SCA/10693/2006 1/90 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD . SPECIAL CIVIL APPLICATION No 10693 of 2006 : For Approval and Signature . . . HONOURABLE MR JUSTICE M R SHAH =========================================== === 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 ? =========================================== ============== ASSOCIATION OF MANAGEMENT OF GUJARAT UNAIDED - ( ) ENGINEERING Petitioner s Versus JUSTICE RJ SHAH ADMISSION COMMITTEE FOR & - ( ) PROFESSIONAL 1 Respondent s =========================================== ============== : Appearance ( ) : , MR MR DC DAVE for Petitioner s 1 ( ) : , MR AD OZA WITH MR DIPAK R DAVE for Respondent s 1 MR KAMAL B TRIVEDI Advocate General WITH . ( ) : , MS SANGEETA VISHAN AGP for Respondent s 2 =========================================== ============== SCA/10693/2006 2/90 JUDGMENT : CORAM . . . HONOURABLE MR JUSTICE M R SHAH : / / Date 19 06 2006 CAV JUDGMENT . 1 By way of this petition under Article 226 of the , – Constitution of India the petitioner Association of Management of Gujarat Unaided Engineering Colleges ( “ . . .) and Institutions hereinafter referred to as the S F I has challenged the legality and validity of the . – decision of the respondent No 1 Admission Committee directing the members of the petitioner Association Self Finance Engineering Colleges in the State to grant admission to the 1st year Degree Engineering Courses either by taking Common Entrance Test and the merit list prepared on that basis or to grant admission to the 1st year Degree Engineering Courses on the basis of the merit list prepared considering the marks obtained in Higher ( . . . .) ( %) Secondary Examination H S S E 60 and Common Entrance Test conducted by the State Government which is known as “ ” GUJCET ( %) 40 and refusing to grant permission to the Self Financed Institutions in SCA/10693/2006 3/90 JUDGMENT the State to grant admission on the basis of the marks obtained in Higher Secondary Education which . is also qualifying examination . 2 The short but interesting question which has been raised in the present petition is that whether the Self Financed Institutions can grant admission in the 1st Year of Degree Engineering solely on the basis of marks obtained in standard 12th ( . . . Examination H S C ) Examination and whether the Self Financed ( . . . Institutions can treat qualifying examination H S C ) / Examination itself as base and or Common Entrance Test for the purpose of admission in the 1st Year of / Degree Engineering courses and or the Admission Committee appointed by the State Government can insist the Self Financed Institutions to take Common Entrance Test and grant admission in the 1st Year Course on the basis of marks obtained in Common Entrance Test and in default to grant admission on . . . the basis of marks obtained in H S C Examination and . GUJCET . 3 . The impugned decision of the respondent No 1 Admission Committee commanded that instead of granting admission in 1st year of Degree Engineering SCA/10693/2006 4/90 JUDGMENT Courses on the basis of 12th Standard Examination in Science Stream in Unaided Colleges in the State , which are members of the petitioner Association should grant admission to the said courses by taking an entrance examination through the petitioner , Association and if they do not intend to do so then , in that case they must admit the students to the said students by following combination of said 12th Standard Examination in Science Stream and examination conducted by the State Government which is known as GUJSET undertaken by the State - - for admission to the Government and Grant in Aid . Colleges . 4 ( - The petitioner is an Association of Unaided Self ) . Financed Engineering Colleges in the State There are . about 22 such Colleges in the State Out of said 22 , Unaided Engineering Colleges in all 19 colleges are . with the petitioner Association Meaning thereby for , . 19 colleges the present petition has been filed The . respondent No 1 is Admission Committee for ( ) professional courses Higher and Technical Education appointed by the State Government pursuant to the order passed by the Hon'ble supreme Court known as ( .) . . Justice Rtd R J Shah Committee for Professional SCA/10693/2006 5/90 JUDGMENT ( ). Courses Higher and Technical Education . 5 The case of the petitioner narrated in the petition is that consequent to the decision of the Hon'ble . . . Supreme Court in the case of P A Inamdar Vs State , ( ) , of Maharashtra reported in 2005 6 SCC 537 the petitioner Association addressed a communication . / / dtd 27 9 2005 to the Member Secretary of the . respondent No 1 Admission Committee conveying that - , for the academic year 2006 2007 all its members unaided engineering colleges in the State would be granting admission to the 1st year degree engineering courses on the basis of 12th standard examination in science stream undertaken by the State level Higher Secondary Education Board by taking into consideration the marks obtained by the concerned , students in the theory subjects of Physics Chemistry . , and Mathematics In the said communication it was also pointed out that so far as the students passing 12th standard examination from the Central Board are , concerned a separate quota would be carved out for