JUDGMENT
1. These petitions involve points of immense importance regarding admissions to Engineering and Technical courses in the State, for the year 1993-94.
2. The results of the 12th standard examination were published on 31st May, 1993 and the Government has published the rules for admission for the said courses on 6th June, 1993. Along with the Rules, the Government has also published a Brochure indicating the institutions in the different University areas, the number of seats in such institutions, the courses in which the education is proposed to be imparted, the number of sanctioned seats, etc. for all the colleges and institutions. Along with the Brochure, the instructions for filling in application forms were also issued. The institutions or colleges, which are running the Engineering and Technical courses were given code numbers to enable the students to fill in the forms properly. In the Brochure, there were 37 courses mentioned with their respective code numbers. The candidates were required to give the preferences for institutions and/or colleges and the choices for the courses, indicating the code numbers of the institutions as well as the courses.
3. It would be suffice for the purposes of the decision of writ petitions to state the facts in Writ Petition No. 2005 of 1993.
4. The petitioner has passed XII standard examination from a college located in the Marathwada University area and has secured 100% marks in the Engineering group, consisting of Physics, Chemistry and Mathematics subjects, had applied for admission to Chemical Engineering in the University Department of Chemical Technology (U.D.C.T.), University of Bombay. The petitioner has given second preference to V.J.T.I., Bombay or College of Engineering, Pune, for Production Engineering. The petitioner felt that, in view of the provisions of the Rules, (mainly Rule 5.2.2), he was not likely to get admission in any institute or college located within the University area of Bombay or Pune. Therefore, he approached this Court by filing this petition. The same is the case with the petitioner in second petition, but for different subject and different University area. The points involved in these two petitions are common.
5. It is worthwhile to mention at the outset that there are as many as 78 institutions in all, where the admissions are to be given for this year to the students. Out of these 78 institutions, 20 are located in Bombay University area, 15 in Pune, 6 in North Maharashtra, 10 in Marathwada, 6 in Amravati, 10 in Nagpur and 11 in Shivaji.
6. The total sanctioned strength of students to be admitted in all the colleges is 18427 to various courses.
7. The rules for admission provide for qualifying examination and eligibility, reservation of seats, selection basis and procedure both for free seats and payment seats and also for the requirement of documents to be accompanied with the applications.
8. In the Rules, the `competent authority’ is defined, so also, `free seats’ as well as `payment seats’ are also defined. There is also a definition provided for `sanctioned intake or strength’. We are mainly concerned with the allotment of free seats, payment seats and sanctioned intake, to understand the true effect of the rules.
9. In the Rules for admission, it is categorically provided that the total number of students admitted shall not exceed the sanctioned intake capacity. The management shall have no quota over and above the sanctioned strength.
10. Rule 5 provides a procedure for the selection, while Rule 5.1 (a) provides that the admission will be decided on the marks obtained at the H.S.C. (Standard XII) examination or equivalent qualifying examination in the subjects of Physics, Chemistry and Mathematics, taken together (out of 300), both for free seats and payment seats. Rule 5.2 deals with free seats. Rule 5.2.1 provides that the candidate will be considered for admission first for maximum of 15 courses and maximum of 15 institutions, affiliated to a University of his/her area as per his order of preference. His /her area means from where the candidate passes H.S.C. (qualifying) examination or as per domicile of his/her father/mother as per rule 2.2.
Rule 5.2.2 provides that the candidate will be considered for the admission to other University areas, than in 5.2.1 above in order of his/her preference for the University as indicated by him. However, his/her inter-se merit will be considered only after all eligible candidates from the area of particular University are accommodated. While, Rule 5.2.3 provides, that the candidate shall be permitted to indicate his preference for considering his priority either first on the basis of course or institute for both free and payment seats.
Rule 5.2.4 carves out exception to Rule 5.2..2 and provides that the candidates from any University area however, can exercise choice for such course at any University area other than his own area, if a particular course is available only at one particular institute within the State, i.e. isolated course.
Rule 5.3 deals with the payment seats and Rule 5.3.1 provides that the candidates will be permitted to indicate only three institutes in order of his preference, in the application for payment seats. The candidates can change option of these three institutes, if they so desire within ten days from the date of filling up of all free seats to be notified by the competent authority, such candidates will have to attend in person, the office of the competent authority for change of option.
11. Shri Bora, Counsel for the petitioner has challenged these Rules for admission to free seats, primarily on the ground that this is in violation of Article 14 of the Constitution of India. He has further contended that the rule so framed is not in accordance with the scheme provided for by the Supreme Court in this connection in Unni Krishnan v. State of A.P., . He has further contended that the rule is also arbitrary and unreasonable, having regard to the merit of the petitioner. His further challenge is that though University-wise restrictions are imposed on candidates applying for free seats, no such restrictions what-so-ever are imposed on the candidates applying for the payment seats. As such, discriminatory treatment is given in the matter of admissions to the same course, and probably to the same institution also, between the candidates applying for free seats and the candidates applying for payment seats. The discrimination has no nexus with the object.
12. Shri Gangapurwala, the learned Asstt. Government Pleader for the State, contended that the rules are framed having regard to the guidelines issued by the Supreme Curt in Unni Krishnan’s case. The rules regarding the selection of the candidates are framed also having regard to the backwardness of the area and taking into consideration the courses of studies available to different university areas. According to him, there is no discrimination amongst the candidates applying for free seats, though there may appear some discrimination between the candidates applying for free seats and those applying for payment seats. Such a classification is made within the permissible limits provided for by the Constitution itself. This classification has a nexus with the admission of candidates. He has further contended that in the matter of admission to the seats in the private colleges, challenge based on the provisions of Article 14 is not available.
13. There are certain factual aspects, which are required to be considered before considering the rival contentions of the parties. It is admitted position that neither in the Rules nor in the instructions and/or even if any part of the Brochure, it is indicated as to which courses are regarded as isolated courses, for which an exception under Rule 5.2.4 is carved out.
14. We are told that the Government had issued a Circular dated 10.6.1993, in this connection, and which was displayed on the notice boards at the Centres established for collecting the admission forms. In the Circular, there are nine courses mentioned as isolated courses. Shri Gangapurwala has further contended that the information as per the Circular was directed to be published in the newspapers only at Bombay. The wide publicity, which is required to be given to such a matter is not given, as probably, the information was given through the newspapers only at Bombay and by publishing the circulars on the notice boards at the Centres on 10.6.1993. It is very difficult to presume that the necessary information affecting the career of several thousand students was given to all the candidates from all the University areas. This aspect was considered by the Supreme Court in Unni Krishnan’s, case and it was directed that the scheme so framed, rules so deviced, shall be made known as far as possible to all the interested candidates by giving wide publicity and by publishing such scheme, rules, notifications not only at the Centre but also at each and every institution, where the candidates are seeking admission. Widest publicity was suggested to avoid any inconvenience to the students. Shri Gangapurwala tried to point out sufficiency of publication, on the basis of the applications, that, to the isolated courses also, hundreds of students have given a choice. Merely because some of the candidates have given preference or choice in this connection, it cannot be said that the subjects which are deemed by the authorities to be isolated, were known to the candidates.
