IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8230 of 2004 with SPECIAL CIVIL APPLICATION No 8231 of 2004 For Approval and Signature: HON'BLE MR.JUSTICE AKIL KURESHI ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : NO 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? -------------------------------------------------------------- GUJARAT UNIVERSITY Versus PATHAK MITALI DUSHYANTKUMAR -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8230 of 2004 MR DEVANG NANAATI WITH MR SAURIN MEHTA AND MRS VD NANAVATI for Petitioners RULE NOT RECD BACK for Respondent No. 1,3-4,6,9 MR ND NANAVATI, SR. ADV. WITH MR AR MAJMUDAR for Respondent No. 2,5,7-8,11-13,15-18 RULE SERVED for Respondent No. 10,14, MR ND GOHIL, AGP, for Respondent No. 19,21 MR SK JHAVERI SR. ADV. WITH MR PRADEEP PATEL for Respondent No. 20 MS NEHA I JANI for Respondent No. 22 2. SCA No.8231 of 2004 MR DEVANG NANAVATI WITH MR SAURIN MEHTA AND MRS VD NANAVATI for the petitioner. MR ND GOHIL, AGP for respondent Nos.1 & 3. Mr SK JHAVERI, SR. ADV. WITH MR PRADEEP PATEL for respondent No.2. MS NEHA I JANI for respondent No.4. -------------------------------------------------------------- CORAM : HON'BLE MR.JUSTICE AKIL KURESHI Date of decision: 03/11/2004 ORAL JUDGEMENT Some of the respondents who are students have not been served but have left the course and are therefore not interested in the litigation. Rest of the students are served and are being represented through respective counsel. 2. Since common questions of law and facts arise in these petitions, they were heard together and are now being disposed of by this common judgment. 3. For appreciating the controversies arising in these petitions, facts as emerging from Special Civil Application No.8231 of 2004 can be noted. 3.1 Respondent No.2 herein, Parul Institute of Engineering and Technology is a self-financed Institute situated at Limda, Taluka Vaghodia. The said institution was established in the year 2003 for imparting education in Computer Science and Engineering, Electronics and Communication Engineering, Mechanical Engineering, Electrical Engineering and for the said purpose, the institution was approved by the All India Council for Technical Education (AICTE for short) vide its order dated 12th May 2003. The AICTE had given approval to the said institution for 60 seats in each of the said courses aggregating to 240 seats. The respondent No.2 institution is also affiliated with the Gujarat University which is the petitioner in the present petitions. The affiliation was granted to respondent No.2 vide notification dated 7th July 2003. The aforesaid seats in the respondent No.2 Institute were required to be filled up by Joint Admission Committee for Professional Courses (JACPC for short) like all other engineering colleges in the State of Gujarat. 3.2 It is the case of the respondent No.2 Institute that as a self-financed institute, it was entitled to give admission to eligible students in the 50 per cent Management quota seats and accordingly after following due process for filling up the vacancies, the respondent No.2 Institute had given admissions to 40 students on the basis of their merits. It is not in dispute that the admissions of these students had to be approved by the Gujarat University. The Gujarat University, however, enrolled only 7 out of 40 students in different engineering courses and refused to enrol the remaining 33 students on the ground that they were not meeting with the criteria provided for by the State Government. It was this decision of the petitioner University which came to be challenged by the respondent No.2 Institute before the learned Civil Judge (S.D.), Vadodara in Regular Civil Suit No.318/04. Along with the said civil suit, the plaintiff, respondent No.2 herein, had also prayed for interim injunction by filing appropriate application. By the order dated 26th March,2004 passed below Ex.5 in Regular Civil Suit No.318/04, learned 3rd Joint Civil Judge (SD), Vadodara was pleased to grant an ex-parte injunction in favour of the plaintiff, respondent No.2 herein, and the defendant, the present petitioner was directed to accept enrolment forms of 33 students described in Ex.H(i) who are admitted by the plaintiff Institute and to take examination of those 33 students throughout the entire course and declare the results from time to time till further orders. 