them on proportional basis bearing in mind the number of students passing from the Central Board ( ). . / / , CBSC By communication dtd 27 10 2005 the . Member Secretary of the respondent No 1 Admission SCA/10693/2006 6/90 JUDGMENT Committee was again communicated the decision of the petitioner Association and explained in detail the rational for taking 12th standard examination as basis . for the purpose of admission Again by . / / , communication dtd 21 2 2006 the Member Secretary . of the respondent No 1 Admission Committee was appraised in brief about the modalities of the admission process proposed to undertaken by the petitioner Association through a single window . system It is the case of the petitioner that the aforesaid was followed by the meeting petitioner Association had with the officials of th State including . the Member Secretary of respondent No 1 Admission . Committee It is also the case of the petitioner Association that during the course of the aforesaid , meeting the petitioner Association was given to . understand that the respondent No 1 Admission committee has no objection to the aforesaid methodology for admission evolved by the petitioner . Association It is also the case of the petitioner Association that the petitioner Association prepared a prospectus containing Rules for admission process and forwarded the same to the Director of Technical Education and the Member Secretary of the SCA/10693/2006 7/90 JUDGMENT . respondent No 1 Admission Committee vide . / / . , communication dtd 29 4 2006 That thereafter the Admission Committee through its Secretary served the impugned communication upon the petitioner . / / Association vide communication dtd 4 5 2006 to which the petitioner association submitted representation in / / . detail on 5 5 2006 As there was no response from . , the respondent No 1 Admission Committee looking to , the urgency the petitioner has preferred the present . petition under Article 226 of the Constitution of India The present petition was heard at length finally during Summer Vacation looking to the urgency more / / particularly on 29 5 2006 and during the course of , hearing it was submitted on behalf of the admission committee that it has not taken any final decision and it would like to consider the issue and the representation submitted by the petitioner association and hence this Court passed the following order on / / ; 29 5 2006 " The matter is heard at length and the arguments and submissions on behalf of the petitioners are already . . . , concluded Shri K B Trivedi learned Advocate General as well . . , . . . as Shri A D Oza learned advocate for Mr Justice R J Shah ( Admission Committee for Professional Course Higher and ) [ Technical Education hereinafter referred to as the “ ” ] Committee for short have jointly submitted that as SCA/10693/2006 8/90 JUDGMENT , such the Committee has not taken any final decision which is . . , disputed by Shri D C Dave learned advocate appearing on . behalf of the petitioner Relying upon the communication at . & page 44 45 of the petition which is impugned in the , present Special Civil Application it is submitted by Shri Dave learned advocate appearing on behalf of the petitioner that , , in fact the Committee had met and has taken a decision , . . , however Shri K B Trivedi learned Advocate General and Shri . . , . A D Oza learned advocate for the respondent No 1 have , . submitted that as such no decision has been taken It is also . . submitted by them that after communication dated 4 5 2006 . . there is representation by the petitioner on 5 5 2006 and , without giving sufficient time the present Special Civil . . Application is filed on 9 5 2006 and because of the , pendency of the present Special Civil Application no decision . / has been taken by the respondent No 1 and or representation . . dated 5 5 2006 submitted by the petitioner has not been . considered It is also further submitted that the respondent . – No 1 Committee is ready and willing to consider the . . representation of the petitioner dated 5 5 2006 objectively , and an appropriate decision will be taken and therefore it is requested to reserve the liberty in favour of the respondent . – . No 1 Committee to take an appropriate decision , . – Considering the above the respondent No 1 Committee is directed to consider the representation submitted by the . . petitioner dated 5 5 2006 objectively and take an appropriate decision on the said representation on or before 1st , June 2006 and place the said decision on record of this petition on 2nd , . June 2006 It will be open for the petitioner to request for personal hearing which may also be considered by the . – . , respondent No 1 Committee At this stage it is submitted . – on behalf of the respondent No 1 Committee that let the representative of the petitioner shall remain present for personal hearing on 30th , . . . May 2006 at 5 00 P M So that the . Committee may consider their views also , In above view of the matter the matter is adjourned to 2nd , . June 2006 ." Direct Service is permitted today , That thereafter the representative of the petitioner association and their advocate came to be heard by , the Committee and thereafter the admission committee issued the impugned communication . / / . . dtd 31 5 2006 reiterating what was stated earlier i e directing the members of the petitioner association to take Common Entrance Test and grant admission in the 1st Year Engineering Colleges on the basis of SCA/10693/2006 9/90 JUDGMENT / the merits marks obtained in such Common Entrance Test and the said Common Entrance Test to be conducted by the petitioner association or to grant admission by following the combination of 12th ( %) standard examination in science stream 60 ( %) . . and GUJSET 40 i e on the basis of the admission to be granted by the State for admission to . Government and Aided Colleges Being aggrieved by , and dissatisfied with the same the petitioner Association has preferred the present petition under . Article 226 of the Constitution of India . 