SCA/2908/2008 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2908 of 2008 With SPECIAL CIVIL APPLICATION No. 5939 of 2008 With CIVIL APPLICATION No. 3655 of 2008 In SPECIAL CIVIL APPLICATION No. 2908 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE JAYANT PATEL ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= GAJANAND CHARITY TRUST - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : SPECIAL CIVIL APPLICATION No. 2908 of 2008 MR.SUBHASH G BAROT for Petitioner(s) : 1, MS TRUSHA K PATEL, AGP for Respondent(s) : 1, 3 MR SN SHELAT with MR HARSHADRAY A DAVE for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL Date : 09/04/2008 SCA/2908/2008 2/16 JUDGMENT COMMON ORAL JUDGMENT Rule in both the petitions. In Special Civil Application No.2908 of 2008, learned AGP Ms. Patel waives service of notice of rule on behalf of respondents no.1 and 3 and Mr. Dave, learned counsel waives service of notice of rule on behalf of respondent no.2 - University. 1.1 In Special Civil Application No.5939 of 2008, learned AGP Ms. Patel waives service of notice of rule on behalf of respondents no.1, Mr. Subhash Barot, learned counsel waives service of notice of rule on behalf of respondents no.2 and 3 and Mr. Dave, learned counsel waives service of notice of rule on behalf of respondent no.4 - University. 2. The short facts of the case appear to be that the petitioner is running Vrund B.Ed. College affiliated to North Gujarat University. The process of admission had started for the academic year 2007- 2008 from August, 2007 onwards. As per the petitioner, the approved seats/intake capacity of the college of the petitioner is 100 out of which 85 seats are allotted in Government quota and 15 seats were to be filled up by the Management in the Management quota. The Centralized Admission Committee allotted 53 students to the petitioner college. It is an admitted position that as per the University, out of 85 total intake capacity, the students allotted were 46 through the Centralized SCA/2908/2008 3/16 JUDGMENT Admission Committee on Government quota out of which 6 students who were allotted admission in the petitioner college did not approach and had not opted for admission and as a result thereof, 40 students were admitted on Government quota through Centralized Admission Committee. The Management also admitted 15 students on Management quota. As a result thereof, the total number of seats utilised by giving admission were 55 as against total intake capacity of 100 seats. In view of the aforesaid situation, about 45 seats on Government quota remained vacant. As per the petitioner, 13 students wanted to get the admission at a later stage and, therefore, the petitioner, anticipating the enrolment to be granted by the University, gave admission to these 13 students. However, on account of such admission, the number of students did not exceed 100 which was the intake capacity of the college. 3. As per the petitioner, orally the petitioner was intimated by the officers of the University that the admission could be granted to such 13 students as the seats are vacant whereas the University has denied the same. When the examinations were to be conducted, the University examined the enrolment of such 13 students after having accepted the fees, but found that the admission is not through Centralized Admission Committee and, therefore, did not grant enrolment and also did not accept the examination forms. Under these circumstances, Special Civil Application No.2908 of 2008 has been preferred by the SCA/2908/2008 4/16 JUDGMENT petitioner Trust who is running the College for the appropriate writ to direct the respondent no.2 – University to allow 13 students to appear in the examination of 1st year B.Ed. course which was to be held from 18th February, 2008. 4. This court, on 15th February, 2008, when considered Special Civil Application No.2908 of 2008, while issuing notice, prima facie did observe that if the Management of any self-financed institution has granted admission to the students on Government quota, making the students to believe that the seats are available and the Management has power to grant admission and thereafter, if the institution has collected fees and when the matter reaches the University, the University declines enrolment, such an action on the part of the University cannot be said as illegal or arbitrary. However, it was also observed that the matter does not end there and this court, while exercising the powers under Article 226 of the Constitution, it leaves the matter at that stage, the consequence would be that the Management of the self-financed institute is freely permitted to get away with such ex facie illegal action, not only of collection of fees unauthorisedly but playing with the careers of the students. It was observed that it would be expected for the University, State Government through the Secretary, Education Department as well as Director, Higher Education Department or Commissioner, Higher Education of the State to take strict and stern action for curbing SCA/2908/2008 5/16 JUDGMENT such unauthorised activity on part of such self- financed institutions of granting admission to the students without there being any authority with them and thereby collecting fees. This court also observed prima facie that if there is failure on the part of the officer of the University or the University to take appropriate measures for curbing such activities in the field of education in the State, it may be required for this court to pass appropriate directions for such purpose. However, before further directions could be issued, the report was called for from the Secretary, Education Department as well as Director, Higher Education and the Registrar of the University for the steps which are taken before and which may be taken by way of a corrective measure and to curb prima facie illegal activity on the part of the Management of self- financed colleges in granting admissions. 