3.3 In response to the notice issued by the Joint Civil Judge (SD), Vadodara, the petitioner University appeared before the court and filed its detailed reply and resisted confirmation of ex-parte interim injunction. By the order dated 6th May 2004, the learned Trial Judge, however, allowed application Ex.5 filed by the plaintiff, respondent No.2 herein and confirmed the ex parte ad interim injunction dated 26th March 2004 and made the ad interim order absolute till the final disposal of the civil suit. 3.4 Being aggrieved by the said order dated 6th May 2004, passed by the 3rd Joint Civil Judge (SD), Vadodara, the petitioner herein preferred appeal before the Court of Joint District Judge and Additional Sessions Judge (Fast Track Court No.8), Vadodara. The appellate Court by its judgment and order dated 25th June 2004 was pleased to reject the appeal filed by the petitioner herein and confirmed the order dated 6th May 2004 passed by the learned Trial Judge below Ex.5 in Regular Civil Suit No.318/04. 3.5 Being aggrieved by the said orders passed by the courts below dated 6th May 2004 and 26th June 2004, the petitioner has preferred the present petition and has prayed for quashing and setting aside the said orders. 4. In Special Civil Application No.8230 of 2004, the facts are similar. Respondent No.20 in the said petition is Sardar Patel Institute of Technology which is a self-financed Institute situated at Vasad, Taluka Anand. The said Institute was established in the year 1997 for importing education in Computer Science and Engineering, Electronics and Communication Engineering, Mechanical Engineering, Civil Engineering, Electrical Engineering, Information Technology, Instrumentation and Control and Aeronautical Engineering with a total capacity of 568 seats for the abovementioned courses. The Institute received approval from AICTE vide order dated 20th August 1997 and affiliation from the Gujarat University vide notification dated 12th December 1997. 4.1 Since respondent No.20 Institute had granted admissions to 18 students which admissions were disputed, the petitioner University did not enrol these students and it was this decision of the Gujarat University which came to be challenged by the concerned students before the 3rd Joint Civil Judge (SD), Vadodara by filing Regular Civil Suit No.335/04. By an ex-parte ad-interim order dated 31st December 2004 passed below Ex.5 in Regular Civil Suit No.335/04, the learned Trial Judge directed the defendant No.1 i.e. the present petitioner to accept the enrolment forms of the plaintiffs and to take examination of those 18 students throughout the entire course and declare their results from time to time till further orders. 4.2 In response to the notice issued by the Trial Court, the petitioner University appeared before the Trial Court and resisted the confirmation of ex-parte interim injunction. The learned Trial Judge, however, by the order dated 6th May, 2004 passed below Ex.5 allowed the application Ex.5 and confirmed the ad-interim order granted earlier by the order dated 31st March 2004 and made the interim relief absolute till the final disposal of the suit. The petitioner herein, being aggrieved by the said order dated 6th May 2004, passed by the Trial Court preferred appeal being Misc. Civil Appeal No.128/04 before the court of Joint District Judge and Additional Sessions Judge, (Fast Track Court No.8) Vadodara. The said appeal, however, came to be dismissed by the appellate Court by its judgment and order dated 25th June, 2004. The petitioner has, therefore, filed the present petition challenging the abovementioned orders dated 6th May 2004 and 25th June 2004 passed by the courts below. 5. The factual controversy and circumstances leading to the passing of the above orders can be examined at some length, at this stage. Broadly stated, it is the case of the petitioner that the Institute concerned could not have admitted the students in engineering courses since the said students did not fulfill the minimum required educational standards prescribed by the State Government. It is submitted that 33 out of 40 students admitted by the respondent No.2 Institute in Special Civil Application No.8231 of 2004, did not have the minimum 45 per cent marks required in 12 std. examination which standard is prescribed by the State Government and the University is therefore justified in refusing to enrol the said students. Similarly, it is canvassed that the 18 students who were plaintiffs before the Trial Court out of which the proceedings of Special Civil Application No.8230 of 2004 is arising also did not possess the minimum of 45 per cent marks in 12 std. examination as specified by the State Government for seeking admission to engineering courses. 6. By resolution dated 6th May 2003, the State Government formulated rules for granting admission to engineering degree and diploma courses as well as in pharmacy degree (B.Pharm) and pharmacy diploma courses in the State of Gujarat to be made applicable from the academic year 2003-04. As per rule 4 of the said Rules minimum educational qualification was prescribed and it included passing of 12th std. examination with specified subjects. Rule 5 of the said Rules provided that the students belonging to Scheduled Castes, Scheduled Tribes and Socially and Educationally Backward Classes must have a minimum of 40 per cent marks in theory papers in the specified subjects mentioned in rule 4. For the general category and other categories of students, the minimum required standard was 45 per cent in place of 40 percent required for the above mentioned reserved category of students. 