15. The matter assumes importance as to the rule regarding University-wise admission, an exception was carved out only in favour of the isolated courses, and the candidates were informed that their claims for such isolated courses will be considered on the basis of State-wise merit and not University area-wise merit. Every one of the meritorious candidate was entitled to be considered for admission to isolated course irrespective of the University area-wise admission, as per Rule 5.2.2.
16. There is also no doubt that such isolated courses are distributed in all University area throughout the State. Some of the isolated courses are of importance and, therefore, even without sufficient notice, large number of candidates may have given their choice to those courses. The exception carved out, in fact, should have formed a part of the rules by indicating the courses, which are treated to be isloated. Not only that, that the names of isolated courses were not even mentioned in the instructions issued to the candidates. The courses for which exception was carved out should have been given widest publicity to enable all the candidates to exercise their choice and preference.
17. The isolated courses carved out by the authorities are not in conformity with the relevant provision of the rule. Rule 5.2.4 provides that if a particular course is available only at one particular `institute’ within the State, it is isolated course. We find now that there are finally such 14 courses, in the current year, which can be regarded as isolated courses. In this connection, we are told by Shri Gangapurwala that there are certain courses which are clubbed together, as a result of which the isolated courses were worked out upto 8 or 9 by the authorities and accordingly they were published on the notice boards at the Centre and in the Press at Bombay. We find that even if the argument regarding clubbing is accepted, there are hardly two or three such coures, which are clubbed together to form in all 9 courses. There are many other courses which were isolated strictly as per the rules, but are not treated to be isolated by the authorities while issuing the circular regarding isolated courses.
18. The argument advanced on the basis of the clubbing of the subjects cannot be accepted at this stage, as the clubbing of the subjects was not made known to the candidates at all. If 2 or 3 subjects are allied and were required to be clubbed, then the candidates should have known this before choice or preference is exercised regarding subjects. If three subjects are clubbed together and are sought to be treated as one subject, then three such choices should have been clubbed together to constitute one choice. The argument also cannot be accepted in view of the instructions issued. The authorities have given separate Code number to each of the subject, clubbed or otherwise. If the authorities unilaterally wanted to club them together, then there was no necessity of giving the separate code numbers to each of the course. Giving separate code numbers to different subjects did affect the choice regarding the courses. Even after clubbing together, we find that there are subjects more than 9, which are required to be treated as isolated, for the purposes of Rule 5.2.4.
19. One more important aspect is that in the instructions, there are only 37 subjects mentioned. There is addition of two courses, which are given code numbers 38 and 39 by corrigendum dated 14.6.1993. The subject of Chemical Technology is given Code No. 38 and the subject of Polymer Technology is given Code No. 39. These subjects, are no doubt, required to be considered as isolated subjects as per Rule 5.2.4. The inclusion of these two courses was never intimated to the candidates at all. As per the instructions, there were only 37 subjects to which the applications were called for. The addition of these two courses in the College of Amravati University area was not made known to any candidate at all. We are told by Shri Gangapurwala that the corrigendum was published on 14.6.1993 in the same manner, only in the newspapers at Bombay and by notifying at the Centres. These two isolated subjects are not made known to the candidates, and they were made available some days after the date of issuance of application forms was closed. It was, therefore, all the more necessary for the authorities to see that the subjects, which are newly introduced and offered for admission are given widest publicity, more particularly, so, when they were isolated subjects and available to the candidates belonging to all University areas.
20. In this connection, it is worthwhile to note that the forms were supplied from 6th June, 1993. The last date for receiving the forms was 16th June, 1993 and the corrigendum introducing the new subjects was said to have been published on 14th June, 1993, at some places. When about 19,000 candidates from different University areas were scattered throughout the State, many of them in the rural areas, even if any publication was issued on 14th June, 1993, there was hardly any time for the candidates to know of this, when the forms were to be filled in on 16th June, 1993. Even the acceptance of the forms already began from 6th June, 1993, a week prior to the issuance of the corrigendum notifying the newly introduced subjects offered for admission. There was hardly any chance for the candidates who have already filled in the forms to give choice for new subjects, In the present case, the petitioner has filled in his form on 14th June, 1993. This shoows that the authorities were not careful in giving wide publicity to the subjects to be offered by the candidates. If the subjects were newly introduced, for good reasons also, even in that event, a fresh notification should have been issued by giving opportunity to all the candidates including those, whose forms were accepted after June, 1993. The choice of two subjects, which are newly introduced, was denied to almost all the candidates. The selection made for admission to these two courses will be purely arbitrary and contrary to all the canons of principles of natural justice, when courses were not notified and were not available for choice to all the candidates.
21. We may mention here that Polymer Engineering is a subject having Code No. 28, while Chemical Engineering is a subject at Code No. 3, while the newly created subjects of Chemical Technology is Code No. 38 and Polymer Technology 39. It may be that the authorities might have thought it fit to club these subjects of Polymer Technology with Polymer Engineering and Chemical Technology with Chemical Engineering. However, such clubbing was not made known to the candidates at all, even if it is so considered by the authorities.
22. One more aspect of general importance, which is required to be considered, is regarding the two institutions, which are included in the Brochure at Code No. 118 Indira Gandhi College of Engineering, Bombay (Brochure page 18) and College of Engineering of Paramhansa Ramkrishna Maunibaba Education Society, Chikhali, District Buldhana. These colleges are granted permission in September last year, but they have not started the colleges last year, on the ground that the permission and/or recognition was received by them in the month of September, 1992, when the terms of the students had already commenced. Even in the Brochure, it is mentioned that at the time of the issuance of the application forms and supplying information through Brochures, these two institutions had not informed the authorities regarding the commencement of the courses and opening of their colleges. Indira Gandhi College of Engineering at Bombay was sanctioned the strength of 180, while the College at Chikhali was sanctioned strength of 120. On the day on which the Brochure was issued and the applications were invited, these colleges had not started functioning at all. Inspite of that, the sanctioned strength was considered by the authorities as being available for admission to the students, this year. We are told that the State Government is informed by the managements of these colleges by a letter dated 23rd July, 1993, that they intend to commence the course this year. It is very difficult to consider as to how the authorities have taken into account the sanctioned intake capacity of these colleges, when at the time of the issuance of application forms, these colleges had not informed the Government their intention to start the college.
23. The result of 12th standard was published on 31st May, 1993. The Rules were framed on 5th June, 1993. The applications were invited on 6th June, 1993. The last date of filing the applications was 16th June, 1993. The students, at the most, could have given their preference to these institutions latest by 16th June, 1993. Inspite of that, even after obtaining the permission from the State Government and recognition from the authorities, these two colleges did not care to inform the authorities till 23rd July, 1993, regarding their intention to commence the course. The letters issued on 23rd July, 1993, are probably because of the petitions filed in the High Court regarding admissions. The opening of colleges was practically left at the sweet will of the management. Though the permission was granted to these colleges, it will have to be presumed that they are aware of their intake capacity. They are also aware of the declaration of the result of the 12th standard examination. They will have to be presumed to be still aware of the fact that the applications are called for from the candidates for admission on 6th June 1993 and the last date is over by 16th June 1993, and with all solemnity thereafter, these two colleges give assurance to the State Government by a letter dated 23rd July 1993, that they are willing to start the college, and surprisingly, the Government acts on promise of such managements.