6 The following issues have been arisen for consideration of this Court for deciding the ; controversy involved in the present petition ( )i / Is it permissible for the petitioner Association Self Financed Engineering Colleges in the State to admit the students in the 1st Year Degree Courses on the basis of he marks obtained in 12th Standard . . Examination i e the examination conducted by the State Level Higher Secondary Education Board or is it mandatory for the Self Finance Institutions or Association of Self Financed Institutions to undertake SCA/10693/2006 10/90 JUDGMENT ( an entrance examination to undertake separate ) ( ) entrance examination Common Entrance Test for the purpose of admission over and above 12th . , standard examination In other words is it permissible / for the petitioner Association and or Self Financed Institutions to treat the examination conducted by the Higher Secondary Education Board which is State , level as Common Entrance Test and grant admission on that basis without conducting additional Common Entrance Test? ( ) ii Is it within the jurisdiction of the admission committee to issue direction which is having virtually effect of thrusting process admission upon Unaided . . Engineering Colleges i e Self financed Institutions? . 7 . . . , Mr D C Dave learned advocate appearing on behalf of the petitioner has vehemently submitted that the decision of the admission committee is based upon the decision of the Hon'ble Supreme court in the . . ( ). case of P A Inamdar supra It is submitted that the admission committee has proceeded on the premise as if an entrance test over and above 12th standard - - examination in science stream is sine qua non and SCA/10693/2006 11/90 JUDGMENT therefore it is within the competence of the admission committee to insist that the member of the / petitioner association petitioner association should , either take an entrance test or in the alternate should follow the concerned entrance test conducted by the State over and above 12th standard . . examination in science stream Mr Dave has further submitted that the Hon'ble Supreme Court in the . . ( ) case of P A Inamdar supra has never considered the aspect as to when the Self Financed Institutions wants to give admission on the basis of marks . . . ( obtained in H S C Examination qualifying ). examination Still the association has to conduct the Common Entrance Test over and above 12th standard . examination While relying upon the judgement of the Hon'ble Supreme court in the case of Islamic . , Academy of Education Vs State of Karnataka ( ) , reported in 2003 6 SCC 697 it is submitted that , the direction issued by the Admission Committee as . stated hereinabove is beyond its jurisdiction It is also further submitted by him that pursuant to the order . / / , passed by this Court dtd 29 5 2006 detailed . submissions were made by the petitioner association , . / / However in the decision dtd 31 5 2006 the SCA/10693/2006 12/90 JUDGMENT submissions made for and on behalf of the petitioner - association has been mis construed by the Admission , , Committee inasmuch as at no point of time it was given to understand to the committee that the petitioner association intends to grant admission on the basis of 12th standard examination in science stream only for the current academic year and , . therefore it should be permitted to do so It is , submitted that as a matter of fact during the course of hearing before the Committee for and on behalf of the association it was submitted that even if the . respondent No 1 admission committee is of a different view in the peculiar facts of the present case keeping , all the controversy open to be resolved in future at , least for the current academic year the admission committee should permit the grant of admission by the Self Financed Institutions in the discipline of Engineering on the basis of 12th Standard . Examination in science stream It is submitted that the aforesaid submissions was made for the , purpose of working out amicable solution and , therefore the same should have been construed . accordingly by the admission committee . 