1 CWP No. 17284 of 2008 HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. *** CWP No. 17284 of 2008 Date of Decision: 21st November, 2008. *** Association of Education Colleges (Self Financing) of Haryana, registered office at Swami Devi Dyal College Campus, Village Golpura, Barwala District Panchkula through its General Secretary V.K.Sharma, Tulsi College of Education for Women, Hisar Road, Ambala City. ....Petitioner. Versus 1. State of Haryana through the Secretary to Government of Haryana , Department of High Education, Haryana, Chandigarh and others. ...Respondents. *** CWP No.16171 of 2008 The Self-Financed B-Ed Colleges Association Punjab (Regd.) Versus The State of Punjab and 2 others …. CWP No.18922 of 2008 Kirandeep Kaur and 5 others Versus State of Punjab and others. CWP No. 16893 of 2008. Divya Shiksha Gurukul College of Education Vs. State of Punjab and another. CWP No.14116 of 2008 New Gobind Public Welfare Society and another Vs State of Punjab and others. …. CWP No.17376 of 2008 H.K.L.College of Education and 19 others Vs. State of Punjab and others. *** 2 CWP No. 17284 of 2008 CWP No.16860 of 2008 Sewa Devi S.D.College of Education Versus State of Punjab and others …. CWP No.17315 of 2008 M.R.College of Education and others Vs. State of Punjab and another. …. CWP No.18933 of 2008 Ishwar and others Versus State of Haryana and another …. CWP No.19480 of 2008 Sushila Devi and 6 others Versus State of Haryana and others …. CWP No.17938 of 2008 Narender Kaur and others Versus State of Haryana and others …. CWP No.19541 of 2008 Amita Singh and others Versus State of Haryana and another …. CWP No.19585 of 2008 Ruchika and others Versus State of Haryana and another …. CWP No.18859 of 2008 Shashi Mehta and others Versus State of Haryana and others …. CWP No.18980 of 2008 Geetu and others Versus State of Haryana and others …. CWP No.19040 of 2008 Anju and others Versus State of Haryana and others …. CWP No.19207 of 2008 Kiran Yadav and others Versus State of Haryana and others …. CWP No.19232 of 2008 3 CWP No. 17284 of 2008 Meenakshi Nadal and others Versus State of Haryana and another …. CWP No.19254 of 2008 Vanita Rohawal and others Versus State of Haryana and another …. CWP No.19268 of 2008 Meenu Datta and others Versus State of Haryana and others …. CWP No.19300 of 2008 Sarita Kumari and others Versus State of Haryana and another …. CWP No.19312 of 2008 Uma Rani and others Versus State of Haryana and another …. CWP No.19341 of 2008 Kavita and others Versus State of Haryana and others …. CWP No. 19618 of 2008 *** Isha and others Versus State of Haryana and others. *** Present: For the Petitioners. Shri Rajiv Atma Ram, Sr.Advocate, with Shri Daman Dhir, Advocate. Shri Mukul Aggarwal, Advocate, for Shri Ashok Aggarwal, Sr.Advocate, for the petitioners. Shri Animesh Sharma,Advocate; Ms. Madhu P.Singh, Advocate. Mr. Animesh Sharma, Advocate; Shri R.K.Girdhar, Advocate; Shri Anil, Chawla, Advocate; Shri Vijay Sharma, Advocate; Shri Manjeet Singh, Advocate; Shri Rajbir Sehrawat, Advocate; Shri Rakesh Nehra, Advocate; Shri Manjeet Singh, Advocate; Shri Sanjiv Dahiya, Advocate; 4 CWP No. 17284 of 2008 Shri S.P.Khatri, Advocate; Shri Varun Gupta, Advocate; Shri J.S.Thind, Advocate; Shri Hari Om Attri; and Shri Akshay Bhan, Advocate. FOR THE RESPONDENTS. Shri Salil Sagar, Addl: A.G.Punjab; Shri Kanwaljit Singh, Senior Advocate with Ms. Aman Sibia, Advocate. Shri Vinod S.Bhardwaj, Advocate; Shri Rameshwar Malik, Addl: A.G.Haryana' Dr.Balram Gupta, Sr.Advocate, with Shri Anurag Goyal, Advocate; and Shri S.S.Brar, Advocate. **** CORAM: Hon'ble Mr. Justice T.S.Thakur, CJ and Hon'ble Mr. Justice Jasbir Singh. *** T.S.Thakur, Chief Justice In a country with a population of over one billion, the problems generally arise out of scarcity of resources and infrastructure. That is true even in regard to seats available in educational institutions where candidates seeking admission more often than not far exceed the number of vacancies available. The present batch of petitions however present a different scenario. The problem here is not of scarcity but one arising out of plenty. There are more seats in different colleges offering Bachelor of Education (B.Ed) courses in the States of Punjab and Haryana than the candidates seeking admission against the same. This situation has arisen entirely due to setting up of a large number of institutions in this region. It is common ground that in the State of Haryana alone there are 456 colleges offering B.Ed course to candidates as against 176 such institutions in the State of Punjab. The total number of seats available in these institutions is so large that even when the last candidate who appeared in the Common Entrance Test (CET) for admission is admitted to the course, thousands of seats have remained