24. By a letter dated 8th June 1993, the subject of Bio-Chemical Engineering was declared to be isolated course. However, with regard to this course, the rule regarding the eligibility and the qualification is also changed for the first time and it was informed that for getting admission to this course, the marks obtained by the candidate at the qualifying examination in the subject of Biology and for merit consideration, “PCMB” (i.e. Physics, Chemistry, Mathematics and Biology) group should be considered. The changing of the qualifying examination for a particular subject after the applications are invited from 6th June 1993 and inserting additional conditions for qualifying examination on 8th June 1993, is arbitrary and is required to be set aside. The requirement regarding the consideration of the marks of Biology for Bio-Chemical Engineering is not in conformity with the criteria of eligibility.
25. The requirement regarding the consideration of marks of Biology subject for admission to Bio-Chemical Engineering course, therefore, cannot be given effect to this year. However, if the authorities are of the opinion that there is some nexus between the Biology and Bio-Chemical Engineering, the same may be included in the eligibility criteria hereafter, and after inclusion of this criteria in the rules, which may be published hereafter, then alone this criteria can be considered for admission to Bio-Chemical Engineering course.
26. The publication of the isolated subjects took place much after the forms were not only distributed to the students, but after they were received back by the authorities. The eligibility criteria regarding some subjects was changed after the rules were published and admission forms were received back from the students. Two isolated subjects were added newly and two were allowed to be converted to Civil and Mechanical Engineering courses. This is to say the least.
In this background, we are required to consider the cases of admission of students to the Engineering courses this year.
27. In Rule 5.2.2, it is mentioned that the candidate will be considered for the admission to other University areas, when only after all eligible candidates from the area of particular University are accommodated. We have already noted that Rule 5.2.4 is an exception carved out regarding a particular course, which is available only at particular institution, i.e. isolated. Only in respect to isolated course, the State-wise merit will be considered. For the courses other than isolated courses, rule 5.2.2 governs the field.
28. We have already noted that there are 39 courses in all offered for admission, as per the Brochure and corrigendum, out of which as many as not less than, 14 subjects are isolated subjects, which were finally available for the current year. The admissions to 25 courses out of 39 will be governed by Rule 5.2.2 and the admissions to 14 courses, which are isolated would be governed as per Rule 5.2.4.
29. At this stage, it is worthwhile to consider the information supplied to us regarding the courses regarded as isolated courses as per Rule 5.2.4. We are told by Shri Gangapurwala that while calculating the isolated courses as per rule 5.2.4., the authority has considered a particular course qua a `particular University’ and not only to a particular institution; even not only to a particular University, but a particular course available in two Universities and two institutions; while finalising the list for admission, this year. We are surprised to find that the rule of isolated courses is not adhered to by the authorities while considering admissions to the isolated courses. The rule is changed at the stage of implementation. The variation is said to be made to accommodate more number of students on State-wise merit list. Here also, we may mention that any variation to be made in the rule should have been given sufficient notice to the candidates to make a choice by them. Having regard to large number of students applying for admissions, it is possible to conceive that many students might not have opted for isolated courses with an impression that the admission to isolated courses will be considered strictly as per the Rules. If there was to be any deviation, the students interested and affected should have been sufficiently noticed and the variation should have been made known to the candidates before the filling of the applications. Even after filling of the applications, a choice could have been freshly obtained from such of the desirous candidates, who were entitled to opt for a particular isolated course, as per the deviation which is thought of by the authorities. The action of the authorities in making a deviation from the rule without notice to the students will have to be treated as arbitrary, unreasonable and contrary to the principles of natural justice.
30. While considering this aspect, it may be further noted that an institution named Marathwada Institute of Technology, Aurangabad in Marathwada University area was sanctioned a strength of 30 students in Construction Technology and Management and 30 students in Water and Land Management (Brochure page 44) and these courses were allowed to be converted into Civil and Mechanical courses by corrigendum published on 14.6.1993.
As per the rules, subjects of Construction Technology and Management (Code No. 9) and Water and Land Management (Code No. 36) were isolated subjects, but these courses were allowed to be converted into Civil and Mechanical, respectively; abruptly by publishing a notification on 14.6.1993. This change is of importance as this was not merely a change in the subjects, but the change was from the isolated subjects to the common subjects. This change is not only a change of allocation of course but change from State level merit to University level. Such a change should not have been permitted at 11th hour, and if permitted for reasons best known to the authorities, then the same should have been widely published. Nothing is known regarding the rate of candidates who were unfortunate to opt for those courses. We are unable to see why the transfer of subjects from one to another, from isolated to common, was permitted after framing of the rules. Our attention is not invited to any provision is this regard, governing the conversion of courses.
31. The subjects of Construction Technology and Management; and Water and Land Management are allowed to be chosen by the institute without ensuring that the management would run those courses.
32. Shri Gangapurwala contended that the rules are framed having regard to the scheme formulated by the Supreme Court in Unni Krishnan v. State of A.P., . But, we are unable to accept this contention. The Supreme Court has observed.—
“It is obligatory in the interest of general public upon the authority granting recognition or affiliaion to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter of admission of students ….
It cannot allow itself or its power and privilege to be used unfairly.”
In para 205 at page 755, it is further observed —
“That the idea behind the scheme is to eliminate discretion in the management altogether in the matter of admission. It is the discretion in the matter of admission that is at the root of several ills complained of. It is the discretion that has mainly led to the commercialisation of education.”
33. While giving the guidelines in the scheme itself, the Supreme Court had stated that criteria of eligibility and all other conditions shall be the same in respect of both free seats and payment seats. The only distinction shall be the requirement of higher fee by the payment students. It is also directed that the scheme is not available to the colleges run by Government or to the University Colleges. The scheme shall be made a condition of permission, recognition or affiliation, as the case may be, to the private institutions alone.
34. It is further clarified that the State Government may make additional provisions as desired by it, in the context of the prevailing circumstances of each State, additional criteria and may impose additional obligations also. In this context, it was observed that since the recognising/affiliating authority is the State, it is under obligation to impose such conditions as part of its duty enjoined upon it by Article 14 of the Constitution. It cannot allow itself or its power and privilege to be used unfairly. Affiliation/recognition is not there for anybody to get it, gratis or unconditionally. The State cannot claim immunity arising from Articles 14 and 15 of the Constitution. If so, it cannot confer such immunity upon its affiliates. It was further directed that the scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and directions, which such Government, University or other authority may choose to impose.
35. The imposition of the additional conditions is also made clear in paragraph 206 of the judgment, wherein it is observed that the appropriate Governments and recognising and affiliating authorities shall impose and implement, in addition to such other conditions and stiuplations as they may think appropriate, as conditions for grant of permission, grant of recognition or grant of affiliation, as the case may be. In paras 211 and 220, however, it is absolutely made clear that it shall be open to the appropriate authority and competent authority to issue such further instructions or directions, as they may think appropriate, but the same shall not be inconsistent with the scheme.
