1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL, CIVIL JURISDICTION WRIT WRIT WRIT PETITION LODGING NO.1629 OF 2006 PETITION LODGING NO.1629 OF 2006 PETITION LODGING NO.1629 OF 2006 Association of the Managements ) of Unaided Engineering Colleges ) (Mah.)a Society registered under) the provisions of the Societies ) Registration Act, 1860 and also ) Public Trust, registered under ) the Bombay Public Trusts Act ) 1950, having its registered ) office at K.K. Wagh Education ) Society, Hirabai Haridas ) Vidhyanagari, Amrutdham, ) Panchavati, Nashik-422 003 )..Petitioners Versus 1.The State of Maharashtra ) through the Department of ) Higher Technical Education ) 2.The Director of Technical ) Education, Maharashtara State ) Having his office at 3, ) Mahapalika Marg, Opposite ) Metro Cinema, Dhobi Talao, ) P.B. No.1967, Mumbai-400 001. ) 3.The Pravesh Niyantran Samiti ) having its office at 305, ) 2 3rd Floor, Government ) Polytechnic Building, 49, ) Kherwadi, Ali Yavar Jung Marg ) Bandra (East), Mumbai-400 051.)..Respondents Mr. S.G. Aney, Senior Counsel with Mr. F. Pooniwala,Mr.N.F. Dhilla and A.T. Deshpande i/b. Hariani & Co., for the Petitioner Mr. A.A. Kumbhakoni, Associate Advocate General with Mr. M.D. Naik, AGP for Respondents. CORAM: F.I. F.I. F.I. REBELLO REBELLO REBELLO & MRS.V.K.TAHILRAMANI, MRS.V.K.TAHILRAMANI, MRS.V.K.TAHILRAMANI, JJ. JJ. JJ. DATE: 26th July,2006 ORAL JUDGMENT (PER F.I. REBELLO, J.) . Rule. Heard forthwith. 2. The petitioner is an Association of Unaided Private Engineering Colleges in the State of Maharashtra and is registered as a Society under the Societies Registration Act, 1960 and also as a Public Trust Act, 1950. The case of the petitioner is as under:- . In P.A. Inamdar vs. State of Maharashtara (2005) 6 SCC 537, the Supreme Court has confirmed that Unaided Institutions have the right to admit 3 students of their on choice, subject to the admission procedures being fair, transparent and non-exploitative. The Supreme Court has permitted a group of institutions, imparting same or similar education, in one State or more than one State, to join together to hold a Common Entrance Test (CET for short) for admission. The Supreme Court has also permitted the State Governments to hold such CET.In terms of the Judgment of the Supreme Court Unaided Institutions are entitled to, reserve seats not exceeding 15% for Non-Resident Indians (NRIs)and for their children and wards. The Court has directed the State Governments to appoint Committees to oversee the admission process with a view to prevent possible malpractices in the admission process so as to ensure that merit is not the casualty. Respondent No.3 is a Committee appointed by the Respondent No.1 in the State of Maharashtra in terms of Judgment in P.A.Inamdar (supra) By the judgment the Supreme Court has made it clear that the Committee should give benefit of hearing to contending parties and if the Committee exceeds its power the decision of such Committees will be subject to judicial review. The petitioners, on behalf of its member institutions decided to conduct its own CET for admission to the First Year Engineering Course for the academic year 2006-2007. A Resolution to that effect was passed in the General Body Meeting of the petitioners. Some of the members, however, opted not to participate in the 4 CET conducted by the petitioners and instead opted to conduct the admission process through CET conducted by respondent No.1. . By letter dated 30th December, 2005 the petitioner had written to respondent No.3, seeking permission to conduct its own CET. By letter of 30th January, 206 respondent No.3 informed the petitioners that they could conduct its own CET on any date apart from 21st May, 2006 when respondent No.1 was going to conduct its CET. Respondent No.3, therefore, informed the Petitioners that they were permitted to conduct their CET on 28th May, 2006. The petitioners were also informed at the meeting of the respondent No.3 held on 1st April, 2006 that the Committee had approved the brochure submitted by the petitioners for conducting the admissions, upto the stage of CET Examination and declaration of results only. The brochure, in so far as it related to stages beyond CET and declaration of results, was not approved at that stage. The petitioners contend that this action of the Committee is unlawful and exceeds the scope of the authority of respondent No.3 as it is created as a regulatory body and has merely a monitoring role.The members of the petitioners unanimously passed a resolution, at the meeting held on 15th January, 2006 to conduct the CET and subsequently 81 member Colleges gave their consent to admit students to the petitioner CET by letter