SCA/28823/2007 of PARUL GIRLS' POLYTECHNIC INSTITUTE (CO-EDUCATION) Vs THE STATE OF GUJARAT on 26 December 2007

ORAL JUDGMENT

JUDGMENT

1. Rule. Mr.S.S.Shah, learned Government

Pleader, waives service of notice of

Rule on behalf of all the respondents.

In the facts and circumstances of the case,particularly,sinceitis submitted by Mr.N.D.Nanavati, learned Senior Advocate with Mr.Pradeep Patel, learned counsel for the petitioners, that the examination for the first semester of the concerned disciplines are to commence with effect from 28.12.2007 and, with the consent of the parties, the petition is being heard and finally decided today.

2. At the outset, the learned Government

Pleader submits that the dispute is only regarding the 90 seats which constitute 75% of the total revised intake seats (“State seats” for short) which have been filled up by the petitioner-Institute and that the admissions made by the petitioner-Institute to 25% of total revised intake of the management seats (30 seats) (“Management seats” for short), as well as on 10 seats in the `dropout' category, is not in dispute.

3. This petition, under Article 226 of the Constitution of India, has been filed by the petitioner, i.e. Parul Girls' Polytechnic Institute, which is run by a registered Trust by the name of Parul Arogya Seva Mandal. By way of this petition, the petitioner has prayed for the issuance of a writ of Mandamus or any other appropriate Writ, order or direction to quash and set aside the order dated 29.10.2007 passed by the respondent No.2, whereby the respondent No.2, i.e. the Central Diploma Admission Committee (hereinafter referred to as “CDAC” for brevity) has disapproved of theadmissionsgrantedbythe petitioner-Institute on 131 seats.

Further, a declaration has been sought to the effect that the admissions granted by the petitioner-Institute in the course of Diploma of Mechanical Engineering and Information Technology as just and proper.

4. The brief facts of the case, which emerge from the averments made in the petition as well as the other material on the record, are that the petitioner-Institute is recognized by the State Government and is affiliated to the TechnicalEducationBoard.The petitioner-Institute is running various Diploma programmes in the field of Engineering and Technology. In the month of May 2007, All India Council for Technical Education (“AICTE” for short) published an advertisement for existing Institutes/ proposed Institutes for

increase in the existing “intake capacity” or for new “intake capacity”

of students. Pursuant thereto, the

SCA/28823/20075/34JUDGMENT

petitioner-Instituteappliedfor

increase in intake capacity and also

requested for the change of status of

the Institute from a Girls' Institute

to a Co-education Institute. There is no dispute regarding the fact that for the existing intake capacity of 300 seats in the petitioner-Institute, the process for admission had already started for the academic year 2007-08 and was declared closed on 10.8.2007, by the CDAC. As per the Government Resolution dated 29.5.2004, the State Government has fixed 75% of the intake capacity as the State seats and 25% of the intake capacity as the seats to be filled in by themanagementoftheconcerned Institute. It is averred in the petition that the petitioner-Institute had also surrendered 75% of its seats in all faculties for admission to be granted by the CDAC, and had undertaken to fill up 25% of the management seats through its SCA/28823/20076/34JUDGMENT

own procedure. It is stated in the petitionthatvideorderdated 17.9.2007, AICTE accorded increase in the intake capacity of the petitioner- Institute by 120 seats, i.e. 60 seats each in the faculty of Information Technology and Mechanical Engineering, respectively. The request to convert the petitioner-InstituteintoaCo- educational Institute was also granted. It is further stated in the petition that the admission process had already closed on 10.8.2007, but thereafter, there were vacancies arising out of “dropout” or “non-reporting students” and since there was also an increase in the intake capacity of 120 students, the petitioner Institute, by communication dated 21.9.2007, requested that it be permitted to fill up the vacant seats. It is stated that after protracted correspondence with CDAC, as mentioned in paragraph 3.4 of the petition, the petitioner-Institute, with a view to see that the aspiring students do not lose a valuable year of study, gave an advertisement on 4.10.2007 in the daily newspaper“Sandesh”inviting applicationsfromtheeligible candidates in Diploma courses, including Mechanical Engineering and Information Technology and proceeded to fill up all the vacant seats, including the 11 seats arising out of “dropout” vacancies as well as the 120 seats arising out of the increased “intake capacity” granted to it. According to the petitioner-Institute,theDeputySecretary, Education Department, had issued an order dated 4.10.2007 informing the CDAC

