these entities
exist.
Information and Admission Brochure
26. For ensuring adherence to proper appreciation of a
academic course, it is essential that the method of admission is just,
fair and transparent. The first step in this direction would be
publication of a brochure on the basis of which the applicants are
supposed to aspire for admission to various institutions keeping in
mind their merit and preference of colleges. Brochure, whether
information or admission, firstly has to be in conformity with law and
the statutory scheme notified by the competent authority. It is a
complete and composite document as it deals with the scheme for
conducting their entrance examinations, declaration of results,
general instructions and method of admission, etc. This brochure is
binding on the applicants as well as all the authorities. This brochure
or admission notification issued by the State or other competent
authority cannot be altered at a subsequent stage particularly once
the process of admission has begun. There is hardly any exception to
this accepted rule of law.
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47
27. The Full Bench of the Punjab & Haryana High Court in the
case of Raj Singh vs. Maharshi Dayanand University, 1994 (4) Recent
Services Judgments 289, following the earlier Full Bench of the Court
in the case of Amardeep Singh Sahota vs. The State of Punjab, etc.
(1993-2) Punjab Law Reporter 212, held that the brochure is binding
on the applicant as well as the institute and has the force of law.
28. The view of the Full Bench was dilated to some extent by
the Supreme Court in the case of Rajiv Kapoor and others vs. State of
Haryana and others, AIR 2000 SC 1476, where the Court held that
the Government may have the power to issue directions laying down
any criteria other than the one contained in the prospectus, but such
criteria essentially has to be within the limits and even if the modified
criteria envisaged under the earlier order is to be eschewed from
consideration, the earlier order providing for criteria and the manner of
assessment of merit could not be given a go bye. In other words, the
variation of a public notification has to be essentially at the
appropriate stage and within the limits prescribed by law.
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48
29. Coming to the present case, the entire process of
admission to the increased seats and/or fresh courses has to be in
conformity with the information brochure issued by the Directorate of
Technical Education, Maharashtra State, Mumbai being MAH-MBA/
MMS – CET 2007 and the technical courses are to be controlled by
Directorate of Technical Education, Maharashtra State, Mumbai
where it provides for submission of applications, their scrutiny and the
method by which the admission would be given. Notification dated 21st
July 2007 publishing the schedule of activities for CAP Round II and
III and CAP round IV by counseling. It specifies the table of seats
available, the date on which the seats will be available, date of receipt
for application, table of provisional allotment list and various other
intervening dates stating that the last date for grant of admission
would be 9th August 2007 where the candidates are supposed to
report on 10/11 August 2007, classes would commence from 13th
August 2007 and cut off date for all admissions to all these courses
MBA, MMS etc. was fixed as 22nd August 2007.
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49
30. Similarly, in the technical course, the Director of Technical
Education had under Clause 26.4.4. stated the sanctioned intake for
various courses in various institutions for the academic year 2007-08.
That also provided for admission rounds and admission to the college
was to be confirmed by the respective institutions. Annexure 5 of this
brochure had provided the detailed information of different institutions
and courses as per AICTE communication where the seats were
available to the candidates.
31. All the authorities concerned are bound by these terms and
conditions and in any case there has not been any violation in the
information or admission brochure issued by the respective
institutions. What really needs to be noticed is that in the brochure
declared for the academic year 2007, the higher intake of seats or
commencement of the new courses were not shown in Annexure 5 to
the brochure and for that matter in any of the list released by the
State.
32. The calendar issued by the AICTE for the academic year
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50
2007 clearly indicated that the approval process requires an LOI to be
issued which will be valid for three years and letter of approval for a
period of two academic years. It was stated that the applications
could be moved in time around the year. However, the applications
completed in all respects received upto 31st December shall be
considered for the following academic year and applications received
after 31st December shall be considered for the next academic year.
Under clause 4 of the advertisement issued, it was further clarified
that the letter of approval for the current academic year shall be
issued by 30th June, completed applications received by 31st
December of the previous calendar year and the letter of approval
issued after 30th June shall not be valid for the current academic year
but shall be valid for the next two academic years.
33. On the cumulative reading of the brochure and the calendar
issued by AIETC, it is clear that dates of admission, commencement
of courses and issuance of LOI/LOA are sacrosanct and have to be
strictly adhered to. Such an approach in fact would be in consonance
with the law as well as would help to achieve the object of better
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51
education, timely commencement of course as well as adherence to
the rule of merit. It is only if these dates are treated as sacrosanct,
that there will be no prejudice to the applicants, institutions or
authorities regulating the process of admission.