35A. The arguments advanced on this subject will have to be considered in this background. The rigour of rule 5.2.2 in respect of considering the inter se merit of University-wise area candidates is made applicable only to free seats. Such a rigorous condition is not provided for in payment seats. While providing the guidelines, the Supreme Court, in unequivocal terms, has stated that there shall be no difference between a free seat and payment seat, except regarding the payment. The other criteria are to remain the same. The discrimination made between free seat and payment seat, in the matter of subjects, other than the isolated subjects is therefore, violative of Article 14 of the Constitution of India and is also in contravention of the scheme provided by the Supreme Court. This is not permissible.
36. There is other reason why rule 5.2.2 cannot be allowed to be implemented. The region-wise classification is considered by the Supreme Court in Nidamarti v. State of Maharashtra, . It is observed by the Supreme Court :—
“However, it would not be unconstitutional for the State Government to provide for reservation or preference in respect of certain percentage of seats in the medical college or colleges in each region in favour of those who have studied in schools or colleges within that region and even if the percentage stipulated by the Government is on the higher side, it would not fall foul of the constitutional mandate of equality.”
The region-wise scheme, as formulated in that case, was found to be a denial of equality under Article 14 of the Constitution, whereby a student from one region was denied opportunity for admission to the medical course in a college located in a region other than a region from which he has studied. While considering the argument regarding backwardness of the regions, the Supreme Court had considered that even if the regions within the jurisdiction of the Universities in Vidarbha and Marathwarda can be said to be backwardness of the regions, the Supreme Court had considered that even if the regions within the jurisdiction of the Universities in Vidarbha and Marathwada can be said to be advanced, the regionwise classification for admission to medical colleges cannot be sustanied. It was further observed that there is no reason why a brilliant student from a region which is within the jurisdiction of a University in Vidarbha or Marathwada area should be denied the opportunity of medical education in Bombay or Pune. He cannot be confined to the so called backward region from which he comes. An equal opportunity for medical education must be made available to him, as is available to students from regions within the jurisdiction of advanced Universities like Bombay or Pune Universities.
37. In the present case rule 5.2.2 creates a bar against the candidates from one University area to get admission to the course other than isolated courses, in the other University areas even though such a candidate may have merit in his favour. Shri Gangapurwala in this context informed us as a matter of fact, that but for the provision of rule 5.2.2, as many as 300 students from Marathwada would have lost the seats. The argument, though seems to be attractive, cannot be entertained, firstly because on account of the said rule, the meritorious students from Marathwada, who would be eligible to get admission to the colleges in other University areas including Bombay and Pune would be excluded from getting admission to those colleges and would be confined to the institutions in Marathwada only. Secondly, the earlier rules provided a criteria of eligibility of passing of the 10th standard examination from the institutions located in Marathwada University area, in addition to the passing of the 12th standard examination, to ensure that the candidates do not get enrolled to schools and/or colleges in Marathwada University area only for the purpose of securing admission to professional colleges located in Marathwada. Though rule 5.2.2 provides for wholesome reservation in favour of students passing only 12th standard examination from the Marathwada University area for admission to the institutes located in Marathwada area, it takes away the assurance given to the students genuinely belonging to Marathwada area, because of the non-inclusion of passing of 10th and 11th standard examinations in the eligibility criteria. As a matter of facts, it may be noted that previously also, passing of 12th standard or H.S.C. examination was found to be insufficient for protecting the interest of Marathwada region and, therefore, in subsequent years, passing of 10th standard examination was also made a condition precedent for admission. The requirement of passing of X and XI standard examinations is given a go-by. It is very difficult, therefore, to consider, in the absence of any material to hold, that the withdrawal of aforesaid requirements, really helps the genuine students belonging to this area. Apart from this, we are bound by the rules laid down by the Supreme Court, where whole-some reservation in favour of a category of the students was found to be unconstitutional. There has to be some scope for the students from the other University areas also, so that all the avenues are open for the meritorious students all over the State. Making provision for reservation of seats for the University-wise candidates in the ratio of 30 to 70 is a not a must, which is relaxable and in each and every case it depends on the facts and circumstances prevailing at a place at a particular point of time.
38. Rule 5.2.2 as framed denies admission to the meritorious student to get admission to the regions other than his own. For instance, a Marathwada student having more merit than the other candidates will have to get himself satisfied for getting admission in Marathwada institutions only for the courses, other than isolated courses. On the basis of merit probably, even for that course, he would have been considered for admission in other University areas. This is necessary not only for educational integration, but to achieve greater merits also. The advanced standards of the institutions is a factor, which is also required to be taken into consideration. It may be that meritorous candidate may like to get admission in an institution to a course, where the standards of education are higher. Such an opportunity cannot be denied to him.
39. From the data made available to us, it can be gathered that the number of Government institutions imparting Engineering courses is remaining static over years, while the private institutions are increasing fast. If discrimination is allowed between the free seat and payment seat, for the application of the criteria laid down in Rule 5.2.2, large number of seats in the payment category are left open for less meritorous candidates. In the absence of such a rule regarding the payment seats, probably, a large number of students from Marathwada University area, who have opted for payment seats, must have suffered, even as per the present scheme, though we may mention here that this is not based on any statistical data supplied to us. This is merely by way of a consideration of a consequence, which may result because of discrimination between the free seats and payment seats.
40. It may be worthwhile to mention that out of 78 institutions all over the State, only 10 are either Government colleges or run by the Universities or Government aided colleges and 68 colleges are private colleges. In Bombay region, out of 20 institutions, there are 17 private institutions, while only 3 are Government or Government aided or University institutions. In Pune region, out of 15, 14 are private colleges and there is only one Government College. In North Maharashtra region, all six colleges are private colleges and in Marathwada out of 10, 8 are private colleges and 2 are Government colleges. In Amravati region out of 6 colleges, 5 are private and one is in the category of Government. In Nagpur region, out of 10, 8 are private colleges and 2 are Government colleges. In Shivaji University region, out of 11,10 are private colleges and one is Government college. If we consider the trend in this field for last few years, there is no doubt that the opening of avenues in Government colleges for admission is lesser as compared to the opening of avenues for admissions in the private colleges. This is all the more reason that the criteria of admission in Government and private colleges must be the same for free as well as payment seats
41. Apart from the numerical strength of the colleges, the sanctioned intake capacity of the students to various courses is increasing fast in the private institutions, as compared to the Government colleges. By providing for the University-wise merit in free seats only; and not providing the same for candidates applying in the payment seats, a field remains wide open and available in the payment category; while the same is reduced with regard to the free seats. Now, the trend seems to be to establish private institutions mainly in advanced regions, as compared to backward regions. Because of attracting of the students to the payment seats, the likelihood of filling in all the payment seats from advanced areas cannot be ruled out. By bringing up more and more private institutions in advanced areas; and by virtue of rule 5.2.2, the payment seats in the advanced areas will not be available to the paying candidates from backward regions. Seen from this angle, the candidates from backward areas will naturally suffer.
42. The Supreme Court not only in Nidamarti’s case, but even in Unni Krishnan’s case,. has stated that the Government may create reservation in favour of the students from backward regions, without violating the mandate of Article 14 of the Constitution, meaning thereby that instead of whole-some reservation, there may be a substantial reservation in favour of the backward region candidates, keeping in mind the requirement of keeping avenue open to the meritorous students from all regions.