that the power is granted to the Principals of the concerned Institutes to give admission on vacant seats, after the closure of the admission process, and, therefore, on the basis of this internalcommunication between the Deputy Secretary, Education and the CDAC, the petitioner proceeded to issue an advertisement dated 4.10.2007, to

fill up the vacant seats by a transparent method. It is also averred in the petition that the Principal of the petitioner-Institute was pressurized into surrendering the 75% of the State seats in the disciplines of Information Technology and Mechanical Engineering courses, which were increased vide order dated 17.9.2007, by threatening de- recognition. It is further stated that the Principal of the petitioner- Institute gave an Undertaking to surrender the 75% State seats, without consulting the management of the Institute. The case set out by the petitioner is that, by filling up of the vacant seats, including 11 dropout seats and 120 seats pertaining to the increasedintake capacity, the petitioner-Institute has committed no

5. irregularity and therefore, the order dated29.10.2007,whereby,the respondent No.2 has disapproved all the admissions granted by the petitioner is arbitrary and illegal and deserves to be set aside.

An affidavit-in-reply dated 27.11.2007,

has been filed on behalf of the respondent No.3, contesting the claim of the petitioner that the admissions to the vacant seats, including 90 seats comprising 75% State seats have been carried out in a regular and proper manner. It is further stated in the reply-affidavit thatthe admission process conducted by the petitioner is contrary to the order dated 17.9.2007 passed by the appellate committee of the AICTE, whereby, it has been clearly stipulated that admissions on the revised intake capacity shall be granted only by the State Government through its Centralized Counseling and, therefore, the order dated 29.10.2007 is just and proper and does not deserve to be interfered with by this Court. It is stated in the reply-affidavit that the petitioner-Institutehassurrendered 75% of its seats vide letter dated 25.10.2007 and has also filed an Undertaking to this effect, stating therein that it shall fill up the rest of the 25% of the seats comprising the management seats in a fair and transparent manner. The admissions to the 75% surrendered seats comprising the State seats was to be conducted by the CDAC, and the petitioner has wrongly filled up all the seats including the 75% State seats. It is further contended inthereply-affidavitthatthe communication of the petitioner dated 26.10.2007 (Annexure-J to the petition) withdrawing the letter of the Principal as well as the Undertaking referred to

Arguments

admission process vide advertisement dated28.9.2007andthelater advertisement dated 4.10.2007. It is further contended in the reply-affidavit that the petitioner has thereby tried to mislead the CDAC by not disclosing the fact that the admission process had already been started by it, even before the permission to do so had been accorded by the State Government. On the other hand, the admission process regarding the 90 State seats had already been started, and was completed on 30/31.10.2007, whereby the said 90 seats have been filled up by the CDAC on the basis of the merit list prepared by the CDACbyconductingCentralized Counseling and, therefore, the admission process conducted by the petitioner for all the seats, including the 90 seats falling in the State seats (being 75% of the 120 increased intake seats), is neither just nor proper and therefore, the petition deserves to be dismissed.

6. An additional affidavit has also been filedbythepetitionerlargely reiterating the stand taken in the petition and an affidavit-in-rejoinder has also been filed re-asserting the submissions made in the petition and denying the contentions raised in the reply. A sur-rejoinder has been filed by the respondent No.3 to the rejoinder filed by the petitioner and an additional affidavit, was submitted on the last date of hearing, i.e.

24.12.2007, with a copy to the other

side, which is taken on the record of the case.

7. I have heard Mr.N.D.Nanavati, learned Senior Advocate with Mr. Pradeep J.Patel, learned counsel for the petitioner and Mr.S.S.Shah, learned

Government Pleader with Mr.Dipen Desai, learned Assistant Government Pleader for the respondents, at length and in great detail and have scrutinized the entire material on the record.

8. Mr.N.D.Nanavati, learned Senior Advocate with Mr.Pradeep J.Patel, learned counsel for the petitioner, has forcefully submitted that there is no irregularity in the admission process conducted by the petitioner since the same has been done by issuing an advertisement dated 4.10.2007 in a leading daily newspaper, in a fair and transparent manner. It is submitted that the petitioner has rightly conducted admissions for the vacant seats as well as the 120 seats, increased later on, and as per the judgment of the Supreme Court in P.A.Inamdar and others v. State of –Maharashtra and others (2005)6 SCC

537, the apportionment of seats and reservation by the State in an unaided educational Institute such as the petitioner-Institute is not permissible.

