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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.5450 OF 2008
1) G.H.R.Education Foundation society
having its Registered Office at
Nagpur, Shraddha House, 6th Floor,
Kingsway, Nagpur, District Nagpur,
Through its Secretary.
2) G.H.R. Education Foundation
Society's G.H. Raisoni Institute
of Engineering & Management,
Pachora Road, Jalgaon - 425 002,
Through its Principal. .. PETITIONERS
VERSUS
1) The State of Maharashtra
Through Secretary,
Department of Higher and
Technical Education, Mantralaya,
Annexe, Mumbai.
2) The Director of Technical
Education, Govt. fo Maharashtra,
Mumbai.
3) The North Maharashtra University,
Jalgaon, Dist. Jalgaon,
Through its Registrar. .. RESPONDENTS
.....
Shri P.M.Shah, Sr.Counsel h/f Mr.Nitin B. Suryawanshi,
Advocate for petitioners;
Shri N.B.Khandare, Govt. Pleader, for Resp.Nos. 1 & 2;
Shri A.B.Girase, Advocate for Respondent No.3.
.....
CORAM: F.I.REBELLO &
K.U.CHANDIWAL,JJ.
Date : 24th SEPTEMBER,2008.
JUDGMENT (PER:- F.I.REBELLO,J.):
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. Rule. Heard forthwith.
2) The petitioner No.1 is a society, registered under
the Societies Registration Act. It has been recognized as
a minority institution. No Objection Certificate issued
by the Competent Authority dated 9th July, 2007 is annexed
to the petition. Petitioner No.2 is an educational
institution run by petitioner no.1-society. The Executive
Body of petitioner no.1 is the body of petitioner no.2.
The primary object of petitioner no.1 is to impart
education within the State of Maharashtra and presently it
is conducting various courses and running various colleges
at Nagpur, Jalgaon and Ahmednagar in the State of
Maharashtra.
3) The petitioners applied to All India Council for
Technical Education (A.I.C.T.E.) to run postgraduate
courses in Business Administration, i.e. M.B.A. and
Mechanical Engineering along with other courses, which are
being conducted by the petitioners in their existing
college. A.I.C.T.E. is constituted in pursuance of All
India Council for Technical Education Act, 1987. The
object of the A.I.C.T.E. is for the proper planning and
coordinate development of technical education throughout
the country, promotion of qualitative improvement of such
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education and proper maintenance of norms and standards in
the technical education system and the matters connected
therewith. A.I.C.T.E. is the final authority in respect
of granting recognition to the technical courses
throughout India. The law on this point is settled by the
Judgment of the Supreme Court in Jaya Gokul Education
Trust Vs. Commissioner & Secretary to Government Higher
Education Department, Thiruvanathapuram, Kerala, State and
Anr. – (2000) 5 SCC 231.
4) A.I.C.T.E. by its communication dated 30th June,
1998 addressed
to the Principal Secretary, Higher &
Technical Education and Employment Department, Govt. of
Maharashtra, Mumbai, informed that they have approved the
proposal of petitioner no.1-soceity for starting courses
in M.B.A. and Mechanical Engineering. A copy of this
communication was also addressed to the petitioners as
also to the Registrar of the concerned university in the
instant case Respondent No.3. The approval order clearly
sets out that the approval is for introduction of
additional courses for the academic year 2008-2009. In
the note to the Revised order it was set out that the
approval for the additional course(s)/Increase in
Intake/variation in intake is valid for two years from the
date of issue of the letter for getting affiliation with
respective university and fulfilling State Government
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requirements of admission. It is the case of the
petitioners that pursuant to the approval granted by
A.I.C.T.E., the petitioners were entitled to admit
students for M.B.A. and Mechanical Engineering courses.
According to the petitioners, admission to M.B.A. and
Mechanical Engineering courses is governed and controlled
by Respondent nos. 1 and 2. Respondent Nos. 1 and 2 are
the appropriate authority to frame the Rules, governing
admissions and which conducts Central Admission Process
(C.A.P.), in which students are allotted to various
colleges. Respondent No.3 is the affiliating body, who
conducts examinations and declares the results and confers
respective degrees on the students. For obtaining
admission in any Institution for the course in M.B.A. or
Mechanical Engineering, it is necessary for the candidates
of State of Maharashtra to undergo an examination, i.e.