unfilled. What should 5 CWP No. 17284 of 2008 happen to these seats is the real question that falls for determination in these petitions. While, according to the Association of Self Financing institutions established in Punjab and Haryana who are petitioners in C.W.P No. 16171 of 2008 and CWP No. 17284 of 2008, such seats ought to be filled up by admitting candidates who are otherwise eligible for such admissions, the respondents opposed any such admission not only on the ground that admission sought to be made only through the medium of Common Entrance Tests but also on the ground that any admission made at this belated stage, is likely to affect the academic standards and the calendar fixed by the University. Before we advert to the merits of the contentions urged on either side, we consider it proper to set out in brief the factual back-drop in which the controversy arises. For admission to B.Ed institutions in the State of Haryana, the government authorized respondent No.3- Kurukshetra University, Kurukshetra to invite applications from eligible candidates for taking the Entrance test which would then become the basis of admission to those emerging successful. As many as 42704 candidates applied for admission in response to the said notification for admission against a total of 53000 seats available in 456 colleges in the State. A total number of 41103 candidates actually appeared in the CET examination held on 18.08.2008. The result of the examination was declared on 18.9.2008 and since no minimum qualifying marks were prescribed for being declared successful, all the candidates who had taken the examination were found eligible for admission. The number of those who filled in their option forms for counseling, was however not more than 30585. It is also common ground that around 25000 candidates only appeared for counseling and were admitted, thereby leaving as many as 28000 seats vacant and un-filled. It was in the above back ground that the petitioner Association of Self Financing Colleges from the State of Haryana filed a representation 6 CWP No. 17284 of 2008 before the Kurukshetra University, Kurukshetra for permission to fill up the vacant seats on the basis of merit of the candidates in the qualifying examination. The said representation was, however, rejected by the University in terms of a communication dated September 19, 208 on the ground that only such students as had appeared in the Entrance Test, could be admitted to the colleges and that no digression from that Rule was permissible. Aggrieved by the rejection of its request, the Association of Colleges has filed Writ Petition No. 17824 of 2008 in this Court inter alia for a writ of certiorari quashing the order passed by the university and for a mandamus directing the respondents to permit the member colleges of the society to fill up the vacant seats on the basis of merit of the candidates in the qualifying examination. Apart from the writ petition filed by the Association, there are as many as 14 other petitions bearing Nos. 18933, 17938, 19541, 19585, 18859, 18980, 19040, 19207, 19232, 19254, 19268, 19341, 19312 and 19300 of 2008 filed by candidates who were unable to take the CET but who otherwise claim to be eligible for admission as they fulfill the condition of eligibility stipulated in the prospectus issued by respondent No.3- Kurukshetra University, Kurukshetra. In addition Civil Writ Petition No. 17315 of 2008 is filed by four other colleges offering the B.Ed course in the State of Haryana, making a common cause with each other and the Association for permission to fill up the seats that are lying vacant and un- utilized with them. The position is no different in the State of Punjab where also applications were invited for admission to the B.Ed institutions through the medium of a Common Entrance Test to be held by respondent No.2- Punjabi University, Patiala. It is not in dispute that as against 35000 candidates who appears in the CET for admission against a total of 20120 7 CWP No. 17284 of 2008 seats in 163 colleges advertised as per the prospectus, only about 12000 candidates qualified for admission. This means that there are as many as 8000 or so seats still vacant in different colleges situate in the State of Punjab which will go abegging if the colleges are not allowed to fill up the same from out of candidates who had not appeared in the CET. Writ Petition No. 16171 of 2008 filed by the Self Financed B.Ed Colleges Association, Punjab seeks a writ of certiorari quashing clauses 8(b) and 9 (1) of the Government Notification dated 17.04.2008 and a mandamus directing the respondents to permit the members of the petitioner society to fill up the vacant seats on the basis of the qualifying examination or on the basis of Entrance test conducted by the petitioner society. In