34. Another important aspect of process of admission is merit
coupled with preference of institution of the meritorious students. In
Saurabh Chaudhary’s case (supra), the Supreme Court noticed with
some significance the importance of merits in such matters and even
equated right of a meritorious candidate to get admission to “a
fundamental right and human right” though in relation to a post
graduate course. This principle will be equally applicable to other
courses of education. This being the importance of merit, every effort
is expected to be made by all the organs involved in the process of
admission to ensure that the criteria of merit is not permitted to be
frustrated by adopting any direct or indirect method. A Division Bench
of this court in the case of Shri Vile Parle Kelavani Mandal and others
v. State of Maharashtra and others, decided on 13th March, 2008
clearly stated the principle that even while selecting and admitting the
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52
students to a special category including their community, interse merit
of those students cannot be ignored and admission must be made
strictly on the basis of merit. While referring to the case of T.M.A. Pai
Foundation vs. State of Karnataka, 2002(8) SCC 481, the Bench
further illustratively stated that every process of admission has to be
fair, transparent and should not defeat the merit whether for
admission of internal or external candidates. Still in the case of
Muskan Dogra and others v. State of Punjab and others, (2005) 9 SCC
186, the Supreme Court while directing adherence to rule of high
merit, held:
“We can appreciate the magnanimity but not when
it is entirely at the cost of merit. We do not wish to
send a message that merit can be blatantlycompromised when, in fact, it comes to the stage of
issuing directions.”
Thus, the settled principle of law is that merit of the applicant is the
primary criteria which would determine his rank as well as the college
where he would be entitled to admission. This rule should not be
frustrated as that will tantamount to entirely upsetting the object of
admissions based on merit oriented method and would cast cloud on
the fairness and transparency of the method of admission. One of the
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53
ways in which merit can be defeated is allowing increase in the intake
strength or commencement of the new colleges beyond cut-off date
and admissions beyond the last date specified in the
notification/calendar issued by the concerned authorities. We may
illustrate this by giving an example. College `A’ which is running a
professional course like Engineering or MBA etc has an intake
capacity of 60 seats which has duly been notified in the information
brochure like the one which is part of Annexure 5. However, after the
cut-off date, approval is granted by the AICTE and thereafter, the
process is taken up by the State and the intake capacity of the college
is increased by 30 more seats. These seats would obviously, not be
notified in the information brochure and the candidates who are
meritorious and for whom college `A’ be the college of preference
could not get seats or give preference as the seats were limited.
None had the proper knowledge about the increase in intake of seats
though at a much subsequent stage and may be even after the last
date of admission is over either by themselves or under the order of
the court even if it is put on the Internet or given in the newspaper, the
candidates of higher rank or meritorious candidates would not be able
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54
to avail of that benefit because they have already submitted the
testimonial, have paid their fees and the courses have commenced.
In that situation, for variety of reasons, they may not be able to take
admission in the institution of their higher preference while the
candidates of much lower merit will be admitted to that course.
Besides defeating the merit, it has been commonly noticed that the
late admissions made by the colleges directly affect notified
candidates who have questioned it more than often as their admission
process is not so just, fair and transparent which has given rise to the
litigation. It is also a kind of back door entry method.
35. Another serious consequence that results from such
admissions is shortening of the academic courses in an undesirable
manner. It is expected of other candidate selected to a professional
course that he or she would complete the course in its entirety and
not by missing more than a month or so in joining the said course.
This results in lowering the excellence of education as well as harms
the academic standard of professional education. During the course
of arguments, it was stated before us by the counsel appearing for the
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55
State as well as the other counsel that in professional courses, each
semester must consist of 16 weeks of actual study. This criteria can
never be satisfied if the students are admitted mid stream much after
the commencement of the courses which in the present case had
started in the middle of August. Besides all this, these decisions of
such serious consequences being taken up at the nick of time in
undue haste amounts to defective governance to the admission of
professional courses. Once the process of admissions is concluded,
it will be unfair to the very system of fair and transparent admission
process to grant new admissions. In the present times where there is
very tough competition for seeking admission to professional colleges
of preference, there cannot be a greater unfairness than to defeat the
admission of a meritorious candidate by any of such processes. In
the case of Medical Council of India v. Madhu Singh and others, AIR
2002 SC 3230, the Supreme Court while recording its conclusions in
relation to admission to professional courses like medicine, held as
under:
“23. It is to be noted that if any student is
admitted after commencement of the course it
would be against the intended objects of fixing a
time schedule. In fact, as the factual positions go::: Downloaded on – 09/06/2013 13:43:05 :::
56to show, the inevitable result is increase in the
number of seats for the next session toaccommodate the students who are admitted after
commencement of the course for the relevantsession. Though, it was pleaded by learned
counsel for respondent No.1 that with the object
of preventing loss of national exchequer such
admissions should be permitted, we are of theview that same cannot be a ground to permit
midstream admissions which would be against the
spirit of governing statutes. His suggestion that
extra classes can be taken is also not acceptable.
The time schedule is fixed by taking into
consideration the capacity of the student to study
and the appropriate spacing of classes. The
students also need rest and the continuous taking
of classes with the object of fulfilling requisite
number of days would be harmful to the students’
physical and mental capacity to study. In fact
such a suggestion was held to be grossly
inappropriate in Dr. Dinesh Kumar’s case (supra).