Mr.Nanavati has submitted that pursuant to the issuance of the advertisement dated 4.10.2007, the merit list of eligible candidates was prepared and admission was granted on the basis of such merit. According to the learned Senior advocate, the method of admission adopted by the petitioner is a transparent one, whereas the State Government has adopted a closed-door procedure in the admissions to the 90 seats filled up by them where less meritorious students have been admitted.

Mr.Nanavati has emphasized that the

students admitted by the petitioner-Institute, including those 90 students admitted by it against the 75% State seats, should be permitted to appear in the examination to be commenced with effect from 28.12.2007, as has been

permitted in Pushpagiri Medical Society

–v. State of Kerala and others (2004)

13 SCC 702. The sum and substance of the submissions advanced by Mr.Nanavati is that the admissions conducted by the petitioner-Institute to all vacant seats, including the 90 State seats, are just and proper and the petition deserves to be allowed.

9.

Percontra,Mr.S.S.Shah,learned

Government Pleader appearing for all the respondents, has vehemently contended that the petitioner has violated the specific condition imposed in letter dated 17.9.2007 (Annexure-B to the petition) whereby AICTE has granted an increased intake capacity of 120 seats to the petitioner-Institute, with the specific stipulation that the admission to these seats shall be made through the Centralized Counseling of the Government of Gujarat only. Mr.Shah has further submitted that CDAC has been constituted pursuant to the directions of the Supreme Court contained inIslamic Academy of Education and another v.–State of Karnataka and others (2003)6

SCC 697, and, therefore, the CDAC has fixed 75% of the seats as being State seats, and 25% of the seats being Management seats to be filled up by the State and Management of the concerned institution respectively, and the action of the petitioner in filling up all the vacant seats, including the 75% State seats, is absolutely wrong and improper and contrary to the directions contained in Islamic Academy of Education and another v. State of Karnataka and others (supra). The said practice has been followed in the current academic year and has been accepted by the petitioner. Mr.Shah has vehemently submitted that the said admissions cannot be justified especially in view of the fact that the petitioner-Institute has surrendered 75% of the seats and has given an Undertaking to the effect that it will fill up 25% of the management seats, which, the petitioner cannot resile from at this belated stage by taking conflicting stands. Mr.Shah has further submitted that the plea that the petitioner-Institutehasbeen pressurized and threatened into surrendering 75% State seats and that the same has been done by the Principal, without the consent of the Management of the petitioner-Institute, is not at all convincing. There is no material on record in support of this assertion. It is asserted by Mr.Shah that the petitioner-Institutehasconducted admissions pursuant to the advertisement dated 4.10.2007, without disclosing this fact to the CDAC whereas the Government, for the first time, has taken a decision SCA/28823/200718/34JUDGMENT

regarding the filling up of 75% State

seats only on 24.10.2007. It is further

submitted that by an order dated

24.10.2007 (Annexure-G to the petition)

CDAC has specifically informed the

petitioner of the conditions stipulated

by the State Government and has clearly stipulated that the admission process shall be conducted by the CDAC only.

Mr.Shah submits that after the surrender of 75% seats, CDAC has issued call letters/ communications through other modes to all the eligible students for appearing before the admission committee and counseling on the increased intake capacity of the Government seats has already begun and has been completed on 30/21.10.2007. It is therefore contended by the Government Pleader that the admission process on the increased intake capacity seats, to which the

petitioner-Institute had already started the admission process on its own, in SCA/28823/200719/34

JUDGMENT

contraventionoftheconditions

stipulated by the AICTE while granting revised intake capacity, is illegal and improper. The learned Government Pleader has pointed out that the petitioner-Institute had sought permission to fill up 33 seats on its own vide letter dated 21.9.2007 (Annexure-C) to the petition, which had remained vacant after the regular admission process was over and, which permission was revised by the CDAC vide letter dated 28.9.2007 (page 36/37 to the petition). According to the learned Government Pleader, the dropout seats which have remained vacant have nothing to do with the increased intake capacity seats which were granted to the petitioner vide order dated 17.9.2007 by the AICTE and, therefore, the petitioner cannot confuse the two in order to justify its wrong action in filling up the 75% State seats. The crux of the submissions madebythelearned SCA/28823/200720/34JUDGMENTGovernmentPleaderisthatthe petitioner has wrongly carried out the admission to the vacant seats, including dated 1.11.2007 referred to by the petitioner in paragraph 3.16 of the petition is annexed as Annexure-R10 to the affidavit-in-reply filed on behalf of the respondent No.3. According to this letter, addressed by the Managing