Common Entrance Test (C.E.T.).
5) The schedule of C.E.T. was published by Respondent
No.2 in its notification dated 9.6.2008. As far as M.B.A.
course is concerned, admission to the said course was to
commence on 3.7.2008 and it was scheduled to be completed
by 30.08.2008. In respect of Mechanical Engineering
course, it was to commence on 16.6.2008 and was to be
completed by 15.09.2008. According to the petitioners,
pursuant to the approval by A.I.C.T.E. dated 30.06.2008,
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petitioner no.2 forwarded a communication/representation
dated 7.8.2008 to the Respondent No.1 informing about the
approval of A.I.C.T.E. and thereby requested that
petitioner no.2-college be included in the list of
institutions imparting education leading to M.B.A. and
Mechanical Engineering courses. Though the petitioners
have approached Respondent No.1 and 2 for inclusion of
name of petitioner no.2-college in the list of colleges in
Maharashtra State for admission of students to both the
courses, the name of petitioner no.2 was considered only
for the degree course of M.B.A. The Respondent Nos. 1
and 2 forwarded
ig the students through C.A.P. to the
petitioner no.2-college only for admission to M.B.A.
course. This is clear from the Government
Resolution/Circular dated 31.7.2008.
6) Petitioners, it is submitted, have already invested
huge amounts in the infrastructure and purchasing
equipments for mechanical engineering course. The
petitioners have also appointed required staff and
lecturers for imparting education, as AICTE has granted
permission to start the said course. As AICTE is final
authority for granting approval, according to the
petitioners, Respondent Nos. 1 to 3 ought to have granted
consequential permission to start the new course in
Mechanical Engineering. The respondents could not have
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ignored the same, considering the law laid down by the
Supreme Court in State of Maharashtra Vs. Sant
Dnyaneshwar Shikshan Shastra Mahavidyalaya & Ors.,
reported in 2006 AIR SCW 2048. Another institution of the
petitioner no.1, namely G.H.Raisoni College of Engineering
at Nagpur, run by Ankush Shikshan Sanstha, a society which
is sister concern of petitioner no.1, was granted approval
on 30.06.2007 for two post graduation courses, i.e.
M.C.A. and M.Tech. Respondent nos. 1 and 2 permitted
both the courses in the said institution and the same is
reflected in Govt. Resolution dated 31.7.2008. The
action therefore
ig on the part of the respondents in not
granting permission/affiliation to the petitioners herein
is discriminatory and violative of Article 14 of the
Constitution of India.
7) In spite of repeated requests on the part of the
petitioners, Respondent nos. 1 and 2 did not forward any
students to the petitioner no.2-college for admission to
Mechanical Engineering course. Petitioner no.2, being
unaided minority institution, and as per its intake
capacity, is entitled to admit 60 students in its college
by following transparent admission process. In the list
of documents filed before this Court, they have annexed an
advertisement issued in Dainik Janshakti on 8.7.2008 for
inviting applications in the various faculties including
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Mechanical Engineering and M.B.A. The courses was started
in the month of August 2008 for the first term and the
examination are likely to be held in October 2008 and the
last date for submission of examination forms is 17th
September, 2008. It is in these circumstances that the
respondents have moved this Court for the reliefs as
prayed in the petition.
8) Reply has been filed on behalf of Respondent No.2
by Ajit Ramrao Thete, Joint Director of Technical
Education, Aurangabad. It is pointed out that, that
notification dated 9th June, 2008 would show that the IVth
and last round of admission to Engineering/Technology
courses in the State of Maharashtra has been conducted by
the Director as and by way of personal counselling from
25th to 28th August, 2008 and after this last round, no
admission whatsoever can be effected. In view of that, it
was not possible to add into the admission process even a
single new seat, whether as and by way of new Engineering
College or a new course in an existing Engineering College
or addition in the intake capacity of an old Engineering
college with old recognition and affiliated course.