addressed to 3rd 5 respondent. Some of these members thereafter opted for the CET conducted by respondent No.1. Petitioners wrote to respondent No.3, seeking a direction that the 81 colleges should be asked to appear for the CET conducted by the petitioners. As an incentive those colleges were permitted to admit 20% of the students through institute legal admissions, contrary to the judgment of the Supreme Court. As a result out of 81 member institutions, 61 institutes who were earlier to participate in the CET conducted by the petitioners decided to follow the admission process based on CET conducted by respondent No.1. Respondent NO.3 gave an option to the colleges either to appear for the CET conducted by the petitioners or by respondent No.1. A petition came to be filed by this petitioner being Writ Petition No.3169 of 2006 which has been admitted. 3. The petitioners held the CET on 28th May, 2006 and announced their results on 22nd June, 2006. The CET was held at 115 centres all over India. 43031 students from Maharashtra and 5667 students from outside Maharashtra appeared for the CET conducted by the petitioners. By letter dated 9th June, 2006, the petitioners informed respondent No.3 about the admission procedure that it proposed to follow in respect of the students that had appeared for their CET. By letter of 19th June, 2006 the petitioners forwarded to respondent No.3 its 6 "Preference-cum-Eligibility Brochure". Respondent No.3 was informed that in case any clarification was required by respondent No.3 the petitioners be heard. There were subsequent letters. However, no intimation was received from respondent NO.3. The petitioners came across a newspaper item in the Mumbai Edition of Sakal Newspaper published on 11th July, 2006 about the admission procedure of respondent No.1, by which the first date for receiving admission forms was 11th July, 2006 and the last date was 18th July, 2006. Allotment of seats from Maharashtara State and All India would be 28th July, 2006. This was pointed out by the petitioners to respondent No.3. It is also pointed out that in terms of Government Resolution they would reserve 33% seats and that as admission procedure of respondent No.1 had already started the petitioners desired to start its admission procedure immediately. Reference need not be made to subsequent correspondence. The respondent NO.3 by letter of 13th July, 2006 forwarded to the petitioner the decision taken at its meeting held on 12th July, 2006. Various conditions were imposed on the petitioners which may be reproduced as under:- 1 Break up of 70:30 in respect of Home University and other than Home University area seats is not indicated in the brochure. 7 The same may be applicable and implemented on the lines of the similar provision given in Rules and Institute Information Brochure for Academic Year 2006-07 of Engineering/Technology - published by the Directorate of Technical Education, Government of Maharashtara, Mumbai. 2. The provisions made by the Government of Maharashtra for reservation of the Backward Class candidates, Physically Handicapped and Defence candidates and Women candidates should be made during the Centralized Allotment Process (CAP) allotment round of the admission. 3. NRI seats (15%) are shown to be filled at the Institute level in all institutes. However, as per the policy of the AICTE, permission to fill Foreign/PIO etc. seats (which is 15% over and above the sanctioned intake) is granted only to select institutes satisfying the stringent conditions laid down by the AICTE. As such, it would be appropriate to grant permission to fill NRI seats only to such institutes which have been granted permission to fill seats for Foreign/PIO etc. by the AICTE (Rule 1.O.I & 1.0.II). 8 4. In the rules for the vacancy rounds of admission at the Institute level (Rule 10.0) it is indicated that the admissions shall be done at the Institute level based on the score of the MH-ENG-ASSO-CET 2006. However, all such admissions should be carried out only through the additional rounds of Centralized Allotment Process (CAP) to be conducted by the concerned Competent Authority of the Association. 