IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION NO. 2040 OF 2009 (MS) Nalanda College of Education, Dehradun ….…Petitioner. Versus State of Uttarakhand and another. …Respondents. Mr. Rakesh Thapliyal, Advocate for the petitioner. Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand/respondent no. 1. Mr. J.P. Joshi, Advocate for respondent no. 2. Hon’ble Sudhanshu Dhulia, J. Heard Mr. Rakesh Thapliyal, Advocate for the petitioner, Mr. K.P. Upadhyay, Addl. Chief Standing Counsel for State of Uttarakhand/respondent no. 1 and Mr. J.P. Joshi, Advocate for respondent no. 2. The petitioner Institute has filed this writ petition before this Court praying for a writ, order or direction in the nature of Certiorari to quash the order dated 18th November, 2009 (Annexure -1 to the writ petition). By the said impugned order, the State Government had declined to change the reserved seats to general seats in the petitioner Institute, on the plea that these powers were with the Government under an Act known as Uttaranchal Unaided Private Professional Educational Institutions (Regulation of admission and fixation of fee) Act, 2006 and since this Act applies, inter alia, only to State funded Universities, no interference at present can be made by the State Authorities inasmuch the University to which the petitioner Institute is affiliated, after 15th January, 2009 is a Central University and therefore, it is outside the purview of the State Government to presently interfere, particularly as is being sought by the petitioner. The brief facts of the case are that the petitioner Institute is a recognized Institute under Section 14 of the National Council for Teacher Education Act, 1993 (from 2 hereinafter referred to as the Act, 1993) and consequently under Clause (6) of the aforesaid section, had applied for affiliation with the H.N.B. Garhwal University for the session 2008-09 in the year, 2007. At the relevant time, H.N.B. Garhwal University was not a Central University but a State University, which was governed under the provisions of the Uttar Pradesh State Universities Act, 1973 (From hereinafter referred to as the Act, 1973). It is also an admitted case that H.N.B. Garhwal University has now become a Central University under the Central Universities Act, 2009 (From hereinafter referred to as the Act, 2009) w.e.f. 15th January, 2009. The Institute was allotted 100 seats for B.Ed. course by the H.N.B. Garhwal, University for the session 2008- 09. Out of which, fifty seats were to be filled up by Government and remaining fifty seats were under the Management Quota. For these seats reservation was also made under the provisions of law presently applicable in the State of Uttarakhand for Scheduled Caste, Scheduled Tribes as well as also for Other Backward Class. The contention of the petitioner is that these seats which were reserved seats remained unfilled. In such a given contingency, Rule 9 of the Uttaranchal Unaided Private Professional Educational Institutions (Regulation of Admission and Fixation of Fee) Act, 2006 (From hereinafter referred to as Act No. 14 of 2006) where in such a case when the reserved seats are not filled by the non-availability of such candidates, then the requisition will be made to the State Government by the Institute so that these seats can be filled up by the Government. Section 9 of the Act No. 14 of 2006 reads as under: 3 “9. Unaided private professional educational institution shall reserve seats for candidates belonging to the Scheduled Castes, Scheduled Tribes and Other Backward Classes from out of the total sanctioned intake seats in such a manner as notified by the State Government. Provided that where the seats reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes in an unaided private professional educational institution are left unfilled due to non-availability of the candidates, the same shall be filled by the candidates belonging to the same category out of the merit list of the Common Entrance Test conducted by the State Government. And where the students of reserved categories leave after they select the seats, the same shall be filled by the candidates belonging to the same category out of the merit list of the common Entrance Test conducted by the respective association. Provided further that if seats remain unfilled even thereafter, such unfilled seats shall be filled from the student belonging to non- reserved categories as described in section 8 of this Act after taking the approval of the State Government.” Petitioner Institute is admittedly an unaided private professional educational institute and therefore, under the provisions of law, it was liable to reserve certain seats for reserved category candidates. The case of the petitioner is that certain seats which were reserved could not be filled by the candidates belonging to this category and therefore, by application of the first and second 4 proviso to Section 9, efforts were made to fill these reserved seats from the reserved category candidates and when this also did not materialise then the petitioner Institute resorted to fill these seats from among candidates belonging to general category. However, before it is done prior approval of the State Government is necessary. All the same, when the petitioner sought this approval from the State Government, an order dated 18th November, 2009 was passed (which is presently under challenge in the writ petition), informing the petitioner that since Section 2 of the Act No. 14 of 2006 clearly states that the Act is only applicable to the State Funded Universities and since the University (to which the petitioner Institute is affiliated) has now become Central University, it is outside the purview of the Act No. 14 of 2006, under which admissions have been given, but it now falls under Section 7 of the Central Universities Act, 2009. Section 7 of the Central Universities Act, which has been referred above in the impugned order, reads as follows: “7. University open to all castes, creed, race or class.