IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No 629 of 2003 in SPECIAL CIVIL APPLICATIONNo 3645 of 2003 For Approval and Signature: Hon'ble MR.JUSTICE R.K.ABICHANDANI and Hon'ble MR.JUSTICE KUNDAN SINGH ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- NEW ERA HIGH SCHOOL VALI MANDAL Versus UNION OF INDIA THRO' SECRETARY -------------------------------------------------------------- Appearance: 1. LETTERS PATENT APPEAL No. 629 of 2003 MR.MIHIR JOSHI, ADVOCATE FOR MS AMRITA M. THAKORE for Appellant MR KAMAL TRIVEDI, ADDL. ADVOCATE GENERAL FOR MR.S.N. THAKKAR, Standing Counsel for Union of India - Respondent No. 1 MS. HARSHA DEVANI, AGP, for Respondent No. 2 MRS V.D. NANAVATI for Respondent No. 3 -------------------------------------------------------------- CORAM : MR.JUSTICE R.K.ABICHANDANI and MR.JUSTICE KUNDAN SINGH Date of decision: 15/07/2003 ORAL JUDGEMENT (Per : MR.JUSTICE R.K.ABICHANDANI FOR THE COURT) 1. This appeal is directed against the order dated 25th June 2003 made by the learned Single Judge vacating the ad-interim relief granted on 28-4-2003 in terms of para 5(B) against the implementation of the order at Annexure "J" impugned in the petition preferred by the appellants. The respondent No.1 in the impugned order contained in the Office Memorandum dated 11-2-2003, at Annexure "J" to the petition, had stated that admission to all the seats of the Institutions mentioned therein which were conferred the status of "deemed university" including the respondent No.3 Sardar Vallabhbhai National Institute of Technology, Surat city (hereinafter referred to as the said "Institute") shall be made on the basis of All India Engineering Entrance Examination (AIEEE). In the interim relief, the petitioner also prayed for continuing the prevailing system of admissions in so far as the filling up of 225 seats in the said Institute and 129 seats allotted to Gujarat State for admission to Engineering Colleges of other States was concerned. 2. According to the appellants (original petitioners), the admission policy which was applicable prior to the introduction of the AIEEE for admission to degree level course in engineering in Central Universities, Deemed Universities, National Institutes of Technology etc. was more advantageous to the students who had passed Standard 12th Examination held by the Gujarat Secondary Education Board inasmuch as, there was a ratio between the students of the Gujarat Secondary Education Board and the Central Board which was to be observed and there was a weightage of marks being assigned, for admission to engineering courses to students who had passed Standard Xth examination, with two technical subjects. As stated in paragraph 6 of the petition, the respondent Institute was declared as a Deemed University under Section 3 of the University Grants Commission Act, 1956, by notification dated 4-10-2002, which fact was conveyed by letter dated 10-10-2002 by the respondent No.1 to the respondent No.3. The admission notice came to be issued by the Central Board of Secondary Education (CBSE), New Delhi in The Times of India of 20-12-2002, Mumbai Edition, stating that, as per the directives of the respondent No.1, it would be conducting the All India Engineering Entrance Examination for admission to degree level course in engineering for Central Universities, Deemed Universities, National Institutes of Technology etc., and that the date of examination was 11-5-2003. It was mentioned that the Information Bulletin containing the application form was available for sale from 23-12-2002 to 1-2-2003. According to the petitioners, many students had missed the first notice, but having come to know of the fact of such notice having been issued, in or about the second week of January 2003, they applied and obtained a copy of the Information Bulletin referred to in the notice, a copy of which Bulletin is at Annexure "F" to the petition. It is stated that two salient features of the examination on an analysis of the syllabus contained in Appendix 3 of the said Bulletin indicated that the course was based on that of the Central Board and that the language of the question papers was either English or Hindi. According to the petitioners, the students were not informed of the change in the system of admission at all and it appears that even the respondent No.3 was not aware of the same, at least till the publication of the said notices. It was contended that, by the new policy, the students in Gujarat were put to a huge disadvantage and their rights to pursue education in a vocation / profession of their choice were materially affected. It was also contended that the impugned order was contrary to the conditions attached to the declaration of the respondent No.3 as deemed university and was therefore illegal. Moreover, there was no consultation with the affected parties prior to taking such a decision and the decision was illegal on the ground that it had been made in breach of the principles of natural justice and legitimate expectation. It was also contended that the impugned decision was unreasonable, because, it was made applicable with immediate effect from the ensuing academic year, leaving no sufficient time for the students appearing in Standard 12th Examination of the Gujarat Board to prepare themselves for the AIEEE, particularly in the context of the different syllabus and the language in which the question papers were to be answered. It was also contended that the impugned decision was bad, because, it treated two classes of students, namely, those studying under the Gujarat Board and those under the Central Board alike, thereby treating unequals as equals. 