5. In the guidelines for the vacancy round of admissions in Unaided Institutes which are participating in the CAP being conducted by the Directorate of Technical Education, the Unaided Institutes are permitted to fill up the seats in the following order:- (i) Maharashtra State candidates from Government CET. (ii) Maharashtra State candidate on the basis of the marks in Physics, Chemistry and Mathematics obtained in Science XIIth Standard, (iii) Maharashtra State candidates on the basis of Diploma marks, 9 (iv) OMS candidate from Government CET, (v) OMS candidate on the basis of the marks in Physics, Chemistry and Mathematics obtained in Science XIIth Standard, and (vi) OMS candidate on the basis of Diploma marks. This provision was done in view of the confidence shown by the participating Unaided Institutes in the Government CET and CAP and can be viewed as a Package Deal. 6. Further the schedule of the CAP round of the admission by the Competent Authority of the Association should be in synchronization with the schedule of the Government CAP. 4. It is the case of the petitioners that these conditions are illegal, contrary to the judgment of the Supreme Court and in excess of jurisdiction vested in respondent No.3. The conditions have been imposed without giving any personal hearing to the petitioner and as such in violation of the principles of natural justice. There is an averment that these conditions have been malafidely imposed by the Respondent No.3 which has been constituted by 10 respondent No.1 in order to favour the private unaided engineering colleges, which have opted to give admissions through respondent No.1’s CET and in order to put at a disadvantage the private unaided engineering colleges which have opted to give admissions through the petitioner’s CET. The conditions, it is, therefore, set out, are discriminatory as well, since they treat equals unequally. 5. The grounds raised challenging the said communication of 13th July, 2006 may now be set out. It is firstly submitted that the Supreme Court in Islamic Academy of Education, (2003) 6 SCC 697 and P.A. Inamdar (supra) has held that the respondent No.3. can only monitor and oversee admissions so as to ensure that merit is not the casualty.This power does not include the power to grant permission to the admission process and brochure of the petitioner or lay down reservation or preferences in the matter of admission. The petitioner had intimated to respondent No.3 the admission process and brochure. The only power that the respondent No.3 had, was to see that the admission procedure and brochure did not disregard merit. The decision, it is, therefore, set out, in so far as it purported to grant "permission" to the petitioner for its admission process and brochure is illegal, contrary to the judgment of the Supreme Court and in excess of the jurisdiction 11 vested in the respondent No.3. . By Condition No.1, of the decision of 12th July, 2006, the respondent No.3 has directed the petitioner to break up the available seats in the ratio of 70:30 in respect of Home University and other than Home University seats. This condition is sought to be imposed on the petitioners, only because similar procedure exists in the brochure published by respondent No.2. It is submitted that considering the judgment of the Apex Court it was not open to respondent No.3 to have imposed such a condition. The entire object of the Supreme Court in insisting on CET was to ensure that admission to professional courses would be available in order of merit and homogeneity and to curtail imbalances, caused by regionalism and ghehto-isation of education. . By condition No.2 the petitioners have been called upon to make provisions for reservation for backward class candidates, physically handicapped candidates, defence candidates and women candidates during the CET. It is submitted that respondent No.3 had no jurisdiction to impose the condition and the condition is contrary to the judgment of the Apex Court in P.A. Inamdar (supra). Respondent No.1, it is pointed out, has promulgated Ordinance which seeks to reserve seats in private unaided institutions for Scheduled Caste, Scheduled Tribes, De-Notified Tribes 12 (Vimukta Jatis), Nomadic Tribes and Other Backward Classes. The petitioner is bound by that and has agreed to reserve 32.5% of seats for the aforesaid classes as per the Ordinance. The condition NO.2 in as much as it directs reservation other than what is provided by respondent No.1 in its Ordinance is without jurisdiction as also arbitrary and illegal. . The petitioners, it is submitted, have been permitted to admit students to the extent of 15% of the sanctioned intake through NRI quota. The respondent No.3 has by condition 3 has imposed that seats can be filled in by only such institutes which have been granted permission to fill the Foreign/PIO category by the AICTE. It is submitted that this is clearly arbitrary, without jurisdiction and contrary to law laid down by the Supreme Court in P.A. Inamdar (supra). . By condition No.4 the petitioners have been called upon to make admissions apart from the first round, for the remaining seats through additional rounds of CAP to be conducted by the concerned Competent Authority of the petitioners. In its brochure