1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:05.09.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.5194 of 2011 AND M.P.(MD)NO.1 OF 2011 M.Ajmal Husain : Petitioner Vs. 1.The Director of Technical Education, Guindy, Chennai -25. 2.The Registrar, Anna University Tiruchirappalli, Government College of Engineering Campus, Tiruchirapalli - 627 007. 3.The Principal, MNSK College of Engineering, Dhatchinapuram, Vallathirakottai Post, Alangudi Taluk, Pudukottai District. : Respondents PRAYER: Writ Petition is filed under Article 226 of the Constitution of India praying for the issue of a Writ of Certiorarified Mandamus, calling for the records of the 2nd respondent made in Letter No.5761/AU- T/REG/SA/2009-07, dated 12.12.2009 and quash the same and consequently permit the petitioner to redo B.E., Computer Science and Engineering Course from 3rd Semester in the 3rd respondent College. For Petitioner : Mr.M.Suresh Kumar For Respondent-1 : Mr.B.Pugulanthi Spl.Govt.Pleader For Respondents : No Appearance (R2 and R3) O R D E R Being aggrieved by an order, dated 12.12.2009, of the Registrar, Anna University, Tiruchirappalli, the second respondent herein, directing the Principal, MNSK College of Engineering, Dhatchinapuram, Vallathirakottai Post, Alangudi Taluk, Pudukottai District, the 3rd respondent herein, with a copy marked to the petitioner, to obtain (i) Court order for legal guardian status and (ii) Photo copy of 1000 USD paid, for obtaining the Provisional Eligibility Certificate, the petitioner has come forward with the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2 2.According to him, immediately after the completion of Higher Secondary Examination in March, 2009 and before the results could be published, the Engineering Colleges in the State of Tamil Nadu, started issuing applications for admission to degree courses. The petitioner applied for admission to first year Engineering admission in May 2009, against 15 seats reserved for NRI sponsored candidates. The petitioner's maternal uncle, Mr.Syed Ibrahim, is a Non Resident Indian, sponsoring his studies. The petitioner's mother is employed at Singapore. His father died in Dubai on 25.05.1998 and thereafter, the petitioner's uncle, takes care of the petitioner and his studies. According to him, he has paid necessary fees with the 3rd respondent and that his admission was confirmed under NRI Quota. As per the instructions of the 3rd respondent College, he had submitted the following documents:- i. Sponsorship Letter, ii. Relationship Certificate iii. Employer Letter iv. Embassy Letter, v. NRE Bank Statement, vi. Evidence for payment of development Charges of US$1000/- vii. Copy of Indian Passport and viii. Nativity Certificate Sponsor. 3.It is the further case of the petitioner that the 3rd respondent has given admission, in the 1st year B.E., Degree (Computer Science and Engineering) in the Academic year 2009-2010. He has also paid the necessary fees to the College. The petitioner has further submitted that the 3rd respondent College is affiliated to Anna University, Tiruchirappalli, the second respondent herein. When the particulars of the petitioner have been forwarded to respondents 1 and 2, by the 3rd respondent, for approval, he was informed that there was a delay in approving his admission, in the light of G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009, wherein, the Government have issued revised guidelines for admission under NRI Quota, in self-financing Colleges. As per the said Government Order, one of the conditions for NRI Quota student is that " the seats under NRI Quota should be utilized bona fide by the NRI's only and for their children or wards. Therefore, NRI financially supporting the candidates should either be the parents (Father or Mother) of the candidate or legally declared as guardian of the candidate by the Court, as per the provisions in "The Guardians and Wards Act, 1890". 4.The object of the above said Government Order appears to be that NRI Quota should not be misused or abused by the candidates and by the respective Engineering Colleges. According to the petitioner, he is a genuine person, seeking admission under NRI Quota and after demise of his father, the entire education is being sponsored only by his uncle Mr.Syed Ibrahim. He has further submitted that he has approached the District Munsif, Ramnad in O.S.No.208 of 2009, for issuance of Guardianship Certificate, which is still pending. It is the further case of the petitioner that the University has not issued the Hall-ticket for the first semester examination and therefore, the petitioner filed W.P.(MD) No.301 of 2010 before this Court. Pursuant to the interim direction granted by this Court, the petitioner wrote the first semester examination, held during June 2010. Similarly, when the petitioner was https://hcservices.ecourts.gov.in/hcservices/ 3 not permitted to write the second semester examination, again he was constrained to file W.P.(MD)No.7075 of 2010 and on the basis of the interim direction, he has written the second semester. However, the results have not been published sofar. The petitioner has further submitted that at the time of admission, the 3rd respondent College did not insist for any Guardianship Certificate. According to him, he has paid huge amount for admission and that he is a genuine candidate. Neither the college nor the petitioner had any intention to misuse or abuse the NRI Quota. 