Reference is made to the advertisement issued by
A.I.C.T.E. on 24.9.2007 wherein it is set out that
letters of approval issued after 30th June shall not be
valid for the current academic year, but shall be valid
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only for the next academic year. It is, therefore, set
out that all these colleges to whom letters of approval
have been issued by A.I.C.T.E. after 30th June, 2008,
those approvals are not valid for effecting admissions in
the current academic year 2008-2009, but valid for the
next two academic years. We may mention here itself that
in the said advertisement, the terminology used is as
under :
“The letter of Approval issued after 30th June
shall not be valid for the current academic year
but shall
ig be valid only for next two Academicyears.”
It is, therefore, clear that only those to whom letters of
approval are issued after 30th June, which cannot be
considered but those issued up to 30th June would be
entitled to admit students for the current academic year.
Reference is also made to the Judgment of the Full Bench
of this Court passed on 8.8.2008 and 22.8.2008 in Writ
Petition No. 3916 of 2001 and other petitions. Various
paragraphs from the said judgment have been quoted. We do
not find in any of the paragraphs any legal bar on the
respondents or on the petitioners admitting the students
for the academic year 2008-2009.
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9) Reply has also been filed on behalf of Respondent
No.3-university by Digambar s/o Maroti Mahajan, Section
Officer. It is pointed out that though the order was
passed by A.I.C.T.E. on 30th June, 2008, the petitioner
institution has not taken any steps for getting
affiliation till date and on this ground of delay alone,
the petition is liable to be dismissed. The State
Government, by letter dated 31.7.2008 has granted
permission to the petitioner institution for various other
courses, but the course of Mechanical Engineering has not
been included in the said list. In terms of the
Maharashtra
Universities Act, from the academic year
2001-2002, such permission of the State Government shall
be communicated to the university on or before 31st May,
of the year in which new college is proposed to be
started. Permission received thereafter shall be given
effect by the university only in the subsequent academic
year. The petitioner, as pointed out earlier, till
18.9.2008 has not received any permission/recognition
order and as such the University is not in a position to
grant affiliation for this academic year. As per the
norms prescribed by the AICTE as well as the university,
the student has to complete the term prescribed by the
AICTE as well as university. The first term of the
Engineering Course ends in the month of November. As per
the norms of the university, 80% attendance is necessary
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to grant the term. Reference is also made to the
provisions of Section 82 and 83 of the Universities Act.
It is, therefore, submitted that the petition ought to be
dismissed.
10) The questions for consideration before this Court
would be :
(i) After AICTE had granted approval on 30th
June, 2008, was the State Government within its
authority not to grant recognition to the
petitioners
ig for admitting the students to theMechanical Engineering course ?
(ii) If the petitioners have admitted the
students, was it in breach of the brochure and or
any other statutory provisions ?
(iii) What is the procedure that the petitioner
had to follow in admitting the students, and if
admitted, role of the respondents in allowing the
students to prosecute their studies and appear for
the examinations ?
11) In so far as the issue of recognition of the
petitioner by Respondent No.1 and affiliation by
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Respondent No.3 is concerned, in our opinion, once AICTE
granted approval, the said respondents are bound by what
is set out in the Judgment in the case of Sant Dnyaneshwar
Shikshan Shastra Mahavidyalaya (supra) as also the
Judgment of the Supreme Court in Jayu Gokul Educational
Trust (supra). Once permission is granted, it is neither
open to the State Government, nor to the university to
refuse permission or affiliation, as the case may be. The
State Government has no power to reject the prayer of the
institution or overrule the decision of N.C.T.E. In the
instant case, the State Government, to whom letter of
approval was
addressed, granted permission for M.B.A.
course, but did not communicate their decision for
granting permission to Mechanical Engineering course on
the spacious plea that the Brochure has already been
published and the names of the institution could not be
included. Such a plea is unavailable to the State
Government. The State Government, was, therefore, duty
bound to grant approval based on the approval granted by
AICTE in favour of the petitioners.