3. In the affidavit-in-reply filed on behalf of the respondent No.1, it was pointed out that the decision to give admission through the AIEEE was a well considered decision angling at achieving the upgraded level of examination applicable to students all over the country. It was stated that the functioning of the institutions was required to be brought in line and conformity with the policy initiatives of the respondent No.1, including the requisite guidelines of the ACITE. It was decided, with a view to improve the academic standards, to declare the Regional Engineering Colleges as Deemed Universities in exercise of powers conferred on the Central Government under Section 3 of the UGC Act and the respondent NO.3 was declared as a Deemed University by a notification issued on 4-10-2002 under Section 3 of the said Act. It was pointed out that the guidelines issued by the UGC in respect of the institutions declared to be "Deemed University" under Section 3 of the said Act incorporated in clause (13) a guideline as per which the admissions were to be made on All India basis to the Engineering Courses in all the Deemed Universities through a common entrance test conducted either by the UGC or by an Institution / Agency identified and approved by the UGC. This was also to apply to those institutions which had already been given the status of "Deemed University". It was submitted that, while producing the copy of the letter dated 10-10-2002, at Annexure "C" to the petition, the petitioners had not appended its Annexure which was a copy of the record of the decision taken in the meeting of the Directors of National Institutes of Technology, held on 27-7-2002 in which, under clause (11), it was explicitly stated that next year onwards, the students shall be admitted through AIEEE to be conducted by CBSE. It was also pointed out in paragraph 10 of the reply that the CBSE had published a notice of admission in national dailies on various dates between 19/20-12-2002 and 11-2-2003 for the conduct of the AIEEE-2003. It was submitted that the students were aware of the said examination and 5,000 students in the State of Gujarat had registered for it. The respondent No.1 relied upon a decision of the Division Bench of the Bombay High Court in paragraph 15 of the affidavit-in reply, in which, it was held that, the change from selection on the basis of 12th Standard examination marks by selection by AIEEE was made on 26-1-2003, and there was a sufficient notice of the change in the policy and the Court did not consider it necessary to interfere in the policy decision taken in the matter. 4. The learned Single Judge, by a very elaborate order, held that the petitioners had started making representations from January 2003, and that not appearing at the examination on 11-5-2003 was a lapse on their part, of which they could not claim any advantage. As regards the contention on the basis of doctrine of legitimate expectation, the learned Single Judge held that it was not attracted in the present case. The challenge on the ground of discrimination and violation of Article 14 of the Constitution was negatived since not a single Institute on which the status of "deemed university" was conferred, was excluded from AIEEE 2003. It was held that sufficient notice of change in policy was given with a wide publicity was given to it. The learned Single Judge also referred to E-Communication presumably in context of the information posted on the website of the CBSE for admission to the deemed universities through the AIEEE-2003. 5. The learned counsel appearing for the appellants submitted that the direction to hold the AIEEE for the academic year 2003-2004 given for admission to the respondent No.3 Institute was without the authority of law, because, it was not issued by the University Grants Commission, which had issued general guidelines only. It was argued that the application of admission policy from 2003 was unreasonable, because of difference in syllabus and due to the fact that the language in the examination was English or Hindi, which left insufficient time for preparation to the students clearing Standard 12th Examination under the Gujarat Board. It was argued that the admission policy could not be made effective because of lack of proper publicity. It was also contended that the policy was irrational in the context of reservation of 225 seats for the students from Gujarat, who need not have been subjected to the AIEEE for admission. It was then contended that the challenge of policy affected the students adversely, because, they were now denied the benefit of grace marks on technical subjects, which they would have otherwise got for admission to the college and also because the ratio recognized for admission for the candidates passing under the State Board and the Central Board would no more now be recognized. He submitted that the condition No.1 in the letter dated 10-10-2002 (Annexure "C" to the petition), contemplated that there shall be no change in the system of admission as a result of conversion of the college into "deemed university" and therefore, holding of AIEEE for admissions to the said Institute was unwarrented and illegal. 5.1 In support of his contentions, the learned counsel for the appellants relied upon the following decisions : [a] The decision of the Supreme Court in State of Madhya Pradesh v. Ram Ragubir Prasad Agarwal, reported in AIR 1979 SC 888 was cited to point out that it was held therein that "publication" to the educational world is the connotation of the expression. Even the student and the teaching community may have to know what the relevant syllabus for a subject is, which means wider publicity than minimal communication to the Departmental officialdom. [b] The decision of the Supreme Court in Col. A.S.Sangwan v. Union of India, reported in AIR 1981 SC 1545 was cited for the proposition that if a change in policy is made by the government, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily. Whatever policy is made subsequently should be done fairly and made known to those concerned. [c] The decision of this Court in XX GLR 614 was cited to gain support from the observations made in paragraph 20 by the learned Single Judge to the effect that the State Government would be well advised to consider all the relevant questions relating to its policy in the matter of admission to government colleges well in advance of the start of the academic year and to formulate rules based on such policy and make such rules known to the intending applicants by giving it suitable publicity. 