the petitioners had stated that only one round of admission is carried out with CAP and the remaining vacant will be filled in at the institute level on the basis of Association CET merit . If there were no CET candidates, then preference will be given to 13 AIEEE qualified candidates and thereafter Diploma holders. Condition No.4 directs the petitioners to carry out admissions only through additional rounds of CAP. It is pointed out that the Government Colleges and other unaided private colleges which are granting admission through Respondent No.1’s CET, will have only one round of CAP and then they can fill the remaining seats at the institute level. Reliance is placed on the Borchure published by Respondent No.2. It is set out that, therefore, colleges who were similarly situated like members of the petitioners, but who have opted for CET conducted by respondent No.1 and 2 will be permitted to admit students after first round, whereas the members of the petitioners who appeared for the CET conducted by the petitioners have to have additional rounds. By this process the private colleges who had appeared for the CET conducted by respondent No.1 will complete the admission process earlier whereas that of the petitioner will be inordinately delayed. This, it is pointed out, is arbitrary. 6. A reply has been filed on behalf of the Respondent Nos. 1 and 2. It is set out that the 3rd respondent had given a choice to the private colleges either to join the CET conducted by respondent No.1 or the petitioners. Out of 142 colleges, 121 colleges preferred to join the CET along with the admission process to be conducted by the State 14 Government. Amongst these 121 colleges are included 61 colleges who are members of the petitioner association. Only 20 member colleges preferred to remain with the petitioner Association. Reliance then is placed on the judgment of Islamic Academy of Education (supra), P.A. Inamdar as also T.M.A. Pai Foundation, (2002) 8 SCC 481. Respondent No.3, it is pointed out has jurisdiction to regulate, monitor and control at the initial stage itself the admission procedure to be adopted by the petitioner association. Respondent NO.3, it is set out has is duty bound to ensure the admission procedure of the petitioner association is fair, transparent, non-exploitative and even otherwise in accordance with law. In so far as the first break up 70:30 it is submitted it is necessary to protect not only the local needs, but also to protect the State level meritorious students of their choice of college and is aimed at achieving the objects set out in para..68 of the judgment in T.M.A. Pai. If such break up is not prescribed, it may happen in a given case that at a given college, not even a single local student may be able to get admission. Similarly, at the State level, meritorious students coming from rural areas, may not be able to get admission in a college situated at metropolitan cities like Mumbai and Pune which have better infrastructure and quality education.The object of 70:30 is aimed to strike a balance amongst the students in the State. It is, 15 therefore, submitted that it cannot be said that Condition No.1 is arbitrary and/or illegal. . In so far as the reservation is concerned, it is pointed out that it is governed by the provisions of Ordinance No.V of 2006 dated 16th June, 2006. The petitioner Association is bound to provide for reservation in terms of the said Ordinance. The condition of reservations will have to be implemented only to the extent of the aforesaid provisions. . In so far as N.R.I. seats are concerned, petitioners are bound to follow the procedure laid down by AICTE for admission of students against NRI quota and it cannot, therefore, be said that the condition is arbitarary and/or illegal. . In so far as conducting several rounds of Centralised Admission Process is concerned, it is submitted that the Supreme Court in case of Health Science Courses has issued an order. It is pointed out that Centralised Admission Process minimizes commercialization of education by granting admission on available seats guided by not the paying capacity of the candidates rather their relative merit. It has been the experience of the 3rd respondent that on the first round itself, allotments are so made as to create artificial vacancies and then such seats remaining vacant are filled in by students at the 16 cost of merit. In order to obviate any such mischief and to leave no scope for grant of such illegal admissions, the impugned conditions have been imposed and consequently there is no arbitrariness. It is finally submitted that the admissions through the CET as also CAP conducted by the State cannot be compared with each other. Each of the schemes have advantages as also disadvantages. For all the aforesaid reasons it is set out that there is no merit in this petition, which should be dismissed. 