In paragraph 15, it was observed as under:
“The next question is as to when should
be examination be held. Learned
counsel for the Union of India as also the
Indian Medical Council suggested that itcould be done in October this year so
that the candidates selected at the
entrance examination could join the
1987-88 session from November. In
most of the colleges, admission inrespect of 85 per cent seats has been
completed and actual teaching has either
begun or is about to begin. By
November a substantial part of the
course would have been read. To meet
the situation, learned counsel for the::: Downloaded on – 09/06/2013 13:43:05 :::
57Union of India suggested that we should
direct the colleges and institutions tohave a supplementary course for the
students admitted against the 15 percent vacancies. In the absence of
consent from the institutions, it would be
difficult to work out that. As it is, there
exists a lot of confusion in the field andwe do not propose to add to it by giving a
direction of the type proposed. On the
other hand it would be appropriate to
bring the scheme into operation from thecoming year so that all the preliminaries
can be properly conducted and in regularcourse the students can seek admission
to the 1988-89 session. We accordingly
direct the authorities to hold theexamination in the manner directed, in
June (sic May) 1988. The Union of India,
the Medical Council the Dental Council,
the several States, Universities and
Medical Colleges or institutions who arecovered by the scheme are directed to
comply with these orders in time so as to
give full effect to what has been said
here”
(Underlined for emphasis)
36. The law settled in this regard is consistent. The views
expressed by the various High Courts and even by the Supreme
Court in its subsequent judgments unambiguously emphasise the
need for commencement of course in time, impermissibility of mid-
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58
term admission and maintaining merits. In the case of Mridul Dhar
(Minor) and another v. Union of India and others, (2005) 2 SCC 65,
even while dealing with the case of secondary students, the Supreme
Court held as under:
“32. Having regard to the professional
courses, it deserves to be emphasised that all
concerned including Governments, State and
Central both, MCI/DCI, colleges – new or old,students, Boards, universities, examining
authorities, etc. are required to strictly adhere tothe time schedule wherever provided for; there
should not be midstream admissions; admissions
should not be in excess of sanctioned intakecapacity or in excess of quote of anyone, whether
State or management. The carrying forward of any
unfilled seats of one academic year to next
academic year is also not permissible.”
37. After enunciating the above principle, the Supreme Court
further issued directions fixing the time schedule for declaration of
results of 10+2 course, issuance of mark sheet and then notification
of time table and strict adherence to the specified schedule. In the
case of Medical Council of India v. Naina Verma and others, (2005) 12
SCC 626 while referring to its earlier view expressed in the case of
Muskan Dogra (supra), the Supreme Court has reiterated its judicial
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59
dictum that the students must complete their professional courses
with effect from day one. There is no short circuiting of process of
education by means of litigation or otherwise and deprecated the
practice of midstream admissions.
38. Non-adherence to schedule and granting untimely or
midstream admissions have their adverse effects on the education
system itself.
Besides others, it also introduces the element of
arbitrariness and defeating the merit oriented admissions. It is
expected of all the bodies including the Central Council to work in
coordination and ensure adherence to the notified calendar for
admissions. Breach of this solemn object often results in
disfunctional or un-reconcilable situation. The courts have in some
cases granted admissions to balance the equities between the
parties but jurisdiction of equity can hardly be exercised to defeat the
law and particularly the merit. The courts would not and may not be
able to supervise the admission process and, therefore, it is more
than essential that court exercises its extraordinary jurisdiction under
Article 226 of the Constitution of India in accordance with the
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60
notifications and the judgments of the Supreme Court which alone will
further the cause of fairness in admission process and excellence of
educational standard.
39. The Division Bench of this court in the case of Atharva
Institute of Management (supra), after noticing the various judgments
of the Supreme Court as well as the directions issued by different
Benches of this court had not only prescribed the need for adherence
to uniform standard and to the cut-off date but also noticed the further
difficulty that the college is not entitled to admit the students merely
on the ground that AICTE has granted its approval. It has to be
supplemented by proper exercise of power by the statutory
authorities. The satisfaction of such authorities, obviously, has to be
in consonance with the conditions imposed by the AICTE. The Bench
dealing with the difficulties posed by the State Government in
implementation of eleventh hours increase in intake strength etc.,
issued the following directions:
“9. The State Government has, in the course
of these proceedings, set out the serious difficulties
that arise in implementing the admissions process if
AICTE grants approval throughout the year in an::: Downloaded on – 09/06/2013 13:43:05 :::
61unregulated manner. This, it has been stated, would
cause irreparable loss, hardship and immenseinconvenience to students. An increase in the
number of seats for a particular academic year canoccur for one of the following reasons viz., : (i) An
approval granted for opening of a new College; (ii)
An approval granted for opening of a new course in
an existing affiliated College; and (iii) An approvalgranted for an increase in the intake capacity of an
approved affiliated old course conducted by an
existing approved and affiliated College. The State
Government has stated that if approval is granted onthe eve of the commencement of admission, such
additional seats should not be made available for thegrant of admissions in the particular Academic Year
for several reasons:
(i) The educational institution is not
immediately entitled to admit students merely on the
ground of approval by AICTE, because AICTE grants
approval subject to the fulfillment of various
conditions. Hence, unless an exercise is conductedby the statutory authority to record a finding that such
conditions subject to the fulfillment of which approval
has been granted by AICTE are, in fact, fulfilled,
admissions cannot be granted in furtherance of the
approval. This process of recording the satisfactoryfulfillment of the conditions prescribed by AICTE
takes time and cannot be completed before the
commencement of the admissions process if the
approval received from AICTE is on the eve of the
commencement of admissions;
(ii) Upon the approval by AICTE, institutions
are required to obtain affiliation from the concerned
University. The process of affiliation takes a few
months since it involves inspection by a local
Inspection Committee and the consideration of the
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62
report of the Academic Council of the University.