Trustee to the Member Secretary, CDAC, the petitioner-Institute has stated that it is not possible to accommodate additional 90 students unless and until the intake capacity is increased by the Government. The learned Government Pleader has thereafter, referred to another letter of the same date and has emphasized that the outward number of the first letter dated 1.11.2007 to be found at page 146 of the paper-book is 3581. Thereafter, the learned Government Pleader has drawn the attention of this Court to another letter dated 1.11.2007, also annexed as Annexure-RX to the reply at page 147, the outward number of which is 3583. This letter has also been addressed by the Managing Trustee of the petitioner-Instituteto the Member Secretary, Central Diploma Admission Committee, and the contents thereof are reproduced below:

“Respected Sir,

This is to inform you that we have registered the students those who are admitted through CDAC in our Institute.”

According to the learned Government Pleader, since the petitioner-Institute has registered the students who are admittedthroughCDACintheir Institute, 90 seats comprising 75% State seats have already been accepted by the petitioner-Institute, and the petitioner cannot now back out from the said position. Further, admissions to the 90

seats against 75% of the State seats

which have been carried out by the

petitioner on its own cannot be

approved. Mr.Shah has therefore prayed

that the petition be dismissed.

10. There is no dispute regarding the fact that for the existing intake capacity of 300 seats of the petitioner-Institute,

the admission process had started for

the academic year 2007-08, which was

concluded on 10.8.2007. There is also no dispute regarding the fact that vide Government Resolution dated 29.5.2004

(Annexure-RI to the reply-affidavit dated 27.12.2007 filed by the respondent No.3), the State Government had fixed 75% of the intake capacity as the State seats and 25% of the intake capacity as the management seats. It is also an admitted fact that the State Government has, vide Government Resolution dated 29.5.2007, annexed as Annexure-RII to the reply-affidavit of the respondent No.3, framed Rules of admission to Diploma Courses in all Institutes governed by CDAC by which admission to 75% of the total intake being the State seats are to be granted by the CDAC and 25% management seats are to be filled up by the concerned Institute. By granting increased intake capacity to the petitioner-Institute, 60 seats were granted by the faculty of Information Technology and 60 seats in the faculty of Mechanical Engineering, i.e. 120 seats were granted in all by the increased intake capacity to the petitioner-Institute. This is amply evident from the order dated 17.9.2007 (Annexure-B to the petition). It is also clear from the said order that a specific condition has been imposed to the effect that admission shall be made through the Central counseling by the State Government only. Out of the 120 increased intake capacity seats granted to the petitioner Institute, 75% i.e. 90 seats are required to be filled up by the State Government as per the Government Resolutions dated 29.5.2004 and 29.5.2007. Only 25% of the seats i.e. 30 seats, which are the Management seats, can be filled up by the petitioner-Institute. The petitioner-Institute has surrendered 75% of the seats to the CDAC, which is also evident

JUDGMENT

from the letter dated 25.10.2007 which is available at page 55 of the paper-book. The petitioner-Institute has also filed an Undertaking to the effect that it has surrendered 75% seats to the CDAC and would follow a fair and transparent procedure for admission on the remaining 25% management seats. It is the surrender of 75% of the seats and the Undertaking filed by the petitioner- Institute which is sought to be retracted by the petitioner in the petition.

11. In the light of the documents on record, I am of the considered opinion that the petitioner-Institute has accepted the 75% State seats, to be filled up by the StateGovernmentandhasalso surrendered the same. The petitioner has further undertaken to fill up the 25% Management seats on its own. Having done so, the stand taken by the petitioner-

JUDGMENT

Institute in the petition that the

respondent No.2 has pressurized the

Principal of the petitioner-Institute to surrender the increased seats in the disciplines of Mechanical Engineering andInformationTechnology,by threatening de-recognition is highly improbable. Apart from a bald assertion to this effect, there is no material on record to prove that such pressure

tactics were ever adopted by the

respondent No.2. It is evident that this stand is an afterthought by the petitioner, in order to justify its wrongful action of granting admissions to students against the State seats, which could not have been done in the first place. first place.