8 . , Mr Dave learned advocate appearing on behalf of the SCA/10693/2006 13/90 JUDGMENT petitioner has referred to and rely upon the ; following decisions of the Hon'ble Supreme Court ( )i . TMA Pai Foundation vs State of . Karnataka ( ) . reported in 2002 8 SCC 481 ( ) ii Islamic Academy of Education . Vs State of Karnataka ( ) reported in 2003 6 SCC 697 ( ) . iii PA Inamdar vs State of , Maharashtra ( ) . reported in 2005 6 SCC 537 ( ) iv AIR 1972 SC 1375 . . ( ) Mannan Lal Vs Ms Chhotka Bibi decd , by her legal representative and ors ( ) v AIR 2004 SC 1861 & . . State of Tamilnadu Anr Vs . . ( ) & . S V Bratheep minor Ors ( ) vi ( ) 1996 5 SCC 732 Shri Chander Chinar Bada Akhara Udasin & . . & & . Society Ors Vs Stateof J K Ors ( ) vii ( ) 1998 3 SCC 183 . Ravindra Kumar Rai Vs . State of Maharashtra and ors ( ) viii ( ) 1999 2 SCC 48 . . State of Maharashtra and ors Vs . Ravindra Kumar Rai . 9 . , Mr Dave learned advocate appearing on behalf of the petitioner has submitted that decision in PA Inamdar ( ) supra is not aimed at overruling or even diluting in any manner what emanates from the decision in ( ). TMA Pai supra He has relied upon the following ( ); paragraph of the decisoin in PA Inamdar supra SCA/10693/2006 14/90 JUDGMENT " , At the very outset we may state that our task is not to pronounce our own independent opinion on the several . issues which arose for consideration in Pai Foundation Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in , ; Pai Foundation we cannot that being a pronouncement by - , . 11 Judge Bench we are bound by it We cannot express a , , dissent or disagreement however we may be inclined to . do so on any of the issues The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic , Academy runs counter to Pai Foundation and if so to . what extent If we find anything said or held in Islamic , Academy in conflict with Pai Foundation we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of , precedents overrule to that extent the opinion of the ."” Constitution Bench in Islamic Academy Relying upon the aforesaid para of the PA Inamdar ( ), supra it is submitted that a reference was made to seven judges bench of the Supreme Court in PA Inamdar to ascertain as to whether the directions , contained in Islamic Academy judgement were in . conflict with decision in TMA Pai It is submitted that Islamic Academy provided for three fold directions ( ) namely i constitution of committees for admissions ( ) and fees ii bifurcation of seats into state and , ( ) management quota and iii entrance test for admissions not college wise but through Association . of colleges He has also further submitted that reference was made to seven judges bench in PA , Inamdar as the directions in Islamic Academy were . . . questioned in two matters i e in PA Inamdar Vs & ( ) State of Maharashtra Ors 2004 8 SCC 139 and in SCA/10693/2006 15/90 JUDGMENT . Pushpagiri Medical Society Vs State of Kerala and . ( ) . Ors 2004 8 SCC 135 He has relied upon para 26 of ( ) the decision in PA Inamdar supra which reads as ; under " These matters have been directed to be placed for hearing before a Bench of Seven Judges under Orders of the Chief , Justice of India pursuant to order dated July 15 2004 in . . . PA Inamdar and Ors Vs State of Maharashtra and Ors ( ) . , 2004 8 SCC 139 and order dtd July 29 2004 in Pushpagiri . .,( ) Medical Society Vs State of Kerala and Ors 2004 8 SCC . 135 The aggrieved persons before us are again classifiable , , - in one class that is unaided minority and non minority . institutions imparting professional education The issues ; arising for decision before us are only three ( ) “ ” / i the fixation of quota of admissions students in ; respect of unaided professional institutions ( ) ii the holding of examinations for admissions to , , such colleges that is who will hold the entrance ; tests and ( ) ."” iii the fee structure . 10 . It is further submitted by Mr Dave that so far as , the present petition is concerned the question has . . arisen with regard to second issue i e holding examinations for admissions to such Self Financed , . . . Institutions i e who will hold the entrance tests It is further submitted that the said question arose in PA Inamdar case on account of the fact that some of the colleges which did not join the Association of , colleges claimed right to hold a separate entrance , . test as available to them under TMA Pai According . , “ ” to Mr Dave who should hold the common test ? was SCA/10693/2006 16/90 JUDGMENT “ the point of reference in PA Inamdar and not When ” should one hold the common entrance ? It is submitted that this distinction needs to be noticed . while reading decision in PA Inamdar It is further , submitted that in light of the aforesaid an appropriate issue came to be framed by the Hon'ble . Supreme Court vide paragraph No 27 of the decision , in PA Inamdar on the aspect of right of Unaided colleges to hold an entrance test and thereupon the same came to be answered vide paragraphs 136 and . 137 of the decision in PA Inamdar It is submitted by . , Mr Dave that while answering the same the Hon'ble Supreme Court upheld the dictum laid down in Islamic Academy directing that there cannot be - , entrance test college wise as the same will cause , inconvenience to the students and hence if unaided , colleges decide to have entrance test for admissions . , , it has to be through their association It is therefore , submitted that in substance the decision in PA Inamdar has simply upheld Islamic Academy on the aspect of entrance test on the premise that the directions contained in Islamic Academy on the issue . of entrance test are not in conflict with TMA Pai As , , , such on