The process of affiliation, therefore, cannot be
conducted and completed if the initial approval of
AICTE is received just before admissions are to
commence;
(iii) In view of the judgments of the Supreme
Court, it is impermissible in such a case to grant
provisional admissions, thereby putting the career of
a large body of innocent students in danger. Several
institutions admit students armed with the approval of
AICTE and in such cases if affiliation is refused by
the University, that would seriously affect the careers
of the students;
(iv)
If additional seats are made available
during the admissions process, the students who are
already admitted prior to making such additional
seats available, do not get an opportunity to claim
those seats. As a result of this, the golden rule for
the allotment of seats on the basis of merit-cum-
choice gets breached;
(v) In the event that the seats which
additionally become available during the continuation
of the admissions process are made available to
students who have already been admitted by the
time that such seats are made available, the entire
process would be thrown out of gear and would get
severely disturbed. If students who have already
been admitted are allowed to change their
admissions, this would set in motion a change which
would have a cascading effect destroying the entire
admissions process that has already become settled;
(vi) The Competent Authority which is incharge
of conducting admissions would also be faced with
innumerable administrative difficulties when
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63
additional seats become available during the
admissions process. The distribution of the allotment
of seats to various categories including reserved
seats is a complex process which has to be
conducted not only on the basis of seats available at
the College, but also seats available overall in the
State. As against the Health Science Courses where
admissions are granted to a limited and restricted
number of course, in the case of Technical Courses,
thee are numerous choices available to students,
namely, (i) coursewise choices, there being more
than 60 courses; (ii) collegewise choices, there being
about 163 colleges; (iii) quotawise choices; (iv)
categorywise choices – reserved, open, reserved for
women etc.; and (v) institutionwise choices –
involving a differential fee structure and affordability
of the payment of fees. The state Government has,
therefore, submitted that approval should not be
granted by AICTE on the eve of the commencement
of the admissions process so that no complications
would arise. Institutions which get approval either for
the first time or for additional courses or, for that
matter for additional intake capacity, can wait for the
next Academic Year for commencement of that
course within which period, requisite statutory
approvals and permissions can be obtained. A large
number of students seeking admissions to technical
courses come from rural areas and the students,
their parents and teachers go strictly by what is
stated in the admissions brochure. Such students
have no access to know, inter alia, about the
availability of additional seats.
40. The Nagpur Bench while granting the relief to the
Petitioners had noticed that letter of intent was issued in favour of the
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64
institution on 25th May 2007 and finally approval was granted on 31st
July 2007 and at that time the first round of admission was over and
second round had to start on 29th July 2007. The Petitioners had
applied on 1st August 2007 seeking the necessary permission and no
objections were issued during the pendency of the Writ Petition on
21st August 2007. Referring to the judgment in Writ Petition No. 5986
of 2005, the Court held that the State was not really bothered about
adhering to the rule of merit-cum-choice and it had failed to carry out
the directions issued in the judgment of the Court. Reference can be
made to the order of the Aurangabad Bench in Writ Petition No. 4368
of 2007 where increased quota seats were permitted to be filled up
after cut off date after an interim order had granted the relief to the
applicants. In our view, the judgment of the Court in Guru Nanak
Education Institute (supra) does not state the correct position of law.
Furthermore, the principle laid down by the Division Bench judgment
of the Principal Bench as well as the other Benches were not brought
to the notice of the Court dealing with this case. The judgments of the
other Division Benches had already taken a different view and the
view was apparently contrary to the view expressed in Guru Nanak
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65
Educational Society (supra) (already referred by us above).
Obviously, the Bench had not considered the judgments of the
Supreme Court except Madhu Singh (supra) and had not even noticed
the directions issued by the Bench in Writ Petition No. 5986 of 2006
taking 30th June 2005 to be the cut off date for intake capacity, of
course, subject to other directions which were issued, which included
considering applications for admissions to new colleges.
41. The learned Counsel appearing for the Petitioners
attempted to rely upon the doctrine of merger and argued that in
these cases the Court cannot take a different view. He relied upon
the judgments of the Supreme Court in B. Shama Rao vs. Union
Territory of Pondicherry, AIR 1967 SC 681, S. Shanmugavel Nadar vs.
State of Tamil Nadu, AIR 2002 SC 3484 and State of U.P. vs.
Synthetics & Chemicals Ltd., (1991) 4 SCC 139. We are afraid that
these judgments are of not much avail to the Petitioners in these
cases inasmuch as the order of the Supreme Court dated 6th
September 2007 is not a judgment laying down any ratio decidendi
which can be applied to the present cases. In fact, Guru Nanak
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66
Educational Society’s case (supra) appears to be a judgment on its
own facts.