43. Coming to the isolated courses, we have already observed that the rule regarding the same is not properly framed and is not properly worked out. More care is required to be taken in filling in the isolated courses, because the isolated courses are located only in one or two University areas. The State-wide merit is to be considered for admission to isolated course. The isolated course are almost all in private colleges. The rigour of rule 5.2.2 is not applicable to private colleges in payment seat. A meritorious student from the other region will be ignored because of his choice in a free seat, may be for lack of funds. But, a candidate from the same area having less merit but more money, may be able to get admission for isolated course in a payment seat. Such a situation is not very desirable. In this method, the merit is being compromised for money, in violation of the directions of the Supreme Court, given under the scheme. If the criteria were to be the same for payment as well as for free seat, such an eventuality could be avoided.
44. One more aspect of serious consequence, which is apparent, is required to be considered. The petitioner had given his choice for Chemical Technology in Bombay University Department of Technology. The prospectus published by Bombay University shows that out of 60 seats available, 18 seats are treated unallotted and are open on merit to candidates from all States in India including the State of Maharashtra. The remaining 42 seats are available for candidates from different University areas as follows :
Bombay : 31;
Pune : 03;
Shivaji : 03;
Marathwada
University area : 03;
Nagpur
University area : 01 and
Amravati
University area : 01;.for this year also.
According to the rules framed by the Government, these 42 seats are to be filled in by the competent authority. Naturally, to this U.D.C.T. admission also, rule 5.2.2 would apply. Therefore, all the 42 seats are available for admission to candidates from Bombay University area only. This course is also not included in isolated course. Therefore, the inter se merit of Bombay University area candidates alone will be considered. The prospectus framed by the University for admission to this course in this year also, runs counter to the rule. As per the prospectus, the seats are allotted unevenly to candidates from different universities, excluding North Maharashtra University. Again, we are told that for some purposes, Pune University area is still considered as inclusive of area of North Maharashtra University.
45. Our attention was invited to the resolution dated 28th May, 1993, by which the competent authority as per the scheme of the Supreme Court was constituted. In the said resolution, it is directed that the committee of the region areas would consist of Deputy Director of Technical Education, Maharashtra State; representatives of the University, Dean of the Faculty of Engineering/Architecture/Pharmacy, as the case may be; and the expert member for the respective areas as indicated below. An expert is named for each University. Such committees of the regions do not exist, in fact, as seen from the record. The Government of Maharashtra had not called upon the Universities to send their representatives on the regional committees, nor the Universities have nominated anybody to represent on the said committee as per clause (6). Dean of the faculty of Engineering was a member in his own right on a committee under clause (6). From the record of Marathwada University, it seems that the Dean of the faculty of Engineering was treated as nominee of the University. In fact, the Dean was a member in his own capacity as per clause (6). There are no resolutions of the University to nominate Dean as representative of the University. The absence of the representatives of the Universities has resulted in disassociating completely the University from the Government authorities in the matter of the framing of the rules. Probably, if the representative of the University would have been there, then the anomaly appearing in the rule and the prospectus of Bombay University would not have taken place. Some record is produced before us, but the record of those committees are regarding fixation of fees and has nothing to do with the duties cast on the committee as per the resolution dated 28th May, 1993. The sub-committees which were to assist the competent authority, were not brought into existence before the rules were framed and before they were implemented. Directions were issued to the Vice-Chancellors to approve the appointment of the Dean as nominees of the Universities as mentioned in letter dated 3.6.1993.
46. The notices were issued by this Court to all the Universities, particularly because the petitioner was seeking admission to Bombay University in the University Department, where the prospectus indicated reservation of three seats in favour of students from Marathwada University area for Chemical Technology. However, the rules framed by the Government did not permit consideration of the application of the petitioner. In this situation, we wanted to know the stand of the Universities in this matter and on other relevant matters. But, except Marathwada University, no other University has appeared before us. Marathwada University having appeared, has not filed any affidavit explaining its stand on the various points involved in the matter. The Universities were expected to co-operate in such matter of affecting the admissions of about 20,000 students all over the State, in the courses of Engineering and Technology.
47. On the question of reservation also, the rules are very defective. Rule 3.1 provides for reservation of seats. It is stated in the said rule that the seats for Backward classes shall be reserved as per Government directives issued from time to time. Our attention is invited to the Government resolution dated 5th June, 1993, issued regarding reservation of seats in Engineering colleges, wherein it is stated that there shall be traditional reservation. The resolution of the Government mentions that this reservation is applicable only to free seats; the rule regarding reservation is not applicable for payment seats.
48. Shri Bora pointed out from the rules regarding admission to Medical Colleges and from the list of selected candidates that the rules for reservation are made applicable to free as well as payment seats. This is not disputed.
49. Shri Bora was right in taking benefit of the analogous position in the rules framed by the State Government regarding medical admission.
Rule 3.2 of the rules in dispute deals with reservation for backward class candidates to the extent of 36% altogether. Rule 3.2.1 gives an illustration. In any particular course, where the sanctioned intake is 60, the reservation shall be as follows:
Scheduled Castes 8
Scheduled Tribes 4
D.T.N.T. 4
O.B.C. 6
and where the sanctioned intake is different than 60 then the reservation shall be in due proportion.
50. "Sanctioned intake" or "strength" is defined as, "the number of seats sanctioned or assigned to each course of the institutes by the Government."
In view of this definition, the total number of candidates in free seats as well as payment seats are included in the sanctioned intake or strength. The reservation provided for as per rule 3.2 and rule 3.2.1 and, even shown by way of illustration, shows that the reservation shall be to the extent of 36 per cent out of total strength.
As per the directions of the Government, there shall not be a reservation in favour of candidates claiming admission in payment seats. If the Government directions are taken into consideration, then the sanctioned intake or strength available with the institutions in the category of free seats only will have to be considered for the purposes of reservation, and not the sanctioned intake or strength as per the definition. The illustration, on the contrary, takes into consideration, while working out the reservation, the sanctioned intake or strength inclusive for both, free seats as well as payment seats. If the reservation is not to be provided for in the payment seats, then the intake capacity available for payment seats will have to be excluded from the consideration of sanctioned intake or strength. If the illustration is a guide, then it cannot be said that the rules are framed bearing in mind the Government directions issued by Government Resolution dated 5th June, 1993. The rules and the illustration indicate that there is reservation as against payment seats also. If the intention was otherwise, then the sanctioned intake or strength for the purposes of reservation should have been differently defined.
This anomaly is likely to create a great disadvantage, as the Government has issued directions that there shall be no reservation as against payment seats. So, burden of 36 per cent reservation is likely to be thrown only on the free seats, ignoring the payment seats. The point can be better understood on the basis of the given illustration.