—The University shall be pen to persons of either sex and of whatever caste, creed, race or class, and it shall not be lawful for the University to adopt or impose on any person, any test whatsoever of religious belief or profession in order to entitle him to be appointed as a teacher of the University or to hold any other office therein or to be admitted as a student in the University or to graduate thereat or to enjoy or exercise any privilege thereof: 5 Provided that nothing in this section shall be deemed to prevent the University from making, special provisions for the employment or admission of women, persons with disabilities or of persons belonging to the weaker sections of the society and, in particular, of the Scheduled Castes, the Scheduled Tribes and the other socially and educationally backward classes of citizens: Provided further that no such special provision shall be made on the ground of domicile.” Aggrieved the petitioner has filed present writ petition. The contention of the petitioner is that the entire admissions to the college pertain to the year, 2008-09. Moreover, 50 percents of the seats have been allocated under the State Quota on the recommendation of the State Government, where this exercise has been done by the State Authorities under the Act No. 14 of 2006 itself. Therefore, the stand taken by the State Government is a contradiction in terms, inasmuch as it is the State Government by whose orders a large number of admissions have been granted, even after the University became Central University i.e. after 15th January, 2009. Moreover, it has also been pleaded that it is a special contingency, which was not visualised by the legislature and therefore, in the interest of justice as well, the State Government cannot withdraw or escape from its liability for passing orders under Section 9 of the Act No. 14 of 2006. The learned counsel for the University has also relied upon Section 28 of the Central Universities Act, 6 particularly proviso to said Section. Section 28 of the Central Universities Act reads as under: “28. Power to make ordinances. (1) Subject to the provisions of this Ac and the Statutes, the Ordinances may provide for all or any of the following matters, namely:- (a) the admissions of student to the University and their enrolment as such; (b) the courses of study to be laid down for all degrees, diplomas and certificates of the University; (c) the medium of instruction and examination; (d) the award of degrees, diplomas, certificates and other academic distinctions, the qualifications for the same and the means to be taken relating to the granting and obtaining of the same; (e) the fees to be charged for courses of study in the University and for admission to examinations, degrees and diplomas of the University; (f) the conditions for award of fellowships, scholarships, studentships, medals and prizes; (g) the conduct of examinations, including the term of office and manner of appointment and the duties of examining bodies, examiners and moderators; (h) the conditions of residence of the students of the University; (i) the special arrangements, if any, which may be made for the residence and teaching of 7 women students and the prescribing of special courses of studies for them; (j) the establishment of Centres of Studies, Boards of Studies, Specialised Laboratories and other Committees; (k) the manner of co-operation and collaboration with other Universities, institutions and other agencies including learned bodies or associations; (l) the creation, composition and functions of any other body which is considered necessary for improving the academic life of the University; (m) the institution of fellowship, scholarships, studentships, medals and prizes; (n) he setting up of a machinery for redressal of grievances of employees and students; and (o) all other matters which by this Act, or, the Statutes, are to be, or, may be, provided for by the Ordinances. (2) The first Ordinances shall be made by the Vice Chancellor with the previous approval of the Executive Council and the Ordinances so made may also be amended, repealed or added to at any time by the Executive Council in the manner prescribed by the Statutes: Provided that in the case of Guru Ghasidas Vishwavidyalaya and Doctor Harising Gour Vishwavidyalaya, and Hemvati Nandan Bahuguna Garhwal University, till such time as the first Ordinances are not so made, in respect of the matters that are to be provided for by the Ordinances under this Act and the Statutes, the 8 relevant provision of the Statutes and the Ordinances made immediately before the commencement of this Act under the provisions of the Madhya Pradesh Vishwavidyalaya Adhiniyam, 1973 (Madhya Pradesh Act 22 of 1973), and the Uttar Pradesh State Universities Act, 1973 (President’s Act 10 of 1973), respectively, shall be applicable in so far as they are not inconsistent with the provisions of this Act and the Statutes.” The proviso to Section 28 takes care only of a contingency where during a transitory period till provisions are made in an ordinance, the old provision of the Universities Act and the ordinance and the statutes framed therein shall be applicable. In the present case, undoubtedly the view taken by the State Government may be technically correct inasmuch as the powers given to the University is by the Statute, are only applicable to a State University, but nevertheless this hurdle, if any, was also there when the admissions were being given by the State Government under the same Act. Since 90 percent of the admissions have already been given by the University under the provisions of Act No. 14 of 2006, it is not proper and definitely not in the interest of justice that the recourse is being taken to Section 2 of the Act No. 14 of 2006 and the Institute is denied to fill the vacant seats, which can now be filled by way of non- reserved candidates. In case this approval is not granted, then the net result would be that certain seats will remain vacant, which would not be in the interest of students or the Institute. Therefore, this Court is of the opinion that in spite of the fact that H.N.B. Garhwal 9 University has become a Central University, since the admission pertains to a session when H.N.B. Garhwal University was not a Central University but a State University, and within the purview of Act No. 14 of 2006 and also on the principles, which exist in proviso to Section 28 of the Act that the State Government can take a decision and grant approval to the Institute for filling up these vacant seats from non-reserved candidates. The State Government while granting or refusing this approval shall not be hindered by the fact that the applicability of the Act does not exist any more. All the same, if there are any other hindrances or factors, which presently exist by which such an approval cannot be granted, orders may be passed to that effect. Since it is a education matter relating to a professional course, it is appropriate that the State Government shall take a decision on this matter as expeditiously as possible in any case within two weeks from the date a certified copy of the order is given. With the above directions, writ petition is disposed of. No order as to costs. (Sudhanshu Dhulia, J.) 18.12.2009 Rathour