42. Various judgments have been cited including those of the
Supreme Court as well as this Court and thus we are required to
determine the real controversy keeping in view the principle
enunciated by the Court as well as the larger interest of education.
43.
The enunciation of law in Atharva Institute of Management
Studies (supra) is in accordance with law. Notifications issued by the
Government as well as AICTE specifies the various ingredients
essential for maintaining the very object of excellence in education,
proper completion of course and adherence to the standards and
norms prescribed for infra-structure and amenities. While the Court is
granting relief to the Petitioners on equitable ground, it is also
desirable that Court keeps in mind that neither the statutory provisions
are varied or relaxed in a manner that the object of education would
be the casualty. It is much required that in the present day of
competitive academics, the standards of education courses and merit
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67
cum preference are not given up in favour of mere prayer of the
colleges that admission to seats have been denied for want of or co-
operation or co-ordination simpliciter between these authorities. This
is a matter of common knowledge that every college gets sufficient
period to apply to the concerned authorities, particularly the Central
Council which is responsible for adherence to standards applicable all
over the country and it is necessary that the standards of education
and infra-structure are maintained and they ought not to be
compromised in a hurry or because of shortage of period. Institutions
hardly suffer on any count as the seats would be available to them in
the coming year. Wherever the institutions are desirous of taking
benefit of additional seats or commencing new courses, it is expected
of them to act timely and even approach the court if they so desire,
leaving sufficient time for the authorities to comply with the directions
of the court, if issued, that too without jeopardising the process of
admissions to the courses.
44. The Institutions had been operating with lower number of
seats and permission to increased intake of seats without satisfaction
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68
being recorded by the approving and affiliating authority should not be
enforced in a manner that all essential ingredients of fairness and
transparency in process of admission as well as excellence in
education are compromised.
45. The contention raised on behalf of the Petitioners that in
grant of approval AICTE has supremacy has already been dealt with
by us. No doubt, the approval in these cases had been granted by
AICTE but that also was subsequent to the cut off date i.e. 30th June
2007. All these authorities are expected to work at tandem, fully
cooperate with each other and adhere to the timely schedule notified,
where after no additional seats should be granted after the cut off
date by any of the authorities for that particular academic year.
46. In the larger interest of the education for requirement of
maintaining excellence, both in imparting and conducting of
educational courses, enforcement of such mandate would be
absolutely essential. In our considered view, it causes no prejudice
either to the students or to the institution. Either they are already
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69
operating on the existing intake of seats or they still have to start the
course. The institutions are not obstructed by any process from
approaching the courts well in time if there is inaction on the part of
the authorities concerned. For example, in one of the cases (Civil
Writ Petition No.8850 of 2007), the institution claims to have moved
application on 29th December, 2006 in response to the advertisement
issued on 2nd December, 2006. It further claims that it pursued its
application but it cared to approach the court only in September, 2007
when the entire process had already been concluded. This petition,
therefore, apparently suffers from the defect of laches keeping in view
that the academic year has commenced and in any case, nothing
prevented the institution to approach the court much before arrival of
the cut-off date. It is further to be noticed that the Government,
Director of Technical Education, the Universities as well as the AICTE
are ad idem and in fact, have issued notification declaring that 30th
June, 2007 would be the cut-off date for grant of approval by the
authorities of additional intake and/or commencement of fresh
courses for that academic year. The authorities have, in fact, for a
change, acted in consonance with law in prescribing the cut-off date
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70
for intake of seats/approval of new courses, last date of admission to
the courses and commencement of the professional courses in
institutions in the State of Maharashtra. This, in no way, is
unreasonable but, in fact, is in consonance with the intent of law. It is
expected of each college that if it is aggrieved, it can move the courts
in time and not approach the courts at eleventh hour after the cut-off
date and then persuade the court to disturb the admission process by
altering the basic principles of fair, just and transparent admission
process. It may also be noticed that in most of these cases, the
interim orders were passed by the courts after even the last date of
admission was over. The courses commenced in the mid of August,
2007 while interim orders were passed in September, 2007
whereafter, the admission process commenced for those candidates
and they obviously, joined the respective courses more than 6 to 8
weeks from the commencement of the courses. As already noticed,
according to AICTE, minimum 16 weeks period of education should
intervene between the commencement of the course of the semester
and thereafter in each semester. Thus, it is a compelling demand to
maintain the time schedule and as held by the Supreme Court,
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71
curtailment of professional courses is impermissible. Leaving apart
cases of patent arbitrariness, decision in such regard is better left to
the expert body.
