IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 2704/2009 and CWP No. 2766/2009 Reserved on: 1.9.2009 Decided on:2.9. 2009 ________________________________________________ 1. CWP No.2704/2009 Himachal Pradesh Institute of Management Studies …Petitioner. Versus State of Himachal Pradesh and another. … Respondents. 2. CWP No.2766/2009 Himalayan Institute of Computer Sciences. …Petitioner. Versus State of Himachal Pradesh and another. …Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Acting Chief Justice. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 For the petitioners : Ms. Shilpa Sood, Advocate. (in both the petitions). For the Respondents: Mr. R.K. Bawa, Advocate General with Mr. P.K. Sharma, Additional Advocate General, Mr. J.K. Verma and Mr. Anil Jaswal, Deputy Advocate Generals for respondent No.1. 1 Whether reporters of the local papers may be allowed to see the judgment? 2 Mr. B.C. Negi, Advocate for respondent No.2. ________________________________________________________ Per Rajiv Sharma, J. Since common questions of law and facts are involved in both the petitions, the same were taken up together for hearing and are being disposed of by a common judgment. The petitioners have assailed the following conditions imposed in the prospectus issued by respondent No.2-University for computer science department for the academic session 2009-2010: “The minimum qualifying marks in the entrance test for subsidized and non-subsidized seats will be 35% marks.” The case set up by the petitioners is that the imposition of condition whereby minimum 35% qualifying marks have been prescribed is in contravention of the Ordinance of the Himachal Pradesh University. The further case of the petitioners is that it is only for the Department of MCA that 35% minimum qualifying marks have been prescribed in the entrance test. It is also the case of the petitioners that the State of Himachal Pradesh has reduced the minimum qualifying marks from 120 to 90 for filling up the seats in Polytechnics in the State of Himachal Pradesh. The case of the respondent-University precisely is that 35% minimum qualifying marks have been prescribed to improve the standard of MCA. Ms. Shilpa Sood, Advocate has vehemently argued that the action of the respondents of prescribing minimum 35% qualifying marks in the entrance test for MCA course is in violation of the Ordinance issued by the Himachal Pradesh University. She further 3 contended that in the adjoining Universities there are no minimum qualifying marks prescribed for the candidates in the entrance test for the MCA course. She lastly contended that the University at its own level has diluted the norms for admission to LL.B course recently. Mr. B.C. Negi, Advocate has supported the decision of the University whereby minimum 35% qualifying marks have been prescribed in the entrance test. We have heard the learned counsel for the parties and have perused the pleadings carefully. The petitioners have placed on record the copy of the University Ordinance vide Annexure P-8. It is true that in Ordinance No.9.81, no minimum qualifying marks have been prescribed in the entrance test, however, the same had been incorporated in the prospectus. The prospectus has the status of law. In the Ordinance, written test is prescribed for entry in the MCA course. The University has only provided additional requirement of minimum qualifying marks i.e. 35%. This condition primarily has been imposed to improve the standard of MCA course. Prescribing 35% minimum qualifying marks cannot be termed either as arbitrary or unreasonable. The object of the same is to ensure that only meritorious candidates get admission to MCA course. The MCA is a specialized course. The decision of the University cannot be faulted with only for the reason that in other specialized courses, no minimum qualifying marks have been prescribed for the entrance test. It is an academic matter and it is for the University to ponder upon the same. The Court does not have the expertise to enter into the realm of pure academics. The scope of judicial review in this matter is limited. The Courts only intervene in 4 case the decision is illegal on the face of it or it is arbitrary and unreasonable. There is no merit in the submission of Ms. Shilpa Sood that in the Universities of the adjoining States, no minimum qualifying marks have been prescribed in the entrance test for MCA course. This has no bearing on the decision, which has been taken by respondent No.2 independently. The respondent-University has been established under the Act. It has to take its own independent decisions. It cannot be swayed or persuaded by the prospectus/guidelines issued by the Universities of the adjoining States. Ms. Shilpa Sood, Advocate has relied upon the decision of the University dated 12.3.2009 whereby the rigours of admission tests were diluted by the respondent-University for LL.B course. This decision cannot be treated as a precedent for future. The respondent- University is well advised that in future the norms of admission should not be diluted. The dilution of the principles lowers down the standard of education. Ms. Shilpa Sood, Advocate has also referred to the decision of the State Government whereby the minimum qualifying marks for admission in Polytechnic courses have been reduced from 120 to 90. It is an independent decision of the State Government. This also has no bearing on the present petition. It has come in the reply of respondent No.2 that the combined entrance test was held on 22.5.2009. In all, 913 candidates had appeared in the combined entrance test. 554 candidates had obtained the qualifying marks. The counselling was held for subsidized seats on 6.7.2009 and also for non-subsidized seats on 11.7.2009. There are 45 seats i.e. 30 subsidized and 15 non- 5 subsidized in the Himachal Pradesh University. 