6.1 Apart from providing minimum qualifying marks to be obtained for seeking admission to Engineering and Pharmacy courses, the said set of rules also provided for detailed procedure to be adopted for granting of admissions to self-financed institutions in the State of Gujarat. 6.2 By a resolution dated 9.5.03, certain additions were made by the Government in its earlier resolution dated 6.5.03. Certain minor modifications were also made by a resolution dated 12th May 2003 with which this Court is not directly concerned in the present petition. 6.3 By a resolution dated 1st July 2003, the Government of Gujarat provided for certain fee structure to be followed by the self-financed Institutions and provided for the maximum ceiling of fees to be charged by such Institutions for different courses and provided for two separate limits which such Institutions could charge as fees in case of general seats as compared to seats filled up by the management. Simultaneously, the said resolution also provided that 85 per cent of the total seats in each course shall be treated as general seats to be filled in accordance with the merit of JACPC and the self-financed Institutions were permitted to fill up 15 per cent of the seats on their own. It was provided that while filling up 15 per cent of the seats also the Institution shall strictly maintain the principles of transparency through wide publicity and maintain merit. 7. The above two Government Resolutions dated 6th May 2003 and 1st July 2003 came to be challenged before this High Court along with certain other resolutions of the Government pertaining to the same subject matter and this Court in a group of petitions was pleased to admit the petitions and grant certain interim orders. It may be noted at this stage that there is virtually no dispute about the fact that the entire focus of challenge in the said group of petitions was with respect to the fee structure set out by the State Government in its resolution dated 1st July 2003 as well as against the process of granting admissions to such self-financed Institutions which provided for allotment of only 15 per cent seats for the management quota. After considering the rival submissions, learned single Judge while admitting those petitions by the order dated 28/29th August 2003, was pleased to pass the following order: "17. In view of the prima facie observations, I am inclined to pass the following orders: (1) All these petitions deserve to be admitted and hence RULE. By way of interim orders it is directed that- (a) The Government Resolution vide No.MCG-1003-1869-J dated 28-5-2003 or such Government Resolution fixing the fee structures shall remain stayed qua the concerned petitioner colleges on condition that the concerned petitioner colleges file undertaking on or before 2-9-2003 to be abided by and to comply the following conditions: (i) That the concerned petitioner colleges shall not collect the fees from the students who are granted admission either in the Government Quota or in the Management Quota more than the amount as prescribed and shall collect the fees in the manner provided both as per the said Resolution dated 28-5-2003 or such other concerned resolution. However, the collection of such amount of fees, etc., shall be subject to the finalization of fee structures by the Committee which may be constituted as per the decision of the Apex Court in the case of "Islamic Academy of Education" (supra) (hereinafter referred to as the "Special Committee".) (ii) That it will be open to the concerned petitioner colleges to take bond from the students while giving admission to the effect that he/she shall pay up the balance amount of fees within one month, if required, as per the finalization of such fee structures by the aforesaid Special Committee. (iii) That the concerned petitioner colleges shall refund the balance amount to the students within one month, in the event of fee structures being reduced by the aforesaid Special Committee than the fees provided as per the resolution dated 28-5-2003 or such resolution. (iv) That in the event of any delay in finalization of fee structures of the concerned petitioners by the aforesaid Special Committee, beyond one month prior to the last date of submission for appearing in the last examination of such study course, it would be open to the concerned petitioner colleges to collect the difference of amount by cheque/demand draft, if any, between the fees proposed to be approved and the fees actually collected from the concerned students, but such amount shall be deposited