. In so far as Respondent No.3 is concerned, it is
true that the petitioners have not yet applied for
affiliation. The contention of the petitioners is that
they were waiting for the approval of the State Government
so as to apply for affiliation with Respondent no.3. As
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respondent no.3 has not granted approval, they did not
apply, but they would apply now considering that they have
already admitted the students and approval is for the
academic year 2008-2009. In so far as the university is
concerned, the Supreme Court in Sant Dnyaneshwar Shikshan
Shastra Mahavidyalaya (supra) has specifically set out
that once recognition has been granted by N.C.T.E, every
university is obliged to grant affiliation to such
institution and sections 82 and 83 of the University Act
do not apply to such cases.
.
Question No.1 is answered accordingly.
12) We then proceed to consider the process of
admission. We may first refer to the Govt. Resolution of
11th June, 2007 in the matter of giving recognition to the
educational institutions of minority societies, who wish
to acquire the status of religious/linguistic minority
institutes in the State. In terms of the said Government
Resolution, following paragraphs are relevant :
“(3) While giving admission to the first year of
the educational portion, it is binding on the
institute which has been given the status ofminority to give admission to at least 51% of the
students of the religion of which the minority
institute belongs. In case it is not possible to
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Government authorities.
(4)………………………………………..
(A)……………………………………….
(B)……………………………………….
(C)………………………………………
(5) All the minority students who are admitted
by management running the educational portion by
the prescribed method, as per merits and by
transparent admission method, shall be residents of
Maharashtra State as also it is incumbent that they
shall pass the Secondary School Education andHigher Secondary Education Examination from
Maharashtra only.
(6) The management running the educational
portions in addition to school education shall, by
following the policy of the State Government ofprovisions of prescribed percentage of admission to
every Department, the management shall giveadmission to minimum 51% of the admission strength
to the students who are residents of Maharashtra.”
. It would therefore be clear that an institution
which has been granted minority status will have to comply
with the said directions.
. Next reference can be made to the brochure issued
by Respondent nos. 1 and 2. In terms of para 2.1 of this
brochure, seats available for admission through
Centralized Admission Process (C.A.P.) is set out. In so
far as unaided minority engineering colleges are
concerned, Maharashtra State seats would be 85% of CAP
Seats and All India seats on the basis of AIEEE would be
15% of the CAP seats. The CAP seats would be carved out
based on the formula given as under :
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“CAP Seats = Sanctioned Intake – (Minority Seats +
Institute level seats.)
13) We have then para 2.4 of the brochure, which sets
out the Seats as mentioned below are not covered under the
CAP and the respective institutions are the authority for
admissions to these seats. The candidates seeking
admission under these seats shall submit separate
application/s to the concerned admission
authority/authorities. In so far as unaided minority
Engineering
Colleges are concerned, the Admission
Authority is The Principal of the Un-Aided Minority
Engineering College. In so far as the seats to be filled
in at Institute level, it is to be decided by the
respective Minority Institute. We are not here
considering the seats over and above sanctioned intake.
Our attention was invited by counsel for the respondents
to admission of NRI candidates to point out that they are
eligible to apply only against Institute level seats.
Para 2.6.2 provides for allocation and reservation of
seats for admission through CAP for all types of
institutes and seats available for Institute level
admission/seats for Minority community in unaided
institutes. Under column 4 – Unaided Minority Colleges
Maharashtra State seats would be the CAP seats – 15% of
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CAP seats for AIEEE and they would be divided as 70% of
Maharashtra State seats coming under CAP, which are to be
divided under Home University and Other than Home
University.
14) From all the Paras of the Brochure what emerges is
that in so far as unaided minority Engineering colleges
are concerned, the procedure for filling in the seats
would be that the candidates have to directly apply to the
concerned authority/authorities. The allocation of seats
has to be decided by the concerned Admission Authority.
In
the instant case, according to the petitioners, under
the sanctioned strength of 60 students in terms of the
approval granted by Pravesh Niyantran Samiti in respect of
their sister institution, they have reserved admission for
minority students as 51% and admissions at institute level
at 20% and admissions through CAP or governing CET at 29%.