5.Inviting the attention of this Court to a common order passed by a batch of Writ Petitions in W.P.(MD)Nos.8167 of 2009 and etc., batch, dated 26.11.2010, learned counsel for the petitioner submitted that when many students have been denied provisional eligibility, they were constrained to challenge the Government Order in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009 and consequently, sought for a direction to the respondents therein, to allow them to pursue B.E., courses, in their respective Colleges. He further submitted that one of the grounds inter alia raised, while challenging the said Government Order was that admission of the students have been made well before the guidelines were issued by the State Government in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009 and none of the relatives have produced any declaration stating that, the students were Wards under the Guardians and Wards Act, 1890 along with appropriate Court orders to prove their legal guardian status. He also submitted that though, after considering the power of All India Council for Technical Education and the Government of Tamil Nadu, to issue such guidelines, for regulating the admission, for persons of foreign National and persons of Indian origin NRIs and other various Government Orders issued from time to time, this Court upheld the validity of the abovesaid Government Order and while considering the plea of the students, gave a direction to continue their engineering courses in the colleges, as if their admissions were valid and also imposed a cost of Rs.1,00,000/- to be paid by each one of the Engineering Colleges, which violated the guidelines issued in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009, to the Government. Learned counsel for the petitioner submitted that though the petitioner has completed the first year engineering course in 2010, he could not pursue the course on account of the impugned order. Therefore, he prayed for similar benefits granted to other NRIs. 6.Mr.B.Pugalendhi, learned Special Government Pleader, who appeared on behalf of the Director of Technical Education, Chennai, has submitted that when G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009, has been upheld by this Court, it is obligatory on the part of the petitioner to produce the Guardianship Certificate from the competent Court. He further submitted that the reason for giving the concession to the students in W.P.(MD)No.8167 of 2009 etc., batch, dated 26.11.2010, continue the course was that the students therein were pursuing 4th semester of the Engineering Courses. As the petitioner in the present writ petition, is not pursuing the course, he prayed that the concession given to the students therein, on humanitarian ground, need not be extended to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ 4 7.Though, the name of learned counsel appearing for the second respondent University and the 3rd respondent College have been shown in the cause-list, there is no appearance. Respondents 2 and 3 have not filed any counter affidavit. 8.Heard learned counsel appearing for the writ petitioner and the learned Special Government Pleader (Education) and perused the materials available on record. However, counter affidavits have been filed by the University as well as by the respondent College. 9.Before adverting to the facts of this case, it is necessary to consider the averments and the observation of the learned single Judge of this Court, who had considered the challenge regarding the validity of G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009. At paragraph No.15 of the Judgment, pleadings of the petitioners/students have been summarized as follows:- "However, the petitioner herein ) most of them are currently students and in some cases parents of such students) have approached the respondent Colleges for admissions under the NRI quota. Obviously, the students were not admitted either through the counselling done by the State Government or by the Management against the Management quota , as they were ineligible for admissions under such quotas. The NRI quota only provides for admission for a mere pass in higher secondary education unlike other categories. Therefore, the petitioners would have not got admitted under the merit quota or under the Management quota in view of the earlier eligibility norms. By diluting the norms, they were admitted under the NRI quota on the specious plea that students' distant relatives are living abroad and willing to sponsor them and support for their education. Therefore, they were admitted under the NRI quota. But none of their relatives have got declaration that the students are their wards under the Guardian and Wards Act by an appropriate Court.” 10.While considering the plea that the petitioners therein have got their admission even before the guidelines issued by the State Government in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009, the Court has observed as follows:- "In most of the affidavits, the petitioners' plea was that admissions were made even before guidelines were issued by the State Government by the impugned G.O. Therefore, the G.O must be held to be prospective and not applicable to the present petitioners or wards of petitioners in some of the cases. In the previous guidelines of the State Government, allowing sponsorship of NRI by the near relatives was also permitted. Since these allegations were made in the solemn affidavits which can only be denied by the College, and they having not chosen to deny these allegations and must be taken to be truth. It is these self financing Engineering colleges who are responsible in making such admission even before the academic year began and the admission programmes were notified by the https://hcservices.ecourts.gov.in/hcservices/ 5 State Government which had empowered itself in prescribing guidelines regarding the NRI quota from time to time”. 