by the concerned petitioner colleges with this Court within one week from the date of such collection and the concerned students shall also be intimated accordingly. (v) That all payments shall be received by the petitioner colleges from the students preferably by cheque/demand draft/pay order and no payment shall be received by the petitioner colleges without issuance of proper receipt, to the concerned students. (b) The Government/University Rules for admission for the year 2003-04 for the concerned study courses shall operate qua 50% of the approved intake capacity/seats of the concerned petitioner colleges and it will be left to the competent authority of the Government to fill up 50% of the aforesaid seats as per the policy of the State Government prevailing in the State for reservations of all category/class or other such policy in the matter of grant of admission of students to such course. However, such students who are admitted by the Government on 50% seats shall have to be abided by the direction (a) above and the concerned petitioner colleges shall also be at liberty to insist for consequential bond etc., as per the aforesaid direction (a). (c) The Government/University Rules for admission for the year 2003-04 for such study courses shall remain stayed for the 50% of the approved intake capacity/seats of the concerned petitioner colleges on condition of petitioner colleges filing undertaking to be abided by and to comply the following conditions: (i) That the petitioner colleges shall give admission to the concerned eligible students as per the comparative merit list prepared by the Committee constituted as per the Government Resolution dated 3-5-2003 or any other such Committee as the case may be. (ii) That the petitioner Colleges shall be at liberty to choose or give preference to the students of equal merit as per the aforesaid common merit list. Such students who are admitted by the petitioner colleges shall also have to be abided by the direction (a) and the concerned petitioner colleges shall be at liberty to insist for consequential bond etc., as per the aforesaid direction (a). (d) The State Government shall take steps for constitution of aforesaid committee as per the decision of the Apex Court preferably within a period of one month from today. (e) After the constitution of such committee, the concerned petitioner Colleges shall apply to the committee for approval or finalization of the fee structure and it is hoped that such committee shall finalize the fee structures within three months from the date of receipt of such proposal. (f) Any decision of 15% quota of the management by the Director of Technical Education or Higher Education shall not operate further, in view of the 50% quota provided as per the direction (c). (g) The Secretary, Education Department of the State Government shall mark at least one Officer not below the rank of Deputy Director, Education for taking necessary steps for verifying the compliance of the present interim order and for bringing it to the notice of the Court in case any breach or contravention is made by any person concerned. (h) So far as the petitions of SCA No.8131/2003 and SCA No.8476/2003 is concerned, the same are pertaining to B.Ed. Course and, therefore, the aforesaid all directions shall apply to such petitioners also with the modification that instead of "Government Resolution dated 28-5-2003" it shall stand substituted by the "Government Resolution No.NCG/1103/2112/KH dated 6-6-2003" and instead of "Government Rules for admission of 2003-04" the words shall stand substituted by "Rules framed by the concerned University for admission to study courses". Further direction (c) would operate in the same manner, except that in place of 50% it will be 35% since 15% seats are already filled up and the comparative merit of the students in the merit list prepared by the University referred to in the Government Resolution dated 6-6-2003 shall be considered for admission. It would also be open to the present petitioner colleges, after giving undertaking, to take bond or collect the difference and deposit the same, if such contingencies arise, from the students who are already granted admission either in the Government quota or in the management quota. (i) It would be open to the State/concerned University/concerned Authority to allow any other self-financed colleges to fill up the seats of study courses for the concerned Colleges for the academic year 2003-04 in the same manner as similarly situated persons like petitioner colleges, if such colleges agree to be abided by the same condition as mentioned in all earlier directions but such undertaking or deposit of the amount shall be to the State Government/concerned University/concerned Authority, as the case may be, with the further stipulation that in the even of any of the breach or