481 candidates were called for counselling on 20.7.2009 for three private institutions. Only 111 candidates turned up for counselling on 20.7.2009. The university had permitted the three institutions mentioned in the reply to advertise on their own expenses and call for a second round of counselling from amongst the candidates who had qualified the combined entrance test and had obtained 35% marks or more than 35% marks for 25.7.2009. The petitioners-Institute was also permitted to participate in the counselling on 25.7.2009. The five institutes were again permitted to advertise on their own expenses and call for the third round of counselling on 28.7.2009. This criteria of 35% minimum qualifying marks is in vogue since 1997. The only ground that there is possibility of seats remaining vacant cannot be the basis to dilute the standard of education. Their Lordships of the Hon’ble Supreme Court in State of T.N. and another versus S.V. Bratheep (minor) and others, (2004) 4 SCC 513 have held as under: “10. Argument advanced on behalf of the respondent is that the purpose of fixing norms by the AICTE is to ensure uniformity with extended access of educational opportunity and such norms should not be tinkered with by the State in any manner. We are afraid, this argument ignores the view taken by this Court in several decisions including Dr. Preeti Srivastava's case that the State can always fix a further qualification or additional qualification to what has been prescribed by the AICTE and that proposition is indisputable. The mere fact that there are vacancies in the colleges would not be a matter, which would go into the 6 question of fixing the standard of education. Therefore, it is difficult to subscribe to the view that once they are qualified under the criteria fixed by the AICTE they should be admitted even if they fall short of the criteria prescribed by the State. The scope of the relative entries in the Seventh Schedule to the Constitution have to be understood in the manner as stated in the Dr. Preeti Srivastava's case and, therefore, we need not further elaborate in this case or consider arguments to the contrary such as application of occupied theory no power could be exercised under Entry 25 of List III as they would not arise for consideration. 11. The argument advanced on behalf of the respondents that these matters are indeed governed by the decision in Islamic Academy of Education and anr. v. State of Karanataka and others, 2004(1) SCT 714 (SC) : 2003(6) SCC 697, and T.M.A. Pai Foundation v. State of Karnataka, 2002(8) SCC 481 : 2003(1) SCT 236 (SC). In fact this Court did not consider the question that has arisen for our consideration in the present case but was dealing with entirely different issue in relation to fee structure of minority and non-minority educational institutions and whether private unaided professional colleges are entitled to fill their seats to the full extent by their own method of admission. That is not the issue before us at all. Therefore, no reliance could be placed by the respondents on the decisions either in TMA Pai Foundation or Islamic Academy case. 12. One other argument is further advanced before us that the criteria fixed by the AICTE was to be adopted by the respective colleges and once such prescription had been made it was not open to 7 the Government to prescribe further standards particularly when they had established the institutions in exercise of their fundamental rights guaranteed under Article 19 of the Constitution. However, we do not think this argument can be sustained in any manner. Prescription of standards in education is always accepted to be an appropriate exercise of power by the bodies recognising the colleges or granting affiliation, like AICTE or the University. If in exercise of such power the prescription had been made, it cannot be said that the whole matter has been foreclosed. 13. In this view of the matter, we think these appeals deserve to be allowed in part and the order of the High Court stands modified to the extent of stating that it is permissible for the State Government to prescribe higher qualifications for purposes of admission to the engineering colleges than what had been prescribed by the AICTE and what has been prescribed by the State and considered by us is not contrary to the same but is only complementary or supplementary to it.” A Division Bench of this Court in Sonia Kayastha versus State of Himachal Pradesh and others, 1999 (1) SLC 162 has held that the guidelines/instructions for regulating the admission have the status of law. Their Lordships have held as under: “10. We are also unable to agree with the learned Counsel for the petitioner in his claim that the prospectus issued by the State Government containing guidelines and instructions for regulating admissions cannot be elevated to the Status of ‘law’, and a contravention of which could be said to be a serious violation undermining the decisions arrived 8 at in derogation of the same. We need refer the claim to reject it only, since it is covered by more than one Division Bench judgments of this Court reported in Km Manju and another V. State, AIR 1972 H.P. 37 and Anil Nag V. State of Himachal Pradesh and others, 1978 I.L.R. H.P. Series 667, against the petitioner. We are in entire agreement with the reasoning of the earlier two Division Bench judgments, and this plea shall also stand rejected.” Accordingly, in view of the observations made hereinabove, there is no merit in both the petitions and the same are dismissed. No costs. (R.B. Misra), Acting Chief Justice (Rajiv Sharma), Judge 2.9. 2009. *awasthi*