47. In all the writ petitions that we are dealing by this judgment
except writ petition No.8851 of 2007 where the institute is dealing with
the Diploma courses and it has to start the new course, the question
is in relation to higher intake of seats. As far as the academic year
2007 is concerned, the matter is purely academic in as much as
students covered under the judgment and or interim orders, have
already been admitted against the additional seats in respective
institutions and have already been pursuing their courses in the
colleges. As for the judgment of Guru Nanak Educational Society and
other interim orders, it has to be seen substantially from the point of
view that disturbing these admissions at this juncture may expose the
students to great prejudice. Furthermore, the Supreme Court in its
order dated 6th September, 2007 had also directed that the
admissions should not be disturbed and endeavor should be made to
complete the admission by 17th September, 2007. The respondents
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72
have not brought to our notice any admission which was given after
17th September, 2007. Another aspect of the case of the petitioners in
all these petitions is that for the academic year 2007, they had
admitted students under the orders of the court and for the academic
year 2008-2009, they have already been granted approval by the
AICTE, Director of Education and their courses are being conducted
in accordance with law. If that be the situation, in our considered
opinion, it will not be just and reasonable to pass any other order
except that they should continue with their respective courses.
However, this has to be subject to two conditions, firstly, the AICTE
and the Director of Education should ensure that academic and
infrastructure standards are being maintained in these colleges.
Secondly, regarding the students who had been admitted late, due
arrangement should be made by the college to make up the
deficiency in completion of their respective courses.
48. During the course of hearing, the order of the another
Division Bench of this court passed on 1st August, 2008 in Civil Writ
Petition No.1826 of 2008, The Shetkari Shikshan Mandal v. State of
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73
Maharashtra and others, was brought to our notice where a Bench
while referring to the case of Yerla Medical Trust (supra) directed the
Government to consider the cases where approval was granted by
AICTE prior to the last date of admission and to take steps to fill in the
seats. However, it also observed that the institution must have been
affiliated with the University as directed and even their admission to
the courses was purely provisional and subject to the institution
obtaining requisite affiliation and other steps. With respect, we are
unable again to follow this view. In our humble, respectful but firm
view, this judgment of the court does not state any principle of law.
Furthermore, it would also result in violating basic concepts applicable
to such academic cases noticed by us above being affected
adversely. There is no notice to the candidates at large, merit will be
the casualty and it will only prove the boom for the colleges. They
could safely be adjusted in the coming next academic year in terms of
the notification issued by the Central Council which is a binding
document and validity of which was neither questioned in that writ nor
before us. In face of a legal document which is binding on all
concerned and is issued in exercise of the legislative statutory power,
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the courts would hardly be in a position to pass orders in contradiction
thereto. With these observations, we do not propose to say anything
more in these writ petitions.
49. Larger question which needs to be deliberated and clarified
by us is with regard to the strict adherence to the admission schedule
and to ensure that rule of merit-cum-preference is not defeated, time
period of courses is not curtailed, the admission system is timely
completed and decisions are not taken at the eleventh hour.
Midstream admissions beside generating litigation will have impact of
frustrating the concept of fair and transparent admission system.
50. In the case of Atharva Institute of Management, an affidavit
was filed on behalf of All India Council for Technical Education
wherein it was stated that between July and August, 2007, 37
students have been granted approval by the council. These
applications appear to have been made between the end of the year
2006 to February, 2007. It is further averred that after directions were
passed in the previous writ petitions in the 56th Executive Committee
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meeting held on 16th August, 2007, a general cut-off date of 31st
December of every year for submission of applications was fixed.
The applications received by that date were to be processed for next
academic year. However, no cut-off date was stated for the purposes
of clearing those applications for next academic year. It had a
tremendous adverse impact not only on the admission system but
even on the excellence and standards of specialised or professional
courses. After the approval was granted by the council, even
subsequent to commencement of the counseling for admission and
everything was done in such undue haste that it was not in
accordance with any express or accepted norms of administrative
functioning. In some cases approval was granted by AICTE but
because of shortage of time and/or for varied reasons Director of
Education or the University could not grant the permission thus,
bringing the deadlock and generating substantial litigation in every
academic year.
51. Serious attempt was made to argue before the court that
the institutes have invested money on infrastructure and, thus, it
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would be inequitable not to permit admissions even after the cut-off
dates as the seats would go waste. This argument of equity seems to
be attractive at the first glance but when examined in depth after
proper analysis of law, it is without substance. We have already
noticed that if an institution was to increase the intake of seats or start
new courses, it must act timely. It is expected of such institution to
approach the court well in time and not at the nick of the time when
the courses are about to commence and in most of the cases when
admission process has been closed. Merely because some
expenditure has been increasing for the infrastructure per se is no
justification for compelling the expert bodies to permit admissions
after the cut-off dates. The seats which are approved after 30th June
are to be added in the next academic year as per the stand of AICTE
and Director of Education as well. Thus, their expenditure, no way, is
wasted. Secondly, all three principles as discussed in some
elaboration above, that is merit-cum-preference, timely
commencement of the courses and midstream admissions are
adversely affected if this argument is accepted. The court cannot
also lose sight of the fact that the Central and State bodies have to
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carry out proper inspection in accordance with the provisions of
section 10(p) of the All India Council for Technical Education Act,
1987, regulation 2.6.9(a) notifications issued and law enacted by the
State. These principles are intended to achieve the object and
significance of adherence to proper academic and infrastructural
parameters. Even under the order of the court if inspections are
directed to be carried out in an undue haste, it will surely adversely
affect excellence of education as a whole. This should be avoided in
the interest of all concerned. It may, at best cause some
inconvenience to the institutions only for the present year whereafter
the institution, students as well as the Central and State
Governmental authorities would be fully aware of their obligations as
well as the time schedule which shall be enforced without fail.