If the sanctioned intake is 60, and out of that 60, 36 per cent of reservation is distributed amongst various categories, this 60, as per the illustration, includes the payment seats also in view of the definition of the sanctioned intake or strength. As the sanctioned intake or strength in a private college is distributed 50 : 50 between free and payment seats, the intake, which is available for 36 per cent reservation becomes 30 and not 60, as 30 are left out for the payment category. Then, instead of 8 seats shown in the illustration in favour of Scheduled Castes, there will have to be 4 seats out of 30. Likewise, in other categories also. If this is not the position, then 22 seats shown in the reservation in the illustrations, will have to be provided for out of 30 free seats only. This is not permissible at all. In fact, either the definition should have been corrected for the purposes of reservation; or, it will have to be held that the reservation is provided for in the payment seats also as per the rules, irrespective of the Government directions.
We are told that while preparing the list, sanctioned intake of free seats is taken into consideration and not the sanctioned intake of total number of seats, including the payment seats, to fix the number of reserved seats. That may be so. But, the rule is not framed accordingly. This also shows that the rule is not worked out as framed.
Shri Gangapurwala contended that so far as the reservation in the payment seats in concerned, in the scheme of the Supreme Court, it is observed:
“……It shall, however, be open to a professional college to provide for reservation of seats for constitutionally permissible classes with the approval of the affiliating University. Such reservations, if any, shall be made and notified to the competent authority ….”
According to Shri Gangapurwala, therefore, the reservation in payment seats has got to be provided for by the management, after the approval of the University. This category of reservation mentioned is different, than the reservation in favour of Scheduled Castes, etc., and has nothing to do with the reservations in favour of backward classes.
We are required to consider this matter in the light of the fact that the Government has provided for reservation in the medical colleges as against payment seats. It is very difficult to understand as to how the same can be denied for students in that category in Engineering admissions. This may result in discrimination.
51. There is all the more reason as to why reservation is required to be provided in the payment seats in Engineering Colleges. As far as Engg. Courses are concerned, a candidate is required to pay Rs. 32,000 per year for payment seat; while in medical colleges, the payment is to the extent of Rs. 1,70,000 per year for the similar seat. If the cessation of the backwardness could be the criteria, that would still apply more forcefully against a candidate desiring admission in medical course against a reservation seat, then a candidate seeking admission to an Engineering course. If the reservation is maintained for payment seats in medical courses, the same will have to be continued even regarding the Engineering courses.
In future, it may be open to the Government to reconsider the question of reservation regarding the payment seats, depending on the creamy layer within the said classes and also of the economically advanced people from these categories. That is besides the present position.
The list seems to have been finalised regarding the payment seats on the basis of no reservation in favour of backward classes for these seats. Such preparation of the list cannot be said to be in accordance with the provisions of rule 3.2 and illustration given in rule 3.2.1..
52. One more aspect in connection with the reservation has to be considered. It is further provided in rule 3.2.1 in last paragraph that the 26% seats reserved for students belonging to the three categories of Backward classes, i.e. (i) Scheduled Castes and Scheduled Castes converts to Buddhism: (ii) Scheduled Tribes including those living outside specified areas; and (iii) Denotified Tribes and Nomadic Tribes, shall be exclusive of the number of students who secure admission on merit, provided that the total number of students of these three categories of Backward classes who secure admission against the 26% reserved quota and merit does not exceed 50% of the total number of seats available for admission. The provision to the extent of 50% is not in accordance with the settled law. The Supreme Court has said that the total reservation is not to exceed more than 50%. If the total reservation in favour of Scheduled Castes/Scheduled Tribes and V.J.N.T. categories is allowed to go upto 50%, in addition to that there is already a reservation of 10% in favour of Other Backward classes. If 10% reservation in favour of Other Backward Classes is taken into account, the total reservation exceeds 50% and goes upto 60%. That is in contravention of the decision of the Supreme Court in Indra Sawhney v. Union of India, and Balaji‘s case, .
53. There is yet a Larger Bench decision of this Court in the field, where this problem of 26% of Backward classes, i.e. Scheduled Castes, Scheduled Tribes and V.J.N.T. is considered. The usual reservation of 26% in favour of these three categories may exceed upto 40% only. The reservation provided for to the extent of 50% of the total number of seats available for admission by way of reservation in favour of these three categories is, therefore, not proper and violates the ratio as laid down by the Supreme Court of India and this Court in the cases of Kum. Sunanda v. State, 81 Bom. L.R. 149 (F.B.), and Indra Sawhney v. Union of India, .
54. One of the most important features of the rules which requires consideration is rule 5.13, which speaks as under :—
“In the event the management of any private institute, decides not to conduct courses in their institute for whatsoever reasons, after candidates are allotted to such institution either for free seats or payment seats, the competent authority will not reallot such candidates for free seats/or payment seats to other institution.”
55. It is worthwhile to refer to the definitions of free seats and payment seats at this stage. “Free seats” means the seats in every institution for which allotment of student is made by the competent authority and for which the tution fee shall be the same as that is charged for similar course in Government run institution. While “payment seats” means the seats in every institution for which allotment of student is made by the competent authority, who comply with the instructions regarding deposit and furnishing of cash security/Bank Guarantee for the balance of amount. Rule 8.B provides that the deposit/cash security/Bank Guarantee for whole course will be necessary before securing admission on payment seats as directed by the competent authority. Thus, under the rules the managements of private colleges and the institutions are assured regarding the payment of the fees. In view of this, the expectation of the student community for an assurance of the completion of course from the management, cannot be said to be unwarranted and uncalled for. The courses of Engineering and Technology are to be completed over a span of four years. The students as required to pay/for the first year and to furnish the Bank guarantee for the rest of the years. A free hand is practically given to the management in the matter of running of courses. Inspite of obtaining the fees for the whole year and inspite of the Bank guarantees, the management may decide to close down a course or the institution itself. In that event, rules do not throw any obligation on the management or on any one else to continue the course till completion. The management has to admit the candidates for both free as well as payment seats. The candidates are allotted to the private college by the authority created by the State. For no fault of the students, if the course is closed down by the management, their career is brought to an end without providing for any alternative arrangement.
56. At one stage, Shri Gangapurwala, contended that the State Government may consider to accommodate them in either Government college or in the private colleges. So far as the free seats candidates are concerned, there may not be difficulty in admitting them in Government colleges also. But so far as the payment seats are concerned, they cannot be admitted in Government institutions. In fact, the scheme of the Supreme Court, as per the Unni Krishnan’s judgment, does not apply to the Government colleges. Therefore, there was no question of division of seats into free and payment seats. The candidates, who are required to pay more for the payment seats, therefore, in all probabilities, cannot be adjusted in a Government college. Similarly, regarding the private colleges also. There is yet another difficulty. There are so many isolated courses mostly in private colleges and in many cases only in one institution. If such institution closes down, then to accommodate the students in isolated course may become very difficult, because such course is not available either at Government college or at private college. If the sole college having the said course desires to close it down, then in that event, the future of the students, would be very bleak.