addition, writ petition No. 17315 of 2008 has been filed by M.R. College of Education and four other colleges seeking permission to fill up the vacant seats available with them. Writ Petition No. 18922 of 2008 filed by Ms. Kirandeep Kaur and five other candidates seeks a direction for admission to the B.Ed course in the Colleges established in the State of Punjab. In response to the notice of motion issued by this Court, the State of Haryana has appeared in Writ Petition No. 17284 of 2008 and filed a counter affidavit. Even, respondent No.3, Kurukshetra University, Kurukshetra has filed a reply to the said writ petition, wherein refusal of permission to admit candidates against the available vacant seats is sought to be justified on the ground that the colleges cannot commercialize education simply because the same are Self Financing institutions. It is also stated that keeping in view the large number of colleges that have been recognized it is inevitable that some seats in each college will remain vacant. The University further states that the colleges cannot complete the admission process before December 01, 2008 in which event the candidates would fall short by two months in completing the course of their studies nor would they be able to complete 180 working days stipulated for 8 CWP No. 17284 of 2008 that purpose. It is also stated that the requirement of 180 working days is a statutory requirement which the University would not like to be compromised as the same would affect the academic standards prescribed under the National Council for Teacher Education ( Recognition, Norms and Procedures) Regulations, 2007. In addition requirement of at least 40 days of “practice teaching” is also, according to the University vital and cannot be compromised. The University has also expressed difficulties regarding extension in the academic calendar, as according to it if the teaching schedule is extended the same would result in delay in holding the examination for the B.Ed candidates thereby delaying the admission to M.Ed course also. All told, the counter affidavits filed by the State and the University in Writ Petition No. 17284 of 2008 support the stand taken by the said respondents against the admission of any candidates, at this stage. A counter affidavit has been filed similarly in Writ Petition No. 16171 of 2008 filed for the benefit of the colleges in Punjab in which also the respondents have opposed the prayer made in the writ petition and relied upon the provisions contained in Regulation 9 of the National Council for Teacher Education (Recognition, Norms and Procedures) Regulations, 2007 (hereinafter to be referred to as Regulations, 2007). It is stated that the State Government has issued its policy for the academic Session 2008- 09 in terms of notification dated 17.04.2008 in which a Joint Entrance Examination has been prescribed under which a candidate can be held successful in the entrance examination only if he scores at least 30% marks in CET for a general category candidate and 25% marks for those from SC/ST category. The counter affidavit further states that while instructions have been issued by the Government not to insist upon the requirement of 30% marks in CET for candidates admitted against management quota the rest of 85% admissions can be granted only in 9 CWP No. 17284 of 2008 case the candidates have passed their Entrance test with the minimum percentage stipulated for that purpose. Grant of admission to candidates who have not appeared in the CET, would not according to the respondents be permissible and would tantamount to admitting students not otherwise eligible for such admissions which could in turn lower the academic standards and affect public interest. Respondent No.2-Punjabi University, Patiala has also filed a counter affidavit and opposed the prayers made in the writ petitions inter alia on the ground that classes for the Session 2008-09 have already been started and a part of the syllabus already completed. Any relaxation to the institutions and any admission of candidates at this stage would adversely affect the academic schedule of the University. We have heard learned counsel for the parties at considerable length and perused the record. In so far as colleges established in the State of Haryana are concerned, admissions to the same are regulated by the Rules and Norms set out in the prospectus issued by respondent No.3 - Kurukshetra University, Kurukshetra. Two distinct features emerging from the said prospectus need to be noticed at the very out-set. In the first place, the prospectus does not give an exhaustive list of Self Financing Colleges for whom the selection process is undertaken by the University. As a matter of fact the prospectus enlists a large number of colleges in the State of Haryana in