terms of the undertaking, it would be competent for the State Government /concerned University/ concerned Authority to take steps for de-recognition or non-affiliation, as the case may be. (j) Any action pursuant to the interim order by both the sides shall be subject to further or final order which may be passed by this Court. (k) That the admission process which are subject matter of these petitions be finalized at the earliest by all concerned, in accordance with law. (l) All Ad-interim order pending the petitions passed earlier than the present order would not survive and shall stand modified by this order." The said interim order passed by the learned single Judge on 28/29th August 2003, came to be challenged by the aggrieved parties and the Division Bench of this Court by its order dated 5th September, 2003 passed in Civil Application No.6194 of 2003 in LPA No.863/03 was pleased to confirm the interim order passed by the learned single Judge subject, however, to certain minor modifications. The operative portion of the order of the Division Bench in the abovementioned Civil Application reads as follows: "4. Accordingly, operation and implementation of the Government Resolutions dated May 6, 2003 and July 1, 2003 is stayed on the following conditions: (i) The Management Committee shall open a Bank Account in the State Bank of India having its Branch in the High Court of Gujarat Complex, Sola, Ahmedabad, within eight days from today. (ii) The Joint Admission Committee, which is to collect initial fees of Rs. 15,000.00 (Rupees fifteen thousand only) from each concerned student shall remit the amount collected from each student to the above mentioned branch of the State Bank of India and deposit in the account, which may be opened by the respective institute/college. (iii) The Association of Management shall notify fee structure in respect of each concerned institute/college to the Joint Admission Committee for Professional Courses during the course of the day. (iv) The students opting for the concerned institute shall pay/deposit fees in the above mentioned bank account of concerned institute/college as per its fees structure by Demand Draft/Banker's Cheque after deducting the amount of Rs. 15,000.00 paid to the Joint Admission Committee for the Professional Courses. (v) The Demand Draft/Banker's Cheque shall be deposited by the concerned student in the Account of the concerned institute/college which is going to be opened in the above mentioned Bank pursuant to this order. (vi) After the amount is deposited by the student concerned in the Account of the concerned institute/college, the same shall be at liberty to withdraw the amount of fees prescribed by the Government in Government Resolution dated July 1,2003 i.e Rs. 21,000.00 per annum per student so far as Engineering Degree Course is concerned; Rs. 21,000.00 per annum per student so far as Degree Pharmacy Course is concerned; Rs. 21,000.00 per annum per student so far as Architecture Degree Course is concerned; Rs. 15,000.00 per annum per student so far as Diploma Engineering Course or Diploma Pharmacy Courses is concerned. (vii) The balance amount of the fees paid by the student concerned shall remain with the Bank which shall not be permitted to be withdrawn and the said amount may be invested by the Bank in the fixed deposit so that the amount earns interest. (viii) The aforesaid deposit of the balance amount of fee shall be subject to approval of final fees structure of the concerned institute/college by the Committee to be appointed as per the directions of the Supreme Court in Islamic Academy of Education & Anr. V. State of Karnataka & ors.JT 2003 (7) SC 1. (ix) Each of the institutes/colleges is directed to file an undertaking before this Court within eight days from today stating that if the fees structure of the concerned institute/college is higher than the fees which may be fixed by the Committee to be appointed pursuant to the above mentioned decision, the concerned institute/college shall refund the excess amount received by the same from the student concerned within one month from the day of finalisation of fees structure by the Committee. (x) If the fees structure suggested by the concerned institute/college is not finalised by the Committee to be appointed as per the judgement of the Supreme Court in Islamic Academy of Education & Anr. (supra) within six months, it would be open to the concerned institute/college to apply to the Court for permission to withdraw further amount. (xi) So far as institutions imparting education in MBA, MCA, PGDBM are concerned, they shall also be governed by the directions mentioned hereinabove and shall comply with the directions accordingly. The fees structure for these courses would be as under:- Rs. 21,000.00 per annum per student for MBA Course. Rs. 21,000.00 per annum per student for MCA