57. Shri Gangapurwala pointed out that the Government collects amount from the colleges before admission and/or recognition is granted to them. He invited out attention to the Government resolution dated 21st May, 1983, regarding opening of the colleges, where it is provided that the colleges with Degree courses should deposit Rs. 30 Lakhs with the Government, which would be kept in the joint account of the management and the Directorate of the Department. Rs. 20 Lakhs are provided for the Diplomas and other Courses. The amount was not to be withdrawn by the management without concurrence of the Government. There were no rules and guidelines as to when the concurrence will be granted. There is no provision for the Government to withdraw the amount in case of the likelihood of the course or in the interest of the students also. This policy has undergone a considerable change and the deposit is now governed by the Government Resolution dated 28th October, 1992. By this resolution, now the Government has decided to grant permission on payment of Rs. 1 Lakh as against 30 sanctioned strength for a degree course. This resolution further provides that having regard to the interest of the institution, students and the staff, the Government may give permission to withdraw the part of the amount by the management. We fail to understand as to how this provides an assurance to the students for running a course till completion. A list of the institutions, whose amount is said to be deposited with the State Government in the joint account is produced before us today.
Out of 68 private institutions in the State, only 3 or 4 colleges have deposited amount to the extent of Rs. 30/- Lakhs. There are some colleges, who have paid amount of Rs. 30 Lakhs. There are still more colleges, who have paid upto Rs. 1 Lakh and there are at least 11 colleges, who have not paid a single pie. Inspite of that all these colleges are allowed to conduct the courses. The acceptance of the less amount is not explained anywhere. There is also no nexus between the amount deposited and the number of students allowed to be admitted in the private institutions.
58. The information supplied to us indicates that things are not seriously taken and permissions are granted even to those institutions, who have flouted the Government resolution in the matter of payment of deposit. We feel that the Government should collect at least Rs. 30 Lakhs or the deficit from these institutions as per the Government resolution dated 21st May, 1983. The Government should also frame the guidelines, as to under what circumstances, the amount can be allowed to be withdrawn by the management. The Government should also provide that in the case of closure of the course by the management, the amount should be withdrawn by the Government to ensure the continuance of the course at the cost of the management, and without burdening the public exchequer.
The amount of Rs. 30 Lakhs was fixed as far back as in the year 1983. The Government may reconsider the upper limit of the deposit, depending upon the courses allowed to be run by different colleges and also depending upon the strength of the students. So also, the Government may reconsider this even in the light of increase in the fees since 1983.
59. The Brochure gives the strength of each College. The strength allotted to the private Engineering Colleges is more than 120 students, going upto 300 also. Out of these seats, 50% are free seats fetching Rs. 4,000 per student and 50% are payment seats fetching Rs. 32,000/- per student. Rs. 1 lakh per 30 students is quite insufficient amount for keeping as a permanent deposit. Probably because of that, the Government had framed the rule like 5.13, by which if the management closes down the course, then there is no remedy open for a candidate, as the competent authority is not allowed to re-allot such student to any other Institution.
60. If a permanent deposit scheme is to be fruitful not only to the members of the staff, but looking also to the interest of the students, then the Government should insist upon the payment of at least Rs. 30 lakhs initially for the recognition or permission to run Engineering degree course. This would lend some assurance to the students about the continuance and maintenance of the course by the private colleges. The fear of loss of permanent deposit itself may work as a deterrent to the management. In case the management fails to continue with the course, the Government may be in a position to continue the course in the same institution and give assurance to the students in that regard. With a permanent deposit of Rs. 1 lakh per 30 students, the Government may not be in a position to give required assurance to the students regarding both, continuance of the course or maintenance of the course. There was no reason for relaxation in the quantum of deposit and bringing it down to Rs. 1 lakh per 30 students. In fact, having regard to the present salary structure and the increase in the costs, etc. the Government should have thought of raising the deposit, instead of relaxing the payment of deposit in the joint account.
61. Probably, the using of the permanent deposit for the maintenance of running of the course, so far, was never thought of previously. Unless a sizeable amount is collected by the State Government at the time of recognition or permission to run the College, it would not be possible for the Government also to assure the students of maintenance of the course and continuance of the course. With meager amount of Rs. 1 lakh per 30 students, the Government may not be in a position to assure the candidates of continuance of the course by the same management at the same place. Otherwise, if any assurance is given to the students, that would be at the cost of the public exchequer, which would not be desirable having regard to the scheme evolved regarding the private management of engineering courses.
62. From the list supplied to us, it can be gathered that the list contains only 66 institutions out of 68 private colleges and institutions. The list does not include the names of Indira Gandhi Engineering College, Bandra, Bombay of Jawaharlal Nehru Institute of Education and Technological Research, Nanded and Engineering College, Chikhali (District Buldana) of Paramhansa Ramkrishna Maunibaba Education Society. These institutions, as already pointed out, were granted permission in the last year. They had not commenced the courses at all, on the ground that they had received the permission late in the midst of academic year. It was only on 23rd July after this Petition that these managements have informed the Government of their willingness to continue with the College and accordingly the allotment of candidates was made by the Competent Authority in favour of these two institutions also. If any amount was deposited by these two institutions, naturally their names would have appeared in the list. It seems that the permission is granted to run these two institutions also without any deposit to be made by these two institutions.
63. We, therefore, feel that the State Government has not seriously considered this aspect of the protection of the interest of students, in case the institution closes down the course, therefore, instead of assuring the students of completion. If the scheme regarding the permanent deposit is properly worked out with a view to assure the students of continuance of the course, the Government would not have thought of bringing down the amount from Rs. 30 lakhs to Rs. 1 lakh per 30 students. We may also take note of the fact that there are complaints against the privately managed colleges with regard to the maintenance of the standard. The deposit has relevance in this context also. We have also to bear in mind that the degree course is of four years. A student admitted to the first year course is required to be assured not only for continuance and maintenance of one year course, but is required to be assured for all the four years till he completes the course. The period of four years is a considerable period. If properly worked out, the amount of Rs. 30 lakhs may not be found sufficient by the State Government. The question of reducing, probably, may not arise.
64. We, therefore, feel that presently the Government should insist upon the payment of at least Rs. 30 lakhs towards permanent deposit. The Government shall take steps to recover the shortfall from such of the managements, who have either not paid or paid partly. It would be open to Government to reconsider the issue afresh in the light of solemn assurance to be given to the candidates admitted in private colleges both in free seats as well as against payment seats and revise the quantum of permanent deposit.
65. A letter containing the confidential instructions addressed to Shri Gangapurwala personally was produced before us. As such, we thought it fit to keep it under a seal. It shall remain so until further orders. We may, however, record that the Government has come out with a proposal to increase 10 per cent of additional seats.
66. We have already vacated the interim relief by giving certain directions. We are told that the list of the selected candidates is not yet published, inspite of the vacation of the interim relief. The directions are already issued on 10th August, 1993 regarding the procedure and the manner in which the 10 per cent of the additional seats shall be filled in.
67. The directions regarding reservation of seats is required to be modified. In the order dated 10th August 1993, we had directed to provide for reservation of 36 per cent out of the total number of seats from the category of free seats only. Now, as we have held that there should be reservation to the extent of 36 per cent even with regard to payment seats, we direct that 36 per cent of reservation shall be provided for, equally in the payment seats as well as in the free seats. The directions given in the order dated 10th August 1993 stand modified to this extent.