5. It may also be recorded that after the aforesaid order came to be passed, the University as well as the State Government have filed the affidavit-in-reply and the contention of the University is that the admissions were not granted by the Centralized Admission Committee and, therefore, the admission cannot be said as legal and valid. On behalf of the Office of Commissioner of Higher Education, the proposed circular is placed on record giving the action to be taken including the criminal action in the event it is found that the admissions are granted without authority or other than by way of SCA/2908/2008 6/16 JUDGMENT Centralized Admission Committee. Such draft copy of the circular is produced at Annexure R-I with the affidavit-in-reply filed by Savjibhai G. Desai, Joint Director in the Office of the Commissioner of Higher Education. 6. It appears that thereafter, the University took a decision vide letter dated 8th March, 2008 for cancellation of the affiliation granted to the College of the petitioner and, therefore, Civil Application No.3655 of 2008 in Special Civil Application No.2908 of 2008 is preferred by the Management for quashing and setting aside the decision of the University for cancellation of the affiliation to the college of the petitioner. 7. Further, as the written examinations are to start from 10th April, 2008, 10 students out of those 13 students have preferred separate petition being Special Civil Application No.5939 of 2008 for the relief inter alia to direct the respondent no.4 – University to allow the petitioners therein to appear in the examination of B.Ed. Course to be held from 10th April, 2008 by the North Gujarat University. 8. Heard Mr. Barot as well as Mr. Kinariwala with Mr. Chaudhary appearing for the respective petitioners, Ms. Patel, learned AGP for the State authorities and Mr. Shelat with Mr. Dave for the University. SCA/2908/2008 7/16 JUDGMENT 9. The matter, as such, could be segregated into two parts, one for the appropriate directions for consideration of the case by the University and another for the action to be taken by the University or the State Government as the case may be, once having brought to its notice that the admissions have been granted making the students to believe that the Management has the authority and thereafter, such authority is not accepted by the University or other competent forum. 10. Concerning to the first part, if the matter is examined, it appears that it is an admitted position that such 13 students were not granted admission by the Centralized Admission Committee on Government quota and, therefore, the admissions granted by the Management in normal circumstances could be said as without authority. But the peculiar circumstance in the present case is that all seats in the Government quota are neither exhausted nor the Government allotted students equivalent to the seats available in the Government quota. 11. This court had an occasion to deal with more or less similar situation in case of RAWAL SHAYAR SURAJMAL & ORS. vs. GUJARAT UNIVERSITY & ORS. Reported in 2003 (4) G.L.R. Page 3144 so far as it related to the vacant seats in self-financed colleges for B.C.A. course after completion of Centralized Admission. This court, in the said decision, observed at paragraphs 7, 8, 9 and 10 as under:- SCA/2908/2008 8/16 JUDGMENT “7. Having considered the above and more particularly in view of the legal position as prevailing, it is true that the Court, while exercising power under Article 226 of the Constitution of India cannot substitute its wisdom as if it is exercising the appellate power. If there is a breach of any statutory provisions, then only the power can be exercised. As per the settled legal position, more particularly in the field of education, the jurisdiction of this Court under Article 226 is limited, and therefore, no mandamus can be issued for adopting a particular procedure by the University by substituting the wisdom, which University had applied for the purpose of exercising the power. At the same time, it cannot be said that the Court has no jurisdiction at all, in a matter where the case falls in the realm of education. It is well-settled that the right to have education is treated as a fundamental right and, therefore, I am of the view that the matter is required to be examined from that angle. SCA/2908/2008 9/16 JUDGMENT 8. The procedure adopted for the purpose of giving admission on the basis of inter se merit by way of centralised admission process is a rational procedure and there cannot be a second opinion to it, but at the same time, I am of view that there is no rationale in allowing the seats to be lapsed for the reasons which may be beyond the control of the persons who are concerned. In my view, if the seats are allowed to lapse, it will not only result into wastage of public money, but it also results into foreclosing the opportunity to the aspirant candidates as well. It may also result into adversely affecting education at large inasmuch as those colleges which are self-financed colleges may not be in a position to sustain in the field of education, if the requisite number of students are either not made available or they are not allowed to be admitted. This does not mean that the college authorities can say with a view to maintain themselves they will not abide by the rules and regulations of the University, at the same time, in a matter like this, I SCA/2908/2008 10/16 JUDGMENT find that the University should take a pragmatic view of the matter. University which is the body of experts is expected to exercise their power in such a manner that it encourages the students in the field of education and at the same time it should also allow the educational institutions to sustain because if the institutions would be there, then only the students will get opportunity to get education. This Court finds no justification in allowing the seats to be lapsed, and, therefore, I am of the view that there should be a joint effort on the part of the University as well as the college authorities to see that the seats which have remained vacant, and if the students are available, proper modality should be found in such a manner that the students are given opportunity and at the same time the college authorities are in a position to maintain themselves and the University rules and regulations are also properly followed simultaneously. I am of the view that such exercise of power is expected on the part of the University. It happens sometimes that a student SCA/2908/2008 11/16 JUDGMENT for the unavoidable reasons might not have applied or that a student may be aspirant to get admission in a better branch in comparison to B.C.A., and, therefore, either he/she might not have applied or he might have applied to a different branch and by way of second thought he may be aspirant to get admission in B.C.A. If any meritorious candidate is left out in comparison to the student who is admitted or who is aspirant to get admission, then possibly such practice cannot be encouraged. When the question arises for the grant of admission, it has to be on the basis of inter se merits, and therefore, if the meritorious candidate is available, such meritorious student should be offered admission in comparison to less meritorious students. 