6. The learned Additional Advocate General appearing for the respondent No.1 Union of India, taking us through the entire record, submitted that adequate notice of the change in the system of admission was given in the present case. He pointed out that the notification dated 4-10-2002 issued under Section 3 was a gazetted notification and once the respondent No.3 was declared as a deemed university, the admission policy which was uniformly applicable to all the deemed universities, namely, through AIEEE, which was declared under the resolution dated 18-10-2001, became automatically applicable to the respondent NO.3. It was submitted that sufficient notice was given by way of press-notes, notices in national dailies, issuance of the information on the internet website of the CBSE, and, as many as 5,000 students had registered at the examination on the basis of such information widely published. It was submitted that there was no question of any legitimate expectation arising in the present case, because, there was no breach of any promise or representation. It was contended that the policy of holding All India Entrance Examination was framed with a view to attain high standards of education in the technical field. It was also submitted that the decision to hold the examination taken under the resolution of 18-10-2003 was already implemented in the year 2002-2003 and the question of the mode of admissions to a "deemed university" was settled as per that policy which continued to operate even in respect of the deemed universities that were subsequently recognized, including the respondent No.3. According to him, there was no question of any fresh policy for the respondent No.3 being announced, because, on its conversion as a deemed university, it became subject to the existing policy which required admissions to be made through AIEEE. He further argued that the reliance on clause 1 of letter dated 10-10-2002 was erroneous, because, it was never intended thereby to continue the old system of admission, but it had reference only to the existing system of quota reserved for the State which was continued despite the new policy. It was submitted that there was no exemption given to any of the deemed universities from the applicability of the admission policy reflected in the resolution of 18-10-2001, in clause (13) of the guidelines issued by the UGC, in the admission notice of the institute itself, and in the Information Bulletin, which was published by the CBSE, which was to conduct the examination. 6.1 In support of his contentions, the learned Additional Advocate General, relied on the following decisions : [a] The decision of the Supreme Court in Thapar Institute of Engineering & Technology v. Gagandeep Sharma, reported in (2001)9 SCC 157 was cited for the proposition that, prescribing the academic standards falls exclusively within the domain of special bodies like the Senate, Board of Governors and Syndicate etc., and that the Court would normally not interfere with such prescribed standards and especially when they are intended to improve the academic standards in the institutes. The scope of judicial review in such matters would be very limited. [b] The decision of the Supreme Court in Council For Indian School Certificate Examination v. Isha Mittal, reported in (2000)7 SCC 521 was referred to for the proposition that it is the obligation of the High Court to decide the matters before it in accordance with law, and if the law was in favour of a party before it, it was obliged to make an order in favour of such party and that, considerations of equity cannot prevail and do not permit a High Court to pass an order contrary to the law. [c] The decision of this Court in Kumari Jayshree Chandrachud Dixit v. State of Gujarat, reported in XX GLR 614 was cited for the proposition that, mathematical nicety or perfect equality are not required to meet the test of Article 14. It was held therein that, where a challenge based on Article 14 against the rules is brought before the Court, the legitimate presumption is that the rules must have been framed by the State Government in good faith and that the amendment, if any, must be made to solve the difficulties manifested by experience. [d] The decision of the Madras High Court in Dr.R.Sivaraman v. The Registrar, Dr.M.G.R. Medical University, reported in AIR 1999 MADRAS 82 was cited to point out that it was held therein that, once Chennai Medical College, Chennai was declared to be a "Deemed to be University" by the notification under Section 3 of the UGC Act, it no more remained affiliated College of the Tamil Nadu Dr. M.G.R. Medical University. 7. The learned Advocate General appearing for the respondent No.3 Institute argued that the Institute was fully financed by the Central Government and the directions of the Central Government were binding on the Institute. It was submitted that minimum level of competence required that the admission policy reflected in the government orders and the guidelines requiring admission to be made through AIEEE should be followed and accordingly, the Institute, in its admission notice, was based on said policy. He pointed out that press-note was issued by the Institute on 22-10-2002 clearly mentioning that the admissions for the academic year 2003-2004 to the Institute will be governed through All India Entrance Examination. The contents of the press-note were reflected in the news item of 24-10-2002 in Gujarat Samachar. He adopted contentions which were raised on behalf of the Central Government. 7.1 The learned Assistant Government Pleader appearing for the respondent State adopted the contentions canvassed on behalf of the other respondents. 