68. Though we have held rule 5.2.2, 5.13 etc. as invalid, as stated in our order dated 10th August, 1993, it would not be proper to direct the State Government to call for the applications for all the seats afresh more particularly so, when the Government has come out with a case of addition of 10 per cent of seats to be filled in on State-wide merit basis, to accommodate the meritorious students and we have already directed to invite fresh applications for the additional seats. Compelling the State Government to do so would result in great inconvenience to thousands of students, as they are likely to lose their term also. A useful reference can be made to the decision of the Supreme Court in Reita Nirankari v. University of Delhi, , wherein it was observed;
“If all the States were to be required to implement the judgment immediately, admissions already made would have to be cancelled and fresh entrance examinations would have to be held and this would require at least 2 or 2 1/2 months delaying the commencement of the academic term apart from causing immense hardship to the students.”
In the present case also, the same consequence would ensue and the career of about 20,000 students would be jeopardised for one year, as the process of admissions had commenced from 5th June and could not be completed till today. Directing the State Government to invite applications afresh in accordance with the judgment delivered by us now, would cause immense hardship to all the students and also delay unreasonably the commencement of the academic term. If the entire ordeal is to take place afresh, another two months at least would be lost. Therefore, the Government is directed to implement the judgment from next year, more particularly so, in view of the fact that the Government has already agreed to create 10 per cent of seats in all the colleges and to be filled in, in accordance with the directions of this Court dated 10th August, 1993, with modification as stated above.
69. While framing the rules, the Government shall always bear in mind that profiteering and commercialisation of education shall not be permitted, as the same is not in accordance with the Indian culture and tradition. See Supreme Court in Unni Krishnan.
While framing the rules for the next year, the Government shall see that :—
(i) The rules are not inconsistent with the Scheme of the Supreme Court;
(ii) There shall be no discrimination in the candidates applying for free seats and payment seats, except the payment of fees, other criteria remaining the same;
(iii) The Government shall consider to protect the interest of the candidates belonging to the backward areas;
(iv) The Government shall protect the interest of Marathwada candidates and of other backward areas of the State. In this context the Government may consider retention of the rule regarding passing 10th standard from the institutions located within a particular University area, in addition to the qualifying examination, as was provided in the earlier rules, in the light of decision of Division Bench of this Court in Asmita v. State of Maharashtra, 1983 Mh. L.J. 833.
(v) There shall be no wholesome reservation in favour of the candidates belonging to a particular University area. The Government may provide for the proportion of the seats making the avenues open for meritorous candidates in the light of the observations of the Supreme Court in and ;
(vi) The Government shall continue to provide for 50% of free seats and 50% of payment seats in the private colleges and institutions, They must provide as a rule that 50% of payment seats and of free seats shall be distributed equally in each course;
(vii) The reservation of seats to permissible categories shall be provided for separately both in free seats as well as payment seats to the permissible extent (presently 36 per cent.) in each course. The percentage of reservation shall be separately calculated, having regard to the sanctioned intake strength, each of free seats as well as payment seats. In any event, the total reservation in favour of all categories taken together shall not exceed more than 50 per cent in accordance with the decisions in M.R. Balaji , and Indra Sawhey, A.I.R. 1993 S.C. 447.
For making the seats available to all categories of reserved candidates in all the courses, there shall be a system of rotation of seats amongst them, if necessary.
The policy of reservation, especially qua payment seats, shall be reviewed periodically, so as to exclude creamy layers of a particular category and even the economically advanced people;
(viii) The reservation in favour of other backward classes shall be to the extent of 10 per cent. inclusive of the candidates appearing in the open merit, as per the decision of this Court in 81 Bom. L.R. 849 Sunanda v. State..
(ix) The institutions may desire to have reservation in addition to 36 per cent. in favour of the permissible constitutional classes, such as, women, N.R. Is., etc. as per the scheme formulated by the Supreme Court. Such reservation must be provided for after the approval of the concerned University and/or recognising or affiliating authority/authorities. Further, such reservation, if made, shall be notified by the managements of the private colleges, at least 2 months prior to the date fixed for receiving the applications and should form part of the rules and prospectus;
(x) The provisions regarding reservations of all categories shall form part of the rules so as to leave no ambiguity in the matter;
(xi) The isolated subjects, if any, shall be decided by the Government strictly in accordance with the rules framed by them. The isolated courses must form part either of the rules or of the instructions to the students to enable the candidates to make their choice and preference;
(xii) The clubbing of the courses shall be undertaken before the instructions are issued to the candidates; and such clubbing shall form part of the instructions to the students;
(xiii) The rule of merit shall form integral part of the rules, wherever the seats are allotted to various categories. Even in such an event, the inter se merit of students of that category shall be the basis for selecting the candidates for admission;
(xiv) Unfilled payment seats from the category of reserved candidates shall be filled in from the open candidates from that category, on the basis of inter se merit;
(xv) No seat shall go vacant;
(xvi) There may be one single authority allotting the seats of Government colleges, as well as private colleges. The rules of admission regarding both, i.e., seats in Government colleges and in private colleges, shall be separate on the principles laid down in the Scheme formulated by the Supreme Court and in this judgment. Subject to this, any fresh rules may be framed by the Government, which are not inconsistent with the said Scheme and this judgment;
(xvii) The contribution to the "Permanent Deposit Fund" by the private institutions to the extent of Rs. 30 lakhs, as provided in Government Circular dated 21st May 83 must be strictly adhered to and such contribution should be obtained from the private managements before the recognition or permission is granted to such college.
The Government may consider raising of the Permanent Deposit Fund hereafter, looking to the exigencies of time;
(xviii) The Government shall frame rules for withdrawal of amounts from the Permanent Deposit Fund, having regard to the interest of institutions, the interests of the students and the members of the staff. Such rules shall provide for withdrawal with an option to the Government to withdraw from the Permanent Deposit Fund amounts, which may be required to run the course on failure of the managements to do so. This shall be done with a view not to burden the public exchequer;
(xix) The Government will be at liberty to reduce the contribution to Permanent Deposit Fund only in rare cases; but by recording reasons therefor. Such reasons must be published in the brochure along with the other information in respect of the concerned institute;
(xx) The Government shall take effective steps to see that the colleges run the courses in accordance with the sanctioned strength and the sanctioned courses. Such an assurance shall be indicated in the rules, to enable the students to make a choice and indicate the preference;
(xxi) The Government shall frame rules regarding the conversion of the courses by the managements indicating the circumstances in which such conversion will be permitted. If conversion of a course is allowed after the commencement of the course, such conversion shall not affect the interest of the candidates, who are already admitted to such course prior to conversion;
(xxii) The rules regarding transfer from one course to another and from one institution to another may be framed, if not already framed. However, a candidate admitted to payment seat shall not be allowed to be transferred as against a free seat;
(xxiii) The rules must be given wide publicity. The changes made in the rules shall also be published widely, not only at the Collection Centres, but by publishing in newspapers covering the University-wise areas and also by publishing on the notice boards of the colleges. If any change is made at the eleventh hour, such publication must be made by utilising all the media available;
70. As the Government has agreed to create 10 per cent of seats additionally, which would be available on State-wide merit, no specific directions are required to be given in respect of admission of the petitioners. The petitioners will be at liberty, along with other candidates, to apply afresh, as they will be entitled to be considered as per the rules and guidelines, on performing the necessary formalities.
With these directions, petitions disposed of accordingly. No order as to costs.