1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO 2033 of 2009 Date of decision:20/11/2009 For approval and signature HON'BLE MR. JUSTICE NARESH H.PATIL HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/No. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (B.D.WADNERE) Private Secretary agp/office/22/11/09-wp2033-09 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO 2033 of 2009 1. Dr.Hedgewar Smruti Rugna Seva Mandal Dental College and Hospital, Akole Road, Hingoli, District Hingoli, Through its President. 2. Ku.Priya Sudhir Gupta, Age: 20 years, Occu. Student, r/o Hingoli, Dist. Hingoli. ...PETITIONER VERSUS 1. The State of Maharashtra, through its Secretary, Medical Education and Drugs Department, Mantralaya, Mumbai. 2. The Maharashtra University of Health Sciences, Nasik, through its Registrar. 3. Pravesh Niyantran Samiti, Mumbai, 306, 3rd floor, Government Polytechnic Building, 49, Kherwadi, Alliyawar Jung Marg, Bandra (East), Mumbai, through its Office Secretary. ...RESPONDENTS ... Shri S.R.Barlinge, Adv., for the petitioner. Shri S.K.Tambe, AGP for respondent State. Shri K.D.Bade Patil, Adv., for respondent no.2. Shri M.V.Deshpande, Adv., for respondent no. 3. ... 3 CORAM: NARESH H. PATIL & K.U. CHANDIWAL, JJ. DATE : 20th NOVEMBER, 2009. *** JUDGMENT: (PER K.U.CHANDIWAL, J.) 1. Heard. Rule, made returnable forthwith. 2. The petitioner no.1 started Dental College at Hingoli. The Government of India granted such permission on 17.9.2008 to start the same for the academic session 2008-2009 which has been approved by Government of Maharashtra for the same academic year with intake capacity of 50 students. There was regular affiliation from the University. 3. The petitioner no.1 admitted the petitioner no.2, a student, to the said Dental College with other 20 candidates as against intake capacity of 50. 4. The Pravesh Niyantran Committee, respondent no.3,by its letter dt.25th Feb.,2009, accepted such proposal to the extent of 13 students from 85 per cent quota and did not approve the admission of petitioner no.2, as she has not secured requisite eligible marks as per the eligibility criteria laid down in MH-T- 4 CET-2008, communicated to the petitioner by letter dt.25th Feb.,2009. This action of respondent no.3 - Pravesh Niyantran Samiti is questioned by the petitioners more on humanitarian grounds than the legally vested rights. 5. It was canvassed by the Counsel that since there was delay in the admission process, it was difficult for the Dental College to get students who have acquired requisite marks and, consequently, they accepted the claim of petitioner no.2 on the basis of her performance in MH-T-CET-2006. 6. The policy of respondent no.3 - the Pravesh Niyantran Samiti is based on sound principles of promoting educational up-keepment and standards. It was in this situation that the petitioner no.2 was required for fulfilling the marks condition for the academic year 2008-2009. For the academic year 2008-2009, the marks obtained in MH-CET test held for the year 2006, legally could not have been applied. The procedure does not contemplate that if the seats are turning vacant, ineligible candidates are to be admitted. Such procedure will naturally create hazardous situation and rightly could not be encouraged. 5 7. The affiliation granted to the petitioner no.1 was in Oct. 2008 which, indeed, was indicative that they should have given admission to the candidates from MH-CET-2008. The petitioner no.2 has appeared in MH-CET-2008 and, as per the marksheet her P.C.B. (Physics, Chemistry and Biology) total is 77 which is below 50 per cent of the requisite marks under the policy. The Pravesh Niyantran Samiti was acting in tune to the policy could accommodate 13 candidates from the list, no mala fides can be attributed to them in not considering the candidature of petitioner no.2. The Committee is naturally duty bound to scrutinize the papers. The continuation by petitioner management of the student, inspite of the communication, is in violation of Rule 4.9 of the MH-CET-2008 Rules, issued by the competent authorities. Rule 4.9 contemplates, "A candidate belonging to open category must secure not less than 50 per cent marks in Physics, Chemistry and Biology ( P.C.B.) taken together at Common Entrance test i.e. MH-T- CET-2008". As stated earlier, the candidate (petitioner no.2) has not secured requisite 50 per cent marks in P.C.B. 8. The Counsel for the petitioner took recourse to the judgment in the matter of Krishan V. Kurukshetra University ( A.I.R. 1976 SUPREME COURT 376) our attention is drawn to paragraph 6 no.6 of the judgment. The said criteria will not be available to the petitioner no.2 as the admission was subject to scrutiny by respondent no.3 which has rightly negatived the same in Feb., 2009 itself,and there was no reason for the petitioner no.1 to have violated the Rules. It is not that the petitioner no.2 is allowed to appear for any examination. 9. The judgment in the matter of Deelip V. Marathwada University ( 1984 Mh.L.R. 454) by Division Bench of this Court need not be applied to the facts of the present case. In the case of Deelip, the eligibility certificate was pending from August, 1982 and he was not informed till April 1983, of the defects in the formalities. 10. The petition lacks merit. It is dismissed. Rule discharged. sd/- sd/- (K.U.CHANDIWAL) (NARESH H.PATIL) JUDGE JUDGE ... agp/wp2033-09 Authenticate copy (AG PARALIKAR,PS)