11.Thus it could be seen from the pleadings and observations in the above batch of writ petitions that the students were sponsored by distance relatives living abroad. None of their relative had obtained a declaration under the Guardian and Wards Act by the competent Court. In the case on hand also, the petitioner has contended that he was admitted even in May 2009, much before the issuance of the Government Order. While holding the validity of the Government Order in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009, this Court issued directions, at para No.30, which reads as follows:- “30.In view of the above, the following findings and directions are issued: (i)The self financing engineering colleges are bound by the admission procedures indicated in G.O.Ms.No.162, Higher Education (J1) Department, dated 02.06.2009. (ii)The G.O. is legally and constitutionally valid. (iii) Inasmuch as the G.O is allowing the admission procedure for 2009- 2010, it cannot be held to be prospective because the very G.O itself is intended to be issued covering the admission procedures for 2009-2010. Hence the contentions of the petitioners are without any legal basis. (iv)Since the petitioners claimed that their admissions were made even before admission programme were started, the self financing engineering colleges will have to be punished by imposing exemplary costs. (v)Since the petitioners and in some cases wards are in the 4th semester of their engineering programme and also they had spent huge amounts, in the absence of any challenge of their admissions by any deserved candidates, they should be allowed to continue their engineering courses in the same college as if their admissions are valid. The authorities are directed to act accordingly. (vi)The self financing engineering colleges whose names are set out in the table in paragraph 17 above, are hereby imposed with cost of Rs.1,00,000/- (Rupees one lakh only) to be paid by each one of them to the first respondent State Government within a period of four weeks from today, so as to act as a deterrent in future years and prevent the misuse of NRI quota. Even though normally the costs are imposed on the losing petitioners, in this case since the petitioners are only Trojan horses, the costs should be only levied against the named respondent self financing colleges who had indulged in illegal acts and have also set up the students to approach this court for getting orders for their continuance in utter disregard of law. (vii)The official respondents including the State Government, Director of Technical Education, the affiliating University and the AICTE are hereby directed to take action in future if the colleges violate the NRI quota and even to cancel their recognition/affiliation which permitted them to run the colleges.” https://hcservices.ecourts.gov.in/hcservices/ 6 12. The only question now remains to be considered is whether the petitioner should be permitted to pursue the Course, as he has not attended the classes after the first year examination and that when the above said judgment has been rendered taking into consideration the plea of the students, who were pursuing the 4th semester of their Engineering Courses, this Court is of the considered view, as there is similarity of facts, the judgment rendered in W.P.(MD)Nos.8167 of 2009 and etc., batch, dated 26.11.2010, can be made applicable to the present writ petition also. and once NRI students have been permitted to pursue their Courses on humanitarian grounds, there is no reason to deviate from the same. Humanitarian approach does not differ from person to person and there cannot be any discrimination. 13.In such view of the matter, the impugned order of the second respondent, dated 12.12.2009, directing the petitioner to obtain a certificate, under the Guardian and Wards Act, is set side and having regard to the contention that the petitioner had already paid a sum of 1000 USD, the respondents 2 and 3 are directed to publish the results of the first year B.E., Computer Science Examinations and the respondents are also directed to permit him to continue the second year B.E. Computer Science in the 3rd respondent College, by receiving necessary fees, if any. 14.With the above said directions, the writ petition is allowed. No costs. Consequently, connected miscellaneous petition is closed. MPK Sd/- Assistant Registrar[AE] /True copy/ Sub Assistant Registrar To 1.The Director of Technical Education, Guindy, Chennai -25. 2.The Registrar, Anna University Tiruchirappalli, Government College of Engineering Campus, Tiruchirapalli - 627 007. 3.The Principal, MNSK College of Engineering, Dhatchinapuram, Vallathirakottai Post, Alangudi Taluk, Pudukottai District. +1 cc to Mr.M.Suresh Kumar, Advocate SR.No.30074. +1 cc to Mr.D.Rajendran, Advocate SR.No.29891. ORDER MADE IN W.P.(MD).No.5194 of 2011 Dated:05.09.2011 6P/6C RPB 09.09.2011 https://hcservices.ecourts.gov.in/hcservices/