7. The question, therefore, that we have been called upon to answer is, what is the extent and scope of the jurisdiction of respondent No.2 in the matter of monitoring and controlling the admission process of students to educational institutions who have joined the CET conducted by the petitioners. 8. We may first gainfully make a reference to the judgment in Islamic Academy of Education (supra). The Supreme Court was considering the judgment in T.M.A. Pai Foundation (supra). The Supreme Court framed four questions. We are concerned with Question NO.4 which reads as under:- "(4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission." 17 Addressing itself to the issue the Apex Court in para.16 has observed as under:- "16. That brings us to the question as to how the management of both minority and non-minority professional colleges can admit students in the quotas allotted to them. Undoubtedly, the majority judgment has kept in mind the said reality that there are a large number of professional colleges which indulge in profiteering and/or changing of capitation fees. It is for this reasons that the majority judgment provides that in professional colleges admission must be on the basis of merit. As has been rightly submitted, it is impossible to control profiteering/charging capitation fees unless it is ensured that admission is on the basis of merit. Also, as has been rightly pointed out, if a student is required to appear at more than one entrance test it would lead to great hardship. The application fees charged by each institute, even though they may be only Rs.500 to Rs.1000 for each institute, would impose a heavy burden on the students who will necessarily have to apply to a number of colleges. Further, as has been rightly pointed out, students would have to arrange for transport from and to and stay at 18 various places if they have to appear for individual tests conducted by each college. If a student has to go for test to each institute it is possible that he/she may not be able to reach, in time, the venue of a test of a particular institute. In our view what is necessary is a practical approach keeping in mind the need for a merit-based selection. Paragraph 68 provides that admission by the management can be by a common entrance test held by "itself or by the State/University". The words "common entrance test" clearly indicate that each institute cannot hold a separate test. We thus hold that the management could select students of their quota, either on the basis of the common entrance test conducted by the State or on the basis of a common entrance test to be conducted by the association of all colleges of a particular type in that State e.g. medical, engineering or technical etc. The common entrance test, held by the association, must be for admission to all colleges of that type in the State. The option of choosing, between either of these tests, must be exercised before issuing of prospectus and after intimation to the concerned authority and the Committee set up hereinafter. If any professional college 19 chooses not to admit from the common entrance test conducted by the association then that college must necessarily admit from the common entrance test conducted by the State. After holding the common entrance test and declaration of results the merit list will immediately be placed on the notice-board of all colleges which have chosen to admit as per this test. A copy of the merit list will also be forthwith sent to the concerned authority and the Committee. Selection of students must then be strictly on the basis of merit as per that merit list. Of course, as indicated earlier, minority colleges will be entitled to fill up their quota with their own students on the basis of inter se merit amongst those students. The list of students admitted, along with the rank number obtained by the student, the fees collected and all such particulars and details as may be required by the concerned authority or the Committee must be submitted to them forthwith. The question paper and the answer papers must be preserved for such period as the concerned authority or Committee may indicate. If it is found that any student has been admitted dehors merit, penalty can be imposed on that institute and in appropriate cases recognition/affiliation may 20 also be withdrawn." (emphasis supplied). . After further discussion the Court was pleased to issue directions. Gainful reference can be made to para.19, which reads as under:- "We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State