Annexure XVI forming part of the said document. A reading of the Annexure shows that the updated list of Colleges of Education had to be provided at the University Website at the time of counseling. Annexure XVI to the prospectus also made it clear that the number of colleges as well as the number of seats in a specific college could increase or decrease at the discretion of the competent authority and the university . Paras 3 and 4 appearing in Annexure XVI are in this regard relevant and may be 10 CWP No. 17284 of 2008 extracted:- 3.Updated list of Colleges of Education will be provided at the time of counseling on University Website http://www.kukinfor.com. 4. The No. of Colleges as well as the No. of seats in a specific college may increase or decrease depending upon the decision by the competent authority depending upon university notification. For example, notified by Kurukshetra University, Kurukshetra vide letter No. CG-VI/08/3217-3333 dated 19.04.2008”. It is thus evident that the list of colleges for whom the admission process was undertaken by the University was not exhaustive. As a matter of fact, Colleges could be included in the Counseling for the Session 2008-09 upto September 16, 2008. This is clear from the following para appearing in the prospectus:- “No private College which obtains recognition from NCTE after the date of 2nd Counseling i.e. September 16, 2008 shall be included in the Counseling for the session. Therefore, such colleges may submit their request for inclusion in the counseling process before the date of 2nd Counseling i.e September 16, 2008”. Consistent with the terms of the prospectus, the Kurukshetra University, had issued an“INSTRUCTION BOOKLET” in which the particulars of the Colleges including the number of seats available in the same was indicated. The total number of Colleges included in the said Instruction Booklet is around 456. It is in the light of the above, difficult for us to appreciate how the respondent university can argue that seats that remain vacant after admitting all the candidates, who appeared in the CET are referable to those available in the institutions established after 16.09.2008. The true position is that the unfilled excess seats are available in the Colleges which the University has recognized in the prospectus and 11 CWP No. 17284 of 2008 the Instruction Booklet issued by it. We, therefore, have no hesitation in rejecting the contention urged by Mr. Gupta counsel for the university that the vacant seats are in Colleges that have come up subsequent to the issue of the prospectus and could not, therefore, be taken into consideration for the issue of any direction by this Court. The vacant seats that remains unfilled are actually available in the very same Colleges that have already been notified and included by the respondent University and against which the University has itself made admissions, based on the CET. The other aspect that stands out prominently is that all the Colleges included in the list published by the University are recognized by the NCTE and affiliated to one University or the other. This implies that seats available in the said Colleges are duly supported by the infrastructural requirements stipulated by the NCTE. There is no gain said that availability of seats in educational institutions is a valuable resource, which should not go waste, subject to fulfillment of other requirements including maintenance of academic standard. The non-filing of available seats will not even otherwise benefit the affiliating University, the Institutions or the candidates in any way, nor would filing of such vacant seats cause any harm to any one of them. This position was accepted even by Mr. Gupta, appearing for the affiliating University, who argued that while refusal of permission to fill up the vacant seats will not help anyone, filing up of these vacant seats at this stage, may lead to dilution of academic standard and disturbance of academic calendar fixed by the affiliating University. Mr.Gupta, was however, unable to explain as to why the respondent-University had not been able to fore-see a situation in which the number of candidates applying for admissions through NCTE may be less than the number of seats that were available in the Colleges. According to Mr. Gupta, experience of immediate past year had not given rise to any such anomaly and 12 CWP No. 17284 of 2008 the current situation has taken the University's authorities by surprise. That explanation does not appear to be wholly acceptable. With a very large number of Colleges coming up in the State of Haryana and the number of seats available in the same going up considerably, the University ought to have known better. It should have realized that as against 59390 seats available for admission, the total number