12. Regarding the withdrawal of the letter surrendering 75% State seats and the Undertaking given by the petitioner, it can only be said that such a stand cannot be approved by this Court since

the petitioner cannot be allowed to

approbate and reprobate in the same breath. There is not an iota of evidence on record that any pressure tactics or threats were ever administered to the petitioner-Institute by the concerned respondent. On the contrary, it is evident from the material on record that the petitioner-Institute has proceeded to conduct admissions against the seats which were not available to it as per norms and, after having done so, is trying to justify its action by raising this plea which is not supported by any material on record. In the firm opinion of this Court, the petitioner is bound to surrender 75% of the increased intake capacity seats to the State Government as per its undertaking and accepted practice, on which only the State Government can conduct admissions. In the light of the above, the action of SCA/28823/200728/34JUDGMENT

the petitioner in conducting the

admissions to the 75% State seats (90

seats) in contravention of stipulated

conditionsandnorms,ishighly

improper, and, therefore, cannot be

justified or upheld.

13. The State Government has already started the admission process for its 75% seats, as is evident from the further affidavit dated 20.12.2007 filed on behalf of the respondent No.3, and the seats available to the State have been filled up by the State after following the procedure of counseling and strictly on the basis of merit, by operating the merit list from Sr.No.39243 of the merit list. When the admission to the 75% State seats has already been conducted by the State Government, the prayer of the petitioner to consider the admission made by it against the same 75% State seats, as being legal and proper and to permit the SCA/28823/200729/34

students so admitted to appear in the

examination commencing from 28.12.2007, cannot be accepted.

14. A perusal of the advertisement dated 4.10.2007 makes it clear that it is worded in absolutely vague terms and is misleading, inasmuch as it does not specify the number of seats for which applications are being sought. By way of this advertisement, applications have also been sought to the faculties for which seats have not been increased, meaningthereby,itisnotan

advertisement for the seats granted under the increased capacity but is a general advertisement for all faculties. It is also relevant to note that the Government decision approving the grant of increased capacity seats to the petitioner-Institute came to be approved only on 24.10.2007, due to the Election Code of Conduct, which was prevailing during the relevant period of time. The petitioner-Institute has already issued an advertisement much before 24.10.2007, and has processed the admissions on its own without permission from the State Government and that too, for an unspecified number of seats. Not only that, the petitioner-Institute has proceeded to fill up all the seats, including the State seats on its own accord, much before the permission to do so was accorded by letter dated 24.10.2007 (Annexure-H to the petition).

15. Mr.Nanavati, learned Senior Advocate for the petitioner, has relied on paragraph- 124 of the judgment rendered in P.A.Inamdar and others v. State of Maharashtra and others (supra), which, will not be applicable to the facts and circumstances of the case in view of the fact that the petitioner has itself accepted the 75% State seats and surrendered the seats comprising the same vide letter dated 25.10.2007 which is at page 55 to the petition along with an Undertaking at page 57 to the petition.

16. The ratio of 75% and 25% has been fixed by the State Government vide Resolution dated 29.5.2004 at Annexure-R1 to the petition in pursuance of the direction of the Supreme Court in Islamic Academy of Education and another v. State of Karnataka and others, which practice has been accepted by the petitioner and followed in the current academic year as well,asisevidentfromthe communicationsdated2.7.2007and 5.7.2007, annexed as Annexure-RIII to the reply affidavit of the respondents. The prayer of the learned counsel for the petitioner that directions should be issued to permit the students to appear in the examinations on the basis of the the Courts will not issue any directions which will amount to perpetuating an illegality. It has been laid down in a catena of judgments that an illegality once committed cannot be made the basis in order to claim any subsequent relief. The action of the petitioner in filling up 90 seats which were to be filled up by the State Government, even after having surrendered them, cannot be upheld by this Court. Once the admissions conducted on these 75% State seats is held to be improper, the students admitted to these seats cannot be permitted to sit in the examinations, since the State Government has itself conducted admissions for these very same seats.

18. In the light of the detailed discussion

made hereinabove, this Court is of the

opinion that the admission made by the

petitioner-Institute to the 90 seats

JUDGMENT

which comprise 75% State seats as well

as one seat from the dropout category,

is improper and not in accordance with

the norms and stipulated conditions,

and, therefore, cannot be upheld. The

admission made by the petitioner-

Institute to 25% management seats (30

seats) as well as on 10 seats in the

dropout category is not in dispute, as

per the statement made at the Bar by the learned Government Pleader.

19. In the ultimate analysis, there is no

merit in the petition and the same is

dismissed. Rule is discharged. There

shall be no orders as to costs.

(Smt.Abhilasha Kumari, J.)

(sunil)