Therefore, out of 60 seats available, 31 to be filled in
from minority community; 12 to be filled in at institute
level; and remaining 17 seats were divided – 3 for AIEEE;
10 for Home University; and 4 for other than Home
University. Thus, in so far as 31 seats and 12 seats are
concerned, the authorized authority for granting admission
is the Principal of the unaided minority institution.
Merit being a criterion, as set out by the Supreme Court
in T.M.A. Pai Foundation Vs. State of Karnataka – (2002)
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8 SCC 481, reiterated in Islamic Academy of Education and
Anr. Vs. State of Karnataka and Ors. – (2003) 6 SCC
697; and further reiterated in the case of P.A.Inamdas
Vs. State of Maharashtra & Ors.- (2005) 6 SCC 537. The
seats to be filled in by the authorized Admission
Authority, will have to be based on merit of the
candidates who have applied and in terms of the Rules for
admission.
15) In so far as seats to be filled in through CAP,
admittedly, the Respondent nos. 1 and 2 have not made
available
the students to the said seats. The last date
for admission was extended from 8.9.2008 to 15.9.2008. In
these circumstances, the institute could have filled in
the seats again by following the order of merit and the
other rules. In so far as this aspect is concerned, the
same is covered by Para 6.8 of the brochure, which sets
out as under :
“The Principal/Director of the un-aided institution
has to carry out the admissions for the vacancies
after the CAP Round-IV as per the guide lines given
in Annexure-III.”
16) The petitioners have admitted the students without
getting approval of Respondent nos. 1 and 2 or
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affiliation from Respondent no.3 university. The fact,
however, remains that the petitioners had approached the
Respondent no.2 for approval, which, till date has not
been granted. Thereafter, they have moved this Court on
11.09.2008 and since then the Court is seized of the
matter. Once the Respondents were bound to grant approval
and or affiliation, as AICTE had granted permission to
start the courses from the academic years 2008-2009, it
was open for the petitioners, being a minority un-aided
institute, considering the brochure issued by the
Respondent nos 1 and 2, to have commenced the admission
process subject
ig to the procedural requirements to be
completed and further admitting the students in order of
merit and in terms of the brochure as also the Govt.
Resolution of 11th June, 2007.
17) The petitioners to apply to the Respondent No.3 for
affiliation. On the petitioners so applying, considering
Para 78 of the Judgment in Sant Dnyaneshwar (supra), the
Respondent No.3-university to grant affiliation. This
affiliation would be subject to the petitioner and the
students who have been admitted being eligible and
fulfilling their requirements, if any.
18) In terms of the Govt. Resolution dated 11.6.2007,
the petitioners being minority institution will have to
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admit at least 51% of students. Though the Govt.
Resolution only speaks of religious minority, considering
that minority is both for religious and linguistic
minority, para 3 will have to be read as applicable to
both religious and linguistic minorities. The 20%
management quota will have also to be filled in
considering the brochure as also the other seats
considering para 6.1.
19) The issue as to whether the students meet the
requirements for admission will have to be considered by
the Respondent
No.2. The petitioners, therefore, will
have to submit the requisite information and particulars
to the Respondent No.2 within seven days from today. The
Respondent No.2 thereafter, within fifteen days of receipt
of such information and particulars, to decide as to
whether the students have been admitted in terms of the
Rules and the brochure and communicate the decision to the
petitioners and Respondent no.3.
20) The petitioners to apply to the Respondent no.3 for
affiliation and the Respondent no.3, considering the
Judgment in Sant Dyaneshwar Shikshan Shastra Mahavidyalaya
(supra) to grant affiliation. It will be open to the
Respondent no.3 to decide the eligibility of the students
for admission based on the report submitted by the
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Respondent no.2 and it will also be open to them to
consider the eligibility of admission in the context of
the rules of the University.
. Questions 2 and 3 answered accordingly.
21) In the light of the above, Rule is made absolute in
the terms of what is set out hereinabove.
(K.U.CHANDIWAL,J.) (F.I.REBELLO,J.)
bdv/uniplex/wp5450.08
Authentic copy
(BD VADNERE,PA)
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