52. Every person or authority would have more than adequate
time at hand to take appropriate decisions including pursuing legal
remedy available to the students and/or the institution. The entire
process is a continuing process. The relevancy and nexus of the cut
off date is for finalisation of admission and commencement of the
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courses. Thus, these cut off dates besides being requirements of law
are even administratively necessary. Wherever necessary, aggrieved
party concerned can also approach the court well in advance of the
cut off dates which are sacrosanct. Vide notification dated 14th
September, 2006, approval process was notified by the AICTE which
was also followed in the subsequent years including January, 2008.
This is declared to be a legal document and has the force of law. It is
expected of the council to follow its procedure and adhere to the
schedule indicated in different chapters for commencement of new
courses as well as for increase or variation of intake capacity of seats
in existing courses. In terms of clause 2.8.1(c) of the notification
issued by AICTE, the council while dealing with the
application/submissions of proposal for courses are received, is
required to communicate to the applicant society or trust within 15
days from the date of receipt of the proposal the deficiency, if any, in
the check list. Wherever the applications are submitted to the
Regional Office, it is required to send the intimation even to the
AICTE Headquarters in Delhi. The State Government and the
affiliating University, both, are required to forward their views within 30
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79
days from the date they received the proposal sent by the Regional
office in terms of clause 2.8.2(a) and issue a No Objection Certificate
to the applicant society. The council in terms of clause 2.8.2(c) can
overrule the recommendations of the State Government as well as the
University while deciding the matters of introduction of additional
courses, increase and/or variation in intake capacity of seats in the
existing technical institutions. While dealing with the matter relating to
proposal for affiliation, the State Government and affiliating University
are also required to submit their views in that respect as contemplated
under clause 4.3.3. Under Clause 6.2.3, the evaluation reports of the
Regional office are required to be sent to the Headquarters of AICTE
within 15 days from the receipt of such proposals, complete in all
respects including the views of the State Governments and affiliating
University, which are required to give reasons and justification to
substantiate their stand. The hearing committee of the council is
expected to meet every month and decide the cases in accordance
with the provisions of clauses 6.2.5 and 6.2.6. This is a crucial stage
where the council can recommend for approval, require visit of the
expert committee or reject the proposal on the grounds as it being
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appropriate. Clause 6.2.10 further mandates that decision on grant of
approval or otherwise shall be communicated to the applicant society,
trust, institution throughout the year.
53. Of course, it is essential for the council to intimate the fate
of their application to the applicant well in time so as not to take away
their right to pursue an appropriate legal remedy. They need to be
cautious of this aspect and essentially should inform the concerned
institutions at least two weeks in advance of the cut-off date.
54. However, the applicants whose applications are received by
the council on/or before 31st December, 2007 shall be eligible for
starting new programme or variation in intake of seats for the
academic year 2008-2009. All other letters of approval issued for
application received after 31st December, 2007 shall be eligible for the
next academic year. In other words, this rule requires completion of
the entire process and due communication to the applicants within the
period of six months as 30th June, 2007 has been fixed as cut-off
date. The entire scheme of this document containing regulation which
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has the force of law and is binding on all concerned, requires every
step to be taken within a stipulated time. Obviously, the purpose for
specifying period is to ensure that the entire process of approval or
declining the approval should be completed well within the prescribed
time frame to ensure completion of admission process and
commencement of courses on the dates declared. For the year 2007-
2008, admissions were to close on 17.8.2007, 22.8.2007 and
31.8.2007, for MCA-PGD, MBA/MMS/PGD and medical courses,
respectively. Similarly, for the academic year 2008-2009, last date of
admission for MCA-PGD,MBA/MMS/PGD and Engineering
respectively are on 30.7.2008, 11.8.2008 and 26.8.2008 and courses
are to commence from 4.8.2008, 18.8.2008 and 28.8.2008
respectively. It will not be appropriate for the court to require the
parties including the authorities to act contrary to the framed rules and
the notifications issued by the concerned authorities. Time is of
essence in professional courses, thus, to curtail or to interfere with the
admission process beyond the specified time will neither be just nor
fair. We have already discussed in some detail that it necessarily has
adverse effect of the rule of merit -cum-preference. The example
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cited by us is one of such instances and since the admissions are
made in an undue haste not only that the meritorious candidates are
not able to get admission to colleges of their choice but even the
management of the college are able to manipulate the admission
because of the short notice for admission to the students at large. All
these inequities and adverse results flowing from the delayed actions,
even in equity would tilt against the petitioner institution whose seats
are very limited. The larger interest, thus, must prevail over a limited
private interest.