8. The Parliament has exclusive power to make laws under Entry 66 of the Union List with respect to "Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions". By virtue of Article 73(1)(a) of the Constitution, the executive power of the Union extends to the matters with respect to which Parliament has power to make laws. The norms of admission can have a direct impact on the standards of education and admissions must be made on a basis which is consistent with the standards laid down by a statute or regulations framed by the Central Government in exercise of its powers under Entry 66 of the List 1 (See Dr.Preeti Srivastava v. State of M.P., reported in (1999)7 SCC 120. 9. The All India Council for Technical Education (AICTE) was set up in 1945 by a government resolution as a National Expert Body to advise the Central and State Governments for ensuring the co-ordinated development of technical education in accordance with the approved standards. The National Policy on Education, 1986 also stipulated that the AICTE will be vested with statutory authority for planning, formulation and maintenance of norms and standards, accredition etc. All India Council for Technical education Act, 1987 provided statutory powers to the AICTE to ensure proper planning and co-ordinated development of the technical education system throughout the country, promotion of qualitative improvement of technical education in relation of planned quantitative growth and regulation of the system and proper maintenance of norms and standards. Section 10 of the All India Council for Technical Education Act, 1987 prescribes the functions of the AICTE, and, clause (o) of Section 10, which is relevant, reads as under :- "Section 10 : Functions of the Council : It shall be the duty of the Council to take all such steps as it may think fit for ensuring co-ordinated and integrated development of technical education and maintenance of standards and for the purposes of performing its functions under this Act, the council may - xxx xxx (o) provide guidelines for admission of students to technical institutions and Universities imparting technical education; xxx xxx " 10. The programme of action under the National Policy on Education, 1986 envisaged the conduct of common entrance test on all India basis for admissions to professional and technical programmes in the country. It appears from the resolution dated 18th October 2001 bearing No. F.31-4/2000/TSI of the Government of India, Department of Secondary and Higher Education, Ministry of Human Resources Development that the AICTE had provided guidelines under Section 10(o) of the AICTE Act, 1987 for admissions of students to technical institutions and universities imparting technical education and as per the guidelines for the deemed universities, admissions to the identical courses in all deemed universities were required to be made on all India basis through a Common Entrance Test. This is clear from paragraph 1 of the said gazetted resolution dated 18-10-2001, which reads as under : "Subject: Policy Framework for Admissions to Engineering, Architecture and Pharmacy Programmes at the Undergraduate Level in the Country - 1. Programme of Action (PoA) 1992 under the National Policy on Education (NPE) 1986 envisaged conduct of a Common Entrance Examination on an All India basis for admissions to professional and technical programmes in the country. Presently, a number of tests are conducted for entrance to such programmes. Multiplicity of such tests causes immense mental and financial burden on students and their parents without adding any value to the system. Under Section 10(o) of the AICTE Act, 1987, All India Council for Technical Education (AICTE) can provide guidelines for admission of students to technical institutions and universities imparting technical education. As per Guidelines for Deemed Universities under Section 3 of the UGC Act, 1956, admissions to the identical courses in all deemed universities are required to be made on an All-India basis through a common entrance test. In view of this, there have been attempts to hold an All India Engineering Entrance Examination for past some time." (emphasis added). 10.1 The Government of India, accordingly, by the said resolution, declared in paragraph 2; "Taking into consideration the above facts, it has been decided to organise an All India Engineering Entrance Examination (AIEEE) from the year 2002". Again in paragraph 9 of the resolution, the Government of India declared: "For the first time, AIEEE shall be conducted in the month of May 2002. All concerned are required to take necessary steps to ensure that admissions to Engineering, Architecture and Pharmacy Programmes at the under graduate level is done as per the procedure given above from the year 2002". (emphasis added). 10.2 The above resolution was ordered to be published in the gazette of India for general information and communicated to the Press Information Bureau for giving wide publicity as ordered below it and copies were sent to the State Governments and Union Territories, and to the University Grants Commission, AICTE, CBSE, Deemed Universities and others, as noted below it. The responsibility of conducting the AICEE Examination was assigned to the Central Board of Secondary Education under paragraph 4 of the resolution. 11. As per the said policy of regulating admissions to the identical courses in all deemed universities on All India basis through a common entrance test, the first All India Engineering, Pharmacy and Architecture Entrance Examination was held by the CBSE on 19-5-2002. Thus, the admission policy to the deemed universities was not only announced as far back as on 18-2-2001, it was in fact implemented by conducting the first AIEEE in May 2002 through the CBSE as contemplated by paragraphs 1, 2, 4 and 9 of the resolution. There was no assurance or representation given by the authorities to provide exemption to any deemed university from the said policy and the resolution unequivocally declared that admissions