9. So far as the date of enrolment and the completion of the term are concerned, in my view, it is true that it is for the University to decide, but at the same time, such are the method and manner of regulating the education. There may not be any hard and rigid SCA/2908/2008 12/16 JUDGMENT imposition, more particularly when the mode or rather the steps can be taken for the purpose of ensuring that the education of the students would not suffer. It has also come on record that last year the University did consider the said aspect and modified accordingly and, therefore, there cannot be any absolute proposition that once regulations or rules have been framed for the purpose of fixing the outer limit for giving admission or for giving enrolment, it cannot be relaxed under any situation. If the University takes the positive view to advance the cause of education, the University can put the college authorities to undertake extra classes with a view to see that the students may get proper education and at the same time more opportunities are provided to the students and the seats are not allowed to be lapsed. I am inclined to make observations in view of the special circumstances that though number of seats are available for admission but on account of the expiry of the outer date, the students are unable to undergo or undertake the admission to B.C.A. course. SCA/2908/2008 13/16 JUDGMENT 10. In view of the above observations, I am of the view that in a matter like this, it would be better to leave the matter to the discretion and wisdom of the University for enabling it to take a pragmatic view of the matter keeping in mind that the career of the students are not put in jeopardy or more students get opportunities to study B.C.A. and the colleges imparting education may be able to financially sustain.” 11.1 Ultimately, in the said matter, following directions were given at para 11:- “11. In view of the above, I am of the view that the following directions would meet with the ends of justice: 11.1 The respondent No.1 University shall consider the matter in view of the aforesaid observations of this Court and at the time when the University considers the matter, it will be open to the petitioners as well respondent No.2 to make representations in this regard. 11.2 While considering the matter, SCA/2908/2008 14/16 JUDGMENT the University shall keep all the relevant aspects in consideration, including the observations made by this Court and shall also take a pragmatic view of the matter. The University shall be at the liberty to decide the manner, method and modalities of filling up of the left-out seats of B.C.A. 11.3 The University shall take such decision within a period of two weeks from today.” 12. Considering more or less same fact situation, the direction deserves to be given in the present case, as stated hereinafter. The aforesaid shall conclude first part of the petition. 13. Concerning to the second part, it appears that the matter could be considered for giving directions to the authority for initiation of the action against the Management, had it been a case where the court did not direct the University to take pragmatic view in view of the peculiar circumstances of the seats remaining vacant and were allowed to be lapsed. Therefore, I find that in view of the peculiar facts and circumstances of the case, no direction deserves to be issued at this stage leaving the question open in the appropriate case. SCA/2908/2008 15/16 JUDGMENT 14. In view of the aforesaid, I find that the following directions shall meet with ends of justice:- (1)The respondent – University shall consider the matter in respect of such 13 students in view of the aforesaid observations of this court. (2)While considering the matter, the University shall keep all the relevant aspects in consideration including the observations made by this court and shall take pragmatic view of the matter. The University shall be at liberty to decide the manner, method and the modalities of filling up of the left-out seats in B.Ed. (3)The University shall take such decision within a period of four weeks from the receipt of the order. In the event, the University decides to regularise the admission, the students shall be entitled to appear in the next examination and if the study is already undertaken and the fees are already paid and there is requisite presence, they shall not be required to study again by payment of the fees except the examination fees for such exams. 15. Special Civil Application No.2908 of 2008 and Special Civil Application No.5939 of 2008 shall stand partly allowed to the aforesaid extent. Rule partly made absolute accordingly. SCA/2908/2008 16/16 JUDGMENT Civil Application No.3655 of 2008 In view of the order passed by this court in the main petition, the interim application, as such, would not survive. However, it appears that the same arose on account of the interim order in the main petition which has merged with the final order and it further appears that the same is pertaining to a separate cause of action for cancellation of the affiliation. Therefore, the institution, if so advised, may resort to separate proceedings by way of an independent matter. If such proceedings are initiated, rights and contentions of both the sides shall remain open. Civil Application is disposed of accordingly. Direct Service permitted. ( Jayant Patel, J. ) hki