of candidates, who had applied was only 42,704. This meant that there was an excess of nearly 17000 seats even on the last date for the receipt of the applications. The University could, therefore, well anticipate a situation where the number of candidates applying for admission through CET was less than the number of seats available in the Institutions and should have made a provision for filling up of such seats in a manner that would ensure that eligible and meritorious students get admitted to these Institutions against such excess seats. It could make a provision that in case seats remain vacant, even after all the candidates, who have applied for admission, through CET were admitted, the Colleges shall be free to admit students of their own provided that they were otherwise eligible for such admissions. It may even have made a provision that such excess seats may be filled by the University on its own from one of eligible candidates. Nothing of that sort was done by the University. This resulted in confusion not only amongst the Colleges but even the students, who are eligible but may not have, for one reason or the other, appeared in the CET. Suffice it to say that the situation with which we are faced is not attributable to the Colleges where seats have remained unfilled. It is on the contrary attributable to the University because of whose failure to make specific provisions for filling of the excess seats we have a spate of writ petitions before us. The next question then is whether this Court should permit admissions or let the available seats go waste, Which out of the two options would serve the ends of justice is the only question that detained us. If one were to adopt a pedantic and hyper technical approach, one could say that admissions need not be made at this stage as the University’s apprehension of dilution of academic standards and disturbance of academic calendar should not 13 CWP No. 17284 of 2008 be disregarded. The wisdom behind that approach however, appears out- weighed by the compelling need to avoid the wastage of seats and denial of an opportunity to eligible students to get admitted against the same. It is true that academic standard needs to be maintained and academic decisions by expert bodies respected as far as possible, but it is equally true that when admissions are delayed, a certain amount of adjustment can and ought to be made by the Institutions as also the affiliating University. These adjustments do not, however, necessarily dilute the academic standard as is apprehended by the University in the instant case. The Institutions are ready and capable of making up the requisite number of working days by holding special classes for the students, who have joined late. The admission granted at this stage will not also require the University to compromise on the 40 days practice teaching or the percentage of lectures, which a student must have for being declared eligible for taking the examination. It is noteworthy that candidates admitted to a session has to perform by the same standard as is required of the other candidates in order to be declared successful in the examination. If a student, otherwise admitted late, is unable to come up to the standard of the University, he/she will be declared unsuccessful. Super-added to the above is the fact that the number of students, who may even now seek admissions, may not be very large to require holding of any test to determine their inter-se merit for grant of admission. The argument advanced by Mr. Gupta that the Colleges may have to hold independent CET for granting admissions, which may delay the completion of admission process, is in our opinion, misplaced. Such a situation could arise only where the number of students applying is more than the number of seats available in the Institutions. That, however, is not the position in the instant case. Even so, the apprehension that lesser merited students may be admitted while ignoring meritorious students, can be allayed by directing that the Institutions shall grant admissions strictly in accordance with the merit in the qualifying examination, which is one of the recognized norms for granting such admissions. That brings us to the writ petitions filed by the Institutions established in the State of Punjab. The ground situation in Punjab, as already 14 CWP No. 17284 of 2008 noticed, is no different from that in the State of Haryana. The number of seats in Punjab is far more than the number of candidates seeking admissions through CET. It was, however, argued on behalf of the respondents in cases relating to State of Punjab that the prospectus issued by the University required candidates to score a minimum of 30% marks in the CET. It was submitted that the Government had, no doubt, relaxed the requirement of cut-off