55. Before we proceed to record our synthetical conclusion and
issue final directions in regard to the matters in issue before us in
these cases, it needs to be noticed even at the cost of repetition that
all the expert bodies viz. AICTE as well as Directorate of Education in
consultation with the departments of the State regulating the process
of admission and maintenance of standards of education had notified
as a legal binding document specifying dates and schedule for various
matters in relation to admission of students and commencement of
courses. There has to be some compelling circumstances and
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grounds before the court to interfere with the prescribed schedule. It
is neither so arbitrary nor so perverse, keeping in view the essential
features relating to imparting education to professional courses that it
should invite judicial chastisment to the extent of laying down entirely
new schedule. Merely because there has been some delay on the
part of either of these authorities to timely grant or decline approval
and permission to commence a course per se would not be sufficient
ground for disturbing the notified schedule and timely commencement
of courses. The admission process for the current academic year is
already over and the academic session has commenced. To permit
commencement of new courses after commencement of academic
session or to restart the admission process all over again would
neither be just nor fair in conformity with law. There will be no sanctity
to this legally binding documents if every year the dates have to be
altered by the court. This attains some significance in view of the fact
that in number of earlier cases, the Supreme Court as well as various
Benches of this court have directed strict adherence to the admission
schedule and commencement of courses.
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56. We have already noticed in some length that no irreparable
loss or prejudice is being caused to the institutions particularly after
commencement of terms. The rule is to follow the notification and
exception is to direct its variance. We are of the considered view that
upon correct analysis of the above enunciated law, present cases are
not one’s which would justify interference by this court in the current
academic year. There has to be some exceptional and compelling
circumstances before the court can find fault with exercise of statutory
power by the Council as well as the Director of Technical Education in
fixing these cut-off dates. These dates essentially are sacrosanct
and, therefore, they should be adhered to. There is some
inconvenience to the institutions for the current year merely because
some seats may remain vacant would not justify judicial intervention
as it inevitably result in defeating merit-cum-preference principle,
timely commencement of courses, undue haste and manipulation of
admission process by the institutions and lowering the academic
excellence. Moreso, in the case of Harish Verma and others v. Ajay
Srivastava and another, 2003(8) SCC 69, the Supreme Court while
directing that only majority view given in a judgment would be a
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binding precedent, further set aside the judgment of the Full Bench of
the Rajasthan High Court, holding that the regulations framed by the
Medical Council of India had the force of law and they should be
adhered to and even struck down and set aside the admission given
contrary to such provision. It is also the obligation of the concerned
authorities, Central or State to ensure that professional education
should be made accessible on criteria of merit and preference to all
eligible students on uniform basis. In other words, students should
have an equal opportunity of indicating their preference relatabale to
their merit.
57. As a result of the various orders passed by the court from
time to time, most of the petitioner colleges have already taken
complete benefit and the interest of the admitted students can hardly
be put to any disadvantageous position now at this stage but the fact
of the matter is that issuance of certain directions re-emphasising the
directions issued by the different Division Benches of this court and
more particularly, strict need for adherence to the notified schedules
would be necessary. We have no hesitation to record that may be for
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the present academic year 2008-2009 where the orders of the court
have attained finality, the court may have to balance the law and
equity but for the coming academic years there is hardly any
possibility of not arising of such disputes. Boni judicis est causas litium
dirimere, where it is the duty of a good Judge to remove the causes of
litigation, there it is also a settled principle of law that direction or
order of the court would do no prejudice to any party. Adhering to the
principles stated, we are not interfering with the admissions granted
for the academic year 2007-2008 under the orders of the court but
without any hesitation, we would issue the following directions for
future including academic year 2008-2009.
58. With above recorded findings and conclusions we issue
directions as follows:
(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
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87approved 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 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
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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
(d)
exercise of its statutory powers.
The AICTE and all other concerned authorities are
hereby directed to communicate to every applicant
institution, university or trust about refusal and/or 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.
59 These directions are necessitated for the reason that
reasonable time is available to the aggrieved party to invoke the
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process of law if they choose to challenge any order adverse to the
interest of the college, institution or trust. All authorities concerned
shall abide by above directions and the directions issued by the court
in the case of Atharva Institution of Management Studies (supra) as
well as ensure that academic courses are commenced on the notified
date. Every possible effort should be made not to grant any
admission midstream or after the date of commencement of courses.
60.
It is expected of the All India Technical Council of India to
ensure that its functioning would enable the institutions making
applications prior to 31st December of the previous year to know the
fate of their applications well in time. It is also expected of the
affiliating University and the Director of Technical Education of the
State to submit their opinion well in advance and in accordance with
the regulation so as to enable the AICTE to take timely action and
avoid prejudice to any applicant institution or trust.
61. Vide order dated 26th March, 2008, all the above cases
were listed before the Full Bench for settling the controversies in the
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present case including answering the question of law. Thus, we had
heard all the cases on merits. For the reasons recorded above, all the
writ petitions are disposed of in terms of the directions stated
hereinabove. However, in the facts and circumstances of the case,
we leave the parties to bear their own costs.
CHIEF JUSTICE
ig A.P. DESHPANDE, J.
SMT. NISHITA MHATRE, J.
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